FILED: NEW YORK COUNTY CLERK 07/28/2015 04:48 PM INDEX NO. 651841/2015 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 07/28/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CAPITAL ONE TAXI MEDALLION FINANCE, v. Plaintiff, Index No. 651841/2015 PATTON R. CORRIGAN and MICHAEL LEVINE, Defendants. DEFENDANTS OPPOSITION TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT Bruce Zirinsky 375 Park Avenue, Suite 2607 New York, New York 10152 (212) 763-0192 Steven F. Molo Robert K. Kry Hassan A. Shah (pro hac vice) MOLO LAMKEN LLP 540 Madison Avenue New York, New York 10022 (212) 607-8160 (telephone) (212) 607-8161 (facsimile) smolo@mololamken.com Attorneys for Defendants July 28, 2015
TABLE OF CONTENTS Page PRELIMINARY STATEMENT...1 STATEMENT OF FACTS...2 I. TFA s Medallion Financing Venture with Capital One...2 II. Capital One s Bad-Faith Repudiation of Its Obligations Under the Loan and Security Agreement...4 III. Capital One s Bad-Faith Refusal to Honor the Letter Agreement...6 IV. The Illinois and New York Proceedings...7 STANDARD OF REVIEW...8 ARGUMENT...8 I. There Are Genuine Disputes of Fact over Whether Mr. Corrigan and Mr. Levine Are Liable on the Guarantees...8 A. Capital One Wrongfully Caused the Purported Default...8 1. Capital One Wrongfully Caused TFA s Purported Default Through Its Bad-Faith Repudiation of the Loan and Security Agreement...9 2. Capital One Wrongfully Caused TFA s Purported Default Through Its Bad-Faith Refusal to Honor the Letter Agreement...12 B. Capital One Materially Altered the Terms of the Lending Facility and the Risks Assumed by the Guarantors...13 C. Capital One Fraudulently Induced the Guarantee Extensions...15 D. Capital One Negligently Impaired the Collateral Supporting the Lending Facility...15 II. There Are Genuine Disputes of Fact over the Applicability and Enforceability of the Waivers of Defenses...17 A. Waivers of Defenses Do Not Apply Where the Lender Causes the Borrower s Default...17 B. The Waivers of Defenses Are Unenforceable...19 1. Capital One s Duty of Good Faith Is Not Waivable...19 i
2. Capital One s Duty to Preserve Collateral Is Not Waivable...20 3. Capital One Cannot Insulate Itself from Liability for Its Own Willful Misconduct and Gross Negligence...21 4. The Waivers Do Not Preclude the Guarantors Fraud Claim...22 C. The Guarantees Expressly Limit the Guarantors Liability to the Extent There Is a Final Adjudication of TFA s Claims Against Capital One...23 D. Capital One Is Judicially Estopped from Invoking the Waivers...24 CONCLUSION...25 ii
TABLE OF AUTHORITIES Page(s) CASES Abacus Fed. Sav. Bank v. ADT Servs., Inc., 18 N.Y.3d 675 (2012)...21 Accadia Site Contracting, Inc. v. Erie Cnty. Water Auth., 115 A.D.3d 1351 (4th Dep t 2014)...23 Andrews v. Artisans Bank, 26 N.Y. 298 (1863)...23 Barclays Bank of N.Y., N.A. v. Heady Elec. Co., 174 A.D.2d 963 (3d Dep t 1991)...11, 21 Bier Pension Plan Trust v. Estate of Schneierson, 74 N.Y.2d 312 (1989)...14 Bonds Fin., Inc. v. Kestrel Techs., LLC, 48 A.D.3d 230 (1st Dep t 2008)...8 Brown v. Cara, 420 F.3d 148 (2d Cir. 2005)...12 Canterbury Realty & Equip. Corp. v. Poughkeepsie Sav. Bank, 135 A.D.2d 102 (3d Dep t 1988)... passim Carvel Corp. v. Diversified Mgmt. Grp., Inc., 930 F.2d 228 (2d Cir. 1991)...10 Citibank, N.A. v. Plapinger, 66 N.Y.2d 90 (1985)...22 City of New York v. Fid. & Deposit Co. of Md., 253 A.D. 676 (1st Dep t 1938)...24 Cmty. Pres. Corp. v. Wadsworth Condos, LLC, 37 Misc. 3d 1219(A), 2012 WL 5500355 (Sup. Ct. N.Y. Cnty. Mar. 9, 2012)...18 Components Direct, Inc. v. European Am. Bank & Trust Co., 175 A.D.2d 227 (2d Dep t 1991)...10, 11 Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v. Navarro, No. 54, 2015 WL 3549851 (N.Y. June 9, 2015)...1, 8, 18, 19 D&L Holdings, LLC v. RCG Goldman Co., LLC, 287 A.D.2d 65 (1st Dep t 2001)...24, 25 Dalton v. Educ. Testing Serv., 87 N.Y.2d 384 (1995)...10 Deutsche Alt-A Sec. Mortg. Loan Trust, Series 2006-OA1 v. DB Structured Prods., Inc., 958 F. Supp. 2d 488 (S.D.N.Y. 2013)...21 Deutsche Bank Nat l Trust Co. v. Decision One Mortg., LLC, No. 2013 L 5823, 2013 WL 6284438 (Ill. Cir. Ct. Nov. 19, 2013)...21 iii
European Am. Bank v. Mr. Wemmick, Ltd., 160 A.D.2d 905 (2d Dep t 1990)...19 Exec. Bank of Ft. Lauderdale v. Tighe, 66 A.D.2d 70 (2d Dep t 1978)...16 FDIC v. Frank L. Marino Corp., 74 A.D.2d 620 (2d Dep t 1980)...16, 20 Fehr Bros. v. Scheinman, 121 A.D.2d 13 (1st Dep t 1986)...14 First Citizens Bank & Trust Co. of Utica v. Sherman s Estate, 250 A.D. 339 (4th Dep t 1937)...15 Gen. Motors Acceptance Corp. v. Kalkstein, 101 A.D.2d 102 (1st Dep t 1984)...15 Goodridge v. Fernandez, 121 A.D.2d 942 (1st Dep t 1986)...22 Greenwood Packing Corp. v. Newman, 147 A.D.2d 673 (2d Dep t 1989)...14 Gross v. Sweet, 49 N.Y.2d 102 (1979)...21 GTE Automatic Elec. Inc. v. Martin s Inc., 127 A.D.2d 545 (1st Dep t 1987)...22 IDT Corp. v. Tyco Grp., 13 N.Y.3d 209 (2009)...12 Kimco of N.Y., Inc. v. Devon, 163 A.D.2d 573 (2d Dep t 1990)...25 Maas v. Cornell Univ., 253 A.D.2d 1 (3d Dep t 1999)...25 Mangold v. Keip, 177 Misc. 2d 953 (App. Term 1st Dep t 1998)...14 Mfrs. Hanover Trust Co. v. Yanakas, 7 F.3d 310 (2d Cir. 1993)...22, 23 Marine Midland Bank, N.A. v. Kristin Int l Ltd., 141 A.D.2d 259 (4th Dep t 1988)...19, 20 Mfrs. & Traders Trust Co. v. Sullivan, 188 A.D.2d 1023 (4th Dep t 1992)...9 Midland Steel Warehouse Corp. v. Godinger Silver Art Ltd., 276 A.D.2d 341 (1st Dep t 2000)...13 Nat l Westminster Bank USA v. Ross, 676 F. Supp. 48 (S.D.N.Y. 1987)...19, 22 NatWest Bank N.A. v. Grauberd, 228 A.D.2d 337 (1st Dep t 1996)...16, 17, 20 New Neth. Bank of N.Y. v. Dernburg, 206 A.D. 212 (1st Dep t 1923)...16 Norcon Power Partners, L.P. v. Niagara Mohawk Power Corp., 92 N.Y.2d 458 (1998)...23 People v. Metro. Sur. Co., 171 A.D. 15 (3d Dep t 1916)...23 iv
