News & Analysis as of

Heard at the Country Music Hall of Fame: CFPB Director Performs in Nashville

Among the displays offering tribute to Reba and The Man in Black, Richard Cordray and some of his fans at the CFPB held a public hearing at the Country Music Hall of Fame in Nashville on March 25, 2014. Rather than the...more

Authorized Signors of Loan Documents

One of the threshold issues to consider in loan transactions is determining who is authorized to sign the loan documents on behalf of entity borrowers. This is important not only in cases where the entity is the borrower but...more

Intent-to-Use Trademark Applications and Security Agreements

In financing transactions, such as loans or securitizations, the lender who provides the financing will typically take a security interest over the assets pledged as collateral against the borrower's compliance with its...more

Bifurcated Note Implementation - Looking Beyond Traditional Risk Metrics to Prevent Borrower Windfall

In the world of large loan modifications, servicers and borrowers have turned frequently in recent years to the A/B Note structure in situations where the collateral financed by a loan is valued at less than the outstanding...more

New California Court of Appeal Decision Reaffirms General Rule that Residential Lenders Owe no Duty to Borrowers, Including in the...

In a recent decision, Lueras v. BAC Home Loans Servicing, LP, 2013 Cal. App. LEXIS 886, the California Court of Appeal returned to the general rule that, absent unique circumstances giving rise to a duty of care, lenders do...more

The Demise of Deficiency Judgments in Residential Loans

Among the many changes in the financial services industry, two important events occurred this year that effectively signaled the extinction of deficiency judgments in loans secured by residential property. ...more

The Disclosure Duties Owed by Banks as Agents to Lenders

The Chancery Division recently handed down its judgment on a hedge fund law suit brought against an agent bank for failing to disclose certain information regarding the borrower’s declining financial health and the occurrence...more

Alabama Establishes Payday Loan Database

On September 18, Alabama Governor Robert Bentley announced new State Banking Department regulations that will create a state database of payday loans made to borrowers. Under the Alabama Deferred Presentment Services Act...more

Sixth Circuit Affirms Dismissal Of ECOA Discrimination Claims

On August 14, the U.S. Court of Appeals for the Sixth Circuit affirmed a district court’s dismissal of claims by a borrower of Iraqi origin that a bank violated ECOA when it refused to restructure the borrower’s loan. 16630...more

Borrowers Have Standing to Challenge Void Assignments of Their Loans

A California Court of Appeal reversed a trial court’s decision and held that a borrower may sue a bank for wrongful foreclosure when an attempted transfer of loan to a securitized trust occurred after the trust’s closing...more

Lender Prevails in Lawsuit Against Borrower Who Agreed to Remain Liable for Home Equity Loan After Short Sale

A lender who held a second deed of trust on real property agreed to a short sale of the property after the borrower agreed to remain obligated to repay the balance of the home equity loan. The court of appeal upheld the...more

The Anti-Deficiency Protections of Code of Civil Procedure Section 580b Apply to “Short Sales” Approved by Lenders

A California Court of Appeal recently addressed the issue of whether the anti-deficiency protections of Code of Civil Procedure (“CCP”) section 580b applied after a borrower, with her lender’s approval, sold her residence in...more

The Impact of Costello v. Grundon: Margin Rules and the Enforceability of Loan Documents in Financing Transactions

A recent decision of the Seventh Circuit Court of Appeals has significant implications for lenders in commercial loan transactions and for law firms that give legal opinions about the enforceability of loan documents....more

Keeping it simple – the Unitranche demystified

One of the main exam strategies available to the struggling pupil is to pepper an essay with long words, giving complex names to simple ideas. Are you proposing to consider both sides of an argument, or are you viewing the...more

Energy Law Insight: Twist In The Tale Of The Term B Loan

The institutional debt market for energy projects is fired up, particularly for Term B Loan refinancing....more

DC Circuit Invalidates Mortgage Loan Officer “Administrator Interpretation” Because Department of Labor Failed to Comply With...

On March 24, 2010, the United States Department of Labor, Wage & Hour Division (“WHD”) issued an “Administrator’s Interpretation” declaring that employees who perform the typical job duties of a mortgage loan officer do not...more

Rogers Towers: Documentary Stamp Tax on Renewal Loans – A Review of the Basics

With property values slowly increasing and borrowers beginning to see the light at the end of a long recession, the demand for renewal loans is slowly building. To that end, let’s briefly review a few of the key rules...more

In re School Specialty, Inc., Case No. 13-10125 (KJC) (Bankr. D. Del. Apr. 22, 2013)

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

Summary Of HUD’s LEAN 232 Program E-Mail Blast: Office Of Residential Care Facilities (ORCF), April 29, 2013

In an effort to summarize the highlights of the U.S. Department of Housing and Urban Development (HUD) LEAN E-mail Blasts that we receive, and rarely have time to review in a timely fashion, we at Pepper are providing this...more

Successor Banks of FDIC assets Not so Jolly after Jolley - A New Duty to Investigate?

A recent California case appears to contradict the general rule holding that a successor bank that has acquired a commercial loan through an FDIC receivership may owe a duty to a commercial borrower to reasonably investigate...more

You Need to Pay Attention to the Consumer Financial Protection Bureau

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

A Loan Enforcement e-Newsletter - Missouri Foreclosures: A Changing Landscape?

In This Issue: - Missouri Foreclosures: A Changing Landscape? - Missouri Law on Non-Judicial Foreclosure: A Primer Measuring Deficiencies Under Missouri Law - Fischer & Frichtel - Sunrise Farms -...more

In Fontainebleau Appeal, Eleventh Circuit Confirms That Term Lenders Lack Standing To Enforce Revolving Lenders’ Commitments

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

Promises to Keep—Lender Beware: California Supreme Court Expands Parol Evidence Fraud Exception

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

"I Knew You Were Trouble": Recent Trends in Lender Liability Litigation

Lender liability claims generally arise in one of following contexts: (i) claims seeking recovery of damage or "leverage" to accept discounted payoffs; (ii) counterclaims to foreclosure/receivership/guarantor actions; or...more

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