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New York Commercial Division Case Compendium A Searchable Database of Court Decisions Issued by New York’s Commercial Division

Category Archives: Banking

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Second Department Modifies Order Regarding Application of UCC 4-201(1) to Bank’s “Charge-Back” to Attorney Trust Account for Funds Deposited Via Fraudulent Cashier’s Check

Posted in Banking, Summary Judgment

In a decision dated December 30, 2015, the Appellate Division, Second Department modified an order of Nassau County Commercial Division, Justice Hon. Stephen A. Bucaria, that granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiffs’ cross-motion also seeking summary judgment on the complaint.

Court Stays Action, Rather Than Dismiss, Despite Simultaneous Similar Action Between Same Parties in NJ, Where Full Relief Might Not Be Afforded in NJ Action

Posted in Banking, Demarest, Carolyn E., Guaranty, Kings, Motion to Dismiss, Personal Jurisdiction, Real estate

In a January 6, 2016 Commercial Division decision by Justice Demarest, the court granted the defendants’ motion to dismiss pursuant to CPLR 3211(a)(4) in part, staying the action until the conclusion of a separate action brought in New Jersey.

Buyer Comes Up Short in Breach of Contract Action, Where Short Sale Approval by Mortgagee Was Condition Precedent to Sale of Property

Posted in Attorneys' Fees, Banking, Breach of Contract, Demarest, Carolyn E., Kings, Motion to Dismiss, Real estate

In a December 3, 2015 Commercial Division decision by Justice Demarest, the court dismissed a complaint in its entirety that alleged a breach of a contract for the sale of real property, and cancelled the corresponding notice of pendency filed against the subject property by the plaintiffs. 

When Fiduciary Duties of Directors Are Split Between Two Companies, They Must Demonstrate ‘Entire Fairness’ of Decision

Posted in Banking, Breach of Fiduciary Duty, Financial services, New York, Ramos, Charles E., Shareholder Dispute, Summary Judgment

In an October 23, 2015, Commercial Division decision by Justice Ramos, the court denied the Defendants’ motion for summary judgment in its entirety, while granting the plaintiff’s motion for summary judgment in part, to the limited extent of determining that the “entire fairness standard” applies when a decision of the Board of Directors is challenged… Continue Reading

Statute of Limitations Begins Tolling at Closing of Pooling and Servicing Agreement in Residential Mortgage Backed Securities Put-Back Action, Despite Different Accrual Provision in Parties’ Private Contract

Posted in Banking, Breach of Contract, Financial services, Kornreich, Shirley Werner, Motion to Dismiss, New York, Statute of Limitations

In a September 18, 2015, Commercial Division decision by Justice Kornreich, the court granted the defendants’ consolidated motions to dismiss a Complaint pursuant to CPLR 3211, based on the defense that Plaintiff’s put-back claims were time barred. 

Accountant Providing Non-Auditing Tax Services Still Has Professional and Fiduciary Duties to Inform Taxpayer of Questionable Financial Practices

Posted in Accounting, Banking, Breach of Contract, Breach of Fiduciary Duty, Demarest, Carolyn E., Fraud, Kings, Malpractice, Motion to Dismiss, Negligence

In a July 21, 2015, Kings County Commercial Division decision by Justice Demarest, the court denied in part and granted in part defendants’ motion to dismiss plaintiff’s amended complaint under CPLR 3211 (a) (1) and (7).

Champerty Defense in Action Against Morgan Stanley Arising Out of Purchase of Mortgage Backed Securities Rejected

Posted in Banking, Fraud, Friedman, JSC, Marcy S., Motion to Dismiss, New York, Statute of Limitations

In an October 28, 2014 Commercial Division decision by Justice Friedman, the court granted in part, and denied in part, Morgan Stanley’s motion to dismiss a fraud action.  The action was brought by plaintiff IKB International S.A. in Liquidation, alleging fraud on the part of Morgan Stanley in connection with the purchase of residential mortgage… Continue Reading

Court Confers Judgment-Creditor Status Based on Creditor’s Diligence and Expenditure of “Tremendous Resources” in its Unsuccessful Attempts to Enforce its Judgment

Posted in Banking, New York, Ramos, Charles E.

