Tuesday, June 22, 2010

Lawyers for Brian O'Neill, Citizens Bank square off in court

"In a courtroom showdown of two local business titans, accusations of fraud, secret agendas, and other misdeeds flew for three hours Monday between lawyers for developer J. Brian O'Neill and Citizens Bank of Pennsylvania, the lender he contends has "destroyed" one of his most ambitious projects.

When it was all over, nothing was settled.

The two sides disagreed over just about everything - including what financial obligations Citizens Bank had to O'Neill and whether the King of Prussia developer should qualify for damages, or even a trial.

In a desperate bid to find consensus, Philadelphia Common Pleas Court Senior Judge Albert W. Sheppard Jr. polled two lawyers for the bank and two for O'Neill to determine whether they even agreed that yesterday was Monday.

He pushed several times for the sides to reconcile, making a particularly bold proposal to the lead attorney for Citizens Bank.

"Why doesn't your bank become a partner with him [O'Neill] and let's do it?" Sheppard asked attorney Robert C. Heim of Dechert L.L.P.

By "it," the judge meant complete the largely unfinished $700 million Uptown Worthington retail/office/residential development in Malvern, which is at the center of the litigation.

Sheppard did not get the answer he had hoped for.

"I think we're past that now," Heim said.

The judge made no ruling on Citizens Bank's motion to have O'Neill's $297 million lawsuit thrown out - nor did he say when he would.

Filed in January, the lawsuit originally sought $8 billion in damages and contended that the bank had ruined Uptown Worthington by deciding in 2008 not to provide funding toward its $300 million-to-$400 million "vertical phase," when the buildings were to be constructed.

The proposed 1.6 million square feet of housing, shops, entertainment venues, a hotel, and high-value office space is currently just two stores totaling 300,000 square feet - a Wegmans and a Target, both scheduled to open in July.

Citizens has contended that O'Neill's lawsuit is retaliation for the bank's having secured a $61 million judgment against the developer in Montgomery County Court in November for default on an office-construction loan for Uptown Worthington.

The bank followed that with two more judgments totaling $3 million against O'Neill and his O'Neill Properties Group L.P. in connection with the unfinished Horizon Corporate Center, a 101-acre mixed-use development in Bensalem.

On Monday, O'Neill sat in the front row of a cramped courtroom on the fifth floor of City Hall, but he was not called to testify. Afterward, he said there would be no comment from him or his legal team, headed by Steven M. Coren of Kaufman, Coren & Ress P.C.

In arguing for the lawsuit's dismissal, Heim told the judge: "This is a very, very important case to the commercial-lending world, because if you can get around your written agreements by coming in [to court] and saying these things don't count . . . it [becomes] a whole new world out there for commercial lending."

"We ask you to put a stop to it right now," Heim said.

Coren countered that O'Neill should be given the opportunity to present his case at trial.

"All we want here is the opportunity to connect the dots," Coren said.

Those dots, he said, include depositions of bank employees and internal documents that show that, in spring 2008, bank officials - responding to a directive by parent company Royal Bank of Scotland to "reduce existing exposures" and "curtail new business originations" - decided that they would not provide financing for the vertical phase of Uptown Worthington.

Yet, Coren argued in court Monday, the bank deliberately encouraged O'Neill to enter into contracts with prospective tenants for Uptown Worthington, knowing he would not be able to meet conditions of those contracts - such as move-in dates - without vertical-phase financing.

He said the bank encouraged O'Neill to spend $40 million to continue developing the massive former Worthington Steel site along Routes 202 and 29 so Citizens would have more leverage when it foreclosed on the property.

Coren also has alleged that the bank - which over the years had provided O'Neill with more than $180 million for various projects - had plans to "steal" the Uptown Worthington development from O'Neill and establish a partnership agreement with a Rhode Island developer, also a substantial Citizens Bank customer, to finish it.

"They were dishonest and deceitful, not only to Mr. O'Neill, but other participants in the project," including other banks O'Neill was trying to line up to participate in the vertical-phase financing, Coren said.

Heim said that Citizens Bank had no written agreements with O'Neill for vertical-phase financing for Uptown Worthington, and that O'Neill's inability to provide any evidence to the contrary "undercuts every one" of his claims against the bank.

After the hearing, Heim said he was not able to comment on whether Citizens would be interested in partnering with O'Neill on completing Worthington, as the judge suggested.

"I'm always hopeful that business people can work things out," Heim said. "But I don't think it helps to work things out by accusing people of fraud."

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