Lillard v. Farm Credit Services of Mid-America

HOWERTON, Judge,

dissenting.

I must respectfully dissent. The judgment of the Warren Circuit Court should be affirmed in all respects. This case has dragged on far too long for anyone’s benefit. Farm Credit Services (FCS) may not be forced to restructure this loan. The majority opinion is partially incorrect in determining that FCS did not provide the Lillards with all of the necessary forms for a complete application, and by any reasonable calculation of time, the Lillards were given every opportunity to provide the bank with requested information which might have allowed for a restructuring.

This foreclosure action was first filed in November 1985. By various means of delay, it was not promptly finalized, and in late 1987, the Agricultural Credit Act was enacted and became effective January 6, 1988. FCS sent to the Lillards a complete package of application forms for restructuring their loan on February 9, 1988. The documents were returned to the bank on March 24, 1988. The Lillards’ financial statement was questionable in several respects, and FCS sent them forms to give it authority to verify information on the financial statement. These forms were forwarded to the Lillards on March 29, 1988. No response was received prior to May 13, 1988, and FCS notified the Lillards through their attorney that FCS considered “that there is no sincere interest in continuing workout negotiations.... ” When the forms to authorize obtaining credit information had not been completed and returned by June 2, 1988, FCS through its attorney notified the Lillards that “no further consideration will be given for the reason that the application for same was never completed.”

The Agricultural Credit Act requires a creditor to give the debtor 45 days in which to complete an application for restructuring a loan. The Lillards not only took their original 45 days, but FCS gave them well over 60 additional days in which to merely return some consent forms. At the time this action was pending, FCS had not formulated any time table for requesting supplementary information, but it has since adopted approximately seven days as its standard. Clearly, if forty-five days is adequate for completing the necessary information in a major application, the time FCS allowed the Lillards in this case in which to return the consent forms is magnanimous. There is simply no evidence whatsoever to support a claim of bad faith on behalf of FCS in terminating this restructuring process.

Furthermore, as acknowledged by the majority opinion, a debtor has no private right of action against a lender under the Agricultural Credit Act. Also, there is no rule that requires a creditor to extend a bad loan,, or any loan, without cooperation from the debtor in disclosing reasonable and customary credit information and access to verification.

The summary judgment which was finally entered on May 14, 1990, together with the supplemental judgment and order of sale entered July 30, 1990, should be affirmed, the property securing the debt should be sold, and Farm Credit Services should be allowed to collect the remaining indebtedness plus interest from the sale of the property or by deficiency against the Lillards.