Archives---April 15, 2002
Commercial Money Center--It Gets Worse

$19.2 Million Fraudulent Leases? out of $250 Million Portfolio
or is it higher, as others are now coming forth?

Here are reader’s comments to Leasing News:

Please do not use my name. Other employees may guess who I might be as I was involved in (upper management). I do know that the fraudulent leases were bonded by ACE (under Illinois Union Insurance Co.), RLI and American Motorists as these were the last 3 companies who wrote bonds for CMC.

I am concerned in looking for employment that the onus of working for CMC will be working against me. How do I tell a prospective employer that I was not guilty of any wrong doing?

I fully expect that all of the sureties will file suits if they have not yet done so. Knowing what I do about D&B's public records database, I'm not surprised that they are not all showing up as yet (D&B Public Records can be slow).

If you have access to Lexis/Nexis, you might get a better list of complaints. Accusearch through Data Filing Service/UCC Direct might give you more information but can be costly. I'm sure you know all of that, but I thought I'd throw it in. Because special purpose companies were often formed for bulk sales, a UCC search might not return accurate data. Any San Clemente addresses showing would most likely be the offices of Anthony and Morgan Surety and Insurance Services, the broker who sold the bonds to CMC.

The actual bonding process was a simple one: the bonds themselves are something of a web. In certain cases, bonds were 'wrapped' when one company purchased the bond from the original seller. Any changes to the bonds were at the request of either the issuer of the bond or the bank to whom the leases were sold. The causes for any changes were due to various reasons including simple mergers and, in certain cases, declining ratings on existing bonds. To my knowledge the list of bonding companies includes:

Royal Indemnity
Amwest Surety
Frontier Insurance Co.
RLI Insurance Co.
Safeco
ACE America Insurance (ACE wrapped the Frontier, Royal and other bonds)
American Motorists Insurance
Illinois Union Insurance Co. (A wholly owned subsidiary of ACE)
Kemper (these bonds were purchased in the mid-summer of last year but were returned as Kemper's bond rating dropped after 9/11/01 due to the fact that they had insured parts of the World Trade Center.

This is noteworthy as this event is THE ONLY impact that 9/11 had on CMC although they continued to publicize that event as having caused severe damage to CMC. That has always made me a little sick, quite frankly, but I had no control over this. It did bother me ******** tried to use such a tragedy to their advantage. Kemper is not responsible for any CMC leases)

Chubb Group of Insurance Companies, in the final days, was negotiating with CMC to wrap the entire portfolio with new bonds and relieve the obligation of the original sureties. Once this was done, the entire portfolio was to be refinanced by Citibank and Chase Manhattan as a joint venture apart from any routine purchases. Once the lawsuits started coming down, however, all parties pulled out.

There may have been a few other smaller bonding companies, but the names escape me. Most of those bonds were later wrapped though. The list above is an accurate list of the big players though.

I am sure Safeco and their subsidiaries are especially aggravated as they were promised but never received relief on the bonds written on leases for Shandoro Ventures, a gigantic CMC disaster along with Kapco and Med-Quik.

ACE, of course, will be the biggest suit as they hold the most bonds. ACE is not without blame, however, they did not investigate what they were bonding and were unfortunately duped as a result.

I would like to help out, but it is not the legality that I am fearful of, but the fact that I worked for such a company. Please withhold my name.

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I noticed that you mentioned "no major banks seem to be involved" in the CMC story. This is not correct: Citibank is in for $50 Million and NetBank is in for more than that amount.

By the way, the Citibank deals were sold under a special purpose company formed solely to sell leases to Citibank. This was agreed upon by both entities as a matter of risk management. The name of that company was CMC Lease Funding 2000-220 L.P.

You may quote me. I have been sitting on some information since the middle of last summer involving what I believed to be wrongdoing by the executive management of CMC. I was not, however, 100% certain that wrong had been committed until you reported today (Friday) that one of the signers on the bogus deals had come forward. I was the Processing Manager for CMC.

Dean Ambrosini

Full Article:
http://two.leasingnews.org/archives/April2002/04-15-2002.htm

Today

Dean Ambrosini is in the financial business, located in San Diego, California. He stayed in touch with Leasing News from the very beginning and has been very helpful.

www.linkedin.com/pub/dean-ambrosini/22/206/1bb

 

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Coda: Tom McCurnin, Leasing News Legal News Editor

(I first got to know Tom from these days as he was the lead attorney in the CMC lawsuit against the insurance companies and based his case on the fact CMC was not a licensed finance lender in California (remember all the stories about being licensed to do business). He won his case.

Kit Menkin, editor).

