HomeWebcastLender Liability: Avoiding Claims and Other Risks in 2017 and Beyond
Online CLE Lender Liability CLE

Lender Liability: Avoiding Claims and Other Risks in 2017 and Beyond

Live Webcast Date: Friday, March 31, 2017 from 3:00 pm to 5:00 pm (ET)
CLE Bankruptcy LawRecording

Online CLE Lender Liability

Join us for this Knowledge Group Online CLE Lender Liability Webinar. Suits against lending institutions have proliferated of late, based on a variety of liability theories. Prime examples are the well-publicized predatory lending litigations against Bank of America, Citigroup and Wells Fargo, alleging minorities were targeted for risky, high-interest loans doomed for default. However, commercial lenders can also face legal actions when seeking to enforce their rights against business entities, such as claims of breach of contract or of fiduciary duty; inequitable or fraudulent conduct; and violations of federal or state law. Regardless of the theory of liability, the stakes for lenders can be very high, and developing and implementing sound business practices can go a long way to reduce the risk of adverse judgments.

In this Webcast, a panel of thought leaders and practitioners assembled by The Knowledge Group will give an overview of the latest trends in lender liability litigation and offer insights into developing strategic practices to help mitigate the risk of legal challenges.

Key topics include:

  • Lender Liability Theories
  • Key Cases
  • Contractual Protections
  • Risk Avoidance and Mitigation
  • Best Practices

Agenda

SEGMENT 1:
Paul B. Kerlin, Shareholder
Greenberg Traurig, LLP

What Is a “Lender Liability” Claim?

Types of Claims:

  • Breach of contract/oral contract or oral modification/bad faith
  • Breach of fiduciary duty/partnership
  • Fraud/duress/loan-to-own
  • Bankruptcy and bankruptcy-related claims
    • Lien challenge
    • Fraudulent conveyance
    • Equitable subordination

SEGMENT 2:
Natan Hamerman, Special Counsel
Kramer Levin Naftalis & Frankel LLP

How To Protect Against Lender Liability Claims

Key Contractual Provisions:

  • No oral modification
  • No waiver
  • Specific merger and integration clauses
  • Damages waiver/limitation of liability clauses
    • No consequential damages or no damages whatsoever
    • Specific performance/declaratory relief as sole remedy
  • No defenses to enforcement
  • No partnership
  • Bankruptcy-remote related provisions
    • S.A.R.E. (for real estate loans)
    • Operating agreement limitations
    • Independent director
  • Bad-boy guaranty

SEGMENT 3:
John D. North, Partner
Greenbaum Rowe Smith & Davis LLP

Litigation: Lender Liability Theories, Defense and Counterclaims

  • Claims Arising from Loan Origination
  • Claims arising from loan administration
  • Claims arising post-default

SEGMENT 4:
Dennis P. Rawlinson, Firm Chair, Partner
Miller Nash Graham & Dunn LLP

Best Practices to Avoid Lender Liability Claims

  • Avoid Lender Promises to "Work it Out"
  • Confirm Discussions in Writing
  • Give Adequate Notice and Avoid Sudden Actions
  • Avoid Exercising Control of Borrower's Business
  • Be Professional - Communications Will Be Used Against You
  • Seek Legal Advice Early and Often
    • Reservation of rights letters and default notices
    • Pre-negotiation agreement
      • Clauses
        • Discussions not final until memorialized in writing
        • No defenses to enforcement
        • Acknowledgment of default
        • Acknowledgment of full force and effect
        • Releases (past and future)
      • Consideration
    • Document retention
    • Email etiquette
      • External communications
      • Internal communications

Who Should Attend

  • Attorneys in Banking and Finance
  • Class Action Litigators
  • In-house Counsel
  • General Counsel
  • Financial Services Firms
  • Bank and Financial Institution Executives
  • Chief Financial Officer
  • Other interested and related professionals

Online CLE Lender Liability

SEGMENT 1:
Paul B. Kerlin, Shareholder
Greenberg Traurig, LLP

What Is a “Lender Liability” Claim?

Types of Claims:

  • Breach of contract/oral contract or oral modification/bad faith
  • Breach of fiduciary duty/partnership
  • Fraud/duress/loan-to-own
  • Bankruptcy and bankruptcy-related claims
    • Lien challenge
    • Fraudulent conveyance
    • Equitable subordination

SEGMENT 2:
Natan Hamerman, Special Counsel
Kramer Levin Naftalis & Frankel LLP

How To Protect Against Lender Liability Claims

Key Contractual Provisions:

  • No oral modification
  • No waiver
  • Specific merger and integration clauses
  • Damages waiver/limitation of liability clauses
    • No consequential damages or no damages whatsoever
    • Specific performance/declaratory relief as sole remedy
  • No defenses to enforcement
  • No partnership
  • Bankruptcy-remote related provisions
    • S.A.R.E. (for real estate loans)
    • Operating agreement limitations
    • Independent director
  • Bad-boy guaranty

