Fitch Law Partners LLP
Excellence in Complex Litigation
617-542-5542

August 2012 Archives

Prospective Effect of Eaton Should Chill Litigation In 'Unity of Note and Mortgage' Cases

The Supreme Judicial Court's ("SJC's") self-imposed limitation on applicability of Eaton v. Federal National Mortgage Association, 462 Mass. 569 (2012) should reduce to a trickle the once-steady stream of foreclosure-related claims asserting that a mortgagee must hold the underlying note in order to effectively foreclose in Massachusetts. 

When the Hague Service Convention Fails: Service by Newspaper?

According to a report in the Wall Street Journal, the U.S. Securities and Exchange Commission has received permission from a federal judge to serve summonses on four former Siemens AG executives by publishing the summonses in the International Herald Tribune and emailing the defendants' lawyers in Germany.

Divorce Considerations for Business Owners and their Spouses

Business owners and their spouses involved in a pending divorce should consider various issues specifically related to business ownership.  Here are a few of such considerations:

Read (and Draft) That Forum Selection Clause Carefully!

The Massachusetts Appeals Court has ruled that a party to a business contract could file suit in Massachusetts even though the contract specified that "jurisdiction shall vest in the State of Illinois."  The Appeals Court held that the "jurisdiction shall vest" language is merely permissive and does not require that suit between the contracting parties be brought in Illinois. Boland v. George S. May International Company, No. 11-P-1300, slip op. (Mass.App.Ct. June 7, 2012).  

Is It Possible To Recover Attorney's Fees in a Business Dispute?

Your company has been wronged. A vendor failed to deliver as promised causing lost sales. A customer has failed to pay for services rendered. A construction contractor's shoddy workmanship resulted in leaks and damage in your company warehouse. The defendant will not pay up voluntarily, so your business has decided to engage a law firm to file a lawsuit to recover the damages. Can your company recover its attorney's fees and other litigation costs? 

In Public Projects, Subcontractors' Payment Bond Rights Are Not Waive-able

A recent Supreme Judicial Court decision should provide subcontractors who perform work on public projects with welcome assurance that payment bonds provide meaningful protection against non-payment.  In Costa v. Brait Builders Corp., 463 Mass. 65 (2012), the SJC held squarely that a subcontractor's rights under a statutorily required payment bond cannot be waived in a private contract between subcontractor and general contractor.  Since mechanic's liens are unavailable in public projects, we at Fitch Law Partners LLP view the security Costa affords subcontractors as important.

Re-foreclosure as a Remedy: Bevilacqua and Eaton

Last fall, in Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), the Supreme Judicial Court (the "SJC") quashed the hopes of many that a "try title" action available by statute in Massachusetts would provide a mechanism to clear the title of a post-foreclosure owner whose predecessor failed to obtain a mortgage assignment prior to conducting a foreclosure sale.  (See U.S. Bank National Association v. Ibanez, 458 Mass. 637 (2011) for discussion of this particular title defect.)

Go-Best: An Important Massachusetts Banking Law Decision

On July 30, the Massachusetts Supreme Judicial Court ("SJC") issued an important decision in a Ponzi scheme captioned Go-Best Assets Limited v. Citizens Bank of Massachusetts, 463 Mass. 50 (2012).  

'The Cost of Doing Business' in Developing Economies and the FCPA

According to recent reports, lawyers for Wal-Mart have identified China, Brazil, South Africa, India, and Mexico as potential hotbeds for corruption risk. The findings come in the wake of an April New York Times story alleging that Wal-Mart and its largest foreign subsidiary, Wal-Mart de México (or, Walmex), covered up a bribery investigation involving top company executives and millions of dollars in payments to Mexican government officials.

A Safe Harbor For Banks And Their Employees Who Contact Law Enforcement Authorities

In the course of performing their job duties, bank tellers and their supervisors may occasionally be asked to perform a transaction that appears to be somewhat suspicious.  For example, a non-customer of the bank may arrive in the teller line and ask to cash a large check drawn on an account of one of the bank's customers.  In some such cases, bank personnel may come to believe that the subject transaction is fraudulent.  While most banks have very detailed procedures for addressing these situations, bank personnel must sometimes make a quick decision about whether to alert law enforcement personnel.  In certain cases, though, bank employees may have concerns about whether they will incur civil liability to the non-customer if they alert the police but the transaction ultimately turns out to be legitimate.  While such concerns are certainly understandable in our highly litigious society, bank personnel can take some comfort in knowing that federal law provides them with considerable protection in these situations.

The "Same Wrongdoer" Defense In Check Fraud Litigation

In "check fraud" litigation, bank customers often sue their banks after learning that someone has made a forged or otherwise unauthorized signature on the front of one or more of the customer's checks.  It often turns out that the fraudster has perpetrated the scheme over a long period of time and has made unauthorized signatures on many different checks.   This article offers a brief overview of the "same wrongdoer" rule, an important defense that is available to banks in such cases under the Uniform Commercial Code ("UCC") as adopted in Massachusetts.

Bank of New York v. Bailey: Is Non-Judicial Foreclosure An Oxymoron?

In Massachusetts, mortgage foreclosure has long been considered "non-judicial," meaning that it is unnecessary to initiate an action before a Court to foreclose, and there is no judicial oversight of foreclosures unless a mortgagor brings a claim based on alleged improprieties in the exercise of the power of sale. 

Contact Us

Fitch Law Partners LLP
1 Beacon Street
Boston, MA 02108

Phone: 617-542-5542
Fax: 617-542-1542
Boston Law Office Map

Fitch Law Partners LLP
56 Pine St
Providence, RI 02903

Phone: 401-521-6500
Fax: 401-274-2780
Providence Law Office Map

Fitch Law Partners LLP
110 Cedar Street
Suite 250
Wellesley Hills, MA 02481

Phone: 617-542-5542
Fax: 617-542-1542
Map & Directions