Creditors' Rights and Real Estate Litigation



"Very thorough, great communication and excellent legal experience." "Tremendous counsel with a great track record - they are a cut above the rest."
Chambers USA, 2013, NJ and CT Litigation: General Commercial

Day Pitney represents creditors, including financial institutions, banks, mortgage companies, automobile lenders and retailers, credit card companies, and collection companies in disputes brought under state and federal consumer protection laws, as well as against common-law claims. That representation includes the defense of individual and class actions. Clients also call on us for tax and labor advice for their human resources departments, defense in housing discrimination claims, and prosecution of claims against former employees who violate noncompete agreements. Our clients look to us for advice and comprehensive defense strategies regarding suits brought under the:

  • Equal Credit Opportunity Act
  • Fair Credit Reporting Act
  • Fair Debt Collection Practices Act
  • Real Estate Settlement Procedures Act
  • Retail Installment Sales Financing Act
  • Truth in Lending Act
  • Unfair Trade Practices Act
  • Uniform Commercial Code

In addition to defending creditors, Day Pitney represents clients in connection with significant creditors' rights matters, representing those institutions as plaintiffs in commercial loan recovery and foreclosure matters in New Jersey, New York, Connecticut and Massachusetts. The creation and standardization of forms has enabled our clients to quickly and cost-effectively collect monies due.

The Creditors' Rights/Real Estate Litigation business unit also has extensive experience handling complex real estate matters for financial institutions and other clients. We apply our cumulative knowledge and resources to deliver creative and focused counsel in negotiating and litigating commercial and residential real estate-related disputes, including zoning and planning, prerogative writ, mandamus, quiet title, riparian rights, deed and covenant restrictions, adverse possession, tax and mortgage foreclosures, condemnation/eminent domain, property tax appeals and assessment challenges, tax certiorari proceedings, tax exemption disputes, easement disputes, valuation litigation and disputes, commercial eviction and landlord-tenant proceedings, disputes involving claims for real estate brokerage commissions, disputes representing title insurance companies or their insureds, and disputes involving sales of real property. We consistently help clients assert and protect their property interests under extraordinarily difficult and complex circumstances. Indeed, our experience, if called on prior to the need for litigation services, can assist our clients in ultimately avoiding litigation.

Moreover, the many years of experience and wisdom honed by our tax, real estate and litigation attorneys affords our residential, commercial, industrial, municipal and nonprofit clients the comprehensive and cost-effective representation needed to maximize the value of their real property assets by successfully litigating disputes involving real property. Our real estate litigation experience runs the gamut and includes appeals before and from local boards and agencies; administrative matters; and cases before trial and appellate courts, tax courts, state supreme courts, and United States district courts and circuit courts of appeal.

In our representation of clients in consumer finance and real estate litigation matters, we are able to provide efficient service due to our development of a databank of forms and research, resulting in a significant reduction in the amount of time we need to spend gathering and preparing these documents. We have a network of experts to engage based on our clients' specific needs, including appraisers, economists, casino experts, auto industry experts, brokers, architects, planners, engineers, traffic experts, environmental experts and many more.

Representative Creditors' Rights Matters

Day Pitney's Creditors' Rights team has represented:

  • Originators of loans on a nationwide basis, defending claims by borrowers concerning the origination of their loans. We have had an unprecedented success rate on those claims, the majority of which have been dismissed on demurrer or in response to a motion to dismiss or motion for summary judgment, with little or no discovery.
  • Servicers of loans on a regional basis, defending claims by borrowers concerning the servicing of their loans. We actively work with our clients to see whether a modification of the loan is possible and, if not, aggressively move for the dismissal of any counterclaims intended to slow the foreclosure process.
  • Banks in the collection of millions of dollars by way of foreclosure or suits on notes and guarantees.
  • Credit card companies in actions under the Fair Credit Reporting Act (FCRA), including the representation of a major credit card issuer in numerous actions by cardholders brought in state and federal courts.
  • A lender in a landmark case that resulted in the first reported decision rejecting the imposition of a fiduciary duty on a lending bank in its relationship with a borrower, and in a precedent-setting truth-in-lending case.
  • A lender in connection with a putative class action arising under the Truth-in-Savings Act (TISA) alleging misleading advertisements and inadequate disclosures.
  • A bank in putative class actions in both federal and state courts alleging violations of the Truth-in-Lending Act (TILA) and various state disclosure laws, respectively, arising from assignment of residential mortgages.
  • A bank in a certified class action in federal court alleging violations of TILA, the Real Estate Settlement Procedures Act (RESPA), the Fair Debt Collection Practices Act (FDCPA) and various state statutes in connection with the satisfaction of residential mortgage loans.
  • A home equity lender in a national class action in federal court alleging violations of TILA and various state disclosure laws.
  • A mortgage company in a national class action involving 32,000 class members in federal court alleging wrongful payment of broker premiums and wrongful charging of satisfaction fees, as well as violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, RESPA, TILA, and various state statutes.
  • A home equity lender in a multistate class action relating to the purchase of home improvement loans, alleging violations of TILA, FDCPA and state law claims.
  • Debt collectors in purported class actions alleging claims under FDCPA.
  • A client in a putative class action in a state superior court, involving credit insurance charges.
  • A bank that made motor vehicle loans, in a statewide class action pending in a state superior court, alleging claims under certain state laws.
  • Lenders and collection agencies in individual actions involving claims under TILA, the Fair Billing Practices Act, FCRA and FDCPA.

