Christopher J. Breay  Member

Christopher Breay has 17 years of experience in business and real estate litigation, as well as in counseling businesses on various issues that arise in their operations, including contract review, negotiation, and drafting; employment matters; and intellectual property issues.  He has broad experience in real estate lending litigation, and since the 2008 financial crisis, has been extensively engaged in defending financial institutions, including trustees of securitized loans and their servicers, against various federal- and state-law claims arising out of mortgage lending and foreclosure activities.     

Representative Clients:

• Wells Fargo Bank, N.A.
• U.S. Bank, N.A.
• Deutsche Bank AG
• Grand Rapids Plastics
• MacDonald’s Industrial Products, Inc.
• Adtegrity.com, Inc.
• Furniture Resource Group

Representative Experience:

Real Estate and Lending

• Defended trustee and servicer of securitized loan in lender-liability suit arising out of foreclosure of commercial properties.  Dispute was litigated in adversary proceeding in bankruptcy court and related state-court action.  Won  motions to dismiss all claims in both actions before any depositions in either [W.D. Mich. 2011; Ingham Cty. Cir. Ct. 2011] 
  
  
• Currently representing commercial landlord in suit to recover unpaid rent from company related to tenant but that had no contract with landlord. Won motion for summary judgment against related company for full amount owed, including attorneys’ fees, on theory that corporate veil of tenant should be pierced [W.D. Mich. 2011].  Appeal pending [6th Cir. 2011]
  
  
• Defended lender in action involving eight claims based on federal and state statutory- and common law, including variations of claims based on HAMP negotiations and alleged modification agreement.  Won motion to dismiss all claims before any depositions [W.D. Mich. 2011]
  
  
• Defended lender in action challenging validity of MERS assignments and foreclosure, which implicated recent holdings of Michigan Court of Appeals and Michigan Supreme Court in Residential Funding v. Saurman.  Won motion to dismiss all claims before any depositions [Kent Cty. Cir. Ct. 2011]
  
  
• Defended lender against claims of alleged violations of Fair Credit Reporting Act.  Won motion for summary disposition resulting in dismissal of all claims before any depositions [63d. Dist. Ct. 2011]
  
  
• Defended trustee and servicer in action involving securitized loan and advancing 12 claims based on federal and state statutory- and common law.  Won motion to dismiss all claims before any  depositions [W.D. Mich. 2010]
  
  
• Conducted seven-day arbitration on behalf of real estate investor suing to recover deposits from seller of hotels.  Won arbitration award for full amount of deposits and vast majority of attorneys’ fees incurred by investor [AAA, W.D. Mich. 2008]
  
  
• Defended lender in action based on alleged duties to plaintiff to ensure loan documentation protected plaintiff.  Won motion for summary disposition of all claims before any discovery [Ottawa Cty. Cir. Ct. 2006] 
  
  
• Defended lender against claims based on alleged forgery of durable power of attorney by third party to draw on accounts owned by plaintiff.  Won motion to dismiss all claims before any discovery [Muskegon Cty. Cir. Ct. 2005]
  
  
• Defended lender in litigation arising out of construction project.  Won motion to dismiss all claims before any depositions.  Won motion for attorneys’ fees  incurred since plaintiffs rejected offer of judgment at inception of litigation [Ingham Cty. Cir. Ct. 2003]
  
  
• Defended lender against claims arising out of recent amendments to foreclosure statutes in Michigan.  Settlement efforts resulted in plaintiffs withdrawing complaint before any discovery or motion practice [W.D. Mich. 2011]
  
  
• Defended lender in action to suspend running of redemption period based on foreclosure of property allegedly in excess of that covered by mortgage.  Defeated motion for injunction to effectuate same.  Filed motion for summary disposition that forced plaintiff to voluntarily dismiss complaint [Leelanau Cty. Cir. Ct.  2011]
  
  
• Defended real estate developer in suit brought by lender to collect deficiency judgment subsequent to foreclosure of mortgage.  Defeated lender’s motion for summary disposition on basis that lender’s bid at foreclosure sale was in excess of value of property.  Successful opposition led to favorable settlement [Ottawa Cty. Cir. Ct. 2010] 
  
  
• Defended trustee and servicer in action involving securitized loan and advancing multiple federal- and state-law claims.  Filed motion to dismiss that forced settlement resulting in no payment to plaintiff, and plaintiff paying significant sum to trustee for losses related to default and foreclosure [W.D. Mich. 2008]
  
  
• Represented commercial landlord against lender that assumed lease obligations of automotive supplier by entering landlord’s properties pursuant to access agreement.  Vigorous prosecution resulted in favorable settlement for landlord on eve of trial [Kent Cty. Cir. Ct.  2006]
  
  
• Prosecuted foreclosure of $2.3M mortgage for troubled property that resulted in appointment of receiver, collection of rents, judgment for full amount of loan, sheriff's deed to mortgagee, and redemption of property [Kent Cty. Cir. Ct. 2005]
  
  
• Defended real estate developer sued by general contractor for breach of contract and to foreclose construction lien in amount exceeding $.5M.   Vigorous defense forced pre-trial settlement resulting in full discharge of lien and developer paying nothing to contractor [Kalamazoo Cty. Cir. Ct.  2005]
  
  
• Prosecuted foreclosure of mortgages securing $8M consolidated loan covering three properties in three different counties in single litigation that resulted in payoff on two and sheriff's deed on third [Berrien Cty. Cir. Ct.  2003]
  
  
• Advised developer of $350M mixed-use project on various legal aspects, including status and consequences of annexation and reclamation litigations affecting property; legal implications of utilizing alternative ownership structures for the purchase of various parcels related to development; and scope of municipality’s power to impose requirements on developer, such as “traffic mitigation” measures.   
  
