Business disputes and commercial litigation encompass a wide variety of claims and defenses asserted in the context of business transactions. Such transactions are often contractual in nature and involve legal issues such as contract formation and interpretation, breach of contract, legal excuse for nonperformance, as well as legal remedies and damages. Other business disputes are not contractual in nature but may involve conduct subjecting a party to liability such as intentional interference with a business relationship. Other lawsuits involve claims between current or former co-owners of business entities. These claims often arise in the context of the termination of a business, or the ownership rights of a business owner. Other types of commercial litigation include commercial collections and determining the validity and priority of lien interests in personal property.
Creditors’ rights are a broad category of legal rights often divided between secured and unsecured creditors. Debts may be secured by liens on real or personal property. Secured creditors have lien rights in the property that typically allow for the property to be sold, under legal process, to satisfy the debt. Unsecured creditors do not have lien rights in real or personal property. An unsecured creditor obtains a money judgment against the defendant and utilizes a process known as discovery in aid of execution to identify nonexempt assets belonging to the debtor that may be seized or sold, via legal process, to satisfy the judgment debt.
We represent creditors in bankruptcy cases. Such representation typically involves filing motions for relief from stay and/or adequate protection, filing proofs of claim, presenting objections to proposed plans of reorganization, seeking dismissal of bankruptcy petitions filed in bad faith, and prosecuting or defending claims made in adversary proceedings (lawsuits within the bankruptcy case). Significant revisions were made to bankruptcy law by the Bankruptcy Abuse and Consumer Protection Act of 2005, which now contains provisions that better enable creditors to obtain relief against repeat or so called “serial” bankruptcy filers.
Real Estate Litigation
Real estate litigation encompasses a variety of different legal theories and issues pertaining to real property. Among the more common are quiet title, slander of title, partition, mortgage foreclosure, construction liens, condominium and homeowners’ association issues, specific performance and landlord/tenant disputes.
Garnishment is a remedy used to reach tangible or intangible personal property of a debtor while that property is in the hands of a third party. Garnishment in Florida is governed by Chapter 77, Florida Statutes, and may be pursued before or after entry of a judgment in the creditor’s favor. Most garnishments occur after entry of a judgment in which the judgment creditor attempts to recover the judgment debtor’s wages or property to satisfy the judgment. The amount of wages subject to garnishment is limited by federal law. Some of the judgment debtor’s assets or sources of income may be exempt from garnishment, ie. social security benefits.
Collections law involves utilizing various legal theories to collect a debt. Claims may be based upon express contracts, both written and verbal, or contracts implied by law. Other claims may be equitable, rather than contractual in nature, such as unjust enrichment. Debts may be commercial or consumer in nature. Creditors attempting to collect consumer debts must comply with the federal Fair Debt Collection Practices Act as well as the Florida Fair Debt Collection Practices Act, or be subject to liability for violations. Commercial debts are not governed by the federal or state Fair Debt Collection Practices Act, but collection methods are not unfettered. Unethical collection practices may subject the creditor to counterclaim for defamation or invasion of privacy.
Replevin is a remedy to recover personal property wrongfully detained by another and to recover damages resulting from the wrongful taking or detention. Replevin in Florida is governed by Chapter 78, Florida Statutes. Replevin is often used, but not limited to, obtaining judicial enforcement of a secured party’s right to take possession of collateral. A claimant may recover temporary possession of personal property, pending final adjudication of the right to possession, after the claimant posts a bond or establishes a reasonable probability of ultimately prevailing on its claim for possession at a “show cause” hearing before the court. A lawsuit for possession of personal property may also allow the defendant to remain in possession of the property until final judgment awarding possession is entered.
Foreclosure and Asset Recovery
Foreclosure involves enforcement of liens on real and personal property. Mortgages on real property are foreclosed thereby extinguishing inferior lien and other interests by judgment. A foreclosure sale is held at which the lender/plaintiff receives a bid credit in the amount of the judgment. The successful bidder at the foreclosure sale, often the lender, obtains a Certificate of Title to the real estate. Liens on personal property may be foreclosed, or the lender may avail itself of other remedies available under the Florida Uniform Commercial Code, such as peaceable repossession of the property.
Asset recovery involves utilizing legal process to sell real or personal property pledged as collateral under loan agreements to satisfy a debt. Through foreclosure, title to real property is either acquired by the mortgagee, or the mortgage debt is satisfied, in whole or in party, by public sale of the real estate. Personal property may be peaceably repossessed. After recovering possession of personal property, either by peaceful repossession or judicial process, the next step is sale of the collateral to satisfy the debt. With real or personal property, to the extent the sale proceeds are insufficient to pay the debt, the secured creditor will often seek a deficiency judgment for money damages against the debtor.
This practice area description is not intended as legal advice. Please contact our firm for help in resolving your legal matter.