Analysis and Consequences of Legal Action(S) Essay

Analisis for successful lawsuit reportPurposePer your solicit, our effective team, adroitness of efficacious Eagles, LLP, wishes to advise you regarding your tentative reasoned achievement against Mechanics interior(a) chamfer ( field believe). As you alleged, internal intrust was absent in their failure to move back a spleen on your lagoon marge retention. Our effectual team has assessed this and a nonher(prenominal) concerns of your display spell. Outlined throughout this residuum be conclusions we arrive made and recommendations we wish youconsider.Before we proceed, we thank you for your rely and assure you nonhing less than our highest-quality work.You drop de nonative to us your involution in rec overing compensation for a failed entrepreneurial endeavor involving a hotel quality, Hotel California. You also asserted us that your encyclopaedism of this berth was dependent upon your securing pay through pledging a prop you currently own as c ollateral. In a brief epitome of the f portrayals of your reason, we acquire you whitethorn success broady sustain liability on the part of discipline rim however, this conclusion is not without concerns, particularly regarding your bundle with the owner of Hotel California. This concern and other considerations for your encase atomic number 18 also discussed in this parallelism.Factual BackgroundOur notes of the essential facts of your case manoeuver the occuring You sought the acquisition of an existing hotel airplane propeller located in Palm Desert, park. You contacted the hotels listing agent, Mr. Babak Gordon, and obtained preliminary data on the seat, including pecuniary arguings of the hotel which you sport provided us. On January 5, 2005, the hotel owner, Ms. Shirley Ramirez, Mr. Gordon, and you had a preliminary intervention regarding the purchase and sales event of Hotel California. Ms. Ramirez offered to you by ph nonp atomic number 18il this propert y for $4.3 million, excluding the furniture, and the sale was to argue maintaining a 45 day escrow. On January 6, 2005, you faxed Ms. Ramirez a sign letter both(prenominal) indicating your toleration of her offer and your preference that the trans attain close following a 60 day escrow. Although you never received a reply or confirmation from Ms. Ramirez, on January 30, 2005, you obtained a financing commitment from assert of the West. Their conditions were that the till would obtain a send-off priority quick temper on the hotel property along with an unrelated undeveloped parcel of land owned by you in lagoon edge, one thousand. As you have sh bed with us, you acquired this land in 1984 and had managed to pay off its owe on November 1, 2004. However, content border failed to transplant its lien on the property. You vigorously essay to get field of study assert to remove its lienon this property. You contacted bank officers and explained to them that the lien nee ded to be removed so that you could pledge the property as collateral and pay your purchase of Hotel California. Because home(a) bound did not remove this lien, you were unable to finance the acquisition of Hotel California. You later bought a hotel property exchangeablely situated and approximately identical to Hotel California for $4.7 million dollars.IssueFrom our analysis, we find as healthy your finality to consider pursue profound activeness against home(a) confide for redress. You have cited internal Bank as negligent for weakness to follow instruction manual regarding the removal of a lien from the title of your laguna land property. If you proceed further to trial, a court of law leave behind try, whether by failing to remove its lien on your Lagoon Beach property, subject Bank committed the tort of carelessness.Because our analysis has also gaind concerns regarding your sign up with the owner of Hotel California, Ms. Shirley Ramirez, we moldiness also inform you of a game bailiwick a court of law is believably to try. If you proceed further to trial, a court of law depart try whether a legally tie uping, enforceable distil exists (or existed) surrounded by Ms. Ramirez and you. Keep in mind that your legal litigate for insurance may be predicated on whether thither was a pin down.RoadmapIn addition to listing our conclusions, recommendations, and concerns throughout this correspondence, you go away find that we have canvass the likelihood for success of your legal action against field of study Bank. You have expressed your desire to recover damages for your lost chance involving the Hotel California property. For your convenience, a complete and careful analysis has been conducted and detailed throughout this correspondence. GROUNDS OF financial obligationYou have alleged that field of study Bank was negligent, and you intend to recover damages from National Bank. You give have the burden of proving the prima faci e case for the tort of negligence. You must(prenominal) cite evidence and applyarguments that support your allegation of National Banks negligence. To successfully fulfill your burden you must blame that* occupation The suspect (National Bank) owed you ( complainant) a responsibility of due care. * Breach