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

January/February 2011

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

November/December 2010

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

November/December 2010

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

October 2010

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

October 2010

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

September 2010

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

September 2010

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

September 2010

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

July/August 2010

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

July/August 2010

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

June 2010

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

June 2010

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

May/June 2010

Many lessors have sighed in relief as the Graves Amendment generally appears to have addressed various state laws, which previously held lessors of motor vehicles strictly liable for damage caused by their lessees. However, the recent case of U.S. v. Saporito, reminds us that strict liability laws are still out there.... read more

May/June 2010

The case In re Taylor illustrates that the determination that the transfer of the security interest should be avoided is only the first step in granting relief to the estate, and formulating the proper remedy for the estate is more complicated than it would appear both practically and legally.... read more

May/June 2010