Clarks' Secured Transactions Monthly

  • June 25, 2020

    Oil And Gas Loans: Some Best Practices For Troubled Times

    Over the years, this newsletter and the related book, Clarks’ Oil and Gas Financing Under the UCC, have emphasized the volatile, cyclical nature of oil and gas commodity prices and the challenges banks face when lending to the oil and gas industry. But even by the standards of an industry used to boom and bust cycles, volatility in the oil commodity markets has been unprecedented in recent weeks.

  • June 25, 2020

    Legal Malpractice And Failure To File UCC Continuation Statements: Dealing With The Duties Imposed By The GA High Court 16 Years Later

    Sixteen years ago, the Supreme Court of Georgia handed down a legal malpractice decision reading into the law an attorney’s duty to file a UCC continuation statement (UCC-3) in a transactional financing deal where loan payments extended beyond the original five-year effective period of the original financing statement (UCC-1). At the time of the closing, the defendant attorney did not inform his client about the UCC’s lapse rules and need to file a UCC-3.

  • June 24, 2020

    COVID-19: Lawsuit Alleges Bait-And-Switch By Treasury, SBA In Loan Elgibility Guidance Adding To The Confusion Over PPP Forgiveness Rules

    Loan forgiveness is one of the driving forces attracting borrowers to the Payroll Protection Program (PPP) passed by Congress under the CARES Act. To date, the rules governing loan forgiveness are murky at best.

  • June 05, 2020

    COVID-19: Fed Expands Municipal Liquidity Facility; Is Amending The US Bankruptcy Code Another Viable Tool?

    The Board of Governors of the Federal Reserve Board (FRB) will offer up to $500 billion in lending to states and municipalities to help manage cash flow shortfalls created by the coronavirus pandemic. This new credit facility extends and expands the Municipal Liquidity Facility (MLF) announced by the FRB in early April 2020.

  • June 05, 2020

    COVID-19: Exercise Due Diligence To Safegaurd Business Interruption Insurance Payments

    A hot topic for financial institutions during the COVID-19 crisis is how to protect their right to insurance payments under business interruption insurance policies. In these COVID-19 times, Financial Institutions (FIs) commonly have relationships on both the depository and lending sides with their commercial customers who may be piling up fees on depository accounts and be in arrears on loan payments. Bank customers, on the other hand, may be looking to shield payments from their creditors.

  • June 05, 2020

    Wire Transfers & Account Takeovers: Illinois Court Reads “Bank” Broadly To Include Futures Commission Merchants Under UCC 4A

    In a case of first impression, the Supreme Court of Illinois (Illinois Supreme Court) held a Futures Commission Merchant (FCM) to be a “bank” under the wire transfer rules found in Article 4A of the Uniform Commercial Code (UCC). The defendant is Wedbush Securities, Inc. (Wedbush Securities). The fraudsters infiltrated the plaintiffs’ email system and successfully tricked Wedbush Securities into honoring fraudulent payment orders.

  • May 18, 2020

    Challenge To BofA’s Gating Policy On SBA Paycheck Protection Program Pending Before The 4th Circuit

    Bank of America successfully defeated a series of judicial maneuvers by a putative class of small businesses. The plaintiffs seek an order mandating the bank to open its lending doors under the Payroll Protection Program of the CARES Act to small businesses who lack preexisting depository and credit borrowing relationships with BofA. Significantly, the Maryland federal district declined to read a private right of action into the CARES Act. An appeal is pending before the United States Court of Appeals for the Fourth Circuit.

  • May 18, 2020

    Case Law Stands Firm Granting Priority To Judgment Creditor As “Transferee” Of Funds In The Debtor’s Deposit Account

    If a debtor has granted a consensual security interest in the funds in its deposit account to a secured lender, does the lender have priority over the claims of a judgment creditor who later levies against the funds in the deposit account? One leading decision is a 2016 case from a California federal district court. The court gives priority to the judgment creditor under the rules of Article 9. The decision thoughtfully resolves the priority issue based on the language and policies behind UCC 9-332(b). More recent case law stands firmly behind the California case.

  • May 18, 2020

    Set-Off Against Treasury Stimulus Checks Is Lawful But Not All Banks Are Going There: What Are The Basics To Consider?

    CARES ACT stimulus payments from the Treasury are reaching deposit accounts at U.S. financial institutions throughout the country. The $2.2 trillion legislation authorized these payments to help mitigate the economic hardships individuals are facing as a result of the coronavirus crisis.

  • May 05, 2020

    Factoring Of Structured Settlements; The Basics And Troublesome Issues

    Nature of structured settlements. This is the era of structured tort settlements and lottery prizes. Some beneficiaries of these streams of payment do not want to take payments over years, but want to cash out immediately. These consumer products are widely advertised on television. We’ve analyzed these issues before in this newsletter and in our treatise. But, now is a good time to revisit the legal rules governing structured settlements.

  • May 05, 2020

    A Quick Look At Continuation Statements And The “Retroactive Lapse” Principle

    The law governing UCC continuation statements is pretty straight-forward. Let’s take a quick look at the rules governing continuation statements. This is an area that has generated little litigation. The biggest issue involves “retroactive lapse” if the secured lender fails to comply with the Article 9 rules after the debtor has taken bankruptcy.

