Attorneys Discuss Equipment Leasing, Financing and Litigation in 2011

As 2011 brings a hopefully brighter outlook for the equipment leasing and financing sector, we asked a group of attorneys how they see the new year in terms of the state of the economy and its affect on litigation and bankruptcy as well as their predictions for the equipment leasing and financing industry as well as the banking industry. While there are signs for optimism after a number of hard years, our participants note that conservatism in lending, especially, will still reign.... read more

Equipment Finance Inc. Fraud

Who knows what evil lurks in the hearts of men? When Equipment Finance was acquired by Sterling Financial in March 2002, the specialty lender was hailed as a “well managed company with exceptional profitability and sound credit quality.” What eventually developed was a drama fraught with deception and collusion that would lead to the collapse and subsequent sale of a $3.3 billion community bank six years later.... read more

Proposed UCC Article Amendments That Will Impact Equipment Financing

With Article 9 provisions changing and inconsistencies among the codes of various jurisdictions, maintaining a secure position can be a complex responsibility. Bottom line, secure positions are the lifeblood to an equipment lessor and an understanding of changing regulation is critical to success.... read more

A Little Something About Suretyship, Co-Borrowers and Co-Lessees

When it comes to co-borrowers and co-lessees, attorney Ken Weinberg returns to remind us that even if you call a duck a monkey, it’s still a duck. As such, lenders and lessors should proceed with caution when using these structures to avoid the potential for sticky situations down the road. ... read more

Enforcement of Standstill Provisions

In the world of second lien lending and seller “carry back” financing, it is not uncommon for the lenders to enter into subordination agreements whereby the second lien subordinates its lien and its right to collect payments or money to the first lien. Onerous standstill provisions in subordination agreements are less common but also not unusual in subordination agreements. ... read more

Bankruptcy §363 Sale

The case of In re Gateway Ethanol, LLC provides an extended discussion of a sticky issue frequently encountered in bankruptcy or litigation: whether or not a lease is a true lease versus a lease intended as security. This recent case is now being cited as authoritative by many courts when looking at the true lease/lease intended as security dichotomy.... read more

The Issue Becomes Complex When Moving From the UCC to State Title Laws

Uniform Commercial Code §9-311(a)(2) provides that the filing of a UCC financing statement does not perfect a lien that is governed by the state’s certificate of title law. Stepping out of the familiar and more-or-less uniform terrain of the UCC and into state title laws has proven perplexing, expensive and, in some cases, disastrous for motor vehicle lenders and lessors. ... read more

Verifying Debtor Names on UCC Financing Statements Can Mean the Difference Between Collecting a Debt or Going Home Empty-Handed

The current economic situation, and the resulting increase in charge-offs and delinquency rates, now has many lenders scrambling to re-examine their policies and practices regarding protection of the collateral securing such loans. Ensuring the correct debtor name is sourced and filed on a UCC Financing Statement is the beginning part of that process.... read more

U.S. Supreme Court Reverses Third Circuit on Duty of Trustee to Object to Claims of Exemption in Bankruptcy Case

Claims of exemption can be critical to a debtor that seeks a fresh start through bankruptcy. In addition, they allow a debtor to retain certain categories of property up to a specified dollar value, including equipment and other tools of the trade, vehicles, clothing and household goods. Such assets can provide essential assets for the debtor to start or continue to work and recover financially after bankruptcy.... read more

TOUSA, Inc.: Upstream Guaranties, Fraudulent Transfers & ‘Cute’ Savings Clauses

Special required notices to guarantors and other byzantine defenses help to explain why so many guaranties are practically unreadable and why many are loathe to make changes to these documents. Take the much-examined case In Re TOUSA, Inc...... read more

Second Circuit Weighs in on BAPCA’s ‘Hanging Paragraph’ in AmeriCredit Bankruptcy

In this edition of Tipping the Scales, Lesley Anne Hawes returns to discuss the implications of the so-called “hanging paragraph” in BAPCA as ruled upon by the Second Circuit Court of Appeals in AmeriCredit Financial Services v. Thompkins. The ruling, Hawes contends, will make it more difficult for debtors going forward … and gives creditors a reason to cheer.... read more

A Little Something About Software Leasing & Finance

For many outside our industry, equipment leasing and finance is a niche with magical and confusing terminology and structures such as synthetic leases, operating leases, true leases, FMVs, TRACs, ALIASs and EFAs. When you add software leasing and finance into the mix, you encounter a niche within a niche. In the following article, Ken Weinberg briefly addresses some of the unique considerations raised by such software transactions. ... read more

UCC Statutory Framework Can Benefit Funders

This edition of Dispatches From the Trenches analyses some of the statutory framework of the Uniform Commercial Code, which provides some comfort to funders willing to go blind … that is, don’t receive executed notices and Acknowledgments.... read more

Minnesota Court Applies Article 9 Commercial Reasonableness Standard to Article 2A Equipment Lease

Andrew Alper returns to discuss a recent case in which the Minnesota court drew from Article 9 commercial reasonable standards to justify its ruling in an Article 2A lease transaction when such requirements do not exist in Article 2A … not good news for lessors that don’t comply with Article 9 disposition agreements.... read more

Arrow Trucking Fraud

As forensic accountants work to piece together what’s left of the company, and fleet lessors comb the country for missing trucks, the three executives blamed for orchestrating the multi-million factoring fraud that brought Tulsa-based transportation firm Arrow Trucking Co. to its knees are busy pointing fingers at each other. Using court records, press reports and the statements of those involved, the Monitor attempts to untangle the convoluted mess that was Arrow Trucking. ... read more

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Terry Mulreany
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