In 2008, he wrote about an appeal on the matter:

CMC paper and Officers Back to Litigation
http://www.leasingnews.org/archives/November%202008/11-19-08.htm#cmc

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Classified Ads---Operations

(These ads are “free” to those seeking employment or looking
to improve their position)

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Willing to relocate Having successfully held senior level operations and sales & marketing positions in the receivable management industry, I'm a hybrid who understands business from both perspectives. I have almost twenty-five (25) years’ experience selling services to Fortune 500 companies and operating large, nationally licensed call centers / collection agencies. dannyczyrny@gmail.com - Resume

 

Free Posting for those seeking employment in Leasing:
http://www.leasingnews.org/Classified/Jwanted/Jwanted-post.htm

All “free” categories “job wanted” ads:
http://www.leasingnews.org/Classified/Jwanted/Jwanted.htm

 

John Kenny Receivables Management www.jrkrmdirect.com • End of Lease Negotiations & Enforcement • Fraud Investigation • Credit Investigations • Asset Searches • Skip-tracing • Third-party Commercial Collections The Solution to Your Credit & Accounts Receivable Needs  John Kenny 315-866-1167 |  John@jkrmdirect.com

(Leasing News provides this ad as a trade for investigations
and background information provided by John Kenny)

Loan/Lease Regulations --- Update

While there is a conception that equipment leasing is not licensed, it is not quite true. Most states have license requirements, and all have issues on usury, requiring a sales/use tax permit, corporation filing to do business in a state, as well as many states have personal property license requirements from the owner of the equipment.

It is true that there are no state or national associations that regulate the industry as banks and other financial institutions or accountants, attorneys, realtors, to name a few. The closest may be the Certified Leasing Professional Foundation where they are 200 individuals that have passed a test, an annual test, and abide by a set of rules and regulations.

In most states, banks are not required to have a leasing license as well as manufacturers. Banks are generally exempt because they are regulated by the FDIC.

The common thread among licensing statutes is that if the entity which should otherwise have a license, is licensed by another government agency (real estate brokers is one example), then no license is required.

An expert on this who has won cases against company’s not licensed in California, notably CMC Commercial Credit, Tom McCurnin, Barton, Klugman & Oetting, Los Angeles, California told Leasing News: “A property owner can sell his property on credit without a license or without usury issues.  Its called the Time Price Doctrine or Time Price Differential.

“CIT on the other hand doesn't own the stuff and is therefore making a loan and is required to have a license. 

“A gray area might be for the leasing company to buy the stuff and have it shipped to them, and they, in turn re-ships to the customer.  May not be required to have a license.  Simple invoices and drop shipping probably would not pass muster.”

Captive Lessors are required to have a license, and all those that I checked do, such as Dell, who also sells other products than the ones they manufacture. 

And while there are financial institutions that also have a bank, such as CIT, they hold a license.

In California, those engaged in true leases, such as Mar Vista, address, do not need to be licensed, but everyone who is involved in “capital leases” with a bargain purchase option, particularly a dollar, are required to be licensed. Without it, they may not accept a commission, engage with a licensed financial institution, and may find their leases in court dismissed for lack of a license. While the fines are not very much, the clout comes in immediate suspension from doing business in California, and while a hearing may be required or filed by an attorney, they may not engage in business during this time.

“NO BROKERAGE COMMISSIONS TO UNLICENSED BROKERS. California Administrative Code Title 10 §1451.”

Commissions may not be paid to unlicensed brokers. There are companies who use other companies’ documents and therefore believe they do not need to be licensed. This may be accurate in dealing with a bank, but not with another licensed financial institution or financial institution out of state that is not licensed in California.

If you are registered by license as a broker, lender, lessor in states that require it, you do not need a city business license (in most states). Cities that require a business license, also require a business license if you work out of your residence. Many cities now are using Schedule C from tax returns, such as in San Jose, California, to catch those without a city license, and they will go back several years as well as a fine, so best to get a license now in case they check your city.

While not all states require a lender's license, many require a license to accept a deposit or advance rental. And remember, a capital lease may be considered a loan as it is with the IRS in many states. If the state requires a license, and your company is not licensed, the transaction may be subject to usury laws.

46 states do not require the lessor to notify the lessee regarding the end of the original term of the lease and can invoke an Evergreen clause, except in these states that do require notification and if not, can void the residual as well as bring on a fine or worse, depending on the number of such transactions and complaints received.