Porto Rico v. Title Guar. & Sur. Co., 227 U.S. 382 (1913)...8 Powers v. Clarke, 127 N.Y. 417 (1891)...20 Psaty & Fuhrman v. Cont l Cas. Co., 278 A.D. 159 (1st Dep t 1951)...24 Red Tulip, LLC v. Neiva, 44 A.D.3d 204 (1st Dep t 2007)...9 Richbell Info. Servs., Inc. v. Jupiter Partners, L.P., 309 A.D.2d 288 (1st Dep t 2003)...10 Royal Palm Senior Investors, LLC v. Carbon Capital II, Inc., No. 08-cv-4319, 2009 WL 1941862 (S.D.N.Y. July 7, 2009)...19, 20 Schuster v. Dragone Classic Motor Cars, Inc., 98 F. Supp. 2d 441 (S.D.N.Y. 2000)...22 Signature Bank v. Laro Maint. Corp., No. 016790/2009, 2011 WL 2669744 (Sup. Ct. Nassau Cnty. June 21, 2011)...9, 17, 18 SNC, Ltd. v. Kamine Eng g & Mech. Contracting Co., 238 A.D.2d 146 (1st Dep t 1997)...12 Sterling Nat l Bank v. Goldberg, 277 A.D.2d 45 (1st Dep t 2000)...10 Sweeters v. Hodges, 256 A.D.2d 185 (1st Dep t 1998)...13, 18 TAP Holdings, LLC v. Orix Fin. Corp., 45 Misc. 3d 1217(A), 2014 WL 5900923 (Sup. Ct. N.Y. Cnty. Nov. 7, 2014)...11 Zyskind v. FaceCake Mktg. Techs., Inc., 101 A.D.3d 550 (1st Dep t 2012)...22 STATUTES C.P.L.R. 3213...1, 8 U.C.C. 1-302(b)...19 U.C.C. 9-207(a)...16 U.C.C. 9-207 cmt. 2...20 OTHER AUTHORITIES A. Barry Cappello, Lender Liability 5.5.1 (5th ed. 2014)...9, 19 63 N.Y. Jur. 2d Guaranty and Suretyship 336 (rev. 2015)...9 v
63 N.Y. Jur. 2d Guaranty and Suretyship 344 (rev. 2015)...23 Restatement (Third) of Suretyship & Guaranty 37(2)(b) (1996)...14 23 Williston on Contracts 63:22 (4th ed. rev. 2005)...10 vi
PRELIMINARY STATEMENT Capital One seeks summary judgment against defendants on their personal guarantees for more than $57 million pursuant to C.P.L.R. 3213. In support of that extraordinary relief, it baldly asserts that there are no meritorious defenses to the claims, that there are no triable issues of fact, and that all of the guarantors defenses have been waived as a matter of law. Capital One is wrong. Factual disputes abound in this case over the enforceability, the amount, and indeed even the very existence of the guarantees. And contrary to Capital One s inapposite case law, the waivers in the guarantees do not foreclose those disputes. The New York Court of Appeals reaffirmed just last month that an absolute and unconditional guaranty does not foreclose a guarantor s challenge that the creditor s wrongful post-execution conduct triggered the event that accelerates or causes the guarantor s liability. Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v. Navarro, No. 54, 2015 WL 3549851 (N.Y. June 9, 2015). That is exactly what happened here. For years, Transit Funding Associates LLC ( TFA ) relied on Capital One to fund its taxi medallion loans. But Capital One repudiated its commitments partway through the contract and abandoned the Chicago medallion lending market so it could pursue a competing venture with the ride-sharing service Uber. Now, like the proverbial boy who murders his parents and then pleads for mercy on the ground that he s an orphan, Capital One seeks to collect on its guarantees even though its own bad-faith conduct caused TFA s purported default. Indeed, the guarantees expressly limit the guarantors liability to the extent the Court finds that TFA has a valid defense under the loan agreement. TFA has asserted precisely such claims here, in the companion case against Capital One also now pending before this Court. Under the plain language of the guarantees, the Court cannot determine the guarantors liability while that underlying dispute remains to be adjudicated. 1
Those are just a few of the many factual disputes that preclude summary judgment in this case. Capital One s motion should be denied. STATEMENT OF FACTS I. TFA S MEDALLION FINANCING VENTURE WITH CAPITAL ONE In 2006, defendants Patton Corrigan and Michael Levine formed TFA to provide loans to purchasers of taxi medallions in the Chicago market. Corrigan Aff. 2. Those medallions confer the right to operate a taxicab in Chicago. Id. Most of TFA s borrowers are small, minority-owned businesses who rely on the medallion loans to earn their livelihoods. Id. 3. To finance its business, TFA initially entered into an agreement with a local Chicago bank, Cole Taylor. Corrigan Aff. 6. In 2009, however, Capital One induced TFA to leave Cole Taylor and form a new joint venture with Capital One instead. Id. Capital One historically had no real presence in the Chicago market and was eager to exploit TFA s resources. Id. 7. It therefore proposed that the two companies work together, with TFA generating business, handling collections, and performing other back-office functions, while Capital One provided funding. Id. 8. Capital One funded the venture through a series of credit facilities that allowed TFA to draw down advances as it issued medallion loans. Corrigan Aff. 12. Those facilities included an April 6, 2012 Loan and Security Agreement that provided TFA with an $80 million credit line. Id. 12 & Ex. 1. In August 2013, the parties extended that facility to July 1, 2014, with an automatic three-month extension to October 1, 2014. Id. 13 & Ex. 2. The Loan and Security Agreement required Capital One to advance funds to TFA upon request throughout the entire term of the agreement. Section 2.1(c), for example, states that Capital One will make Advances to the Borrower from time to time until the [expiration date], in such sums as the Borrower may request, provided that the aggregate principal amount... 2
shall not exceed the Maximum Facility Amount. Corrigan Aff. Ex. 1 2.1(c) (emphasis added). Sections 2.1(b) and 2.1(d) contain similar mandates. Id. 2.1(b), (d). While the agreement required Capital One to advance funds throughout the facility s full term, Section 2.1(g) permitted Capital One to decline particular requests for advances in its discretion for example, if it had concerns about the creditworthiness of a specific borrower. Corrigan Aff. Ex. 1 2.1(g). That provision, however, did not purport to waive Capital One s duty to exercise that discretion in good faith in light of the broader purposes of the agreement. And it contained no language permitting Capital One to abandon the medallion lending business, cease making advances altogether, or terminate the facility prior to its expiration date. Capital One insisted that Mr. Corrigan, Mr. Levine, and several TFA affiliates guarantee TFA s obligations under the credit facility. Corrigan Aff. 17 & Ex. 3; Levine Aff. Ex. 1. And it required them to extend those guarantees when it extended the credit facility in August 2013. Corrigan Aff. Ex. 2. Capital One drafted all those documents and presented them on a take-it-orleave-it basis, with no opportunity to negotiate terms. Corrigan Aff. 18-19. The guarantees provide that, upon any default by the Borrower in the timely payment of any monetary Borrower s Liabilities to the Lender, the Guarantor will promptly pay the same. Corrigan Aff. Ex. 3 at 1. They include standard language reciting that they are absolute, irrevocable, and unconditional and purport to waive all defenses [t]o the extent permitted by law. Id. at 2-3. Nonetheless, the guarantees expressly limit the guarantors liability to the extent that there is a final adjudication by a court of competent jurisdiction of a valid defense to Borrower s obligations under the Loan Documents to payment of its liabilities. Id. at 3. TFA relied on Capital One s commitments to the venture over many years when it entered into and extended its credit facility. Corrigan Aff. 16. Mr. Corrigan and Mr. Levine relied on that same understanding when they executed and extended the guarantees. Corrigan 3
