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Davis & Gilbert's Insolvency, Creditors' Rights & Financial Products practice group represents clients in a broad range of corporate finance, insolvency and litigation matters. We regularly prosecute and defend litigation involving complex financial instruments, guide clients through financially distressed situations and help formulate and execute creditor enforcement strategies, including foreclosure under the Uniform Commercial Code. We also advise on a full range of financing transactions, including secured revolving and term credit facilities, receivable financing arrangements, intercreditor agreements, warehouse lending facilities and loan purchase agreements.

THE DAVIS & GILBERT ADVANTAGE
Our Insolvency, Creditors' Rights & Financial Products practice draws on the multi-disciplined experience of our attorneys to effectively structure financial transactions, prosecute and defend litigation, minimize risk and achieve business objectives. Through a sophisticated understanding of our clients' business operations, we are able to employ a general counsel approach that is dedicated to achieving the best possible outcome in all situations.

OUR CLIENTS
We represent entities from all of the major financial sectors, including investment and commercial banking, asset management, mortgage banking, brokerage and private equity. We also counsel companies of all sizes from a diverse range of industries, including marketing communications, commercial real estate, software development and healthcare.

INSOLVENCY AND CREDITORS' RIGHTS
Our attorneys are experienced in financings, workouts, liquidations, distressed sales and acquisitions, and creditor rights under state and federal law. We prosecute and defend a wide range of claims in bankruptcy proceedings, including preferential and fraudulent transfer actions involving structured products and derivatives. In addition, we have developed a niche practice representing the interests of advertising agencies and other marketing companies in the area of media liability. As a thought-leader in media liability, we are regularly called upon by leading advertising agencies to provide advice, and have been cited as a source by the press, which has sought the benefit of our opinions and experience regarding emerging trends in bankruptcy affecting the marketing communications community.

FINANCIAL PRODUCTS
Our practice covers a wide range of litigation involving financing transactions and complex financial products. The broad and diverse experience of our attorneys, who come from both litigation and corporate backgrounds, makes us particularly well-equipped to advise clients in complex and rapidly evolving industries, including the secondary mortgage market and online marketplace lending. We have gained vast experience defending repurchase (put-back) and fraud actions in residential mortgage-backed securities (RMBS) litigation, and matters involving the operation of residential mortgage loan origination businesses.

We have been actively involved in many of the most notable and highly visible business events in recent years related to the last economic downturn, including the subprime mortgage fallout and resulting lawsuits by investors and securitization trustees, the Ponzi scheme of Bernard L. Madoff Investment Securities and the receivership of Washington Mutual Bank.

REPRESENTATIVE MATTERS AND ISSUES ADDRESSED ON BEHALF OF OUR CLIENTS

Asset-based Lending and Structured Finance

  • Developing comprehensive financing structures, including secured working capital facilities, warehouse lines and equity participation
  • Negotiating and restructuring of secured revolving and term credit facilities
  • Preparing Intercreditor arrangements
  • Formulating foreclosure strategies for senior and junior creditors
  • Advising client in connection with swap terminations and related disputes
  • Restructuring of management of collateralized debt obligations and disputes regarding priority of payments

Residential Mortgage-Backed Securities and Secondary Mortgage Market

  • Representing seller/sponsor in connection with repurchase claims under mortgage loan purchase agreements and securitizations
  • Defense of fraud actions commenced by RMBS investors against seller/sponsor
  • Enforcement rights of mortgage loan warehouse providers in bankruptcy under master repurchase agreements
  • Servicer compliance with government programs designed to encourage mortgage loan modifications
  • Priority of mortgage loan purchaser/investor versus repledgee of collateral when seller/pledgor of collateral is in bankruptcy
  • Priority of mortgage loan warehouse lender versus purchaser/investor when seller is in bankruptcy
  • Attorney General, SEC and other governmental investigations
  • Use of trust holding structures to minimize risk of mortgage loan portfolio
  • Use of joint marketing programs as an exit strategy for distressed loans
  • Sales of mortgage loan pools and portfolios

Fraudulent Transfer Liability

  • Defense of fraudulent transfer claims under federal and state laws against financial institutions as indirect investors in a global Ponzi scheme
  • Impact of Chapter 15 bankruptcy of offshore investor and rights of competing trustees
  • "Good faith" defense analysis
  • Extraterritorial application of the Bankruptcy Code
  • Section 546(e) safe harbor for certain protected financial contracts and parties
  • Specific defenses of a leverage provider under derivative transactions

Preferential Transfer Liability

  • Defending preferential transfer actions on behalf of marketing communications and other companies in the event of a counterparty’s bankruptcy
  • Creating and executing large scale global resolution of potential preference liability, including contribution from third party transferees

Landlord – Tenant

  • Representing commercial landlords in chapter 7 and chapter 11 bankruptcy cases filed by tenants
  • Enforcing commercial landlords’ rights under the Bankruptcy Code, including payment of pre- and post-petition rent and enforcement of security deposits
  • Motions seeking relief from the bankruptcy automatic stay in order to commence or continue eviction proceedings
  • Negotiating assumption of commercial leases in bankruptcy