Representative Real Estate Litigation Matters

Day Pitney's Real Estate team has handled a variety of real estate related matters, including:

  • Adverse Possession. We represented the owner of a multimillion-dollar home in an adverse possession action against an abutting neighbor. The neighbor claimed that a large portion of the client's property, which had been maintained by the client and the previous owner for more than 20 years, was actually part of the neighbor's property. The matter was resolved favorably for the client, who gained clear title to the disputed area.
  • Easements. Day Pitney successfully defended a client relative to an adverse possession claim in connection with land on an island, as well as prescriptive easement rights over pathways, wherein after a jury trial the jury denied the claimant half the possession claim advanced and denied prescriptive rights for one of two pathways.
  • Deed Restrictive Covenants. We successfully defended a client from a claim of application of a deed restriction/restrictive covenant from the 1950s allegedly restricting the use of the property to certain uses.
  • Real Property Assessment Appeals. The firm handled tax assessment appeals on a multimillion-square-foot industrial center, an automobile assembly plant, a rock quarry, an oil storage terminal, corporate headquarters complexes, casino-hotels and regional shopping malls. The firm has also handled real property tax appeals on estate-type homes and large-scale residential and farm and agricultural properties. In addition, the firm has been retained as special tax counsel by municipalities to assist in the defense of major tax assessment appeals and litigations involving real estate issues. The firm has handled property tax exemption matters for religious institutions, hospitals and continuing care facilities as well as for other exempt entities.
  • Condemnation and Eminent Domain. Day Pitney represented the owner of a flagship regional shopping mall, retailers, a pharmaceutical manufacturer and quarries in connection with condemnation and eminent domain proceedings in New Jersey and Connecticut. In so doing, the firm addressed traditional valuation issues, changes in site access, maintaining full access during the construction process, protecting environmentally sensitive areas of the property, managing changes in parking and circulation, granting easements for adjoining affected landowners, and preserving future development options for our clients.
  • Landlord/Tenant. The firm has represented clients in connection with a wide variety of landlord/tenant and lease disputes, including options to purchase/sales options, constructive defaults and related litigations, including summary dispossession and eviction proceedings. We have also defended clients relative to claims of consumer fraud in connection with the leasing of real estate.
  • Contracts. The firm has handled numerous cases involving breaches of contracts for the sale of real estate or for specific performance of such contracts. We have also prosecuted and defended consumer fraud claims in connection with the sale of real estate, typically involving construction, title or other defects.
  • Title Disputes. We have represented clients in matters involving back title and riparian grant matters.
  • Wireless and Telecommunications. We regularly represent our wireless communication clients in condemnation matters in which owned sites, site leases or site licenses are entirely taken or partially taken due to condemnation. These matters frequently involve substantial relocation issues due to the significant expense of the radiofrequency engineering costs necessary to develop a cellular telephone site or a relocated site. In addition, the firm has developed substantial experience representing wireless telecommunications companies and the telecom industry in connection with appeals of denials of zoning and planning applications or defense of appeals by objectors. We are thoroughly familiar with the Telecommunications Act and FCC regulations and how they apply in the local land use context.
  • Zoning and Land Use Disputes. We represent a wide range of clients in connection with appeals of denials by land use boards and litigations involving zoning and planning issues, such as challenges to ordinances, challenges to land use denials, approvals and defending objectors' suits. We have handled scores of prerogative writ matters as well as appeals in connection with such matters. In connection with settlements, we have appeared before land use boards in Whispering Woods hearings.