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Stefanie Greer
Kristen Gudewicz
2017 Spring Investment Forum - Save the Date
April 27-28, 2017

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ACIC Private Notes                           October 2016
Welcome to the October 2016 issue of ACIC Private Notes! It was wonderful seeing so many of you at this year's election themed conference: Make Investments Great Again! We couldn't help but think some of our panelists might make great candidates one day . . . stranger things have happened!

Click here to see what it was all about and get links to the conference papers. A summary of the conference will be in next month's newsletter.

In this month's newsletter you will find links to summaries of case law developments in the Southwest region, courtesy of Aaron Borden of Vedder Price, and the Rocky Mountain and Western Regions, thanks to our newest contributor, Andrew Thomison from Baker Botts.

Please let us know if you have an interesting article idea or recent development to share with your ACIC colleagues; we would be pleased to consider your submission for our next issue.

New Case Law Summaries

Southwest Region
A creditor's first priority security interest in a debtor's accounts receivable, and the proceeds thereof, was not lost when the debtor's customers made payments on such accounts receivable to a lockbox account that the debtor had established for the benefit of another creditor. In re Tusa-Expo Holdings, Incorporated, 811 F.3d 786 (5th Cir. 2016). Click here for more information: Click here for more information.

Entry into a forbearance agreement constituted the abandonment of a lender's acceleration of a mortgage note for purposes of determining the expiration of the four-year statute of limitations for foreclosure on real property. Stewart v. U.S. Bank National Association, 107 F.Supp.3d 705 (S.D. Tex. 2015). Click here for more information.

Assignee of a deed of trust had standing to foreclose on a mortgaged property even if there were deficiencies in the chain of assignment. EverBank, N.A. v. Seedergy Ventures, Inc., 2016 WL 3703126 (Tex. App. -- Houston [14th Dist.] July 12, 2016).  Click here for more information.

Rocky Mountain and Western Region

A standstill provision in a debt subordination agreement, whereby the junior lenders agreed not to commence or participate in any action against the debtor, did not preclude such lenders from filing a cross-complaint against the debtor relating to fraud and negligent misrepresentation.  Lesa, LLC v. Family Trust of Kimberley and Alfred Mandel, 2016 WL 1446770 (N.D. Cal. 2016).  Click here for more information.

The integration clause of a security agreement was interpreted broadly such that a lender was allowed to sweep a deposit account of its debtor even though the security agreement did not expressly allow for such action. In re Omni Enterprises, Inc., 2016 WL 3213562 (Bankr. D. Alaska 2016). Click here for more information.

A bankruptcy trustee has a priority security interest in certain goods and their proceeds over a "true" consignment arrangement where the consignor failed to file a financing statement and the court refused to impose a constructive trust. In re Pettit Oil Co., 89 U.C.C. Rep. Serv. 2d 872; 2016 Bankr. LEXIS 2071 (Bankr. W.D. Wash. 2016). Click here for more information.

A disposition of collateral was commercially reasonable where such disposition conformed to reasonable commercial practices, including credit bidding, and where a delay in the disposition led to no decrease in value of the collateral. 395 Lampe, LLC v. Kawish, LLC, 2016 U.S. Dis. LEXIS 49878, 89 U.C.C. Rep. Serv. 2d 460 (W.D. Wash. 2016). Click here for more information.