Danielle Maksimow

Takeaways for Private Placement Investors following PG&E’s Bankruptcy By: Chiraag Kumar (MetLife) Private placement investors that often negotiate “anti-Cookson clauses” and “Adelphia provisions” are reminded that bankruptcy proceedings (such as those of namesakes Cookson Group and Adelphia Communications) often lead investors to re-examine their financing agreements in order to address areas of risk that were […]

Lender who assigned its interest in a note prior to filing replevin action for collateral securing the note had its action dismissed for lack of standing despite attempted substitution of assignee as plaintiff.   Ion Bank v. J.C.C. Custom Homes, LLC, 189 Conn.App. 30 (2019). By: Kevin Braun (Morgan Lewis) Ion Bank (the “Original Lender”) filed an action of replevin […]

By: Mikhel Schecter (Paul Weiss) Membership Committee The primary responsibility of the Membership Committee is to consider applications for ACIC membership and to recommend those applicants meeting the membership criteria of the College to the Board of Trustees for a membership vote.  In discharging this responsibility, the committee considers the totality of a candidate’s responses […]

Appeals court holds that a holder of a note cannot charge a prepayment premium upon acceleration unless the note clearly provides for it. Forty Pine, LLC v. Country Bank for Savings, 95 Mass.App.Ct. 1108 (2019). By: Kevin Braun (Morgan, Lewis) In September 2009, defendant Country Bank for Savings (the “Bank”) extended a commercial note in the […]

Waiver of jury trial provision in a loan agreeement did not apply to tortious interference with contractual relations claim despite broad jury trial waiver provision. KLP Enterprises, LLC v. Sassani, 2019 WL 2548135. By: Kevin Braun (Morgan Lewis) KLP Enterprises, LLC (“Lender”) moved to strike the demand for jury trial of Thomas J. Sassani ( “Borrower”) […]

Committee Reports By: Mikhel Schecter (Paul Weiss) Membership Committee The primary responsibility of the Membership Committee is to consider applications for ACIC membership and to recommend those applicants meeting the membership criteria of the College to the Board of Trustees for a membership vote.  In discharging this responsibility, the committee considers the totality of a […]

No damages were found where failure to deliver notice of default was not proximate cause of Lender’s claimed damages and Lender failed to take steps to mitigate losses. In re Lexi Development Company, Inc., Case No. 10-27573-BKC-AJC, 2019 WL 2426454 (Bankr. S.D. Fla. June 6, 2019). By: Jeff Duston (King & Spalding) An unsecured lender made […]

Eleventh Circuit held that New York UCC provision does not give rise to a private right of action to a secured party that was not an assignee of an account.  Durham Commercial Capital Corp. v. Ocwen Loan Servicing, LLC, No., 17-15572, 2019 WL 2290886 (11th Cir. May 29, 2019). By: Jeff Duston (King & Spalding) A […]

Letter of intent communicating intent not to be bound until execution of final acquisition documents precluded formation of a binding contract of sale, notwithstanding the words, actions and performance of the parties. Gulf Coast Hospice LLC v. LHC Group Inc., 273 So.3d 721 (Miss. 2019). By: Jeff Dutson (King & Spalding) The prospective seller (the “Seller”) […]

Debtor’s pledge of his partnership interest was unenforceable under Delaware law and the proof of secured claim filed by the Creditor was disallowed. The North Carolina court looked beyond the Security Agreement’s choice of law provision and to the local law of the state of incorporation. In re James Alexander Mason, Jr., 600 B.R. 765 (Bankr. […]

Creditor does not have a perfected security interest in Debtor’s property when it files a UCC-1 Financing Statement which lists inaccurate identifying information for the Debtor and does not adequately describe the collateral. In re WasteTech, 2019 WL 2351877 (Bankr. N.D. Ga. May 31, 2019). By: Jeff Dutson (King & Spalding) In 2017, the Debtor entered […]

The Response of Canadian Banks to the Supreme Court of Canada’s Redwater Decision By: Danielle Maksimow, Norton Rose Fulbright Canada LLP Introduction On January 31, 2019, Canada’s highest Court, the Supreme Court of Canada, shocked the Canadian banking and insolvency worlds when it issued the highly anticipated and ground-breaking decision of Orphan Well Association v. Grant […]

