Akerman - Biography - Joseph E. ('Ed') Foster

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Shareholder
Chair, Financial Institutions Commercial Litigation Practice

420 South Orange Avenue
Suite 1200
Orlando, FL 32801

Tel:

407.423.4000

Fax:

407.843.6610

ed.foster@akerman.com

Joseph ('Ed') Foster has been a commercial litigator in the state and federal courts of Florida for more than 30 years. Ed is licensed to practice in all Florida state courts, all Florida federal district courts, the U.S. 11th Circuit Court of Appeals, the U.S. Court of Federal Claims, and the U.S. Supreme Court. He has handled a wide variety of commercial litigation matters over the years, including a number of jury trials. Ed is a certified mediator and always looks to resolve matters in the best interests of his clients, whether that be via a negotiated settlement or through trial.

Ed is known for his ability to assess a situation, focus on the result desired by the client, and then find the most direct path to that desired end. In reaching the desired result, Ed is known for his creative solutions to difficult problems.

Automotive

Business Disputes

Commercial Landlord-Tenant Litigation

Commercial Mortgage Foreclosures & Receiverships

Distressed Property

E-Discovery & Information Management

Financial Institutions Commercial Litigation

Mortgage Warehouse Financing Workouts

Real Estate Litigation

Secured Financing Litigation

Workouts & Restructuring

Below are examples of experience in mortgage foreclosures, receiverships, secured financing litigation, commercial landlord-tenant litigation, real estate litigation, and financial institutions litigation in general.

Foreclosure and Receivership Litigation

Extensive experience in litigating mortgage foreclosures and accompanying receiverships in a variety of state courts throughout Florida. Florida law does not provide for any type of non-judicial mortgage foreclosure process. Thus, all mortgage foreclosures in Florida are full-fledged lawsuits, usually brought in state court in the county or counties in which the subject real property is located.

Has also handled foreclosure action in federal court, which is relatively rare in Florida.

Handled a variety of foreclosures of mortgages on various nursing homes, golf courses, shopping centers, hotels, office buildings, residential and business condominium projects, restaurants, apartment complexes, and residential developments. Many of these foreclosures involved the appointment of receivers. Several of these foreclosures involved condominiums under construction and residential developments under construction, with accompanying issues regarding pre-sale deposits, simultaneous breach of contract actions by contract purchasers, and defenses and counterclaims alleging various deficiencies in the lender's loan administration.

Handled a substantial number of CMBS foreclosures and receiverships, some including bad boy guaranty claims, and works regularly with special servicers in such foreclosures.

Involved in a variety of distressed loan purchases and sales, foreclosure judgment purchases and sales, and foreclosure bid assignments.

Involved extensively in the drafting of portions of Section 702.10 Florida Statutes, the show cause foreclosure statute, and regularly uses this somewhat streamlined foreclosure procedure in commercial foreclosures.

Handled foreclosures and workouts on citrus processing facilities and citrus groves, and has foreclosed both traditional mortgages and an equitable lien on a horse farm and the horses thereon.

Consult regularly with the Florida Bankers Association on proposed legislation affecting the financial institutions industry, particularly as it relates to mortgage foreclosures, proceedings supplementary, and judgment enforcement.

Employ receivers regularly in connection with commercial mortgage foreclosures and has, from time to time, represented receivers in commercial workout matters.

Represent a variety of financial institutions in the negotiation and enforcement of workouts, forbearance agreements, soft notes, and short sales.

Handled a variety of reforeclosures, including some contested reforeclosures, including one contested matter in which the reforeclosure of certain judgment liens was prosecuted more than ten years after the original foreclosure.

Secured Financing Litigation

Handled a variety of Revised Article IX sales, both judicial and non-judicial, as well as a variety of self-help repossessions and judicial replevins of personalty, including jet and other aircraft, automobiles and trucks, furniture inventory, restaurant equipment, store inventory, medical equipment, flight simulators, livestock, live birds, crops, furniture, fixtures, and heavy equipment.

Handled several automobile dealership repossessions, both judicial and non-judicial, with counterclaims, new and used automobile inventory, parts inventory, body shop equipment, signage, associated real estate mortgages, and guaranty claims.

Handled litigation involving "hell or high water clauses" in leases.

Handled Revised Article 9 private sales of LLC ownership interests and stock pledged to secure loans.

Commercial Landlord-Tenant Litigation

Handled a jury trial on eviction of a restaurant from a hotel property, with counterclaim by tenant.

Handled a jury trial on eviction of an automobile repair facility, with counterclaim by tenant.

