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Litigation
Department
A RESULTS ORIENTED APPROACH:
The focus of the Litigation Department of The Wolf Firm is being
effective, responsive and professional in the representation of our clients.
We view ourselves as part of an integrated team with the client and demonstrate
this on a daily basis by our clear and responsive communications, our
goal-directed actions, and the results we achieve.
Our practice is built around consistency in our service and a strategic
approach to case management. We work with our clients to develop clear and
specific goals and strategies, while controlling costs and achieving results
that meet or exceed the client's expectations.
We recognize the costs and risks inherent in failing to define achievable
objectives and adopt appropriate and defined strategies. To this end we have
adopted systems and procedures to ensure that we and our clients avoid potential
traps and optimize outcomes in both results and cost-effectiveness.
As part of our collaborative and synergistic efforts, we regularly
provide general advice to our clients without billing for doing so. We also
have established flat fee, monthly retainer, and incremental fee arrangements
with individual clients and adjusted hourly rates to accommodate individual
matters. As part of a law firm with a history of servicing the financial
services industry for decades, our focus is on building strong and long-term
relationships with clients rather than maximizing billings on individual
case files.
LEADERSHIP:
ERIC D DEAN, Esq. is the Managing Attorney for The Wolf
FIrm's Litigation & Transactions Departments.
Email:
eric.dean@wolffirm.com
OUR SYSTEMS AND
PROCEDURES:
State of the Art Computerization: The Wolf Firm employs state
of the art technology including a data system called "ProLaw". Through ProLaw,
all client documents, memoranda, communications, notes, drafts and court
filings are kept in a centralized location on each matter so that all attorneys
and paralegals can access all file documentation. This allows for a quick
review of the entire file and significant operating efficiencies.
Defining Goals and Strategy: To facilitate our Results Oriented
Approach, we have adopted an "Intake and Update Form". At the earliest possible
stages of our retention we conduct an initial evaluation of each matter and
prepare a computerized form which summarizes our evaluation and analysis
of critical facts, issues and concerns. We concurrently work with the client
to define realistic objectives as to the file and adopt a plan of action,
strategy and budget to achieve the defined objectives. These factors are
then summarized on the Intake Form. We view the form as a living document.
At least quarterly or more often as appropriate for a particular matter,
we update the form as further events and newly discovered facts and issues
unfold. This update includes a reevaluation or ratification of the case
objectives and the adoption and approval of a going forward strategy and
budget. The initial Intake Form and each update are shared with the client.
We have adopted the Intake Forms on a client by client basis to meet specific
needs of individual clients.
While these procedures may appear cumbersome to some, we view it as
essential that we, as counsel, and our clients function as a team in litigation
matters and that periodic updates and analysis of each file through standardized
forms and procedures be mandated to maintain an effective, cost efficient
and responsive approach to our representation.
OUR LITIGATION
PROFESSIONALS:
Trained Professionals: The Litigation Department of the Wolf
Firm is a tight knit and cohesive group of experienced and professional
attorneys, paralegals and staff who share the same philosophy of service
and commitment to our clients.
Department Leadership: Eric Dean is the coordinator of the
Firm's Litigation Department. Mr. Dean graduated UCLA School of Law Order
of the Coif in 1973. Mr. Dean is a member of the Litigation and Real Estate
Sections of the State Bar of California and admitted to practice before Federal
District Courts throughout the State of California. Mr. Dean has represented
lenders on work out and litigation matters since 1979. He has represented
clients on real estate, commercial and business clients since being admitted.
Mr. Dean has experience in class action litigation. Mr. Dean has served as
a Group Leader for litigation groups of both regional and national firms.
Mr. Dean oversees all cases in the Department whether or not he is directly
responsible for a file on a day to day basis. Mr. Dean regularly authors
articles and participates in presentations before trade associations.
Effective Rates: The Litigation Department's "blended attorney
billing rate" is at or below market. However, we are far more concerned with
"effective billing rate". Because of our systems and personnel, we are extremely
efficient and cost effective. Attorneys in the Department generally have
no learning curve other than the limited time necessary to review background
facts and documentation, any nuances of a file and to define the client's
objectives on each individual matter. Once we assimilate these facts and
understand all pertinent factors, we adopt a strategy on each case in partnership
with the client. At the same time we maintain flexibility so that we can
adopt that strategy to newly discovered facts, the positions taken by other
parties or the predispositions of the Court or Judge where the matter is
pending. Everything we do starts with and builds around maximizing the client
objectives while maintaining a cost effective approach and limiting the client's
risks. We treat all matters in the State of California at the same billing
rates.
DIVERSITY OF REPRESENTATION:
The Litigation Department of the Wolf Firm recognizes that different
clients have different needs and expectations. We therefore have divided
our Department into three distinct divisions.