Aff. 20; Levine Aff. 5-6. TFA and its guarantors also relied on that understanding when TFA granted Capital One a security interest in its medallion loan portfolio and virtually all other assets, and the guarantors granted a security interest in their portfolio of 48 medallions worth about $17 million. Corrigan Aff. 21 & Ex. 1 2.4.1(c)(v)-(vi), 3.1; Levine Aff. 7. II. CAPITAL ONE S BAD-FAITH REPUDIATION OF ITS OBLIGATIONS UNDER THE LOAN AND SECURITY AGREEMENT In early 2014, the medallion market was thriving, and TFA was poised to take advantage of those conditions. Corrigan Aff. 28. TFA had just renewed its credit facility with Capital One in August 2013. Id. That facility was far from expiring and substantially below its lending limit, and TFA was not in default in any respect. Id. Without warning or explanation, however, Capital One suddenly began denying TFA s requests for advances. On February 25, 2014, Capital One denied a request for $1.3 million to fund three loans, even though it had previously approved them. Corrigan Aff. 29 & Ex. 4. Capital One did not claim there was any credit defect but instead simply stated that it was no longer interested in funding these applications that were approved. Id. Concerned about Capital One s intentions, TFA inquired whether Capital One was still lending in the Chicago medallion market. Id. 30 & Ex. 5. Capital One responded that it was not. Id. It then denied all of TFA s requests for the remainder of the facility s term. Id. 32. Capital One s motives were unclear at the time. More recently, however, it has emerged that Capital One made a strategic decision to abandon the taxi medallion financing business nationwide in favor of a new partnership with the ride-sharing service Uber. Corrigan Aff. 33. Capital One began offering significant discounts on Uber fares if consumers paid with a Capital One credit card. Id. 34 & Ex. 6. Capital One heavily promoted that new venture. Id. 35. 4
Uber competes directly with the taxi services financed by TFA s medallion loans. Corrigan Aff. 36. A leading industry publication noted that Capital One s partnership with Uber ironically[] puts additional pressure on its medallion-lending business, and that taxi companies, some of which rely on Capital One for financing, will get hurt by cheaper pricing for ride-sharing services. Id. 36 & Ex. 8. It quoted a financial analyst as observing that Capital One was partnering with someone who s cannibalizing some of [its] own business. Id. Capital One secretly formed those plans to exit the medallion financing business before TFA and its guarantors renewed the credit facility in August 2013. A Capital One employee almost exposed the plans in April 2013 when she posted to her Facebook page that she was [c]elebrat[ing] the demise of specialty funding the group responsible for medallion loans. Corrigan Aff. 43 & Ex. 11. Upon seeing that post, Mr. Corrigan expressed serious concerns to Capital One s executives. Id. 44. But they dismissed the post and falsely reassured him that Capital One remained committed to the venture. Id. Mr. Corrigan and Mr. Levine would not have extended their guarantees absent those assurances. Id. 45; Levine Aff. 8. Given the dominant position that Capital One had obtained in the Chicago market by that time, Capital One s withdrawal effectively caused a run on the bank, as other lenders ceased making new loans as well. Corrigan Aff. 37. As a result, TFA was unable to carry on its business and had no other source of funding to refinance its credit facility. Id. Capital One s actions also destroyed liquidity in the medallion market and thus the value of the medallions and medallion loans securing TFA s facility. Id. 38. Finally, Capital One thwarted the guarantors efforts to sell their 48 medallions to raise cash to pay down or further secure the loan. Even though the guarantors had located buyers for the medallions worth about $17 million at the time Capital One arbitrarily refused to release its liens on them. Id. 39 & Exs. 9-10. 5
III. CAPITAL ONE S BAD-FAITH REFUSAL TO HONOR THE LETTER AGREEMENT Capital One s actions left TFA with no choice but to wind down its business. Corrigan Aff. 50. To that end, on September 16, 2014, Capital One and TFA agreed to a detailed Letter Agreement to allow TFA to avoid a default while liquidating its remaining loans. Corrigan Aff. Ex. 20. That agreement extended TFA s facility but required TFA to apply all proceeds from its loan portfolio to pay down the facility rather than making new loans. Id. at 1-2. Capital One, however, failed to live up to its obligations under that agreement as well. Despite promising that the transaction would close by September 30, 2014, Capital One did not provide an initial draft of the closing documents until November 7. Corrigan Aff. 60-61. TFA promptly provided comments and was assured that final documents would be forthcoming shortly. Id. 62. But Capital One never provided them. Id. 63, 71. Capital One also insisted on burdensome, unauthorized field examinations. It demanded over twenty categories of documents from TFA, over five different time periods. Corrigan Aff. 64 & Ex. 22. It also required field examinations of some of TFA s guarantors that were not authorized by the agreement. Id. 65. During a phone call, Capital One Senior Vice President Paul Dell Aquilo admitted that those examinations were not authorized and described them as an emotional issue of his colleagues, who were on a witch hunt. Id. 67. Capital One also began trying to extort additional payments from TFA. It demanded that TFA pay $1.1 million to cure a supposed borrowing base deficiency, even though that requirement had been specifically deleted during negotiations. Corrigan Aff. 69. Mr. Dell Aquilo admitted that the requirement had been deleted and that the bank had not previously demanded such a payment under the Letter Agreement. Id. 70. He was unable to explain why his colleagues were insisting on the payment and described it as a proposed change in terms. 6