States who require notification: 
New York 
Rhode Island 
Texas 
Wisconsin 
Illinois 
(In Illinois, Consumer law, but may affect commercial, especially a proprietorship, partnership or personal guarantee)

--Christopher Menkin

---Current Regulations
(Any up-dates or additions, please send
to kitmenkin@leasingnews.org)

Arizona: All "advance fee loan brokers" must register annually with the state. Includes "commitment fees." Stiff penalty and on line form for a complaint for the state to investigate. Arizona Revised Statutes, sec. 06-1303-1310 (1996)
Registration process: http://www.azdfi.gov/Licensing/Licensing-FinServ/ALB/ALB.html

Arkansas: All brokers of "a loan of money, a credit card or a line of credit" may not assess or collect an advance fee. In addition, all brokers must register with the Securities Commissioner, post a surety bond of $25.000 and have a net worth of $25,000.
Arkansas Code Annotate sec. 23-39-401 (1995)

California: "In addition to the lending authority provided by the law, the California Finance Lenders Law provides limited brokering authority. A "broker" is defined in the law as "any person engaged in the business of negotiating or performing any act as broker in connection with loans*made by a finance lender." Brokers licensed under this law may only broker loans to lenders that hold a California Finance Lenders license." 
http://www.corp.ca.gov/Laws/Finance_Lenders/Default.asp 
(*any transaction that is not a true rent or meets the accounting and tax rules or is re-sold as a loan or discount or has a nominal purchase option is considered under this nomenclature. ) (2)

Florida: Brokers of a "loan of money, a credit card, line of credit or related guarantee, enhancement or collateral of any nature" may not assess or collect an advance fee. 
Florida Statues, Chapter 687.14 (1992)

Georgia: A broker of "loans of money, a credit card, a line of credit or related guarantee, enhancement or collateral of any kind or nature" may not assess or collect an advance fee unless such fee is for "actual services necessary to apply for the loan." Official Code of Georgia Annotated, sec. 7- 7-1 (1992)

Idaho: No fee may be collected unless a loan is actually made. 
Idaho Code, sec. 26-2501 (1992) Illinois: Code, 815 ILCS 175/15-5.03 Under the Act, a" loan broker" means any person who, in return for a fee from any person, promises to procure a loan for any person or assist any person in procuring a loan from any third party, or who promises to consider whether or not to make a loan to any person. 815ILCS 175/15-5- 15(a) 
Specifically excluded from the application of the Act, however, are (1) any bank …regulated by any service loans for the Federal National Mortgage Association… (3) any insurance producer or company authorized to do business in [Illinois], (4) any person arranging financing for the sale of the person's product, (note that this exception does not apply to any person selling someone else's product and only applies to "the" person's product, implying the exception is for the owner of the product arranging for financing), (5) any person authorized to conduct business under the Residential Mortgage License Act of 1987 and (6) any person authorized to do business in [Illinois] and regulated by the Department of Financial Institutions or the Office of Banks and Real Estate. "In the event that the Act is violated by the broker, the Secretary of State is empowered by the statute to make investigations and examinations, suspend or evoke the broker's approval, subpoena witnesses, compel the production of books and records, order depositions and obtain temporary restraining orders and injunctions against the broker. In the vent that a violate is found, the Secretary of State may impose a fine in the amount of $10,000 for each violation and the broker shall be liable to any person damaged in the amount of tactual damages plus attorney’s fees." This appears as standard language on most states.

Idaho: No fee may be collected unless a loan is actually made. 
Idaho Code, sec. 26-2501 (1992)

Illinois: Code, 815 ILCS 175/15-5.03 Under the Act, a" loan broker" means any person who, in return for a fee from any person, promises to procure a loan for any person or assist any person in procuring a loan from any third party, or who promises to consider whether or not to make a loan to any person. 815ILCS 175/15-5- 15(a) specifically excluded from the application of the Act, however, are (1) any bank …regulated by any service loans for the Federal National Mortgage Association… (3) any insurance producer or company authorized to do business in [Illinois], (4) any person arranging financing for the sale of the person's product, (note that this exception does not apply to any person selling someone else's product and only applies to "the" person's product, implying the exception is for the owner of the product arranging for financing), (5) any person authorized to conduct business under the Residential Mortgage License Act of 1987 and (6) any person authorized to do business in [Illinois] and regulated by the Department of Financial Institutions or the Office of Banks and Real Estate. "In the event that the Act is violated by the broker, the Secretary of State is empowered by the statute to make investigations and examinations, suspend or revoke the broker's approval, subpoena witnesses, compel the production of books and records, order depositions and obtain temporary restraining orders and injunctions against the broker. In the vent that a violate is found, the Secretary of State may impose a fine in the amount of $10,000 for each violation and the broker shall be liable to any person damaged in the amount of tactual damages plus attorneys’ fees." This appears as standard language on most states.

