Real Estate Litigation
Real Estate Developer – Adverse Possession Dispute
Representing the insured buyers of a parcel of vacant land located in New York City's Lower Eastside in a dispute with a community activist group over the property's legal owner.
Title Insurance Company/Property Owner – Restrictive Covenant Dispute
Representing the owner of a vacant parcel of land in Westchester
County, New York in a dispute with neighboring property owners over our
client's plans to construct an affordable housing complex on the
property. Relying on a century-old restrictive covenant contained in a
prior deed which prohibited development of a "tenement or flat-house" on
the property, the neighboring property owners are attempting to block
our client's planned development of the land. Herrick is defending the
owner's right to develop the property, arguing that the planned modern
day apartment complex is not a "tenement or flat-house" within the
meaning of the restrictive covenant and, in any event, the restrictive
covenant is unenforceable.
Lender/Title Insurance – NY Supreme and Appellate Division Victory
Obtained reversal of a New York Supreme Court ruling finding that the
deed transferring title to a property was void ab initio. Our client, a
lender with a first priority mortgage lien on the property, had not been
named as a party in the underlying action, but was sued in a subsequent
action filed by plaintiffs seeking to use the ruling to extinguish our
client's $2.5 million lien on the property. We successfully intervened
in the underlying lawsuit on behalf of the lender and argued that the
Judge's original ruling -- finding that the deed was void ab initio --
was incorrect as a matter of law. The Judge agreed, vacated her own
prior order and reinstated clean title in the mortgagor. The ruling was
subsequently affirmed on appeal by the Appellate Division, First
Title Insurance Companies – Successful Resolution to Mortgage Fraud Litigation
Herrick achieved significant victories on behalf of title insurance
companies in litigation with two former employees and a title issuing
agent formerly authorized to issue policies on our clients' behalf, in
connection with an alleged mortgage fraud scheme involving "mortgage
stacking," or the practice of fraudulently obtaining multiple mortgages
on a property by concealing outstanding liens. After negotiating a very
favorable settlement with the corporate defendants, the firm obtained a
decision referring an inquest on damages against the individual
defendants to a Special Referee whose report, which recommended
substantial damages, was ultimately confirmed by the court.
Successful Defense of Foreclosure Action Challenged on Eve of Scheduled Sale
Successfully represented the holder of a first priority mortgage secured by a West Harlem property insured by our title insurance client in an order to show cause proceeding initiated by parties claiming to be the debtor's custodians and seeking to challenge a fully litigated foreclosure action on the eve of the foreclosure sale. The court denied in its entirety the plaintiffs’ motion to set aside the debtor’s default and vacate the judgment of foreclosure and sale.
Title Insurance Company – Class Action Defense
Representation of a title insurance company in a class action
alleging overcharges on premiums for policies sold to consumers in New
Jersey. We settled—on terms favorable to our client—early enough in
negotiations to minimize our client's legal fees.
Title Insurance Company – Agent’s Fraud Imputed to Lender
Representation of a title insurance company against a lender whose agent
committed a fraud that caused the loss of the insured mortgage. Our
client successfully argued that since the agent acted on behalf of the
bank, the fraud could be attributed to the bank and therefore fell under
the policy’s exclusion for “acts of the insured.” The court’s ruling
will have ramifications in the title insurance and mortgage lending
industry since many sub-prime lenders relied upon unscrupulous agents to
close their loans, and to the extent any frauds committed by those
agents lead to a title loss, the lenders cannot look to the title
insurers for indemnification.
Real Estate Development Company – Land Purchase Dispute
Representation of real estate development company in an appeal arising
from its $3 million purchase and development of 7.5 acres of land from
Hebrew Huntington Congregation. A faction of the congregation challenged
the court's order that permitted our client to purchase the land under
the Religious Corporations Law. The Second Department upheld the order
and dismissed the appeal as moot, recognizing that our client was a bona
fide good faith purchaser.
Title Insurer – Fraud and Defalcation
Representation of a title insurance company in recovering $8 million in
losses incurred by defalcation and fraud of a title agent.
Title Insurer – Frivolous Claim Defense
Defended a title insurer in an action by a property owner seeking title
insurance coverage. The court found the owner's damages to be
attributable to its own actions, and impressed sanctions against
the owner and its counsel, which included attorneys' fees, for
prosecuting frivolous litigation.
Title Insurance Company – Fraud Action
Representation of a title insurance company in obtaining a $1.4
million judgment and attachment of the defendants' bank accounts in a
Title Insurer/Secured Lender – Priority Dispute
Representation of a secured lender in its claim to the proceeds of
the sale of a borrower's principal asset. The court granted our motion
for summary judgment, ruling that our client's claim had priority over
competing claims asserted by produce sellers under the Perishable
Agricultural Commodities Act. D.M. Rothman Co., Inc. v. Cohen Marketing
Int'l, Inc., 2005 U.S. Dist. Lexis 14449, 2005 WL 1690524 (S.D.N.Y.
Title Underwriters – Island Mortgage Network Chapter 11
Representation of several national title underwriters in connection
with the Chapter 11 cases of Island Mortgage Network, Inc. and related
litigation in various courts.
HSA Residential Mortg. Services of Texas v. Stewart Title Guaranty Co., 7 A.D.3d 426, 776 N.Y.S.2d 791 (1st Dep't 2004) -- achieved dismissal of $50 million lawsuit brought by warehouse funder based on acts of alleged agent)
In re AppOnline.com, Inc., 284 B.R. 181 (E.D.N.Y. 2002)
Countrywide Home Loans, Inc. v. Lafonte, 2003 WL 1389089, 2003 N.Y. Misc. Lexis 127 (Sup. Ct. Nassau County 2003)
Title Insurance Companies – Class Action Defense
Representation of two title insurance companies in two class actions
alleging overcharges on premiums for policies sold to consumers in New
York. After extensive litigation, we settled on terms favorable to our
Congregation Yetv Lev D’Satmar, Inc. v. 26 Adar N.B. Corp. – Religious Corporations/Title Dispute
Appearance as amicus curiae on behalf of the New York State
Land Title Association in an important appeal involving issues under New
York's Religious Corporations law.
Congregation Yetev Lev D'Satmar,
Inc. v. 26 Adar N.B. Corp.
, 641 N.Y.S.2d 680 (2nd Dep't 1996)