Lender liability

Lender liability claims are usually defensive, raised in response to enforcement. They rarely succeed and they reliably delay collection.

Breach of contract. Failure to fund a committed facility, improper acceleration, failure to give required notice, or breach of a forbearance agreement.

Breach of the implied covenant of good faith. Not a free-standing obligation to act in the borrower’s interest; a limit on the exercise of contractual discretion. Where a loan document gives the lender discretion — over reserves, over eligibility, over consent — the covenant constrains its arbitrary exercise.

Control. A lender that participates in the borrower’s operational decisions may be found to have assumed a duty, or in extreme cases to be an alter ego. Approving a budget is not control; directing which vendors are paid approaches it.

Fraud and misrepresentation from assurances about renewal or additional credit.

Tortious interference with the borrower’s relationships.

Prevention. Written communications, express reservations of rights, no oral commitments, a documented credit decision process, and consistency between what the file says and what the relationship manager said.