Id. 70 & Exs. 24-25. The bank fired Mr. Dell Aquilo two weeks later. Id. 71. Capital One then insisted that TFA sign a purported standstill agreement as a condition of further discussions. Corrigan Aff. 74-77 & Ex. 28. Far from providing for a standstill, however, the agreement contained a lengthy list of waivers and admissions designed to insulate Capital One from liability. Id. When TFA protested, Capital One responded with an even more oppressive draft and threatened to sue if TFA did not sign. Id. 79 & Ex. 30. IV. THE ILLINOIS AND NEW YORK PROCEEDINGS TFA and its guarantors had no choice but to file suit against Capital One in Illinois on May 19, 2015. Corrigan Aff. Ex. 31. Capital One responded by suing Mr. Corrigan and Mr. Levine in this Court on May 27. On June 3, the Illinois court dismissed TFA s suit based on an expansive reading of a forum selection clause. Corrigan Aff. Ex. 32. TFA and its guarantors appealed and moved to expedite the appeal. Corrigan Aff. Ex. 33. Capital One opposed that motion, urging that expedition was unnecessary because, even if Capital One succeeds in enforcing its rights under the guarantees of the loan agreement, it would not be before Plaintiffs were afforded their day in court, where they could raise any and all defenses to collection, including the claims raised in the action below. Corrigan Aff. Ex. 34 at 2 (emphasis added); see also id. at 8 ( Plaintiffs are in no way prevented from bringing all their Illinois claims as defenses to the New York Action should they choose to do so. ). The Illinois court agreed and denied TFA s motion. Corrigan Aff. Ex. 35. Lacking any prospect of timely relief in Illinois, TFA and its guarantors sued Capital One in this Court on June 30, 2015, alleging breach of contract, fraud, and other claims based on Capital One s history of wrongful conduct throughout the parties relationship. Corrigan Aff. Ex. 36. The suit seeks a declaration that TFA is not liable under the Loan and Security Agreement and that the guarantors are not liable on their guarantees. Id. 175-190. That case 7
is pending before this Court and has been designated a related case. See Transit Funding Associates LLC v. Capital One Equipment Finance Corp., No. 652346/2015. STANDARD OF REVIEW Under C.P.L.R. 3213, the Court must deny summary judgment whenever outside proof is needed, other than simple proof of nonpayment or a similarly de minimis deviation from the face of the document. Bonds Fin., Inc. v. Kestrel Techs., LLC, 48 A.D.3d 230, 231 (1st Dep t 2008). The Court must also deny summary judgment whenever there are triable issues of fact. Id. The Court must draw all reasonable inferences in favor of defendants. Id. ARGUMENT There are multiple factual disputes over Mr. Corrigan s and Mr. Levine s liability on their guarantees. Contrary to Capital One s claims, the waivers in the guarantees do not foreclose their arguments. Capital One s motion should be denied. I. THERE ARE GENUINE DISPUTES OF FACT OVER WHETHER MR. CORRIGAN AND MR. LEVINE ARE LIABLE ON THE GUARANTEES A. Capital One Wrongfully Caused the Purported Default Under New York law, a lender cannot enforce a guarantee if it unfairly brought about the occurrence of the very [purported default] upon which it relie[s] to accelerate the loan against the guarantors. Canterbury Realty & Equip. Corp. v. Poughkeepsie Sav. Bank, 135 A.D.2d 102, 107 (3d Dep t 1988). That rule precludes liability whenever the creditor s wrongful postexecution conduct triggered the event that accelerates or causes the guarantor s liability. Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v. Navarro, No. 54, 2015 WL 3549851 (N.Y. June 9, 2015). If the plaintiff made performance [by the borrower] impossible, it is unimaginable that any civilized system of law would allow it to recover upon the [guarantee]. Porto Rico v. Title Guar. & Sur. Co., 227 U.S. 382, 389 (1913) (Holmes, J.). 8
In Canterbury, for example, the lender tried to enforce a guarantee by invoking the borrower s suspension of business and adverse change in... financial condition. 135 A.D.2d at 106. The court denied summary judgment based on evidence that the bank s own actions caused those supposed defaults: The bank had improperly refused to honor the borrower s checks and withheld alternative financing. Id. at 106-07. Similar cases abound. 1 Those same principles apply here. Capital One wrongfully caused TFA s purported default, both when it abandoned the Chicago market and repudiated its commitment to advance funds to TFA and when it later reneged on its obligations under the Letter Agreement. 1. Capital One Wrongfully Caused TFA s Purported Default Through Its Bad-Faith Repudiation of the Loan and Security Agreement The Loan and Security Agreement required Capital One to advance funds upon request throughout the entire term of the agreement. It expressly provides that Capital One will make Advances to the Borrower from time to time until the [expiration date]. Corrigan Aff. Ex. 1 2.1(c) (emphasis added); see also id. 2.1(b), (d). It contains no provisions authorizing Capital One to terminate the agreement at will or otherwise abandon its funding commitments partway through. Capital One flouted those obligations by refusing to make new loans, or even roll over existing ones, after February 2014 even though the agreement was far from expiring and well below its lending limit, and TFA was not in default in any way. Corrigan Aff. 28-32. 1 See, e.g., Mfrs. & Traders Trust Co. v. Sullivan, 188 A.D.2d 1023, 1023 (4th Dep t 1992) (denying summary judgment because factual issues exist whether plaintiff interfered with or prevented the occurrence of conditions which would have terminated defendants liability under the guaranties ); Signature Bank v. Laro Maint. Corp., No. 016790/2009, 2011 WL 2669744 (Sup. Ct. Nassau Cnty. June 21, 2011) (similar); 63 N.Y. Jur. 2d Guaranty and Suretyship 336 (rev. 2015) ( If the creditor makes performance by the principal impossible, the creditor cannot recover against the surety or guarantor for failure of the principal to perform. ); A. Barry Cappello, Lender Liability 5.5.1 at 72 (5th ed. 2014) (similar); cf. Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 210-13 (1st Dep t 2007) (applying Canterbury). 9