  
• Currently defending lender in action based on “bifurcation” of note and mortgage and purported invalidity of assignments of same [W.D. Mich. 2011]
  
  
• Currently defending lender in post-foreclosure quiet-title action with competing lienholder in dispute involving interpretation of recording statutes [E.D. Mich. 2011]
  
  
• Currently defending lender and its servicer in federal court action arising out of foreclosure proceeding and multiple state-court related proceedings based on various alleged deficiencies of foreclosure and purported modification agreement [W.D. Mich. 2011]  

Automotive

• Tried contract dispute to bench over seven days.  Defended automotive supplier against claims it wrongfully terminated contract with robotic painting vendor.  Trial efforts resulted in judgment halving out-of-pocket costs sought by vendor, and completely denying any amount of lost profits claimed by vendor [Kent Cty. Cir. Ct. 2005]
  
  
• Tried contract dispute to jury over seven days as co-chair of defense team.  Won no-cause verdict for client sued for breach of agreement to sponsor Indy-car racing team.  Plaintiff claimed that alleged breach resulted in over $2M in damages, including inability to race Scott Goodyear in 1995 Indy 500 (who drove for a different team and won substantial prize money) and lost opportunity for additional sponsors for remainder of season.  Jury accepted our defense that there was no “meeting of the minds” of the parties on a critical term of the agreement and, therefore, no contract [E.D. Mich. 1999]
  
  
• Represented seller of automotive business in case where buyer defaulted on purchase agreements.  Initiated two separate litigations for money judgment and to evict buyer from facilities owned by seller.  Won motion for summary disposition in first suit, which included award of $1.5M to seller and all attorneys’ fees incurred, and won judgment of possession for seller in second [Kent Cty. Cir. Ct. 2003]
  
  
• Represented seller in wrongful termination case involving supply of trim for luxury SUV.  Case settled at facilitative mediation in arrangement involving payment of substantial sum to seller and seller paying nothing to buyer on counterclaims [W.D. Mich. 2004] 
  
  
• Advised automotive supplier in multi-million dollar engineering dispute with numerous parties in supply chain, which resulted in favorable pre-litigation settlement [2010]
  
  
• Defeated motion for summary disposition by arguing that “no consequential damages” provision in quote of seller of auto parts was “knocked out” by UCC 2-207 and term in buyer’s subsequently-issued purchase order that allowed buyer to recover “all damages” incurred [Oakland Cty. Cir. Ct. 2000]

Intellectual Property / Unfair Competition

• Prosecuted claims of misappropriation of trade secrets in partnership dispute.  Won motions for temporary restraining order and preliminary injunction preventing continued misappropriation of trade secrets [Kent Cty. Cir. Ct. 2004]
  
  
• Currently representing company against partner that misappropriated intellectual property to compete unlawfully [Berrien Cty. Cir. Ct. 2011]
  
  
• Represented medical provider in dispute with competitor based on competitor’s false advertising.  Persuaded competitor to withdraw advertisement without filing suit [2009] 
  
  
• Regularly advise clients on trademark and copyright issues, and represent clients in disputes relating to intellectual property and other unfair competition issues.

Employment

• Defended employer against charges of age and race discrimination.  Won request to have EEOC and MDCR dismiss charge without litigation [MDCR 2011]
  
  
• Won motion for temporary restraining order to prevent former employee from continuing to violate non-compete and non-solicitation obligations.  Litigation forced former employee to enter into settlement very favorable to former employer [Ottawa Cty. Cir. Ct. 2010]
  
  
• Defended employer against charges of sexual harassment.  Drafted letter in response to demand letter that caused claimant to withdraw all charges before any litigation was initiated [2008]
  
  
• Defended former employer against charges of sexual harassment.  Won request to have EEOC and MDCR dismiss charge without litigation [EEOC 2001]
  
  
• Regularly advise and represent employers as to issues involving alleged wrongful discharge and various forms of alleged discrimination, and unfair competition by former employees. 