In a November 14, 2014, Commercial Division decision by Justice Ramos, deciding a motion brought by the Superintendent of Financial Services of the State of New York (“Superintendent”) seeking an order determining Sage Realty Corporation’s (“Sage”) priority of payment for its claim against Jugobanka A.D., Beograd (“Jugobanka”), the court held that Sage had the status… Continue Reading

Summary Judgment Granted Where Third-Party Plaintiff Failed to Properly Exercise Option Upon Which Breach of Contract Based

Posted in Banking, Breach of Contract, Suffolk, Summary Judgment, Whelan, Thomas

In a December 4, 2014, Commercial Division decision by Justice Whelan, the court granted the third-party defendant’s motion for summary judgment dismissing the third-party complaint. The main action was commenced against the multiple defendants to foreclose the lien of a consolidated mortgage, which had been assigned to the plaintiff VFC Partners 19, LLC by third-party… Continue Reading

Breach of Contract Claim Survives Dismissal Due to Ambiguous Appraisal Condition in Construction Loan Commitment Letter

Posted in Ambiguity, Banking, Breach of Contract, CPLR 3211, Demarest, Carolyn E., Kings, Motion to Dismiss, Real estate

In a September 4, 2014, Kings County Commercial Division decision by Justice Demarest, the court denied defendant-lender’s motion to dismiss plaintiff-borrower’s action for breach of contract, alleging that defendant failed to fund a construction loan pursuant to the terms of a commitment letter.

Court Discerns the “Economic Reality” of Loan Distribution, Looks at “Substance” over “Form” on Summary Judgment

Posted in Banking, Breach of Contract, Declaratory Judgment, Discovery, New York, Sherwood, O. Peter, Summary Judgment

In an August 20, 2014 Commercial Division decision by Justice Sherwood, the court granted defendant and counterclaim plaintiff Credit Suisse’s motion for summary judgment, dismissing the claim against it.  Credit Suisse sold plaintiff Sumitomo Mitsui Banking Corporation (“Sumitomo”) an interest in a syndicated bridge loan in 2006.  It was restructured in May 2009.  At the… Continue Reading

Lien Holder Fails to Demonstrate Borrower Default Through Affidavit of Person With Personal Knowledge, Summary Judgment Denied

Posted in Banking, County/District/Appellate Division, Demarest, Carolyn E., Financial services, Industry, Judges, Keyword, Kings, Summary Judgment

In a July 23, 2014 Commercial Division decision by Justice Demarest, the court denied plaintiff’s motion for summary judgment and to appoint a referee to compute damages owed in a mortgage foreclosure action.  The affidavit provided by the plaintiff was from an “authorized representative” of the lien holder.  The court found that the affiant did… Continue Reading

Debtor Discharged in UK Bankruptcy Proceeding Entitled to Dismissal of Creditor Bank’s Breach of Contract Action, Under Principles of Comity

Posted in Banking, Breach of Contract, New York, Scarpulla, Saliann, Summary Judgment, Unjust Enrichment

In a June 26, 2014 Commercial Division decision by Justice Scarpulla, the court granted Defendant Kemsley’s motion for summary judgment dismissing the complaint on the basis of a bankruptcy discharge granted in his favor in the United Kingdom, and denied Plaintiff Barclays’ motion for summary judgment on its breach of contract claim. Plaintiff Barclays is… Continue Reading

Park Avenue Bank Liable for Wrongful Dishonor of Cashier’s Check and Conversion Based Upon Claimed Set-off Rights

Posted in Banking, Conversion, Demarest, Carolyn E., Kings, Promissory Note, Summary Judgment, Tortious Interference With Contract