Section 2.1(g) gave Capital One discretion over particular advances. Corrigan Aff. Ex. 1 2.1(g). But that discretion did not include the right to abandon the lending market or stop advancing funds altogether. Even where a contract contemplates the exercise of discretion, the implied covenant of good faith and fair dealing includes a promise not to act arbitrarily or irrationally in exercising that discretion. Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389 (1995) (emphasis added). [E]ven an explicitly discretionary contract right may not be exercised in bad faith so as to frustrate the other party s right to the benefit under the agreement. Richbell Info. Servs., Inc. v. Jupiter Partners, L.P., 309 A.D.2d 288, 302 (1st Dep t 2003); see also Carvel Corp. v. Diversified Mgmt. Grp., Inc., 930 F.2d 228, 230-31 (2d Cir. 1991) (similar); 23 Williston on Contracts 63:22 (4th ed. rev. 2005) ( [E]ven where a defendant is given absolute discretion, it must exercise that discretion in good faith. ). Courts have repeatedly invoked that rule to prohibit lenders from exercising discretionary powers in bad faith. In Canterbury, the court denied summary judgment against a guarantor based on evidence that the bank had accelerated the loan in bad faith. 135 A.D.2d at 109. Such a clause does not authorize a lender to accelerate payment arbitrarily, the court explained; at a minimum, it must be motivated by good faith. Id. And [t]ypically, the question of whether the lender has invoked the clause in good faith is a question of fact. Id. Likewise, in Sterling National Bank v. Goldberg, 277 A.D.2d 45 (1st Dep t 2000), the court denied summary judgment against a guarantor because issues of fact exist[ed] as to whether [the lender] breached the implied covenant of good faith and fair dealing when it precipitously cut off the debtors line of credit without notice. Id. at 47. In Components Direct, Inc. v. European American Bank & Trust Co., 175 A.D.2d 227 (2d Dep t 1991), the court held that, even where a lender has an absolute right to terminate credit (unlike Capital One here), absent valid business reasons... the obligation of good faith would require a period of notice to 10
allow the corporate plaintiff a reasonable opportunity to seek alternate credit. Id. at 229-30. And in TAP Holdings, LLC v. Orix Finance Corp., 45 Misc. 3d 1217(A), 2014 WL 5900923 (Sup. Ct. N.Y. Cnty. Nov. 7, 2014), the court held that a bad-faith disposition of collateral violated the implied covenant, observing that even where a party is granted complete discretion, such discretion is not unfettered. Id. at *14; see also Barclays Bank of N.Y., N.A. v. Heady Elec. Co., 174 A.D.2d 963, 966-67 (3d Dep t 1991). Capital One violated its duty of good faith here. While the contract granted Capital One discretion over particular advances, Corrigan Aff. Ex. 1 2.1(g), it also required Capital One to advance funds throughout the entire term of the facility, id. 2.1(c). The necessary implication is that Capital One would exercise its discretion in good faith and not simply walk away from its funding obligations without notice and abandon the market altogether. Capital One s bad faith is even more egregious in light of its motives. The evidence shows that Capital One abandoned its venture with TFA so it could collaborate with the competing ride-sharing service Uber instead. Corrigan Aff. 33-36. That is the opposite of good faith. Capital One s discretion did not include jumping ship to back TFA s competitors. Capital One s actions caused TFA s purported default. Given Capital One s dominant market position, its withdrawal from the market caused a run on the bank that dried up liquidity and eliminated alternative sources of financing. Corrigan Aff. 37. By failing to give TFA advance notice of its plans, Capital One denied TFA the opportunity to refinance its facility at a time when financing was still available from other banks. Id. Absent that funding, TFA could not carry on its business and could not pay back or refinance its facility upon the stated expiration date. Id. 40. Capital One s actions thus led directly to TFA s purported default. Id. At a minimum, there are genuine factual disputes that preclude summary judgment. 11
2. Capital One Wrongfully Caused TFA s Purported Default Through Its Bad-Faith Refusal to Honor the Letter Agreement Capital One also wrongfully caused the alleged default by failing to consummate the Letter Agreement. Recognizing that TFA could no longer refinance its lending facility, Capital One agreed to restructure the facility to prevent TFA from defaulting while it wound down its loan portfolio. Corrigan Aff. 50-51 & Ex. 20. But Capital One then refused in bad faith to close on that transaction. Id. 59-81. It now seeks to collect from the guarantors based on the very default the Letter Agreement was designed to avoid. The Letter Agreement recites that it is a mere proposal subject to credit approval rather than a binding final agreement. Corrigan Aff. Ex 20 at 1, 5-6. But that qualification did not relieve Capital One of its duty to proceed in good faith. Even where an agreement does not commit the parties to their ultimate contractual objective, it may still obligate them to negotiate the open issues in good faith in an attempt to reach the... objective within the agreed framework. Brown v. Cara, 420 F.3d 148, 157 (2d Cir. 2005); see also IDT Corp. v. Tyco Grp., 13 N.Y.3d 209, 213-14 & n.2 (2009) (finding duty to negotiate the terms of the... agreements in good faith ); SNC, Ltd. v. Kamine Eng g & Mech. Contracting Co., 238 A.D.2d 146, 146 (1st Dep t 1997) (finding issues of fact as to whether [parties] reached a binding preliminary contract giving rise to a duty to negotiate in good faith ). That is the case here. Courts weigh several factors in determining whether a preliminary agreement imposes a duty to negotiate in good faith: (1) the language of the agreement; (2) the context of the negotiations; (3) the existence of open terms; (4) partial performance; and (5) the necessity of putting the agreement in final form. Brown, 420 F.3d at 157. Here, those factors favor TFA. The Letter Agreement expressly sets forth the terms on which Capital One would consider modifying and extending the... credit facility. Corrigan Aff. Ex. 20 at 1 (emphasis 12
