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A Lease Is a Lease Is a ' Loan? Avoiding Recharacterization
The topic of recharacterizing leases as secured loans is not a new one, and is a staple of programs on yearly developments in commercial law. The drafters of the revisions to the 1978 Official Text of the UCC recognized that the focus on whether a lease was “intended as security” in the definition of security interest in ' 1-201(37) had the “unfortunate result” of courts looking to inconsistent factors to discover the intent of the parties. (See the Official Comment to UCC ' 1-203.) The drafters put forward the current definition of security interest in ' 1-201(35) with no reference to the parties' intent, and moved the rules distinguishing leases from security interests to ' 1-203, hoping to achieve “greater certainty” for commercial transactions. Yet, practitioners and courts alike continue to ignore the statutory bright-line tests and persist in applying a variety of other tests and interpretations that have resulted in conflicting decisions as to what is a lease and what is a disguised security interest. The applicability of UCC Article 9 to transactions styled as leases is a question that is debated in courts repeatedly year after year, with recent years being no exception. This article explores the impact of recharacterization, and discusses the tests developed by courts to determine whether a lease will be considered to be a secured loan. Then, a review of the most recent cases shows the characterization tests in practice.
A lease is a financing vehicle much like a loan is. A lease involves a lessor acquiring an asset which is then provided to a lessee for a specified term in exchange for rental payments. A loan involves a lender giving a borrower the funds to purchase the desired asset in exchange for a promise to repay the loan. In both situations, the user of the asset obtains that use through financing provided by another. However, while leases and loans are each financing tools, the classification of the individual transaction as one or the other matters greatly.
Bankruptcy Sales: Finding a Diamond In the Rough
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.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
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 So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
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 Domains: New Developments for Brand Owners
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.
Coverage Issues Stemming from Dry Cleaner Contamination Suits
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.