Commercial and Business Lending:
The Litigation Department of the Wolf Firm regularly represents Banks
and other commercial lenders in litigation and arbitration of all aspects
of secured and unsecured real estate and business lending. Our approach to
all matters is focused on risk avoidance, cost effectiveness and maximizing
the client's position in all stages of our representation of lenders in their
real estate and commercial lending litigation and arbitration matters.
Areas of Practice Include:
-
Workouts
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Receiverships
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Claim and Delivery
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Attachments and Temporary Protective Orders
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SBA guaranteed loans
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Judicial and non-judicial foreclosures
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Fraud
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Diversion of Rents
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Private and public sales under the UCC
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Enforcement of Guarantees
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Title and Casualty Insurance Claims
-
Defense of Lender Liability and Predatory Lending Claims
Representative Cases Include:
-
Client has single Promissory Note secured by two deeds of trust with
three properties as collateral in three different counties and an individual
guarantor. We obtained an order appointing a single receiver over all three
properties, assisted client in evaluation of the credit bidding process and
preserving its claims against the guarantor, defeated a claim of sham guaranty
by the guarantor and finalized a cash settlement from the guarantor as part
of work out rather than proceeding to judgment on the guaranty claim.
-
The Borrowers are seven SPE entities with common ownership. Each SPE
entity is in title to a separate property. There is a separate loan as to
each SPE entity and property. Each loan is secured by the same guarantors.
We were able to obtain a single receiver over all the properties. The SPE
entities each filed cross claims for, among other things, predatory lending
practices. The case is still pending.
-
The matter involved a single loan secured by a large affordable housing
project in Los Angeles. The loan is guaranteed by an off shore holding company
that has sole ownership of dozens of 36 SPE entities including the borrower
on this loan. We obtained the appointment of a receiver. We also obtained
a $15 million plus attachment order against the guarantor (the holding company)
and a writ of attachment over all the holding company's interests in the
various SPE entities. We then threatened to seek the appointment of a receiver
over the assets of the holding company. A major law firm represented the
holding company and challenged the appointment of the receiver over the holding
company's assets. Rather than face the risks and repercussions arising from
the attachment orders and the potential appointment of a receiver over its
assets, the Holding Company provided off shore funds, set up a new SPE entity
and through this entity bought the loan from my client for an amount in excess
of the principal loan balance even though the loan collateral had substantially
diminished in value and was worth millions less than the agreed purchase
price.
-
This loan was made by individual borrowers and there was no guaranty.
The collateral consisted of an office building and an assignment of rents.
The Borrowers operated various businesses as corporations within the office
building. We had a receiver appointed who made these corporations start paying
rent and post security deposits as a condition of continued possession of
the office building pending foreclosure. The Bank completed the foreclosures
and entered into short term lease agreements with the former borrowers'
corporations. We advised the Bank on the leases and lease terms. Total attorneys
fees were around $3500.
-
The Bank had a deed of trust against an uncompleted subdivision project
where it determined that the developer was diverting loan proceeds. A receiver
was appointed with authority to complete the project and sell the homes once
completed. Claims were asserted again the borrower and guarantors.
-
The client had a promissory note secured by the business assets of
a corporation and guaranteed by the shareholders of the corporation. We
successfully pursued a claim and delivery order and assisted the client in
completing a UCC Sale of the business assets. We concurrently pursued collection
claims against the guarantors. We determined that the guarantors had transferred
or otherwise had their personal assets in the name of third parties. We pursued
a fraud on creditors claims against the guarantors and third parties. We
obtained a preliminary injunction against the transfer of the guarantors'
personal assets held in the name of the third parties, During depositions,
we were successful in negotiating a compromise of the claims under which
the guarantors and third parties stipulated to a judgment for the full amount
of the debt and ultimately paid a compromise amount to resolve all claims.
-
The client had made an SBA guaranteed loan. The collateral was incorrectly
described. We were able to obtain both a reformation of the collateral
description and a writ of possession allowing the client to maintain the
SBA guaranty.
RESIDENTIAL GROUP:
Lenders and servicers are viewed as target defendants and, among many
attorneys in the Plaintiff's Bar, viewed as an easy mark for extorting
unreasonable demands or as defendants against whom judges and juries can
be inflamed. To make matters worse, the Plaintiff's Bar has become increasingly
well organized; the media has created negative perceptions of lenders and
servicers and warped expectations; the internet has created a resource from
which every borrower and attorney are provided roadmaps for borrowers and
their counsel to follow in asserting claims against lenders and servicers.
