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Virtually everyone in the real estate world deals with Bad Acts every single day -- all clients have these as major concerns. And we feel that Bad Acts are where the rubber meets the road for critical lawyering to protect our clients’ interests.

Practice Group Leader: Kirk Brett


What is a “Bad Act?”

You know a Bad Act when you see it.

You know a Bad Act when it is done to you.

And you know a Bad Act when you are (wrongfully) accused of it.

You also know a Bad Act in a real estate transaction when it is defined as something you might be personally liable for.

And you know a Bad Act in a real estate transaction when you want to make sure that anyone who does a Bad Act is personally liable for it.

Bad Acts are all over the real estate world and that is the reason we have a practice specifically devoted to it.  To be clear, Bad Acts include, most obviously, things like fraud, misrepresentation, misappropriation, libel and slander, tortious interference with contract, and a host of other actions that are obviously, well, ‘bad.’

However, in the real estate world they also include a sometimes incredibly long list of actions that are not necessarily ‘evil’ but are a serious and deep breach of transactions documents.  These include actions such as impermissible transfers, wrongfully liening an asset, not paying real estate taxes and insurance, bankruptcy, resisting a lender’s exercise of remedies, failure to pay transfer taxes on a foreclosure, and many, many more.   

Virtually everyone in the real estate world deals with Bad Acts every single day -- all clients have these as major concerns.  And we feel that Bad Acts are where the rubber meets the road for critical lawyering to protect our clients’ interests.

Indeed, we are not afraid to really push our clients in negotiating documents when Bad Acts are part of the matter at hand.  This is because it is the one place where the client’s entire house could fall down on him or her.  It is one thing to have a deal go badly; it is quite another thing for:

  • A client to have her entire net worth go up in smoke from a Bad Act claim by a lender

  • A lender client to be bamboozled by an unscrupulous borrower

  • A client’s reputation to be destroyed

  • A client to be defrauded or otherwise harmed

These are risks that we don’t want our clients to take.  And these are situations where we will go to war to protect our clients.  Everything is on the line – or could be on the line – in these situations, and this is the heart of what our clients need great lawyers for.

For these reasons we have developed a practice group particularly devoted to Bad Acts.

This is perfect for us because it melds together our litigation practice (with its Strategic Warriors) and our real estate practice (with its lawyers who deal every day setting up real estate transactions).

There are two areas we focus on in respect of Bad Acts issues: Dispute Situations and Real Estate Transactions.

For Dispute Situations there are two areas of concern:

  • Our client may be the victim of a Bad Actor. 

  • Or our client may be wrongfully accused of a Bad Act.

For Real Estate Transactions, the goal is simple; namely, to aggressively negotiate the Bad Acts provisions so that if someday the transaction becomes stressed, our client will not be victimized by alleged Bad Acts or taken advantage of by the Bad Acts of other parties. 

All of this is not marketing fluff.  Many of our clients use our senior partners to sign off on ‘every single guaranty’ they ever sign (even if they are using another law firm for a specific matter).  Many of our clients look to us so that they cannot worry; indeed, one client said, famously, “I sleep better at night knowing you guys are on the job.”  And when the sh_t hit the fan with the famous Cherryland decision (Wells Fargo Bank, NA v. Cherryland Mall Ltd. P'ship, et al. (Mich. App. Dec. 27, 2011)), which effectively made every single securitized loan springing recourse to the borrower’s principals, we are proud to have been the ONLY law firm that had aggressively negotiated this out of the CMBS documents ahead of time.  Some of our clients woke up tossing and turning about this risk and we told them to go right back to sleep peacefully. 

The Firm’s Real Estate Bad Acts Practice Group is led by the following partners:

Kirk Brett – litigation and bankruptcy specialist.  Kirk’s creativity and aggressiveness have saved the day so often that he is informally known as “The Wolf ” from the movie, Pulp Fiction. 

Tim Pastore – chair of our Litigation Department.  Tim is a former U.S. Air Force JAG and Special Assistant U.S. Attorney who put bad actors in prison…and now uses those skills to protect against bad actors in the real estate industry.

Richard Schulman – a senior litigator with deep experience in defending and prosecuting claims of fraud in New York state and federal courts.

Todd Eisner – a senior real estate partner who has reviewed, negotiated and fought through, not hundred, but thousands, of guaranties over his twenty-plus year career.

Bruce Stachenfeld – the firm’s Chairman.  Bruce’s focus is on ‘helping our clients grow their businesses’ and with this focus there is no way he will not be in our group protecting clients from something that could destroy all that has been built up over many years.

To conclude, if you are a victim of a Bad Act, wrongfully accused of a Bad Act, or want to protect yourself from downside from future Bad Act accusations, our litigation and real estate groups are here to have your back through our Real Estate Bad Acts Practice Group. 


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