Consumer Protection

David M. Duree has more than 40 years experience in handling Consumer and Commercial cases. With offices in St. Louis, Mo. and O’Fallon, Ill., he also handles cases in numerous other states.

Contact us for Free Initial Consultation about Personal Injury, Commercial, Consumer, Franchising, Arbitration, Banking, Internet, Intellectual Property, Construction and Engineering Dispute Claims anywhere in the United States.

DAVID M. DUREE AND ASSOCIATES, P.C.
ATTORNEYS AT LAW, Consumer Attorney.

Law updates about Commercial Law, Business litigation, Consumer Protection Statutes, Consumer Warranty Law, Lemon laws, Banking law, Unfair Business Practices, Business Torts, and more

These materials are in reverse chronological order. New material is added at the top. Older material is inserted in the correct chronological spot. Overruled, modified and/or obsolete material is deleted, revised, consolidated and/or moved, when appropriate. Citations preceded by <>are linked to the complete court opinion. (NOTE: Some linked court sites are not always available). Consumer Lawyer.

A Franchisor was found liable for punitive damages for defrauding the landlord at one of its franchise sites. Attorneys fees were awarded the landlord under a clause in the lease, which entitled the prevailing party to recover its attorneys fees. The Franchisor appealed, contending the clause did not apply to claims for punitive damages because they were not relative to the claims under the lease. The Court of Appeals affirmed the award of attorneys fees and also awarded the landlord additional attorneys fees for defending the appeal, under the same lease clause. <>Jannotta v. Subway Sandwich Shops, Inc, et al., (Case No. 99-1975) (2000 WL 1222052) 225 F.3d 815 (7th Cir. 8-29-2000)

A putative class action by borrowers against lenders, alleging violations of the truth in lending act 15 U.S.C. 1601, et seq., and the electronic fund transfer act, 15 U.S.C. 1693 et seq., must be arbitrated pursuant to arbitration clauses in the loan documents, even though the claims could not proceed as a class action in arbitration. The arbitration clauses eliminate the statutory to proceed by class action. <>Johnson v West Suburban Bank, 225 F.3d 366 (3rd Cir., 8-29-2000).

A lender violated the Wash.D.C. Consumer Protection Act by refinancing a mortgage by increasing the total loan amount, loan term and the monthly payments beyond the borrowers’ ability to pay. The new loan increased the monthly payments by more than $100 when the borrower was unable to make the monthly payments under the original loan. Actual damages, statutory treble damages and attorneys fees were affirmed. The lender’s conduct did not violate the Federal Truth In Lending Act. Judgment affirmed, and case remanded to determine if the borrower had any realistic alternatives, for the purpose of establishing a claim under the common law doctrine of unconscionability. <>Williams v. First Government Mortgage and Investors Corp., ___ F.3d ___, 2000 WL 973751, (D.C. Cir. 8-1-2000)
Attorneys and other professionals may be held liable for conspiracy to violate RICO, 18 U.S.C. 1962(d), by knowingly agreeing to perform services of a kind which facilitates the activities of those who are operating the enterprise in an illegal manner, even though the outside professionals did not agree to operate or manage the enterprise, a substantive violation of RICO, 18 U.S.C. 1962(c). The court reconciled<>Reves v Ernst & Young, 507 U.S. 170 (1993) with <>Salinas v United States, 522 U.S. 52 (1997); <>Brouwer et al., v. Raffensperger, Hughes & Co., et al.(Case No. 99-1286), 199 F.3d 961 (7th Cir. 2000). The United States Supreme Court denied review on 6-19-2000

The statute of limitations in the UCC for breach of consumer warranty law, 810 ILCS 5/2-725(1), applies to personal injury claims. A mother’s settlement of her lawsuit for breach of the consumer warranty law, resulting from the purchase of a used car with faulty brakes, which referred to the personal injuries her minor daughter sustained during an accident caused by the faulty brakes, did not bar the daughter’s claim for personal injuries once she reached the age of majority, under the doctrines of collateral estoppel or res judicata. The 4 year statute of limitation in the UCC was also tolled while the daughter was a minor. <>Evans v General Motors Corporation et al., ___Ill.App.3d ___, ___ Ill.Dec. ___, ___N.E.2d ___, 2000 WL 794059 (Ill App. 6-19-2000)

