Archive for Commercial Law

Duty of Reasonable Inquiry does not include Bankruptcy Search

Duty of Reasonable Inquiry does not include Bankruptcy Search

  • November 17th, 2010
  • W. Jay Brown
  • Comments Off on Duty of Reasonable Inquiry does not include Bankruptcy Search

Like many attorneys, I’ve experienced the uncomfortable feeling of being blindsided by a previously unknown fact that a client should have told me being raised in litigation. The recent opinion issued by the Michigan Court of Appeals in Food Solutions…

Defending Collections against Spousal Guaranties

Defending Collections against Spousal Guaranties

  • September 23rd, 2010
  • W. Jay Brown
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It’s becoming an all-too-familiar fact pattern: a former spouse loses his business and is uncollectable/bankrupt leaving the bank to look to the former spouse for collection pursuant to a guaranty taken out during the marriage. In those instances, lawyers need…

Michigan Contract Disputes – Rebirth of the Latent Ambiguity Doctrine

Michigan Contract Disputes – Rebirth of the Latent Ambiguity Doctrine

  • August 27th, 2010
  • W. Jay Brown
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This week, the Michigan Supreme Court released its opinion in Shay v Aldrich, (# 138908 released August 23, 2010) and held that sometimes, “all” does not mean “all.” The facts in Shay were straight-forward – a plaintiff settled with two…

Statutory Conversion Creativity

Statutory Conversion Creativity

  • January 22nd, 2010
  • W. Jay Brown
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Michigan’s statutory conversion statute (MCLA 600.2919a) used to confine its enhanced remedy to those who were wrongfully in receipt of converted assets. However, as it didn’t make sense to treat the person receiving the assets more harshly than the converter,…

Precluding Fraud Claims- The Winning Provision to put in your Contracts

Precluding Fraud Claims- The Winning Provision to put in your Contracts

  • January 22nd, 2010
  • W. Jay Brown
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For years, commercial litigators have used merger clauses within contracts as a defense to fraud claims. The merger clause can prevent evidence of fraud from being introduced via the parol evidence rule and can also make any alleged reliance “unreasonable.”…

Deficiency Actions against Guarantors

Deficiency Actions against Guarantors

  • January 22nd, 2010
  • W. Jay Brown
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Recently, the Michigan Court of Appeals in Dearborn Capital Corporation v Facundo Bravo, (Docket No. 284274 released 9/22/09) issued a decision that serves as a harsh reminder to creditors of the consequences of failing to observe the letter of the…

Actions Involving Corporations

Actions Involving Corporations

  • January 22nd, 2010
  • W. Jay Brown
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Business litigation involving a corporation typically involves claims brought under the Michigan Business Corporations Act (“BCA”), MCLA 450.1101 et. seq. However, the BCA is not the only source of statutory claims involving corporations. Section 3605 of the Revised Judicature Act,…

Bankruptcy Discharge of Litigation Debts

Bankruptcy Discharge of Litigation Debts

  • January 22nd, 2010
  • W. Jay Brown
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An understanding of whether a debt is dischargeable in bankruptcy is essential to a business and commercial litigator for at least three reasons – – (1) to structure the claims being brought in the complaint; (2) to evaluate the credibility…

The Powerful Remedies of the Builders Trust Fund Act

The Powerful Remedies of the Builders Trust Fund Act

  • January 22nd, 2010
  • W. Jay Brown
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It’s a typical scenario- a subcontractor or supplier is owed money from a contractor but hasn’t perfected a right to a construction lien. The subcontractor or supplier think they are out of luck and are stuck with an uncollectable breach…