This article arises because of a very recent case entitled The Pacific Lumber Co, 2009 West Law 3082766; 2009 U.S. App. LEXIS 21749 filed in the Fifth Circuit. Among many other issues, it revisits the issue as to whether a plan of reorganization can release non-debtors from liability. Before getting to this case, a discussion of the law regarding non-debtor releases is appropriate. ... read more

November/December 2009

This edition of Dispatches from the Trenches covers two areas: 1.) to provide an update regarding the holding of In re Commercial Money Center regarding payment intangibles, and 2.) analyze a recent case that may make you question your reliance on certain certificates of insurance. ... read more

September/October 2009

In a complex case, the Ninth Circuit Court of Appeals has addressed a series of critical issues involving the operation and effect of a prepetition release by a surety and a “revival” provision in a settlement as well as the ability of an unsecured creditor to include in its unsecured claim attorneys’ fees and costs. The decision provides some important guidance for creditors in the drafting and enforcement of revival provisions in a settlement.... read more

September/October 2009

This edition of Dispatches From the Trenches discusses two recent cases from the perspective of liquidated damages and indemnity provisions: National City Healthcare Finance v. Refine 360, LLC and Midwest Concrete Placement, Inc. v. L&S Basements, Inc. The two cases illustrate the necessity of being both fair in terms of liquidated damages provisions and clear with regard to indemnification provisions... read more

October 2009

In the following article, Andrew Alper looks back to 2005, the case In re Vinhnee and the issues with the provision of foundational evidence required by the court with regard to the introduction of computer records. As he shares from his own experience, when relying on the Vinhnee case, the court can get hung up on the matter of a witness’ ability to “import an aura of verisimilitude.” And that can be confounding.... read more

October 2009

In a rough economy, lessors are more frequently faced with competing claims against equipment on lease to defaulted customers. Some of these claims come from landlords or mortgagees who have an interest in the premises on which the leased equipment is located. Such claims can be particularly troublesome if the leased equipment may be considered fixtures under state law.... read more

July/August 2009

The very structure of many commercial loans, and the relationship between rents collected and mortgage payments, have the effect of deferring loan defaults for a while. Signs are beginning to appear, though, that delinquencies are sure to accelerate. When they do, there will be an avalanche of defaults, of which perhaps 20% will be of loans that are now held in commercial mortgage-backed securities trusts falling under the general description of “commercial mortgage-backed securities” (CMBS).... read more

July/August 2009

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. At the end the day, the interplay between the generally uniform provisions of the UCC and the various state Certificate of Title laws resembles a complex dance, which must be attempted with caution.... read more

June 2009

On April 1, 2009, the Court of Appeals for the First Circuit became the first federal circuit court to publish a decision on the right of a debtor to exempt property that the debtor fraudulently conveyed prior to filing bankruptcy. ... read more

June 2009

In these difficult times, lessors are more frequently willing to allow an existing lessee to assign its rights and interest in leased or financed equipment to a new lessee so long as the new lessee assumes all obligations under the lease. This issue of Dispatches from the Trenches discusses additional due diligence that should be conducted for lessee assignments and assumptions.... read more

May/June 2009

In some instances, a preplan 363 sale can still be structured to accomplish many objectives: it can meet the requirements of the Bankruptcy Code, be used to limit the leverage of out-of-the-money junior lienholder hold-outs, and serve as an expedient way to get assets sold and money distributed to creditors. In short, the 363 sale can be a lender’s best friend or its worst enemy.... read more

May/June 2009

Many in the industry find themselves rejecting more applicants than they have in a long time. This edition provides an outline of the Equal Credit Opportunity Act and the requirements it imposes on finance companies in such situations.... read more

March/April 2009

The en banc decision in Trusted Media highlights the significant practical and legal implications of a ruling that makes a determination that the requirements of §303(b) are properly met — a prerequisite to subject matter jurisdiction, as the Fifth and Second Circuits hold. Creditors filing an involuntary petition for relief against a debtor must “get it right” or risk substantial uncertainty as to the validity of orders and activities in the case.... read more

March/April 2009

The day-in, day-out reality of bankruptcy practice for practitioners is often likened to the emergency room of a busy urban hospital. Sometimes the patient is wheeled in, barely clinging to life. The wounds must be cleansed, the bleeding stopped, sometimes with an incomplete knowledge of the patient’s full history and circumstance, and with foreknowledge that resuscitation may not be in the cards. All of this is done while striving to earn a living, and to uphold the ethics of the profession.... read more

January/February 2009

It is common for those in our industry to distinguish true leases from dollar-out leases or other leases intended as security, which result in nothing more than a secured loan (referred to throughout the remainder of this issue as an ALIAS). This edition goes a step further and discusses situations where a loan documented on a note and a security agreement (sometimes referred to as a straight loan) is preferable to a lease, and vice versa.... read more

January/February 2009