Minority shareholders tacitly consent to any subsequent amendment to the articles of agreement by the majority shareholders of a banking corporation, when when they purchase their stock. As a result a reverse stock split of one new share for each existing 1000 shares, with cash payment to each holder of less than 1000 shares, did not violate the Missouri Constitutional prohibition (Article I, section 28) against taking private property without the owner’s consent. The majority (the bank holding company which owned 95.4% of outstanding shares) acted lawfully in amending the bank’s articles of agreement under R.S.Mo. 362.325., thereby eliminating several minority shareholders owning less than 1000 shares each. <>Smith Gaddy, Jr., et al., v Phelps County Bank et al., ____S.W.3d____, 2000 WL ____(SC82168, 6-13-2000)

A Delaware corporation with its principal place of business in Illinois entered into a products and services agreement with Renaissance Software corporation, a Massachusetts corporation with its principal place of business in Massachusetts. Under the agreement, the software supplier agreed to provide the Illinois corporation with software and related maintenance and support for use in that company’s business as an automobile parts supplier. The Illinois corporation claimed fraud, misrepresentation, and violation of the Illinois consumer act, 815 ILCS § 505/1-12. The Massachusetts corporation moved to dismiss and alternatively to transfer the case to Massachusetts. Both motions were denied. The plaintiff sufficiently alleged a claim for fraud and for violation of the Illinois consumer protection statutes. <>J.C. Whitney & Co. v. Renaissance Software Corporation et el., (unreported), 2000 WL 556610 (Magistrate Schenkier) (No. 99 C 3714) (N.D. Ill. 4-19-2000)

A consumer who had signed an arbitration agreement with an HMO could still sue for injunctive relief on behalf of the public under state consumer protection statutes, even though the consumer’s damage claims must be arbitrated. Public policy precluded enforcement of the arbitration clause for the injunctive relief requested on behalf of the public. <>Broughton v. Cigna Healthplans of California, 90 Cal. Rptr. 2d 334, 988 P.2d 67 (Cal. 1999). Commercial Attorney.

A franchiser which provides nurses to healthcare facilities on a temporary basis entered into a franchise agreement providing the franchisee with an exclusive territory. Florida law applied. The agreement provided that neither the franchiser, nor its parent or affiliated companies, would compete. Adia then acquired the franchiser, as a subsidiary, and also acquired another subsidiary which directly competed with the franchisee. A verdict of $2488,000 for the franchisee was set aside by the district court, which found that Adia neither induced nor otherwise caused an interference with the franchisee’s contract rights. Restatement (Second) of Torts, 766, and 766 comment h; 922 F.Supp. 558 (M.D.Fla. 1997). The 11th Circuit certified this unresolved question of Florida state law to the Florida Supreme Court. <>120 F.3d 1229 (11th Cir. 1997). The Florida Supreme court found that a claim for tortious interference with contract rights was established because Adia acquired the company that competed with the franchisee, with knowledge of franchise agreement terms prohibiting the franchiser or its affiliates from competing. <>723 So.2d 182 (Fla.1998). The 11th Circuit then reversed the judgment for Adia and remanded to the district court to resolve its prior determination that the franchisees had used the wrong method of calculating damages by using a contract, instead of tort, theory. <>Gossard et al., v. Adia Services, Inc., 173 F.3d 825 (11th Cir. 1999)

An automobile dealer which was not liable under the truth in lending act could still be found liable under the Illinois unfair and deceptive practices and consumer protection statutes. <>Pawlikowski v. Toyota Motor Credit Corp., 309 Ill. App. 3d 550, 243 Ill. Dec. 1, 722 N.E. 2d 767 (Ill. App. 1999). Commercial Attorney.

A credit card application, sponsored by the retailer Best Buy, and lender, Beneficial National Bank, required the consumer to agree in advance to the terms and conditions of the BNB USA cardholder agreement. The consumer did not receive a copy of the agreement until the it was completed and the credit card arrived. The credit card package also sold the consumer insurance on the debt ( at the expense of the consumer, for the benefit of the lender and retailer) without, allegedly, meeting the disclosure requirements of the Truth in Lending Act, 15 U.S.C. 1601, et seq., or the Florida disclosure act, F.S.A. 627.679. The court held that the arbitration clause, requiring arbitration before the National Arbitration Forum, was unenforceable because it was unconscionable in that it was undisclosed and because the defendants failed to establish that the National Arbitration Forum was a neutral, inexpensive and efficient forum for resolving these claims. The consumer argued that the National Arbitration Forum was too closely aligned with the consumer finance industry. This case is now pending on appeal before the United States Eleventh Circuit. Baron v. Best Buy Co., Inc. et al., 75 F. Supp.2d 1368 (S.D. Fla. 1999). Consumer Attorney.

