In today’s lending climate, confession of judgment provisions (“COJ Provisions”) have become a fact of life for the Virginia banker.  Indeed, as troubled loans become more prevalent, a properly drafted COJ Provision can often be a creditor’s best friend.  No longer can we afford to lump COJ Provisions into that fuzzy “boilerplate” category that we so easily gloss over.  More and more bankers are coming to the realization that a COJ Provision is one of the most powerful tools a creditor can have against a defaulting debtor. 

On September 7, 2011, the FDIC announced the launch of a new initiative aimed at encouraging small investors and asset managers to partner with larger investors to participate in the FDIC’s structured transaction sales of assets from failed institutions.

On November 25, a notice of proposed rulemaking was published jointly by the Federal Deposit Insurance Corporation (the FDIC) and the Departmental Offices of the Department of the Treasury (the Treasury, and collectively, the Agencies) to implement applicable provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act). In accordance with the requirements of the Dodd-Frank Act, the proposed rules govern the calculation of the maximum obligation limitation (MOL), as specified in section 210(n)(6) of the Dodd-Frank Act.

The case of In re Dickson, 655 F.3d 585 (6th Cir. 2011) centered on the status of the debtor’s manufactured home under Kentucky law.  In Kentucky, a manufactured home is considered personal property.  As such, in order for a lien to be effective, it must be noted on the certificate of title.  A manufactured home may be converted to real property, however, if the owner files an affidavit that states it is permanently affixed to real estate and then surrenders title.

Irving Picard's lawsuit against JPMorgan Chase & Co. styled Picard v. JPMorgan Chase & Co., 11-cv-913, in the U.S. District Court, Southern District of New York, was dismissed on November 1, 2011.  U.S.

A number of activities of potential significance have occurred in the implementation of the Dodd-Frank Act:

Surplus Lines Regulation:

Introduction

Earlier this month, the Liquidating Trust in the Advanta Corp. bankruptcy proceeding began filing preference complaints in the Delaware Bankruptcy Court.  Advanta and certain affiliates ("Advanta") filed for bankruptcy in Delaware in November of 2009.  As stated in the Liquidating Trust's complaints, Advanta was at one time one of the largest issuers of "business purpose credit cards" in the United States. 

Background

On October 20, 2011, the Director of the Arizona Department of Insurance filed a Complaint to place PMI Mortgage Insurance Company (PMI) into receivership in Arizona. In an interim Order, the court required the director, as Receiver, to take possession and control of PMI, which had been under the formal supervision of the insurance department since August 19, 2011. The court also directed that certain related affiliates of PMI be placed under administrative supervision.

Whittle Development, Inc. v. Branch Banking & Trust Co.

Judge Buchwald of the U.S.