bankruptcy beach blog

Monthly Archives: December 2016

Creating a Blanket Lien – A New Case Shows the Importance of Syntax

How should collateral be described in a “blanket” security agreement? The goal is to include all of the debtor’s personal property. But using the term “all assets” or a similar phrase in a collateral description can be either a disaster; or a lifesaver for lenders and their counsel. Matter of Sterling United, Inc., 2016 WL 7436608 (2d Cir 12/22/16) is an object lesson on how language which is legally necessary to expand the term “all assets” can create controversy if carelessly drafted. Some background:  Uniform Commercial Code Article 9 defines a list of generic types of collateral which, if all of them are used in a collateral description, … Continue reading

Posted in Uniform Commercial Code |

HEY HO! TRUSTEES MAY NOT BE “DEBT COLLECTORS” UNDER THE FAIR DEBT COLLECTION PRACTICES ACT

The Ninth Circuit Court of Appeals, in a split decision subject to a dissent, has held that the trustee under a California deed of trust does not, by performing the statutory foreclosure requirements, become a “debt collector” subject to the federal Fair Debt Collection Practices Act (FDCPA). The decision in Ho v. ReconTrust Company, NA, 840 F.3d 618 (9th Cir. 2016) is still subject to being reconsidered en banc, i.e., by an expanded panel of eleven Ninth Circuit judges. If it is not altered by the Ninth Circuit en banc, the decision will likely be the subject of a petition for review by the United States Supreme Court. … Continue reading

Posted in FDCPA, Foreclosure |