Practice Areas - Creditors' Rights

 FWH&L has vast experience representing financial institutions including:  banks, debt-buyers, mortgage processors and equipment lessors in litigation arising from loan workouts, foreclosures, delinquent loans and leases, bankruptcy and other related litigation matters involving Creditors’ Rights.  The basis of any Creditors’ Rights matter and successfully litigating same depends upon the collateral, the perfection of the lender’s liens and priority over any other lien holders.  Therefore, the very first piece of analysis that must be performed in a Creditors’ Rights litigation matter is an analysis of the collateral and perfection of the lender’s liens and its priority.  If the lender’s liens are perfected, the next step in the analysis is examining the priority of the lender’s liens.  Priority of liens is based upon the Uniform Commercial Code and Common Law.  Bankruptcy can often impact lien priority as well.

 

Anthony Lamm has approximately thirty (30) years of secured lending experience and is well versed in Article 9, Article 2A, Bankruptcy and real property law – the back-drop of secured lending.  This experience comes into play with lien priority disputes where Mr. Lamm excels.  Such contested lien priority disputes can involve landlord-tenant claims v. equipment purchase money security interests (“PMSI”), general blanket liens v. PMSI liens, warehousemen’s liens and storage liens v. assets of the borrower and equipment and, first, second and third mortgages on real estate versus judgment creditors and tax liens.  The real estate lien priority contested matters can be resolved by title company litigation if the lender or borrower obtained title insurance. 

 

Creditors’ rights remedies are provided in either the Remedies section of the loan/lease agreement or in the Default section.  However the issues involved are common law, equity or civil law and can be based on the Uniform Commercial Code or Common Law.  The Borrower’s rights derive from the affirmative covenants and representations of the lender.  Contrasted against the lender’s remedies, we arrive at the conflicts between lender and borrower.  Rooted between these are the rights of the borrower vis à vis the collateral.  Some self-help measures apply.

 

The litigation can be handled on an hourly basis, flat fee or contingency fee.  FWH&L is fortunate to have a named partner, Robert Walton, handling creditors’ rights on a contingency basis and Anthony Lamm handling flat fee and hourly matters.  One of the very common area of creditors’ rights is the Forbearance Agreement whereby litigation is stalled and different repayment terms are established and additional collateral is provided.  Any lien priority documentation errors can be corrected in the Forbearance Agreement to reassert perfection of liens.

 

Creditors’ rights is the oldest basic principle of collection law and the rights and remedies of the lender are asserted against the borrower.  FWH&L has four associates, two equity shareholders and two paralegals in this very strong department.  When a Forbearance Agreement cannot be reached and a matter must be tried to its conclusion, two of the FWH&L litigation attorneys are skilled at taking the matter to trial. 

Representative Matters:

  • Bank financing of $10 Million dollars to Debt-buying company and Servicer-Collection Agency: represented lender to determine priority of lender’s secured status in consigned collection accounts owned by creditors other than borrower versus secured status in borrower-owned accounts and examine and pursue remedies in state and/or bankruptcy court.
  • Bank group loan of $150 Million dollars to public equipment lessor and business credit company: engaged as Special Equipment Leasing counsel to investigate fraud in multiple pledges of same assets and receivables.
  • Lessor to Lender sale of master equipment lease schedules without recourse challenged by purchaser: engaged as purchaser’s counsel to develop theories of breach of representation and warranties where Trustee in bankruptcy sought recovery of payments made because collateral had insignificant value compared to payments of lease.
  • Obtained summary judgment on behalf of an auto parts distribution company in a dispute against a competitor over which company owned the intellectual property rights to marketing source codes.
  • Represented individuals in shareholder derivate suits and fraud matters as a result of the corporation’s freezing out of minority shareholders.
  • Represented banks in numerous check fraud cases where the bank was accused of not following proper check cashing procedures pursuant to Articles 3 and 4 of the Uniform Commercial Code.
  • Delinquent Lease Enforcement

 

Highly unusual is FWH&L’s Creditors’ Rights Group which has two facets: a sophisticated lease documentation practice and a knowledgeable and experienced enforcement team. The enforcement team has lawyers with in-depth Article 2A knowledge, combined with savvy Creditors’ Rights experience to handle Writs of Seizure for the recovery of Equipment and Motions for Summary Judgment based on the underlying premise of all Equipment Leasing contracts, that the Lease contains a “hell or high-water” clause and is enforceable for its full term. Based on a Pennsylvania, New Jersey or Delaware jurisdiction clause, FWH&L often represents its clients handling a national portfolio of all the Leases starting suit in Pennsylvania, New Jersey or Delaware and serving the complaints through a National process-server.  Depending on the nature of the defense and obtaining a judgment through Default or Motion, we domesticate the judgment in the foreign jurisdiction through our own attorney network. 

 

Representative matters:

  • Represented multiple Lessors in the suit and enforcement of delinquent equipment leases with Pennsylvania, New Jersey and Delaware jurisdiction provisions; initiated suit and obtained judgment in 800-1000 local jurisdiction suits during past three years.
  • Appeared in 200 contested Writ of Seizure hearings under Pennsylvania fast-track rule for Replevin Order.
  • Engaged as principal counsel on behalf of equipment lessor with significant exposure in collection of accounts related to NorVergence and other significant fraud cases.
  • Mortgage Foreclosures/Lender Liability/Quiet Title Litigation

 

FWH&L’s depth of experience in litigation in connection with mortgage foreclosure, lender liability and title claims, involving both residential and commercial property, is second to none. Our lawyers have decades of experience prosecuting mortgage foreclosures, defending financial institutions in claims arising from mortgage foreclosures and in other lender liability actions and in both the prosecution and defense of title claims. Our expertise in these areas derives in part from our deep knowledge of the lending process, including our vast experience representing lenders in documenting loans, as well as all aspects of loan collection. Even before the “housing crisis” and certainly since then, FWH&L has been successfully and efficiently handling the array of claims arising out of mortgage loans and other actions involving lender liability and actions to quiet title.  We have a proven track record of achieving favorable results for our clients. We know in detail the legal issues and claims that arise, and have also handled countless cases involving claims under consumer protection laws such as the Fair Credit Reporting Act, the Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Debt Collection Practices Act, the Real Estate Settlement Procedures Act, and the Home Ownership and Equity Protection Act. Our outstanding bankruptcy, commercial litigation and transactional practice groups provide additional support to more complex cases.

 

Representative Matters:

 

  • Over 500 successful mortgage foreclosures and ejectments of both residential and commercial properties across Pennsylvania.
  • Successfully defended mortgage lenders and title companies in mortgage fraud disputes against home sellers who claimed fraud and violations of the Real Estate Settlement Procedures Act.
  • Obtained summary judgment on behalf of a bank against a claim that the bank violated Pennsylvania’s Mortgage Satisfaction Act by not timely filing a satisfaction of mortgage after the mortgage debt was paid.

 

Attorneys:

 

Emmett Fitzpatrick

Matthew A. Foley

Anthony L. Lamm

Stephen Levin

Thomas P. Stevens

Robert E. Walton