Merrill Lynch Interfunding, Inc

Bc liquidating llc v weinstein et al

When asked about the alleged maturity date extension, Mr. The Plaintiff is asking the Court to impose upon Amalgamated duties which are not imposed by the Loan Documents and afford the Debtor rights which are not afforded by the Loan Documents. The Wagoner rule is an extension of this doctrine, created by the Second Circuit Court of Appeals, which prevents any party standing in the shoes of a debtor in bankruptcy, i. Rather the allegations underlying these claims focus strictly on Amalgamated's conduct, its alleged failures, resulting in the alleged liability for breach of contract and related claims.

For the reasons that follow, the Court finds that the Plaintiff has failed to sustain its burden of proof on the First, Second, Fourth and Fifth Claims for Relief. Plaintiff commenced this litigation, as the estate representative, asserting breach of contract and related claims against Amalgamated.

In pari delicto and the Wagoner Rule The Defendant asserts that the Plaintiff's claims in this action are barred by the doctrine of in pari delicto and the Wagoner rule. However, this argument inappropriately shifts, from the borrower to the lender, the burden of ensuring the proper use of loan proceeds. The Debtor answered the complaint in the foreclosure action and asserted counterclaims against Amalgamated. In fact, not only does Amalgamated deny having granted an extension at the spring meeting, Amalgamated denies that there even was a spring meeting.

Amalgamated is a majority union-owned bank. Grossman, United States Bankruptcy Judge.

For the reasons that follow thePlaintiff commenced this litigation as the

However, the Plaintiff has failed to prove that the Debtor performed its obligations under that contract or that the Defendant breached the contract. The Plaintiff reserved its right to assert the remaining claims for relief under the Complaint. Attorney s appearing for the Case Melanie A.

Talel clearly testified that the Ferry Road Payment was made strictly out of the developer or construction management fee, not out of funds that were budgeted for construction. This claim is sufficiently linked to the Plaintiff's breach of contract claim that the six year statute of limitations on breach of contract actions also applies to this claim.

He also testified that this payment was made voluntarily. None of the arguments advanced by the Plaintiff changes the plain language of the contract and the fact that the Debtor had not met the requirements for an extension of the Maturity Date of the loan. The partial performance must be unequivocally referable to the new contract. Over an extended period of time, the Debtor and Amalgamated engaged in negotiations to modify the Loan Documents.

The Court finds that the Complaint controls, and in any event, the Court's ruling for the Defendant moots this issue. Left unpaid were certain mechanics lienors which supplied materials and labor towards construction of the original project. Next, the Plaintiff seeks damages on account of Amalgamated's unjust enrichment at the expense of the Debtor.

Although Amalgamated's conduct here may have been questionable, the Court finds that it is not actionable. Pursuant to stipulation in the joint pretrial memorandum, Plaintiff's Exhibit Nos. The Court also finds that the Plaintiff has not satisfied its burden of proving that Amalgamated should be equitably estopped from invoking the requirement that any modification be in writing. The Court already found that the Plaintiff failed to prove that there was a modification of the maturity and completion dates, oral or otherwise.