Borrowers brought a putative class action against a mortgage lender alleging that its charges for mortgage assignment recording fees and tax escrow suspension fees violated Illinois consumer protection statutes. The Illinois Supreme Court held that since the lender had complied with applicable banking statutes, including the disclosure requirements of the real estate settlement procedures act , 12 U.S.C. § 2604(c), it did not violate Illinois consumer fraud law, 815 ILCS § 505/1 et. seq. <>Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 239 Ill. Dec. 12, 713 N.E. 2d 543 (Ill. 1999)

The Georgia Pawn Brokers Act, O.C.G.A. § 44-12-130 et. seq. conflicts with the Georgia Criminal Usury Statute, O.C.G.A. § 7-4-18. The two statutes cannot be harmonized; the Criminal Usury Statute is inapplicable to pawn transactions. <>Glinton et el. v. AND R Inc., et.el., 211 F.3d 586, 2000 WL 524826 (11th Cir. 2000); Glinton et al. v. AND R. Inc. et al,. 524 S.E. 2d 481 (Ga. 1999). Business Attorney.

A parent corporation may be held liable under CERCLA, 42 U.S.C. 9601, et seq; 42 U.S.C. 9607(a)(2), for the cleanup of industrial waste at a plant owned or operated by its defunct subsidiary, if the parent corporation operated the plant or if the corporate veil of the subsidiary is pierced under state law principles. The parent operated the polluted plant if the joint officers, directors and employees of the parent and subsidiary were operating the plant for the parent, a necessarily fact intensive question. The parent cannot be held liable for the subsidiary’s ownership or operation of the polluted plant simple because it owned all the subsidiary’s stock. 113 F.3d 572 vacated and remanded. <>United States v Bestfoods et al., 524 U.S. 51 (1998)

Illinois consumer fraud law is intended to protect consumers, borrowers and business persons against fraud, unfair methods of competition and other unfair and deceptive business practices, but does not proscribe conduct which is authorized by federal statutes and/or regulations. <>Cripe v. Leiter, 184 Ill. 2d 185, 234 Ill. Dec. 488, 703 N.E. 2d 100 (Ill. 1998)

A bank was held liable to a safe deposit box holder, under a bailment theory, when flood waters damaged the contents of the box. Specific banking statutes were not at issue. <>Seitz v. Lemay Bank & Trust, 959 S.W. 2d 458 (Mo. banc 1998)

To state a cause of action under Illinois consumer fraud law, a plaintiff must plead and prove either (1) a deceptive act or practice with intent that the plaintiff rely on the deception occurring in the course of trade or commerce or (2) unfair conduct by the defendant (without deception) which must offend public policy, be so oppressive that the consumer has little alternative but to submit and cause the consumer substantial injury. Siegel v. Levy Organization Development Co., 153 Ill. 2d 534, 180 Ill. Dec. 300, 607 N.E. 2d 194 (Ill. 1992); Saunders v. Michigan Avenue National Bank, 278 Ill. App. 3d 307, 214 Ill. Dec. 1036, 662 N.E. 2d 602 (Ill. App. 1996); <>Perez v. Citi Corp. Mortgage, Inc., 301 Ill. App. 3d 413, 234 Ill. Dec. 657, 703 N.E. 2d 518 (Ill.App.1998). Consumer Lawyer.

Bank officers’ and directors’ liability to the FDIC, replacing the RTC, standing in the shoes of the bank, for losses resulting from bad loans caused, allegedly, by the defendants’ gross negligence, simple negligence and breaches of fiduciary duty are governed by state common law principles, limited by 12 U.S.C. 1821(k), which requires gross negligence or similar or greater misconduct to establish liability. Briggs v Spaulding, 141 U.S. 132 (1891), establishing a federal common law rule of simple negligence for liability, has been rendered inapplicable by<>Erie Railway Co. v Tompkins, 304 U.S. 64, 78 (1938). Normally, after Erie, federal courts may fashion federal common law rules only upon a specific showing that the use of state law will create a significant conflict with, or threat to, some federal policy or interest. <>O’Melveny & Myers v. FDIC, 512 U.S. 79, 87 (1994); <>Atherton v. Federal Deposit Insurance Corporation, 519 U.S. 213 (1997). Business Attorney.

