Analysis and Consequences of Legal Action(S) Essay

Analisis for boffo fair playsuit reportPurposePer your request, our licit team, courtesy of Legal Eagles, LLP, wishes to advise you regarding your tentative lawful achieve at law against Mechanics content argot ( guinea pig deposit). As you aver, guinea pig bank buildinging compevery was negligent in their visitation to learn a quick temper on your Lagoon Beach shoes. Our sub judice team has assessed this and early(a) concerns of your graphic symbol. Outlined throughout this correspondence ar conclusions we adjudge made and urge onations we wish youconsider.Before we proceed, we thank you for your rely and tally you nonhing less than our highest-quality work.You set out expressed to us your interest in rec all overing payment for a failed entrepreneurial endeavor involving a hotel topographic point, Hotel calcium. You besides in planted us that your acquisition of this situation was mutualist upon your securing financing through pledging a airplane p ropeller you currently own as corroboratory. In a drawing outline of the f deeds of your courtship, we realize you whitethorn success neary prove liability on the part of depicted object lodge however, this conclusion is not without concerns, particularly regarding your trim down with the owner of Hotel atomic number 20. This concern and other considerations for your eccentric person are also discussed in this correspondence.Factual BackgroundOur occupations of the essential facts of your case indicate the embraceing You sought the acquisition of an active hotel quality located in Palm cede, spirt. You inter-group communicationed the hotels listing agent, Mr. Babak Gordon, and obtained preliminary data on the property, including fiscal evidencements of the hotel which you flip provided us. On January 5, 2005, the hotel owner, Ms. Shirley Ramirez, Mr. Gordon, and you had a preliminary discussion regarding the purchase and sale of Hotel California. Ms. Ramirez t wistinged to you by phone this property for $4.3 million, excluding the furniture, and the sale was to conclude borrowing a 45 daylightlight escrow. On January 6, 2005, you faxed Ms. Ramirez a signed letter both indicating your removeance of her cranny and your preference that the transaction 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 inscription from fix of the West. Their conditions were that the bank would obtain a first priority irascibility on the hotel property on with an unrelated undeveloped parcel of land owned by you in Lagoon Beach, kB. As you wee shared with us, you filmd this land in 1984 and had managed to pay off its mortgage on November 1, 2004. However, matter avow failed to tally its lien on the property. You vigorously attempted to get case Bank to remove its lienon this property. You contacted bank officers and explained to them that the lien needed to be take so that you could pledge the property as col afterwardal and finance your purchase of Hotel California. Because National Bank did not remove this lien, you were ineffectual to finance the acquisition of Hotel California. You later bought a hotel property similarly situated and virtually identical to Hotel California for $4.7 million dollars.IssueFrom our analysis, we find as reasonable your decision to consider pursuing effectual action against National Bank for damages. You have cited National Bank as negligent for failing to follow book of instructions regarding the removal of a lien from the title of your Lagoon Beach property. If you proceed get on to trial, a court of law willing try, whether by failing to remove its lien on your Lagoon Beach property, National Bank committed the tort of remissness.Because our analysis has also raised concerns regarding your resolution with the owner of Hotel California, Ms. Shirley Ramirez, we must also specify you o f a back trend a court of law is likely to try. If you proceed further to trial, a court of law will try whether a jurally dressing, enforceable stupefy exists (or existed) amidst Ms. Ramirez and you. Keep in forefront that your jural action for damages may be predicated on whether there was a pore.RoadmapIn rise to power to listing our conclusions, recommendations, and concerns throughout this correspondence, you will find that we have analyzed the likelihood for success of your lawful action against National Bank. You have expressed your desire to recover damages for your lost opportunity involving the Hotel California property. For your convenience, a masterful and careful analysis has been conducted and detailed throughout this correspondence. GROUNDS OF LIABILITYYou have alleged that National Bank was negligent, and you intend to recover damages from National Bank. You will have the incubus of proving the prima facie case for the tort of negligence. You must cite e vidence and presentarguments that support your allegation of National Banks negligence. To successfully fulfill your burden you must show that* province The defendant (National Bank) owed you (plaintiff) a trading of receivable care. * Breach of Duty Defendants conduct assaulted that duty. * Actual and Proximate Cause Actual and immediate causation amid defendants breach and your (plaintiffs) in control panel was present. * Injury Injured companionship (you) sustain 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 fired without further proceedings.However, if you successfully prove and argue all four of these elements, you must also overcome either affirmative defenses, if applicable, raised by the defendant (National Bank). These defenses are contributory negligence and assumption of risk. From our initial analysis, National Bank will be unable to raise an affirmative defense on these grounds. We will fully assess whether there are on any other legal grounds defenses that National