added). It is signed by both TFA and Capital One. Id. at 7. It specifies all necessary terms. Id. at 1-5. TFA fully performed by paying all interest due. Corrigan Aff. 73 & Exs. 26-27. Capital One repeatedly promised to provide the closing documents necessary to put the agreement in final form. Id. 60-63. And the agreement was negotiated in the context of a longstanding relationship that the bank had repeatedly extended in the past. Id. 10-13, 24. At a minimum, there are genuine factual disputes over whether the Letter Agreement imposed a duty to negotiate and consummate the transaction in good faith. Capital One clearly violated that duty. It refused to provide closing documents. Corrigan Aff. 60-64. It demanded burdensome field examinations that its own vice president admitted were unauthorized. Id. 65-68. It demanded a deficiency payment that its own vice president described as a proposed change in terms. Id. 69-70 & Exs. 24-25. And it tried to impose an oppressive standstill agreement releasing all claims against it. Id. 74-81. That bad-faith conduct caused TFA s purported default. Had Capital One closed the transaction as promised, the bank could not claim any default. See Sweeters v. Hodges, 256 A.D.2d 185, 185 (1st Dep t 1998) (no claim against guarantor where debt was duly suspended pursuant to [a] subordination agreement ). The whole point of the Letter Agreement was to avoid a default by restructuring the facility after Capital One s actions destroyed any means of refinancing. By reneging on that commitment, Capital One again caused the supposed default. B. Capital One Materially Altered the Terms of the Lending Facility and the Risks Assumed by the Guarantors Summary judgment should also be denied because Capital One materially altered its relationship with TFA without the guarantors consent. Under New York law, any material or substantial alteration of the terms of a contract, for whose performance a surety is bound, when made without the surety s consent, releases the surety from his or her obligations. Midland 13
Steel Warehouse Corp. v. Godinger Silver Art Ltd., 276 A.D.2d 341, 343 (1st Dep t 2000); see also Bier Pension Plan Trust v. Estate of Schneierson, 74 N.Y.2d 312, 315 (1989). The same principle applies to changes in the business format of a borrower that materially alter the nature of the guarantee. Fehr Bros. v. Scheinman, 121 A.D.2d 13, 19 (1st Dep t 1986). The test is whether the changes significantly alter the business dealings between the debtor and the creditor and the nature of the guarantor s undertaking. Id. The critical issue is the degree of risk the guarantor is being obligated to assume. Id. (emphasis added); see also Restatement (Third) of Suretyship & Guaranty 37(2)(b) (1996) (guarantor discharged if lender imposes risks on the [guarantor] fundamentally different from those assumed). Capital One substantially increased those risks here. Mr. Corrigan and Mr. Levine guaranteed TFA s debts on the understanding that Capital One would fund TFA s business for the entire duration of the agreement. Corrigan Aff. 20; Levine Aff. 6. Capital One s commitment to remain in the Chicago market was critical to their risk analysis. Corrigan Aff. 41. The bank s abrupt withdrawal and the resulting impact on other financing sources transformed TFA from a vibrant medallion lending business into a mere fixed loan portfolio in run-off mode with no means to pay off its debt when the facility expired. Capital One s actions thus fundamentally altered the guarantors risks. Cf. Greenwood Packing Corp. v. Newman, 147 A.D.2d 673, 674 (2d Dep t 1989) (finding guarantor discharged where lender allowed borrower to exceed lending limit and thereby increased the guarantors risk without their consent ). Capital One altered its relationship with TFA yet again in the Letter Agreement. That agreement affirmatively prohibited TFA from using proceeds for any purpose other than paying down its debt. Corrigan Aff. Ex. 20 at 1. Capital One then departed from even those revised terms. Corrigan Aff. 59-72. By changing terms without the guarantors consent, Capital One discharged the guarantors. See Mangold v. Keip, 177 Misc. 2d 953, 954 (App. Term 1st Dep t 14
1998) (addition of new lease term discharged guarantors even though they were principals of the tenant who signed the lease). C. Capital One Fraudulently Induced the Guarantee Extensions Capital One also defrauded Mr. Corrigan and Mr. Levine into extending their guarantees when TFA renewed its facility in August 2013. Under New York law, a creditor cannot recover from a guarantor where the creditor has practiced any fraud to induce the guarantor to assume the obligation. Gen. Motors Acceptance Corp. v. Kalkstein, 101 A.D.2d 102, 105 (1st Dep t 1984). A creditor must deal[] with his surety with the utmost good faith at every step in the transaction and speak out, and correct the [guarantor s] false impression. First Citizens Bank & Trust Co. of Utica v. Sherman s Estate, 250 A.D. 339, 345 (4th Dep t 1937). Capital One flouted those duties here. Capital One s employees were secretly discussing plans to exit the market as early as April 2013. Corrigan Aff. 42-43. When an employee almost revealed those plans in a Facebook post celebrating the demise of specialty funding, Capital One executives dismissed the post and falsely assured Mr. Corrigan and Mr. Levine that Capital One had no such plans. Id. 43-44 & Ex.11. The guarantors relied on Capital One s false assurances when they extended their guarantees. Id. 45; Levine Aff. 8. Mr. Corrigan and Mr. Levine now face crippling liability as a result of Capital One s fraud a liability they could not have anticipated and never agreed to assume. What is worse, TFA turned down multiple concrete offers to sell its business in reliance on TFA s false statements. Corrigan Aff. 46 & Exs. 12-13. Had TFA and its guarantors known the truth, they could have used those sale proceeds to pay off the loan. D. Capital One Negligently Impaired the Collateral Supporting the Lending Facility Finally, the guarantors have valid defenses based on Capital One s impairment of 15
