Special servicers and lenders who have loans secured by real property in Nevada should be aware of a case that is on appeal in that state. Briefing is about to begin on what could be an important win, or loss, for the lending...more
If a taxpayer who has borrowed money from bank defaults on repayment and does not repay the bank, the taxpayer will have cancellation of indebtedness income to the extent that the amount due the lender exceeds the value of...more
A recent Minnesota state court decision serves as a painful reminder to Internet lenders of the perils of relying on choice-of-law provisions or arguments citing the Commerce Clause of the U.S. Constitution to avoid...more
In an age of historically low interest rates, lenders rely on fee income and other devices to enhance their returns. One of these mechanisms -- and one that can have dramatic consequences for a borrower -- is the inclusion of...more
Mortgage lenders are all too familiar with borrowers’ assertions that they did not receive two properly dated copies of the Truth-In-Lending Act (“TILA”) mandated Notice of Right to Cancel form (“NORTC”) at closing. Under...more
Even though the loan originator compensation rule (the “Final Rule” or “Rule”) finalized by the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) in January passed without as much fanfare as the Bureau’s Qualified...more
California's Legislature responded to the residential foreclosure crisis by, among other things, enacting new statutes aimed at clarifying the rights of borrowers facing foreclosure and imposing new restrictions on...more
The introduction by the US of the Foreign Account Tax Compliance Act 2010 (FATCA) set the proverbial cat amongst the pigeons in the international loan financing markets by requiring foreign and domestic borrowers, lenders and...more
Florida has the highest foreclosure rate in the country, with some sources showing a 3.11% foreclosure rate in 2012 – more than double the national average. At the end of 2009, with nearly 500,000 pending foreclosures and a...more
Under Florida law, usury is defined as the willful and knowing charge or receipt of interest in excess of 18% per year for credit transactions involving less than $500,000 or between 25% and 45% per year in a credit...more
The Effect of the Financial Crisis on Middle Market Loan Terms Part 1. Loan Buybacks - In addition to providing an object lesson in the dangers of lax lending standards, the global financial crisis of 2008 gave...more
Federal bank regulatory agencies released updated supervisory guidance on leveraged lending. The guidance covers transactions characterized by a borrower with financial leverage that significantly exceeds industry norms. The...more
The U.S. Court of Appeals for the Fifth Circuit recently issued two decisions that affect a borrower’s ability to confirm a bankruptcy plan, Western Real Estate Equities, L.L.C. v. Village at Camp Bowie I, L.P. (In re Village...more
In secured lending transactions, lenders frequently allow, and even require, borrowers to enter into swap agreements and other financial derivatives to hedge against different business risks, including fluctuations in...more
For those companies who pay attention to the always evolving regulatory environment as we do at Brownstein Hyatt Farber Schreck, you have likely heard the debate regarding the validity of rules promulgated by organizations...more
Originally published in Community Banker - Spring 2013. When a bankruptcy intervenes to prevent the continuation of a restructuring or loan enforcement effort, it is too late to supplement or strengthen loan...more
For the past 70 years, California courts have held that a party is barred from claiming fraud based on an alleged oral misrepresentation that directly contradicts the express terms of a written agreement. This rule had long...more
In a recent decision from the California Court of Appeals entitled Jolley v. Chase Home Finance, LLC, the Court severely curtailed lenders’ ability to dispose of lender liability claims on summary judgment, thereby adopting a...more
Last week, the Eleventh Circuit Court of Appeals held that lenders in syndicated credit facilities do not have standing to enforce the funding commitment that other lenders owe to the borrower in the absence of specific...more
In Riverisland Cold Storage, Inc., v. Fresno-Madera Prod. Credit Ass., S190581, the unanimous California Supreme Court recently overturned the widely criticized Pendergrass rule, thus restoring the full breadth of the fraud...more
In a recent case, the Supreme Court of Nevada agreed that a lender needed to wait until the completion of a foreclosure sale before making a deficiency claim against a guarantor. In Ken L. Templeton Family Trust, et al. v....more
On February 4, the California Court of Appeal, Third District, held the FTC’s Holder Rule allows borrowers to assert claims against a lender assignee that they might otherwise have against the auto dealer with whom the...more
On February 1, the Oregon Department of Justice published final rules to implement the foreclosure avoidance mediation program established by legislation enacted in April 2012, which requires beneficiaries to (i) enter into...more
California, like most jurisdictions, prohibits parties to integrated contracts from introducing “parol evidence” — this is, evidence of prior written or verbal agreements made by a party to a contract — if those alleged...more
In 1935, the California Supreme Court in Bank of America National Trust and Savings Ass’n v. Pendergrass prohibited a borrower from introducing external or parol evidence to demonstrate fraud in connection with an agreement...more
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