commercial loan liability
10/15/2006 purchased tractor equipment $45k
03/03/2006 Assumed commercial loan for International 4300 truck $130k (2nd owner me in SC - 1st owner in Texas) I signed a specific power of attorney (title transfer, registration, etc) separate from loan docs but at same time loan docs were signed.
03/10/2006 bank has 1st purchaser sign power of attorney
Mid April 2006 I contacted bank and asked for loan extension
Bank later informs me that no loan extension is available. I inform the bank my other creditor has agreed to extend terms.
Bank calls me back and informs me that they (the bank) own both loans and no extension will be forth coming on ether loan.
I then said you (the bank) have not transferred title to vehicle (SC law 45 days to register) and you are preventing me from earning money – they said it was not their problem.
July 11, 2006 bank repo’s all equipment.
Bank sells tractor at private sale 12/18/2006 – Actual sale date was Jan.2007 equipment sold for $14k. Banks internal documents recommended sale price of $21k with a retail price of $30k.
Jan.17, 2007 bank obtains Arkansas motor vehicle title. The bank used my companies loan document (transfer and assumption agreement) with original purchasers name and my address, used a blank title application with a signature only, repossession affidavit with original purchasers name and my address in SC, power of attorney from original purchaser dated 03/10/2006 one week after loan doc’s were signed by me and NO TITLE was submitted to Arkansas.
There is no record of me or my company owning this vehicle in any state.
The bank never recorded a lien with Texas DMV. The original owner owned vehicle free and clear.
03/18/2007 Bank sells vehicle at public auction for $26K. Banks internal documents recommended sale price of $44k with a retail price of $64k.
07/2007 Bank files suit against company, me and my wife (signed personnel guaranty)
09/2007 Bank sends letter to my accounts payable stating balance owed was $0.00
My discovery:
Bank failed to transfer title in 45 days per SC law (I signed a separate power of attorney for transfer etc).
Bank failed to properly record lien per SC motor vehicle law.
Bank failed to properly record lien on Texas motor vehicle.
Bank, one week after signing loan docs (me) had original purchaser sign new power of attorney one week after I signed loan docs.
If I was the new owner then I merely assumed an unsecured loan. By precedent of bank never recording lien per State laws.
The bank had no legal right to repossess vehicle without legal proceedings.
Car Fax report shows I was never an owner only original purchaser and repo title in banks name.
Equipment was sold below market value – per banks docs.
Bank used my companies transfer and loan agreement, affidavit of repossession in original purchasers name with my address, blank title application @ Arkansas DMV,
No title and obtained a new certificate of motor vehicle title.
Published all my and my wife’s personnel information including social security numbers, DOB, address.
Questions:
Is there a contract?
Do my company and me and my wife have any obligation (since ownership / title was never transferred)?
Do my wife and me have any responsibility since we signed as personnel guarantor (How can I owe for something when I did not own and could not use)?
Did the bank have a fiduciary responsibility?
Economic damages:
Given my company never had a contract (debris removal at hurricane Katrina) I did not have enough time to secure contract and this type of machine was only owned by a few private individuals in the U.S. so the probability of securing contract was significant. Therefore, I have no historical earnings in this industry. Are economic damages reasonable (I’ve been told I have a large hurdle for no contract)?
Then, if economic damages are barred then should not the strategy be negligence and not the contract (SC has strict doctrine on economic loss)?
I have also been warned if I do not accept settlement (just call everything even and walk away) I will be facing significant cost including the equipment and all attorney fees of at least $225k. Now I am being told I cannot prove with any reasonable I have any economic loss over $225k and the bank can get summary judgment ASAP and I cannot do anything about it! I said B.S. the bank did a report and knew exactly how much I could make with that machine before the loan assumption.
I am also being threatened with criminal prosecution because of my company application. I was told if I misrepresented anything on the application, it is a federal crime and the bank is going to put me through an intense investigation and sheer hell!
My contention is does the bank even have a contract and if so, is the contract enforceable (given the actions of the bank)?
Do I have significant damages?
What to do about the publication of private information?
Thank you to all who respond, my family and me has been in turmoil for months now and we just need an honest answer and help.
Thank You,
Spike
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