Thursday, September 1, 2005

Calculating Loss in a Loan Case

Even with the Federal Sentencing Guidelines now advisory, an issue that continues to vex courts is calculating the loss in cases arising from false statements related to loans.  Is the loss the total amount of the loan, what the assets would have been worth at the time of the false statement, the defendant's intended loss, or some mixture of all three?  An interesting opinion from the Seventh Circuit in United States v. Berheide (here) tries to come to grips with some of these issues in a situation involving a defendant's false statement to get the bank to forbear calling his loan.  If the underlying business securing the loan was worthless, then how did his false statement harm the bank when it wasn't going to get anything any, and didn't advance any more money on the loan?  Gee, isn't math fun.  The district court simply used the total loan amount as the loss, and in a show of great courage, the appellate court remands the case to the district court to recalculate the loss because the loan amount could not be the proper figure. (ph)

Fraud, Judicial Opinions, Sentencing | Permalink

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Tracked on Dec 8, 2005 9:30:56 AM