Areas of Practice

Litigation

Christopher J. Breay

Member

Email: cjb@msblaw.com
Phone: 616-732-5000
Fax: 616-732-5099

Christopher Breay has 20 years of experience in business and real estate litigation, as well as in advising businesses on the spectrum of operational issues, including contract negotiation; employment matters; and intellectual property issues. Since 2008, his litigation practice has included extensive representation of financial institutions, including trustees of securitized loans and their servicers, in the defense of claims based on the increasing number of federal and state laws and regulations regarding mortgage lending and foreclosure activities.

Representative Experience
Real Estate and Lending
    • Currently defending financial institution in bankruptcy proceeding against claims of violation of discharge injunction [Bankr. E.D. Mich.]
    • Currently defending financial institution against claims of various violations of Fair Credit Reporting Act [W.D. Mich.]
    • Currently defending financial institution against claim of breach of  post-foreclosure purchase agreement due to alleged inability to convey marketable title [Houghton Cty. Cir. Ct.]
    • Defended financial institution in bankruptcy proceeding against claim of preferential transfer.  Litigation efforts resulted in favorable settlement before any depositions or discovery [Bankr. W.D. Mich. 2015]
    • Defended financial institution against numerous claims seeking to invalidate foreclosure.  Won motion to dismiss all claims before any depositions.  Won motion for injunction enjoining plaintiff from filing further claims or recording further instruments related to property without leave of court [W.D. Mich. 2014]
    • Defended financial institution against claim that foreclosure was invalid due to defendant’s violation of Consent Decree with Department of Justice and “bifurcation” of note and mortgage.  Won motion to dismiss all claims [W.D. Mich. 2014]
    • Defended financial institutions in action advancing 11 claims, including that lenders violated Consent Decree with Department of Justice, assignments of loan were invalid, defendants breached various provisions of note, and defendants violated provisions of various federal and state statutes and regulations.  Filed motion to dismiss that forced plaintiffs to withdraw complaint and enter into settlement very favorable to defendants [W.D. Mich. 2013]
    • Defended lender in action seeking to invalidate foreclosure sale based on alleged mortgage fraud, including failure to adhere to alleged loan modification agreement and violations of RESPA.  Won motion to dismiss all claims before any depositions [W.D. Mich. 2013]  Affirmed [6th Cir. 2014]
    • Defended lender and servicer in action based on “bifurcation” of note and mortgage and purported invalidity of assignments of same.  Won motion to dismiss all claims before any depositions [W.D. Mich. 2012]  Affirmed [6th Cir. 2012]
    • Defended trustee of securitized loan against claims that sheriff’s deed should be invalidated because trustee’s successful bid at foreclosure sale was substantially less than value of property.  Won motion to dismiss all claims before any depositions [W.D. Mich. 2012]
    • Defended lender against claims to enforce purported loan modification pursuant to HAMP.  Won motion to dismiss all claims before any depositions [E.D. Mich. 2012]
    • Defended lender in post-foreclosure quiet-title action with competing lienholder in dispute involving interpretation of recording statutes.  Won motion for summary judgment before any depositions [E.D. Mich. 2012]
    • Defended trustee and servicer of securitized loan in lender-liability suit arising out of foreclosures of several 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 [Bankr. W.D. Mich. 2011; Ingham Cty. Cir. Ct. 2011]
    • Represented 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]  Affirmed [6th Cir. 2012]
    • 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]
    • 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 [2008]
    • 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]
                                      Intellectual Property
                                      • Currently defending company in patent infringement action involving claims that defendant’s truss assembly technology infringes five patents-in-suit, and prosecuting counterclaims that patentees have violated antitrust laws pursuant to Walker Process doctrine due, in part, to patent applicant’s failure to disclose prior art to USPTO [C.D. Ill.]
                                      • Currently advising manufacturer of automotive parts as to rights and remedies with respect to trade names as used by re-sellers.
                                      • Defended company against claims of trademark infringement on defense that plaintiff manufactured internet and social media evidence to support claim that he began using mark prior to defendants.  Defense efforts resulted in settlement involving dismissal of all claims and defendant paying nothing to plaintiff [E.D. Mich. 2015]
                                      • Defended computer programming enterprise against claims of misappropriation of computer software and source code for use in food and beverage distribution industry.  Litigation efforts defeated plaintiff’s campaign for injunction, and instead resulted in settlement favorable to defendant  [W.D. Mich. 2014]
                                      • Advised supplier as to rights and remedies with respect to customer that infringed supplier’s trade dress, resulting in loss of profits and lost sales opportunity with separate buying consortium.  [2014]
                                      • Represented medical equipment manufacturer in suit against former joint venture partner for breach of confidentiality agreement protecting design and marketing information for innovative DVT prevention device.  Litigation efforts resulted in settlement favorable to plaintiff [W.D. Mich. 2012]
                                      • Represented company against partner and competing company on claim that defendants misappropriated intellectual property to compete unlawfully in Medicaid planning business.  Vigorous prosecution of suit resulted in early settlement favorable to plaintiffs [Berrien Cty. Cir. Ct. 2012]
                                      • Represented medical provider in dispute with competitor based on competitor’s false advertising.  Persuaded competitor to withdraw advertisement without filing suit [2009]
                                      • 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]
                                      Healthcare
                                      • Represented medical equipment supplier in advancing breach-of-contract claim against assisted living facility for default on contract for supply of medical equipment.  Negotiated settlement resulting in debtor’s provision of confession of judgment and payment in full in five installments without litigation [2015]
                                      • Advised electronic data management vendor to healthcare organizations on applicability of HIPAA as business associate and implications of HIPAA’s Privacy Rule [2015]
                                      • Advised healthcare provider as to impact of Stark law and related state and federal laws for planned expansion of business operations [2015]
                                      • Advised dental practice on required HIPAA notices and related employment issues [2015]
