NextGen Financial Services Report

News and analysis of legal issues affecting the Financial Services Industry

Importance of Careful Drafting of Intercreditor Agreements Highlighted by Recent Federal Appeals Court Ruling

By Jonathan E. Aberman on August 13, 2019

Over the past several years, much has been written about how numerous bankruptcy courts have interpreted and enforced bankruptcy and insolvency-related provisions in intercreditor agreements, subordination agreements and other “agreements among lenders” when they may affect a debtor and its estate. Although the Bankruptcy Code itself provides little guidance, the emerging trend has been for bankruptcy courts to strictly enforce intercreditor agreements according to their clear and unambiguous terms, rather than allow for broader interpretations…

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Creditor Beware: Supreme Court Rejects “Good Faith” Defense to Violations of Bankruptcy Discharge Orders

By Maria A. Diakoumakis on June 6, 2019

Starting now, all creditors must exercise more caution when trying to collect against discharged bankruptcy debtors, because a creditor’s good faith belief that the discharge injunction did not apply is no longer a viable defense. On Monday, June 3, 2019, the U.S. Supreme Court clarified the standard for awarding sanctions against a creditor for violation of the discharge injunction, unanimously holding that a court may hold a creditor in civil contempt for violating a discharge…

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The Extraordinary Rights of Non-Ordinary Course Buyers

By Darrell W. Pierce on May 1, 2019

Article 9 of the Uniform Commercial Code (“UCC”) has become highly technical, reflecting the complexity of modern secured transactions and the intricate relationships of debtors, secured parties and others who have or may have interests in a debtor’s assets. Some of its rules, however, seem relatively easy to understand and apply. One of those is the rule that protects buyers who buy goods in the ordinary course of business, allowing such buyers to make purchases…

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Accessing and Protecting Digital Assets: Fiduciary Duties in a Digital World

By David B. West on February 28, 2019

Executors have a duty to gather all of the assets of the decedent’s estate and prepare an inventory of the assets and debts. In days of old, this meant obtaining paper files that had been in the possession of the deceased. The digital world changed all that. Digital content is generally held, not by the owner of the information, but by a third-party custodian. The custodian of digital assets has an obligation to protect against…

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The Supreme Court Remains Steadfast in Favor of Arbitration

By Dawn N. Williams on February 14, 2019

Justice Kavanaugh’s first authored opinion as a Supreme Court Justice in Henry Schein, Inc. v. Archer and White Sales, Inc., No. 17-1272, 586 U.S. ____ (2019) further cements the Supreme Court’s stance on arbitration. Over the years, the Supreme Court has consistently held in favor of arbitration and rejected attempts by parties and the lower courts to ignore binding arbitration clauses. For instance, in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (April…

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Win Your Lender-Liability Lawsuit and Enforce Your Loan Documents with this 342-year-old Statute

By John F. Rhoades on January 31, 2019

Long before eMortgages, electronic signatures, and mobile apps hit the secured lending scene, Lord Nottingham proposed that the English Parliament pass An Act for Prevention of Frauds and Perjuries in 1677 to prevent nonexistent agreements from being “proved” through false testimony. That statute and its progeny remain an important resource in today’s financial services industry. All states have adopted a version of the statute of frauds and many states have enacted statutes of frauds specifically…

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Community Banks Disappointed with Federal Regulators’ Proposed Community Bank Leverage Ratio

By Jerry G. Sanchez on December 19, 2018

One of the key provisions of the Dodd-Frank Act rollback law signed by President Trump on May 24, 2018, hasn’t met its early promise for U.S. community banks. Recently proposed rules to implement simplified capital requirements have fallen short of the industry’s expectations when the bank deregulation law was enacted in May. On November 21, 2018, the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency jointly…

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Crumpets, Congress, Cannabis and Crypto: Top 10 Issues for Financial Services in 2019 – Part 2

By Jesse Tyner Moore on December 17, 2018

Co-Authored by Erin Fonte and Brenna McGee Continuing from last week’s post, here is the second half of our “Top 10 List” of key issues U.S. financial institutions, non-banks providing financial services, and financial technology (fintech) entities should plan for and watch throughout 2019. OCC Fintech Charter On July 31, 2018, after several years of discussion, the Office of the Comptroller of the Currency (OCC) announced that it is accepting applications for special purpose…

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Crumpets, Congress, Cannabis and Crypto: Top 10 Issues for Financial Services in 2019 (Part 1 of 2)

By Jesse Tyner Moore on December 13, 2018

Co-Authored by Erin Fonte and Brenna McGee As an eventful 2018 comes to a close, we look ahead to 2019 and our “Top 10 List” of key issues U.S. financial institutions, non-banks providing financial services, and financial technology (fintech) entities should plan for and watch throughout the upcoming year. The first five items on the list are discussed below, and the remainder of our list will follow shortly in another post. Brexit We will start…

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What’s Past is Prologue: Applying Lessons from the Financial Crisis to the Future of eMortgage and eNote Litigation

By Laura C. Baucus & Robert Hugh Ellis on November 28, 2018

This article originally appeared in the November 2018 edition of National Mortgage Professional Magazine. In the fallout from the 2008 financial crisis, courts across the United States were inundated with litigation challenging the legitimacy of mortgages, notes, and the records purporting the transfer or assign them. Such claims included asserting that endorsements of promissory notes were not enforceable, claiming assignments of mortgages were executed without authority, and allegations that the note, mortgage, or associated disclosure…

NextGen Financial Services Report

News and analysis of legal issues affecting the Financial Services Industry

Blog Authors

Importance of Careful Drafting of Intercreditor Agreements Highlighted by Recent Federal Appeals Court Ruling

Creditor Beware: Supreme Court Rejects “Good Faith” Defense to Violations of Bankruptcy Discharge Orders

The Extraordinary Rights of Non-Ordinary Course Buyers

Accessing and Protecting Digital Assets: Fiduciary Duties in a Digital World

The Supreme Court Remains Steadfast in Favor of Arbitration

Win Your Lender-Liability Lawsuit and Enforce Your Loan Documents with this 342-year-old Statute

Community Banks Disappointed with Federal Regulators’ Proposed Community Bank Leverage Ratio

Crumpets, Congress, Cannabis and Crypto: Top 10 Issues for Financial Services in 2019 – Part 2

Crumpets, Congress, Cannabis and Crypto: Top 10 Issues for Financial Services in 2019 (Part 1 of 2)

What’s Past is Prologue: Applying Lessons from the Financial Crisis to the Future of eMortgage and eNote Litigation

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