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Equipment lenders often consider an out-of-court foreclosure as a fast and efficient way to recover collateral from a defaulting borrower. The Second Circuit Court of Appeals has thrown a monkey wrench into the attractiveness of the foreclosure option, especially for those equipment lenders who foreclose on collateral with the goal of preserving value by operating the business until a strategic buyer can be located. The Second Circuit Court of Appeals held that a secured creditor who purchases a debtor's assets in an out-of-court foreclosure sale under the Uniform Commercial Code (“UCC”) and continues to operate the debtor's business may be liable for the debtor's debts. Call Center Technologies, Inc. v. Grand Adventures Tour & Travel Publishing Corporation, Interline Travel & Tour, Inc., Docket No. 09-1224 (2d Cir. Mar. 11, 2011) (“Interline“). The Second Circuit reversed the lower court's grant of summary judgment in favor of the foreclosing lender because the issue of successor liability is fact-specific and the lower court erred by granting judgment as a matter of law. Id. at 1. A foreclosure conducted in accordance with the UCC will not automatically insulate the purchaser, as a matter of law, from a state law successor liability claim, even though under ' 9-617 of the UCC a sale of collateral after default discharges the security interest of the foreclosing creditor and “any subordinate security interest or other subordinate lien.” UCC ' 9-617(a)(3). This decision means that a potential asset purchaser in an out-of-court foreclosure sale (whether it be the secured creditor through a credit bid or other independent party) must consider whether an unsecured creditor may seek to collect unpaid liabilities of the debtor from the purchaser, on the grounds that “the purchaser is a 'mere continuation' of the seller.”
Successor Liability Doctrine Generally
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.
In recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.