Josephine Vashi

Authored by: Andrew Thomison of Baker Botts Abandonment of acceleration resets the statute of limitations. In U.S. Bank N.A. v. Morris, No. 1:19-CV-00352-SH, 2021 WL 2870718, 2021 U.S. Dist. LEXIS 127559 (W.D. Tex. July 8, 2021), the court held that because a bank repeatedly abandoned the acceleration of a loan and related foreclosure proceedings, the […]

Authored by: Andrew Thomison of Baker Botts Notice to other lienholders required when exercising foreclosure rights. In Deutsche Bank Nat’l Trust Co. v. Saihat Corp., No. 21-20002, 2021 WL 5830821, 2021 U.S. App. LEXIS 36131 (5th Cir. December 8, 2021) (unpublished opinion), the court held that a bank’s lien on a residence survived an HOA […]

Authored by: David Simonds and Edward McNeilly (both of Hogan Lovells) Secured Creditor Forced to Pay Debtor’s Attorney’s Fees When Receivable Sale Is Treated as Disguised Usurious Financing SUMMARY In In re Shoot the Moon, LLC, 2021 WL 4144933 (Bankr. D. Mont.), the United States Bankruptcy Court for the District of Montana (the “Bankruptcy Court”) […]

Authored by: David Simonds and Edward McNeilly (both of Hogan Lovells) New Mexico Bankruptcy Court Holds That Lender’s Security Interest Does Not Extend to Proceeds of Commercial Tort Claim Settlement SUMMARY In In re S-Tek 1, LLC, 2021 WL 6101680 (Bankr. D. N.M. Dec. 23, 2021), the United States Bankruptcy Court for the District of […]

Authored by: David Simonds and Edward McNeilly (both of Hogan Lovells) Bankruptcy Court Denies Secured Creditor’s Right to Credit Bid for Assets Under Section 363(k) SUMMARY In In re Figueroa Mountain Brewing, LLC, 2021 WL 2787880 (Bankr. C.D. Cal. Jul. 2, 2021), the United States Bankruptcy Court for the Central District of California (the “Bankruptcy […]

Authored by: Edwin E. Smith of Morgan Lewis Re-printed with permission. The original article can be found by clicking here. Consider a lender that extends a term loan in the amount of $1 million to an entity debtor. The loan is guaranteed by the debtor’s owner. If both the debtor and the guarantor become subject […]

Authored by: Wendy Harlan (Unum Group) While this year’s theme for the Spring Forum, A Whole New World, emphasized how much things have changed (and indeed they have), for many, the return to the Ballroom at the Four Seasons Hotel in Chicago was a familiar and welcome opportunity for in-person attendees to meet with friends, […]

Contributed by Benjamin Cordiano (Morgan Lewis) — Please click on the link below to learn more about the ACIC’s new leadership team: ACIC – Meet the New Officers and Trustees 2022

Contributed by Tom Bannister (Akin Gump) Landlords and Leasehold Restructurings in the UK: What does 2022 hold? The COVID-19 pandemic has impacted a number of businesses in a number of ways.  In the UK, the retail sector has been particularly hard-hit.  Even before the pandemic, companies had been struggling due to (among other things) increased […]

Contributed by Danielle Maksimow (Norton Rose Fulbright Canada) — Canada v. Canada North Group Inc. 2021 SCC 30 Canadian Update: The Supreme Court of Canada Confirms the Broad Discretion the CCAA Vests in the Supervising Courts Introduction Last year, the Supreme Court of Canada (SCC) upheld the Alberta Court of Appeal’s majority decision in Canada […]

Written by Chris Dallas (Pacific Life) — Happy New Year everyone! As we approach two full years in a strange new work environment, I wanted to say hello to everyone in the ACIC — and in particular our new members who joined over the last year or two (who many of us have not yet […]

