Legal

California Finance Lender’s License Law: Amendments Create New Issues for Unlicensed Brokers

Attorney Andrew Alper reviews recent amendments to the California Finance Lender’s License law, which have created complications for lenders that work with unlicensed brokers. He advises anyone involved in selling, brokering or lending to obtain a license to prevent negative consequences.... read more

Ninth Circuit Rules: Absolute Priority Rule Applies in Individual Chapter 11 Cases

Although the absolute priority rule has been a staple in Chapter 11 proceedings for more than a century, 2005 bankruptcy code amendments created an exception that has blurred the intended meaning. A recent 9th Circuit ruling held that the absolute priority rule does not apply to individual debtors in Chapter 11 cases. Attorney Lesley Hawes examines this ruling and its implications for secured creditors and equipment lessors with unsecured guaranties.... read more

Lessons Learned in Project Financing: Revenue Streams That Are Not Absolute & Unconditional

In the final installment of a two-part series, Attorney Ken Weinberg draws upon lessons learned through use of project finance structures that involve bundled or PPA transactions. By taking a close look at the methods used in these transactions, he clarifies the inherent risk.... read more

The Aftermath of Recharacterization: Enforcing Terms of a Lease That is Actually a Loan

Andrew Alper discusses the issues that arise after a court recharacterizes a lease transaction as a loan. He reminds us that while a contract will remain enforceable, regardless of whether it is determined to be a lease or loan, there is no substitute for careful drafting.... read more

Uniform Voidable Transactions Act — Coming to Your State Soon?

Leslie Ann Hawes examines the Uniform Voidable Transactions Act — the proposed new name for the Uniform Fraudulent Transfer Act — and outlines the Uniform Law Commission’s proposed amendments as well as implications posed for creditors.... read more

District Court Upholds Enforcement of Automatic Renewal Clause – Was The Court Correct?

Monitor contributor Andrew Alper discusses the enforcement of automatic renewal or evergreen clauses in the leasing industry. He argues that while the court may uphold the lessor’s right to enforce these clauses, this practice comes with the risks of damaging a lessor's reputation and encourages further regulation in the industry.... read more

Conflicting Chapter 7 Rulings: Revisiting Administrative Freezes

Lesley Anne Hawes dissects two Chapter 7 bankruptcy-related cases centered on temporary administrative freezes on debtor funds in bank accounts and their dramatically different outcomes.... read more

Use Careful Consideration When Drafting Collateral Descriptions

In part two of this two-part series, Kenneth P. Weinberg and Jennifer L. Howard continue their discussion of collateral descriptions in security agreements. Touching on limiting verbiage, timing considerations and collateral type changes, they recommend careful review to make sure you come up smelling like a rose when your lien is challenged.... read more

‘Foreseeability’ — Conducting Effective Leasing Transaction Interpretations

Anthony Lamm continues his discussion on issues that arise from the Dodd-Frank Act and how local, state and federal laws apply to different lease transactions. Of particular importance is determining the nature of the lease as an entity and which state statutes apply to the transaction to help govern the transaction’s characterization as either commercial or consumer.... read more

Unintended Consequence — JPMorgan’s Costly Mistake

In January, JPMorgan Chase lost a court battle with General Motors’ creditors’ committee regarding the accidental termination of JPMorgan’s UCC securing a $1.5 billion loan. Ruskin Moscou Faltischek attorney Jeffrey A. Wurst dissects the resulting court cases surrounding the notorious GM bankruptcy and resulting fallout from JPMorgan’s costly mistake.... read more

Bottom Line Equipment Distributor Issues: A Top Priority on Capitol Hill in 2015

Christian A. Klein, vice president of Government Affairs at Associated Equipment Distributors, says 2014 was a busy year, and we can expect more of the same in 2015. With the federal highway program, tax code reform and regulatory bureaucracy still topping the priority list, Klein stresses industry-wide engagement as a key component to getting the job done in Washington.... read more

A Thin Line: How Dodd-Frank Defines, Affects Commercial & Consumer Transactions

The Lamm Group Managing Partner Anthony L. Lamm explains how the Dodd-Frank Wall Street and Consumer Protection Act not only defines commercial transactions, but how it also may change what was considered a commercial transaction to a consumer transaction.... read more

Considering Guaranties: Simplifying a Complex (Contract) Issue

Since a guaranty is nothing more than a contract, standard logic would dictate applying the concept of consideration to guaranties. However, because a guaranty involves multiple parties (guarantor, borrower and lender), the analysis can be more complex.... read more

Lessor More Protected

In late July 2011, the U.S. District Court for the Eastern District of Pennsylvania published a 37-page long decision granting summary judgment for an equipment lessor on various defenses and counterclaims raised by three business lessees of telephone equipment. De Lage Landen Fin. Services, Inc. v. Rasa Floors stands as a thorough and recent analysis of the maturing law on the general enforceability of finance leases, as promoted by UCC Article 2A.... read more

It’s a Bird… It’s a Plane… It’s a Super-Priority Purchase Money Security Interest

A PMSI is a useful arrow in the quiver of many equipment finance companies. Still, no legal weapons or tools are 100% effective. It is crucial, therefore, for a PMSI lender to have a good understanding of the requirements of a purchase money security interest and to maintain adequate records evidencing that those requirements have been met. Carefully drafted documents are a must.... read more

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Terry Mulreany
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