Michael Fierro

In KBA Canada, Inc v Supreme Graphics Limited (2014 BCCA 117), the British Columbia Court of Appeal (the “BCCA”) prevented equitable considerations from overriding the statutory ranking of security interests in the Personal Property Security Act (British Columbia) (the “PPSA”). The plaintiff, KBA Canada, Inc. (“KBA”), had registered a security interest in an offset printing […]

Executive Summary One of the key financial restructuring cases in the UK market during 2014 was the restructuring of the Apcoa Group (the “Group”). In Apcoa Parking Holdings GmbH & Ors (“Apcoa 1”),[1] the English court sanctioned inter-conditional schemes of arrangement of nine Group companies (the “Scheme Companies”) pursuant to Part 26 of the Companies […]

Singularis Holdings Limited v PWC [2014] UKPC 36 Background and facts In closely related proceedings, the liquidators of two Cayman-incorporated companies, Saad Investments Company Limited and Singularis, sought to obtain documents belonging to those companies’ auditors, PWC, in Bermuda. In both instances, the Privy Council’s decision frustrated those attempts. The decisions demonstrate the difficulties in […]

Background and facts A recent Privy Council case, which itself referenced the Singularis decision referred to elsewhere in this article, again had reason to examine the interplay between different jurisdictions in insolvency situations. In Stichting Shell Pensioenfonds v Krys v Ors (BVI) [2014] UKPC 41, the court considered the extent to which a BVI court […]

In Orion Industries Ltd. (Trustee of) v Neil’s General Contracting Ltd. (2013 ABCA 330), the Alberta Court of Appeal (the “ABCA”) gave guidance on when a payment to a creditor on the eve of the debtor’s bankruptcy will be void against the debtor’s trustee in bankruptcy under the Bankruptcy and Insolvency Act (Canada) (the “BIA”). […]

In Bhasin v Hrynew (2014 SCC 71), the Supreme Court of Canada (the “SCC”) recognized a general duty of honesty in contractual performance which cannot be excluded by an entire agreement clause. Harish Bhasin (“Bhasin”) marketed education savings plans for Canadian American Financial Corp. (“Can-Am”). The agreement governing the relation between Can-Am and Bhasin (the […]

Courtesy Jack Hayes and his colleagues at Steptoe & Johnson, LLP.  Read the original article here: http://www.steptoe.com/publications-9852.html On September 12, 2014, the United States and the European Union issued new sanctions against Russia, including sanctions targeting the Russian financial, energy, and defense sectors. New US Sanctions OFAC Trade Restrictions The US Treasury Department, Office of Foreign […]

Contributed by Kevin Braun of Bingham McCutchen LLP: United States District Court for the District of New Hampshire holds that creditor’s sale of a repossessed aircraft at well below book value was commercially reasonable where there was no proof of diminished value due to non-repair or proof of bad faith on behalf of seller.  Harley-Davidson Credit Corp. […]

Contributed by Kevin Braun of Bingham McCutchen LLP: Lender’s perfected security interest in funds held by debtor was not extinguished, under Article 9 of the Massachusetts UCC, upon transfer of the funds from a bank deposit account to a court-ordered escrow account.  Zimmerling v. Affinity Fin. Corp., 14 N.E.3d 325 (Mass. App. Ct. 2014). In 2008, BHC […]

Contributed by Kevin Braun of Bingham McCutchen LLP: Supreme Court of Rhode Island finds a so-called “commercial loan commitment fee” in a loan agreement to be part of the interest rate charged, leading to a violation of Rhode Island usury laws. Labonte (Am. Steel Coatings, LLC) v. New Eng. Dev. R.I., LLC, 93 A.3d 537 […]

In an issue of first impression, Rhode Island Supreme Court holds that usury savings clauses in loan contracts are unenforceable and cannot validate an otherwise usurious loan. NV One, LLC v. Potomac Realty Capital, LLC, 84 A.3d 800 (Feb. 18, 2014) In 2007, NV One, LLC (“Borrower”) and Potomac Realty Capital, LLC (“Lender”) entered into a […]

Bankruptcy Court holds that senior lender with security interest in debtors’ pre-petition inventory and accounts receivable, and holding replacement liens in the same type of property post-petition, is entitled to proceeds from post-petition sale of inventory acquired pre-petition and reimbursement for post-petition real estate taxes the lender advanced for the debtors over the claims of […]

Washington State Supreme Court rejects the “volunteer rule” bar to equitable subrogation, and adopts the Third Restatement’s more liberal approach towards equitable subrogation in the refinancing context.  Columbia Community Bank v. Newman Park, LLC, 177 Wash.2d 566 (2013).  Newman Park, LLC (the “Mortgagor”) was a development company owned by twelve members, one of which was a […]

A secret “side letter agreement” between a buyer of real property and its construction lender causes a court to invalidate a seller subordination agreement, thereby allowing the seller’s contractually subordinated lien to prime the construction lender’s priority lien.  In Citizens Business Bank v. Gevorgian, 218 Cal.App.4th 602 (2013), a California state appellate court held that a […]

A perfected security interest in collateral continues to exist in that collateral despite a secured creditor’s failure to comply with a separate state statute requiring it to file a claim of “exemption” from a levying creditor.  In Keybank Nat’l Ass’n v. PAL I, LLC, 155 Idaho 287 (2013), the Idaho Supreme Court held that a secured […]

Under Washington state law, a promissory note secured by a real estate mortgage is governed by the Washington UCC as a security interest in personal property, not by the recording statute as an interest in real property.  In In re HW Partners, LLC, No. 11-03366-JAR11, 2013 WL 4874172 (Bankr. E.D. Wash. 2013), the Bankruptcy Court for the […]

Come up with some resources on how to find qualified local counsel. – start with counsel you know, many have local branch offices – local law societies or bar association – martindale.com – pick a country, sort by “peer review rating” – Google the topic for articles, and see where author works Click here to […]

As we all know, an organization cannot exist without members!  Please encourage attorneys in our practice area to join the ACIC, and do what you can to make our new members feel welcome, in particular by keeping an eye out for our new members at the Spring and Fall conferences.  We will periodically update this […]

President’s Message January 2014 — Hugh McCrory (MetLife) If you want “new”, the American College of Investment Counsel is the place to be in 2014! This newsletter – to be getting a new name soon with input from all of you – is just a small part of the exciting developments that are being rolled […]