Article courtesy of Andrew Thomison of Baker Botts L.L.P. In Deutsche Bank Tr. Co. Ams. v. U.S. Energy Dev. Corp. (In re First River Energy, L.L.C., 986 F.3d 914 (5th Cir. 2021), the court was asked to resolve a lien priority dispute between the lender to a bankrupt entity (the “Debtor”) that had purchased oil […]

Article courtesy of Jeff Dutson of King & Spalding Under Georgia law, a creditor’s failure to include the debtor’s middle name on its financing statements, when his driver’s license had his full middle name, strongly indicated that its liens were invalid for purposes of the pending motion. In re: Darren E. Bryant, No. 20-70789 (Bankr. […]

Article courtesy of Jeff Dutson of King & Spalding The Georgia Court of Appeals reversed in part a grant of summary judgment finding that there was a genuine issue of material fact existed as to whether an officer misrepresented a company’s financial position and whether the lenders justifiably relied on information provided by the officer […]

Article courtesy of Jeff Dutson of King & Spalding Seller corporation entitled to recover full purchase price under asset purchase agreement from purchaser corporation’s owners. Shorter Bros., Inc. v. Vectus 3, Inc., No. 1190876, 2021 WL 2622054 (Ala. June 25, 2021). A company that owned delivery trucks and operated delivery routes (the “Seller”) entered into […]

Article courtesy of Jeff Dutson of King & Spalding The Supreme Court of North Carolina, resolving a business dispute, ordered judicial dissolution of multiple limited liability companies, holding that the statute of limitations begins to run on a breach of contract claim upon notice to the non-breaching party and that nominal damages are sufficient to […]

Article courtesy of Jeff Dutson of King & Spalding The lack of a future advances clause in a security agreement did not entitle junior creditor to a portion of the proceeds from the sale of tobacco crops.  Versailles Farm, Home & Garden, LLC v. Haynes, No. 2020-CA-0626-MR, 2021 WL 519722 (Ky. Ct. App. Feb. 12, […]

Article courtesy of Jeff Dutson of King & Spalding The US Bankruptcy Court for the Western District of Louisiana held a corporate issuer of stock used as collateral for two loans liable to the first lender for breaching the express provisions of the terms of its merger agreement. In re: Karcredit, LLC., 630 B.R. 14 […]

Article courtesy of Edward J. McNeilly and David P. Simonds, each of Hogan Lovells US LLP Ninth Circuit Holds That Lender May Rely on State Quiet Title Statute to Void Foreclosure Sale Made in Violation of the Automatic Stay In Bank of New York Mellon v. 732 Hardy Way Trust, 2 F.4th 1229 (9th Cir. […]

Article courtesy of Edward J. McNeilly and David P. Simonds, each of Hogan Lovells US LLP Nevada Supreme Court Holds That Shareholders Must Refute Business Judgment Rule and Demonstrate Intentional Misconduct, Fraud or Knowing Violation of Law in Director Fiduciary Duty Suit In Guzman v. Johnson, 483 P.3d 531, 137 Nev. Adv. Op. No. 13 […]

Article courtesy of Edward J. McNeilly and David P. Simonds, each of Hogan Lovells US LLP Bankruptcy Court Grants Attorney’s Fees to Debtor Who Prevailed in Assumption Motion In In re Hawkeye Entertainment, LLC, 625 B.R. 745 (Bankr. C.D. Cal. 2021), the United States Bankruptcy Court for the Central District of California (the “Bankruptcy Court”) […]

Article courtesy of Andrew Thomison of Baker Botts L.L.P. In Morgan v. U.S. Bank Nat’l Ass’n, No. 4:20-CV-00672, 2021 U.S. Dist. LEXIS 19122 (E.D. Tex. Feb. 2, 2021), the plaintiffs challenged the foreclosure of their homestead by the defendant, who had purchased the home loan from the plaintiffs’ original lender, by asserting, among other things, […]

Article courtesy of Amy C. Maloney of Morgan, Lewis & Bockius LLP Communications Committee The Communications Committee is responsible for communications among the College’s members and for communications between the College and the investment community at large. The Committee is responsible for preparing and publishing the College’s monthly newsletter, Private Notes. Among other items of […]

Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP CT Court Holds that, under Doctrine of Substantial Performance, a Lender’s Mechanistic Compliance With Notice of Default Provision of a Note Was Not Required Where Borrowers Had Actual Notice of the Default and Noncompliance by Lender Did Not Result in Prejudice to the […]

Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP CT Court Holds that Noteholder Could Not Recover Damages for Borrower’s Failure to Pay Note at Original Maturity Where the Maturity Date was Extended and Events of Default were Waived by “Requisite Holders” in Accordance With Note Terms, Despite Noteholder Having Issued Demand […]

Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP (1) Despite Misrepresentation by Borrowers, Lenders Not Able to Rely on Borrower’s Representation that Statutory Analysis Was Done Demonstrating Usurious Loans Were Capable of Repayment, for Exception to RI Usury Law; (2) Forbearance Agreement Release Didn’t Release Usury Claim Under “Coercive” Circumstances Where […]

Authored by Chiraag Kumar of MetLife Spotlight on New ACIC Members The ACIC has recently welcomed the following new members: Kaitlin Betancourt is a Vice President and Corporate Counsel in the legal department of the Chief Investment Office of Prudential Financial, Inc., where she provides legal advice to the Alternative Assets Group and Impact Investments […]

Authored by Danielle Maksimow of Norton Rose Fulbright Canadian Update: The Supreme Court of Canada Explains the Parameters for Exercising Contractual Discretion in Good Faith Introduction On February 5, 2021, the Supreme Court of Canada (the SCC) delivered its third decision in a trilogy of cases on the duty of good faith in contractual performance. […]

Authored by Tom Bannister, Lauren Pflueger, Emma Simmonds and Barry Russell, all of Akin Gump Strauss Hauer & Feld The English Restructuring Plan: A Year In Review A little over one year ago, on 26 June 2020, the Corporate Governance and Insolvency Act 2020 (the Act) came into force, bringing with it the most extensive […]

Article courtesy of Andrew Thomison (of Baker Botts) Contract executed with an electronic signature held to be enforceable. In Kamel v. Ave. Insights & Analytics LLC, 2020 WL 4679574 (E.D. Tex. 2020), the Eastern District Court of Texas (the “Court“) was asked to decide, among other things, whether an electronic acknowledgment, rather than a physical […]

Article courtesy of Andrew Thomison (of Baker Botts) Collection actions taken by bank did not amount to tortious interference with borrower’s business relations. In Whitney Bank v. SMI Cos. Global, 949 F.3d 196 (5th Cir. 2020), the 5th Circuit Court of Appeals was called upon to review, among other things, a magistrate judge’s determination that […]

Article courtesy of David P. Simonds and Edward J. McNeilly (both of Hogan Lovells US LLP) In re Claar Cellars LLC, 623 B.R. 578 (Bankr. E.D. Wash. 2021) Overview In In re Claar Cellars LLC, 623 B.R. 578 (Bankr. E.D. Wash. 2021), the United States Bankruptcy Court for the Eastern District of Washington (the “Bankruptcy […]

Article courtesy of David P. Simonds and Edward J. McNeilly (both of Hogan Lovells US LLP) Gardens Regional Hospital and Medical Center Liquidating Trust v. State of California, and its Department of Health Care Services (In re Gardens Regional Hospital and Medical Center, Inc.), 975 F.3d 926 (9th Cir. 2020) Overview After Gardens Regional Hospital […]

Article courtesy of David P. Simonds and Edward J. McNeilly (both of Hogan Lovells US LLP) In re Cuker Interactive, LLC, 622 B.R. 67 (Bankr. S.D. Cal. 2020) Overview In In re Cuker Interactive, LLC, 622 B.R. 67 (Bankr. S.D. Cal. 2020), Bankruptcy Judge Louise Adler confirmed the plan of reorganization of a solvent chapter […]