Illinois does not recognize the tort of commercial disparagement. Any claims of this kind must be determined on the basis of existing libel and slander law. <>Becker v. Zellner, 292 Ill. App. 3d 116, 226 Ill. Dec. 175, 684 N.E. 2nd 1378 (Ill. App. 1997).

A landlord was permitted to recover under fraud theories where a franchiser employed an assetless alter ego to enter into a commercial lease with the landlord and a corresponding sublease with its franchisees. A submissible claim for punitive damages was also established. <>Jannotta v. Subway Sandwich Shops, Inc., et al., 125 F.3d 503 (Case No. 96-1620) (7th Cir. 1997)

A future royalties clause requiring a franchisee to pay royalties in the future, after it ceases operation, until the end of the term of the franchise agreement, is void and unenforceable as unreasonable, unconscionable and oppressive. <>Postal Instant Press, Inc. v. Sealy, 43 Cal. App. 4th 1704, 51 Cal. Rptr. 2d 365 (Cal. App. 1996). Commercial Attorney.

The Illinois Consumer Deceptive Practices Act should be liberally construed in favor of the consumer. An omission or concealment of a material fact in the conduct of trade or commerce constitutes a violation of Illinois consumer fraud law. <>Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 221 Ill. Dec. 389, 675 N.E. 2d 584 (Ill. 1996)

The five-year statute of limitations applies to a cause of action for breach of an implied duty for fiduciary obligations, as opposed to the 10-year statute of limitations for written contracts. <>Armstrong v. Guigler, 174 Ill. 2d 281, 220 Ill. Dec. 378, 673 N.E. 2d 290 (Ill. 1996). Commercial Lawyer.

A real estate broker owes a duty to his clients, as a fiduciary. Summary Judgment in favor of the defendant real estate broker reversed, <>Letsos v. Century 21 New West Realty, 285 Ill. App. 3d 1056, 221 Ill. Dec. 310, 675 N.E. 2d 217 (Ill. App. 1996).

Under the business judgment rule, directors, officers, and corporations are not liable for mere mistakes or errors of judgment, either of law or of fact. Selcke v. Bove, 258 Ill. App. 3d 932, 196 Ill. Dec. 202, 629 N.E. 2d 747 (Ill. App. 1994).

It was not error for the Trial Court to admit evidence that the defendant was a large, international firm where the plaintiff claimed that the defendant’s size and reputation were the basis for its reliance on the defendant’s expertise. Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 201 Ill. Dec. 71, 636 N.E. 2d 503 (Ill. 1994).

A principal cannot delegate to an independent contractor (and thereby avoid liability) the manner of performance of duties imposed on the principal by contract, ordinance or statute, such as banking statutes. General Finance Corp. v. Smith, 505 So. 2d 1045 (Ala. 1987); Restatements Second of Torts, § 424; Fulton v. Anchor Savings Bank, 452 S.E. 2d 208 (Ga. App. 1994).

Illinois consumer fraud law requires reasonable reliance by the plaintiff on the alleged misstatements of fact. Where a franchise agreement specifically stated that the plaintiff-franchisee had not relied on or received any guarantees about revenues or profits or prospects for success and that the franchisee had conducted an independent investigation, the franchisee could not claim reasonable reliance on any alleged oral misrepresentations; 815 ILCS § 501/1; Elipas Enterprises, Inc. v. Robert Silerstein, 243 Ill. App. 3d 230, 183 Ill. Dec. 752, 612 N.E. 2d 9 (Ill. App. 1993). Consumer Attorney.

An employer breached its fiduciary duty to its employees by misleading them into believing their ERISA benefits would be paid by another corporation where the other corporation was established as an assetless shell for the purpose of avoiding the obligations of the initial corporation-employer. The Court used common law trust standards to determine the breach of fiduciary duty. Martin v. Heinold Commodities, Inc., 240 Ill. App. 3d 536, 181 Ill. Dec. 376, 608 N.E. 2d 449 (Ill. App. 1992).

Punitive damages may be awarded against a corporate defendant for the acts of its agents and employees under the “Corporate Complicity Rule”, if the acts or omissions which proximately caused the injury were authorized or participated in by a superior officer of the defendant corporation. Kemner v. Monsanto Co., 217 Ill. App. 3d 188, 160 Ill. Dec. 192, 576 N.E. 2d 1146 (Ill. App. 1991).