SEGMENT 3:
John D. North, Partner
Greenbaum Rowe Smith & Davis LLP

Litigation: Lender Liability Theories, Defense and Counterclaims

  • Claims Arising from Loan Origination
  • Claims arising from loan administration
  • Claims arising post-default

SEGMENT 4:
Dennis P. Rawlinson, Firm Chair, Partner
Miller Nash Graham & Dunn LLP

Best Practices to Avoid Lender Liability Claims

  • Avoid Lender Promises to "Work it Out"
  • Confirm Discussions in Writing
  • Give Adequate Notice and Avoid Sudden Actions
  • Avoid Exercising Control of Borrower's Business
  • Be Professional - Communications Will Be Used Against You
  • Seek Legal Advice Early and Often
    • Reservation of rights letters and default notices
    • Pre-negotiation agreement
      • Clauses
        • Discussions not final until memorialized in writing
        • No defenses to enforcement
        • Acknowledgment of default
        • Acknowledgment of full force and effect
        • Releases (past and future)
      • Consideration
    • Document retention
    • Email etiquette
      • External communications
      • Internal communications

Online CLE Lender Liability

Online CLE Lender Liability

Natan HamermanSpecial CounselKramer Levin Naftalis & Frankel LLP

Natan Hamerman is an experienced litigator and trial lawyer who represents financial institutions and developers in a comprehensive range of real estate and bankruptcy disputes.

Mr. Hamerman recently represented hard-money lender Gamma Real Estate and certain of its affiliates in a trial in Bankruptcy Court in which Gamma successfully defended itself against a host of lender liability-style claims, and was able to enforce its $147 million loan agreement.  The case was tried to conclusion within four months of its filing. 

Mr. Hamerman directly advises lenders’ in-house counsel and business personnel on strategy and implementation of comprehensive plans to maximize recovery of troubled real estate loans. 

He litigates foreclosure actions, and actions to enforce guarantees, pledge agreements and other security instruments. 

He advises clients involved in acquisitions of distressed loans in so-called “loan-to-own” situations. 

Online CLE Lender Liability

John D. NorthPartnerGreenbaum Rowe Smith & Davis LLP

Mr. North focuses his practice in litigation, with an emphasis on trial practice. He has tried jury and non-jury cases in state and federal courts, including over 75 jury cases to verdict. He is certified by the Supreme Court of New Jersey as a Civil Trial Attorney. Mr. North’s practice concentrates in commercial and banking litigation, particularly in matters involving negotiable instruments and financial fraud. Mr. North has represented banks in class actions alleging claims under New Jersey and federal consumer legislation. A significant portion of Mr. North’s practice is devoted to the defense of catastrophic injury and other high exposure cases in the areas of negligence, public entity liability, construction, and professional liability, including the defense of attorneys, accountants and insurance brokers. He also maintains a personal injury practice limited to the representation of plaintiffs in medical malpractice and other cases involving significant injuries and complex liability issues. Mr. North is the author of the evidence treatise A Trial Lawyer’s Strategic Guide to the New Jersey Rules of Evidence, and is the only New Jersey lawyer selected as a principal author of Business and Commercial Litigation in Federal Courts, contributing the chapter in the treatise devoted to Medical Malpractice.  

Online CLE Lender Liability

Dennis P. RawlinsonFirm Chair, PartnerMiller Nash Graham & Dunn LLP

Dennis P. Rawlinson concentrates his practice on commercial and "Bet-the-Company" litigation.  He has handled more than 150 trials and arbitrations, including more than 50 trials to verdict on a wide range of commercial subjects, including lender liability claims.  Recent cases include the largest recovery in the 140-year history of the law firm plus corporate governance relief arising from two federal cases in the Western District of Oklahoma.  Denny has had multimillion-dollar recoveries in construction and design, good faith and fair dealing, fraud, and a number of other commercial cases.

Denny is a "Top List" Super Lawyer for Business Litigation for the state of Oregon, including being recognized on multiple occasions as one of Oregon's Top 10 Lawyers.  Denny has been recognized by a number of professional organizations for his commercial trial litigation skills.  Denny is a frequent writer and speaker on commercial trial topics.

Online CLE Lender Liability

Paul B. KerlinShareholderGreenberg Traurig, LLP

Paul B. Kerlin is a Greenberg Traurig shareholder in the Houston office.  His areas of concentration include commercial and residential lender liability claims, breach of contract and false advertising and defamation.  He also represents clients in mass torts and products liability matters.  Paul has served as lead counsel for a national bank defending lender liability claims and prosecuting deficiency actions throughout Texas in federal and state court with a loan portfolio of over 900,000 mortgages.  Representative cases include defense of holder of notes for wrongful foreclosure, improperly obtained and unconscionable lender-placed insurance, breach of fiduciary duty claims against loan servicer and  violations of the Fair Credit Reporting Act (FCRA) 15 U.S.C. § 1681 et seq., claims premised on erroneous reporting by mortgage servicer.   

