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Lenders Can Prepare for Tenant Offset Rights in SNDAs

Tenants’ limited recourse to their landlords has made “offset rights” a major issue in negotiating Subordination, Non-Disturbance and Attornment Agreements (SNDAs). Tenant offset rights arise when the tenant has the...more

Gainful Employment Rule and Student Loan Debt Counseling: A Perfect Match?

New regulations that will impose severe requirements on for-profit colleges and career training programs may open the door to an increased need for independent third-party student loan debt counseling. On March 14, 2014, the...more

Shedding Light on China’s Massive Shadow Banking Market - Landmark Corporate Bond Default - Part 1

The debt level of the PRC is rising. It is estimated that the PRC’s corporate debt could hit US$13.8 trillion in 2014, surpassing that of the United States (“U.S.”) as the largest in the world. This has raised increasing...more

Terminating Your Contract: Things to Remember Part 2

Let’s continue the discussion on issues to consider with regard to the termination of your contract. Most contracts have provisions governing what will constitute a breach or default and what the parties’ respective rights...more

Supreme Court of Rhode Island Declares Usury Savings Clauses Void

For public policy reasons, the Rhode Island Supreme Court recently held that usury savings clauses are void and unenforceable. In NV One, LLC v. Potomac Home Capital, LLC, borrowers who had defaulted on their note filed a...more

Florida Court Holds Notice After Default Not Necessarily Prejudicial

In its recent decision in Indemnity Ins. Co. v. Caylao, Case No. 1D12-5733 (Fla. 1st DCA. Feb. 4, 2014) the First District Court of Appeals for the state of Florida had occasion to consider whether an insurer who receives...more

Are Your Student Loans in Default? Check out these 2 Ways to Solve the Problem.

Are your student loans in default? If so you aren’t alone. Default rates on student loans are at their highest rate in decades. Once a student loan is considered in default you run the risk of wage garnishment, lawsuits,...more

4 Consequences to Defaulting on Your Student Loans

The amount of student loans incurred by Arizona residents continues to climb. In fact that total amount of student loan debt is now over $1 trillion dollars nationally. Many people find themselves in a situation where they...more

Utah Court of Appeals Limits Third-Party Beneficiary Contract Claims Against Appraisers, but Recognizes Tort Based Third-Party...

In Lilley v. JPMorgan Chase, et al, 748 UT Adv. Rpt. 48, 213 Utah App. 285, Nov. 20, 2013, the Utah Court of Appeals affirmed an order of the District Court dismissing the Plaintiffs’ breach of contract action against an...more

UK Court of Appeal: “Defaulting Shareholder” Provisions Are Unenforceable Penalties

Talal El Makdessi v Cavendish Square Holdings BV dealt with restrictive covenants in the context of a share sale. The UK Court of Appeal ruling indicates that contractual deterrents should not be used without careful...more

A Simple Framework for Determining Whether Dodd-Frank Applies to Your Energy Trade

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or the “Act”) authorizes the Commodity Futures Trading Commission (“CFTC”) to comprehensively regulate energy trading activities. Dodd-Frank is...more

Good News for Agents, but be Aware

Introduction - In Torre Asset Funding Ltd v Royal Bank of Scotland Plc [2013] EWHC 2670 (Ch), the claimant (“Torre”) was a lender in a financing structure which included super senior, senior, senior mezzanine, junior...more

Michigan Appeals Court Opinion Could Affect Banks’ Response To Creditor Garnishments

The Michigan Court of Appeals recently issued an opinion that may have a big impact on how banks respond to creditor garnishments for customers who are in default on their loans from the bank. In Ladd v Motor City...more

New York Banking Regulator Urges Broad Changes To Debt Collection Affidavits

On October 18, New York DFS Superintendent Benjamin Lawsky commented on the New York Unified Court System’s proposal to require debt collectors to use standardized affidavits as evidence of ownership of debt when seeking...more

ECOA Gets More Teeth in North Carolina

In one of my prior “Drive Thrus” in Community Banking Exellence, I reminded everyone that lenders can never require a spousal guaranty, but can request one. The North Carolina Court of Appeals brought that fact home recently...more

Banking and Finance Litigation Update - Issue 68

In This Issue: - Domestic Banking 2 - Domestic General 4 - European Banking 5 - European General 6 - International Banking 6 - International General 7 - Press Releases 7 - Case Law 9 -...more

Cognovit Provisions in Commercial Loan Documents: Enforceability Limited?

A recent Ohio Court of Appeals decision sheds some light on the enforcement of confession of judgment (“cognovit”) provisions in commercial loan documents. These provisions remain enforceable in a few states, including Ohio....more

CFTC Issues Final Rules for SIDCOs

The Commodity Futures Trading Commission issued new risk management standards for systemically important derivatives clearing organizations (SIDCOs). Pursuant to CFTC Regulation 39.11, a derivatives clearing organization...more

Ninth Circuit Opens Door for Protracted HAMP Litigation

Earlier this month, the Ninth Circuit reversed a lower court’s dismissal of two consolidated class action complaints, holding that mortgage servicers participating in the Home Affordable Modification Program (HAMP) are...more

Orrick's Financial Industry Week in Review - July 29,2013

FHFA Statement on Freddie Mac Risk-Sharing Transaction - On July 24, the FHFA announced that Freddie Mac is nearing completion of its first risk-sharing transaction, a direct debt issuance, that will assist Freddie Mac...more

Planning for Tenant's Changing Needs: Options To Renew, Expand, Cancel, or Reduce

As a tenant's business changes, its needs and space requirements also change. If possible, a commercial tenant should anticipate the possibility of changing needs by negotiating certain beneficial options and rights into the...more

Anticipating Earnest Money “Damages” – Don’t Assume It

The Arizona Supreme Court issued an opinion last month in Thomas v. Montelucia Villas, LLC, 2013 Ariz. LEXIS 152 (June 14, 2013) that adds a few wrinkles to efforts by sellers in real estate transactions to retain “earnest...more

An Overview of the Receivership Process in Tennessee

Lenders have a number of options when faced with a borrower in default. In Tennessee, one option to seriously consider is seeking appointment of a receiver. A receiver will step into the role of the borrower or management...more

Real Estate Tip – Ground Leasing Part 3: Default May Lead to Tenant Losing Building

In parts 1 and 2 of our ground lease series, we discussed the basics of ground leases, including by-agreement and sales-based rent adjustments. Today, we look at another lease issue that becomes more critical in the ground...more

The Impact of Dual Tracking Restrictions on Foreclosure Rates in California

Foreclosure rates are declining in California. Many tout an improving economy as a reason for this trend. The impact of new legislation that restricts lenders and mortgage servicers from foreclosing on residential mortgages...more

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