In Burcam Capital II, LLC v. Bank of America, N.A., et al, No. 13-00063-8 (Bankr. E.D. N.C. Oct. 1, 2013), an adversary proceeding filed in In re: Burcam Capital II, LLC, No. 12-04729-8, in the United States Bankruptcy Court for the Eastern District of North Carolina, the court held that the Debtor Plaintiff alleged sufficient facts to support a claim that its lender and the special servicer of the loan breached their duty to act in good faith and to deal fairly. First, with respect to the lender’s claim that it could not be held liable for the purported conduct of its special servicer, the court concluded that the claims against the lender should not be dismissed because the special servicer was acting as an agent for the bank. Second, with respect to the special servicer’s motion to dismiss, the court concluded that the Debtor Plaintiff had sufficiently alleged that the special servicer did not act in good faith or deal fairly based on the allegation that the special servicer obtained a below market appraisal for the purpose of preventing the Debtor from obtaining a loan modification so that it could acquire the property.
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