Iowa: A broker of loans of "money or property" may not assess or collect an advance fee except for a "bona fide third-party fee" and a broker must obtain a bond or establish a trust account and file required documents with the Commissioner or Insurance.
Iowa Code, sec. 535C (19920)

Kansas : Broker is not exempt. Discounter or Lessor is exempt: " 'Creditor' means any person to whom a loan is initially payable on the face of the note or contract evidencing the loan" is exempt. Anyone who earns a fee or accept a deposit, except a bank, financial institution, discounter or lessor, must be registered.
http://www.securities.state.ks.us/rules/loan.rtf

Kentucky: Brokers of "a loan of money, a credit card, a line of credit or related guarantee, enhancement or collateral of any kind or nature" may not assess or collect an advance fee. 
Kentucky Revised Statutes Annotated, sec. 367.380 (1992)

Louisiana: A broker of loans of "money or property…whether such agreement is styled as a loan, a lease or otherwise" must obtain a surety bond or establish a trust account in the amount of $25,000. A broker may not collect an advance fee but may collect an "advance expense deposit for commercial loans" only for actual expenses incurred in obtaining the loan. Louisiana Revised Statutes Annotated, sec. 9:3574 (1993); Louisiana Revised Statutes Annotated, Sec. 51:1910 (1992)

Maine: No license required: "the regulation of commercial loan brokers does not fall under the jurisdiction of the Maine Bureau of Consumer Credit Protection. Transactions involving two businesses are legal/contractual in nature. Therefore, disputes involving a commercial loan between a business and commercial loan provider or broker must be settled in the court system."
http://www.maine.gov/pfr/consumercredit/faqs/loan_broker_faq.htm#j

Mississippi: A broker or loans of money may not assess or collect an advance fee and can be fined up to $5,000 for each violation. Mississippi Code Annotated, sec. 81-19-17 (1997)

Missouri: A broker of loans of "money or property" may not assess or collect an advance fee. Missouri Revised Statues, sec. 367 300 (19920

Nebraska: A broker of loans of money may not assess or collect an advance fee. Nebraska Revised Statutes, sec. 45-189 (1993)

New Jersey: Brokers of "loans of money" may not assess or collect an advance fee. 
New Jersey Rev. Statutes, sec. 17:10B (1992)

New Mexico: New Mexico currently requires Brokers/Lessors to register for Licensing under the NM Mortgage loan Company or Loan Broker Act with the Financial Institutions Division of the State of New Mexico. Banks with Brick and Mortar within the State of New Mexico are exempt. Prior to licensing applicants must submit the Following: 
Articles of Incorporation 
Listing of all principals (including management) 
A full financial Package (to meet their minimum requirements of liquidity) 
Personal financial statements on all principals 
Disclosure of all current or past suits (civil or criminal) 
Attach a corporate surety bond 
Include a $400.00 registration fee renewable yearly

North Carolina: A broker of "loans of money or property…whether such agreement is styled as a loan, a lease or otherwise" must obtain a surety bond or establish a trust account in the amount of $25,000 and obtain a license. North Carolina General Statutes, sec. 66-106 (1992)

North Dakota: Brokers may not accept an advance fee unless the broker is licensed. North Dakota Century Code, 13-04. 1-09.1 (1993) Ohio: Department of Commerce, Division of Financial Institutions

(Certificate to engage in the business of a credit services organization in accordance with the provisions of Sections 4712.01 to 4712.14 of the revised code of Ohio, subject to all the provisions thereof and to the regulations of the division.) Ohio Department of Taxation requires a "Vendor's License" under provision 5739.17 of the Revised Code (...is hereby authorized to sell tangible personal property and selected services at the retail location specified below.) This also makes the lessor responsible for all taxes with penalties for not doing so.

South Carolina: A broker of "a loan of money, a credit card, a line of credit or related guarantee, enhancement or collateral of any kind or nature" may not assess or collect an advance fee. South Carolina Code Annotated, sec. 34-36-10 91992)

South Dakota: Money Lending License
Required for individuals or corporations to engage in the business of lending money, including creating and holding or purchasing and acquiring any installment loan ("Capital Lease" or EFA), single pay loan, or open-end loan which may be unsecured or secured by personal property. Requires filing a surety bond application. State and national banks, bank holding companies, other federally insured financial institutions, and the subsidiaries of those institutions are exempt from licensure. In addition, SD chartered trust companies are exempt from licensure. Any individual or corporation holding this license is required to pay the bank franchise tax. 
Duration: 1 year 
Cost: Application $600

Vermont: Commercial Loans
Commercial loan license would apply to EFA and "Capital Leases." Exemptions include transactions over $1 million, and brokers who do not engage in transactions more than $50,000 in one year at rates not exceeding 12 percent per annum.

