On April 13, 2015, the Second Circuit denied rehearing on its earlier decision giving effect to the filing of a UCC termination statement mistakenly identifying a security interest that JPMorgan, as administrative agent for a $1.5 billion loan to General Motors Corp. (“GM”), did not intend to terminate. The official committee of unsecured creditors appointed […]
September 2015 ACIC Committee Updates
Website and Social Media Committee: The Website and Social Media Committee is responsible for the oversight and promotion of the College’s website and LinkedIn account. In addition to the chairs, committee members are comprised of representatives from other committees, each of whom is the responsible person for such other committees to update relevant content on […]
Kentucky borrowers not entitled to statutory penalties based on unrecorded MERS mortgage note transfers; recording is not required when a party acquires merely an interest in a mortgage instead of the mortgage instrument itself
Higgins v. BAC Home Loans Servicing, LP, 793 F.3d 688 (6th Cir. 2015). Borrowers who obtained mortgage loans brought a class action against banks that received transfers of the mortgage notes through Mortgage Electronic Registration Systems (“MERS”), the privately-held company that operates a national electronic registry tracking servicing rights and ownership of mortgage loans. The […]
Under North Carolina law, debtor creates a jury issue in a post-foreclosure deficiency action merely by providing a conclusory affidavit that foreclosed real property was worth the amount of the debt
United Cmty. Bank (Georgia) v. Wolfe, No. COA14-1309, 2015 WL 4081940 (N.C. Ct. App. July 7, 2015). After borrowers defaulted on a loan secured by real property, the lender foreclosed and bought the property at the foreclosure sale for less than the outstanding debt. The lender brought a post-foreclosure action for a deficiency judgment. Under […]
Where limitation of liability clause in loan participation agreement was sufficiently prominent to be enforceable, the lead lender could be liable only for breaches of contract resulting from gross negligence or willful misconduct
Where limitation of liability clause in loan participation agreement was sufficiently prominent to be enforceable, the lead lender could be liable only for breaches of contract resulting from gross negligence or willful misconduct; participant’s contract right to require lead lender to repurchase loan on default was not an unenforceable liquidated damages clause. 2010-1 SFG Venture […]
Under Florida law, a bank may become a fiduciary for account customers by providing “extra services,” but providing specialized technology supporting bond traders did not constitute an extra service of the type that creates a fiduciary duty
Arbitrajes Financieros, S.A. v. Bank of Am., N.A., 605 Fed. App’x. 820 (11th Cir. March 26, 2015) Bond traders specializing in the sale of Venezuelan bonds entered into an agreement with a money transmission company, which opened standard deposit accounts at Bank of America on behalf of the traders. The traders settled a money-laundering investigation […]
Settlement proceeds paid for damage to mortgaged property were substitute collateral for diminution in the value of the mortgagee’s security and subject to the lien of the mortgage; mortgagee was not required to perfect under the UCC
In re Davis, 528 B.R. 757 (Bankr. E.D. Tenn. 2015). A bankruptcy trustee brought an adversary proceeding against a mortgagee, claiming a priority interest in settlement proceeds paid by a third party for damage to the debtor’s mortgaged real property. The trustee contended that the mortgagee’s interest in the proceeds was unperfected because of its […]
Creditor’s Proof of Claim in Chapter 13 Proceeding in Respect of Promissory Note Held by Custodian Survives Challenge by Debtor That Creditor Was Not a Holder of the Note. Monty v. United States Bank, N.A. (In re Monty), 2015 Bankr. LEXIS 1416 (4/16/15)
In April 2006, owners of real property in Hinesburg, Vermont (“Borrowers”) sought to refinance the loan on such property and executed (i) a promissory note, indorsed in blank, in an amount of $221,650 (the “Note”) and (ii) a mortgage granting a lien on Plaintiff’s interest in the property to secure their obligations under the Note […]
Contractually-Mandated “Delinquency Advances” Made by Loan Servicers to Trustees Under Mortgage-Backed Securitization Program Did Not Discharge Borrowers’ Underlying Debts Thereunder. Ouch v. Fannie Mae, 2015 U.S. App. LEXIS 14881 (Aug. 24, 2015)
Obtaining loans to purchase property, the plaintiffs (“Borrowers”) executed notes secured by mortgages on real estate. To facilitate securitization, numerous financial institutions pooled the mortgages together and transferred them to various trusts, in which investors then purchased interests in the form of mortgage-backed securities. The trustees entered into contractual agreements with loan servicers (the “Servicers”) […]
Lender’s Discretionary Adjustment of Interest Rate on Promissory Note Deemed Permissible Under the Clear Language of the Note, Serving No Grounds for Defenses of Breach of Contract/Common Law Fraud. Smith v. CAS, LLC, 2015 R.I. Super. LEXIS 101 (8/5/15)
