Select Bankruptcy Issues for General Counsel – Part One
On May 29, 2013, the Nevada Supreme Court issued two decisions that all real estate lenders need to be aware of because they have the potential to eliminate the ability of a lender to recover a deficiency judgment from a...more
The Court of Appeals of Georgia further clarified Georgia's treatment of deficiency judgment suits against guarantors in instances where lenders cannot obtain foreclosure confirmations of secured property. Community &...more
SC19047 - Commissioner of Public Safety v. Freedom of Information Commission -
1994 legislation that expanded the disclosure requirements of law enforcement agencies beyond just the name, rank & serial number of the...more
In this issue:
- Are Breakup Fees at Risk?
- Credit Bidding Rights Limited, Capped by Debt Purchase Amount
- Court Upholds Creditor’s Security Interest Despite Post-Petition Lapse of Financing Statement...more
The New Jersey Superior Court, in Lopresti v. Wells Fargo Bank, N.A., determined that the New Jersey Prepayment Law, N.J.S.A. § 46:10B-1, does not apply to individual guarantors who had guaranteed a commercial loan. There,...more
Schleining v. Cap One, Inc., 130 Nev. Adv. Op. 36 (May 29, 2014), arises out of a loan to purchase an undeveloped piece of property, which was guaranteed by the principal of the borrower. After the borrower defaulted, the...more
Post-foreclosure deficiency lawsuits against guarantors of commercial loans can be expensive and time consuming — particularly when measured against the sometimes uncertain collectability of the deficiency judgment. Under...more
By most accounts, a decision from the Georgia Court of Appeals last September represents a sea change in the law governing judicial confirmation of foreclosure sales and post-foreclosure deficiency claims. Indeed, the Court's...more
Part one of an in-depth webinar discussion covering a range of bankruptcy issues of particular interest to In-House Counsel.
The panel discusses bankruptcy and other creditor rights considerations when choosing the form of...more
In the recent case CoastalStates Bank v. Hanover Homes of South Carolina, LLC, et al., the South Carolina Court of Appeals issued a potentially game changing opinion on the consequences that a bank’s settlement with a...more
In a prior post, we discussed a grantor’s continuing liability under a promissory note that is renewed without his notice or consent where the guaranty is a continuing guaranty, meaning it contemplates revisions or extensions...more
In a published and precedent establishing case, the California Court of Appeal recently confirmed a guarantor’s separate and independent liability to a lender even if the borrower’s own liability has been discharged or...more
Promissory notes are often renewed and extended without the express written consent of, or even notice to, the guarantors of the note. A guarantor, faced with changing circumstances and wishing to cut off his liability under...more
The “sham guaranty” defense may absolve a guarantor of liability when no deficiency is available against the borrower, and the guarantor is really the borrower with a different name. In California Bank and Trust v. Lawler...more
As any lender who’s had a loan secured by real property collateral in Georgia knows, in order to pursue a deficiency balance following a non-judicial foreclosure of its collateral, the foreclosure sale has to be “confirmed”...more
In Brooksby v. Nevada State Bank, 129 Nev. Adv. Op. 82 (Nov. 7, 2013), Nevada State Bank obtained a deficiency judgment against the guarantor of a commercial loan and then garnished funds contained in bank accounts jointly...more
This week in our playbook, we are talking about guarantor and affiliate financial statements.
First, the bad news: As a general rule, all guarantors must present the same audited and unaudited financial statements as...more
The Dutch Ministry of Finance has released a new transfer pricing Decree that is already in effect.
The New Decree, announced in late November, supersedes two earlier Decrees, that of 30 March 2001 (IFZ 2001/295) and...more
The Arizona Court of Appeals recently held that commercial borrowers and guarantors cannot prospectively waive their right to limit their damages in a deficiency action on the basis of the fair market value of property sold...more
In First Credit Union v. Courtney, 309 P.3d 929, 669 Ariz. Adv. Rep. 18 (Ct. App. 2013), the Arizona Court of Appeals rejected three creative arguments that A.R.S. § 33-814 protected the guarantors from paying on their...more
In CSA 13-101 Loop, LLC v. Loop l01, LLC, et al., Loop 101 borrowed $15.6 million from MidFirst (which later assigned its rights under the loan to CSA as an intercompany transfer) to build a commercial office building. The...more
Greenlight Reinsurance, Ltd. v. Appalachian Underwriters, Inc., No. 12 Civ. 8544 (JPO), 2013 U.S. Dist. LEXIS 104605, 2013 WL 3835341 (S.D.N.Y. Jul. 25, 2013).
A New York federal court has denied several motions to...more
The recent New York case of Lichtenstein v. Willkie Farr addresses a borrower's conflict caused, in part, by a loan covenant. The covenant invoked personal liability of the members in the event the entity files a voluntary...more
On 22 May 2013 the Presidium of the Supreme Court of the Russian Federation (the “Supreme Court”) approved an overview of court practice in cases concerning the performance of credit obligations by individuals (the...more
Many corporate credit agreements are supported by subsidiary guarantees. Those guarantees often include not only the guaranty of the obligations under the credit agreement but also any related swap agreements. The CFTC has...more
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