Injunction

• Defended trustee and servicer of securitized loan in action seeking to stay running of redemption period on commercial properties following foreclosure sales.  Won motion to dissolve temporary restraining order, and defeated request for preliminary injunction [later won motion to dismiss all claims] [Ingham Cty. Cir. Ct. 2010]
  
  
• Won motion for TRO to prevent former employee from continuing to violate non-compete and non-solicitation obligations.  Litigation forced former employee to enter into settlement very favorable to former employer [Ottawa Cty. Cir. Ct. 2010]
  
  
• Defended real estate developer and guarantor of loan against action by lender to execute on whole life insurance policy held by guarantor.  Won motions for TRO and preliminary injunction to prevent execution based on argument that guarantor received no consideration for guaranty [Ottawa Cty. Cir. Ct. 2006] 
  
  
• Defended lender in action seeking to stay running of redemption period following foreclosure sale.  Won motion to dissolve TRO, and defeated request for preliminary injunction, actions that resulted in plaintiff withdrawing suit with no payment from lender or further interference with property [Shiawassee Cty. Cir. Ct. 2010]
  
  
• Defended lender in action seeking to stay running of redemption period following foreclosure sale.  Won motion to dissolve TRO, and defeated request for preliminary injunction, actions that ultimately resulted in plaintiffs withdrawing suit with no payment from lender or further interference with property [Oscoda Cty. Cir. Ct. 2007]
  
  
• Defeated plaintiff’s motion for injunction to prevent closing on sale of commercial property to defendant [Kalamazoo Cty. Cir. Ct. 2006]

Trials and Arbitrations

• Tried breach-of-contract claim in commercial dispute to bench and won judgment for full amount requested, as well as all attorney’s fees incurred [Berrien Cty. Cir. Ct. 2008]    
  
  
• Conducted seven-day arbitration on behalf of real estate investor suing to recover deposits from seller of hotels.  Won arbitration award for full amount of deposits and vast majority of attorneys’ fees incurred by investor [AAA, W.D. Mich. 2008]  
  
  
• Tried contract dispute to bench over seven days.  Defended automotive supplier against claims it wrongfully terminated contract with robotic painting vendor.  Trial efforts resulted in judgment halving out-of-pocket costs sought by vendor, and completely denying any amount of lost profits claimed by vendor [Kent Cty. Cir. Ct. 2005]      
  
  
• Tried landlord/tenant dispute regarding commercial property to bench over two days.  Won judgment of possession in favor of landlord as well as money judgment  [63rd. Dist. Ct. 2005]
  
  
• Tried landlord/tenant dispute regarding commercial property to bench over two days.  Represented landlord against failing automotive company as tenant.  Won judgment of possession in favor of landlord after disproving tenant’s fraudulent inducement defenses [62A Dist. Ct. 2003]
  
  
• Tried breach-of-contract case to bench involving claims and counterclaims.  Won judgment for full amount owed defendant and minimal amount sought by plaintiff [Lake Cty. Cir. Ct. 2001] 
  
  
• Tried landlord/tenant dispute to bench involving commercial property.  Won judgment of possession in favor of landlord [63-1 Dist. Ct. 2001]
  
  
• Tried adversary proceeding in bankruptcy court as co-chair for defense team.  Won no-cause judgment for defendant on breach-of-contract claim [E.D. Mich. 2000]   
  
  
• Tried contract dispute to jury as co-chair of defense team.  Won no-cause verdict for defendant sued for refusal to pay sales commissions allegedly owed to plaintiff.  Plaintiff advanced her claims under the Salesperson Act against both her former employer and our client, which bought the assets of a division of plaintiff’s former employer and where plaintiff stayed on for three weeks after the acquisition.  Although, pursuant to the acquisition agreement, our client assumed the obligations related to the sales for which plaintiff claimed commissions, jury agreed with our theory that since plaintiff had not accepted our client’s offer of employment, our client was not obligated to pay commissions to her [Ingham Cty. Cir. Ct. 1999]
  
• Tried contract dispute to jury over seven days as co-chair of defense team.  Won no-cause verdict for defendant sued for breach of agreement to sponsor Indy-car racing team.  Plaintiff claimed that alleged breach resulted in over $2M in damages, including inability to race Scott Goodyear in 1995 Indy 500 (who drove for a different team and won substantial prize money) and lost opportunity for additional sponsors for remainder of season.  Jury accepted our defense that there was no “meeting of the minds” of the parties on a critical term of the agreement and, therefore, no contract [E.D. Mich. 1999]
  
  
• Tried breach-of-contract case to bench.  Won motion for directed verdict on behalf of defendant  [38th. Dist. Ct. 1995]
  
  
• Tried criminal prosecution in capacity of assistant city attorney.  Won verdict that resulted in misdemeanor conviction of defendant for assault and battery [66th. Dist. Ct. 1995]
  
  
• Tried two misdemeanor charges against defendant to jury.  Won verdict that resulted in conviction on one charge [66th. Dist. Ct. 1995] 
  
  
• Tried lost-profits claim to jury over seven days in case involving claims and counterclaims for breach-of-contract and business torts  [Kent Cty. Cir. Ct. 2010]
  
  
• Tried contract dispute to bench involving issues of contract interpretation and law of agency [58-3 Dist. Ct. 2007]
  
  
• Tried easement dispute to bench [Mason Cty. Cir. Ct. 2002]