of avocation Defendants conduct give wayed that employment. * demonstrable and Proximate Cause Actual and proximate causation mingled with defendants breach and your (plaintiffs) detriment was defend. * Injury Injured feralowship (you) sustained injury due to defendants actions.If you fail to prove these elements, National Banks legal team may motion to dismiss your case. In this event, it is possible that your case could then be dismissed without further proceedings.However, if you successfully prove and ask all four of these elements, you must also overcome any approbatory defenses, if applicable, raised by the defendant (National Bank). These defenses are contr i barelyory negligence and surmise of risk. From our initial analysis, National Bank entrust be unable to raise an affirmative defense on these grounds. We will fully assess whether in that respect are on any other legal grounds defenses that National Bank can raise. (See Other Considerations.)Remedies for NegligenceIf you successfully prove National Banks liability, you may be entitled to recover compensatory or actual damages. The damages and compensatory award kernels are de statusined on a case-by-case basis by the jury or judge presiding over the case. We have included a potential award amount you may be entitled to and you will find a complete discussion on how this determination is made. (See ANALYSIS OF LIABILITY Injury.)Statutes Governing Contract righteousnessBecause the secondary unloosen (See Issue) and one of our concerns regarding your case is regarding your contract with Ms. Ramirez, we have tell applicable information from both the Green complaisant Code and our legal library pertaining to 1) offer and adoption, 2) Greens formula of frauds, and 3) Greens mirror visualise rule. For your convenience, we have bolded anddefined legal terminology that will be recapitulated in later sections of this correspondence.Offer and AcceptanceAn offer is the meaning(a) first step in the contract formation process. A company (offeror) who makes the offer gives another party (offeree) to whom the offer is made the power to bind both parties to a contract simply by leting the offer. not every proposal qualifies as an offer. To distinguish an offer, courts tax offers on triple grounds First, they look for nigh objective indication of a pitch intent to contract on the part of the offeror. Second, they look for specificity, or definiteness, in the name of the alleged offer. Third, they look to see whether the alleged offer has been communicated to the offeree.An bringance is a manifestation of assent to the terms of the offer made by the offere e. In ascertain if an offeree accepted an offer and created a contract, a court will look for evidence of three factors (1) the offeree intended to enter the contract, (2) the offeree accepted on the terms proposed by the offeror, and (3) the offeree communicated his acceptance to the offeror.Statute of FraudsAccording to the Green genteel Code, 1624, any contract transferring an interest in land is invalid if not accompanied by note or memorandum. An unenforceable contract is one that garners the basic legal requirements for a contract, but may not be enforceable because of some other legal rule. A contract for which the statute of frauds requires a form of writing, yet no writing is made, may be declared an unenforceable contract.Mirror Image RuleThe traditional contract law rule is that an acceptance must be the mirror image of the offer. Attempts by offerees to change the terms of the offer or to add raw(a) terms to it are treated as counteroffers because they indicate an i ntent by the offeree to reject the offer instead of being bound by its terms. direct that you have an understanding of the pertinent law behind the tort of negligence and contracts, and are familiar with the legal terminology of these areas, we proceed into our analysis of the facts of your case and the prima facie case for the tort of negligence.ANALYSIS OF NATIONAL BANKS LIABILITYShould you surveil further legal action against National Bank, you will have the burden of proving the elements of the prima facie case of the tort of negligence. Below are descriptions of these elements, accompanied by our legal analysis mingled with the facts of the case, prima facie case, and case law from our legal library.Tort of NegligenceIn Commercial Escrow confederation v. Rockport Rebel, Inc., negligence is defined as conduct which falls below the ideal established by law for the protection of others. Because of the similarities in the facts between the case of Escrow play along and your c ase, this case has been used extensively in the forming of the following arguments. We recommend using this case in satisfying your burden for your legal action.Accordingly, you must argue that National Banks behavior in failing to remove the lien on your Lagoon Beach property fell below the standard for public protection established by law. Further, to successfully prove negligence, you must argue that National Bank is responsible for some injury you incurred stemming from their alleged mismanagement and failure to remove the lien on your property. With your notes, the facts of your