An employee embezzled money from his employer. Under Missouri law, the employer may maintain an action against a commodities broker who executed trades on behalf of the employee, using the embezzled money, under theories of conversion, violation of the Missouri Uniform Fiduciaries Act and money had and received. Penalosa Cooperative Exchange v. A.S. Polonyi Co., 754 F. Supp. 722 (W.D. Mo. 1990).

A bank which had a reason to believe that a fiduciary had misappropriated money from its principal, which also had a monetary interest in the transaction, was liable in damages to the principal for breach of its “good faith” duty in dealing with the principal’s fiduciary. Both the common law and banking statutes were implicated. Anchor Centre Partners v. Mercantile Bank, 783 S.W. 2d 108 (Mo. App. 1989). Business Attorney.

An oral agreement of a corporation to pay the debts of another corporation it is about to acquire, in exchange for a promise by the creditor to continue to do business with the acquiring corporation, is not barred by the statute of frauds, in that it is an original agreement, not an agreement to pay the debt of another. Autoquip v. Rite-Hite, 740 S.W. 2d 664 (Mo. App. 1987).

There is no cause of action for attempted wrongful foreclosure, either under the common law or for violation of banking statutes. Reese v. First Missouri Bank & Trust Co., 736 S.W. 2d 371 (Mo. banc 1987)

Makers on a promissory note established a cause of action against a bank for fraud and duress, under the common law. It was not necessary to establish a violation of banking statutes. Duress occurs when the threats of the defendant cause the plaintiff to be deprived of the free exercise of his will power. It is not necessary that the misrepresentation constituting fraud in the inducement be the sole inducement into the promissory note. Manufacturers American Bank v. Stamatis, 719 S.W. 2d 64 (Mo. App. 1986)

The maker and guarantors of a demand note did not have a cause of action against the bank for failure to exercise good faith under the Uniform Commercial Code (§ 400.1-203) for failing to disclose the risks associated with the loan. However, potential “lack of good faith” causes of action may exist, under UCC law, if a bank fails to extend credit suddenly and without notice or if a bank acts arbitrarily and capriciously. Centerre Bank of Kansas City v. Distributors, Inc., 705 S.W. 2d 42 (Mo. App. 1985).

Officers and directors of a closely held corporation may be held liable for breach of fiduciary duty to the other shareholders for failure to disclose an offer to purchase controlling ownership in the corporation. Actual and punitive damages awarded. Forinash v. Daugherty, 697 S.W. 2d 294 (Mo. App. 1985).

An issuing bank could not collect from the cashing bank, under the cashing bank’s statutory warranty under UCC law. The husband had forged his wife’s signature, as one of the joint payees of the check, and the issuing bank did not intend for the wife to have an interest in the check. Uniform Commercial Code, R.S.Mo. § 400.3-405(1)(b). American National Bank in St. Louis v. Siedel, 622 S.W. 2d 19 (Mo.App. 1981)

A bank, which entered into a promissory note purchase agreement with a subdivision developer which also took assignments of the lot purchaser contracts for deed and held the deeds of trust on the real estate, owed a fiduciary duty to the lot purchasers, who were paying the bank, to advise them of mechanics lien claims against the real estate. Breach of this duty resulted in an award of actual and punitive damages against the bank in favor of the lot purchasers. As assignee, the bank impliedly accepted the liabilities as well as the rights of the assignor, developer. The bank was also liable for interest on the Judgment from the date of the original Judgment, not from the date on which the Judgment was modified after the first appeal. Senn v. Manchester Bank of St. Louis, 583 S.W. 2d 119 (Mo. banc 1979); Senn v. Manchester Bank of St. Louis, 603 S.W. 2d 551 (Mo. banc 1980).

Breach of contract, which also amounted to breach of a fiduciary duty (owed by an agent to his principal) permitted recovery of both actual and punitive damages. Allabastro v. Cummins, 90 Ill. App. 3d 394, 45 Ill. Dec. 753, 413 N.E. 2d 86 (Ill. App. 1980).

A provision in a written night depository agreement between a bank and its customer, exculpating the bank from liability for any lost items except were the loss is attributable to gross negligence or willful misconduct by the bank is invalid as against public policy. A bailment relationship is established and the bank is required to prove that is was without fault when it fails to redeliver the deposit.<>Vilner v Crocker National Bank, 89 Cal. App. 3d 732, 152 Cal. Rptr. 850 (Cal. App. 1 Dist. 1979)

Other parties to a complicated real estate development project may not complain when a National Bank creates a Missouri Corporation, which is a subsidiary of the National Bank (Chase Manhattan) for the purpose of owning the real estate, even though the National Bank did not have the power to do so. Only the sovereign could challenge the action of the National Bank. Norcomo Corp. v. Franchi Construction Co., Inc., 587 S.W. 2d 311 (Mo. App. 1979). Commercial Lawyer.