                                      • Represented medical equipment manufacturer in suit against former joint venture partner for breach of confidentiality agreement protecting design and marketing information for innovative DVT prevention device.  Litigation efforts resulted in settlement favorable to plaintiff [W.D. Mich. 2012
                                      • Represented Medicaid planning business in suit to enjoin partner and competing company from continuing to unlawfully use intellectual property.  After two-day evidentiary hearing on motion for injunction, defendants agreed to settlement favorable to plaintiff [Berrien Cty. Cir. Ct. 2012]
                                      Employment
                                      • Currently defending company in class action for alleged violations of Fair Labor Standards Act and related state laws, including failure to comply with overtime and “straight time” pay requirements and retaliatory discharge for complaints about alleged violations [W.D. Mich]
                                      • Defended restaurant franchisee in proceeding involving claim of denial of equal accommodation based on race.  Persuaded investigative body to terminate investigation and dismiss charge [MDCR 2015]
                                      • Defended former employees in computer programming industry against claims of breach of non-compete agreements and violations of Trade Secrets Act.  Defeated plaintiff’s injunction effort and assisted in negotiation of settlement favorable to defendants  [W.D. Mich. 2014]
                                      • Represented company in prosecution of breach of non-competition claims against former employee and competitor.  Negotiated pre-litigation settlement in which defendants stipulated to entry of injunction prohibiting former employee from soliciting plaintiff’s customers and employees [Ottawa Cty. Cir. Ct. 2014]
                                      • Defended employer against charges of age and race discrimination.  Won request to have EEOC and MDCR dismiss charges without litigation [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.  Prepared  response to demand letter that caused claimant to drop all claims without filing charges with EEOC, MDCR, or court [2008]
                                      • Defended former employer against charges of sexual harassment.  Won request to have EEOC and MDCR dismiss charges without litigation [2001]
                                      Automotive
                                      • Currently advising manufacturer of automotive parts as to rights and remedies with respect to trade names as used by re-sellers.
                                      • Represented automotive supplier in negotiation of favorable pre-litigation settlement of multi-million dollar engineering dispute with numerous parties in supply chain [2010]
                                      • 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]
                                      • Tried contract dispute to bench over seven days in defense of automotive supplier against claims it wrongfully terminated contract with vendor that used faulty technology in robotic application of paint to door handles manufactured by supplier.  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]
                                      • Represented seller in wrongful termination case involving supply of exterior 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]
                                      • 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 judgment in first suit, which resulted in  judgment of $1.5M in favor of seller and all attorneys’ fees incurred, and won judgment of possession for seller in second [Kent Cty. Cir. Ct. 2003]
                                      • 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]
                                      • 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 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]
                                      Injunction
                                      • Currently defending company in class action for injunction to restrain company from alleged violations of Fair Labor Standards Act and related state laws, including violations of overtime and “straight time” compensation requirements [W.D. Mich.]
                                      • Defended computer programming enterprise in suit by competitor for preliminary injunction to prevent purported misappropriation of trade secrets in form of software and source code.  Litigation efforts defeated plaintiff’s campaign for injunction, and forced settlement favorable to defendant [W.D. Mich. 2014]
                                      • Won motions for temporary restraining order and preliminary injunction to enjoin financial advisor from continuing to control funds fraudulently procured from clients [Ottawa Cty. Cir. Ct. 2014]
                                      • Represented Medicaid planning business in suit to enjoin partner and competing company from continuing to unlawfully use intellectual property.  After two-day evidentiary hearing on motion for injunction, defendants agreed to settlement favorable to plaintiffs [Berrien Cty. Cir. Ct. 2012]
                                      • 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 [later filed motion for summary disposition that forced plaintiff to withdraw complaint] [Leelanau Cty. Cir. Ct.  2011]
                                      • 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 TRO, 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 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 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]
                                      Trials and Arbitrations
                                      • Tried case to jury over seven days involving claims and counterclaims for breach-of-contract and business torts resulting in lost profits due to failed gas station/c-store operation [Kent Cty. Cir. Ct. 2010]
                                      • Tried claim against construction company for unpaid amount for construction supplies provided by plaintiff.  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 involving issues of contract interpretation and law of agency [58-3 Dist. Ct. 2007]
                                      • Tried contract dispute to bench over seven days in defense of  automotive supplier against claims it wrongfully terminated contract with painting vendor that used faulty technology in robotic application of paint to door handles manufactured by supplier.  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 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 easement dispute to bench [Mason Cty. Cir. Ct. 2002]
                                      • Tried breach-of-contract case to bench involving claims and counterclaims in construction context.  Won judgment for full amount owed defendant and minimal amount sought by plaintiff [Lake Cty. Cir. Ct. 2001]
                                      • Tried landlord/tenant dispute to bench.  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 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 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 involving insurance coverage claim.  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 criminal prosecution to jury.  Won verdict that resulted in misdemeanor conviction [66th. Dist. Ct. 1995]