Working Capital Loans $10,000-$250,000
www.channelpartnersllc.com p: (763) 746-7760 f: (763) 592-8297 information@channelpartnersllc.com

 

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Leasing Industry Help Wanted

We are looking to grow our sales team! Sales Managers and Sr. Account Executives CalFirst is seeking seasoned sales professionals to join our sales team in Irvine, CA. Our sales professionals are responsible for originating equipment leasing and secured loan opportunities with middle to large size companies located nationwide. Transactions range from $1,000,000 to $30,000,000. For more information, please contact recruiting at: (949) 255-0500 ext. 392 Email: bcrogan@calfirst.com www.calfirst.com

National Sales Representatives Experienced, with existing business to bring, all industries. Salary plus commission, good benefit package. AXIS - A, B, C lender for small and mid-ticket markets. Call Jean Harlow– 800.994.0016 email or forward resumes to: HR@Axiscapitalinc.com axiscapitalinc.com    Growing with fast approvals and quick fundings

 
 

For information on placing a help wanted ad, please click here:
http://www.leasingnews.org/Classified/Hwanted/Hwanted-post.htm

Please see our Job Wanted section for possible new employees. 

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“What is a Pre-Interview?”
Career Crossroad---By Emily Fitzpatrick/RII

Question: I have been asked to have a “pre-interview.” What is that?

Answer: Many hiring companies have “pre-interview” procedures. You may look at them as an “informational interview.” This is not uncommon in the agency intake as well as with larger corporations.

It also is not uncommon in smaller company processes. This is when the interview is basically with the person who is not going to do the actual hiring, meaning doesn’t have the final authority to make the decision to hire (e.g. headhunter) – however, they can offer valuable information about the company, position and hiring manager in order to land the job.

In this type of interview, your goal is to learn as much as possible about the company and job that has been targeted. Some goals to be fulfilled in this process include:

1. Unearthing current information about the company and pertinent job functions.

2. Investigating hiring policies.

3. Developing a list of follow-up activities to increase visibility.

You can either gather this information from:

(1) Headhunter, e.g. what is the best way to get started with this company?

(2) HR Representative, e.g. what kind of person do you think is right for this company?

(3) Individual you have networked with at the company in the same type of role you are targeting, e.g. how do you spend your day?

During this process, working with headhunter / recruiter will allow you to ask them the questions that would otherwise be uncomfortable to ask an employer/hiring manager.

Do not look at it as a waste of time, but an opportunity to learn more about the position as well as the company itself.

Emily Fitzpatrick
Sr. Recruiter
Recruiters International, Inc.
Phone: 954-885-9241
Cell: 954-612-0567
emily@riirecruit.com
Invite me to Connect on LinkedIn
www.linkedin.com/pub/emily-fitzpatrick/4/671/76
Also follow us on Twitter #RIIINFO

Career Crossroads Previous Columns
http://www.leasingnews.org/Conscious-Top%20Stories/crossroad.html

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Leasing 102
by Mr. Terry Winders, CLP

Pricing & Structuring in the Sales Effort

I read a lot about the reasons to lease equipment ---and some reasons the customer should not lease. The truth is a lease will always be acceptable, if it matches the needs of the customer. Even a dollar option lease that essentially offers the same structure as a loan has some distinct advantages. Therefore, a lease always works, if the rate is the same as the loan.

The lessor needs to discover the structure that meets the need of the lessee. Too many lease salespersons fail to question the customer to determine the actual needs ---and they just offer prepared finance terms.

The “structure” is what we call the program that fits the lessee’s needs, and pricing is the lessor’s needs placed into the structure. To determine structure, term is the first question for the lessee, and it should be determined by the equipment’s use and useful life, followed by financial or cash flow requirements. Next, ask when they want to take the lease expense, because the payments be can be placed when they have the money available, instead of level payments in loans.

The lessee may have some ideas of its own, so you need to listen and see how these ideas affect the structure.

Once you have the structure, you place the best pricing you have into the structure and create a proposal. Then you deliver the proposal in person and present it to the lessee. Observe how they react to each section. If something does not get accepted right away, then take it back and change it into what they will accept. Don’t ever send it to the lessee or drop it off. You need to observe their reaction, so you can adjust it and return with a better proposal.

If you cannot reach the lessee and your leads comes from vendors you need to ask them the same questions. We need to determine the use of the equipment to qualify the term. The vendor in the sales effort usually discusses the use so they can advise you on the term.

If you get your leads from equipment vendors and you are not allowed to call on the customer, you will need a few programs that have different terms and unusual rental streams. The goal is to accommodate the different type of uses the customer may have for the equipment. Occasionally, a rate chart from 34 months to 64 months is helpful--- so when the customers have a preferred payment, the chart will determine the term.