It appears there are far too many lawyers scrambling for not enough work,
or desperate for a source of revenue. As a result, lawyers have become
increasingly aggressive in asserting claims against lenders and servicers
and, in many instances, far less ethical in their approach. The challenges
faced by lenders, servicers and mortgage banking attorneys in evaluating
and monitoring individual lawsuits as well as defining litigation objectives
and strategy are, therefore, tremendous. The lenders and servicers are caught
between competing goals of risk avoidance and limiting litigation costs versus
not being viewed as a target and patsies that can be extorted and manipulated
thereby encouraging even a greater volume of lawsuits, more risks and a higher
level of costs. Our Department works with our residential lender and servicer
clients to meet these challenges.
Areas of Practice Include:
-
Advise clients on avoidance of litigation risks and establishing
procedures in the loss mitigation process
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Defense of Claims of TILA, RESPA, HOEPA, Predatory Lending, Unfair
Lending Practices, California Statue Violations as well as tort claims
asserted
-
Appointment of Receivers as to Tenant Occupied Properties
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Pursuit of Fraud Claims
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Pursuit of Waste Claims
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Pursuit of Deficiency Claims
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Title and Casualty Insurance Claims
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Evictions
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Defense of Lis Pendens and Injunction Claims.
Representative Matters Include:
-
We have assisted servicers in adopting policies and procedures, including
standard letters and emails, to facilitate limiting and avoiding the creation
of litigation risks in the loss mitigation process.
-
Federal Court Case pending since mid-2006 with multiple parties. We
assumed defense of one of the defendants in late March, 2009 that had up
to that point been represented by a larger firm. Between March and May 2009,
we were able to defeat no less than four attempts by the Plaintiffs to obtain
temporary restraining orders or preliminary injunctions against our client
in both State and Federal Court, defeat a contempt citation filed by Plaintiffs
against our client, obtain an order expunging a lis pendens recorded by the
Plaintiffs and obtain a remand of a state court unlawful detainer action
after the Plaintiffs filed a removal of that action. The Client completed
the foreclosure of its loan collateral and was then successful in gaining
full and uncontested possession of the collateral. The Federal Court recently
noticed an Order To Show Cause as to why the Federal Case should not be
dismissed.
-
Obtained a fraud judgment for actual and punitive damages, attorneys
fees and costs on behalf of a client. Punitive damages were based on none
times actual damages.
-
In May, 2009 Federal Legislation was adopted requiring lenders and
services to honor tenant leases in the foreclosure of residential real property.
However, many servicers and lenders are weary of becoming landlords and taking
on the risks associated therewith. In response, we have established residential
receivership programs under which in lieu of the immediate completion of
a foreclosure, a receiver is appointed to take control of the property as
an officer of the court insulating the lender and servicer from becoming
a landlord. In many instances, in addition to managing the property, the
receiver will be authorized to market and sell the property subject to the
consent of the lender or servicer without a foreclosure being
completed.
-
Certain title companies have adopted an aggressive response to claims
under title policies by demanding countless and unnecessary documents and
items of information. We have adopted assertive positions in response to
such claims.
Our lawyers are highly experienced in all aspects of real estate related
litigation and arbitration. In working on behalf of property owners and
developers, we handle cases in such areas as:
-
Disputes between co-owners or co-venturers
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Breach of contract and damage claims
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Specific performance
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Partition Actions
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Casualty and title insurance
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Property management
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Title and easement concerns
-
Fraud, nuisance or trespass complaints
-
Contractor, broker and escrow disputes
-
Loan participation disputes
-
Defense of ADA and Unruh Act Claims Bankruptcy
BUSINESS, REAL ESTATE
AND
COMMERCIAL DISPUTES, LITIGATION,
MEDIATION AND ARBITRATION:
As with any large undertaking, disputes arise when purchasing, building
or operating a real estate venture or in forming or operating a business.
The goal of the Litigation Department of The Wolf Firm in such matters is
to advise and represent our clients so as to minimize the risk of litigation
through encouraging communications with us and through our meticulous attention
to detail. However, if a dispute does arise our skilled and experienced
litigation counsel are prepared to assist our clients in defining the dispute,
analyzing risks, developing strategies and adopting and implementing a strategic
plan of action focused around achieving the client's goals on a cost effective
basis. Our litigation attorneys are highly experienced in assisting our clients
in resolving disputes before litigation including through mediations and
in arbitrations and civil litigation if the dispute cannot otherwise be resolved.