In October 2005, CAS, LLC, a Rhode Island limited liability company (“Debtor”) owning and operating real property in Middletown, Rhode Island, executed a promissory note (the “Note”) evidencing a $500,000 loan from Sovereign Bank (the “Original Creditor”). Debtor executed a mortgage on the Middletown property to secure payment and performance of the loan (the “Mortgage”). […]
Appellate Court of Connecticut Applies Parol Evidence Rule in Analyzing Enforceability of Promissory Notes, Finding Notes to be Fully Integrated and Unambiguous. Channing Real Estate, LLC v. Gates, 159 Conn. App. 59 (Aug. 4, 2015)
Channing Real Estate, LLC, a New York limited liability company acting through its principal member (“Buyer”), and Brian Gates, a Connecticut resident (“Seller”), met in September 2007 to negotiate Buyer’s purchase of a 50 percent interest in Seller’s company, which owned commercial real estate in Connecticut (the “Company”). Both sides eventually entered into an option […]
ACIC Annual Fall Meeting, October 22-23, 2015
Do you still remember all of your favorite board games from when you were a kid and the thrill when you emerged victorious? Well now we are all players in the investment game and we still like to come out on top. However, the rules of the game are complex and constantly evolving and we […]
Delaware Bankruptcy Court Rejects Make-Whole Claim Based on Absence of Clear and Unambiguous Contractual Right to Such Claim Following Bankruptcy Acceleration – In re Energy Future Holdings Corp., No. 14-50363 (CSS) (Bankr. D. Del. 26, 2015)
On March 26, 2015, Judge Christopher S. Sontchi of the Bankruptcy Court of the District of Delaware held that holders of $2.18 billion principal amount of the 10% First Lien Notes due 2020 of Energy Future Intermediate Holding Company LLC (“EFIH”) were not entitled to a make-whole or other damage claim upon repayment of […]
https://www.aciclaw.org/news/2015/no-express-ucc-claim-secured-party-unauthorized-filing-termination-statement
From 2009 to 2011, jacqueline fjellin and james van liew, acting as co‑trustees (the “plaintiffs”) of the leonard van liew living trust (the “trust”), made three loans (the “loans”) to four m corporation, a nebraska corporation (the “corporation”). The corporation was engaged in, among other things, operating three dairy queen stores. To secure the loans, the corporation granted the trust a […]
7th Circuit Holds Title Insurer Not Liable for Liens Resulting From Insufficient Funds
Trilogy development company (“trilogy”), a real estate development company, contracted with j.e. dunn construction company (“dunn”), a general contractor, for the construction of a mixed‑use commercial development in kansas city, missouri (the “project”). The initial estimated cost of the project was $118 million and it was to be funded by (i) a $32 million equity investment in […]
LLC Need Not Register with the State Prior to Debtor’s Bankruptcy Petition to Pursue Claim in Bankruptcy Court
In 2006, eagle woods, llc, a missouri limited liability company (“eagle woods”), entered into a ten‑year lease (the “lease”) with flex financial holding company (“flex”) for a commercial building in olathe, kansas. In 2012, eagle woods sued flex for delinquent rent in kansas district court. Flex filed for chapter 11 bankruptcy protection in june 2013, and a claims bar date […]
Qualification of Unpaid Lease Obligations as an Administrative Claim
In November 2007, sylva corp. (“sylva”) and a predecessor‑in‑interest to ge capital commercial, inc. (“ge”) entered into a “lift lease agreement” (the “lease”) for certain equipment (the “equipment”). The lease was for an initial term of sixty (60) months expiring on november 20, 2012 (the “initial term”). Pursuant to paragraph 11 of the lease, sylva had the option to purchase the equipment either during […]
Message from the President – July 2015
It is hard to believe that summer is halfway over. In my last message I pointed out how busy everyone in the College seems to be. That hasn’t appeared to have changed, so I am hoping that everyone (me included) finds time for a vacation! Among those who have been really busy are Maureen Cronin […]
ACIC New Member Spotlight – July 2015
Andrew Thomison – Senior Associate , Baker Botts L.L.P., Houston, TX Andrew Thomison represents borrowers, financial institutions, capital companies, agent banks and other institutional investors in connection with acquisition financings, senior and subordinated debt, working capital credit facilities, bridge loans, asset-based financings, secured and unsecured term lending, high-yield debt offerings, private placements of securities, receivables […]
ACIC Committee Information – March 2015
Communications Committee: The Communications Committee seeks to be the ACIC’s voice, both to its members and to the outside world. Our focus is to facilitate communication about the activities of, and news regarding, the ACIC, particularly through the generation and distribution of the ACIC’s monthly e-newsletter, Private Notes. In the future we hope to further […]
Usury savings clause insufficient to save lenders from HOEPA disclosure violations, but may prevent liability for inadvertent violation of usury laws in connection with commercial loans.
