News & Analysis as of

Lenders to SPEs: Be Aware, You May Not Have Standing to Appeal a Substantive Consolidation Order

A substantive non-consolidation opinion is a common feature of structured finance transactions in the U.S. Most, if not all, opine as to what a bankruptcy court would do, but express no opinion on the appellate process. We...more

Title Insurance: What is its Value?

As I type this blog post, I am sitting at my desk with a four-inch-thick binder filled with title insurance forms—form policies, form endorsements, premium rate tables, survey requirements, etc.—and it occurs to me that many...more

Receivables Based Lenders Beware

Lenders frequently enter into loans secured by accounts receivables and/or chattel paper. A security agreement is signed, and the lender files a UCC financing statement, “putting the world on notice” of its security interest...more

Resolving Shopping Center Foreclosures in Florida - Considerations for Lenders

Shopping centers in Florida—and across the country—are increasingly facing financial stress due to factors such as Internet commerce and rent pressures. Rents generated from a shopping center are usually pledged as...more

D&Os – Be Aware of Creditor Exclusion in Your Insurance Coverage

The U.S. Court of Appeals for the Fifth Circuit recently held that a Creditor Exclusion provision in D&O insurance coverage may result in significant limitations on the coverage provided to the D&Os, when the underlying...more

Pennsylvania Lawmakers Fix Pennsylvania Lawmakers Drafting Errors

On Tuesday, Gov. Tom Wolf signed Act 103 of 2016 (HB665) into law, which changes Pennsylvania’s power of attorney law by excluding commercial transactions from certain provisions of the law. According to the original...more

Orrick's Financial Industry Week in Review

Financial Industry Developments - Rejecting "True Lender" Arguments, California District Court Dismisses Claims Against Student Loan Servicers - This past Thursday, September 22, a federal district court in the...more

Banking & Financial Services E-Note - September 2016

In an article published in the September / October issue of Commercial Real Estate Investment Magazine, Drew Demers provides guidance on how commercial loans and bank-owned real estate sales have changed due to growth in...more

Rejecting "True Lender" Arguments, California District Court Dismisses Claims Against Student Loan Servicers

This past Thursday, September 22, a federal district court in the Central District of California dismissed an action raising usury claims against several student loan servicers, rejecting the plaintiffs' arguments based on...more

Surviving the Zombie [Foreclosure] Apocalypse

Preparing For A World When Lis Pendens Protections Are All But Ober - “BEWARE REAL PROPERTY LITIGATORS” warns a former chair of the Real Property, Probate and Trust Law Section of the Florida Bar. This advice, given...more

Refinancing loans and valuations

Liability for a negligent valuation relied upon by a lender in refinancing a pre existing loan facility would not be limited to any new funds advanced but extend to the entire refinanced facility. Had there not been a...more

New regulations on syndicated lending in Vietnam

From 30 June 2016, an amendment to the co-financing regulations requires the paying agent to be an onshore credit institution, “co-financing agreements” are now required to be entered into between the lenders for offshore...more

Equitable Subrogation Part Deux: Mechanic’s Lien vs. Later Bank Deed of Trust

This post follows, almost two years to the day, Rick Erickson’s post of August 29, 2014. As noted by Rick Erickson in his August 29, 2014 post, the Arizona Supreme Court in the Weitz case (2014) had determined that equitable...more

Regulators Publish Updates to CRA Guidance

The federal bank regulatory agencies adopted revisions to the interagency guidance on the Community Reinvestment Act, focusing on alternative systems for delivering retail banking services, innovative or flexible lending...more

4 Steps For Avoiding FCA Traps For SBA Lenders

Recent U.S. Department of Justice enforcement and qui tam suits demonstrate that Small Business Administration lenders face increasing risk of liability under the False Claims Act. This article provides an overview of SBA...more

Developments in Unitranche Financing (2016)

The increasing use of unitranche financing, both domestically and abroad, has created new opportunities for middle market loan participants. However, lenders must understand the legal issues and potential bankruptcy risks...more

CFPB Unveils New Loss Mitigation Principles for Lenders

With the end of the Department of Treasury’s Home Affordable Modification Program (HAMP) coming in January 2017, the Consumer Financial Protection Bureau (“CFPB”) has released a set of four principles for financial...more

In Conflict With Other Circuits, Seventh Circuit Rules That Certain Transfers Involving Financial Institution Intermediaries Not...

Section 546(e) of the bankruptcy code prohibits a bankruptcy trustee from avoiding “settlement payment[s]”, or payments “made in connection with a securities contract,” that are “made by or to (or for the benefit of)”...more

Court Affirms Electronic Notes are Enforceable in Florida

Recently, the District Court of Appeal for the Fourth District of Florida affirmed that electronic signatures are enforceable against a borrower in a foreclosure action. On April 1, 2008, two borrowers executed an electronic...more

Brexit: Brexit and loan agreements

Summary – the key things you need to know - - The Brexit vote is likely to have little immediate legal impact on most current finance agreements. It would be unlikely, for example, that a lender could call a typical...more

How to Balance Lender and Contractor Interests on Alternative Energy Construction Projects

Lenders who finance wind and solar farms often require the EPC contractor to consent to the developer’s assignment of the EPC Contract to the lender to secure the developer’s obligations under the loan documents. Such...more

Implications of Madden v. Midland Funding

In earlier client OnPoints, we have provided a comprehensive review of recent developments in the U.S. affecting the marketplace lending industry, including the potentially far-reaching Madden v. Midland Funding, LLC case...more

Deed of Trust Provisions Allowing Lenders/Servicers to Enter, Maintain, and Secure Encumbered Properties May be Unenforceable...

On July 7, 2016, the Supreme Court of the State of Washington issued its opinion in Jordan v. Nationstar Mortgage, LLC, which, prior to foreclosure, may prevent servicers from securing property after a default or, at least,...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

Careful Who You Trust. A Lender Can Be Liable For The Negligence And Misrepresentations Of Its Loan Servicers, Even Absent Any...

In the recent case of Daniels v. Select Portfolio Serving, Inc., the California Court of Appeal has held that a lender may be liable for the negligence and misrepresentations of the lender’s servicer, without any contractual...more

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