collateral. Under New York law, any improper dealing with collateral deposited to secure an indebtedness guaranteed by another is available to the guarantor as a defense. New Neth. Bank of N.Y. v. Dernburg, 206 A.D. 212, 213 (1st Dep t 1923); see also NatWest Bank N.A. v. Grauberd, 228 A.D.2d 337, 338 (1st Dep t 1996). Both at common law and under the Uniform Commercial Code the creditor bears a special duty toward the surety to take reasonable care to protect and preserve collateral. Exec. Bank of Ft. Lauderdale v. Tighe, 66 A.D.2d 70, 75 (2d Dep t 1978); see U.C.C. 9-207(a). Because the impairment of any collateral can affect a guarantor s liability, guarantors can challenge impairment whether the collateral is owned by the borrower, the guarantor, or a third party. See New Neth. Bank, 206 A.D. at 213. The Loan and Security Agreement gave Capital One a security interest in virtually all of TFA s property, including its medallion loans. Corrigan Aff. Ex. 1 3.1. The bank also took a security interest in the guarantors 48 medallions worth about $17 million. Corrigan Aff. 21 & Ex. 1 2.4.1(c)(v)-(vi). Capital One had custody of all that collateral. Id. 22. Capital One impaired that collateral in two ways. First, it arbitrarily refused to release its liens on the 48 medallions, preventing the guarantors from selling them and using the proceeds to pay down or further secure the lending facility. Corrigan Aff. 39. Where... a demand is made of the creditor to liquidate the collateral and subsequent to the refusal to liquidate the collateral substantially declines in value, the failure to liquidate, if negligent, is a breach of the secured party s duty to use reasonable care in the custody and preservation of collateral. FDIC v. Frank L. Marino Corp., 74 A.D.2d 620, 621 (2d Dep t 1980). TFA s guarantors had buyers lined up to purchase the medallions at a time when prices were at record highs, and they repeatedly demanded that Capital One release its liens so they could complete the sales. Corrigan Aff. 39. Capital One refused even though the sales would have benefited it by substituting cash collateral for medallions. Id. Capital One s refusal caused substantial losses, 16
since the market has now dried up and medallion values have fallen. Id. Capital One s actions were wholly arbitrary and, at a minimum, grossly negligent. Capital One also impaired the collateral by abruptly withdrawing from the Chicago medallion lending market. Capital One s withdrawal caused other lenders to cease making new loans and dramatically reduced market liquidity and medallion prices. Corrigan Aff. 37-38. Its actions thus impaired the value of both the guarantors 48 medallions and TFA s medallion loans secured by other medallions. Id. 38. Those actions amounted to willful misconduct they were directly contrary to Capital One s contractual obligations and undertaken in bad faith to pursue a competing venture with Uber. Capital One s wrongful impairment of collateral provides yet another defense. At a minimum, the guarantors are entitled to offset any judgment by the amount of the impairment. That dispute likewise precludes summary judgment. See NatWest, 228 A.D.2d at 338 (amount of impairment would also be a triable issue of fact ). II. THERE ARE GENUINE DISPUTES OF FACT OVER THE APPLICABILITY AND ENFORCEABILITY OF THE WAIVERS OF DEFENSES Capital One tries to avoid responsibility for its wrongdoing by invoking language in the guarantees reciting that they are absolute, irrevocable, and unconditional and purporting to waive all defenses [t]o the extent permitted by law. Corrigan Aff. Ex 3 at 2-3. For multiple reasons, those provisions do not help Capital One here. A. Waivers of Defenses Do Not Apply Where the Lender Causes the Borrower s Default New York courts have repeatedly rejected the argument that a waiver of defenses bars a claim that the lender caused the borrower s default. See Canterbury, 135 A.D.2d at 107 (unconditional guarantee and waiver of defenses did not apply to claim that wrongful conduct on the part of the Bank directly caused the default); Signature Bank v. Laro Maint. Corp., No. 17
016790/2009, 2011 WL 2669744 (N.Y. Sup. Ct. Nassau Cnty. June 21, 2011) ( broad waiver clauses did not bar claim that bank orchestrated the alleged default ); Cmty. Pres. Corp. v. Wadsworth Condos, LLC, 37 Misc. 3d 1219(A), 2012 WL 5500355, at *2 (Sup. Ct. N.Y. Cnty. Mar. 9, 2012) ( A showing that plaintiff wrongfully caused defendants default... may survive even a waiver of defenses. ). The Court of Appeals said as much last month: Even an absolute and unconditional guaranty does not foreclose a guarantor s challenge that the creditor s wrongful post-execution conduct triggered the event that accelerates or causes the guarantor s liability. Cooperatieve Centrale, 2015 WL 3549851 (emphasis added). Canterbury explained why that is so. Even if a guarantor waives defenses, the lender must still establish, as part of its affirmative case, the default that triggers its right to collect. See Canterbury, 135 A.D.2d at 106 (guarantors only obligated themselves unconditionally to make payments on Canterbury s liabilities when due and thus did not waive arguments regarding the triggering events permitting the Bank to accelerate the indebtedness ). A claim that a lender wrongfully caused the alleged default is not a mere defense but rather a claim that no default occurred in the first place. See id. at 108 (contrasting traditional guarantor s defenses with arguments over whether the postexecution conduct of the parties affected the existence of a necessary condition precedent to acceleration of liability under the express terms of the guarantee ); Signature Bank, 2011 WL 2669744 (argument is not a defense but rather a basic fact question that the Plaintiff must resolve in order to establish a prima facie case ); cf. Sweeters, 256 A.D.2d at 185. That logic applies here. The guarantees allow Capital One to collect only upon a default by [TFA] in the timely payment... to the Lender. Corrigan Aff. Ex. 3 at 1 (emphasis added). Capital One must therefore prove an actual default as part of its affirmative case something it cannot do if the bank itself caused the condition. TFA made all interest payments due 18