Creating programs and structure tied to the use of the equipment will help the vendor in the sales effort---and get you more business!

“Structure” drives our leasing business, and the more creative we can be to meet the lessee’s requirements, the better chance we have of putting a good return in the pricing.

Mr. Terry Winders, CLP, has been a teacher, consultant, expert witness for the leasing industry for thirty-five years and can be reached at terrywinders11@yahoo.com or 502-649-0448

He invites your questions and queries.

Previous #102 Columns:
http://www.leasingnews.org/Conscious-Top%20Stories/Leasing_102/Index.htm

Mr. Terry Winders available as a consultant regarding assisting attorneys in resolving disputes or explaining procedures or reviewing documents as utilized in the finance and leasing industry. He is the author of several books, including DVD's, as well as weekly columnist to Leasing News. He also performs audits of leasing companies as an expert on documentation, and has acted as an expert witness on leasing for litigation in legal and tax disputes, including before the IRS. He also has taught the senior bank examiners, how to review a bank leasing department, for the Federal Reserve in Washington D.C. and has trained the examiners for the FDIC on how to prepare a lease portfolio for sale. 502.649.0448/terrywinders11@yahoo.com

(This ad is a “trade” for the writing of this column. Opinions
contained in the column are those of Mr. Terry Winders, CLP)

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Another Credit Gets Snagged by Failing to Return
Repossessed Collateral after the filing of Bankruptcy

By Tom McCurnin
Leasing News Legal News Editor

Secured Creditors Must Return Repossessed Equipment If the Borrower Files a Bankruptcy. Here the Creditor Failed to Do So, and Was Tagged for Damages

Weber v. SEFCU, 719 F.3d 72 (2nd Cir. 2013).

Secured creditors do not “own” the collateral for which they have taken as security for a loan or lease, a point which is often missed by some secured creditors. This applies to all “capital leases,” which are basically “loans.” If the depreciation is not taken by the creditor, or the structure does not meet the definition of a “true lease,” also known as an “operating lease,” it is a “loan.” Under the UCC, that issue is determined by the end of lease options. There is a distinct difference in that a lease could be a true lease under the UCC, but not under IRS.

Here the idea that the creditor “owned” the collateral blurred its judgment, and the creditor refused to turn over a pickup truck it financed and repossessed, after the debtor filed a Chapter 13 bankruptcy. The creditor was tagged with damages. The facts follow:

SEFCU, a credit union, financed a pickup truck for Christopher Weber, one of its members. The loan went into default, and SEFCU repossessed the truck. Four days later, Weber filed a Chapter 13 Bankruptcy, and Weber demanded return of the truck. SEFCU refused to turn over the truck, and Weber filed an adversary action seeking damages, including attorney fees, for SEFCU’s retention of the truck. The Court issued an order about two months later requiring SEFCU to return the vehicle, which SEFCU did the next day. The Debtor was without the truck for about two months.

In defending the adversary action, SEFCU claimed that a New York bankruptcy decision gave it a “reasonable time period” after an order was issued to return the vehicle. Weber countered with the argument that a United States Supreme Court decision trumped that New York bankruptcy decision, because the repossessed property was property of the debtor and had to be returned immediately upon the filing of the bankruptcy proceeding and no order was necessary.

The bankruptcy court held that the New York decision governed, and Weber appealed to the Federal District Court. The Federal District Court reversed, holding that the truck was property of the Debtor’s estate and should have been returned promptly. SEFCU then appealed to the 2nd Circuit.

On appeal, the Court of Appeals found that the truck was property of the estate and that SEFCU only held a security interest. The Court found that the refusal to return the truck, for two months, was “willful” and entitled the Debtor to damages, including attorney fees. The 2nd Circuit remanded the matter to the Bankruptcy Court to issue a damage award. Thus, the Court of Appeals held that a secured creditor may not retain possession of repossessed equipment after the filing of a bankruptcy, and that Weber was entitled to damages for the two months loss of use, and attorney fees.

What are the lessons here for equipment lessors?

• First, in the context of a lease intended as security (not a true lease), the lessor only has a lien and the collateral is really owned by the debtor.

• Second, upon the filing of a bankruptcy proceeding, the secured creditor must immediately return the equipment. While I don’t think it has to be accomplished on the same day, certainly two months is way too long. No specific order is necessary—the filing of the bankruptcy petition imposes this duty. SEFCU’s insistence upon obtaining an order was “unreasonable.”

