Protecting Your Collateral: A Little Something About Lessee Assignments and Assumptions

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

Is a Bankruptcy §363 Sale of Assets a Lender’s Friend or Enemy?

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

Surmounting a Slippery Slope: Complying With ECOA When Rejecting Applicants

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

Meeting §303(b) Requirements in Creditor Involuntary Relief Petitions

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

Why Bankruptcy Practitioners Should Care About E-Discovery

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

True Leases Verses Straight Loans

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

Fraud in Today’s Economy for Lenders and Lessors

When it comes to fraud, here’s the bottom line: fraud costs lenders and lessors millions of dollars every year. The key to fraud prevention is diligence, diligence and more diligence. For this year’s Risk Management and Fraud Prevention issue, Andrew Alper reminds readers to look out for the many “badges” of fraud.... read more

Be Explicit When Talking Negligence

There are risks involved in not mentioning negligence in the indemnity section of a lease agreement. Lessors should also be warned that state laws regarding the enforceability of exculpatory clauses can be relevant. Cautious lessors should always review their lease documents to know if these forms will protect them from claims.... read more

Sixth Circuit Rules on Lease Rejection Damages, the Impact of Mitigation Efforts

The case of Giant Eagle, Inc. v. Phar-Mor, Inc., holds a number of positive rulings for equipment lessors. The court found that lessors’ rights would not be limited in its claims for rejection damages, but also highlights the disadvantages that this type of structure could present for equipment lessors. ... read more

Florida Court Buries Graves Amendment Regarding Lessor Liability Claims and Financial Responsibility

Lessors have had to concern themselves with lessor liability claims and the scariest of these have stemmed from claims that haven’t required evidence of wrongdoing on the part of the lessor. Along came the Graves Amendment, and lessors began to find some comfort. But a recent ruling from the Sunshine State has once again cast ominous clouds in the matter of financial responsibility.... read more

Ninth Circuit Changes Course on Secured Creditor’s Right to Default Interest in Chapter 11 Bankruptcy

The Court of Appeals in the Ninth Circuit recently ruled a secured creditor whose claim is oversecured can recover default interest under certain circumstances in a Chapter 11 plan. The court also ruled that the secured creditor may recover attorney’s fees and costs if it prevails on its claim for recovery of default interest. What does this reversal mean for secured creditors?... read more

Implied Covenant of Good Faith & Fair Dealing

This issue discusses the implied duty of good faith and fair dealing often raised by aggrieved lessees complaining of lack of fairness or equity. Such claims are frequently heard simultaneously with claims of unfair and deceptive trade practices, unjust enrichment and unconsionability.... read more

Documentation Matters

Most brokers, lenders and lessors have heard horror stories about doing business in California and the requirement of having a Commercial Finance Lenders License. Yes, the horror stories are true although qualifying to obtain the license is not very difficult. The following discussion is a short summary of some of the relevant provisions of the CFFL.... read more

Important Differences Between Commercial and Municipal Equipment Lease Documents

A veteran commercial leasing professional can quickly become “a fish out of water” when attempting to dive into the murky waters of municipal leasing. Nearly everyone knows that a municipal lease must include something referred to as a “nonappropriation clause,” but beyond that, do you know the legal risks of failing to include certain provisions that are specific to municipal leasing transactions? Do you know the provisions that should not be included?... read more

Liens That Survive Transfer of the Equipment

This month, Ken Weinberg contemplates UCC provisions, which protect a lessee when it sells equipment leased pursuant to almost every type of lease under the sun as well as equipment finance agreements and loans secured by equipment.... read more

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Terry Mulreany
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