News & Analysis as of

Guarantors

The Enforceability of Waiver of Defense Provisions in Guaranty Agreements

by Stinson Leonard Street on

It has been said that a guarantor is a fool with a pen. Even the Bible warns, "whoever puts up security for a stranger will surely suffer, but whoever refuses to shake hands in pledge is safe." Proverbs 11:15, NIV. That...more

CFPB files amicus brief in Eleventh Circuit ECOA case

by Ballard Spahr LLP on

The CFPB has filed an amicus brief in Regions Bank v. Legal Outsource PA, a case on appeal to the Eleventh Circuit that involves two important issues under the Equal Credit Opportunity Act (ECOA): whether the ECOA provides a...more

Africa Focus: Sub-Saharan African power projects - Credit support and enhancement

by White & Case LLP on

Counterparty credit risk continues to remain a key, often threshold concern for private sector sponsors and lenders to the majority of power projects in sub-Saharan Africa. Structuring power projects in an effort to overcome...more

The Slow Demise Of California’s Sham Guaranty Defense

by Weintraub Tobin on

The California Court of Appeal decision in LSREF2 Clover Property 4, LLC v. Festival Retail Fund 1, LP (2016) 3 Cal.App.5th 1067, struck another blow to California’s “sham guaranty” defense – highlighting a recent string of...more

Client Alert: North Carolina Court of Appeals Issues Important Opinion on Commercial Lease Guaranties

Is a personal guaranty a separate agreement from the underlying contract it guarantees? The North Carolina Court of Appeals recently considered this issue in Friday Investments, LLC v. Bally Total Fitness of the...more

Real Estate Finance: Massachusetts

by WilmerHale on

A Q&A guide to real estate finance law for borrowers and lenders in Massachusetts. This Q&A addresses state laws relating to security instruments, usury laws, limitations on personal liability, recording requirements and...more

Creditors not obliged to protect security interest by taking step in foreign insolvency proceedings

by Allen & Overy LLP on

A borrower and a guarantor had no realistic prospect of successfully arguing that their obligations to repay a loan had been discharged due to a secured creditor’s failure to take steps to protect its security interest under...more

Recent Arizona Commercial Law Cases

by Snell & Wilmer on

Over the last few months there have been several significant commercial law cases in Arizona. These have included four Court of Appeals and three Supreme Court cases, each addressing common loan document provisions and...more

Startup Real Estate Tip: The 'Good Guy' Guaranty - Slow Down a Second

by JD Supra Perspectives on

If you are contemplating agreeing to execute a good guy guaranty, you must both be in control and be totally immune from being fired. Otherwise...more

Georgia Supreme Court Weighs in On Guarantor Liability for Deficiencies

by Bryan Cave on

On April 17, 2017, the Supreme Court of Georgia made yet another critical decision in a line of cases which together, create the framework for a guarantor’s liability for a deficiency after a foreclosure has been conducted....more

If At First You Don’t Succeed - Georgia Supreme Court Upholds Waiver of Confirmation After Prior Confirmation Action Denied

On April 17, 2017, the Supreme Court of Georgia found that defendant guarantors had waived the statutory protections under the Georgia foreclosure confirmation statute, and the lender could pursue a deficiency judgment...more

Knowledge Of Loan Extensions Precludes Exoneration

by Allen Matkins on

The California Civil Code devotes several sections to the subject of the exoneration of sureties. Section 2819, for example, intones...more

Actually, Hotel Franchise Agreements Are Negotiable

There is a widespread assumption that brand franchise agreements are not negotiable. This assumption is so prevalent that many real estate investors will devote substantial effort to negotiating the terms of a hotel purchase...more

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

by Dorsey & Whitney LLP on

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...

by Burr & Forman on

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.

by King & Spalding on

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!

by Ward and Smith, P.A. on

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

by Bryan Cave on

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

by Proskauer Rose LLP on

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

by White & Case LLP on

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.

by White & Case LLP on

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

by Arnall Golden Gregory LLP on

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

by Nexsen Pruet, PLLC on

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

by Ward and Smith, P.A. on

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

by Ervin Cohen & Jessup LLP on

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

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