By: Tekhara L. Silva, Day Pitney LLP Mid-morning every Tuesday, Rich Wasserman, a corporate finance partner in his 40th year of practice at Day Pitney LLP, logs into a virtual reading program to read to a first-grader in the Hartford Public School System.  A long-time volunteer and regional board chair for the Read to a […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) First Security Bank v. Buehne et al., 121,765 (Kan. Ct. App. Sept. 18, 2020). In a dispute between borrowers and a lender with a security interest in the borrowers’ business equipment, the Kansas Court of Appeals (the “Court”) found no strongly held public policy interest that would […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) First State Bank Nebraska v. MP Nexlevel LLC, S‑19‑543. 309 Neb. 198, 2020 WL 5581733 (Sept. 18, 2020). The Nebraska Supreme Court (the “Court”) found that a state trial court erred in dismissing a secured lender’s action to collect on a third‑party accounts receivable assigned to the […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) BMO Harris Bank N.A. v. Bullet Trans Co., 19‑cv‑4557, motion granted, 2020 WL 3447778 (N.D. Ill., 06/24/2020). In a dispute where a borrower defaulted on several commercial loans, the United States District Court for the Northern District of Illinois (the “Court”) held that the borrower had no […]

Article courtesy of Lisa Conmy (Foley & Lardner) The ACIC is thrilled to welcome the following new members since August 2020: Michael Urschel (King & Spalding) Jonathan Arkins (King & Spalding) Ryan McNaughton (King & Spalding) Katy Berger (King & Spalding) Ignacio Hirigoyen (Prudential) Brandon Van Balen (Genworth) Sobara Simon-Hart (MetLife) Katherine von Geldern (Symetra) […]

A message from the co-chairs of the 2021 Spring Investment Forum, Heather Wenzel and Robin Lenarz: On behalf of the Board of Trustees and the Education Committee, co-chairs Heather Wenzel and Robin Lenarz invite you to connect virtually to the ACIC’s 2021 Spring Forum on April 14 and 15. Please join the ACIC Book Club […]

Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) POLK 33 Lending, LLC v. THL Corp. Fin., Inc. (In re Areogroup Int’l, Inc., 2020 U.S. Dist. LEXIS 155442 (D. Del. August 27, 2020) Overview: This case concerns a dispute between two secured lenders regarding the allocation of proceeds from a sale of Aerogroup’s assets in a […]

Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) Lehman Bros. Special Fin. Inc. v. Branch Banking & Trust Co. (In re Lehman Bros. Holdings Inc.), 970 F.3d 91 (2d Cir. 2020) Overview: A Lehman Brothers affiliate that was party to a number of CDO transactions filed an adversary proceeding in bankruptcy court to recover approximately […]

Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) In re Tribune Co., 972 F.3d 228 (3d Cir. 2020) Overview: Holders of senior notes issued by the Tribune Company argued that the company’s plan of reorganization should not have been confirmed because it did not fully enforce subordination provisions in the indentures, and that the plan […]

Article prepared by Bryan Cho (MetLife) —- Congratulations to each of the following new officers and trustees who were elected at the ACIC’s Virtual Fall 2020 Annual Meeting and Education Conference: Officers (For the 2020-2021 Period): President: Tina Smith (Thrivent Financial) Vice President 1: Christopher S. Dallas (Pacific Life Insurance Company) Vice President 2: Renée […]

The protracted impact of COVID-19 on financial liquidity is due to reach an inflection point for European businesses. As lines of credit reach their limits and businesses begin to assess the long-term damage from a global lockdown, restructuring will be a priority discussion. As restructuring commences, it will be crucial to understand the effect on […]

Ronald E. Stadtmueller, Chapter 7 Trustee v. Sarkisian (In re Medina) B.R. (2020), 2020 WL 4742491 (B.A.P. 9th Cir. Aug. 14, 2020) Article courtesy of David Simonds and Edward McNeilly (both of Hogan Lovells) In In re Medina, the Bankruptcy Appellate Panel for the Ninth Circuit (the “BAP”) held that “actual damages” were not required […]

