A side effect of the foreclosure crisis has been a growing concern among lending institutions over the possibility of “lender liability.” Lender liability encompasses any number of actions that may be asserted by a borrower against a lender based on either the lending process or final loan documents. Borrowers have been seeking new and inventive ways of avoiding foreclosure, often by bringing these claims against banks as counterclaims in a foreclosure action. 

One of the most fruitful areas for lender liability claims to arise is in pre-agreement negotiations. It is easy for a borrower to embellish conversations to claim that an agreement arose, or even that its terms were more favorable than written. A few simple steps can minimize (although not eliminate) the chance a borrower may be successful on such a claim:

1.        Require a written acknowledgement that any pre-execution communications between borrower and lender are not binding. This is particularly important in the loan work-out setting, where a lender does not want to grant concessions under the original loan documents until a final agreement has been reached.


2.        One of the recurring themes in lender liability cases is the borrower’s perception that ongoing negotiations have resulted in an agreement. Placing a termination date in all pre-execution documents can avoid this problem.


3.        Early in the loan application process, send a letter to the prospective borrower laying out all the required steps to be taken, by both parties, before a loan will be made.


Remember, especially in these times, you must “hope for the best and plan for the worst.” As a lender, you are hoping to benefit from a transaction financially, and are eager to get a deal done. But should litigation arise, you want a pile of evidence that all plainly supports your version of the deal. This shouldn’t be a hard sell, as extensive documentation also benefits the borrower by setting out the path to approval and eliminating any misconceptions.