Online CLE Lender Liability

Course Level:
   Intermediate

Advance Preparation:
   Print and review course materials

Method Of Presentation:
   On-demand Webcast

Prerequisite:
   NONE

Course Code:
   146219

NASBA Field of Study:
   Management Services - Technical

NY Category of CLE Credit:
   Areas of Professional Practice

Total Credits:
    2.0 CLE

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About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

Kramer Levin Naftalis & Frankel LLP is a premier, full-service law firm with offices in New York, Silicon Valley and Paris.  Firm lawyers are leading practitioners in their respective fields, including, in particular, the fields of real-estate, bankruptcy and litigation.

Website: https://www.kramerlevin.com/

Greenbaum, Rowe, Smith & Davis is a multi-practice law firm serving local, regional and national clients. As one of New Jersey’s leading law firms, the firm brings diverse and comprehensive expertise to the representation of both businesses and individuals. For over 100 years, the firm has earned the trust and loyalty of clients by providing sophisticated, creative and cost-effective representation through collaborative teamwork, proactive legal strategies, attention to detail and relationship-oriented service.

Website: https://www.greenbaumlaw.com/

Miller Nash Graham & Dunn LLP is a Pacific Northwest law firm with two of the largest offices in the two leading cities in the Pacific Northwest, Seattle and Portland.  The firm has more than a 140-year proud history specializing in trial work and representation of financial institutions.  The firm additionally provides a full array of business and public legal services.

Website: https://www.millernash.com/

Greenberg Traurig, LLP (GTLaw) has more than 2,000 attorneys in 38 offices in the United States, Latin America, Europe, Asia and the Middle East and is celebrating its 50th anniversary. A single entity worldwide, GTLaw has been recognized for its philanthropic giving, was named the second largest firm in the U.S. by Law360 in 2016, and among the Top 20 on the 2016 Am Law Global 100. Web: www.gtlaw.com Twitter: @GT_Law.

Website: https://www.gtlaw.com/

Natan Hamerman is an experienced litigator and trial lawyer who represents financial institutions and developers in a comprehensive range of real estate and bankruptcy disputes.

Mr. Hamerman recently represented hard-money lender Gamma Real Estate and certain of its affiliates in a trial in Bankruptcy Court in which Gamma successfully defended itself against a host of lender liability-style claims, and was able to enforce its $147 million loan agreement.  The case was tried to conclusion within four months of its filing. 

Mr. Hamerman directly advises lenders’ in-house counsel and business personnel on strategy and implementation of comprehensive plans to maximize recovery of troubled real estate loans. 

He litigates foreclosure actions, and actions to enforce guarantees, pledge agreements and other security instruments. 

He advises clients involved in acquisitions of distressed loans in so-called “loan-to-own” situations. 

Mr. North focuses his practice in litigation, with an emphasis on trial practice. He has tried jury and non-jury cases in state and federal courts, including over 75 jury cases to verdict. He is certified by the Supreme Court of New Jersey as a Civil Trial Attorney. Mr. North’s practice concentrates in commercial and banking litigation, particularly in matters involving negotiable instruments and financial fraud. Mr. North has represented banks in class actions alleging claims under New Jersey and federal consumer legislation. A significant portion of Mr. North’s practice is devoted to the defense of catastrophic injury and other high exposure cases in the areas of negligence, public entity liability, construction, and professional liability, including the defense of attorneys, accountants and insurance brokers. He also maintains a personal injury practice limited to the representation of plaintiffs in medical malpractice and other cases involving significant injuries and complex liability issues. Mr. North is the author of the evidence treatise A Trial Lawyer’s Strategic Guide to the New Jersey Rules of Evidence, and is the only New Jersey lawyer selected as a principal author of Business and Commercial Litigation in Federal Courts, contributing the chapter in the treatise devoted to Medical Malpractice.  

Dennis P. Rawlinson concentrates his practice on commercial and "Bet-the-Company" litigation.  He has handled more than 150 trials and arbitrations, including more than 50 trials to verdict on a wide range of commercial subjects, including lender liability claims.  Recent cases include the largest recovery in the 140-year history of the law firm plus corporate governance relief arising from two federal cases in the Western District of Oklahoma.  Denny has had multimillion-dollar recoveries in construction and design, good faith and fair dealing, fraud, and a number of other commercial cases.

Denny is a "Top List" Super Lawyer for Business Litigation for the state of Oregon, including being recognized on multiple occasions as one of Oregon's Top 10 Lawyers.  Denny has been recognized by a number of professional organizations for his commercial trial litigation skills.  Denny is a frequent writer and speaker on commercial trial topics.

Paul B. Kerlin is a Greenberg Traurig shareholder in the Houston office.  His areas of concentration include commercial and residential lender liability claims, breach of contract and false advertising and defamation.  He also represents clients in mass torts and products liability matters.  Paul has served as lead counsel for a national bank defending lender liability claims and prosecuting deficiency actions throughout Texas in federal and state court with a loan portfolio of over 900,000 mortgages.  Representative cases include defense of holder of notes for wrongful foreclosure, improperly obtained and unconscionable lender-placed insurance, breach of fiduciary duty claims against loan servicer and  violations of the Fair Credit Reporting Act (FCRA) 15 U.S.C. § 1681 et seq., claims premised on erroneous reporting by mortgage servicer.   

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