In an June 4, 2014 decision by Justice Demarest, the Commercial Division considered cross-motions for summary judgment in an action brought by a borrower case against Park Avenue Bank (“PAB”).  Plaintiff moved for judgment on two causes of action based upon PAB’s wrongful dishonor of a cashier’s check and that PAB’s alleged set-off constituted a… Continue Reading

MBS Claims Not Barred By German Statute of Limitations

Posted in Banking, CPLR 3211, Discovery, Financial services, Fraud, Misrepresentation, Motion to Dismiss, New York, Rescission, Schweitzer, Melvin L., Statute of Limitations

In a November 26, 2013 Commercial Division decision by Justice Schweitzer, the Court partially granted a motion to dismiss claims arising from a residential mortgage backed securities offering.  The plaintiff brought claims sounding in fraud, fraudulent concealment, negligent misrepresentation, and aiding and abetting fraud.  Defendants moved to dismiss for failure to state a cause of… Continue Reading

Summary Judgment Granted for Default under Commercial Loans where Collateral Estoppel Precludes Defendant’s Affirmative Defenses

Posted in Banking, Collateral Estoppel, Demarest, Carolyn E., Kings, Summary Judgment

In a March 28 2014 Commercial Division decision by Justice Demarest, the court granted the plaintiff’s motion for summary judgment. The plaintiff brought suit to collect on two loans – a commercial line of credit and a commercial term loan – that the plaintiff made to the non-party borrower, Interstate Transport, Inc., which were guaranteed… Continue Reading

Court Caps Damages But Allows Plaintiff to Seek Fees and Costs in RMBS “Put-Back” Action

Posted in Banking, Contract Interpretation, Financial services, Indemnification, Kornreich, Shirley Werner, Motion to Dismiss, New York

In a November 21, 2013 Commercial Division decision by Justice Kornreich, the Court granted in part and denied in part Defendant’s motion to dismiss a Complaint pursuant to CPLR 3211.  In this residential mortgage-backed security “put-back” action, Defendant J.P. Morgan Mortgage Acquisition Corporation (“JPMMAC”) purchased loans from Defendant WMC Mortgage, LLC (“WMC”) pursuant to a… Continue Reading

Court Explains Difference Between Transactional Causation and Loss Causation in Collateralized Debt Obligation Suit

Posted in Banking, Financial services, Fraud, Kornreich, Shirley Werner, Misrepresentation, Motion to Dismiss, New York

In a December 24, 2013 Commercial Division decision by Justice Kornreich, the court considered a motion to reargue and renew and adhered to its original determination, dismissing plaintiffs’ complaint with prejudice.  The litigation is one of many which arose from the meltdown of the residential mortgage backed securities market.  Specifically, the case involved allegations of… Continue Reading

For Profit Tribal Business Not Entitled to Tribal Sovereign Immunity

Posted in Banking, Bransten, Eileen, Discovery, Financial services, Motion to Dismiss, New York, Unjust Enrichment

In an October 22, 2013 decision by Justice Bransten, the court found that a for-profit entity owned by an Indian tribe was not entitled to sovereign immunity for allegedly breaching a contract to sell a loan. The defendant is a Delaware LLC owned by an entity formed under the Indian Reorganization Act of 1934 (the… Continue Reading

In Pari Delicto Bars Saudi Arabian Parnterhsip’s Counterclaim for Aiding and Abetting Fraud: Mashreqbank PSC v Ahmad Hamad Algosaibi & Bros. Co.

Posted in Aiding and Abetting, Banking, Collateral Estoppel, CPLR 3211, Failure to State a Claim, Fraud, Motion to Dismiss, New York, Schweitzer, Melvin L.

In a July 18, 2013 decision by Justice Schweitzer, the court granted the plaintiff’s (“Mashreqbank”) motion to dismiss the counterclaim. The counterclaim alleged that Mashreqbank aided and abetted fraud of the defendant’s (“AHG”) former manager.  Mashreqbank, a United Arab Emirates (“UAE”) bank, provided a credit facility to AHG, a Saudi Arabian general partnership. AHG’s counterclaim… Continue Reading