Handled a variety of commercial evictions for landlords, some with non-jury trials, some with evidentiary hearings, some with summary judgments, many with counterclaims.

Handled some commercial evictions for tenants.

Represented landlord in defense of mandatory injunction action brought by tenant seeking removal of signage allegedly blocking street view of restaurant.

Represented landlord in defense of action by tenant to enforce restaurant exclusivity clause in shopping center lease.

Real Estate Litigation

Handled more than 30 contested real estate partition suits involving citrus groves, raw land and improved land, many involving non-jury trials or evidentiary hearings.

Handled boundary dispute and encroachment litigation involving expert testimony from several surveyors.

Handled a variety of quiet title and ejectment actions.

Handled a jury trial representing seller of residential property accused of failure to disclose flood damage to purchaser.

Represented lakefront homeowners in litigation seeking removal of dock structure obscuring view of lake.

Represented homeowner in action by homeowners' association to force removal of large treehouse from residence.

Financial Institutions Litigation

Represent a variety of financial institutions in various types of non-foreclosure litigation. Over the years, handled a wide variety of financial institutions litigation, including replevins, judgment collection matters, proceedings supplementary, lender liability defense, class action defense, Consumer Leasing Act litigation, Fair Credit Reporting Act litigation, safe deposit box litigation, breach of trust and breach of fiduciary duty litigation.

Represented lead banks in participation loans in negotiations and some litigation with participant banks claiming breaches of fiduciary and other duties by lead banks in administration of loans.

Represented what is now SunTrust Bank, in a five-day trial in an action against E.F. Hutton & Company, Inc., alleging that Hutton had fraudulently misrepresented the creditworthiness of one of its clients, in consequence of which Sun Bank made a large business loan guaranteed by the Hutton client individually. The Eleventh Circuit's decision is reported at E.F. Hutton & Company, Inc. v. Sun Bank, N.A., 926 F. 2d 1030 (11th Cir. 1991). This case is still widely cited for its agency law analysis and rulings.

Represented a large bank as plaintiff in a five-day jury trial in a state court action against a citrus grove borrower and two guarantors. The defendants raised a variety of defenses, including tortious interference with business relationships and bad faith dealing on the part of the bank. Later instituted a proceeding supplementary, which included, in part, more than a dozen of garnishments, the imposition of an equitable lien against approximately 15 business entities, including a spendthrift trust, in which one or more of the defendants had various degrees of ownership, the appointment of receivers in two separate actions brought to foreclose a mortgage and a security interest on the citrus grove, and the inspection of the private residence of one of the guarantors.

Represented a financial institution in various breach of trust suits brought by disgruntled beneficiaries seeking to recover for the trustee's alleged breach of fiduciary duty in the administration of various large trusts.

Represented SunTrust Bank in an action brought by a condominium association seeking to recover from the Bank a special assessment for termite damage for a unit that the Bank had recently acquired through a foreclosure. The association argued that the Bank was liable for the assessment because the assessment was essentially prospective in nature, and had not come due until after the Bank acquired title to its unit. A.C. Condominium Association, Inc. v. SunTrust Bank, 815 So. 2d 720 (Fla. 5th DCA 2002)

Handled a variety of automobile dealership-related litigation, including dealership status matters, lender liability defense, and several dealership repossessions.

Represented a bank whose employee had embezzled funds, including seeking imposition of equitable lien on real and personal property acquired with embezzled funds.

Commercial Litigation

Represented a Fortune 50 company as replacement counsel in a case involving royalties allegedly due for sales of a turbine engine component. The case had been pending for 18 years.

Tried a 6 day federal non-jury trial involving breach of a commercial contract for the manufacture of a satellite TV reception device. Lockheed Martin Corporation v. galaxis USA, Ltd., et. al, _______ F. Supp.2d _______, (M.D. Fla. 2002), 88 Fed. Appx. 389 (11th Cir. 2003)

Defended the Florida Democratic Party in a defamation action which had been brought in the Circuit Court in Polk County, Florida by the husband of a successful Republican candidate for the Florida House. The Plaintiff alleged that certain campaign materials distributed by the Florida Democratic Party during the campaign defamed him. The Florida Second District's decision is reported at Dockery v. Florida Democratic Party, 799 So. 2d 291 (Fla. 2d DCA, 2001)

Represented a variety of business owners in business dissolution matters, some involving litigation for accounting and judicial dissolution, and others involving workout negotiations.

Represented developer in suit for defamation against website publisher, including counterclaim defense.