• Third, I don’t entirely understand why SEFCU would drag this matter out for a trial and two appeals. The legal expense must have been 10 times the value of the vehicle. Cooler heads should have prevailed, and the truck given back before the legal expense dwarfed the damages. I just don’t get it!
  

The bottom line to this case is that if the secured creditor has a lien on collateral, has repossessed (but not yet sold the collateral), the filing of a bankruptcy requires the secured creditor to return the collateral. It’s really that simple.

Webber Repo Case
http://www.leasingnews.org/PDF/webber_repo2014.pdf

Tom McCurnin is a partner at Barton, Klugman & Oetting in Los Angeles, California.

Tom McCurnin
Barton, Klugman & Oetting
350 South Grand Ave.
Suite 2200
Los Angeles, CA 90071
Direct Phone: (213) 617-6129
Cell (213) 268-8291
Email: tmccurnin@bkolaw.com
Visit our web site at www.bkolaw.com

Previous Tom McCurnin Articles:
http://www.leasingnews.org/Conscious-Top%20Stories/leasing_cases.html

 

 

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2014 Leasing Association Conferences

April 23 - 25
2014 National Funding Conference
Chicago, IL

Over 500 Registered

Lite Attendee List
(Full listings available only to those register)

As of April 14, the following companies
will be exhibiting as funding sources this year: 

Alliance Partners, LLC
ATEL Capital Group
Banc of America Leasing
Banc of California
Bank of the West
Barnett Capital Ltd.
BB&T Equipment Finance
Boston Financial & Equity Corporation
BMO Harris Equipment Finance Company
Bridge Capital Leasing, Inc.
Capital One Equipment Leasing & Finance
CapitalSource, Inc.
CIT
Cole Taylor Equipment Finance
EverBank Commercial Finance, Inc.
Financial Pacific Leasing, Inc.
First American Equipment Finance, a City National Bank Company
First Bank of Highland Park
First Eagle Bank
Fifth Third Equipment Finance Company
Fuyo General Lease (USA) Inc.
GE Capital Markets Group
Huntington Equipment Finance
HVB Equipment Capital LLC
Key Equipment Finance
Lease Corporation of America
MB Financial Bank
Nations Equipment Finance
NXT Capital
People’s Capital and Leasing Corp.
PNC Equipment Finance LLC
RBS Citizens Asset Finance
SCG Capital Corporation
Securcor Financial Group
Signature Financial
Societe General Equipment Finance
Stearns Bank NA-Equip. Finance Division
Sterling National Bank Equipment Finance Division
SunTrust Robinson Humphrey Equipment Finance Group
TCF Equipment Finance
Varilease Finance, Inc.
Wells Fargo Equipment Finance, Inc.
Wintrust Equipment Finance, a division of Beverly Bank

Schedule
https://www.elfaonline.org/cvweb_elfa/cgi-bin/eventsdll.dll/EventInfo?sessionaltcd=FUND2014

Pricing:
https://www.elfaonline.org/cvweb_elfa/cgi-bin/eventsdll.dll/EventInfo?sessionaltcd=FUND2014

Brochure:
http://www.leasingnews.org/PDF/AprilELFAConference2014.pdf

May 1 - 3
National Association of Equipment
Leasing Brokers 
2014 Annual Meeting
Caribe Royale Hotel
Orlando, FL

"Access to suitable funding is a critical need for every broker. The association makes it easier for members to locate reputable and reliable sources. Meet face to face with an assortment of lenders at our Annual Conference in Orlando May 1-3. 

A searchable directory of Funder members is also available to registered NAELB members through our website. If you are not already a member, you can find info about joining the NAELB and about our annual conference at www.naelb.org."

Joan Modes, BPB
President, NAELB

Annual Conference Exhibitors

360 Equipment Finance

Amerimerchant

Amerisource Funding

Axis Capital

Banc of California, N.A.

Bankers Capital

Blue Bridge Financial LLC

Bryn Mawr Funding

BSB Leasing

Business Credit Reports

Channel Partners LLC

CLP Foundation

Dakota Financial, LLC

Facteon, Inc.

The Finance Marketing Group

Financial Pacific Leasing, LLC

First Federal Leasing

Fora Financial

Funding Circle USA

Gateway Commercial Finance

instaCOVER

IOU Central Business Lending

KS State Bank, Baystone Government Finance

Leasepath

Marlin Equipment Finance

Maxim Commercial Capital LLC

Merchant Cash and Capital, LLC

Microbilt Corporation

NCMIC Finance Corporation

NFS Leasing

North Mill Equipment Financing LLC

OnDeck

Orange Commercial Credit

Pacific Western Equipment Finance

Paradigm Equipment Finance

Pawnee Leasing Corporation

Pinnacle Specialty Capital

Preferred Business Solutions

Quiktrak, Inc.

