Banking & Financial Services Litigation

Experience Highlights

Commercial Loan Litigation:

• Successfully represented many different financial institutions in enforcing large commercial loan agreements and guarantee agreements and in lender liability claims raised by borrowers in defense of those claims (including (among many) claims of fraud, suppression, interference with business relations, breach of fiduciary duty, conversion, and trademark infringement), recovering more than $100 million dollars of claims for debts owed to financial institutions.
• Representing financial institution in participation agreement litigation in MDL over $150 Million transaction for complex synthetic lease financing involving a Ponzi scheme, fraudulently overstated financials and kickbacks of overinflated invoices.
• Successfully defended a multi-million dollar claim against a bank for conversion and trademark infringement and recovered on a counterclaim arising from the debt owed to the bank.
• Successfully defended a bank from claims of the debtor and contractor for fraud arising from the financing and recordation of security agreements for a commercial development and recovered loan proceeds for the bank.
• Successfully defended claim by boating retailer that national manufacturer and financing company had improperly induced them to renegotiate their financing arrangement with knowledge of the ending of the boating business.
• Successfully defended claim by developer against bank involving alleged representations related to loan and guarantee modifications and alleged interference with business and efforts to liquidate the collateral.
• Successfully represented bank in enforcing agreement with auto dealer relating to obligations for restitution for losses of hundreds of thousands on fraudulent consumer loan applications. Currently representing other lenders on similar claims.
• Successfully represented insured banks in fidelity bond claims.

Routine Banking Litigation

• Defeated several class actions over the fees resulting from the posting order of items
• Defended claims regarding whether CDs were paid, were payable, were paid to correct persons, and similar claims
• Defended claims that accounts were paid to incorrect persons or paid inconsistently with instructions. 

Director and Officer Defense

Balch has defended former officers and directors of a wholesale corporate credit union against claims under state and state and federal securities laws, fraud, and breach of fiduciary duty in connection with a conversion of certain capital accounts of the wholesale credit union and relating to investments in mortgage-backed securities.

Fair Credit Reporting Act (“FCRA”)

Our practice has defended numerous FCRA claims against an assortment of financial services entities. We have defended FCRA claims against a mortgage loan servicer and successfully defended a number of claims filed against one of the major credit reporting agencies. In additional, we have successfully represented lenders in allegations related to improper purposes in reviewing credit of consumers.

Fair Debt Collection Practices Act (“FDCPA”)

Represented debt collectors in hundreds of individual lawsuits over alleged violations of the FDCPA, including claims regarding signing of collection letters by counsel, collection of claims allegedly time barred, mistaken collection efforts because of misinformation by initial creditor, collection efforts outside of appropriate hours, collection efforts directed towards persons other than the debtor among many other claims. We have also successfully defended class actions under the FDCPA (for instance, recently successfully compelling such a claim to arbitration). We have won countless individual actions with motion practice and have tried other FDCPA cases to jury verdicts.

RESPA:

Our firm has defended a number of class actions related to both RESPA Sections 8(a) and 8(b) for settlement service providers, home warranty company, banks, title insurance agents, and finance companies.

Mortgage and Escrow Litigation:

We have defended a variety of claims against banks, mortgage companies, loan servicers, title insurers (among others) dealing with fees charged, foreclosure, and escrow accounts. The claims have been included mass litigation (consolidated by the MDL panel), individual litigation and class actions. Examples include claims of improper charges against escrow accounts, inappropriate interest charges, force placed insurance as well as failure to place insurance. Additionally, we have defended hundreds of loan servicers lawsuits including wrongful foreclosure matters, misapplication of payments, force placed insurance, TRO/PI to prevent foreclosures, fraud, failure to credit payments, failure to follow provisions in note and/or mortgage, invasion of privacy claims (relating to phone calls), alleged false reporting of consumer/business debt.

• Defended class action against national loan servicer alleging wrongful imposition of insurance charges, misapplication of payments, misstatements of amounts owed, and fraud.
• Defending class action against national loan servicer alleging improper assessment of post-petition fees including BPO’s, attorney fees, property inspection fees, foreclosure related costs, costs to secure the property, etc.
• Defended attack on rights to Note because of MERS’ status as mortgagee.
• Defended claims relating to whether the Note or mortgage were enforceable (for instance, that the assignments were invalid or that the securization was inappropriate, etc.).
• Defended counterclaims against bank related to alleged fraud in connection with efforts to collect deficiencies resulting from short sales.
• Defended claims regarding allegedly improper payment of insurance proceeds to construction contractors.
• Defended disputes over boundary lines (and demands upon title insurance companies).
• Defended bankruptcy adversary proceedings.
• Defended quiet title claims.

