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Garbett, Stiphany, Allen & Roza, P.A.
Brickell Bayview Centre, Suite 3100
80 SW 8th Street
Miami, FL 33130
Phone: (305) 579-0012
Fax: (305) 579-4722,
(305) 810-2833

Super Lawyers 2013

Super Lawyers David S Garbett

David S. Garbett

David S. Garbett

Location:
Miami, Florida
Phone:
305-536-8861
Fax:
305-579-4722
Email:

David has been a shareholder of Garbett, Stiphany, Allen & Roza, P.A. since 1995. Before joining the firm, David was a partner with Stuzin and Camner, P.A. and Paul, Landy, Beily and Harper, P.A.

David was born and raised in Miami, attended Washington University (1979, B.A. Cum Laude) where he was a member of Phi Beta Kappa, and the University of Miami School of Law (1982, J.D. Cum Laude), where he served as an editor of the University of Miami Law Review. David has been selected for inclusion in: (i) Florida Superlawyers (top 5% of lawyers practicing in Florida); (ii) Florida Legal Elite (top 2% of lawyers practicing in Florida) (both in the areas of banking and commercial litigation); and (iii) Miami Metro Magazine, South Florida's top lawyers.

David's practice includes complex commercial litigation with an emphasis on financial institution and Uniform Commercial Code-related disputes. David's practice also includes structuring and documenting complex loan transactions, including Eximbank-related loan transactions, asset-based international and domestic lending transactions and factoring transactions. In his financial institution practice, David represents financial institutions on claims involving special assets, lender's liability, letters of credit, documentary collections, check kiting, altered and counterfeit checks, wire transfers, financial institution bond coverage, Article 9 perfection issues, and Regulation CC and Regulation J issues. David also has extensive experience in drafting other banking-related agreements, such as Depositor's Agreements, Funds Transfer Agreements, Internet banking agreements, Letter of Credit-related Agreements, Cash Management Agreements and the like. David has considerable experience in negotiating and drafting workout/restructure agreements.

Representative financial institutional clients include Regions Bank, Ocean Bank, TotalBank, JPMorgan Chase Bank, N.A., Apollo Bank, First Bank Florida, First Bank Puerto Rico, TD Bank, Mercantil Commerce Bank, N.A., Branch Banking and Trust Company, Pacific National Bank and ExpoCredit Corp.

Among David's professional achievements are the writing of winning side briefs in the U.S. Supreme Court on two commercial cases, Republic Nat. Bank of Miami v. U.S., 506 U.S. 80 (1992), reversing, U.S. v. One Single Family Residence Located at 6960 Miraflores Ave., 932 F.2d 1433 (11th Cir. 1991) (United States may not deprive appellate court of jurisdiction to hear appeal of forfeiture judgment by removing the proceeds of the forfeiture from the territorial jurisdiction of the district court pending appeal); and Oppenheimer & Co., Inc. v. Young, 470 U.S. 1078 (1985), vacating, Oppenheimer & Co. v. Young, 456 So. 2d 1175 (Fla.1984), on remand, Oppenheimer & Co., Inc. v. Young, 475 So. 2d 221 (Fla. 1985) (arbitration provision in brokerage account agreement valid and enforceable under Federal Arbitration Act, which preempts inconsistent provisions of Florida Arbitration Act); and creating new law in various UCC and other first impression issues, including:

  1.Chavez v. Mercantil Commercebank, N.A., Slip Copy, 2011 WL 5285713 (S.D.Fla. 2011) (in case of first impression in United States, court held that bank's security procedures for authenticating in person delivered payment order were Article 4A security procedures, were commercially reasonable, and were followed in good faith in executing payment order; bank was exonerated as a matter of law for executing payment order even if the payment order was forged)

  2.Roger Chavez v. Mercantil Commercebank, N.A., USDC, Southern District of Florida, Case No. 10-23244-Civ-Torres (magistrate's order denying motion for partial judgment on the pleadings and holding, in UCC case of first impression, that bank's exoneration for complying with commercially reasonable security procedures in § 670.202(2) applies to hand-delivered payment orders).

  3.Leonard Baquero et al. v. JPMorgan Chase Bank, N.A., USDC, Southern District of Florida, Case No. 10-23212-Civ-Seitz (order dismissing claims with prejudice; in case of first impression in Florida, debits resulting from ACH transactions are not "items" under Article 4; plaintiffs' failure to assert claims under EFTA and Reg. E within one year of events, including failure to investigate claims and provide recredit, barred by statute of limitations).

