preliminary agreement in this case. The parties never entered into a commitment letter; there was only a Term Sheet; and that Term Sheet made it clear it did not establish a binding preliminary agreement.
The duty of good faith and fair dealing does not exist where there has been no preliminary agreement reached or where there is no contract between the parties. See Cavallaro v. Stratford Homes, Inc., 784 So.2d 619, 621 (Fla. Dist. Ct. App. 2001). In determining whether a preliminary commitment should be considered binding, the court must determine whether there was some expression of an intent to be bound. See Stouffer Hotel, 737 F. Supp. at 1569.
In this case, the Term Sheet, as a matter of law, did not create a preliminary agreement, and therefore, did not give rise to a duty of good faith and fair dealing for GMAC. The Term Sheet began with the statement that GMAC "is pleased to consider your request for financing . . . on the terms and conditions outlined below." The disclaimer in the Term Sheet stated clearly that "[t]his letter is not a commitment to lend, either express or implied, and does not impose any obligation on GMACCM to issue a commitment or to make the loan." (Term Sheet at 8.) The disclaimer further stated that the Term Sheet was intended only to "reflect the parties discussions to date and are subject to change." (Id.) The disclaimer also said that the "issuance of a commitment to make the Loan is subject to full and complete underwriting, diligence, documentation, and loan/credit committee approval." (Id.) This language reflects the fact that there was no commitment that GMAC would fund any loan or even issue any commitment letter and that there was no agreement to that effect. The Term Sheet was neither a preliminary agreement to fund any loan nor to enter into a commitment letter, which would have given rise to the duties that the plaintiffs contend were breached. There was no preliminary agreement requiring the parties to negotiate towards a loan that would be funded. The Commitment Letter may have constituted such a letter and may have imposed such a duty, but that letter was never issued. Under the express disclaimer contained in the Term Sheet, GMAC was under no obligation to negotiate in good faith, to have reasonable demands regarding the surety bond, or to give the loan to the GMAC loan committee. Absent such a duty, the defendant's motion for summary judgment is granted, with respect to the plaintiffs' claim for breach of the duty of good faith and fair dealing.
The defendant has also moved for summary judgment on the plaintiffs' claim for failure to exercise reasonable care in the processing of a loan application. The defendant has argued that there is no common law duty created between a potential borrower and a lender in loan transactions. The plaintiffs have not responded to this argument, and have not come forward with any authority indicating that such a duty does in fact exist. Such a duty would be inconsistent with the consistent Florida cases that require that the lender be bound by a written agreement before being under a duty to lend. Therefore, this Count should be dismissed.
In addition, as noted above, claims for negligence can only be maintained under Florida law if those claims are based on acts that are separate from the acts alleged to be the basis of a claim for breach of contract. See Argonaut Dev., 150 F. Supp.2d at 1363. The plaintiffs' claim for negligence in connection with the processing of the loan application is based on the same facts as their breach of contract claim, because the plaintiffs have alleged that the defendant imposed unfair conditions during the course of negotiations and that the defendant breached its duty by failing to fund the loan. (See Second Am. Compl. ¶¶ 96, 102.) The plaintiffs have simply attempted to repackage their breach of contract allegations, which have consistently alleged that the defendant did not act appropriately during the course of the transaction and thereby breached various obligations owed to the plaintiffs, into a claim for negligence. The plaintiffs may not maintain such a claim where they have alleged a breach of contract claim based on the same fundamental facts, transactions, and representations. The defendant's motion for summary judgment on this claim is granted.
For the reasons explained above, the defendant's motion for summary judgment is granted. In addition, the plaintiffs' motion to strike is denied as moot. The Clerk is directed to enter Judgment dismissing the Amended Complaint with prejudice and closing this case.