Gunderson v. Weidner Holdings, LLC, 463 P.3d 315 (Colo. App. 2019) Article courtesy of David Simonds and Edward McNeilly (both of Hogan Lovells) In Gunderson v. Weidner Holdings, LLC, the Colorado Court of Appeals, the intermediate appellate court of the state of Colorado, held that the Uniform Commercial Code’s statute of limitations, not the general […]

Blixseth v. Credit Suisse, 961 F.3d 1074 (9th Cir. 2020) Article courtesy of David Simonds and Edward McNeilly (both of Hogan Lovells) In Blixseth v. Credit Suisse, the Ninth Circuit Court of Appeals, for the first time, affirmed the validity of a narrowly tailored exculpation clause that released a lender from certain potential claims against […]

Priority Lienholder does not Waive Senior Security Interest by Failing to Exercise Remedies Prior to Junior Judgment Creditor Exercising Foreclosure Rights Article courtesy of Andrew Thomison (of Baker Botts) In Legacy Bank v. Fab Tech Drilling Equipment, Inc., 566 S.W.3d 922 (Tex. App. 2018), the Texas Court of Appeals (the “Court“), in an issue of […]

Bankruptcy Court Not Permitted to Issue Injunction Against SBA Administrator Article courtesy of Andrew Thomison (of Baker Botts) In In re: Hidalgo County Emergency Service Foundation v. Carranza, 962 F.3d 838 (5th Cir. 2020), the 5th Circuit Court of Appeals (the “Court“) was called upon to determine whether the bankruptcy court exceeded its authority when […]

Article courtesy of Michael D. Robson (Greenberg Traurig) Stoebner v. Opportunity Finance, LLC, et al., 2018 WL 6055636, 66 BCD 127 (8th Cir. 2018). In a proceeding under Chapter 7 of the United States Bankruptcy Code (the “Code”), the United States Court of Appeals, Eighth Circuit, affirmed the grant of the Defendants’ motion to dismiss […]

Article courtesy of Michael D. Robson (Greenberg Traurig) Tissue Technology, LLC v. Tak Investments, LLC, No. 18‑1835 WL 5318271 (7th Cir. 2018) In an investment dispute arising under an agreement to build $315 million worth of tissue mills, the United States Court of Appeals, Seventh Circuit (the “Court”), upheld a lower court decision that withheld […]

Article courtesy of Michael D. Robson (Greenberg Traurig) U.S. v. Banyan, et al., Nos. 17‑6410 & 17‑6493, 2019 WL 3540794 (6th Cir. 08/05/19). In a case before the 6th U.S. Circuit Court of Appeals (the “Court”), a split panel reversed the conviction of two parties for bank fraud arguing that the United States federal government […]

Article courtesy of Michael D. Robson (Greenberg Traurig) In re Happy Jack’s Petroleum, Inc., 2019 wl 2281610, 67 BCD 77 (Bankr. D. Neb. 2019). In a case of first impression before the U.S. Bankruptcy Court, District of Nebraska (the “Court”) analyzed whether the conversion of a bankruptcy case from a Chapter 11 bankruptcy (a “reorganization bankruptcy”) to […]

Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) Trzaska v. L’Oreal USA, Inc. & L’Oréal, S.A., 2020 WL 1082616 (D.N.J. March 5, 2020) The U.S. District Court for New Jersey affirmed a magistrate judge’s letter order denying an application to compel production of emails, finding that the emails were protected by attorney-client privilege. The emails […]

Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) Kirschner v. J.P. Morgan Chase Bank, N.A., et al., 2020 WL 2614765 (S.D.N.Y. May 22, 2020) Overview: Applying the so-called “family resemblance” test from Reves v. Ernst & Young, the U.S. District Court for the Southern District of New York found that notes issued to institutional investors […]

Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) Ritzen Group, Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582, 205 L. Ed. 2d 419 (2020) Overview: The Supreme Court affirmed Sixth Circuit and lower court decisions holding that a bankruptcy court’s order denying relief from the automatic stay constitutes a final, immediately appealable order and […]