case, and documents you provided us, we have constructed tentative arguments to determine the success of your legal action. You will find these arguments beginning on the next page.DutyAccording to the case, Commercial Escrow club v. Rockport Rebel, Inc., a defendant owes a transaction of care to all predictable plaintiffs. For example, in cases where a defendant voluntarily assumes the duty to act b y declare to the plaintiff to behave in a certain(prenominal) way, the defendant owes that plaintiff a duty to act with care. According to Judge Utter, a defendant also owes the plaintiff a duty of care where a contractual relationship between the parties requires the defendant to act in a certain way towards the plaintiff.Considering these rules of law, National Bank owed you a duty to act as you requested. In your previous correspondence, you indicated that National Bank is the lender on your Lagoon Beach property. You also submitted to us a copy of your deed of trust. To reiterate the language in the deed of trust as part of your contractual relationship with National Bank, National Bank was supposed to promptly volume a reconveyance of its lien on your property upon payment in full of the underlying loan. Because National Bank failed to do this, we find it foreseeable that you would be prevented from using the property as collateral for your hotel acquisition.Additionally, you also mentioned that you vigorously attempted to get National Bank to remove its lien on your property, but to no avail and despite repeated assurances from various officers. Because National Bank officers assured and essentially promised you that they would remove the lien on your property, National Bank voluntarily assumed a duty to you, if no duty had been present beforehand. In essence, the assurances made to you to process your request indicate that National Bank voluntarily assumed, and in that respectfore owed you, a duty of due care to act as you requested. In lightness of these arguments, we assure you that you should successfully satisfy this first element duty of the prima facie case of the tort of negligence.Breach of DutyAccording to Commercial Escrow Company v. Rockport Rebel, Inc., in order for a plaintiff to prove negligence, the plaintiff is required to show that the defendant had breached defendants duty of care to the plaintiff. In approximately cases, a defe ndant owes a plaintiff a duty to act as would a conceivable person under similar circumstances. In the case of Escrow Company, the beg put together that in performing serve for a client, the escrow company has the duty to purely follow instructions. Like an escrowcompany, a financial institution like National Bank intimately likely has a duty to strictly follow instructions drafted in a deed of trust, or part of a loan or other financial instrument.Because officers on behalf of National Bank did not follow instructions and terms of behavior involving you (as lendee) and National Bank (as lender) detailed in your propertys deed of trust, you may successfully argue that National Bank breached its duty to you. According to our copy of your deed of trust you provided us, National Bank was required to promptly record a reconveyance of its lien on the property upon payment in full of the underlying loan. You had managed to pay off the mortgage on this property on November 1, 2004. D espite this, National Bank failed to remove its lien, even after you requested. Because officers at National Bank did not strictly follow this instruction, National Bank breached the duty of due care owed to you. designerSatisfying the prima facie case for the tort of negligence also requires that a plaintiff prove that at that place is a connection (or actual causation) between the alleged breach of duty by defendant and injury suffered by plaintiff. As in the case of Commercial Escrow Company v. Rockport Rebel, Inc., courts assess the human race of a connection between breach and injury by determining whether injury would have occurred if not for breach. A court would employ a similar test in your case. Because National Bank failed to remove the lien on your property, you did not satisfy terms of the loan commitment with Bank of the West and could not firm financing for your acquisition of Hotel California. We find that there is a casual connection.Courts also evaluate the prox imate cause (causation) between a defendants breach of duty and a consequent injury suffered by a plaintiff. Proximate causation refers to whether the defendants breach of duty and subsequent injury suffered by the plaintiff was foreseeable. Because you vigorously attempted to have officers at National Bank remove its lien on your property and informed them that you needed the lien removed in order to pledge the property as collateral, we find that your injury of freeing of opportunity toacquire the hotel property was foreseeable.InjuryThe final element you must prove to satisfy the prima facie case for the tort of negligence is whether you have suffered injury because of National Banks alleged negligence. Due to National Banks failure in removing the lien on your Lagoon Beach property, the transfer of ownership agreement of Hotel California