                                      Bar Admission:

                                      • Michigan, 1994

                                      Education:

                                      • Wayne State University Law School, J.D., 1994
                                        Associate Editor, Wayne Law Review
                                      • Albion College, A.B., magna cum laude, 1991
                                        Honors:  Phi Beta Kappa

                                      Academic Appointments:

                                      • Adjunct Professor, Constitutional Law, Aquinas College

                                      Speaking Engagements:

                                      • “Mortgage Loan Servicing – A Litigator’s Perspective,” Annual Conference, American Bar Association, Business Law Section, Chicago, September 11, 2014
                                      • “The Current State of HAMP Litigation,” Mortgage Bankers Association, Litigation Subcommittee, April 15, 2014
                                      • “A Practical Guide to Commercial Eviction in Michigan,” National Business Institute, 2006

                                      Publications:

                                      • HAMP Litigation: Developments and Trends (American Bar Association, 2015)
                                      • Emerging Trends in Home Affordable Modification Program (HAMP) Litigation(American Bar Association, 2014)
                                      • A Practical Guide to Commercial Eviction in Michigan (NBI, 2006) (with Nathaniel R. Wolf)

                                      Court Admissions:

                                      • United States District Court – Eastern District of Michigan, 1995
                                      • United States District Court – Western District of Michigan, 1996
                                      • United States Sixth Circuit Court of Appeals, 2000