Usury savings clause insufficient to save lenders from HOEPA disclosure violations, but may prevent liability for inadvertent violation of usury laws in connection with commercial loans. Katline Realty Corp. v. Avedon, No. 3D13-22574292, 2014 WL 5654292, (Fla. Dist. Ct. App. Nov. 5, 2014). A lender’s loan documents included a prepayment penalty and an increase in […]
Under Georgia law, a court that issues a judgment against an LLC member may also issue an order in the same case charging the member’s LLC interest with payment of the judgment
Under Georgia law, a court that issues a judgment against an LLC member may also issue an order in the same case charging the member’s LLC interest with payment of the judgment; the LLC need not be a party to the suit, and the judgment creditor need not establish that jurisdiction and venue over the […]
Financial services firm owed no duty to clients of the firm’s customer and was not liable in negligence for those clients’ losses
Financial services firm owed no duty to clients of the firm’s customer and was not liable in negligence for those clients’ losses due to the customer’s check kiting scheme using the customer’s account at the firm; no private right of action exists under Bank Secrecy Act. Bottom v. Bailey, 767 S.E. 2d 883 (N.C. Ct. […]
Accounting firm that failed to uncover in audits conducted over eight year period that its client was not making required tax filings could be liable for breach of fiduciary duty
Accounting firm that failed to uncover in audits conducted over eight year period that its client was not making required tax filings could be liable for breach of fiduciary duty. Commscope Credit Union v. Butler & Burke, LLP, 764 S.E. 2d 642 (N.C. Ct. App. 2014). A North Carolina credit union retained an accounting firm […]
Under Florida law, the involuntary dismissal without prejudice of an initial foreclosure action did not “decelerate” lender’s acceleration of the debt in the initial action and the statute of limitations continued to run
Under Florida law, the involuntary dismissal without prejudice of an initial foreclosure action did not “decelerate” lender’s acceleration of the debt in the initial action and the statute of limitations continued to run, barring a second action brought after the expiration of the statute of limitations. Deutsche Bank Trust Co. Ams. v. Beauvais, No. 3D14-575, […]
Exception in release of claims for an identified securities option contract ineffective where option contract was never signed.
Exception in release of claims for an identified securities option contract ineffective where option contract was never signed; express reference in the agreement to a nonexistent option contract did not create an ambiguity permitting parole evidence regarding the intended option and was treated as an unenforceable agreement to agree. North Am. Rescue Prods., Inc. v. […]
A provision in a promissory note requiring payment of a fixed percentage as attorney’s fees upon breach is enforceable under South Carolina law; South Carolina law governed enforceability analysis where note was accepted by lender in South Carolina.
A provision in a promissory note requiring payment of a fixed percentage as attorney’s fees upon breach is enforceable under South Carolina law; South Carolina law governed enforceability analysis where note was accepted by lender in South Carolina. PNC Bank Nat’l Ass’n v. GVTG, LLC, No. 14-11405, 2014 WL 5904740 (11th Cir. Nov. 14, 2014). A […]
Virginia corporation avoided shareholder appraisal rights in asset sale by changing state of incorporation to Delaware.
Virginia corporation avoided shareholder appraisal rights in asset sale by changing state of incorporation to Delaware. Fisher v. Tails, Inc., 767 S.E. 2d 710 (Va. 2015). A Virginia corporation initiated a sale of all of its assets, through a four step process: first, the corporation re-domesticated to Delaware and became a Delaware corporation; second, the corporation […]
Dispute over ownership of a loan agreement and promissory note did not alleviate Borrower’s obligations, but creditors could not recover delinquency charges on lump sum of principal due to conflicting disclosures.
Dispute over ownership of a loan agreement and promissory note did not alleviate Borrower’s obligations, but creditors could not recover delinquency charges on lump sum of principal due to conflicting disclosures. Turner v. Shared Towers VA, LLC 2014 N.H. LEXIS 144 (N.H. 2014) At issue was a commercial construction loan agreement and promissory note, pursuant […]
Cash proceeds paid to Debtor under a commercial property insurance policy are excluded from the scope of the UCC for perfection purposes, and any perfection of such must occur under common law
Cash proceeds paid to Debtor under a commercial property insurance policy are excluded from the scope of the UCC for perfection purposes, and any perfection of such must occur under common law. Wheeling & Lake Erie Ry. Co. v. Keach (In re Montreal, Me. & Atl. Ry., Ltd. 521 B.R. 703 (Bankr. D. Me., 2014). […]
usurious. Rhode Island Supreme Court invalidates all security securing usurious notes, holding that all security cross-collateralizing notes is invalid if even one note is usurious
Rhode Island Supreme Court invalidates all security securing usurious notes, holding that all security cross-collateralizing notes is invalid if even one note is usurious. McGowan v. Potomac Realty Capital, LLC, 2014 R.I. Super. LEXIS 175 (Dec. 29, 2014). Upon default, Commerce Park Realty, LLC (“Borrower“), through its receiver, sought declaration that promissory notes between Borrower […]
Message from the President – January 2015
Message from the President: Welcome 2015! If my completely unscientific and random survey of colleagues has any statistical relevance, Q4 2014 was among the busiest we have all seen, and Q1 2015 seems to be following along on the same trend. These busy times make it all the more remarkable the amount of work accomplished […]
ACIC New Member Spotlight – January 2015
Blair A. Nicholas – Partner, Bernstein Litowitz Berger & Grossmann LLP, San Diego, CA Mr. Nicholas is a senior managing partner of Bernstein Litowitz Berger & Grossmann LLP. Mr. Nicholas is widely recognized as one of the leading securities litigators in the country. He has successfully represented private and public institutional investors, including some of […]
