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Consumer Financial Services Newsletter - June 2016

Seventh Circuit Held No Implicit Threat to Proceed to Trial by Debt Collector When Filing a Collection Lawsuit - St. John v. CACH, LLC, No.14-2760, 2016 WL 2909195 (7th Cir. May 19, 2016) - On May 19, 2016, the...more

June 2016: Energy Litigation Update

Bankruptcy Judge’s Decision in Sabine Oil & Gas Alters the Relationships and Value Allocations Between Oil Producers and Midstream Companies. The hottest area in restructuring in 2016 is oil and gas. In the first five months...more

New Putative FCRA Class Action May Signal a Trend

A borrower recently filed a putative class action against Fannie Mae under the Fair Credit Reporting Act (FCRA) in federal court in Washington, D.C., alleging that Fannie engaged in unauthorized inquiries into borrowers'...more

The Model Form JOA in Hard Times (and Farewell, Rally Possum)

Good morning class. Welcome to an advanced course on what can go wrong with the Model Form just when you need it. FIRST CASE - Do you know where to file your UCC financing statement?...more

Bankruptcy Petition Costs Litigant Right to Appeal State Court

Learning the interplay between state rules of judicial procedure and federal bankruptcy law can be a daunting undertaking, but the pitfalls of failing to do so can be severe. A recent example of the importance of being...more

The Shale Bankruptcy Boom Moves Midstream

The shale boom has given rise to another, less welcome boom: the bankruptcy boom. Thirty-five exploration and production (“E&P”) companies sought bankruptcy protection between July 1, 2014, and December 31, 2015, and this...more

The Shale Play Today - Second Quarter 2016

In This Issue: A National Energy Plan: Should We Have One? Do We Have One? If So, Is It Working? Before ultimately answering the questions posed in the title above on a National Energy Plan, in full disclosure it...more

Mortgage Lenders Entitled to the Benefit of Their Bargain: Fourth Circuit Applies Default Interest Rate to Mortgage Payments Made...

Good news for residential mortgage lenders: the Fourth Circuit recently held that post-petition mortgage payments under a Chapter 13 “maintenance and cure” bankruptcy plan should be calculated using the default interest rate...more

Take Notice of This Change: Supreme Court Adopts Recommended Amendments to Bankruptcy Notice of Payment Change Rule

Come December, the requirements surrounding notices of payment change (“PCNs”) for certain mortgage loans in bankruptcy will change. The Supreme Court, on April 28, 2016, adopted various proposed amendments to the Federal...more

When and How Can a Chapter 7 Bankruptcy Trustee Liquidate Your Collateral?

So you are chugging along with a foreclosure action (either on real and/or personal property) only to be stopped in your tracks by the borrower filing a voluntary Chapter 7 bankruptcy petition. The usual, immediate thought...more

Orrick's Financial Industry Week in Review

FHFA Increases 2016 Multifamily Lending Caps - On May 4, 2016, the Federal Housing Finance Agency announced that it increased its 2016 multifamily lending caps for Fannie Mae and Freddie Mac from $31 billion to $35...more

Recipe for a Project Bankruptcy: The Owner in Bankruptcy Through The Lens of the Construction Manager

Industry leaders agree that the economy has turned the corner and private construction projects are on the uptick.  Banks have eased lending requirements and there is more private equity money on the streets.  Inexperienced...more

Fourth Circuit Case on Modification of Residential Mortgage

The Fourth Circuit has held that in a case where the rate of interest on a residential mortgage loan had been increased upon default, a Chapter 13 Plan proposing to “cure” default under 11 U.S.C. §1322(b) is an impermissible...more

When is a Wrongful Foreclosure Case a “SLAPP”?

California’s anti-SLAPP statute (Code of Civil Procedure section 425.16) arms a defendant with an early method to challenge a lawsuit known as a “SLAPP” — a Strategic Lawsuit Against Public Participation. SLAPPs are...more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19384 - State v. Carter - SC19282 - State v. Peeler - Appellate Court Advance Release Opinions: AC37262 - Dumbauld v. Dumbauld - AC37262 Concurrence -...more

The District of Massachusetts Calls for Review of Practice of “Surrendering” Underwater Property

For secured lenders, a consumer debtor’s chapter 13 bankruptcy filing can be a mixed bag. A chapter 13 bankruptcy petition often is utilized by a consumer debtor to avoid a foreclosure by allowing a debtor time (usually...more

Banking & Financial Services E-Note - March 2016

Within Burr & Forman's footprint, Florida, Mississippi, and Tennessee have passed statutes exempting Health Savings Account ("HSA") contributions from a debtor's bankruptcy estate. To date, the state of Georgia has not passed...more

Financial Services Weekly News - March 2016 #4

Regulatory Developments - FHA Revises Loan-Level Certification Form - On March 15, the Federal Housing Administration (FHA) announced changes to its loan-level certification form. The changes resulted from concerns...more

Tax Treatment of “Bad Boy Guarantees” Challenged by Recent IRS Memorandum

I. OVERVIEW - A recently released legal memorandum by the Internal Revenue Service (IRS) Office of Chief Counsel, CCA 201606027 (the “Memorandum”), concluded that a so-called “bad boy guarantee” provided by a sponsor of...more

Landlords Beware: Seventh Circuit Rules That Lease Terminations May Be Voidable In Bankruptcy

The Seventh Circuit Court of Appeals recently handed down a decision with significant implications for landlords contemplating lease termination agreements with distressed tenants. Ruling on a direct appeal in the chapter 11...more

Equitable Subrogation and the Replacement Doctrine

All real estate professionals and investors are familiar with the concept of the priority of liens. As a general rule, when there are multiple liens recorded against a property, the one that is recorded first is “superior”...more

Oil and Gas Gathering Contracts: Contracts Running With the Land or Running On Empty?

In a much anticipated ruling, Bankruptcy Judge Shelley Chapman has granted the motion of Sabine Oil and Gas Corporation (No. 15-11835, USBC SDNY) to reject certain executory contracts with Nordheim Eagle Ford Gathering, LLC...more

"Recent Case Highlights Opportunity for Distressed Exploration and Production Companies"

On March 8, 2016, a bankruptcy court in the Southern District of New York issued a much-anticipated decision, In re Sabine Oil & Gas Corporation, that will undoubtedly influence the reorganization strategies of certain...more

R&I Update: Hot Topics in Oil and Gas Restructurings, Volume 2 Can Gathering Agreements Be Rejected as Executory Contracts?

“The carnage is going to be terrible,” cried a recent Dallas Morning News headline. “It’s a hellacious problem,” lamented another article. It’s no secret the energy sector has come upon hard times. Oil prices are down 70...more

Bankruptcy Court Rules Gathering Agreements Can Be Rejected - Potential Significant Impacts on Midstream Companies

On March 8, 2016, the United States Bankruptcy Court for the Southern District of New York (the “Court”) ruled from the bench in In re Sabine Oil & Gas Corp. in a case of first impression that a midstream gathering agreement...more

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