Failure of a bank to comply with the Truth-In-Lending Act entitled the borrower to rescind the loan provided the borrower tendered the principal amount to the bank. The election of the rescission remedy did not foreclose the borrower from also recovering the statutory penalty. Ehlert v. Ward, 588 S.W. 2d 500 (Mo. banc 1979).

There is an implied covenant of good faith between employers and employees-at-will, which is violated if the employer uses fabricated evidence to justify firing the employee. Du Pont v. Pressman, 679 A. 2d 436 (Del. 1996);Merrill v. Crothall-American, Inc., 606 A. 2d 96 (Del. 1992); Fortune v. National Cash Register, 364 N.E. 2d 1251 (Mass. 1977).

One stockholder, in his individual capacity, may bring suit against another stockholder for breach of fiduciary duty by attempting to force the plaintiff-stockholder out as an equal shareholder. Both actual and punitive damages may be awarded. Zokoych v. Spalding, 36 Ill. App. 3d 654, 344 N.E. 2d 805 (Ill. App. 1976).

The Windfall Defense. A shareholder may not complain of acts of corporate mismanagement if he acquired his shares from those who participated or acquiesced in the allegedly wrongful transaction. This is particularly true where a shareholder purchases all or substantially all the shares of a corporation from the prior shareholders at a fair price, then seeks to have the corporation recover against those prior shareholders for prior corporate mismanagement.<>Bangor Punta Operations, Inc. v. Bangor & Aroostook Railroad, 417 U.S. 703 (1974); REA Express, Inc. v. Private Trouble Damages Antitrust Litigation, 412 F. Supp. 1239 (E.D. Pa. 1976); REA Express, Inc. v. Traveler’s Insurance Co., 406 F. Supp. 1389 (D.D.C. 1976).

Where a depositor established a “special account” for purposes of building a residence, and the account was not an escrow account, the bank was not authorized to make payment to the lumber company for lumber that went into the house without the specific authorization of the depositor. In making the payment, the bank acted as a volunteer and was liable for then wrongfully refusing to honor a subsequent check from the depositor on that account. Wallick v. First State Bank of Farmington, 532 S.W, 2d 520 (Mo. App. 1976). Commercial Lawyer.

A minority stock holder has a direct cause of action against a bank director, for decrease in the value of his bank stock, for improper activities leading to the insolvency of the bank, including the making and ratification of false and misleading reports to the comptroller of the currency. The F.D.I.C. is not entitled to take-over that cause of action. Harmsen v. C. Arnholt Smith and Federal Deposit Insurance Corp., 542 F. 2d 496 (9th Cir. 1976)

Delivering a check to a person who is not the payee of the check, without thoroughly investigating him, does not necessarily constitute negligence under UCC law. The Uniform Commercial Code, R.S.Mo. § 400.3-406, provides that any person who negligently, substantionally, contributes to a material alteration or unauthorized signature is precluded from asserting the alteration, or lack of authority to sign, against a holder in due course or against a drawee. Proximate cause is not an issue, under UCC law. See the Uniform Commercial Code, R.S.Mo. § 400.3-101 to 3-307. Violation of the statute by the paying bank results in liability unless the claiming party negligently contributed to cause the forgery. Uniform Commercial Code, § 400.3-406. Twellman v. Lindell Trust Co., 534 S.W. 2d 83 (Mo. App. 1976)

A president of a corporation has incidental authority to make declarations and admissions binding against his corporation in matters which are within the scope of his ordinary duties and a vice president is clothed with ostensible authority to bind the corporation by his statement. Cline v. Carthage Crushed Limestone Co., 504 S.W. 2d 102 (Mo. 1973).

A lender may be held liable for hazardous wastes on the borrower’s property under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607 (A) and 42 U.S.C. § 9601 (20)(a).

Notices of Default and Right to Cure must be mailed before a lender can repossess or accelerate payments under a Retail Sales Contract. A default by a borrower on a second mortgage loan may be cured at anytime before foreclosure. R.S.Mo. §§ 408.554, 408.555