Real Estate Litigation
The Firm is tapped regularly by clients to represent them in disputes involving commercial and residential real estate. Illustrative of the matters we handle are those addressing commercial property workout, foreclosure and bankruptcy; cooperative-condominium issues; landlord-tenant problems; construction, fire and building regulations; building valuation matters; abutting property disputes; contracts of sale; mortgage commitments; receiverships; lien priorities; evictions; quiet-title actions and tax foreclosures.
ZEK’s representation of clients in real estate litigation exemplifies the diversity of its practice and the depth of its experience. Sophisticated clients recognize that achieving a successful result in a real estate litigation related matter is a function of the professionalism and competence of counsel and involves much more than simply prosecuting or defending a lawsuit. Because of our broad, multi-disciplinary experience we are able to efficiently and effectively litigate even the most complex issues that sometimes arise in real estate litigation.
For example, in the course of representing a lender in what could be characterized as a “routine” commercial foreclosure case, the Firm litigated several thorny issues. The varied background of ZEK’s attorneys was responsible for: defeating a borrower’s lender liability claims which formed the predicate for a motion to vacate the appointment of a rent receiver; representing the lender as a creditor in the bankruptcy case that the borrower subsequently filed; assisting the bankruptcy trustee in prosecuting a landlord/tenant action to terminate a fraudulent, long term, below-market commercial lease between the borrower and an affiliate; and ultimately representing the lender in negotiating the terms of the bankruptcy trustee’s sale of the real estate free and clear of liens.
Similarly illustrative is a case in which it represented a lender in connection with a non-performing multi-million dollar loan secured by mortgages on real property in New York and California and shares of stock in New York cooperative housing corporations. A key legal issue involved the interplay of the California “one action rule” and strategies for enforcing multiple types of security interests.
ZEK also appeared on behalf of the trustee of a pool of collateralized mortgage-backed securities, and prosecuted a foreclosure action on a defaulted loan secured by a mortgage on a shopping center, whose anchor tenant filed for bankruptcy and rejected the lease. The case was resolved by restructuring the Borrower’s obligations. ZEK also represented a trustee of a pool of collateralized mortgage-backed securities in connection with a bankruptcy court ordered assumption of a lease for a regional retail distribution center. As part of its representation of the trustee, ZEK resolved multiple outstanding environmental issues arising from contamination of the site caused by a gasoline discharge. Similarly, as counsel for the assignee of the successful bid at a public sale held in connection with a commercial foreclosure action, ZEK successfully pursued an action to terminate the rights of commercial tenants who held long-term below-market leases.
While ZEK is called upon to handle the most sophisticated real estate workouts, it has also for many years litigated more standard commercial real estate workout matters on a price advantaged basis. Such representations have included one or more of the following: commercial foreclosures, restructurings and bankruptcies.
Concerning non-performing residential real estate loans, ZEK is called upon by clients to represent them in the defense of claims which arise, rather than handling routine foreclosures. Clients refer to ZEK residential foreclosure matters, begun by other firms in which serious or troublesome counterclaims are asserted. Similarly, ZEK is asked by clients to defend lawsuits brought by others attacking clients’ actions in originating such loans or in handling the default and collection of them.