EX-5 3 ex5-1.txt EXHIBIT 5.1 EXHIBIT 5.1 [BLANK ROME LOGO] Phone: (215) 569-5500 Fax: (215) 569-5555 November 12, 2004 American Business Financial Services, Inc. 103 Springer Building 3411 Silverside Road Wilmington, Delaware 19810 Re: American Business Financial Services, Inc. Subordinated Debentures Registration Statement on Form S-2 ------------------------------------------------------------------ Gentlemen: We have acted as counsel to American Business Financial Services, Inc. (the "Company") in connection with the Registration Statement on Form S-2 (the "Registration Statement") filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to the offer and sale by the Company of up to $280,000,000 in principal amount of unsecured, subordinated investment notes and unsecured, adjustable-rate, subordinated money market notes (the "Subordinated Debentures"). The Subordinated Debentures will be issued pursuant to an Indenture to be entered into between the Company and U.S. Bank National Association, a national banking association, as trustee (the "Indenture"). This opinion is being furnished pursuant to the requirements of Item 601(b)(5) of Regulation S-K. Although as counsel to the Company we have advised the Company in connection with a variety of matters referred to us by it, our services are limited to specific matters so referred. Consequently, we may not have knowledge of many transactions in which the Company has engaged or its day-to-day operations however, we do not believe this fact impacts our ability to provide an opinion regarding the binding nature of the subordinated debentures. In rendering this opinion, we have examined only the documents listed on Exhibit "A" attached hereto. We have assumed and relied, as to questions of fact on the truth, completeness, authenticity and due authorization of all certificates, documents and records examined and the genuineness of all signatures. We have also assumed that the Indenture will be in the form filed as an exhibit to the Registration Statement and will have been duly executed and delivered by the Company and U.S. Bank National Association, a national banking association, as trustee. We have not performed any independent investigation other than the document examination described above. Our opinion is therefore qualified in all respects by the scope of that document examination. We make no representation as to the sufficiency of our investigation for your purposes. This opinion is limited to the laws of the State of Delaware and no opinion is expressed as to the laws of any other jurisdiction. In rendering this opinion we have assumed compliance with all laws other than those of the State of Delaware, including federal and state laws. Based upon and subject to the foregoing, we are of the opinion that the Subordinated Debentures that are being offered and sold by the Company pursuant to the Registration Statement, when issued by the Company as contemplated by the Registration Statement and in accordance with the Indenture, will be binding obligations of the Company enforceable against the Company in accordance with their terms except as may be limited by bankruptcy, insolvency or other similar laws affecting the rights and remedies of creditors generally and general principles of equity. This opinion is given as of the date hereof. We assume no obligation to update or supplement this opinion to reflect any facts or circumstances which may hereafter come to our attention or any changes in laws or court decisions which may hereafter occur which would limit or render unenforceable certain rights and remedies. This opinion is strictly limited to the matters stated herein and no other or more extensive opinion is intended, implied or to be inferred beyond the matters expressly stated herein. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption "Legal Matters" in the Prospectus, which is part of the Registration Statement. Sincerely, /s/ Blank Rome LLP BLANK ROME LLP EXHIBIT "A" 1. The Company's Amended and Restated Certificate of Incorporation. 2. The Company's Amended and Restated Bylaws. 3. Resolutions of the Board of Directors. 4. Form of Indenture filed as an exhibit to the Registration Statement. 5. The Registration Statement. 6. Good Standing Certificate for the Company from the Secretary of State of the State of Delaware.