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Trump unable to finance an appeal bond for at least $450 million, lawyers say

NEW YORK — Donald Trump has failed to finance an appeal bond for more than $450 million to cover a judgment in the New York attorney general’s business fraud case against him and is seeking a reprieve from an appellate court to keep the state from seizing assets, according to a court filing by his attorneys on Monday.

The former president’s lawyers said in the filing that Trump and the Trump Organization, the real estate, hospitality and golf resort company he solely owns, have been unable to get a surety company, an insurer that issues court bonds, to accept property as collateral — stalling any efforts to obtain a bond with a week before the state might begin collecting.

“Critical among these challenges is not just the inability and reluctance of the vast majority of sureties to underwrite a bond for this unprecedented sum, but, even more significantly, the unwillingness of every surety bond provider approached by Defendants to accept real estate as collateral,” Alan Garten, the Trump company’s general counsel, wrote in a sworn submission.

Garten said Trump and the company approached 30 surety companies through four brokers, proposing combinations of liquid and real estate assets, without success. None of them were willing to accept real estate collateral for appeal bonds, he said, noting that Trump and the company have faced “insurmountable difficulties” in exhaustive efforts to secure a bond for the full amount necessary.

Barring financial or court developments, Trump, the likely Republican nominee against President Biden in the 2024 election, could see New York state officials take steps toward seizing his real estate and other assets next week.

The legal team behind Trump recently failed to get an emergency appeals judge to issue a stay of enforcement on the judgment as the 30-day unofficial deadline the attorney general gave the company to fulfill its appeal bond obligation looms.. That judge also rejected an offer of a $100 million bond in lieu of the full amount. A full panel will soon examine the same issues.

Trump’s financial outlook appears significantly jeopardized by the pending bond issue and the massive judgment looming over him, which remains unresolved less than two weeks after Trump posted a $91 million bond to hold off enforcement in a defamation lawsuit he lost to advice columnist E. Jean Carroll.

Such large civil judgments are more commonly seen in litigation involving corporations or other major financial institutions. For the family-run Trump Organization, which owns and manages Trump’s real estate and makes up the vast majority of his personal wealth, quickly finding such a large amount of cash or other available assets has proved exceedingly difficult.

Barring a court stay, Trump will need to post a bond of about $464 million by Monday — the day a month-long grace period offered by New York Attorney General Letitia James’s expires. If a bond is posted before the window closes, it would have the effect of imposing a stay on James’s enforcement while Trump’s appeal is pending because the surety company would have guaranteed future payment. If a bond isn’t posted, James’s office can begin enforcing the judgment by starting the process of seizing his assets.

Trump’s lawyers called it a “practical impossibility” to post a bond under the circumstances.

Trump’s lawyers in the case asked for permission to send the bond fulfillment issue to the state’s highest court for review should the New York Supreme Court Appellate Division decline to stay enforcement of the monetary judgment. The team previously won a temporary stay of a non-monetary condition which would remove Trump’s adult sons Eric and Donald Trump Jr. from running the company.

Trump, his company and several current and former executives were found civilly liable in Manhattan state court this year for engaging in illegal acts to defraud banks and insurance companies by lying about the true value of his assets to falsely obtain profits and savings in business over a decade.

James, who brought the case, said Trump misstated the value of his properties and other assets by up to $2.2 billion a year from 2011 to 2021.

Surety companies are requiring Trump to put up the entire amount needed for the bond in collateral, according to the defense filing. Legal experts said that a likelihood of the appeal failing is the main reason companies would mandate such terms.

“Insurance companies in appeals cases tend to want the full amount of the judgment as collateral,” said Adam Pollock, an attorney who formerly served as assistant attorney general in New York.

Surety companies generally accept only cash or an irrevocable letter of credit as collateral, according to JD Weisbrot, who has worked in the business for more than 20 years and is a managing director at the underwriting firm Risk Strategies.

Someone with assets like Trump, who has the majority of his fortune tied up in real estate, would ideally go through a bank to get that letter of credit, Weisbrot said. A bank would also likely want the full amount of the bond in collateral but might accept many more types of collateral, including deeds to real estate, fine art or other assets, he said. That could free up funds for someone who owns lots of property.

“My feeling is a bank would likely take a similar position as a surety and likely also require a dollar-for-dollar amount in collateral,” he said. “But a bank is more flexible as a financial situation than a surety would be in terms of the type of collateral.”

Trump has few existing relationships with big banks on Wall Street, according to a financial disclosure he filed with the government in August as part of his candidacy. Deutsche Bank, which provided him with a number of loans that fueled the expansion of his business before he entered politics, no longer has any loans with him.

When the state attorney general gets the green light from a court to enforce a financial judgment, state law allows her office to instruct law enforcement to deliver execution notices — similar to subpoenas — to banks or other parties that hold a defendant’s assets.

Staff from the New York City Marshals (or the Sheriff’s Office if the asset is real estate) then go to collect the debtor’s assets, Pollock said. That can include draining the defendant’s bank accounts by requesting cashier’s checks for the full amounts or, in some cases, going to defendants’ homes or businesses and hauling away expensive cars or pieces of artwork.

In some instances, enforcement might require the state attorney general’s office to spend time determining where a defendant’s assets are located. But because the case with Trump revolved around his assets and chronicled them in great detail, James’s office likely already has much or all of the information it needs.

“They know where his assets are — the whole case was about his assets,” Pollock said.

That would make enforcement much easier, Pollock suggested, particularly for bank accounts that are in his name or the name of his business units that were named as defendants.

“They could get that money tomorrow,” he said.

O’Connell reported from Washington. Josh Dawsey in Washington contributed to this report.

This post appeared first on The Washington Post

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