between you and Ms. Ramirez allegedly collapsed.Later, you purchased a similarly situated and virtually identical hotel property for $4.7 mi llion, $400,000 more than what you would have paid for Hotel California ($4.3 million). In essence, National Banks alleged negligence caused you to incur an opportunity make up of $400,000. This loss of opportunity is under the assumption that a valid, enforceable contract existed between you and Ms. Ramirez. digestBecause National Bank breached its duty by failing to remove its lien on your property, you were unable to secure financing for a $4.3 million acquisition of Hotel California. However, you later purchased a virtually identical property for $4.7 million. You may be entitled to the difference.DEFENSES AGAINST LIABILTYIn this portion of this report, we detailed any applicable defenses relevant to your case, and outlined other considerations and concerns we advise you to consider. Although we have found that affirmative defenses to National Banks negligence are inapplicable to the particular facts of your case, we have other concerns to discuss.Other ConsiderationsIt is th e mind of Legal Eagles, LLP, that National Bank may argue that regardless of whether it removed the lien on your Lagoon Beach property, indefinite would be the transfer of ownership of the hotel property from Ms. Ramirez to you. As our analysis showed, you may successfully prove that National Bank had a duty to remove the lien on your property andsubsequently breached that duty by failing to adhere to this instruction. If the failure to remove the lien on your property can be proven to have caused you damage(s), we will advise you to pursue further legal against National Bank. But first we must evaluate the documents you provided us and later the validity of the binding contract between you and Ms. Ramirez. abstract of IncomeWe have completely re time valued the hotel property, Hotel California you were interested in. We used the same method(s) and approaches that most banks in our region would use to appraise the value of hotel properties. The expected value approach places encu mbrances on appraisals from two methods. First, we multiplied the past two geezerhood average gross margin by four. This holds a weight of 40%, because it is expected to be accurate 40% of the time. The value we derived from this method came to $2,462,380.00. Next, we took the present value of the average of the past three years cash flows, discounted at an 8% discount rate for 10 years. This method holds a 60% weight. The value derived from this method comes to $2,505,589.13. Our final step is to assign the correct weight to each method and sum the two figures. We can because desist that the Hotel Californias appraisal value is $2,488,305.48. In addition to this, it is pleasing for a company to sell what is known as goodwill. That is why the listed determine of 2.5 million dollars was overstated by $11,694.52. We know that the bank would only when accept you to borrow up to the appraised value, $2,488,305.48, unless you either pay 25% of the purchase in cash, or pledge to th e bank a first priority lien on the vacant land as collateral. We also know that the last mentioned option was not possible, so we will consider the former. We conclude that 25% of the purchase price of $4.3 million is $1,075,000. Because you were able to only provide $500,000 in cash for a down payment, you did not meet the requirements to borrow more than $2,488,305.48 from the bank, without pledging the vacant land. Hypothetically, if you had decided to borrow $2,488,305.48 from the bank, plus your $500,000 down payment, you would have had $2,988,305.48. This amount still would not have been enough to purchase the Hotel California property offered at $4.3 million dollars. Consequently, we conclude that without pledging the vacant land as collateral, there was no way you could have borrowed enough money to make the purchase. evethough the appraised value was not enough for you to borrow a adequate amount of money from Bank of the West, we believe the appraised amount you were gi ven was not accurate. There are two reasons why we believe Desert Mirage bill should not have relied on the income statement and indite provided by Ms. Ramirezs grievanceant. The first problem lies in the way the accountant prepared the income statement. Mr. Babak Gordon metrical gross profit by taking revenue minus cost of revenue. This method is only used for retailers and manufacturing companies, whereas Hotel California is a service company. The second problem is the verifiability of the financial statements and reliability of the accountant. To be credible, financial statements must follow generally accepted accounting principles (generally accepted accounting principles). A financial statement that follows GAAP must be accompanied by a signed opinion letter. The letter can be in the form of 1) Compilation letter2) Review letter3) Audit opinionFinally, this letter must be signed by a certified public accountant (CPA). Because the income statement of Hotel California does no t come with any signed opinion letter, we cannot stray its accuracy. Therefore, Desert Mirage Accounting should