Lender Liability: Avoiding Claims and Other Risks in 2017 and Beyond
Overview:
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 LIVE 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
- Clauses
- 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
Natan Hamerman is an experienced litigator and trial lawyer who represents financial institutions and developers in a comprehensive range of …
Mr. North focuses his practice in litigation, with an emphasis on trial practice. He has tried jury and non-jury cases …
Dennis P. Rawlinson concentrates his practice on commercial and "Bet-the-Company" litigation. He has handled more than 150 trials and arbitrations, …
Paul B. Kerlin is a Greenberg Traurig shareholder in the Houston office. His areas of concentration include commercial and residential …
Course Level:
Intermediate
Advance Preparation:
Print and review course materials
Method of Presentation:
On-demand Webcast (CLE)
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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SPEAKERS' FIRMS:
About Kramer Levin Naftalis & Frankel LLP
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: http://www.kramerlevin.com/
About Greenbaum Rowe Smith & Davis LLP
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: http://www.greenbaumlaw.com/
About Miller Nash Graham & Dunn LLP
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: http://www.millernash.com/
About Greenberg Traurig, LLP
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: http://www.gtlaw.com/