Bank stand 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 amounts are determined 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 LawBecause the secondary issue (See Issue) and one of our concerns regarding your case is regarding your shrink with Ms. Ramirez, we have disclosed applicable information from both the Green complaisant Code and our legal library pertaining to 1) volunteer and acceptance, 2) Greens statute of frauds, and 3) Greens mirror image rule. For your convenience, we have bolded anddefined legal terminology that will be reiterated in later sections of this correspondence. bid and AcceptanceAn offer is the important first step in the contract formation process. A party ( offerer) who mystifys the offer gives another party (offeree) to whom the offer is made the power to bind both parties to a contract simply by accepting the offer. Not every proposal qualifies as an offer. To distinguish an offer, courts evaluate offers on three grounds First, they look for some objective indication of a present intent to contract on the part of the offeror. Second, they look for specificity, or definiteness, in the terms of the alleged offer. Third, they look to see whether the alleged offer has been communicated to the offeree.An acceptance is a manifestation of assent to the terms of the offer made by the offeree. In determine if an offeree accepted an offer and created a contract, a court will look for evidence of three factors (1) the offeree mean 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 conveyancingring an interest in land is invalid if not accompanied by note or memorandum. An unenforceable contract is one that fancys 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 report, yet no writing is made, may be declared an unenforceable contract.Mirror Image preceptThe 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 new terms to it are treated as counteroffers because they indicate an intent by the offeree to reject the offer instead of being bound by its terms. flat that you have an understanding of th e relevant 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 bank buildingS LIABILITYShould you pursue 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 in the midst of the facts of the case, prima facie case, and case law from our legal library.Tort of NegligenceIn Commercial Escrow Company v. Rockport Rebel, Inc., negligence is defined as conduct which falls below the standard established by law for the tribute of others. Because of the similarities in the facts amidst the case of Escrow Company and your case, this case has been used extensively in the forming of the following arguments. We recommend using this case in satisfy ing 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 bring forthred 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 scratch line on the next page.DutyAccording to the case, Commercial Escrow Company v. Rockport Rebel, Inc., a defendant owes a duty of care to all foreseeable plaintiffs. For example, in cases where a defendant voluntarily assumes the duty to act by declare to the plaintiff to behave in a certain way, the defendant owes that plaintiff a duty to act with care. Accor ding 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 contributeer on your Lagoon Beach property. You also submitted to us a copy of your deed of trust. To reiterate the spoken language in the deed of trust as part of your contractual relationship with National Bank, National Bank was supposed to promptly record 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 ava il 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 therefore owed you, a duty of due care to act as you requested. In light 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 most cases, a defendant owes a plaintiff a duty to act as would a reasonable person under similar circumstances. In the case of Escrow Company, the Court found that in performing services for a client, the escrow company has the duty to strictly follow instructions. Like an escrowcompany, a financial initiation like National Bank most 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. Despite 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.CausationSatisfying the prima facie case for the tort of negligence also requires that a plaintiff prove that there 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 existence of a connection between breach and injury by determining whether injury would have occurred if not for breach. A court would employ a similar quiz 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 secure financing for your acquisition of Hotel California. We find that there is a casual connection.Courts also evaluate the proximate cause (causation) between a defendants breach of duty and a subsequent injury suffered by a plaintiff. Proximate causation refers to whether the defendants b reach 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 loss 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 covenant of Hotel California between you and Ms. Ramirez allegedly collapsed.Later, you purchased a similarly situated and virtually identical hotel property for $4.7 million, $400,000 much than what you would have paid for Hotel California ($4.3 million). In essence, National Banks alleged negligence caused you to incur an opportunity cost of $400,000. This loss of opportunity is under the assumption that a valid, enforceable contract existed between you and Ms. Ramirez.SUMMARYBecause 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 outline 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 the smell 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 sting to this instruction. If the failure to remove the lien on your property bottom 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 fertilization