Areas of Practice Include:
-
Disputes with contractors as to scope, time, change orders, mechanics
liens and warranties
-
Disputes between equity participants or investors and the developer,
manager or general partner
-
Defense of ADA and Unruh Act Claims
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Lis Pendens and injunction Claims
-
Disputes related to the acquisition or sale of property
-
Claims under the California Commercial Code
-
Business Litigation
-
Breach of Contract
-
Business Fraud
-
Corporate Litigation
-
Corporate Dissolution Disputes
-
Disputes between Minority and Majority Interest Holders
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Disputes between Management and Passive Investors
-
Shareholder Litigation
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Officers and Directors Litigation
-
Breach of Fiduciary Duty
-
Dissolutions and Divestitures
-
Interference with Contract
-
Insurance Coverage and Claims
-
Business Torts
-
Partnership Dissolution Disputes
-
Partnership Litigation
-
Trade Libel
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Trade Secret and Confidential Information Litigation
-
Unfair Competition
-
Wrongful Termination
-
Breach of Warranty or Defective Product Claims
Representative Matters Include:
-
Representation of a shareholder in a closely held corporation in pursuing
the appointment of a provisional director and a dissolution of the corporation
where the client had the majority of the responsibility for the day to day
operation of the business but other shareholders were sharing in distributions
equally with the client while not providing any material contribution. Matter
was compromised by client being given additional shares, compensation and
distribution rights for her services.
-
Representation of members of a limited liability company in pursuing
fraud, breach of fiduciary duty and constructive trust claims in an arbitration
against the managing member who had failed to account, engaged in self dealing
and otherwise acted in bad faith. Obtained an arbitration award for actual
and punitive damages.
-
Representation of hotel owner in dispute with its general contractor
as to fraudulent invoices, over charging and defective work. Obtained a judgment
for actual and punitive damages.
-
Representation of a private educational facility in defense of a class
action suit brought by students. Defeated class action certification and
then settled claims for a limited amount.
-
Representation of a hotel owner in defense of ADA and Unruh Act Claims
brought by a Plaintiff who had filed over 900 such claims in a period of
less than three years. Filed a Motion to Dismiss based on the assertion that
the case was field in bad faith and settled the matter for significantly
less than cost of defense with an agreement to make certain repairs to the
premises within two years.
-
Representation of a buyer of several hundred thousand dollars in computer
parts in claims of breach of warranty and fraud against a large distributor
of such parts. Matter was compromised during depositions,
REPRESENTATIVE
ARTICLES:
-
USURY- A TRAP FOR THE UNWARY LENDER
-
ATTACHMENT, AN UNDERUTILIZED CREDITOR'S RESOURCE
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PROTECTING SECURED LENDER'S RIGHTS AND AVOIDING RISKS IN A NON-JUDICIAL
FORECLOSURE OF REAL PROPERTY COLLATERAL
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AVOIDING AND RESOLVING THE DISPUTE BETWEEN CONTROLLING AND MINORITY
EQUITY INTERESTS
-
WHAT A GUARANTOR NEEDS TO CONSIDER BEFORE SIGNING A COMMERCIAL REAL
ESTATE GUARANTY
-
FOREIGN INVESTOR CONCERNS WHEN INVESTING IN A CALIFORNIA REAL ESTATE
VENTURES
Contact us:
If you have any questions or would like to discuss this information
further, please feel free to contact us directly at (949) 480-1672 or by
emailing our Litigation Department Manager, Eric Dean at
eric.dean@wolffirm.com.
|
News
November 6, 2009
Alan
S. Wolf serves as a panelist on the
Tenant Protection Act Panel at the National Property
Preservation Conference in Washington, D.C.
See video of Alan's presentation by clicking
here.
October 5, 2009
Eric D.
Dean leads panel
discussion at D.A.R.E. Conference in New York
on Protecting Tenants in Foreclosure Act of 2009
September 30, 2009
Eric D.
Dean co-authors article on The Protecting Tenants at Foreclosure
Act published in the October issue of DSNews.
August 10, 2009
Alan
S. Wolf is honored to have been selected as a member of the
Best Lawyers in America under Mortgage Banking Foreclosure.
August
5,
2009
Eric
D. Dean serves as the lead speaker at the
AFN Webinar on the Protecting Tenants
at Foreclosure Act 2009.
July 27,
2009
Eric
D. Dean serves as a speaker at the MBA Workshop on the New
Tenant/Foreclosure Law in Chicago.
July 10,
2009
Eric
D. Dean serves as a moderator and a speaker at the Litigation Strategies
session presented at the
USFN's Legal Issues in Mortgage
Servicing Seminar in Chicago.
July 10, 2009
Alan
S. Wolf serves as a panelist on the Bankruptcy Law- Current
State of Affairs Panel at the
USFN's Legal Issues in Mortgage
Servicing Seminar in Chicago.
May 15, 2009
Eric
D. Dean is
appointed as Vice Chair of the USFN 's
Commercial/Multi-Family Committee.
June 4, 2009
Alan
S. Wolf serves as a facilitator on the Advanced Bankruptcy session
and at the USFN 's National Default
Seminar in New Orleans.
May 15, 2009
Eric
D. Dean is appointed as Vice Chair of the
USFN 's Commercial/Multi-Family
Committee.
May 4,
2009
Alan
S. Wolf serves as moderator of the Bankruptcy Cramdown session and
the Bankruptcy Roundtable session at the National
MBA Legal Issues and Regulatory
Compliance Conference in Chicago.
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