The Extraordinary Administration of Agrokor d.d. By: Tom Bannister, Akin Gump Strauss Hauer & Feld LLP The “Implementation Commencement Date” pursuant to Agrokor d.d.’s (Agrokor) Settlement Plan occurred on 1 April 2019, and with it the business, assets and operations of the Agrokor group (the group) transferred to a new creditor-owned group, the Fortenova group. […]

Introduction to New ACIC Members By: Luke Weedon, Baker Botts LLP David Botter is a partner in Akin Gump’s financial restructuring practice where he advises on large, complex restructuring cases, both out of court and in Chapter 11. He frequently handles multijurisdictional and cross-border matters for both distressed companies and major creditors, with an emphasis on […]

Spring Flash Sale – The Debenhams Pre-Pack By: Tom Bannister, Akin Gump Strauss Hauer & Feld LLP Introduction In the long-running saga of the demise of another stalwart of the British high street, Debenhams, a milestone was reached when the business of Debenhams was sold to a lender group by way of an English pre-packaged […]

President’s Message By: Armando Gamboa, Prudential Capital Group Well, it is finally summer in the Midwest.  After months of being teased with a decent day here and there, it has finally warmed up in Chicago. The College has had an outstanding first half of the year and more is to come in the second half. […]

Getting to Know Our Madeleine Crouch & Co. Account Executive , CJ Marchain ACIC events are engaging and entertaining because of the efforts from our co-chairs, the officers, the trustees, the committees, and the speakers, but the ACIC runs smoothly because of the work of our Madeleine Crouch & Co., Inc. (“MCC”) Account Executive and her team.  […]

Corporate officer and director usurped the corporate opportunity of a supplier corporation in which he was also a director by choosing to insource services previously provided by the supplier; proper remedy was to impose a constructive trust on profits attributable to the insourcing. Mitchell v. K&B Fabricators, Inc., 2018 WL 4657076 (Sup. Ct. Ala. 2018). […]

Conroy v. Amos, 338 F. Supp. 3d 1309 (M.D. Ga. 2018) Georgia law warrants the dismissal of a derivative claims if a corporation’s decision not to pursue the claims is based upon a recommendation from an independent and disinterested committee and a reasonable and good faith investigation. Georgia’s derivative-action dismissal statute, O.C.G.A. § 14-2-744, authorizes […]

Sweely Holdings, LLC, 296 Va. 367 (2018) Virginia Supreme Court held that where a bank explicitly preserves its right to foreclosure in a forbearance agreement the bank has a right to foreclose on property despite having other remedial options available to it under the forbearance agreement. Sweely Holdings, LLC (“Sweely”) and bank (“Bank”) entered into […]

Guarantee Co. of N. Am. v. Gary’s Grading & Pipeline Co., 746 F. App’x 831, 834 (11th Cir. 2018). The Eleventh Circuit Court of Appeals affirmed the district court’s decision that a co-manager had apparent authority to bind LLC to bond indemnification agreement under the Georgia Limited liability Company Act. The co-manager of a Georgia limited […]

Nationwide Mutual Insurance Company v. Eagle Window & Door, Inc., 424 S.C. 256 (S.C. Sup. Ct. 2018) No successor liability of bankruptcy purchaser in a contribution action; officer, director and shareholder continuity are required for a “mere continuation” analysis. Commonality of officers, standing alone, does not render liability. Homeowners brought a construction defect suit against […]

Besaw, Trustee of Revocable Living Trust of Ernest P. Giroux v. Giroux, 2018 WL 6714805 (2018) Promissory Note holder’s right to sue for the return of collateral accrued, and statute of limitations period began to run, not on the initial failure to pay but when borrower failed to pay balance due within 45 days of […]

Membership Committee The primary responsibility of the Membership Committee is to consider applications for ACIC membership and to recommend those applicants meeting the membership criteria of the College to the Board of Trustees for a membership vote.  In discharging this responsibility, the Membership Committee considers the totality of a candidate’s responses in his/her application, with particular emphasis […]

People’s United Bank v. B & B Fire Protection, Inc., 94 Mass.App.Ct. 626 (2019) Guaranty executed with apparent, but not actual, authority was enforceable in a situation when the guarantor’s owner failed to repudiate the guaranty upon learning of it, and instead drained the guarantor’s assets. Plaintiff People’s United Bank (the “Lender”) brought a collection […]

November 29, 2018 Benchmark Reform I now turn to the matter of benchmark reform. I am sure everyone here is familiar with the LIBOR, the short-term unsecured interest rate benchmark.  It used to reflect the rate of interest at which money center banks were willing to lend money to each other.  Following unfortunate incidents of […]

