Litigation Lender Loses Out in Loan Recovery as Unsecured Creditor

Update October 30, 2018 – Today the BC Court of Appeal upheld the below decision
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Reasons for judgement were published today addressing the priority of a litigation lender recovering funds from a deceased personal injury lawyer’s practice.
In today’s case (Napora (Re)) the Responded lent money to a personal injury lawyer to help fund the lawyer’s practice.  The money was spent on disbursements; basically money spent in the prosecution of claims on items such as expert reports.
Approximately $187,000 plus interest was owed.
The lawyer died and the practice was deemed insolvent with debts of about $650,000 and with $275,000 held in the general account on behalf of the law practice.
A bank, CIBC, had a secured interest in the personal property of the law practice.   The litigation lender argued that they should have first priority in repayment of the money available.  The court disagreed and ordered that the lender is second in line after the bank.  In doing so Madam Justice Murray provided the following reasons:

14]         Mr. Napora and Mr. Brito entered into many funding agreements between late 2011 and the time of Mr. Napora’s death. These agreements are set out in documentation which is the same for each transaction:

1.                     Letters from Mr. Napora to Mr. Brito requesting an amount of money “in disbursement funding”, which if approved would be allocated to specific files identified in most letters by file number only. These request letters are on law corporation letterhead but signed by Mr. Napora;
2.                     Each letter has an attached promissory note, in which Mr. Napora himself promised to pay the sum sought upon receipt of payment for the files specified or within two years, whichever came first. Of note, the promissory note is not on law corporation letterhead and is signed by Mr. Napora himself.

              iii.                    The Promissory note begins: “IN CONSIDERATION of the loan from CARLOS BRITO…, the undersigned Terry l. Napora, HEREBY PROMISES TO PAY …” [underlining added];

1.                     In most of Mr. Napora’s request letters there is a proviso which states:

I have attached a signed Promissory note for your records.

I undertake to meet the obligations set out in the note of paying out the disbursements and interest related to each matter as payment is received on each matter, or within two years, whichever comes first.

[15]         Due to a clerical error the undertaking is missing in some of the request letters, but given that it was one of the terms of the funding arrangement from the beginning, I do not attribute any significance to its occasional omission.

[16]         The word “loan” was used in the Promissory note. Nowhere in the documentation is the word “trust”. As both Mr. Brito and Mr. Napora are lawyers and Mr. Brito was a banker before becoming a lawyer I attach some significance to that.

[17]         All of the above point to a loan for a specific purpose. Money was requested for a specific purpose and it was given.

[18]         After considering all of the evidence and all of the submissions I am satisfied that there was no trust relationship between Mr. Brito and Mr. Napora.

…

[23]         I am satisfied that CIBC, as the only secured creditor, has priority over Mr. Brito to the funds held by the custodian for the Napora Law Corporation.