Articles

Jason Rodriguez authors “A Loophole Big Enough to be a Wormhole” for Lenders 360

Jason Rodriguez authors a blog at lenders360blog.com. Read the post below.

Like most bank defendants, Key Bank was looking for the quickest way out of a $5 million fraudulent transfer lawsuit brought by a chapter 7 Trustee. Rather than wait to win in the standard path of arguing facts, the bank relied on the broad and powerful “safe harbor” provision of the bankruptcy code which protects certain transfers from recovery. In doing so, the bank utilized a technical, but effective, argument to avoid the need for trial and simply exit the case where it entered…

Click to read more.

Jason Rodriguez authors “The Long Arm of the FDIC is Even Longer After Recent 5th Circuit Extends the Extender Statute” for Lenders 360

Jason Rodriguez authors a blog at lenders360blog.com. Read the post below.

One of the many tools of the FDIC in resolving failed banks is the Extender Statute which, by its terms, replaces existing statutes of limitation under state law by a period of years. In simple terms, the Extender Statute creates a longer statute of limitations for bringing a lawsuit on behalf of the now defunct bank. The technical nature, and the amount in contest has led some defendants in FDIC lawsuits to argue that the Extender Statute of 12 U.S.C § 1821(d)(14) applies only to statutes of limitation, and not to statutes of repose. This argument has recently been declined in the 5th Circuit and, in doing so the 5th Circuit has allowed lawsuits against RBS Securities, Deutsche Bank Securities and Goldman Sachs with damages of almost a billion dollars to proceed despite state law…

Click to read more.

Stuart Lautin authors “Deed Reformation” for Counsel’s Corner

Stuart Lautin authors a regular column, Counsel’s Corner, for the North Texas Commercial Association of REALTOR’S® and Real Estate Professionals website.

The latest column is entitled “Deed Reformation” and discusses the court’s holding in Barbara Cosgrove v. Michael Cade and Billie Cade; Cause No. 14-0346; Texas Supreme Court; July 20, 2015.

Click to read more.

Jason Rodriguez authors “Sometimes Your Collateral is Source Code, which is Actually Nothing” for Lenders 360

Jason Rodriguez authors a blog at lenders360blog.com. Read the post below.

We are well out of the .com bubble, but tech companies still form and fail. For the lenders brave enough to lend to the tech companies developing software, the collateral is often the source code which is the nuts and bolts of an application or “app”. While the source code is actually a written text written in some development code, it exists in the abstract and is thus an intangible in that sense. However, unlike most collateral intangibles, this type often requires the original developer to make the source code worth anything more than a line item on a security agreement…

Click to read more.

Jason Rodriguez authors “A Lender’s First Line of Defense May be the Debtor’s Own Chapter 11 Plan” for Lenders 360

Jason Rodriguez authors a blog at lenders360blog.com. Read the post below.

On occasion I have thought that a chapter 11 bankruptcy case is somewhat analogous to a trip on a plane in a few ways. Among other analogous events, consider checking a bag and then forgetting to pick it up on the conveyor belt after the flight lands. It would be easy enough to do – as the bag is riding in the cargo hold, perhaps it was simply forgotten. If that has ever happened to you, it’s likely you went back to pick up the bag from the airport. On the other hand, in a chapter 11 bankruptcy case, if the debtor-in-possession doesn’t pick up all of its assets when it exits bankruptcy, it will lose them forever…

Click to read more.

Jason Rodriguez authors “PWC Escapes MF Global, Inc. Class Action Suit Claiming In Pari Delicto” for Lenders 360

Jason Rodriguez authors a blog at lenders360blog.com. Read the post below.

I have been told that in a traffic jam ambulance drivers are taught to move to the first opening available in traffic and figure out where to go after that.  Sometimes legal strategy takes that same philosophy.  In a recent 2nd Circuit Case, PriceWaterhouseCoopers, LLP (“PwC”) asserted in pari delicto to avoid immediate liability in a MF Global, Inc. (“MF Global”) related lawsuit.  What happens next, I assume has already been figured out by their very capable lawyers…

Click to read more.

Jason Rodriguez authors “Make Whole Provisions: the Need to Aggressively Walk Back Aggressive Collection Provisions” for Lenders 360

Jason Rodriguez authors a blog at lenders360blog.com. Read the post below.

Unexpected things happen in bankruptcy. Some debts can be restructured, some debts can be reduced and some debts the debtor is just stuck with. In contrast, outside of the bankruptcy ecosystem, economic interests are treated normally. Because of the difference, a creditor’s activities for recovery in bankruptcy will, at times, seem at odds with their economic interests if viewed through the lens of a normal collection matter…

Click to read more.