Message from ACIC President Happy New Year to all!  It seems that every year goes by quicker than the last. Before 2019 kicks into high gear and my mind wipes out 2018, I wanted to reflect upon 2018 for a moment. Both of our conferences were fantastic.  We had record attendance for the Spring Forum […]

Defendant CashCall, Inc. (“CashCall”) makes consumer loans to borrowers with a poor credit history.  Its signature product was an unsecured $2,600 loan payable over a 42-month period with a percentage rate of either 96 percent per annum or 136 percent per annum.  Plaintiff Eduardo De La Torre (“De La Torre”) filed a lawsuit in the […]

Street v. ACC Enters., LLC, 2018 U.S. Dist. LEXIS 167299 (D. Nev. Sept. 27, 2018) Plaintiff Bart Street III (the “Plaintiff”), a Nebraska entity, is a money lender.  Defendants ACC Enterprises, LLC, ACC Industries, Inc. (collectively, the “ACC Entities”) and Calvada Partners, LLC (collectively with the ACC Entities, the “Defendants”), all Nevada entities, allegedly own […]

Claims traders regularly agree to buy and sell claims based on little more than a series of emails confirming the economic terms of the trade.  Trades are later memorialized in definitive documentation, but it is widely accepted in the market that reaching agreement on price and amount represents a binding commitment to close the trade.  […]

Pac. W. Bank v. Fagerdala USA-Lompoc, Inc. (In re Fagerdala USA-Lompoc, Inc.), 891 F.3d 848 (9th Cir. 2018) Fagerdala USA – Lompoc, Inc. (“Fagerdala”) commenced a chapter 11 bankruptcy in the United States Bankruptcy Court for the Central District of California (the “Bankruptcy Court”).  Fagerdala’s principal asset was real property worth approximately $6 million.  Pacific […]

Happy New Year to all of our Fellows!  We just completed a great year for the American College of Investment Counsel and look forward to building on our momentum to enhance and grow our College. Highlights of 2017 included our Spring Forum in Chicago chaired by Mary Jo Quinn (Allstate) and Melody Cross (Schiff Hardin), […]

Goldman Sachs imagines Libor substitute: itself International Finance Review 2203 30 September to 6 October 2017 By:  Shankar Ramakrishnan and Eleanor Duncan Goldman Sachs raised eyebrows last week with language in a bond deal that outlined how the debt would be valued after the discontinuation of Libor. But in a surprising twist, the bank said a […]

Broad release and waiver provisions are enforceable;  Borrowers could not sue a lender for misconduct which occurred prior to the execution of an agreement containing the broad release and waiver provisions. Beck-Ford Constr., LLC v. TCA Glob. Credit Master Fund, LP, No. 1:15-CV-61706-UU, 2017 WL 2366472 (S.D. Fla. Mar. 6, 2017). Plaintiff entities entered into a credit agreement […]

An originating bank’s failure to disclose a borrower’s post-default settlement offer or third-party purchase offers to a participating bank and the originating bank’s rejection of the participating bank’s demand to charge interest at a default rate did not breach the originating bank’s obligation under a loan participation agreement to consult with and obtain the written […]

Pre-petition waiver of automatic stay unenforceable and relief from automatic stay otherwise not warranted where grow contracts disguised financing arrangements. In re Jeff Benfield Nursery, Inc., 565 B.R. 603 (Bankr. W.D. N.C. 2017). The Debtor operated a commercial wholesale nursery, growing trees, shrubs, and similar agricultural products on approximately 1,000 acres in western North Carolina. In […]

Indemnification and no-liability clauses of Agreements between Subsidiary and Parent Companies found procedurally and substantively unconscionable under New York law.  Blackrock Capital Inv. Corp. v. Fish, 799 S.E.2d 520 (W. Va. 2017). The parties in this case are (i) a broker involved in the business connecting buyers and sellers of businesses who often takes an ownership […]

Membership Committee The Membership Committee is charged with administering the process of electing individuals for membership in the College, and does so by receiving nominations for fellowship from other Fellows of the College, and reviewing the applications of nominated individuals for compliance with the relevant membership criteria. The Committee makes recommendations to the Trustees with […]

Bankruptcy Court Holds That Chapter 13 Debtor’s Surrender of Collateral Property Does Not Impose On Secured Creditors A Requirement To Accept That Property In Satisfaction Of Its Claims.  In re Sagendorph, 562 B.R. 545 (D. Mass 2017). Paul Sagendorph, debtor in a Chapter 13 bankruptcy proceeding (the “Debtor”), sought to amend his Chapter 13 plan to […]

