Finance & Banking Civil Remedies

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Fiduciaries And Beneficiaries Should Be Aware Of Criminal Statutes

There are several criminal statutes that implicate fiduciary activities in Texas that are not well-known: misappropriation of fiduciary property and financial exploitation of the elderly. Though these may be similar in some...more

Rhode Island Supreme Court Rules That Condominium Assessment Liens Could Extinguish First-Priority Mortgages

First mortgage holders in Rhode Island beware: in a 4-1 decision handed down on December 4, 2015, the Rhode Island Supreme Court has ruled that pursuant to the Rhode Island Condominium Act, RIGL § 34-36.1-1.01 et seq., liens...more

2nd Circuit Rules Bankruptcy Code Does Not Preclude FDCPA Suit in District Court

In Garfield v. Ocwen Loan Servicing, LLC, 15-527 (2d Cir. Jan. 4, 2016), the Second Circuit Court of Appeals examined whether a debtor who has been discharged in a bankruptcy can sue in a district court under the Fair Debt...more

Supreme Court Limits ERISA Plan Reimbursement Rights: ERISA Fiduciaries Need to be Diligent

On January 20, 2016, the United States Supreme Court held that an ERISA plan could not satisfy its reimbursement rights from a participant’s general assets. ERISA plans’ reimbursement rights are now so limited that...more

Court Granted Summary Judgment For A Trustee On A Fiduciary Breach Claim Arising From Conflict-Of-Interest and Diversification...

In Adams v. Regions Bank, beneficiaries sued a trustee for multiple claims, including breach of fiduciary duty, arising from the trustee’s seizure of collateral owned by the trust. 2016 U.S. Dist. LEXIS 1027 (S.D. Miss....more

"Expropriation Damages in Cases Involving Investment Treaties"

Most investment treaties assure investors that, in the event of expropriation, they will receive compensation based on the market value of the enterprise at the time of seizure (excluding the negative valuation effects of any...more

The Magic 8 Ball Says – The Supreme Court’s Montanile Decision and The Seemingly Random Evolution of Supreme Court ERISA Remedies...

It’s a common fact pattern. A plan participant is injured and received benefits for treatment of his injuries. The participant then sues a third party for damages based on his injuries. The plan then seeks to recover a...more

U.S. Supreme Court Holds ERISA Plan Cannot Enforce Equitable Lien Against Participant’s General Assets

On January 20, 2016, the U.S. Supreme Court reversed a decision by the Eleventh Circuit and held that when a ERISA plan participant obtains a third-party settlement subject to a plan’s subrogation provision, and then...more

What Creditors Need to Know - Two Recent Bankruptcy Rulings Affect Rights and Risks Regarding the Automatic Stay

Immediately upon the commencement of a bankruptcy case an automatic stay prohibits actions against the debtor to, among other things, collect pre-petition obligations and to obtain control over property of the bankruptcy...more

Lack of Reaffirmation Agreement Results in Finding That Bank Violated Discharge Injunction by Enforcing Post-Bankruptcy Loan...

In Venture Bank v. Lapides, 800 F.3d 442 (8th Cir. 2015), the Eighth Circuit found that a bank could not recover from its borrower and, in fact, had violated the post-discharge injunction by relying on change in terms...more

Choose Words Carefully in Dispute-Related Contract Clauses

A couple of words here or there in a contract can make a huge difference, particularly when those words relate to what happens if there is a breach or some other dispute between the parties. This is something that the parties...more

Rescinding a Foreclosure Sale (or Any Other Real Estate Deal) — Act Quickly, or Lose the Remedy

In a prior post, Respect the Remedy of Rescission in Real Estate Disputes, I highlighted the often under-appreciated remedy of rescission.  With rescission, both parties are restored to their pre-contract positions and issues...more

FTC Announces New Enforcement Actions Under the Operation Collection Protection Initiative

On January 7, the FTC announced four separate actions under its Operation Collection Protection initiative against collectors allegedly engaging in abusive and deceptive debt collection practices. It also announced that other...more

Guarantors’ “Lost Profits” Completely Offset Lender’s Deficiency Claim

Believe it or not, lenders can breach loan agreements too…and when they do, there can be significant consequences. In Great Western Bank v. LJC Dev., LLC, 726 Ariz. Adv. Rep. 21 (Ariz. Ct. App. Nov. 10, 2015), the Court of...more

Creditors Rights Suffers a Major Depression in North Carolina

So, What can a Lender Count on from a Guarantor? - In 1933, the North Carolina legislature in reaction to the Great Depression enacted certain defenses against alleged abuses by lenders exercising remedies under...more

Florida Court Holds Offer of Judgment Statute is Preempted in Actions under the Florida Consumer Collection Practices Act (FCCPA)

A Hillsborough County Court recently held that Florida’s offer of judgment statute, Fla. Stat. § 768.79, is preempted by the Florida Consumer Collection Practices Act (the “FCCPA”), Fla. Stat. § 559.72.  ...more

The Eleventh Circuit Issues Two Unanimous Opinions Finding No Private Right of Action Under TARP

On October 3, 2008, George W. Bush signed the Troubled Asset Relief Program (TARP) into law as part of the government’s efforts to combat the subprime mortgage crisis and shore up the faltering economy. In general terms, TARP...more

Community Banking Excellence -Fourth Quarter 2015

In This Issue: - Looking Back, Looking Forward: A 2015 Retrospective and 2016 Predictions: This past year has seen many changes in the community banking industry. Some of these issues we expected and some had more...more

Financial Services Quarterly Report - Fourth Quarter 2015: The VW Case and the German Act on Model Case Proceedings in Disputes...

Volkswagen AG (VW) has lost more than one-third of its value following the September issuance by the U.S. Environmental Protection Agency (EPA) of a Notice of Violation (NOV) of the Clean Air Act to VW and certain affiliated...more

‘LightSquared’: Defining the Permissible Boundaries of Plan Injunctions

On Oct. 7, 2015, the U.S. District Court for the Southern District of New York vacated a plan injunction that had been approved by the Bankruptcy Court in the Chapter 11 cases of LightSquared and certain of its affiliates...more

Online Services Companies Await Supreme Court Ruling on Standing to Bring Class Actions under Fair Credit Reporting Act

On November 2, 2015, the U.S. Supreme Court heard a contentious round of oral arguments in a case that may significantly change the landscape of consumer class actions. The case, Spokeo, Inc. v. Robins, is a class action...more

Dodd-Frank Bounties Are Alive and Well - Both SEC and CFTC Issue Awards

The U.S. government has recently paid substantial awards when the Commodity Futures Trading Commission (“CFTC”) awarded $290,000 to a whistleblower for providing valuable information about violations of the Commodity...more

Hong Kong Competition Ordinance Takes Effect: The Latest Jurisdiction Regulating How Companies Compete

On December 14, 2015, Hong Kong became the latest jurisdiction to prohibit anticompetitive agreements and unilateral conduct. The Competition Ordinance (Ordinance) is Hong Kong’s first cross-sector competition law for this...more

SEC Charges IA With Fraud Tied To Conflicts, Undisclosed Interest

Undisclosed conflicts by investment advisers and others is a focus of the current SEC enforcement program. In its most recent action, the conflicts came from a firm with an indirect, undisclosed controlling interest in the...more

M&A Update: Delaware Supreme Court Upholds Rural Metro Decision, but Financial Advisors Can Breathe a Sigh of Relief

In a November 30, 2015 decision, the Delaware Supreme Court upheld the Delaware Chancery Court’s $76 million damages award against RBC Capital in In re Rural/Metro Corp. S’holders Litig. The ruling, however, notably rejected...more

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