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ACIC Private Notes                                April 2018
Welcome to the April 2018 edition of the ACIC Private Notes!

This edition features a summary of the highly significant Ultra bankruptcy case and related practice points. Thank you to Chip Fisher and Renee Daily of Morgan Lewis for authoring this helpful guide.  
Also, read on below to stay up-to-date on recent case law! This edition contains recent case law summaries from the Southwest region (courtesy of Andrew Thomison of Baker Botts) and the Rocky Mountain/Western region (courtesy of Alex Burkhardt of Vedder Price).
Ultra Bankruptcy Case
Summary and Practice Points
The Bankruptcy Court's decision in Ultra is a big victory for make-whole in the Fifth Circuit. Click here to learn more about this significant case.
Recent Case Law Summaries
Southwest Updates
In In re: Amigo PAT Texas, LLC, 579 B.R. 779 (2017), the court denied an oversecured creditor's motion for payment of post-petition late charges and a prepayment premium. Please click here to learn more.   
In First Bank v. Brumitt, 519 S.W.3d 95 (Tex. 2017), the Supreme Court of Texas determined that the seller of a company was not a third-party beneficiary of a lending transaction, noting among other things, that absent express language to the contrary, a contract should not be presumed to confer third-party beneficiary status. Please click here to learn more.
Rocky Mountain/Western Updates
In Lucas v. Deutsche Bank National Trust Company, 2018 WL 300393 (Cal. Ct. App. 2018) (a dispute between a lender and a borrower for attorney fees), the Court of Appeal did not award the lender attorney fees where the relevant provisions of the contracts did not sufficiently provide for such attorney fees. Please click here to learn more.
In Dray v. Revah, 2017 WL 6523566 (Cal. Ct. App. 2017), the Court of Appeal affirmed the trial court's conclusion that a loan agreement's dispute resolution clause containing an arbitration provision was superseded by a later executed promissory note for the same underlying loan that did not also include an arbitration provision. Please click here to learn more.
In Vitatech International, Inc. v. Sporn, 2017 WL 4876175 (Cal. Ct. App. 2018), the Court of Appeal held that an agreement to settle a contract dispute that provided for a stipulated judgment if payment was not made created an unenforceable penalty because (i) the defendant never admitted to liability on the underlying claim and (ii) the increased liability was disproportionate to the harm caused. Please click here to learn more.