Joseph N. DemkoPartner
Joe Demko is engaged primarily in complex commercial litigation with an emphasis on creditors' rights, lender liability, fraudulent transfers, claims of fraud and real property secured transactions. Recent trials and arbitrations have involved fraud, fraudulent transfers, elder abuse, successor liability, breach of fiduciary duty and imposition of constructive and/or resulting trust on real property. Joe has extensive experience in prosecuting and defending commercial cases in state, federal and bankruptcy courts in addition to binding arbitration. In addition, Joe has extensive experience in representing lenders and special servicers in real property secured transactions and in cases involving California Commercial Code Articles 4, 4a, 9 and 10.
- Represented a secured lender in a successful arbitration securing the bank's right to foreclose on its bond collateral. Attorneys' fees were also awarded.
- Represented a community bank in a judicial foreclosure action obtaining a deficiency judgment against the defendant in excess of $20 million. Obstacles we overcame during the five years of litigation included a series of cross-complaints filed by the defendant and the refusal to testify based on assertions of the Fifth Amendment privilege.
- Represented a construction lender in a successful week-long non-jury trial involving a bonded stop notice claim in Sacramento Superior Court.
- Represented lender successfully in a week-long trial against a borrower/guarantor seeking to set aside guarantees and deeds of trust on real property securing commercial loans based upon allegations of fraud and mutual mistake.
- Represented ORIX Capital Markets, LLC in successfully confirming a Creditor's Plan of Reorganization and defeating the Debtor's Plan of Reorganization in a Chapter 11 case filed by a hotel located in the Monterey Peninsula so that a liquidating agent could be appointed to sell the hotel at an auction sale.
- Represented Plaintiff venture capital fund in an extended jury trial, lasting 30 trial days, involving breach of contract claim against semiconductor corporation and fraudulent transfer claims against more than twenty defendants. Result: verdict in favor of client for more than $4.5 million on breach of contract claim and more than $9.2 million on fraudulent transfer claims.
- Represented Phoenix American Incorporated in a two-week trial obtaining a declaratory judgment that it was not the successor-in-interest to an acquired company and therefore was not liable for the company's debts; successfully defended the cross-complaint that claimed the transfer of assets from the acquired company was a fraudulent transfer and that Phoenix American Incorporated and its affiliates were the alter egos of the acquired company.
- Represented a personal property leasing company in breach of contract/fraud action involving the purchase of a $100 million portfolio of equipment leases from a Fortune 500 manufacturer of copy machines; issues in case related to servicing of the leases, accounting issues and the propriety of chargebacks in the remittances to the purchaser.
- Represented the Federal Savings and Loan Insurance Corporation in the underlying litigation and the appeal reported as FSLIC v. Gemini Management 921 F.2d 241 (9th Cir. 1990) involving application of the D'Oench doctrine.
- Represented Trans Pacific National Bank in the underlying action reported In Re: Kong 196 B.R. 167 (N.D.Cal. 1996) involving a claim of preferential transfers under the Bankruptcy Code.
- Represented secured lender in the underlying litigation and appeal reported as Knox v. Phoenix Leasing.
- Incorporated 29 Cal.App.4th 1357 (1994) involving the application of the doctrine of unjust enrichment to the priorities established under Article 9 of the Commercial Code. Adverse trial court decision reversed on appeal with instructions to trial court to enter judgment in client's favor.
- Represented a secured lender in a breach of contract and fraud lawsuit involving interpretation of agreement to provide $3 million of construction financing. After extensive discovery, successfully obtained summary adjudication of numerous causes of action resulting in settlement for costs of defense.
- Represented a financial institution in a fraud lawsuit involving the sale of a 150-unit apartment complex. Obtained a defense award and attorneys' fees award of $350,000 in a binding arbitration hearing. Award confirmed by the trial court
- Represented client in lawsuit against its former attorneys for legal malpractice resulting from documentation of real and personal property secured loans by which a winery was financed. After deposition discovery, case settled at mediation for over $1 million.
- Represented financial institution in California Business & Profession Code § 17200 case brought by numerous vendors claiming unfair business practices in connection with the financial institution's check and check clearing process. After extensive law and motion practice and discovery, case dismissed by plaintiffs for waiver of costs.
- Represented bank in action brought by company to recoup over $2 million embezzled by company's former employee from employer's checking account. After discovery, negotiated favorable settlement.
J.D., Duquesne University School of Law, 1980
B.A., University of Scranton, 1977
magna cum laude
Bar AdmissionsState Courts of California
State Courts of Pennsylvania, Inactive
U.S. District Court, Western District of Pennsylvania
U.S. District Court, Northern District of California
U.S. District Court, Central District of California
U.S. District Court, Eastern District of California
U.S. Court of Appeals, Ninth Circuit
U.S. District Court, Colorado
Member, Litigation Section, State Court Rules Committee (North), State Bar of California, 2003
Member, Litigation Section, Rules and Legislation Committee, State Bar of California, 2004-2005
Awards & Recognition
- Duquesne Law Review, 1979-1980
- Martindale-Hubbell Peer Review, AV Rating: Creditors' Rights, Litigation, Distressed Assets and Real Estate