Wednesday, January 15, 2014

Title Company As Trustee In Breach Of Fiduciary Duty Settlement Signifies A Payment In Full

Title Company As Trustee In Breach Of Fiduciary Duty
Settlement Signifies A Payment In Full

The Transaction Was Closed, Settled And Canceled

What exactly was borrowed?
Where is the thing borrowed?
Who has custody of the thing borrowed?

Injuria propria non cadet in beneficium facientis defined: One's own wrong shall not fall to the advantage of him that does it. A man will not be allowed to derive benefit from his own wrongful act. Black’s Law Dictionary Sixth Edition (page 785)

Injuria servi dominum pertingit defined: The master is liable for injury done by his servant. Black’s Law Dictionary Sixth Edition (page 785)

Whereas defined pursuant to: Immunity from attachment and execution of property of a foreign state: Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter.

IN KIND defined: Of the same species or category. In the same kind, class, or genus. A loan is returned "in kind" when not the identical article, but one corresponding and equivalent to it, is given to the lender. See Distribution in kind; In genere; Like-kind exchange. Black’s Law Dictionary Sixth Edition (page 787)

IN GENERE defined: In kind; in the same genus 01' class; the same in quantity and quality, but not individually the same. For example, laws on the same subject. See In pari materia. In the Roman law, things which may be given or restored in genere are distinguished from such as must be given or restored in specie; that is, identically. Black’s Law Dictionary Sixth Edition (page 781)

BORROW defined: v. bor·rowed, bor·row·ing, bor·rows v.tr. 1. To obtain or receive (something) on loan with the promise or understanding of returning it or its equivalent. The American Heritage® Dictionary of the English Language, Fourth Edition

BORROWER defined: contracts. He to whom a thing is lent at his request.2. The contract of loan confers rights, and imposes duties on the borrower' 1. In general, he has the right to use the thing borrowed, during the time and for the purpose intended between the parties; the right of using the thing bailed, is strictly confined to the use, expressed or implied, in the particular transaction, and by any excess, the borrower will make himself responsible. Jones' Bailment, 58 6 Mass. R. 104; Cro. Jac. 244; 2 Ld. Raym. 909; Ayl. Pand. B. 4, t. 16, p. 517; Domat, B. 1, t. 5, Sec. 2, n. 10, 11, 12; Dio. 13, 6, 18 Poth. Pret a Usage, c. 2, Sec. 1, n. 22; 2 Bulst. 306; Ersk. Pr. Laws of ScotI. B. 3, t. 1, Sec. 9; 1 Const. Rep. So. Car. 121 Bracton, Lib. 3, c. 2, Sec. l, p. 99. The loan is considered strictly personal, unless, from other circumstances, a different intention may be presumed. 1 Mod. Rep. 210;  S. C. 3 Salk. 271. 3. - 2. The borrower is bound to take extraordinary care of the thing borrowed; to use it according to the intention of the lender, to restore it in proper time; to restore it in a proper condition. Of these, in their order. 4. - 1. The loan being gratuitous, the borrower is bound to extraordinary diligence, and is responsible for slight neglect in relation to the thing loaned. 2 Ld. Raym. 909, 916 Jones on Bailm. 65; 1 Dane's Abr. c. 17, art. 12; Dig. 44, 73 1, 4; Poth. Pret. a Usage, c. 2, Sec. 2, art. 21, n. 48. 5. - 2. The use is to be according to the condition of the loan; if there is an excess in the nature, time, manner, or quantity of the use, beyond what may be inferred to be within the intention of the parties, the borrower will be responsible, not only for any damages occasioned by the excess, but even for losses by accidents, which could not be foreseen or guarded against. 2 Ld. Raym. 909; Jones on Bailm. 68, 69. 6. - 3. The borrower is bound to make a return of the thing loaned, at the time, in the place, and in the manner contemplated by the contract.. Domat, Liv. 1, t. 5, Sec. 1, n. 11; Dig. 13, 6, 5, 17. If the borrower does not return the thing at the proper time, he is deemed to be in default, and is generally responsible for all injuries, even for accidents. Jones on Bailm. 70; Pothier, Pret a Usage , ch. 2, Sec. 3, art. 2, n. 60; Civil Code Of Louis. art. 2870; Code Civil, art. 1881; Ersk. Inst. B. 3, t. 1, Sec. 22 Ersk. Pr. Laws of Scotl. B. 3, t. 1, Sec. 9. 7. - 4. As to the condition in which the thing is to be restored. The borrower not being liable for any loss or deterioration of the thing, unless caused by his own neglect of duty, it follows, that it is sufficient if he returns it in the proper manner, and at the proper time, however much it may be deteriorated from accidental or other causes, not connected with any such neglect. Story on Bailm. eh. 4, Sec. 268. See, generally, Story on Bailm. oh. 4; Poth. Pret A Usage; 2 Kent, Com. 446-449; Vin. Abr. Bailment, B 6; Bac. Abr. Bailment; Civil Code of Louis. art. 2869-2876; 1 Bouv. Inst. n. 1078-1090. Vide Lender. A Law Dictionary Adapted To The Constitution and Laws of the United States of America and of the Several States of the American Union by John Bouvier Revised Sixth Edition, 1856

See: http://www.scribd.com/doc/199896800/Title-Company-as-Trustee-in-Breach-of-Fiduciary-Duty

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