As litigators, we often represent clients being pursued by creditors (banks, private lenders, bankruptcy trustees, etc.) seeking payment on loans or indebtedness. A strategy employed by many lawyers is to simply negotiate a discount on the indebtedness in exchange for immediate payment, with the remainder of the debt being “written off” by the creditor. If successful, this strategy will...
If your client is in default on a loan and lender’s counsel suggests stipulating to the appointment of a receiver, be aware of the potential pitfalls of doing so. You may be exposing the company’s owners and management to a lawsuit for breach of fiduciary brought by the receiver. The following recent Court of Appeals decision illustrates the perils of such a decision.
In Coppola v. Manning,...
One of the largest changes in the practice of law in the last decade is the implementation of electronic court filing, or “ECF,” as practitioners have come to know it. Gone are the days when documents were hand-delivered to the court and counsel by runners and warehoused for years by the court. Now, the filing and service of documents are accomplished with mere clicks of the mouse and those...
In its recently issued opinion in Riewe v. Baron, 2015 Mich App LEXIS 1907 (October 20, 2015), the Michigan Court of Appeals dealt with some recurrent contract defenses that are frequently litigated in the Business Court. The defenses at issue were mutual mistake of fact, frustration of purpose and impossibility of performance, which, if successfully asserted, can be used to void, rescind or...
Building or remodeling a home often leads to disputes between homeowners and their builders over the quality of workmanship, cost increases or the timeliness of performance. In those instances, it sometimes turns out that the builder failed to obtain a residential builder’s license, as required by Michigan’s Occupational Code. In such cases, MCL 339.2412(1) of the Occupational Code bars the...
While business is flourishing across resurgent metro markets nationwide, change invariably brings with it a certain degree of turmoil. From minor growing pains to more profound professional conflicts, some companies are more equipped to handle success, and challenges, than others.
When it comes to setting up business partnerships or handling business partner disputes, it is critically...
Attorneys who draft contracts regularly insert forum selection clauses into them that require the parties to litigate their disputes in certain locations. Attorneys who litigate breach of contract claims regularly turn to those clauses before filing suit to determine the proper venue in which to file their claims. But a word to the wise – if you draft or rely on a forum selection clause,...
A prospective client tells you he invented a new technology and entered into a licensing agreement with a company that wished to commercially exploit the technology. Shortly after signing the licensing agreement, the licensee set up a foreign company that immediately started manufacturing and selling products using your prospective client’s proprietary technology in violation of the licensing...
Suppose you represent a minority member of a limited liability company who believes that the majority member (who is also the managing member) had the company enter into a series of transactions that enriched herself at the expense of your client. Your client also tells you that he sustained the damages earlier this year, even though the transactions at issue took place over three years ago....
The Michigan Court of Appeals, in a recent published decision, reaffirmed the principle that a personal guaranty of a loan is a separate and distinct contract from the loan itself with separate and distinct remedies. So, just because a lender has sued a borrower and guarantor, does not mean that the lender has to ask the court for all of the relief that the lender may be entitled to in that...
