2021

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 […]

ACIC Private Notes Summer 2021 Edition: SEC Continues Focus on Digital Asset Securities By: Jason M. Daniel and Peter I. Altman (Akin, Gump, Strauss, Hauer & Feld LLP) The offer, sale and trading of digital assets has been a focus of the Securities and Exchange Commission (SEC) for the past several years. On February 26, […]

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 […]

Rhode Island Supreme Court holds that Rhode Island law governed issue of Guarantor’s liability under loan guaranty, and that res judicata (claim preclusion) bound Guarantors to deficiency judgement calculation rendered by Connecticut superior court. Bank of Am., N.A. v. Fay, 242 A.3d 38 (2020) Timothy Fay and David Patrick were the sole principals in Stonestreet […]

Plaintiff’s obligation to pay net profit interest on its working interest in oil and gas leases was not extinguished by its Joint Plan of Reorganization, as net profit interest is a covenant that runs with the land in Wyoming and the Joint Plan of Reorganization unambiguously preserved it. In re Vanguard Nat. Res., LLC, No. […]

Departing members of a limited liability company (“SFPCC” or, the “LLC”) are not liable for a pro rata share of a balance due under notes issued by SFPCC of which the members were accommodation parties. Palma v South Florida Pulmonary & Critical Care, LLC, 307 So.3d 860 (Fla. Ct. App. 2020) In 2016, three physician-members […]

Allegations in complaint were sufficient for transferee-bank to maintain that it had standing to enforce promissory note and corresponding security instrument against the debtor but insufficient to maintain claims for fraud.  Nodus Int’l Bank, Inc. v. Arocha Hernandez, No. 20-23112-CIV, 2021 WL 39560 (S.D. Fla. Jan. 5, 2021). On May 2, 2018, an individual (the “Debtor”) […]

Minority shareholder barred from bringing a direct action because (i) she failed to allege a “special injury separate and distinct” to her and (ii) direct action may harm creditors of the corporation. Callicott v. Scott, 849 S.E.2d 547 (Ga. Ct. App. 2020). Homeowners Mortgage of America, Inc. (“HOMA”) was a mortgage lending company that operated […]

A bank’s properly perfected Delaware security interest in a debtor’s assets had priority over oil producers’ Texas statutory liens that did not conform to the UCC and therefore were not contemplated by Delaware law. Matter of First River Energy, L.L.C., No. 19-50646, 2021 WL 358168 (5th Cir. Feb. 3, 2021) First River Energy, LLC (“First […]

Committee Reports:  March 2021   Development Committee The Development Committee is tasked with engaging the membership, assessing and addressing membership needs and interests, and planning some of the interactive events at the April Conferences and October Meetings.  In connection with the upcoming Conference, the Development Committee is assisting the Co-chairs in making the virtual conference […]

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 […]