News Archive

Posted: March 24, 2015
Communications Committee:
Posted: March 24, 2015
Under Georgia law, a court that issues a judgment against an LLC member may also issue an order in the same case charging the member's LLC interest with payment of the judgment; the LLC need not be a party to the suit, and the judgment creditor need not establish that jurisdiction and venue over the LLC is proper.  Mahalo Invs. III, LLC v. First Citizens Bank & Trust Co., No. A14A1940, 2015 WL 687922 (Ga. Ct. App. Feb. 19, 2015).
Posted: March 24, 2015
Accounting firm that failed to uncover in audits conducted over eight year period that its client was not making required tax filings could be liable for breach of fiduciary duty.  Commscope Credit Union v. Butler & Burke, LLP, 764 S.E. 2d 642 (N.C. Ct. App. 2014).
Posted: March 24, 2015
Financial services firm owed no duty to clients of the firm's customer and was not liable in negligence for those clients' losses due to the customer's check kiting scheme using the customer's account at the firm; no private right of action exists under Bank Secrecy Act.  Bottom v. Bailey, 767 S.E. 2d 883 (N.C. Ct. 2014).
Posted: March 24, 2015
Under Florida law, the involuntary dismissal without prejudice of an initial foreclosure action did not "decelerate" lender's acceleration of the debt in the initial action and the statute of limitations continued to run, barring a second action brought after the expiration of the statute of limitations.  Deutsche Bank Trust Co. Ams. v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. Ct. App. Dec. 17, 2014).
Posted: March 24, 2015
Exception in release of claims for an identified securities option contract ineffective where option contract was never signed; express reference in the agreement to a nonexistent option contract did not create an ambiguity permitting parole evidence regarding the intended option and was treated as an unenforceable agreement to agree. North Am. Rescue Prods., Inc. v. Richardson, No. 27475, 2015 WL 80900 (S.C. Jan. 7, 2015).
Posted: March 24, 2015
Usury savings clause insufficient to save lenders from HOEPA disclosure violations, but may prevent liability for inadvertent violation of usury laws in connection with commercial loans.  Katline Realty Corp. v. Avedon, No. 3D13-22574292, 2014 WL 5654292, (Fla. Dist. Ct. App. Nov. 5, 2014).
Posted: March 24, 2015
A provision in a promissory note requiring payment of a fixed percentage as attorney's fees upon breach is enforceable under South Carolina law; South Carolina law governed enforceability analysis where note was accepted by lender in South Carolina.  PNC Bank Nat'l Ass'n v. GVTG, LLC, No. 14-11405, 2014 WL 5904740 (11th Cir. Nov. 14, 2014).
Posted: March 24, 2015
Virginia corporation avoided shareholder appraisal rights in asset sale by changing state of incorporation to Delaware.  Fisher v. Tails, Inc., 767 S.E. 2d 710 (Va. 2015).
Posted: March 24, 2015
Dispute over ownership of a loan agreement and promissory note did not alleviate Borrower's obligations, but creditors could not recover delinquency charges on lump sum of principal due to conflicting disclosures.  Turner v. Shared Towers VA, LLC 2014 N.H. LEXIS 144 (N.H. 2014)
Posted: March 24, 2015
Cash proceeds paid to Debtor under a commercial property insurance policy are excluded from the scope of the UCC for perfection purposes, and any perfection of such must occur under common law.  Wheeling & Lake Erie Ry. Co. v. Keach (In re Montreal, Me. & Atl. Ry., Ltd. 521 B.R. 703 (Bankr. D. Me., 2014).
Posted: March 24, 2015
Rhode Island Supreme Court invalidates all security securing usurious notes, holding that all security cross-collateralizing notes is invalid if even one note is usurious.  McGowan v. Potomac Realty Capital, LLC, 2014 R.I. Super. LEXIS 175 (Dec. 29, 2014).
Posted: February 25, 2015
On December 15, 2008, David L. Duckworth (the “Borrower”) obtained a loan from the State Bank of Toulon (“Bank”) in the amount of $1.1 million (the “Loan”).
Posted: February 25, 2015
McFarland State Bank (“McFarland”) acquired a loan portfolio (the “Portfolio”) with an unpaid balance of $4.42 million from Evergreen State Bank.  Subsequent thereto, McFarland put the Portfolio up for auction.
Posted: February 25, 2015
“Lender’s Nightmare” Leads Court to Find Borrower Liable under Non-recourse Loan
Posted: February 25, 2015
Expansive Trust Indenture Act Interpretation May Negatively Affect Bond Restructurings Marblegate Asset Mgmt. v. Educ. Mgmt. Corp., Case No. 14 Civ. 8584 (KPF), 2014 WL 7399041 (S.D.N.Y. Dec. 30, 2014)MeehanCombs Global Credit Opportunities Fund, LP v. Caesars Entm’t Corp., No. 14-CV-7091 SAS, 2015 WL 221055 (S.D.N.Y. Jan. 15, 2015).
Posted: February 25, 2015
The American College of Investment Counsel will be going back to the future at the 2015 Spring Investment Forum on April 30th and May 1st at the Four Seasons Hotel in Chicago.  The Co-Chairs for the Spring Investment Forum are Tricia Mundy (Sullivan & Worcester LLP) and Matt Gabrys (The Northwestern Mutual Life Insurance Company).  With assistance from the
Posted: January 28, 2015
Blair A. Nicholas – Partner, Bernstein Litowitz Berger & Grossmann LLP, San Diego, CA
Posted: January 28, 2015
Message from the President:Welcome 2015!  If my completely unscientific and random survey of colleagues has any statistical relevance, Q4 2014 was among the busiest we have all seen, and Q1 2015 seems to be following along on the same trend.These busy times make it all the more remarkable the amount of work accomplished by the volunteers of the College since our October meeting.
Posted: December 18, 2014
In KBA Canada, Inc v Supreme Graphics Limited (2014 BCCA 117), the British Columbia Court of Appeal (the "BCCA") prevented equitable considerations from overriding the statutory ranking of security interests in the Personal Property Security Act (British Columbia) (the "PPSA").
Posted: December 18, 2014
Singularis Holdings Limited v PWC [2014] UKPC 36Background and facts
Posted: December 18, 2014
In Orion Industries Ltd. (Trustee of) v Neil's General Contracting Ltd. (2013 ABCA 330), the Alberta Court of Appeal (the "ABCA") gave guidance on when a payment to a creditor on the eve of the debtor's bankruptcy will be void against the debtor's trustee in bankruptcy under the Bankruptcy and Insolvency Act (Canada) (the "BIA").
Posted: December 18, 2014
In Bhasin v Hrynew (2014 SCC 71), the Supreme Court of Canada (the "SCC") recognized a general duty of honesty in contractual performance which cannot be excluded by an entire agreement clause.Harish Bhasin ("Bhasin") marketed education savings plans for Canadian American Financial Corp. ("Can-Am"). The agreement governing the relation between Can-Am and Bhasin (the "Agreement") was for three years. The Agreement provided for automatic renewal after the three-year term, unless either party gave notice of non-renewal to the other party.

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