Kreps DeMaria
Cindi Perantoni, [email protected]
Karla Cobreiro, [email protected]

Bank Ordered To Produce Attorney-Client Communications Under The “At Issue” Waiver Doctrine

MIAMI, FL (April 10, 2017) – Today, the United States Bankruptcy Court for the Middle District of Florida issued a significant Memorandum Decision ruling that Regions Bank was required to produce certain attorney-client and work product privileged communications to the plaintiff-bankruptcy trustees because it asserted a good faith affirmative defense to the trustees’ fraudulent transfer claims and the communications reflected its state of mind during the relevant time period.  Angela Welch is the Chapter 7 Trustee of Frank Mongelluzzi’s bankruptcy estate and she is represented in the suit by Robert F. Elgidely and John H. Genovese of Genovese Joblove & Battista.

The decision applied the infrequently invoked “at issue” waiver doctrine, which prevents a party from withholding evidence on the basis of the attorney-client and work product privileges when they affirmatively inject their state of mind as an issue in the suit. Regions had done this through the assertion of a good faith affirmative defense to Welch’s suit. Application of the doctrine could be a key that opens a treasure chest containing critical evidence in a case and has the possibility of being a “game changer,” according to Elgidely.

“The ruling ensures we will have the full factual picture of Regions’ knowledge and enables the Court to fairly adjudicate the suit on its merits,” said Elgidely.

The Memorandum Decision is reported at Welch & Herendeen v. Regions Bank, 2017 WL 1326237 (Bankr. M.D. Fla. Apr. 10, 2017) and has significant precedential value or persuasive authority in state and federal courts throughout the country.

Mongelluzzi was the owner and operator of a national temporary labor staffing company known as Able Body Labor.  The companies were based in Clearwater, Florida and had 170 branch offices in 25 states.  Mongelluzzi allegedly perpetrated a massive check kiting scheme from 2007 through 2010 which involved the circular movement of loan proceeds and other funds between 314 bank accounts at 38 financial institutions, including 61 accounts at Regions. When the scheme collapsed in the summer of 2010, Regions and other banks allegedly utilized their superior knowledge of Mongelluzzi’s financial condition and illicit banking activities to obtain payment of millions of dollars to the exclusion and detriment of other creditors. The trustees are attempting to recover those funds for the benefit of other unsuspecting and innocent creditors.

Elgidely and his team secured a $9 million settlement for the estate with Synovus Bank in September.


About Genovese Joblove & Battista, P.A.

Genovese Joblove & Battista, P.A. (GJB) was established in 1999 by founding partners John H. Genovese, Michael D. Joblove, and Paul J. Battista. Today, GJB has grown steadily to become a major regional firm with offices in Miami, Fort Lauderdale, and Fort Myers as well as an affiliate office in Caracas, serving clients throughout the U.S. GJB attorneys are recognized for their experience representing clients in large and complex litigation in a number of areas, including bankruptcy, insolvency, receiverships, franchises, and general commercial matters, as well as white collar, real estate, employment law, class actions, and securities litigation. The firm and its affiliate, GJB Consulting, also counsel clients in local, state and federal government matters. For more information, visit

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