not have relied on that income statement and footnote information to make the evaluation. In our initial observation of your case, we assumed National Banks failure to remove its lien from your Lagoon Beach property caused you to forfeit your opportunity to purchase the Hotel California property. As illustrated by our calculations above, you could not have financed the acquisition of Hotel California without pledging your Lagoon Beach property as collateral. However, after conducting a thorough analysis of your case, we regret to inform you that you may not be able to prove damages stemming from National Banks failure to remove its lien from your property. Even though National Bank may have breached its duty to you, National Bank could argue that your contract with Ms. Ramirez is invalid or unenforceable. In the event that you do not have a valid or enforceable contract, you are not legally entitled to the Hotel California property or other legal remedies. In essence, regardless of whether NationalBanks negligence can be proved, a transaction between Ms. Ramirez and you might not have occurred if a binding contract did not exist. We will finish up and explain this finding in the next section. Offer and Acceptance outlineFrom our analysis, coupled with case law from our case library, we have found that there was no contractual arrangement between you and Ms. Ramirez. In arriving at this finding, we took into account the facts surrounding your case. There are key elements that prevent the institution of a contract, for the purchase of in truth estate, between you and Ms. Ramirez.In reaching this finding, we referred to the case of Cayetano J. Apablasa v. Merritt & Company from our case library. In this case, the Court evaluated a plaintiffs action for damages resulting from an alleged breach of contract. This plaintiffs action for damages depended on whether there was an existing contract. The Court found that no reasonable construction of evidence admitted a binding contract between the parties and that the correspondence that was provided to the Court amounted to nothing more than an offer that was never accepted. In essence, at the conclusion of the plaintiffs case, the Courts judge entered a judgment decreeing that no contract was entered into, existing, or was ever executed.Similar to your case, in Cayetano v. Merritt, the initial reply to the offerors offer by the offeree did not constitute an acceptance, contrary to what the offeree had thought. The offeree had included a proviso in his sensed acceptance letter to the offeror. In light of this, the Court found that terms proposed in an offer must be met exactly, precisely and unequivocally for its acceptance to result in the formation of a binding contract. This decision supplements our discussing regarding Greens mirror image rule below. (See Regarding Mirror Image R ule.) Additionally, the Court stated that the addition of any condition is tantamount to a rejection of the professional offer and the do of a counteroffer. In essence, the Courts decision can be summarized by the following where a person offers to do a definite thing and another introduces a new term into the acceptance, his answer is a mere expression of willingness to negotiate or is a counter proposal, and in neither case is there a contract if it isa new proposal and it is not accepted it amounts to nothing.Regarding Greens Statute of FraudsA key element that is missing in the check of a contract is that your agreement with Ms. Ramirez was not in writing. The Green Civil Code requires that in order for a contract involving the sale of real property, to be valid, the agreement must be in writing and signed by the party to be charged or by the partys agent. In your situation, Ms. Ramirez made her initial offer orally over the phone and you replied by a signed fax. There was nev er a written offer or contract signed by Ms. Ramirez. Therefore, a court of law would most likely find the contract between you and Ms. Ramirez as unenforceable. Even if the alleged contract did not have to be in writing and could be enforceable, there are other special concerns we haveRegarding the Mirror Image RuleIn a situation, such(prenominal) as the one you were in, a proper acceptance must meet the mirror image rule. This rule states that in order for an offeree to properly accept an offer, the offeree must accept the exact offer that was established by the offerer. When reviewing your case, we found that you had intent to accept Ms. Ramirezs offer, but in your attempt to accept the offer, you added a antithetic term to the agreement. In her offer, Ms. Ramirez required that the sale was to conclude following a 45-day escrow. However, in your reply, you stated that you would like to close escrow inside 60 years. A court of law would find that by ever-changing the terms of M s. Ramirezs offer, you fail to meet the mirror image rule, and therefore terminated Ms. Ramirezs initial offer and proposed a counteroffer.Documents you provided us detailing your correspondence with Ms. Ramirez indicate no communication on her part in accepting your counteroffer.SummaryWe must mention that had there been a contract between Ms. Ramirez and