A Third Party That Acquires An Unendorsed Note Has Standing To Enforce That Note Though Not Technically A Holder Of The Note.  Valley Nat’l Bank v. Marcano, 174 Conn. App. 206 (2017). The personal guarantor (the “Guarantor”) of a $250,000 business line of credit, made available to his company (the “Borrower”) by Park Avenue Bank (Valley National) […]

Bankruptcy Court Rules That Pre-Petition Guaranties of Post-Petition Extensions of Credit Are Not Subject to Bankruptcy Discharges.  In re Reardon, 2017 WL 1283449 (Bkrtcy. D. Mass., Judge Bailey). National Lumber Company (the “Creditor”) sought a determination by the court that James Reardon and Jeanine Reardon, husband and wife and also joint petitioners for relief under Chapter […]

James Kelly is a Staff Attorney in the Investments and Business Transactions department of Allstate Insurance Company. He advises clients with respect to infrastructure investments, debt and equity transactions and general investment matters. Prior to joining Allstate in 2014, he was in-house counsel at Lario Oil & Gas Company in Wichita, KS where his practice focused […]

Lenders’ acquiescence to actions inconsistent with terms of Blocked Account Agreement resulted in abandonment and waiver of Lenders’ right to enforce the agreement. Edwards Family Partnership, LP v. Bancorpsouth Bank, ___F. Supp. 3d___, 2017 WL 1732709 (S.D. Miss. February 21, 2017). A Blocked Account Agreement (“BAA”) among the plaintiff-lenders (“Lenders”), the defendant-bank (“Bank”), and the borrower included […]

In Banco Popular, North America v. Kanning, 638 Fed.Appx. 328 (5th Cir. 2016), the court of appeals held that a debtor’s assignment of his life insurance policy to a lender was enforceable and that the lender’s lien was not extinguished by the declaration of bankruptcy by the named beneficiary of the policy. On December 3, 2007, […]

In Carmel Financial Corporation, Inc. v. Castro, 2016 WL 7478048 (Tex. App. — Houston [14th Dist.] December 29, 2016), the court of appeals held that a company’s fixture filing did not independently create a lien on the real property on which the fixture was located. In April 2008, Carmel Financial Corporation (“Carmel”) financed the purchase and […]

Nw. Bus. Fin., LLC v. Able Contractor, Inc., 383 P.3d 1074 (Wash. App. 2016). After Northwest Business Finance (“Northwest”) provided Able Contractors (“Able”) with short-term financing, Able executed an assignment of proceeds notification agreement in August 2007, naming Northwest as the assignee of all account payments due to Able.  The notification indicated that Able had […]

Huffman v. Gollersrud (In re Westby), 2017 Bankr. LEXIS 423 (Bankr. D. Ore. 2017). Tyler Westby (“Westby”), a real estate investor and speculator, sold a certain Oregon property (the “Property”) to Tony and Rosalinda Swanson (the “Swansons”) and took back a note (the “Swanson Note”) and trust deed (the “Swanson Trust Deed”).  Subsequently, a creditor […]

Gault v. Sass Electric, Inc., 2016 WL 5539872 (Cal. Ct. App. 2016). In April 2012, Michael Gault and CGE, Inc. (collectively, “Gault”) sued Sass Electric, Inc. and Christopher Sass (collectively, “Sass”) over certain business disputes.  In April 2013, Gault and Sass entered into a settlement agreement and a separate promissory note in the amount of […]

Lesa, LLC v. Family Trust of Kimberley and Alfred Mandel, 2016 WL 6599912 (N.D. Cal. 2016) The following is a follow-up case summary relating to an order dated November 2016, with respect to the same junior lenders and senior lender written about in the Fall 2016 ACIC Newsletter.  In the Fall 2016 case summary, the […]

Private Sale of Partnership Interests Violated UCC In Bruce v. Cauthen, 2017 WL 455578 (Tex. App. — Houston [14th Dist.] February 2, 2017), the court held, on rehearing, that a partner was prohibited under the Uniform Commercial Code of the State of Texas (the “Texas UCC”) from purchasing, at a private sale, a former partner’s minority […]

