While North Carolina has never recognized a fiduciary relationship between lenders and borrowers, in June the North Carolina Business Court did recognized a new cause of action: breach of a duty to negotiate in good faith.[1] The Court confined its decision to the particular facts present in the case, leaving many questions unanswered regarding this type of claim. BB&T gave two loans totaling $5.275 million to an experienced real-estate developer. BB&T and the client had a long (30 year) borrower-lender relationship, which the Court characterized as “multifaceted and unique.”[2] The loans needed restructuring, so BB&T and the borrower spent over eight (8) months extensively negotiating their terms. The negotiations…
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The Line Between Cyber-bullying and Freedom of Speech
The intersection of free speech and safety on social media has been a hotly debated topic for many years. Because cyber-bullying takes many different forms, it is difficult to define. While several states criminalize cyber-bullying, the language of these statutes vary greatly and are just recently being challenged under First Amendment grounds. In June, the North Carolina Court of Appeals upheld the state’s cyber-bullying statute over a First Amendment challenge.[1] This decision is noteworthy because it contrasts a 2014 New York Court of Appeals decision striking down an Albany County cyber-bullying statute.[2] While the statutory language of these cyber-bullying statutes differ to some degree, the respective state…
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Removal of Corporate Trustees in North Carolina
The landscape of the American economy changed dramatically in the last decade, particularly due to the 2008 financial crisis. America’s largest commercial banks were forced to sell assets, reorganize, shake-up top management positions, and/or close altogether. As a result, trusts managed by corporate trustees experienced high turnover among trust officials and changes in corporate ownership. While there are many advantages to hiring a corporate trustee, unsatisfied beneficiaries find it difficult to remove them, absent a flagrant breach of duty or express language in the trust document. While many corporate trustee relationships are positive, some beneficiaries become frustrated by a lack of control when confronted with mediocre…
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Fired for Discrimination Complaint: Wrongful Termination Suit Fails to Survive Motion to Dismiss
The North Carolina Court of Appeals recently affirmed a trial court’s decision to grant a motion to dismiss a lawsuit when the Plaintiff, Lisa Green-Hayes (“Green-Hayes”) failed to properly state a claim for retaliatory wrongful termination.[1] In her complaint, Green-Hayes alleged she was subjected to the “discriminatory employment practices and … attitude of [defendant]” when he refused to hire women for certain positions, paid women and minorities less than other employees, and told her not to hire women based on certain physical criteria. Green-Hayes argued she was terminated from her employment in reprisal for engaging in the protected activity of complaining to the Defendant, Handcrafted Homes, LLC (“Handcrafted…
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Lindley Law Secures Order Striking Deed from Chain of Title
Earlier this month, Lindley Law secured an order declaring a contested deed null and void for lack of proper authentication. Representing the guardian of the estate of an elderly woman who was adjudicated incompetent, Lindley Law sought to protect her property interest from an attempted transfer by her son. Lindley Law alleged the deed was invalid under eight different legal theories, including fraud and forgery. In performing its due diligence, Lindley Law located the mother’s notarized signature from twenty-nine (29) other documents over a time period spanning more than twenty (20) years. The signature on the deed in question did not resemble the other known signatures, but a handwriting…
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NC Business Court Rules Former President and CEO Required to Bring Derivative Suit
The North Carolina Business Court issued an order last month disqualifying the individual plaintiff’s counsel from also representing a company, Bolier & Co., LLC (“Bolier”). The individual plaintiff, Christian Plasman, ostensibly hired his lawyer on behalf of himself and Bolier despite being a minority member of the company and without authorization from its majority member.[1] Bolier’s Operating Agreement stated Decca Furniture (USA), Inc. (“Decca”) owned a fifty-five percent (55%) majority ownership in Bolier, while Plasman owned the remaining forty-five percent (45%). The Business Court ruled Plasman, as a minority member, was not authorized to bring direct claims in Bolier’s name, but must “bring such…
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On Mandating Trustees’ Duty to Inform and Report
Twenty-three years ago, Clark “CB” Bagby, Jr. assumed control of his father’s already successful demolition and grading company and grew it into one of the largest in the Southeast. Only one of his four children showed any promise or passion for the family business, the others content to enjoy its fruits. CB, the sole shareholder of the eponymously named CBDG, Inc., is acutely aware of his need for succession planning and is equally determined to make it as painless for himself as possible. “I want them to know I’ve taken care of them, but I don’t want to be pestered about what I gave them, whether it’s enough, or…
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Creating a Successful Wealth Management Plan: Is a Corporate Trustee Right for You?
As the aging baby boomer generation reaches retirement age and beyond, their wealth management decisions will significantly influence the demand for fiduciary services. Twenty-first century technology makes it easier than ever to retrieve up-to-date financial information and self-help investment guides. Accordingly, baby boomers and subsequent generations are more financially sophisticated than their parents, and increasingly responsible for their own savings, income, and financial future. While many “boomers” feel comfortable managing their own assets, they are almost three times more likely to appoint a corporate trustee to manage wealth and inheritance for future generations.1 Motivations behind this decision include the increasing complexity of wealth management, reluctance…
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Kissing Cousins: Breach of Fiduciary Duty and Constructive Fraud
Breach of fiduciary duty and constructive fraud are probably the most conflated causes of action in fiduciary litigation. If you can’t readily discern between them, you’re in good company—many practitioners allege them in tandem as a single claim for relief, and a number of opinions from our appellate courts treat them likewise. Breach of fiduciary duty and constructive fraud are nonetheless distinguishable in two important ways. To prevail on a claim for breach of fiduciary duty, the plaintiff must prove: (1) the existence of a fiduciary relationship, (2) a breach of the duty owed, and (3) damages proximately caused by the breach. See Green v. Freeman, 367 N.C. 136,…
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Team Lindley Law Raises Over $30,000 for the Cystic Fibrosis Foundation
On April 18, 2015, Team Lindley Law hiked 30.1 miles of the Appalachian Trail along the North Carolina and Tennessee border to raise funds and awareness in the Cystic Fibrosis Foundation’s mission to find a cure. Cystic fibrosis is a genetic disease affecting the digestive and respiratory systems. Though medical advancements have been made, the cure for cystic fibrosis has yet to be discovered. Comprised of Trey Lindley, Rusty Gibbs, Al Murray, Ben Johnson, Jason Lindley, Greg Williams, Walker Miller (who agreed to carry bricks for donations of $250 and up), John Schmidt, and Skye McMahan, Team Lindley Law’s goal was to raise at least $30,000, or $1 for each…
