HomeWebcastLender Liability in Commercial and Residential Foreclosures and under the Perishable Agricultural Commodities Act
Online CLE Lender Liability CLE

Lender Liability in Commercial and Residential Foreclosures and under the Perishable Agricultural Commodities Act

Live Webcast Date: Wednesday, October 16, 2019 from 3:00 pm to 5:00 pm (ET)
Commercial/Consumer Law (CLE)Recording

Online CLE Lender Liability

Join us for this Knowledge Group Online CLE Lender Liability Webinar. Lender liability, in the context of foreclosing a mortgage, can arise in a number of ways, from inadequate evidence to support the cause of action to defenses to counterclaims alleging various state and federal causes of action. This program will address ways in which lenders can minimize their liability, including:

  • Federal Court Jurisdiction
    • Proof of debt and business records issues
    • Rooker Feldman doctrine
    • Removal rights
    • Diversity jurisdiction to foreclose a mortgage;
    • Spokeo standing damages under federal causes of action (FDCPA, FCRA, TILA)
    • Appeals and stay issues
  • Bankruptcy
    • Preserving setoff rights on discharged debts against affirmative claims
  • Loss Mitigation litigation
  • Consumer fee applications under state law
  • TILA After Jesinoski

The Perishable Agricultural Commodities Act (PACA) creates a statutory trust in favor of unpaid suppliers of perishable fruits and vegetables who sell produce on credit to marketing companies, wholesalers, distributors, and even grocers and restaurants. The PACA subordinates a lender’s security interests in the trust assets of the buyer of the produce until the produce supplier has been paid in full for the produce sales. If the lender is paid first while produce suppliers are unpaid, a lender may be required to disgorge any monies received from its production company customer, not unless the lender can prove it was a bona fide purchaser for value.

This program will address the general nature and attributes of the PACA trust, the potential lender liability under the PACA for receipt of trust assets, the recovery of damages and other relief under the PACA, and practical steps for a lender to successfully do business with customers in the multi-billion dollar U.S. produce industry without unknowingly incurring lender liability under this important, industry-specific law.

Agenda

SEGMENT 1:
Geoffrey K. Milne, Managing Litigation Partner
McCalla Raymer Leibert Pierce, LLC
  • Federal Court Jurisdiction
    • proof of debt and business records issues
    • Rooker Feldman doctrine;
    • Removal rights;
    • diversity jurisdiction to foreclose a mortgage;
    • Spokeo, standing and damages under federal causes of action (FDCPA, FCRA, TILA)
    • Appeals and stay issues
  • Bankruptcy
    • preserving setoff rights on discharged debts against affirmative claims
  • Loss Mitigation litigation
  • Consumer fee applications under state law
  • TILA After Jesinoski

SEGMENT 2:
Tim D. Henkel, Partner
Henkel & Cohen, P.A.
  • What is the PACA Trust and who are the beneficiaries of the Trust?
  • The Trust’s impact upon secured creditors – secured interests are subordinated to the beneficial interests of unpaid produce suppliers; and the remedies available against the lender for a trustee’s dissipation of the assets of the PACA Trust.
  • The Lender’s defenses to liability, consisting primarily of proof that the lender is a bona fide purchaser for value of the PACA Trust assets. Also, the important and central requirement in the BFP defense that the lender does not know nor should have known that the purchaser of produce was not violating the Trust by making payments to the lender, including when a duty of reasonable inquiry is triggered.
  • How lenders can effectively deal with the PACA Trust and reasonably assure they will not be found liable for violations of the PACA Trust.

Who Should Attend

  • Loan Officers
  • Loan Operations Staff
  • Collection Personnel
  • Lawyers in Banking and Finance
  • General Counsel
  • Bank and Financial Institution Executives
  • Chief Financial Officers
  • Financial Services Firms

Preview Podcast

Please click the podcast below to hear the speakers discuss the key topics for this webcast.

Online CLE Lender Liability

SEGMENT 1:
Geoffrey K. Milne, Managing Litigation Partner
McCalla Raymer Leibert Pierce, LLC
  • Federal Court Jurisdiction
    • proof of debt and business records issues
    • Rooker Feldman doctrine;
    • Removal rights;
    • diversity jurisdiction to foreclose a mortgage;
    • Spokeo, standing and damages under federal causes of action (FDCPA, FCRA, TILA)
    • Appeals and stay issues
  • Bankruptcy
    • preserving setoff rights on discharged debts against affirmative claims
  • Loss Mitigation litigation
  • Consumer fee applications under state law
  • TILA After Jesinoski

SEGMENT 2:
Tim D. Henkel, Partner
Henkel & Cohen, P.A.
  • What is the PACA Trust and who are the beneficiaries of the Trust?
  • The Trust’s impact upon secured creditors – secured interests are subordinated to the beneficial interests of unpaid produce suppliers; and the remedies available against the lender for a trustee’s dissipation of the assets of the PACA Trust.
  • The Lender’s defenses to liability, consisting primarily of proof that the lender is a bona fide purchaser for value of the PACA Trust assets. Also, the important and central requirement in the BFP defense that the lender does not know nor should have known that the purchaser of produce was not violating the Trust by making payments to the lender, including when a duty of reasonable inquiry is triggered.
  • How lenders can effectively deal with the PACA Trust and reasonably assure they will not be found liable for violations of the PACA Trust.

