Secured creditors whose collateral includes its borrowers’ accounts are empowered by Article 9 to collect money that is owed to borrowers from their borrowers’ account debtors, by a simple notice process. The secured creditor can notify account debtors of the security interest and advise them that they should pay the secured creditor directly, instead of paying the borrower.
In this time of COVID-19, creditors and debtors alike have looked for ways to address the financial squeeze the pandemic has imposed on the global economy. On the one hand, debtors are likely to look for more time for their business operations to return to “normal.” On the other hand, creditors are likely to look for certainty of results in an otherwise uncertain time.
It may seem counterintuitive for banks and other lenders to provide loans to companies in bankruptcy, but they often do. All companies, especially those in bankruptcy, need liquidity to continue operating. Ensuring the availability of cash is one of the most important considerations in a chapter 11 reorganization, because debtors are often unable to reorganize without adequate cash flow.
This year has been like no other. With the rest of the world, ABI’s Secured Credit Committee was jilted by the speed at which our in-person conferences and activities came to a halt. At the same time, we marveled at how efficiently the Annual Spring Meeting was retooled for virtual happy hours, networking opportunities and webinars that have lasted through these trying months.
When asked whether a foreclosure sale can be avoided in bankruptcy, the first answer that comes to many practitioners’ minds is “no” because of the Supreme Court’s opinion in BFP v. Resolution Trust Corp.[1] The correct answer, though, is a much more nuanced “it depends.” The Third Circuit’s Sept.
Throughout 2019, the retail industry continued to struggle as numerous retailers — from a variety of product and apparel categories — sought bankruptcy relief. Further, many retailers entered chapter 11 with an intent to liquidate all, or substantially all, of their assets quickly and efficiently.
Secured creditors should file UCC-1 financing statements. A proper UCC-1 must list both the name of the debtor and a description of the collateral. In a recent case before the First Circuit, both components in initial financing statements were insufficient to perfect the secured creditors’ interests.
In an insolvency situation, a lender’s strategy is very dependent upon the nature and extent of its collateral. Nothing can be more frustrating to a lender than believing it is in a senior position, only to find out that it has been primed. While a standard UCC Article 9 search will discover most liens and security interests, certain liens and interests require enhanced diligence.
“First in time, first in right,” is one of the first things taught in a law school’s secured transactions class. Yet a recent ruling from the U.S.
Good-faith efforts can create good outcomes. A can cause B. The absence of B, however, does not necessarily mean that A was absent: Bad results can occur even with good-faith efforts.
