Section 4-9-513 of the Colorado Uniform Commercial Code (UCC) provides that "a secured party shall cause the secured party of record for a financing statement to file a termination statement . . . within one month after there is no obligation secured by the collateral covered by the financing statement and no commitment to make an advance . . . ."  Simply stated, when a secured obligation is paid and there is no commitment to make an advance, the secured party is obligated to file a termination statement. 

The U.S. Court of Appeals for the Seventh Circuit held on Aug. 26, 2013 that an investment manager’s “failure to keep client funds properly segregated” and subsequent pledge of those funds “to secure an overnight loan” to stay in business may have constituted: (a) a fraudulent transfer to the lender; and (b) grounds for equitably subordinating the lender’s $312 million secured claim. In re Sentinel Management Group, Inc., 2013 WL 4505152, *1 (7th Cir. Aug. 26, 2013) (“Sentinel II”).

Commercial Finance

The U.S. Court of Appeals for the Fifth Circuit held on August 5 that a secured lender’s disputed “lien on [the debtor’s] principal asset survived . . . confirmation of [the debtor’s] Chapter 11 . . . reorganization plan” because the lender had not participated in the bankruptcy case.S. White Transportation, Inc. v. Acceptance Loan Co., 2013 WL 3983343, *1,*3 (5th Cir. Aug. 5, 2013). Had the lender participated in the case, the court reasoned, its lien might have been avoided.Id., at *1, citingIn re Ahern Enterprises, Inc., 507 F.3d 817, 822 (5th Cir.

Over the next few years, a significant number of distressed bank-holding companies will face the end of interestdeferral periods and the prospect of payment defaults on certain debt instruments and trust-preferred securities. The looming obligations to repay deferred interest may escalate the need for financial restructuring at these holding companies and may create attractive opportunities for investors to recapitalize or acquire their subsidiary banks, including in a bankruptcy scenario.

Fall-out from the subprime and Alt-A mortgage crisis continued recently with court approval of a multi-million dollar settlement of a lawsuit filed against former top officers of what had been one of the country’s leading subprime lenders before its bankruptcy in January 2008.

Georgia court rejects “replacement lien” as adequate protection.

A federal district court in Georgia recently ruled that a financial institution creditor in a Chapter 11 case had separate, distinct security interests in both the rental property on which it had accepted a mortgage and that property’s rental income by virtue of an assignment of rents from the debtor.

• FCCPA: lender may offset judgment for violations of FCCPA against amounts owing on pre-petition bankruptcy claim - In re Claudia Acosta-Garriga, No. 8:12-cv-00731-SDM (M.D. Fla.

In re Castleton Plaza, LP,___F.3d__, 2013 WL 537269 (7th Cir. Feb. 14, 2013)

CASE SNAPSHOT

On June 10th, the FDIC published the final rule establishing the criteria for determining if a company is predominantly engaged in "activities that are financial in nature or incidental thereto" for purposes of Title II of the Dodd-Frank Act and therefore subject to the FDIC's orderly liquidation authority.