Baker Donelson

For more than 130 years, Baker Donelson has built a reputation for achieving results for our clients, both nationally and internationally, on a wide range of legal matters.

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…)

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…)

On February 3, President Trump issued an Executive Order titled “Core Principals for Regulating the United States Financial System.” This order outlines the President’s policy for the regulation of the U.S. financial system and directs the Secretary of the Treasury to report how the aforementioned policy is being promoted in current “laws, treaties, regulations, guidance, reporting and recordkeeping requirements, and other Government policies.” The Order itself has very little to no immediate effect on the regulation of the U.S. financial services industry; however, the order is a great way to gain insight as to what is to come over the next four years under the Trump administration.
(more…)

The CFPB suffered a blow yesterday in the most significant attack against its authority to date. In PHH Mortgage’s appeal from a $109,000,000 disgorgement order issued by the CFPB in June of 2015, the U.S. Court of Appeals for the D.C. Circuit held that “the CFPB is unconstitutionally structured” and violates Article II of the Constitution. The court also found that the CFPB violated PHH’s due process rights and rejected the Bureau’s determination that its enforcement actions brought as administrative proceedings are not bound by any statutes of limitations.
(more…)

On May 16, the bankruptcy world of “actual fraud” got larger. In an opinion delivered by Justice Sotomayor, the Supreme Court addressed what it recognized was a deepening circuit split regarding the interpretation of “actual fraud” in 11 U.S.C. § 523(a)(2)(A). After analyzing the history and structure of the code section, the Court rejected a narrower interpretation of the statute requiring that the debt be procured by a false representation at the time of inducement and clarified that “actual fraud” included traditional forms of fraud, such as a fraudulent transfer or similar wrongdoing.
(more…)

Although commonly known, judgment creditors rarely utilize the charging order as a collection mechanism.  This may change as a result of recent case law developments. (more…)

In an update to Kevin Stine’s June 6, 2014 article explaining the Georgia Court of Appeals decision to bid adieu to select foreclosure confirmation hurdles, the District Court for the Northern District of Georgia recently posed inquiries seeking to possibly reverse the precedent that preserved post-foreclosure liability of personal guarantors. In PNC Bank, N.A. v. Kenneth D. Smith, et. al, Judge Eleanor Ross asks the Supreme Court of Georgia the precise limitations and conditions precedent of O.C.G.A. § 44-14-161 as it impacts the necessity of confirming a foreclosure sale prior to seeking a deficiency judgment against obligors, despite the existence of affirmative case law on the topic. (more…)