Media Liability

  • Sequential liability and agent/principal theories of liability
  • Protective contractual provisions in contracts with advertisers, media buying companies, media aggregators and media vendors
  • Enforcement by media and media buying companies where advertiser is insolvent
CONTACT US

For additional information on Davis & Gilbert’s Insolvency, Creditors’ Rights & Financial Products Practice, please contact:

Joseph Cioffi
212.468.4875
jcioffi@dglaw.com


INSOLVENCY AND CREDITORS' RIGHTS
Our attorneys are experienced in financings, workouts, liquidations, distressed sales and acquisitions, and creditor rights under state and federal law. We prosecute and defend a wide range of claims in bankruptcy proceedings, including preferential and fraudulent transfer actions involving structured products and derivatives. In addition, we have developed a niche practice representing the interests of advertising agencies and other marketing companies in the area of media liability. As a thought-leader in media liability, we are regularly called upon by leading advertising agencies to provide advice, and have been cited as a source by the press, which has sought the benefit of our opinions and experience regarding emerging trends in bankruptcy affecting the marketing communications community.

FINANCIAL PRODUCTS
Our practice covers a wide range of litigation involving financing transactions and complex financial products. The broad and diverse experience of our attorneys, who come from both litigation and corporate backgrounds, makes us particularly well-equipped to advise clients in complex and rapidly evolving industries, including the secondary mortgage market and online marketplace lending. We have gained vast experience defending repurchase (put-back) and fraud actions in residential mortgage-backed securities (RMBS) litigation, and matters involving the operation of residential mortgage loan origination businesses.

We have been actively involved in many of the most notable and highly visible business events in recent years related to the last economic downturn, including the subprime mortgage fallout and resulting lawsuits by investors and securitization trustees, the Ponzi scheme of Bernard L. Madoff Investment Securities and the receivership of Washington Mutual Bank.

REPRESENTATIVE MATTERS AND ISSUES ADDRESSED ON BEHALF OF OUR CLIENTS

Asset-based Lending and Structured Finance

  • Developing comprehensive financing structures, including secured working capital facilities, warehouse lines and equity participation
  • Negotiating and restructuring of secured revolving and term credit facilities
  • Preparing Intercreditor arrangements
  • Formulating foreclosure strategies for senior and junior creditors
  • Advising client in connection with swap terminations and related disputes
  • Restructuring of management of collateralized debt obligations and disputes regarding priority of payments

Residential Mortgage-Backed Securities and Secondary Mortgage Market

  • Representing seller/sponsor in connection with repurchase claims under mortgage loan purchase agreements and securitizations
  • Defense of fraud actions commenced by RMBS investors against seller/sponsor
  • Enforcement rights of mortgage loan warehouse providers in bankruptcy under master repurchase agreements
  • Servicer compliance with government programs designed to encourage mortgage loan modifications
  • Priority of mortgage loan purchaser/investor versus repledgee of collateral when seller/pledgor of collateral is in bankruptcy
  • Priority of mortgage loan warehouse lender versus purchaser/investor when seller is in bankruptcy
  • Attorney General, SEC and other governmental investigations
  • Use of trust holding structures to minimize risk of mortgage loan portfolio
  • Use of joint marketing programs as an exit strategy for distressed loans
  • Sales of mortgage loan pools and portfolios

Fraudulent Transfer Liability

  • Defense of fraudulent transfer claims under federal and state laws against financial institutions as indirect investors in a global Ponzi scheme
  • Impact of Chapter 15 bankruptcy of offshore investor and rights of competing trustees
  • "Good faith" defense analysis
  • Extraterritorial application of the Bankruptcy Code
  • Section 546(e) safe harbor for certain protected financial contracts and parties
  • Specific defenses of a leverage provider under derivative transactions

Preferential Transfer Liability

  • Defending preferential transfer actions on behalf of marketing communications and other companies in the event of a counterparty’s bankruptcy
  • Creating and executing large scale global resolution of potential preference liability, including contribution from third party transferees

Landlord – Tenant

  • Representing commercial landlords in chapter 7 and chapter 11 bankruptcy cases filed by tenants
  • Enforcing commercial landlords’ rights under the Bankruptcy Code, including payment of pre- and post-petition rent and enforcement of security deposits
  • Motions seeking relief from the bankruptcy automatic stay in order to commence or continue eviction proceedings
  • Negotiating assumption of commercial leases in bankruptcy

Media Liability

  • Sequential liability and agent/principal theories of liability
  • Protective contractual provisions in contracts with advertisers, media buying companies, media aggregators and media vendors
  • Enforcement by media and media buying companies where advertiser is insolvent


CONTACT US

For additional information on Davis & Gilbert’s Insolvency, Creditors’ Rights & Financial Products Practice, please contact:

Joseph Cioffi
212.468.4875
jcioffi@dglaw.com