Breach of promissory note and relevance of terms of Loss Share Agreement

Our representation of financial institutions include representing financial institutions who purchased assets from the FDIC. Taylor English routinely files suit on behalf of the purchasing bank and against borrowers on loans made by the defunct financial institution. In a particular litigation, the borrower argued summary judgment was improper because the terms of the Loss Share Agreement, not discovered, was relevant to establishing the purchasing bank’s damages. Although summary judgment was initially denied by a judge sitting by designation, just before the start of trial, the presiding judge suppressed all evidence or testimony regarding the details surrounding the purchase of the assets of the failed institution and the terms of the Loss Share Agreement. The borrower consented to judgment and set an important precedent for financial institutions that certain terms of the Loss Share Agreement are not relevant to establishing a borrower’s damages.