COLLECTION & CREDITOR’S RIGHTS
Our firm works to help creditor clients achieve greater recovery in the quickest and most cost-effective manner. We have many years of experience and extensive expertise in the areas that most concern creditors, including replevin, collection, bankruptcy, and litigation. We have represented national financial institutions and creditors of all sizes. We are also well-versed in other areas of litigation such as commercial real estate mortgage foreclosures and contract actions. We also have extensive experience representing individual and corporate borrowers and debtors. Unlike many other firms who have only one-sided experience, we have a deep understanding of both sides: we know the laws that affect creditors and debtors. We have also represented bankruptcy trustees and so we actually have a unique understanding of all three possible perspectives that can affect creditors and debtors. We know the strategies that all sides may employ and how to respond effectively and efficiently.
In these difficult times, many obligors can be expected to default on their notes, security agreements, lease payments, credit cards and other bills. Our firm has had great success in enforcing creditors’ rights to recover debts, collateral and to collect deficiency balances. We take an aggressive approach to enforcing a creditor’s remedies in order to ensure the maximum possible collection in the shortest time. In cases involving security agreements and collateral, we seek to swiftly obtain court orders of seizure directing the sheriff to seize collateral.
Our firm has years of experience handling matters involving replevin actions to recover equipment and vehicles. Attorney Scott Lanin has represented H.O. Penn Equipment Company, Inc. (the largest dealer on the East Coast of Caterpillar construction equipment and electrical generators) since 1995 (more than 16 years). He has also represented European American Bank and Citibank, Shinhan Bank America (the first Korean Bank and the second largest in Korea), Caterpillar Financial Services, Inc., Mitsubishi Motors Credit, BMW Financial and other lenders and lessors over many years at prior law firms in collection and replevin actions.
See a list of major corporate clients Attorney Scott Lanin has represented (link coming soon)
Generally, replevin cases are commenced by the filing of a summons and complaint, and an order to show cause requesting an order of seizure directing the Sheriff to seize the property. This preliminary relief can be sought simultaneously with the commencement of the underlying action for a money judgment on the debt. We handle this in the 5 counties (boros) of New York City, and throughout the Greater New York area, including Long Island, Westchester and Rockland.
Often, the order to show cause that seeks an order of seizure will also contain a request for a TRO (temporary restraining order). This is designed as a temporary remedy to prevent the debtor/obligor from transferring or hiding equipment or collateral. In the complaint, we add a cause of action for a preliminary and permanent injunction as well.
Usually, the sole issue determined on a motion for an order of seizure is who has the greater right of possession to leased or collateral equipment. Attorney Scott Lanin has had great success establishing that it is the lessor who has the greater right to possession, and over the years has frequently obtained this relief.
Although preliminary in nature, an order of seizure can abruptly cause a lessee or obligor to settle the entire lawsuit. If the lessee/obligor wishes to continue to use a piece of equipment or collateral to stay in business, it will usually stipulate to make payments to the lessor/creditor of all sums due (including attorney’s fees, together with court costs), while consenting to the entry of an order of seizure. Under a typical settlement, the order is held in abeyance provided the lessee/obligor continues to comply with the settlement terms and make the required payments. Upon default and the failure of the lessee to cure after notice of default, the lessor/creditor is then in a position to immediately proceed with the seizure of the equipment without further resort to the courts. Our settlement stipulations also provide for the immediate entry of a money judgment upon default.
In those instances where an order of seizure is not practical (i.e., where the location of the equipment is unknown), we make a motion for an order directing the lessee/obligor to testify before the court as to the location of the equipment. We also proceed to trial in order to pressure the lessee/obligor, or the co-lessee or guarantor, to settle.
Alternatively, courts in New York have frequently showed a willingness to grant motions for summary judgment where there are no true issues of fact, instead of requiring testimony at trial. A summary judgment is the equivalent of having a streamlined trial entirely on paper, relying on affidavits and exhibits and a memorandum of law. We have found such motions to be a highly effective and economical tool. Attorney Scott Lanin has drafted and handled hundreds of summary judgment motions in commercial litigation since 1989. He is experienced at presenting oral argument of motions in the State and Federal courts throughout New York.
See reported decisions and orders obtained by Attorney Scott Lanin (link coming soon)
