- 27 - titioners rely are not established by the record and/or are irrelevant to a determination of whether such an agreement may be so inferred. We note initially that the Bank had no duty to notify Mr. McDaniel as a guarantor of the 1989 note that the partnership had not timely made the balloon payment under that note. Nor was the Bank required to notify Mr. McDaniel as a guarantor of any default under the 1989 note.5 Furthermore, contrary to petition- ers' contention, the Bank exercised its right under the 1989 note to delay collection of the balloon payment and did not materially change the terms of, or forgo its right to receive the balloon payment under, that note. Indeed, after the Bank notified Second Street in April 1994 that the Second Street loan was in default, the partnership obtained financing from Northern Trust, which it used in October 1994 to pay off that loan. In addition, Mr. Palermo's testimony that the topic of Mr. McDaniel's liability did not arise in his discussions during 1993 with personnel of 5 It is noteworthy that Mr. Palermo did inform Mr. McDaniel that the balloon payment had not been timely made, at least some time shortly before Mr. McDaniel wrote Mr. Martens on Apr. 26, 1994, with respect to the Apr. 21, 1994 letter that Mr. Martens had sent to Mr. Palermo informing him that NationsBank/Amresco considered the 1989 note to be in default. Since Mr. McDaniel continued to see Mr. Palermo on a daily basis throughout the years at issue after he assigned his partnership interest to Mr. Palermo in May 1992, we believe that it is likely that Mr. McDaniel was aware well before April 1994 that Second Street had not made the balloon payment.Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Next
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