Can another vain attempt to mitigate a $1.5 billion mistake provide the occasion for a thorough review of the doctrine of earmarking? It did for Southern District Bankruptcy Judge Martin Glenn in the long tail on the General Motors bankruptcy case.

There is nothing quite like obtaining a new customer or getting a new big sale - the prospect of recurring revenue from a new source, the validation of business strategy, or the culmination of a successful negotiation.

However, there is nothing more disheartening than when a new customer is unable or unwilling to pay forthe product you just shipped or services you just provided. Perhaps there is one thing that is worse, when a long-term customer fails to pay.

I have been reading Storm Lake, a book by Art Cullen, the editor of the Storm Lake (Iowa) Times and a 2017 Pulitzer Prize winner for editorial writing. In his book, Cullen chronicles the ways that agriculture and his hometown of Storm Lake have been transformed over the years. What strikes me most about the book is how the business cycles of boom and bust still exist in agriculture today and are little changed from when I was growing up on a farm in Iowa decades ago. It appears that we are in or entering a new bust cycle in production agriculture.

Welcome to Part II of our series on the servicing of discharged mortgage debt (catch up on Part I). This part will discuss communications to discharged borrowers and evaluate various disclaimers that can be utilized.

Several high profile bankruptcies have occurred in recent years. Most would consider a bankruptcy proceeding a last resort. But some, seeking to expunge a debt, have contemplated that bankruptcy may be a safe way to avoid the long-arm of the law. The Federal Trade Commission, however, has taken great steps to ensure that an FTC judgment firmly stays on a wrongdoer’s balance sheet.

Tolstoy warned that “if you look for perfection, you’ll never be content”; but Tolstoy wasn’t a bankruptcy lawyer. In the world of secured lending, perfection is paramount. A secured lender that has not properly perfected its lien can lose its collateral and end up with unsecured status if its borrower files bankruptcy.

We are all accustomed to seeing change of control as a mandatory prepayment event, if not an event of default, under subscription line facilities. Even the strongest sponsors accept that a lender’s analysis of a transaction is based on the current management of the fund, such that any change in control should trigger at least the right to prepayment and cancellation. While there are often points for negotiation, this premise is almost universal.

The U.S. Court of Appeals for the Eighth Circuit recently affirmed a trial court judgment holding a bank and its principal in contempt and sanctioning them for violating a bankruptcy discharge injunction, based on the findings in a parallel state court proceeding.

In so ruling, the Eighth Circuit held that the state court judgment did not preclude the bankruptcy court’s ability to enforce its own orders.

The Bankruptcy Code (“Code”) permits “a creditor [to] assert an unsecured claim for post-[bankruptcy] attorneys’ fees based on a pre-[bankruptcy] promissory note,” held the U.S. Court of Appeals for the Fourth Circuit on Feb. 8, 2019. SummitBridge Nat’l Investments III, LLC v. Faison, 2019 WL 490573, *2 (4th Cir. Feb. 8, 2019). In a sensible opinion, the Fourth Circuit reversed the lower courts’ disallowance of an undersecured lender’s claim for legal fees. The court thus “join[ed] other federal courts of appeals” with its holding. Id.

Below are summaries of the noteworthy decisions, laws and requirements impacting the commercial lending industry which occurred or took effect in 2018. Please feel free to contact us for additional information or details on any of the items listed below and/or to discuss whether updates to your loan documents may be needed to address the same.

1. New, Improved Rules for High Volatility Real Estate Loans