News Archive

Posted: April 10, 2018
Posted: March 27, 2018
Seller not Deemed to be Third-Party Beneficiary of Loan AgreementIn First Bank v. Brumitt, 519 S.W.3d 95 (Tex. 2017), the Supreme Court of Texas, reversed the judgment of the Houston Court of Appeals and determined that the seller of a company was not a third-party beneficiary of a lending transaction. 
Posted: March 27, 2018
Oversecured Creditor’s Motion for Payment of Postpetition Late Charges and Prepayment Premium DeniedIn In re: Amigo PAT Texas, LLC, Debtor, 579 B.R. 779 (2017), the court evaluated a motion by People’s United Equipment Finance Corp. (“PUEFC”), as creditor, for payment of post-petition interest, late charges, prepayment premium and attorney’s fees by Amigo PAT Texas, LLC, as debtor (“Amigo”). 
Posted: March 26, 2018
Vitatech International, Inc. v. Sporn, 2017 WL 4876175 (Cal. Ct. App. 2018).An agreement to settle a contract dispute that provided for a stipulated judgment if payment was not made created an unenforceable penalty because the defendant never admitted to liability on the underlying claim and the increased liability was disproportionate to the harm caused.  
Posted: March 26, 2018
Dray v. Revah, 2017 WL 6523566 (Cal. Ct. App. 2017).A loan agreement’s dispute resolution clause containing an arbitration provision was superseded by a later executed promissory note for the same underlying loan that did not also include an arbitration provision.  
Posted: March 26, 2018
Lucas v. Deutsche Bank National Trust Company, 2018 WL 300393 (Cal. Ct. App. 2018).In a dispute between a lender and a borrower for attorney fees, the Court of Appeal did not award the lender attorney fees where the relevant provisions of the contracts did not sufficiently provide for such attorney fees. 
Posted: March 26, 2018
Ultra Petroleum Corp. (HoldCo), Ultra Resources, Inc. (OpCo), and other Ultra entities (collectively, the Debtors) filed for bankruptcy protection on April 29, 2016. The Debtors classified the OpCo Notes as unimpaired under the plan of reorganization, yet objected to the Make-Whole Amount triggered as a result of the filing. The Debtors acknowledged that OpCo was solvent, and proposed to pay post-petition interest at the federal judgment rate on all OpCo claims (other than the Make-Whole Amount).
Posted: March 6, 2018
Posted: March 1, 2018
For the Benefit of Your Successors and Assigns, A Brief Look-Back at ACIC History The “About” tab on the ACIC Website will tell you that the American College of Investment Counsel was founded in November 1981 by a group of ten lawyers.  Incorporated by a special act of the Connecticut Legislature in 1982, the College recently celebrated its 35th anniversary. 
Posted: March 1, 2018
IPayment, Inc. v. Grainger, No. 15 CVS 2234, 2017 N.C. App. LEXIS 1087*; 808 S.E.2d 796
Posted: March 1, 2018
Rebel Auction Co. v. Citizens Bank, 343 Ga. App. 81(Ct. App. Ga. 2017)
Posted: March 1, 2018
Gibson v. Ameris Bank, 420, S.C. 536, 804 S.E.2d 276, 2017 S.C. App. LEXIS 81
Posted: March 1, 2018
Miller v. FiberLight, LLC, 343 Ga. App. 593 (Ga. Ct. App. 2017)
Posted: March 1, 2018
American First Federal, Inc. v. Gordon, 173 Conn. App. 573 (June 6, 2017)
Posted: March 1, 2018
Zelby Holdings, Inc. vs. Videogenix, Inc., 92 Mass. App. Ct. 86 (Aug. 18, 2017)
Posted: March 1, 2018
New NAIC Rules on Private Letter RatingsBackground: Until recently, insurers that held securities rated by an NAIC-approved Nationally Recognized Statistical Ratings Organization (i.e. a “CRP” or “rating agency”) have not had to submit financial information on those securities to the Securities Valuation Office of the NAIC (the “SVO”) for a rating designation.   Instead, insurers have held capital based on the ratings assigned by the CRP.  
Posted: February 12, 2018
Posted: February 7, 2018
Joshua Deason is a partner in the New York office of Willkie Farr & Gallagher LLP.  He practices in the Firm’s Finance Practice Group of the Corporate and Financial Services Department, focusing on private placement, banking and institutional finance.  Joshua represents insurance companies, institutional investors and issuers in domestic and cross-border institutional private placement transactions.  He also represents domestic and international borrowers, private equity sponsors and lenders in a wide array of secured and unsecured bank financings, including
Posted: February 6, 2018
Kaplum v. Edgebrook Acquisition 2, LLC, 2016 WL 4493534 (N.D. Ill. Aug. 25, 2016)In an action against bank agents of a failed bank, an Illinois federal court (the “District Court”) has held that (i) only the Federal Deposit Insurance Corporation receiver (“FDIC‑R”) has standing to sue bank agents for derivative claims of unlawful dissolution or breach of fiduciary duty and (ii) an individual must allege harm to himself in order to have standing. 
Posted: February 6, 2018
In the Matter of Spanish Peaks Holdings II, LLC, 2017 WL 2979660, 64 BCD 105 (9th Cir. 2017)Background
Posted: February 6, 2018
RED Mortgage Capital, LLC v. Shores, LLC, et al., No. 2:16‑ 678, 2017 WL 1196170 (S.D. Ohio 03/31/17)Background
Posted: February 6, 2018
Bowling Green Sports Center, Inc. v. G.A.G. LLC, Ill. App. (2d) 160656, 77 N.E.3d 728 (2017)In a dispute between senior and junior lenders, the Illinois Appellate Court (the “Court”) has held that in the event of a breach of an intercreditor agreement for not obtaining a junior lender’s consent prior to a senior lender’s increase of its loan, the junior lender had a superior lien but only to the extent of such increase.
Posted: February 6, 2018
Second Circuit Affirms Lower Court Decisions Denying Make-Whole Premium and Endorses Market Interest Rate in Chapter 11 Cramdown Plans – BOKF, NA v. Momentive Performance Materials Inc. (In re MPM Silicones, L.L.C.), 874 F.3d 787 (2d Cir. 2017)The United States Court of Appeals for the Second Circuit has issued a decision containing both favorable and unfavorable rulings for creditors of distressed companies: 
Posted: February 1, 2018
Posted: January 31, 2018
CHICAGO — Our Kind of TownThere are 106 miles to Chicago and 70 days to the  ACIC Spring Investment Forum.   We have a full agenda, plenty of speakers,  and it’s coming soon. Don’t forget to wear your sunglasses. – Elwood Blues

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