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
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
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the "Dodd-Frank Act") requires that swaps (as defined in 7 U.S.C. § 1a(47)) be entered into on designated contract markets unless the parties to the swap...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
Code §465 limits deductions for taxpayers in business and investment activities to the amount the taxpayer has "at risk" in the venture. Amounts of owners that are contributed to capital are generally at risk. Also at risk...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
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
Originally published in the New York Law Journal on January 3, 2012.
On Nov. 28, 2012, the U.S. Court of Appeals for the Fifth Circuit in In re Vitro S.A.B. de C.V. issued a groundbreaking decision under Chapter 15 of...more
The Fifth Circuit recently upheld a Texas Bankruptcy Court’s refusal to enforce non-debtor third party releases in the Mexican reorganization proceeding (known as a concurso mercantil) of Mexican glass manufacturer Vitro SAB...more
In many foreclosure cases, the strategy of the borrower is simply to delay the case. Typically, the borrower hopes that delay will allow time to either work out a settlement with the lender or find a third party buyer for the...more
Recently, the Fifth District Court of Appeals decided Fort Plantation Investments, LLC v. Ironstone Bank, a case that may be of interest to lenders considering their options in pursuing a borrower for mortgage foreclosure and...more
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