  4.CI Intern. Fuels, Ltda. v. Helm Bank, S.A., 707 F.Supp.2d 1351 (S.D. Fla. 2010) (in case of first impression in the Eleventh Circuit, district court held that rule of unanimity otherwise required for removal did not apply to removal under Edge Act).

  5.Medmarc Casualty Insurance Company v. Gabriel Martin, et al., USDC Southern District of Florida, Case No. 07-21467-Civ-Seitz (granting summary judgment to claimant with respect to insurance policy covering claims for professional malpractice and closing agent liability and concluding, in an issue of first impression in Florida, that various claims submitted against the insured-closing agent were "unrelated" under the policy and thus not subject to one per claim limitation).

  6.Attorney's Title Ins. Co. v. Regions Bank, 491 F.Supp.2d 1087 (S.D.Fla. 2007) (in UCC case of first impression, district court dismissed action with prejudice brought against bank for statutory conversion of check paid over the payees' unauthorized endorsement for lack of delivery of check to the payees; under § 673.4201, only delivery to payee's agent or co-payee will establish delivery)

  7.Salam Jeans Limited v. Regions Bank, USDC Southern District of Florida, Case No. 07-21603-Civ-Gold (magistrate's report and recommendation, later affirmed, granting motion for reasonable attorney's fees under Article 5 to Florida's UCC governing letters of credit; in UCC case of first impression, court held that where complaint claimed violations of UCP and sought damages, the claims necessarily arose under Article 5 to UCC and therefore defendant issuer was entitled to recover attorney's fees as mandated by § 675.111(5) for prevailing).

  8.In re Bancredit Cayman Ltd., 419 B.R. 898 (Bankr. S.D.Fla. 2009) (in case of first impression in Florida, court held that § 670.505 applied to preclude claim by successor of customer that bank wrongfully executed $13 million payment order; court also concluded that customer's post-execution conduct ratified payment order in any event; court also held that common law claims were displaced by Article 4A to Florida's UCC)

  9.Metro Building Materials Corp. v. Republic Nat. Bank of Miami, 919 So. 2d 595 (Fla. 3d DCA 2006) (holding in case of first impression that credit agreement statute of frauds, § 687.0304, applies to events occurring before statute was enacted because counterclaim relying on oral agreements was filed after enactment of statute)

  10.Commonwealth Land Title Ins. Co. v. Regions Bank, 2008 WL 744061 (Fla. Cir. Ct. Feb. 28, 2008) (in UCC case of first impression, trial court dismissed with prejudice various common law counts against bank as displaced by Article 4A for allegedly mishandling a payment order credited to the wrong account)

  11.Lowenstein v. Barnett Bank of South Florida, N.A., 720 So. 2d 596 (Fla. 3d DCA 1998) (in UCC case of first impression, appellate court affirmed summary judgment dismissing customer's claim against bank for paying checks over forged drawer's signatures as absolutely barred by customer's failure to report forgeries within one year, even though customer was in prison during fraud scheme)

  12.Bijlani v. NationsBank of Florida, N.A., 25 UCC Rep. 2d 1165 (Fla. Cir. Ct. 1995) (in UCC case of first impression, trial court dismissed claims against payor and depositary banks handling for deposit check with ambiguous multiple payee designation).

David has written several articles, including "The Duty of Defend Clause in Liability Insurance Policy: Should the Exclusive Pleading Test Be Replaced?", 36 University of Miami Law Review 2 (1982) and 1993 Revisions to Florida 's Uniform Commercial Code.

Areas of Practice

  • Aviation
  • Banking & Finance Law
  • Business & Commercial Law
  • Contracts
  • Debtor/Creditor
  • Litigation & Appeals

Bar Admissions

  • Florida, 1982
  • U.S. District Court Southern District of Florida, 1985
  • U.S. Court of Appeals 11th Circuit, 1988
  • U.S. Supreme Court, 1992

Education

  • University of Miami School of Law, Coral Gables, Florida
    • J.D. cum laude - 1982
  • Washington University in St. Louis, St. Louis, Missouri
    • B.A. cum laude - 1979
    • Major: Political Science

Published Works

  • Comment, The Duty to Defend Clause in Liability Insurance Policy: Should The Exclusive Pleading Test be Replaced? 36 University of Miami Law Review, 2, 1982

Classes/Seminars

  • Letters of Credit and the Lender, SunBank/Miami, N.A., 1993 - Present

Past Employment Positions

  • Paul, Landy, Bailey & Harper, Partner, 1982 - 1994