Online CLE Lender Liability

Online CLE Lender Liability

Geoffrey K. MilneManaging Litigation PartnerMcCalla Raymer Leibert Pierce, LLC

Geoffrey K. Milne is the Managing Litigation Partner of the Connecticut Litigation Group for McCalla Raymer Leibert Pierce, LLC. With over 25 years of experience, Mr. Milne has represented banks, mortgage companies, and servicers in lender liability, business torts, mortgage fraud, title insurance and consumer related claims under truth in lending, fair credit reporting, and fair debt collection matters through trial and appeal in Connecticut and Federal Courts. Attorney Milne extends his expertise in these matters at various national litigation conferences. In addition to this, Mr. Milne has been recognized as a Connecticut Super Lawyer involving business and creditor’s rights litigation from 2011-2018.

Online CLE Lender Liability

Tim D. HenkelPartnerHenkel & Cohen, P.A.

Timothy “Tim” Henkel is a partner of the Miami law firm of Henkel & Cohen, P.A. and has been an attorney licensed in Florida, Virginia, and California for 31 years, practicing in the fields of business litigation, appeals, and arbitrations; agri-business law; corporate matters and business transactions; and acting general counsel. Since 1994, Tim has been advising and representing offshore and domestic traders in the U.S. produce industry including representation related to the Perishable Agricultural Commodities Act (“PACA”), such as informal and formal PACA reparation proceedings before the U.S. Department of Agricultural and PACA Trust enforcement and defense.


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Online CLE Lender Liability

Course Level:
   Intermediate

Advance Preparation:
   Print and review course materials

Method Of Presentation:
   On-demand Webcast

Prerequisite:
   General knowledge of lender liability law

Course Code:
   148625

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.

Mccalla Raymer Leibert Pierce is a leading provider of legal services to the financial services and mortgage banking industries in the states of Alabama, California, Connecticut, Florida, Georgia, Illinois, Mississippi, Nevada, New Jersey and New York. Since formation in 1982, the firm has been committed to providing clientele with superior and efficient representation. The firm handles a full range of regulatory compliance issues, legislative issues, residential and commercial foreclosures, retail closings, commercial transactions, commercial litigation, bankruptcies, evictions, and related litigation matters for many of the nation's largest financial institutions. In concentrating the practice on the representation of banks, credit unions, investors, hedge funds, and large mortgage servicing entities, McCalla Raymer Leibert Pierce has earned a reputation as a leader in the financial services and mortgage banking industries, working in tandem with its clients to achieve their goals and minimize their risk.

Website: https://www.mccalla.com/

Henkel & Cohen, P.A. is a Miami law firm with two founding partners, Tim Henkel and Ira Cohen, both former Federal law clerks and each of whom has been practicing law for over 30 years. The firm represents clients on transactional matters, business counselling, contract preparation and review, and intellectual property (trademark and copyright). Henkel & Cohen also handles business litigation in both state and Federal trial and appellate courts, in arbitration proceedings, and in trademark proceedings before the US Patent and Trademark Office. In addition to counselling growers, lenders, and produce marketing companies on the Perishable Agricultural Commodities Act, the firm has since 1994 been regularly represents produce businesses in Federal Court PACA Trust enforcement proceedings, breach of contract matters arising from the trading of produce and growermarketer disputes, PACA reparation complaints, USDA disciplinary complaints against PACA licensees, and business torts.

Website: http://www.miamibusinesslitigators.com/

Geoffrey K. Milne is the Managing Litigation Partner of the Connecticut Litigation Group for McCalla Raymer Leibert Pierce, LLC. With over 25 years of experience, Mr. Milne has represented banks, mortgage companies, and servicers in lender liability, business torts, mortgage fraud, title insurance and consumer related claims under truth in lending, fair credit reporting, and fair debt collection matters through trial and appeal in Connecticut and Federal Courts. Attorney Milne extends his expertise in these matters at various national litigation conferences. In addition to this, Mr. Milne has been recognized as a Connecticut Super Lawyer involving business and creditor’s rights litigation from 2011-2018.

Timothy “Tim” Henkel is a partner of the Miami law firm of Henkel & Cohen, P.A. and has been an attorney licensed in Florida, Virginia, and California for 31 years, practicing in the fields of business litigation, appeals, and arbitrations; agri-business law; corporate matters and business transactions; and acting general counsel. Since 1994, Tim has been advising and representing offshore and domestic traders in the U.S. produce industry including representation related to the Perishable Agricultural Commodities Act (“PACA”), such as informal and formal PACA reparation proceedings before the U.S. Department of Agricultural and PACA Trust enforcement and defense.

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