Guarantors

News & Analysis as of

Cross-Border Loan Transactions: Supplementing Canadian Law Governed Loan Documents with Collateral and Guaranty Documents Governed...

Many cross-border loan transactions involve subsidiaries that are organized in the United States and/or U.S. based collateral. To the extent that the underlying loan is made to a Canadian borrower by a Canadian lender, these...more

Burr Alert: “Alakazam”(or not): No Magic Language Necessary for Confirmation Waivers as Georgia Courts Continue to Allow...

In last March’s edition of this newsletter, we discussed the Supreme Court of Georgia’s decision in PNC Bank, National Association v. Smith, in which the Court held that compliance with O.C.G.A. § 44-14-161 “is a condition...more

Explanation of J. Crew “back-door” provision and proposal for how lenders might address this in their documentation.

Recently, J. Crew used a “back-door” provision in its credit facility to transfer approximately $250 million worth of intellectual property (“IP”) to an unrestricted subsidiary with the aim of borrowing against the...more

Lenders Seeking Loan Modification After Bankruptcy, Beware!

Lenders cannot revive a guaranty obligation discharged in bankruptcy with a subsequent modification or forbearance agreement, even with new consideration; and attempting to do so may lead to lender liability exposure....more

Handy List of Basic Issues to Consider for the Transactional Workout

While significant energy here at the Bankruptcy Cave is devoted to substantive bankruptcy matters, not all aspects of a general insolvency practice are always fun and litigation. Oftentimes insolvency lawyers add the most...more

UK Regulation Round Up - January 2017

Welcome to the UK Regulation Round Up, a regular bulletin highlighting the latest developments in UK regulation for alternative asset managers. The start of 2017 saw a number of regulatory developments including...more

Russian Legislation Update: November 2016 - January 2017

Welcome to the most recent issue of our Russian Legislation Update, covering the period of November 2016 - January 2017. In this issue: - Corporate Relations - Anti-Corruption Practices - Banking - Procurement...more

Transfer of French export credit activities from Coface to Bpifrance Assurance Export S.A.S.

France's export credit agency Coface transferred its export credit activities to Bpifrance Assurance Export S.A.S. on 31 December 2016. The transfer is a "fundamental change" in the French export credit support system....more

AGG Litigation Insights Newsletter - Fall 2016

Social media is everywhere, and while it gives businesses an unprecedented opportunity to reach a record number of consumers at a minimal cost, it can prove to be a double edged sword when disgruntled employees or customers,...more

SC Court of Appeals Rules Against Absentee Guarantor - Power of attorney afforded normal contract interpretation rules

On August 3, 2016, the South Carolina Court of Appeals released First South Bank v. Rosenberg, Op. No. 5437 (S.C.Ct.App. filed August, 3, 2016) (Shearouse Adv.Sh. No. 31 at 75). In First Bank, the Court of Appeals considered...more

Like Brangelina, a Promissory Note and Guaranty May Be Separated

Recently, in the case of Emerald Portfolio, LLC v. Outer Banks/Kinnakeet Associates, LLC, the North Carolina Court of Appeals issued an opinion that reaffirms the independent nature of personal guaranty agreements. The court...more

Slam on the Slam – A California Court Further Limits the Sham Guaranty Defense

There has been much recent California case law regarding the sham guaranty defense and for good reason – success for a guarantor on this defense can eliminate a lender’s recovery of a deficiency against a guarantor of a...more

Sham Guaranties Are (Still) Hard To Come By

In a prior post, Sham Guaranties Are Hard To Come By, we reviewed a decision from the First District Court of Appeal that emphasized how difficult it is for guarantors to win on a “sham guaranty” defense. That defense...more

(US) Guarantor Services can help you land the dream New York City apartment

Finding an apartment in New York City is a journey in stress management. You’ve done your internet research. You’ve climbed a thousand steps. Now, you’ve found the place of your dreams. Is it too good to be true? It...more

California Court Rejects “Sham Guarantee” Defense

Bryan Cave LLP recently served as counsel for amicus curiae California Bankers Association (“CBA”) and helped score a victory in an important California appellate case of great interest to the banking industry, LSREF2 Clover...more

Massachusetts Appeals Court Addresses Statute of Limitations for Enforcement of Guaranty

In a case decided at the end of August, the Massachusetts Court of Appeals had the opportunity to address when the statute of limitations expires with respect to the enforcement of a guaranty. In JB Mortgage Co., LLC v. Ring...more

Nutter Bank Report, August 2016

FDIC Proposes Expansion of Third-Party Lending Examinations - The FDIC has extended the public comment period on proposed examination guidance that would significantly expand the scope of examinations of banks’...more

Banks reflect on guarantees, rejoice on fees

National Australia Bank Ltd v Rose - On 21 July 2016, the Victorian Court of Appeal confirmed that a guarantee and indemnity provided by an individual was invalid on the basis that NAB had not complied with relevant...more

Overriding Interest

Welcome to the latest edition of Overriding Interest. Inside this issue: - Brexit and the Real Estate Sector—Impacts - Forfeiture: The Right of Re-Entry - New Joiners, Events & Announcements - Cases...more

Enforcing Personal Guaranties

You might wonder whether lenders can enforce a guaranty of a loan from an individual or entity that has no formal connection with the borrower, i.e. someone who is not an owner or affiliated company. Generally, the answer is...more

Can I Get a Money Judgment If I Can’t Locate the Defendant or If He Resides Out of State?

If you can’t locate a party and personally serve him, you can follow the less-known method of service, called substitute service. Once you have filed your complaint seeking damages for breach of a lease or guaranty, you are...more

Loan Enforcement and Creditors’ Rights

At times, lenders lose the promissory notes on defaulted loans. Lost notes are problematic because, in order to have standing to foreclose, a lender may be required in many states, including in New York, to possess the...more

Supreme Court Decision Fails to Provide Clarity on ECOA Claims

On March 22, 2016, the U.S. Supreme Court issued its first 4-4 decision following the death of Justice Antonin Scalia, thereby affirming the 8th Circuit in Hawkins v. Community Bank of Raymore. The Court’s per curiam opinion...more

Pay now, litigate later: Relief for Lenders upheld in Palaniappan v Westpac Banking Corporation

Several Australian cases have considered the ability of a guarantor to challenge its payment obligations under a guarantee. Lenders typically rely on provisions which restrict a guarantor from avoiding payment under the...more

AGG Litigation Insights Newsletter - Spring 2016

Potential plaintiffs and freshly sued defendants often discount the importance of damages analysis when it comes to litigation planning and execution. After all, disputes over liability receive far more attention during...more

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