throughout the term of the facility and for many months thereafter. Corrigan Aff. 73. Its inability to pay back or refinance the principal upon the facility s stated expiration date resulted only from Capital One s own misconduct. Because there is a genuine dispute over whether Capital One s wrongful post-execution conduct triggered the event that... cause[d] the guarantor s liability, the waivers do not apply. Cooperatieve Centrale, 2015 WL 3549851. B. The Waivers of Defenses Are Unenforceable The waivers of defenses are also unenforceable for multiple reasons. 1. Capital One s Duty of Good Faith Is Not Waivable First, the waivers are unenforceable to the extent they apply to breaches of Capital One s duty of good faith. Under the Uniform Commercial Code, the obligation[] of good faith... may not be disclaimed by agreement. U.C.C. 1-302(b) (emphasis added). Courts thus refuse to enforce waivers of defenses to the extent they bar claims for bad faith. See Royal Palm Senior Investors, LLC v. Carbon Capital II, Inc., No. 08-cv-4319, 2009 WL 1941862, at *11-12 (S.D.N.Y. July 7, 2009) (defendant could not waive his right to assert [the lender s] breach of duty of good faith and fair dealing as a defense under the Guaranty Agreement ); European Am. Bank v. Mr. Wemmick, Ltd., 160 A.D.2d 905, 906 (2d Dep t 1990) (refusing to enforce the waiver provision in the face of a triable issue of fact as to the plaintiff s breach of its good-faith obligation ); Nat l Westminster Bank USA v. Ross, 676 F. Supp. 48, 54 (S.D.N.Y. 1987) (same); A. Barry Cappello, Lender Liability 5.5.1 at 72 (5th ed. 2014) (same). The U.C.C. clearly applies to the Loan and Security Agreement: That contract invokes the U.C.C. throughout. See, e.g., Corrigan Aff. Ex. 1 3.2(a), 4.11(c), 4.11(g), 5.10(e), 7.2(D). The U.C.C. also applies to the guarantees because they are ancillary to [that] UCC transaction. Royal Palm, 2009 WL 1941862, at *11 (collecting cases); see also Cappello, supra, 5.5.1 at 71-72; Marine Midland Bank, N.A. v. Kristin Int l Ltd., 141 A.D.2d 259, 261-64 (4th Dep t 1988). 19
As in Royal Palm, the guarantees were executed contemporaneously with the loan agreement, relate exclusively to that agreement, and are an integral part of the agreement. Corrigan Aff. 17. The Loan and Security Agreement contains numerous references to the guarantees and makes them an express condition precedent. Corrigan Aff. Ex. 1 2.4.1(c)(iv). And the August 2013 extensions of the Loan and Security Agreement and the guarantees are in the same contract. Corrigan Aff. Ex. 2. Because the guarantees are thoroughly intertwined with the Loan and Security Agreement, and the Loan and Security Agreement is indisputably subject to the U.C.C., the U.C.C. s non-waivable duty of good faith applies. Capital One s violations of that duty permeate this case. Capital One wrongfully caused the purported default by breaching its implied covenant of good faith under the Loan and Security Agreement. Capital One breached its duty of good faith under the Letter Agreement as well. The other defenses fraud, impairment of collateral, and alteration of risk likewise implicate Capital One s duty of good faith. See Powers v. Clarke, 127 N.Y. 417, 422 (1891) ( [T]he law requires the creditor to act in good faith towards the guarantor.... ). Capital One cannot disclaim responsibility for its bad-faith conduct. 2. Capital One s Duty to Preserve Collateral Is Not Waivable The guarantors defense of impairment of collateral is not waivable either. Under the Uniform Commercial Code, the duty to exercise reasonable care [over collateral] may not be disclaimed by agreement. U.C.C. 9-207 cmt. 2. Accordingly, a lender s obligation to deal in a commercially reasonable manner with collateral securing a loan may not be waived by a guarantor as a matter of law. NatWest, 228 A.D.2d at 338 (emphasis added); see also Marine Midland, 141 A.D.2d at 260. In particular, where a viable setoff... is asserted based upon the creditor s negligence in failing to liquidate collateral upon the guarantor s demand, such a waiver provision will not be enforced. Frank L. Marino, 74 A.D.2d at 620-21 (emphasis added); see 20
also Barclays, 174 A.D.2d at 965 ( [A] waiver provision will not be enforced to bar a viable setoff... based upon the creditor s negligence in failing to liquidate collateral.... ). Those authorities apply squarely here. Capital One breached its duty of care over the collateral by recklessly refusing to release its liens on the 48 medallions TFA s guarantors sought to sell to raise cash to substitute as collateral. Capital One also breached that duty by willfully destroying the value of the medallions and medallion loans. Those non-waivable breaches are a defense to liability or at a minimum, a setoff that reduces the amount of any judgment. 2 3. Capital One Cannot Insulate Itself from Liability for Its Own Willful Misconduct and Gross Negligence The waivers are also ineffective to bar defenses based on Capital One s gross negligence and willful misconduct. [I]t is New York s public policy that a party cannot insulate itself from damages caused by grossly negligent conduct. Abacus Fed. Sav. Bank v. ADT Servs., Inc., 18 N.Y.3d 675, 683 (2012). Agreements exculpating willful or grossly negligent acts are thus wholly void. Gross v. Sweet, 49 N.Y.2d 102, 106 (1979); see also Deutsche Alt-A Sec. Mortg. Loan Trust, Series 2006-OA1 v. DB Structured Prods., Inc., 958 F. Supp. 2d 488, 500-02 (S.D.N.Y. 2013); Deutsche Bank Nat l Trust Co. v. Decision One Mortg., LLC, No. 2013 L 5823, 2013 WL 6284438, at *5 (Ill. Cir. Ct. Nov. 19, 2013) (New York law). Capital One s actions were rife with gross negligence and willful misconduct. If New York public policy prohibits Capital One from insulating itself from liability for that misconduct, it surely also precludes Capital One from recovering damages from another party despite defenses that would otherwise preclude the claims. 2 The Loan and Security Agreement purports to waive Capital One s duty of care over collateral, at least absent gross negligence or willful misconduct. Corrigan Ex. 1 7.2(D), 7.4(c). Those provisions are unenforceable for the reasons above. Even if they were not, Capital One s actions amounted to gross negligence and willful misconduct here. 21