Handled a variety of litigation matters arising in the agribusiness sector; handled foreclosures and receiverships on a variety of citrus grove properties; represented creditors in connection with foreclosures and workouts on citrus processing facilities; tried to conclusion a jury trial involving the allegedly defective painting of a juice extractor room at a citrus processing plant; has foreclosed both traditional mortgages and an equitable lien on a horse farm and the horses thereon; has also handled, and successfully settled, a major litigation matter involving the interstate shipment of diseased cattle, which litigation involved counterfeit branding issues; handled an appellate matter involving a challenge to Florida's regulations on Equine Infectious Anemia, also known as Swamp Fever; and also handled a variety of partition suits involving agricultural property.

Represented a New York-based business whose bookkeeper had embezzled over $3 million, retired, and then used the money to purchase a quarter horse farm in Florida; sought an equitable lien on the horse farm and the horses, as well as an injunction to prevent the sale or transfer of the farm and the horses.

Represented a private school from which the principal was accused of embezzling more than $3 million and sought a judgment against the principal awarding damages for the full amount stolen and imposing an equitable lien on the principal's homestead.

Handled various product liability matters over the years, including a defective riding lawnmower design case, a defective airport people mover case, a defective elevator case, a defective residential electric meter case and a defective hotel electrical switchbox case. Also represented a major tire manufacturer in a jury trial of a tire-rim mismatch case in which the Plaintiff had been severely injured when the bead on the tire broke during mounting.

Represented the widow of the late NASCAR driver, Dale Earnhardt, in efforts to obtain a temporary injunction in Volusia County, Florida Circuit Court to prevent the distribution of autopsy photos of the late Mr. Earnhardt.

e-Discovery

Ed is a member and former co-chair of Akerman's e-Discovery practice. E-Discovery is a newly emerging practice area. Ed is a member of Working Group 1 of The Sedona Conference, and has long had an interest in computer-related topics, having received his undergraduate degree in mathematics, and having been an inaugural member of the Florida Bar's Computer Law Committee. He was the first, and second, person to file suit electronically in the Florida 9th Circuit's Business Court. He has been lecturing on e-discovery since 2003, and has spoken on the topic at three national level seminars, and several local seminars.

The Best Lawyers in America 2008-2013, Listed in Florida for Commercial Litigation, Litigation - Banking & Finance, Litigation - Bankruptcy, and Litigation - Real Estate

Chambers USA 2006-2013, Ranked in Florida for Litigation: General Commercial

Super Lawyers Magazine 2007-2013, Listed in Florida for Bankruptcy & Creditor/Debtor Rights, Banking and Business Litigation

The Best Lawyers in America 2011, Listed as "Lawyer of the Year" for Banking Law in Orlando

Certified Mediator, Florida Supreme Court

Certified Appellate Mediator, Florida 5th DCA

Martindale-Hubbell, AV Rated

Trigild Lenders Conference Exiting the Storm, Panelist, "Changing Times, Changing Tactics," San Diego, CA, October, 2012

Lectures regularly on mortgage foreclosure and judgment collection law. Has lectured for The Florida Bar, National Business Institute, Lorman Education Services, PESI, and others. Has frequently been a panelist at the Trigild Lenders Conference, an annual conference for CMBS special servicers in San Diego, and a lecturer for various programs for the Florida Bankers Association, including the FBA's "Weathering the Storm" conference on distressed loans and the economy.

Frequently writes and lectures on all aspects of Florida foreclosure law, Florida judgment collection law, the Fair Debt Collection Practices Act, and locally and nationally on e-discovery issues.

Co-presenter: National Business Institute, "Real Property Foreclosure: A Step-by-Step Workshop," Orlando, FL, March 6, 2012

Trigild Lenders Conference Exiting the Storm, Panelist, "Changing Times, Changing Tactics," San Diego, CA, October, 2011

ICSC Shopping Center Law Conference, Panelist, "A Cornucopia of Foreclosure," Phoenix, AZ, October, 2011

Florida Chamber Foundation, Future of Florida Forum, Moderator, "A Focus on Florida's Mortgage Foreclosure and Property Tax Challenge," Orlando, FL, September, 2011

Guide to Doing Business in Florida, Co-Author, "The Foreclosure Process," August 2011

Florida Bar Construction Law Committee, Presenter, "Construction Issues for Distressed Assets and REO," Orlando, FL, April, 2011

Trigild Deskbook Guide, Co-Author, Florida-specific portions of "Deskbook Guide to Receivership & Foreclosure," 2009-2012

Commercial Lending Review, Co-Author, "Commercial Loan Recovery 101: How to Obtain Maximum Returns," May-June, 2009