Register Now for "A Lender's Guide to Agricultural Defaults" Webinar - September 28

Between natural disasters and tariffs, farmers and their crops are being squeezed. What does that mean for the loans that lenders have made?

Join Baker Donelson attorneys Zach Bancroft and Gary Barnes for an in-depth review of the unique issues that arise when an agricultural loan defaults or goes into bankruptcy. Attendees will learn the ways that agricultural loans differ from traditional real estate deals, things to consider when an agricultural loan hits your desk, and how to maximize value and return on defaulted agricultural loans. (more…)

Get Ready to Comply: Employers Must Use New FCRA Model Disclosure Form by September 21, 2018

Under an interim final rule issued on September 12, 2018, the Consumer Financial Protection Bureau (CFBP) has issued a new model disclosure form that employers and background check companies are required to use, effective September 21, 2018. The new form contains a “security freeze right” notice that must be provided to individuals as a part of Fair Credit Reporting Act (FCRA) disclosures. Failure to provide the disclosure form as required when conducting background checks can land employers in hot water, including class action litigation.

The Consumer Financial Protection Bureau (CFPB) has issued its final rule adopting changes to Regulation P, which governs the requirements for financial institutions to issue privacy notices to its customers. The final rule implements new timing requirements for sending annual privacy notices pertaining to financial institutions who no longer qualify for the exception and eliminates the “alternative delivery” option for annual privacy notices. The most significant impact of the final rule is the creation of an exception which permits financial institutions to avoid sending annual privacy notices to its customers under certain circumstances. (more…)

Multiple draw and revolving loan lenders and counsel can find three important lessons in the 84 page trial ruling after eight years of litigation, three federal judges, and more than five interesting opinions. See Weisfelner, Trustee v. Blavatnik (In re Lyondell Chem. Co.), 567 B.R. 55 (Bankr. S.D.N.Y. 2017). First, the conditions precedent to further funding should be independent, robust, and not a simple absence of a Default (or a circumstance that with notice or passage of time would be a Default). Second, at least for this company and this loan document, a financial decline into insolvency was not a material adverse change, so keep the concepts separate in both the conditions to funding and the Events of Default. Consider defining a material adverse change to include the fall into insolvency. Third, a contractual limitation on damages in a loan agreement should give some comfort in declining a borrower’s request for a $750 million draw on the eve of bankruptcy. (more…)

Businesses across America are waiting with bated breath for a ruling in ACA International, et al. v. FCC, a case brought by a debt collection industry group challenging the FCC’s order interpreting the Telephone Consumer Protection Act with an extraordinarily broad brush. A three-judge panel from the United States District Court for the District of Columbia heard oral argument late last year and a decision is expected any day now. (more…)

Last month oral arguments were heard by the U.S. Supreme Court in the matter of Henson v. Santander Consumer USA Inc. The case focuses on Santander’s activity while they were collecting defaulted auto loans and if said activity is covered under the Fair Debt Collection Practices Act. The FDCPA only applies to “debt collectors” so the question becomes who is a “debt collector” under the FDCPA. Santander is arguing that they ceased to remain a debt collector the moment they purchased the assignment of the debt they were collecting. They argue at that moment they are not collecting debt that was owed or due another, rather they were collecting debt they were owed. This case will settle a circuit split amongst the appeals courts with the Third, Fifth, Sixth and Seventh Circuits, and the District of Columbia Court of Appeals holding that collectors of purchased defaulted debt are debt collectors within the meaning of the FDCPA, while the Fourth, Ninth and Eleventh Circuits all holding that collectors of purchased defaulted debt are not debt collectors within the meaning of the FDCPA. (more…)

The Supreme Court’s newest bankruptcy case, Jevic Holdings Corp. (3/22/17), illustrates three important lessons for secured creditors and lessors. It holds that the dismissal of a Chapter 11 case cannot, without the consent of the affected parties, depart from the statutory priority rules. The Court disapproved this structured dismissal of the Chapter 11 case, even though it implemented multiparty settlements. The Court reserved generally on the legality of structured dismissals and common “first day” orders paying prepetition wages, “critical vendors,” and “roll-ups” of pre-petition secured claims into post-petition DIP financing. (more…)