Monthly Archives: September 2013

Dancing with Gorillas – Roulette – and CRE Litigation

The Time to Decide – Commercial Real Estate Litigation

A sage once said, “The time to worry about where the ball will drop is before the wheel is spun”.  He was speaking about roulette, of course, but the wisdom of these words has much broader application.  The point is, worry about the outcome before you place the bet, when you can still do something about it.

Commercial litigation, especially commercial real estate litigation, is in some respects like roulette. Once your lawsuit is filed, the wheel is spinning.  Unlike roulette, you may still have a measure of control over the outcome — but you are in it until the ball drops. 

In CRE litigation there is seldom an insurance company prepared to write a check.  There is a substantial risk the case will proceed to trial.  There is no guaranty you will collect anything – especially if payment of money is not the relief you seek. Consequently, there is very little chance your attorney will accept your commercial dispute on a contingent fee basis. A third of nothing is still nothing. 

RSP_LogoFull_2PMSLawyers handling commercial litigation are not your partners. Commercial litigators charge by the hour.  Except in rare cases where you can negotiate a hybrid fee arrangement, you will assume the entire financial risk – not your lawyer. Your lawyer is serving as your paid professional advocate; a hired gun, so to speak.

As long as you are willing and able to pay your lawyer to apply his or her skill and training to your cause, your lawyer is bound to represent you with zeal and vigor. If you do not pay, you should expect your lawyer to stop work.  The fact that the practice of law is a profession does not make it a charitable enterprise. It is both a profession and a business.  There is no moral or ethical imperative for a lawyer to work without pay while advocating a commercial dispute.  CRE litigation is business litigation – and the business being advanced is yours. (more…)

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REAFFIRMED: LLC Members Do NOT Have Interest in LLC Property

Court Reaffirms that LLC Members Are Separate From the LLC and DO NOT Have An Ownership Interest In The LLC’s Property. Therefore Member Can File Lien.


http://www.dreamstime.com/stock-photo-confused-business-man-thinking-wich-way-to-go-image28551060Just a brief post regarding LLC Property:


On September 3, 2013, the Illinois Appellate Court for the Fifth District filed an opinion in the case of Peabody-Waterside Development, LLC v. Islands of Waterside, LLC, Regions Bank N.A., and Prairie Construction Management, LLC 2013 IL App (5th) 120490.

The Court’s Opinion is consistent with Illinois law related to limited liability companies (LLC). The fact that the trial court got it wrong and had to be reversed, however, is not entirely surprising.Experience demonstrates that many lawyers, and courts, either don’t understand the law related to the separateness of an LLC from its members, or refuse to believe it.

The law in Illinois is quite clear. Members of an LLC have no ownership interest in the property or business of the LLC.Members own an economic interest in the distributable cash flow (if any) from the LLC, but no interest in the property or business that generates that cash flow. The LLC Act is clear. The case-law is clear. Like it or not, this is the law in Illinois (and in virtually all USA jurisdictions). (more…)

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