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

Bankruptcy Court Refuses to Allow Creditor a Nondischargeable Claim Despite Fraudulent Financial Statement

In this edition of Legal Watch, Andrew Alper reminds us that there are always lessons to be learned from adverse court decisions. Lessons include the necessity for lenders and lessors in making sure their lending and leasing guidelines make sense and the importance of digging deeper into credit information received from a borrower or lessee.... read more

Revised Article 9: Refinancings, Consolidations & Renewals of Purchase-Money Security Interests

As markets continue to deteriorate in the months to come, it is going to be even more important to understand refinancings, renewals and consolidations of purchase-money security interests. This edition turns the spotlight on existing secured loans as they are refinanced.... read more

Discovery Duties in e-Stored Information

Not sure about your discovery duties when using e-stored information? The Qualcomm case illustrates that applying these general discovery duties in practice may not be as easy as the familiar general “due diligence” requirement suggests. While the ink is drying on the Qualcomm decision, it may be a good time for companies and their counsel to reassess their own case management and discovery procedures in light of the lessons learned.... read more

How Guaranties can Help or Hurt Lessors

How does a guaranty affect a lease? How does the court rule in the case of a guaranty? In this edition, Barry Marks and Ken Weinberg tread through the different types of guaranties as well as the various rules, to show how they can be of benefit — or a detriment — to lessors.... read more

Hell or High Water Clause Comes Under Attack

Columnist Andrew Alper discusses the common missteps taken by both lessors and lessees when drafting a hell or high water provision in equipment lease agreements. He also provides recent examples of the courts’ uneven decisions regarding the matter.... read more

Easing the Way Through the Broker-Lender Relationship

In a time when the working relationship between brokers and funding sources has never been more important, attorneys from law firm Askounis & Borst — Thomas Askounis, Alex Darcy and Debra Devassy — discuss the common missteps and resolutions that can arise in these partnerships.... read more

Consider All Aspects — and State Revisions — When Drafting a Choice of Law Provision

Drafting a choice of law provision is not as easy as it seems if you assume the Uniform Universal Code (UCC) is ‘universal’ in all states. But it isn’t. Therefore, one needs to be extra vigilant in writing these provisions to ensure the outcome isn’t different from what was intended.... read more

Relevant Issues Relating to Inventory Financing

The last installment discussed the possibility of a lessor of vehicles being unable to rely on a lien notation on the Certificate of Title for purposes of perfection. This article continues this theme by discussing other issues related to inventory financing.... read more

Second Circuit: When Debt is Non-Dischargeable in Backruptcy

The influential Second Circuit Court of Appeals has become the latest federal circuit court to add its voice to the interpretation of a key provision upon which creditors can seek a determination that a debt is non-dischargeable in bankruptcy.... read more

Anatomy of a Sting: Agents to Close Books on Months-Long Fraud Investigation

Capping a drama that reads more like a Hollywood script than a case of white-collar crime, federal agents in California closed a months-long undercover operation in November, pulling the lid off what prosecutors say was a nationwide lease-fraud racket.... read more

Liquidated Damages Under True Leases

This installment discusses liquidated damages under true leases. Ken Weinberg provides three cases: In re Baldwin Rental Centers, Inc., Carter v. Tokai Financial Services, and In re Montgomery Ward Holding Corp. as examples of the complexity of liquidated damages clauses.... read more

Using the Bankruptcy Stay to Prohibit Enforcement of Claims Against Nondebtors

Monitor columnist Andrew Alper discusses §105 of the Bankruptcy Code and how the courts determine if it is possible to use a stay to prohibit litigation of a nondebtor’s claims. Whether the court decides to extend a bankruptcy case depends on the facts. Alper provides examples to explain why this is a common occurrence.... read more

Supreme Court Overrules Ninth Circuit’s Fobian Rule on Attorneys’ Fees in Bankruptcy

The United States Supreme Court yet again reversed a decision of the Ninth Circuit Court of Appeals and resolved a conflict among the circuit courts regarding the allowance of attorneys’ fees in bankruptcy litigation. Columnist Lesley Hawes discusses the court’s process in the case of Travelers Casualty & Surety Co. v. Pacific Gas & Electric Co., and how this decision will affect future litigation.... read more

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