Lenders

News & Analysis as of

The Hague Securities Convention – I. Lending Against Securities in the U.S. After April 1, 2017

The Hague Securities Convention, which goes into effect in the United States on April 1, 2017, will have significant impact on the law applied to all transactions – past and future – collateralized by securities held by an...more

When Banks and SCRA Compliance Collide

In the financial industry, non-compliance means violating or not complying with legal regulations, prescribed industry practices, internal governance, or ethical standards. Non-compliant behavior can have a major impact on...more

Secondary Market Transaction Results in U.S. Court Jurisdiction Over Foreign Lender

Foreign financial institutions that trade dollar-denominated securities on the secondary market may not appreciate that they could be forced to defend an action arising from such a transaction in a U.S. court. That is what...more

Still No “Free House” in Florida – Florida Supreme Court Denies Motions for Rehearing in Bartram

On March 16, 2017, the Florida Supreme Court solidified the position of its November 3, 2016 opinion in Bartram v. U.S. Bank, N.A., SC14-1266, 2016 WL 6538647 by denying the motions for rehearing filed in response to the...more

Tennessee's Bankers to CFPB: "Regulation by Enforcement" Concerns Loom Large

The conference room was filled to capacity as bank presidents, chief compliance officers and lending executives sat in a U shape, facing the two speakers. A fissure of tension hung in the room and the audience looked...more

South Carolina Consumer Finance Division Issues Guidance on Attorney/Insurance Agent Preference Requirements

On February 27, 2017, the South Carolina Board of Financial Institutions, Consumer Finance Division issued guidance on the attorney and insurance agent borrower preference requirements, which require a creditor to ascertain...more

2016-2017 Arizona Case Law and Legislative Developments Affecting Commercial Real Estate and Lending

Pending Arizona Legislation – GPLET Transactions - House Bill 2213, which recently passed the Arizona House by a 50-9 margin, would impose a number of restrictions on Arizona’s GPLET program. The GPLET statute was...more

Can a Lender’s Failure to Provide a Promised Refinancing be an Unfair or Deceptive Trade Practice?

When a borrower asserts an alleged violation of N.C. Gen. Stat. § 75-1.1 against a lender, the claim often presents a familiar fact pattern. Frequently, the borrower alleges that the lender promised to refinance or modify the...more

U.S. Bankruptcy Court Reminds Us to “Get the Note” or File a Financing Statement

In a recent opinion, the U.S. Bankruptcy Court for the District of Oregon reminds all finance lawyers (and participants trying to document a finance transaction without legal assistance) that recording an “assignment” of a...more

Take It or Leave It

The Tennessee Court of Appeals recently found that a “take or leave it offer” extended by a lender to a borrower experiencing financial difficulty was not duress. SK Food Corp., et al. v. FirstBank, No....more

Fourth Circuit Hands Victory to Lenders in Chapter 13 Mortgage Case

The United States Court of Appeals for the Fourth Circuit—which covers federal courts in North Carolina—recently handed a victory to residential real estate lenders dealing with borrowers who file for Chapter 13 bankruptcy...more

RESPA Two-Step: CFPB Shows Continued Expansive Interpretation of Section 8

On January 31, 2017, the Consumer Financial Protection Bureau (“CFPB”) announced a Consent Order (“Order”) with Prospect Mortgage LLC and certain of its affiliates (“Lender”). The CFPB alleged in the Order widespread...more

Arizona Supreme Court Holds a Credit Bid at a Trustee’s Sale Should Not be Credited to a Title Insurer Under a Standard Lender’s...

The Arizona Supreme Court recently addressed what impact, if any, a lender’s credit bid at an Arizona trustee’s sale has on an insurer’s liability under Sections 2, 7 and 9 of the standard’s lender’s title policy (“Policy”),...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

NY Proposed Budget Would Expand NYDFS Authority over FinTech Lending Companies

Lender license requirements recently included in the New York governor’s proposed 2017-2018 budget would expand the jurisdiction of the New York State Department of Financial Services (NYDFS) to cover many financial...more

The Devil's Dictionary of Bankruptcy Terms: Venue

The "Devil's Dictionary" is a quick-reference guide for commercial lenders and other restructuring professionals. In this series, we highlight many of the buzz words found in the Dictionary and used in today's bankruptcy...more

Court Rejects Lender’s Objection to Payment of Debtor’s Counsel’s Fees and Expenses from Pre-Petition Retainer

In a decision rendered on December 30, 2016, the bankruptcy court for the Southern District of Florida (the “Court”) addressed the debtor’s counsel’s interim application for an award of fees and expenses for services rendered...more

Security interests in the UK Capacity Market: new rules

Lenders and capacity providers in the UK’s Capacity Market will want to take note of new procedures introduced by National Grid in its role as the Capacity Market’s Delivery Body. The Capacity Market aims to incentivise...more

Financial Services Weekly News - February 2017 #3

Editor's Note - A Not So New Tool for Reigning in Federal Regulations. President Trump has signed a Joint Resolution of Congress which “disapproves the rule submitted by the SEC relating to ‘Disclosure of Payments by...more

NY Licensing Proposal Threatens New Burdens on Financial Services Providers, Reduced Credit Availability

Proposed legislation to implement New York Governor Andrew Cuomo's 2018 Fiscal Year Executive Budget would amend the New York Licensed Lender Law to significantly extend its licensing requirements. The proposal threatens to...more

Understanding Agreements among Lenders: How the Unitranche Differs from an Intercreditor Agreement

When seeking a loan, borrowers require both good financial terms and an efficient closing process. Unitranche facilities help accomplish both goals by combining a senior/first lien credit facility with a junior/second lien...more

Southern District of New York holds that intercreditor agreement allows for payment of subordinated lender’s post-petition...

On January 27, 2017, the United States District Court for the Southern District of New York ruled that the subordinated creditor was entitled to payment of post-petition interest prior to repayment of the senior lender’s...more

Implied terms: Lord Neuberger's Cardinal Rule Applied

In IBRC v Camden, the Court of Appeal held that a lender's express contractual power to market a loan was not subject to an implied limitation that doing so should not interfere with the borrower's ability to obtain the best...more

Financial Services Weekly News - February 2017 #2

Editor's Note - No Short-Term Fixes. On February 3, President Trump signed an Executive Order and a Presidential Memorandum intended to provide a framework to “roll back” the Dodd-Frank Act (Dodd-Frank) and to review the...more

Appellate Court Restores Lis Pendens Protections in Do-Ober Decision

The tides have turned in Ober v. Town of Lauderdale-By-The-Sea as the Fourth District Court of Appeal recently reversed its decision and revived the full impact of Florida’s lis pendens statute. By withdrawing and replacing...more

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Cybersecurity

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