A High Level Summary of the Recast European Insolvency Regulation Introduction On 26 June 2017, Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceeding (the “Recast Regulation”) came into effect. The Recast Regulation replaces in its entirety the EU Regulation (1346/2000) on insolvency proceedings (the “EU […]

A New Era of Greater Scheme Scrutiny Introduction A scheme of arrangement (a “Scheme”) is a statutory procedure under Part 26 (sections 895-901 CA) of the UK Companies Act 2006. The purpose of a Scheme is to allow the company to reach agreement for a consensual restructuring with 75% of a certain class of its […]

German CoCo Bonds Introduction The term “CoCo bond” stands for “contingent convertible bond”. German CoCo bonds are risky instruments, but generally provide high yields to investors. They are structured as convertible bonds (Wandel-Schuldverschreibungen) with a contingency element, which means that in contrast to a regular convertible bond, the bondholders do not have the conversion right. […]

It’s hard to believe that summer is here and 2017 is now into the second half of the year. From what I hear it has been a strong 2017 for members of the ACIC. We are all looking forward to a strong second half of the year. Looking back at the first half of 2017 […]

In Payless Holdings Inc., LLC, Re (“Payless”), an application for the approval of certain debtor-in-possession (“DIP”) financing arrangements between, among others, a US parent in Chapter 11 and its Canadian subsidiary, was rejected on the basis that the arrangements did not provide sufficient protection for all Canadian creditor parties that stood to be affected. Facts Payless Holdings LLC (the “Applicant”), […]

Introduction In the spring of this year the Ontario Superior Court of Justice provided guidance with respect to a lender’s discretion to refuse advances under a credit facility, as well as when a credit agreement might be considered varied or altered by the conduct of the parties. In XPG v. Royal Bank of Canada (“XPG”), the Court […]

Opportunity Finance, LLC, v. Kelley, 822 F.3d 451 (8th Cir. 2016) The United States Court of Appeals for the Eighth Circuit ( “Eighth Circuit”)‑held that (i)‑the district court did not abuse its discretion in declining to estop the trustee from arguing that lenders were not “persons aggrieved” with standing to appeal the bankruptcy court’s substantive consolidation […]

Companies Are Using Covenants to Restructure Their Capital Structure and Prime Existing Debt — What Lenders and Debt Investors Need to Know As more and more Companies face liquidity issues and near term debt maturities, they are looking closely to exceptions contained within their indenture/credit agreement covenants in order to achieve an overall or partial […]

3155 Development Way, LLC v. APM Rental Properties, LLC, 52 N.E. 3d 854 (Ind. Ct. App. 2016) The Indiana Court of Appeals (“Appellate Court”)‑held that (i)‑lack of public access hidden by a seller’s attempt to induce buyers with false claims about the property’s easy access to public roads provided justification for rescission of a sales […]

Second Circuit Court of Appeals Reminds Lenders that Less Can Be More When Drafting Collateral Descriptions in UCC Financing Statements – Ring v. First Niagara Bank, N.A. (In re Sterling United, Inc.), 2016 WL 7436608 (2d Cir. 2016). After protracted litigation, on December 22, 2016, the Second Circuit Court of Appeals issued a summary order holding that […]

Second Circuit Court of Appeals Lifts Cloud of Uncertainty over Bond Restructurings – Marblegate Asset Mgmt., LLC v. Educ. Mgmt. Fin. Corp., 15-2141-cv(CON) (2d Cir. 2017); Marblegate Asset Mgmt. v. Educ. Mgmt. Corp., 111 F. Supp.3d 542 (S.D.N.Y. 2015) (“Marblegate II”); Marblegate Asset Mgmt. v. Educ. Mgmt. Corp., 75 F. Supp.3d 592 (S.D.N.Y. 2014) (“Marblegate I”). On January 17, […]

Southern District of New York Orders Priority of Payment for Interest on Subordinated Lenders’ Claim – U.S. Bank Nat’l Ass’n v. T.D. Bank, 2017 U.S. Dist. LEXIS 14954 (S.D.N.Y. Jan. 27, 2017). On January 27, 2017, the Southern District of New York issued a ruling based on its reading of an intercreditor agreement that resulted in […]

NJK Holding Corp. v. Araz Group, Inc., 878 N.W.2d 515 (Minn. Ct. App. 2016) The Minnesota Court of Appeals (“Appellate Court”)‑held that under Minnesota law, a promise to forgive debt is a credit agreement and must be in writing in order to be enforceable. In December 1997, the Araz Group (“Araz”)‑executed a promissory note in […]