David V. Mignardi
Partner
Overview
David V. Mignardi is a New York, New Jersey and Connecticut litigation attorney who focuses his practice on real estate finance and capital markets, with a particular emphasis on litigation and loan servicing matters related to commercial mortgage-backed securities (CMBS). He regularly represents nationally prominent financial institutions, mortgage servicers, hedge funds and distressed investors in connection with non-performing loans and the exercise of remedies such as judicial foreclosures, receiverships, replevin, workouts, litigation and resulting judgment enforcement/collection, and contested bankruptcy matters. Mr. Mignardi's experience spans numerous types of claims and all types of commercial properties, including office buildings and parks, multifamily apartment and student housing complexes, hotels, senior living facilities, healthcare facilities, construction projects and shopping centers.
Mr. Mignardi has considerable appellate experience, having written briefs and/or orally argued more than two dozen appeals in the U.S. Court of Appeals for the Second Circuit, all four judicial departments of the New York State Supreme Court, Appellate Division, and the New Jersey Superior Court, Appellate Division, as well as a bankruptcy appeal in the U.S. District Court for the Eastern District of New York. He also defends lender liability claims arising under the full range of laws and statutes regulating the consumer finance industry such as the Truth in Lending Act (TILA), Real Estate Settlement Procedures Act (RESPA), Home Ownership and Equity Protection Act (HOEPA), Federal Regulation Z (Reg Z), Fair Credit Reporting Act (FCRA), Fair Debt Collections Practices Act (FDCPA) and Federal Housing Act (FHA) as well as claims involving the civil Racketeer Influenced and Corrupt Organizations (RICO) statute, business torts and predatory lending. Mr. Mignardi also regularly represents real property owners and lending institutions in the defense of title claim litigation, and title insurance underwriters in subrogation, recoupment and title insurance coverage matters.
Representative Experience
- Upon defeating a borrower's personal jurisdictional challenge in a foreclosure matter of a $48,875,000 mortgage secured by a prominent New Jersey shopping center, obtained payment of the loan in full
- Defended three lenders in three separate but related matters against borrowers' claims that the lenders breached the covenant of good faith and fair dealing and committed tortious interference with borrowers' prospective business relations by failing to release or timely release funds for the payment of hotel operating expenses; successfully obtained payment in full on all three loans and discontinuances, with prejudice, on all three matters
- Secured summary judgment with respect to a lender's foreclosure claims by defeating a mezzanine lender's attempt to mettle in and oppose the lender's exercise of remedies against the borrower in a matter involving a defaulted $40,000,000 loan secured by a New York City hotel
- Obtained denial of borrowers' pre-answer motion for dismissal of a foreclosure action of a $57,375,000 loan on the basis of purported lack of diversity jurisdiction by defeating the borrowers' claim that the citizenship of the CMBS trust plaintiff is determined by that of its directing certificate holder and special servicer, rather than the trust's trustee
- Prosecuting appeal of order, which held that the foreclosing CMBS trust and its successor-in-interest are jointly and severely liable for the payment of the deficiency of the receivership estate, issued in a foreclosure matter involving a $75,000,000 loan secured by a 114-acre luxury resort, conference center and golf course in Westchester County, New York
- Represented special servicers and CMBS trusts in the exercise of remedies with respect to and workouts of a portfolio of high-profile, high-exposure loans involving massive mortgage fraud by a well-known multifamily real estate developer
- Represented a CMBS trust and its special servicer in contentious litigation involving a failed payoff of a $47 million A/B structured loan secured by retail property located in Bronx County, New York
- Second-chaired federal jury trial — drafted motions in limine, jury charges and voir dire questions and prepared corporate and expert witnesses for testimony — that resulted in a unanimous defense verdict on all seven counts of various lender liability claims
- As part of a team of three attorneys, obtained dismissal of all claims (including causes of action for quiet title, declaratory judgment, negligence and violation of the marital right of joint possession) made against a mortgagee partially on summary judgment and partially after trial
- In specialized omnibus proceedings commenced by orders to show cause, obtained leave for three mortgage servicers to issue corrective predicate notices, thereby preserving large populations of foreclosure matters in danger of dismissal
- On behalf of a prominent wireless telecommunications company and its subsidiaries, obtained judgments awarding monetary and permanent injunctive relief in three trademark infringement actions against defendants engaged in an unlawful scheme of acquiring, “unlocking,” and distributing cellular phones and other wireless devices for unauthorized use
- Obtained dismissal with prejudice of all causes of action asserted against the trustee of a RMBS trust including a cause of action seeking damages under the civil Racketeer Influenced and Corrupt Organizations Act (RICO) statute, at the pleadings stage, and subsequent affirmance of the dismissal on appeal
- Obtained pre-answer dismissal of claims seeking $25,000,000.00 in damages against a lender, its special servicer as well as the law firm and certain attorneys who represented the lender in prior proceedings for purported violations of the civil RICO statute and various tort and contractual claims under New York state law
- Secured affirmance of the bankruptcy court’s denial of the debtor’s objection to a proof of claim on theories that the residential mortgage-backed securitization (RMBS) trust lacks authority to enforce the negotiable instrument and violated the governing pooling and servicing agreement, and dismissal of the debtor’s due process violation claim
- Prosecuted a bankruptcy adversary proceeding on behalf of a food product manufacturing and technological company seeking non-dischargeability of a judgment based upon theories of fiduciary fraud and infliction of willful and malicious injury
Credentials
- Benjamin N. Cardozo School of Law, J.D.
- Manhattan College, B.S., Economics, magna cum laude
- Connecticut
- New Jersey
- New York
- U.S. Court of Appeals for the Second Circuit
- U.S. District Court for the District of Connecticut
- U.S. District Court for the District of New Jersey
- U.S. District Court for the Eastern District of New York
- U.S. District Court for the Northern District of New York
- U.S. District Court for the Southern District of New York
- U.S. District Court for the Western District of New York
- Manhattan College Mentorship Program, Volunteer Mentor
- Commercial Real Estate (CRE) Finance Council, Servicers Forum
- Byram Hills Soccer Club – American Youth Soccer Organization (AYSO) Region 204, Division Coordinator and Member of Board of Directors
- American Immobiliare, Inc.
- Rising Star, New York Metro Super Lawyers magazine, Business Litigation, 2017-2020