  • May 05, 2020

    Mistaken Termination Statements Can Wipe Out Security Interests

    In recent years, we have observed the remarkable fallout of the GM bankruptcy, including the titanic battle between secured and unsecured creditors arising out of a mistaken termination statement that related to the wrong loan. Another notable case wipes out the security interest of a small community bank resulting from a mistaken termination statement.

  • May 05, 2020

    FDIC Releases Answers For Bank Lenders To Key Questions Relating To The COVID-19 Crisis

    In conjunction with its launch of the small business loan program, the FDIC provided financial institutions with answers to fundamental questions relating to working with borrowers affected by the COVID-19 outbreak and also answers to operational questions facing financial institutions arising from the COVID-19 crisis. The questions and answers are found on the FDIC’s website at www.fdic/gov. Here we report on the FDIC’s release dated March 19, 2020, the first iteration made available.

  • March 24, 2020

    North Carolina Court Rules That Secured Lender Failed To Include Granting Language In Security Agreement

    In a recent bankruptcy court decision from North Carolina, a secured lender was wiped out because it never obtained a security agreement that included a grant of a security interest by the debtor to the secured party (not just an affiliate). In In re Jarvis, 2020 Bankr. LEXIS 19 (Bankr. W.D. N.C. January 2, 2020), the debtor, Jacob Jarvis, sought to exercise his role as a hypothetical lien creditor under Section 544 of the Bankruptcy Code. Because the secured creditor did not have a security agreement which ran to it and contained a grant of a security interest, the debtor was able to avoid the creditor’s security interest under the strongarm clause.

  • March 24, 2020

    Trac Equipment Leases

    In general. The proper characterization of the transaction is crucial for at least two purposes: If a true lease is involved, (1) the lessor need not file a UCC financing statement and (2) if the debtor files bankruptcy, the trustee must assume or reject the lease, without imposing cramdown on the lessor. In recent years, most of the litigation has occurred in the bankruptcy courts, with a focus on the right of the purported lessor to recover the equipment unless the trustee assumes the lease obligations in full under the Bankruptcy Code, 11 USC 365. In a significant decision, an Alabama bankruptcy court was unwilling to recharacterize a TRAC (“terminal rental adjustment clause”) equipment lease as a disguised secured transaction for purposes of 11 USC 365.

  • March 24, 2020

    Status Report: Amending The UCC To Accommodate Emerging Technologies In Payments

    A study committee, formed by the Uniform Law Commission and the American Law Institute, has embarked on the most ambitious and extensive revision project in the 60-year history of the Uniform Commercial Code. Intended to bring the UCC more fully into the digital age, the scope of the study covers all articles of the Code.

  • March 10, 2020

    Compliance With The Fair Credit Reporting Act

    While efforts continue to eliminate the Consumer Financial Protection Bureau (CFPB), as explained by Matthew Clark in our prior story, the controversial federal agency has been shifting its enforcement efforts from ruling by individual cases and administrative rule-making to broader supervision of the industry players and a “kinder, gentler” regulatory environment. In December 2019, the CFPB published a white paper entitled “Supervisory Highlights/ Consumer Reporting Special Edition.” The Special Edition sets forth a number of compliance issues that continue to arise, particularly in the home mortgage market, the consumer auto loan market, and the consumer deposit relationship. The purpose of this newsletter story is to summarize the agency’s supervisory findings and to serve as a compliance guideline for players in the consumer credit reporting arena.

  • March 10, 2020

    Will The CFPB Survive The Challenge To Its Constitutionality?

    From even before its creation, the Consumer Financial Protection Bureau, with its single, all-powerful director who the President can only remove for cause, has been controversial. See July 2010 Clarks’ Secured Transactions Monthly, “Special Report: Powerful Consumer Protection Bureau Is Centerpiece of New Financial Reform Law.” Despite longstanding concerns about the CFPB, it was not until October 18th of last year that the Supreme Court had the opportunity to grant a certiorari petition challenging the CFPB’s constitutionality. Unfortunately, it is far from certain whether that case, Seila Law LLC v. Consumer Financial Protection Bureau, will actually result in a ruling on the constitutionality of the CFPB’s structure. Come March 3, when the Court hears oral argument, we should have some insight into whether the Court will reach the merits of the Seila Law challenge or save consideration of the CFPB’s constitutionality for another day.

  • February 04, 2020

    Secured Lender’s Failure To Indicate Individual Debtor’s Driver’s License Name On The Financing Statement Is Fatal

    In 2010, Article 9 of the UCC was amended to require financing statements of individual debtors to reflect the precise name of an individual debtor as found on his or her driver’s license. Failure to comply renders the security interest unperfected and voidable by a trustee in bankruptcy. That’s what happened in a recent bankruptcy case from Kansas. We think the case was correctly decided.

  • February 04, 2020

    Lockbox Arrangements Under The UCC

    Accounts receivable financing can be done in a great variety of ways. The most typical pattern is a loan to the assignor secured by accounts on a “nonnotification” basis, where the account debtors make payments to the assignor until notified of the assignment following the assignor’s default. Once notified to deflect payments to the secured lender, the account debtors get into big trouble if they continue to pay the assignor. The other end of the spectrum is a classic factoring arrangement, where the accounts are sold at a discount to the secured lender, and the account debtors are notified up front to make all their payments directly to the lender.