Bank Customer Whose Account Was Improperly Debited Cannot Recover Damages From Bank That Offered to Restore the Funds
February 15, 2007
Michael Weissman - Chicago
In May of 1997 Paul R. Lewis borrowed $240,216 from Community First National Bank, N.A. He was to repay the loan in 59 installments of $2,450 with a final payment of the balance due, plus interest, on May 20, 2002.
Mr. Lewis sent the bank two checks for loan payments in July 2000 that were returned NSF. By September of 2000 Mr. Lewis still hadn’t brought his payments current so the bank debited an account maintained by Lewis Holding Company, of which Mr. Lewis was president. The funds were applied to Mr. Lewis’ indebtedness to the bank. Similar debits and transfers were made on three other occasions in 2000 and 2001 when Mr. Lewis was once again in default. The aggregate amount of the debits was $14,700.
When Mr. Lewis found out about the debits and complained to the bank’s officers they offered to restore the funds to the company’s account. Mr. Lewis declined the offer on behalf of his company and he and the company sued the bank for a breach of the implied covenant of good faith and fair dealing.1 Lewis v. Community First National Bank, N.A., 101 P.3d 457 (2004).
But they did not prevail. The court said the claimants had not exercised reasonable diligence in mitigating any damage that may have been caused by the improper debits. Indeed, the court said: “Had [Mr. Lewis] accepted [the bank’s] offer, the funds would have been returned to the account and the company would have suffered no damages. Any damages suffered by Mr. Lewis personally upon return of the funds to the company’s account were attributable not to the bank’s actions but to his own failure to make his loan payments in a timely manner. Any risk to [Mr. Lewis] personally from accepting the bank’s offer is irrelevant to the issue of whether he acted reasonably to mitigate the company’s damages.”
What’s the Point?
The court’s decision is well-reasoned and correct. Absent impossibility, one who is damaged by the actions of others must demonstrate he has made reasonable efforts to lessen his damages in order to proceed with his claim against the offending party.
On another note, one is tempted to ask why the bank didn’t simply restore the funds to the company’s account by a simple internal accounting entry? Was it necessary for the bank to ask for Mr. Lewis’ permission to do so?
For more information, e-mail Michael L. Weissman at michael.weissman@hklaw.com or call toll free, 1-888-688-8500.
1 Wyoming, where the lawsuit was brought, recognizes the breach of the implied covenant of good faith and fair dealing as an independent cause of action.