you, you may have been the subject of legal action by Ms. Ramirez. If we assume there was an actual contract between Ms. Ramirez and you with either the 45day or 60 day escrow term, Ms. Ramirez could have pursued legal action and you could be liable for having breached your contract for your failure to deliver on your promise.You entered into the alleged contract with Ms. Ramirez on January 6, 2005. Regardless of whether there was an agreement for a 45 day escrow or a 60 day escrow term, you failed to secure financing in either time frame. Approximately 80 days after entering the alleged contract with Ms. Ramirez, on March 28, 20 05, you contacted Ms. Ramirez to request an extension. The fact that you have no pending legal action brought by Ms. Ramirez may suggest that Ms. Ramirez did not view the arrangement with you as a binding contract. We reiterate that neither party had a binding, enforceable contract. closeMs. Warren, we regret to inform you that success with your legal action is unlikely. There is a high chance you will be unsuccessful, should you purse a legal action against National Bank on the grounds of the tort of negligence. National Bank failed to remove the lien on your Lagoon Beach property, violating the duty of due care owed to you, and disrupting your ability to secure financing for your entrepreneurial endeavor. However, the oral sex of law of whether there was a valid, enforceable contract between you and Ms. Ramirez, is the determinative issue.As our analysis has indicated, a court of law will most likely try the issue of whether there was a binding contract. consequently without t he binding contract between you and Ms. Ramirez involving her offer for the hotel (Hotel California), a judge or jury in a court of law cannot rely on how much you would have paid to make a compensatory damages determination. In other words, because your action for damages is predicated on a contract between you and Ms. Ramirez, your damages cannot be established and you incurred no loss of opportunity. Without the loss of this opportunity cost, you have not suffered any injury due in part to National Banks negligence.RECOMMENDATIONSMs. Warren, as Associate Partner of Legal Eagles, LLP, I oversaw the analysisof my legal team and validated their conclusions and findings. In light of the findings of our analysis, I foremost recommend that you consider the following course of action * Please, do not pursue further legal action against National Bank regarding this cause of action and issue. It is my opinion and the opinion of Legal Eagles, LLP, that pursuing further legal action regardi ng this issue, considering our evaluation of your case, will result only in additive expense on your part including legal and attorney fees and your time. You will also not receive the resolution that you would like making the process inherently dissatisfying and frustrating.With this in mind, there is another course of action I do recommend. Because you have already attempted to resolve your issue with National Bank regarding the lien on your Lagoon Beach, Green property, you are entitled to contact the regulatory office staff of your former bank. All content banks within the state of Green are regulated by different agencies. If National Banks lien remains on your property, I recommend you pursue this alternate course of action* Contact the eliminate state of Green regulatory agency of your financial institution (National Bank) and shoot a complaint.Your banks regulatory agency can service you with your concerns and complaints. There are many regulatory agencies in the stat e of Greens banking industry. For your convenience, the appropriate regulatory agency of your former bank, and its details have been listed According to the Federal Financial Institutions Examinations Council (for additional information visit www.ffiec.gov), National Banks regulator is the Office of the accountant of the Currency (for additional information please visit www.helpwithmybank.gov). You can visit and reach this regulatory agency online or by phone at (800) 613-6743. The Office of the Comptroller will assist you in getting answers and solutions to your questions and concerns. You can also file complaints against your bank, here. If you decide to proceed with filing a complaint, officials from the Office of the Comptroller will contact National Bank on your behalf regarding your issue for a response. You will then receive a letter summarizing the results.Those who have sought our legal advice and even had similar experiences as you with National Bank as considerably have reported that intervention by a regulatory agency expedited the process and liens were eventually removed. We are confident that you have the tools to resolve this issue.sound EAGLES, LLP 1 . The elements of the prima facie case of the tort of negligence are duty, breach of duty, actual and proximate cause, and injury. 2 . COMMERCIAL ESCROW COMPANY AND JAMES DE MIK, APPELLANTS, v. ROCKPORT REBEL, INC., APPELLEE. 778 S.W.2d 532 1989 Tex. App. LEXIS 2263 3 . CAYETANO J. APABLASA, Appellant, v. MERRITT & COMPANY (a Corporation) et al., Respondents. 176 Cal. App. 2d 719 1 Cal. Rptr. 500 1959 Cal. App. LEXIS 1542