Can a borrower pursue a lender who purchased the assets of the original lender which failed to properly disburse the borrower’s funds?

Facts: A borrower obtained a construction loan from a lender. The lender did not properly disburse construction funds, delaying construction and causing the borrower to incur increased costs. Later, the lender went into Federal Deposit Insurance Corporation (FDIC) receivership and its assets including all loans and commitments were purchased by a second lender under a purchase and assumption (P&A) agreement. An abridged version of the P&A agreement was published on the FDIC’s website, stating the second lender only purchased the failed lender’s assets and did not assume liabilities associated with borrower claims arising out of the failed lender’s lending activities.

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