UCC Article 3 & 4 & 4A Litigation

Balch has defended countless lawsuits in which consumers or financial institutions claimed that the liability for fraudulently issued, fraudulently endorsed, or otherwise invalid or worthless checks should fall on the defendants. Examples of these cases include:

• Successfully defended major regional bank in action brought by business for multiple fraudulently drawn checks by employees over multi-year time frame.
• Successfully defended bank from claims by business account holder when employee embezzled funds.
• Successfully tried action in federal court against former bookkeeper of account holder for presenting false checks and for knowingly kiting checks between commonly owned businesses.
• Defended major regional bank in state court lawsuit by business over hundreds of thousands of dollars of fraudulently endorsed checks by employees over a two year time frame.
• Successfully defended action by depositor over large certified check and wiring instructions to foreign country and resulting overdraft.

Merchant Credit Card Litigation:

We have prosecuted cases for a merchant credit card issuer against ISO’s and merchants for amounts owed for fees and chargebacks, including disputes over the duty owed by a merchant processor, successfully recovering virtually all amounts. Such litigation involved world-wide searches for assets and the prosecution of actions in several countries simultaneously, as well as coordinating with federal law enforcement personnel.

We have also represented nonbanks in credit card matters including representing an ISO and representing a nonbank which was contracting with banks for the privilege of issuing credit cards (including representing them as to whether the FTC had the authority to regulate their activities and in defending a class action brought under the Credit Repair Organization Act).

Identity Theft:

Recently claims of identity theft have expanded and will likely continue to expand. Examples of recent matters handled by this Group include defending banks against claims that an imposter opened a checking account, and defense of credit collection companies attempting to collect outstanding debts from consumers whose identities were stolen.

Equal Credit Opportunity Act (“ECOA”):

We have defended ECOA actions against financial institutions and other institutions. For instance, we successfully defended a class action raising such ECOA claims relating to auto loans, compelling arbitration.

State Tax Litigation for Financial Institutions:

We have assisted several financial institutions in disputing amounts owed for state taxes, including multiple actions. The legal issues raised by these actions ranged broadly from nexus issues to the status of certain subsidiaries as financial institutions. 

Real Property/Title Insurance Litigation:

The firm is a recognized regional authority in real estate litigation, for landowners, governmental agencies, public utilities, and title insurers. Balch has represented many of the leading title insurers over large and small disputes and has become an authority on title insurance law. Our attorneys also handle a range of litigated matters including disputes involving adverse possession, condominiums, easements, ejectment and quiet title actions, mechanic’s liens, nuisance, premises liability, title insurance coverage and trespass. Balch has handled hundreds of condemnation cases, and has also participated in the writing of statutes on condemnation. In addition to litigating cases in the federal and state courts, we have been retained by individuals and companies to serve as appellate counsel, and have filed numerous amicus curiae briefs on behalf of clients. Examples of recent matters include:

• Routinely handle claims for title insurance and real estate information industry clients in connection with coverage issues, claims evaluation and litigation, curative title work, defense of first-party and third-party actions, subrogation, flood zone and other certifications, and agency issues.
• Multi-state water rights litigation involving the States of Alabama, Florida and Georgia, the United States Army Corp of Engineers, and local Alabama and Georgia water users in both the Alabama, Coosa, Tallapoosa Basin (Northern District of Alabama) and the Appalachicola, Chattahoochee, Flint Basin (Middle District of Florida).
• Defended multiple flood damage claims by landowners in six Alabama counties downstream from Tallapoosa River hydroelectric projects.
• Obtained summary judgment for public electric utility in a trespass action relating to the scope of a power line easement, and won affirmance by the Supreme Court of Alabama.
• Regularly represent clients in eminent domain proceedings including utility companies, universities, and a major pipeline company.
• Successfully defended major class action against Investor Owned Utility related to third-party use of fiber optic telecommunication lines across easements.
• Currently defending federally licensed operator of hydroelectric dam against putative class claims by lake-front property owners for damages and injunctive relief concerning fluctuation of water levels in the reservoir to support downstream water quality and other purposes.