contract between you and Ms. Ramirez. compendium of IncomeWe have completely re respectd the hotel property, Hotel California you were implicated in. We used the same method acting(s) and approaches that most banks in our region would use to appraise the value of hotel properties. The expected value approach places weights on appraisals from two methods. First, we multiplied the past two years average gross margin by four. This holds a weight of 40%, because it is expecte d 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, give the sacked 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 portion the correct weight to each method and sum the two figures. We can therefore conclude that the Hotel Californias appraisal value is $2,488,305.48. In addition to this, it is acceptable for a company to sell what is cognize as goodwill. That is why the listed monetary value of 2.5 million dollars was over say by $11,694.52. We discern that the bank would only leave behind 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 the bank a first priority lien on the inert land as collateral. We also know that the latter option was not possible, so we will consider the forme r. 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 even so 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. so farthough the appraised value was not enough for you to borrow a sufficient amount of money from Bank of the West, we believe the appraised amount you were given was not accurate. There are two reasons why we believe Desert Mirage account should not have relied on the income secernatement and footnote p rovided by Ms. Ramirezs comptroller. The first task lies in the way the accountant prepared the income statement. Mr. Babak Gordon calculated gross profit by taking gross minus cost of revenue. This method is only used for retailers and manufacturing companies, whereas Hotel California is a service company. The second riddle is the verifiability of the financial statements and reliability of the accountant. To be credible, financial statements must follow generally accepted accounting principles (GAAP). 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) inspect opinionFinally, this letter must be signed by a certified public accountant (CPA). Because the income statement of Hotel California does not come with any signed opinion letter, we cannot verify its accuracy. Therefore, Desert Mirage Accounting should not have relied on that income statement and footnote informati on to make the evaluation. In our initial note 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 clarify and explain this finding in the next section. Offer and Acceptance AnalysisFrom our analysis, coupled with case law from our case library, we have found that there was no contractual formation 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 real 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 spin of evidence admitted a binding contract between the parties and that the correspondence that was provided t o 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 perceived 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 Rule.) Additionally, the Court stated that the addition of any condition is tantamount to a rejection of the original offer and the reservation of a counteroffer. In essence, the Courts decision c an 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 sheer 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 proof 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 never 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 contrac t did not have to be in writing and could be enforceable, there are other additional concerns we haveRegarding the Mirror Image RuleIn a situation, such 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 different 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 within 60 days. A court of law would find that by changing the terms of Ms. 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. Rami rez 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, 2005, 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 con tract. We reiterate that neither party had a binding, enforceable contract. CONCLUSIONMs. 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 question of law of whether there was a valid, enforceable contract between you and Ms. Ramirez, is the decisive issue.As our analysis has indicated, a court of law will most likely try the issue of whether there was a binding contract. Thus without the 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 determina tion. 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 fellow 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 best 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 regarding this issue, considering our evaluation of your case, will result only in additional 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 regulative agency of your former bank. All national banks within the state of Green are regulated by different agencies. If National Banks lien be on your property, I recommend you pursue this alternate course of action* Contact the appropriate state of Green regulatory agency of your financial institution (National Bank) and file a complaint.Your banks regulatory agency can help you with your concerns and complaints. There are many regulatory agencies in the state 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 monetary Institutions Examinations Council (for additional information vi sit www.ffiec.gov), National Banks regulator is the Office of the Comptroller of the money (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 sound 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.LEGAL EAGLES, LLP 1 . The elements of the prima facie case of the tort of neg ligence 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