RLC Funding

TEAM Funding Solutions

Tetra Financial Group

Varilease Finance, Inc.

Type	Member Rate	Non-Member Rate
Broker	$475	$575
Broker Additional	$425	$525
Funder/Associate	$625	$725
Funder/Associate Additional	$575	$675

NAELB has negotiated a special group rate of $139/night for single/double or $159/night for king deluxe, from Wednesday, April 30 - Saturday, May 3.
https://aws.passkey.com/event/10434951/owner/186/home

Information:
http://www.naelb.org/NAELB/Events/2014_Annual_Conference.aspx

May 7 - 9
Association of Government Leasing and Finance 
AGL&F/ELFA Public Sector Finance Forum
Washington, DC

Information:
http://www.aglf.org/events/aglfelfa-public-sector-finance-forum

Hotel Reservation:
http://www.doubletreemagmile.com/

 

September 4-6
2014 Eastern Regional Meeting
Lord Baltimore Hotel
Baltimore, MD

September 10-12
Canadian Finance and Leasing Association
The Fairmont Chateau Whistler
Whistler, British Columbia

September 18-20
San Antonio Texas
To Be Announced

October 19-21
2014 53rd Annual Convention
Manchester Grand Hyatt
San Diego, CA

November 5-7
34th Annual AGLF Fall Conference
Loews Ventana Canyon
Tucson, Arizona

November 6 - 8
2014 Western Regional Meeting
Hyatt Regency Irvine
Irvine, CA

November 12 - 14
Commercial Finance Association
70th Annual Convention
Washington Marriott Wardman Park
Washington, D.C.

 

November 16 -17
NJ Expo Regional
Teaneck, New Jersey
(Sunday evening- All Day Monday)

CFA Related Conferences
http://www.leasingnews.org/PDF/CFAConferences_2014.pdf

CFA Network Calendar
http://www.leasingnews.org/PDF/CFAEventsCalendar_2014.pdf

ELFA ---2014 Schedule of Conferences, Workshops
and e-Learning Opportunities
http://www.leasingnews.org/PDF/ELFA2014ScheduleInfo_1212014.pdf

 

Corgi
San Diego, California Adopt a Dog

Lexis

Pet ID #: 6489
Male
Color: White
Size: Medium

Additional Info:
Good with Dogs
Up-to-date with vaccines

"Lexis is a 1 year old male Corgi Mix who weighs 29lbs. DOB is approximately 2-1-13. He spent most of his puppy hood in a rescue in Ensenada and was acquired by the rescue to treat him for a terrible case of mange. Now that his mange is cleared up he is looking for kind and patient pet parents to help him adjust to life in the city. Lexis is curious about people but cautious about letting strangers pet him. It may take him a week or two to bond with all of the members of the household, but once he trusts you he a loyal and loving companion who won't leave your side. Lexis is affectionate, gives kisses and hugs, loves being petted and brushed, and loves to have his belly rubbed. He is 95% housebroken, walks with a loose leash, has excellent recall and gets along with other dogs as well as birds. He has a calm demeanor and lays quietly at dog-friendly restaurants, won't chew up the house when left alone, and loves riding (and sleeping) in the car.

Lexis' adoption fee is $200.00 - He is neutered, microchipped and up to date on his vaccinations.

Organization Contact Info:
Second Chance Dog Rescue
2435 C Street #5
San Diego, CA 92102
(619) 721-3647
apps@secondchancedogrescue.org
info@secondchancedogrescue.org
http://www.SecondChanceDogRescue.org

Office Hours: Monday & Tuesday 10am-5:30pm
Wednesday Closed
Thursday & Friday 10am-5:30pm
Saturday & Sunday Closed

Adopt a Pet
http://www.adoptapet.com/

 

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Classified ads—Marketing

Leasing Industry Outsourcing
(Providing Services and Products)

Marketing services creative boutique: ads, flyers, premiums, trade show support and much more. Over 15 years experience working with CIT and ORIX. Currently seeking new relationships: http://www.tollinadvertising.com/	SAWBUX: a different kind of marketing firm.  Built by deal guys for deal guys, we drive sales and create winning brands. Contact: email
Marketing: Generate Leads, Build Authority and Showcase your expertise with your own lease blog. Don't have the time? We do it for you. Complete turnkey blog setup and/or content only provided by leasing expert for leasing companies. Email for free evaluation stu@p2plendingexpert.com

All "Outsourcing" Classified ads (advertisers are both requested and responsible to keep their free ads up to date:
http://www.leasingnews.org/Classified/Outsourcing/Outsourcing.htm

How to Post a free "Outsourcing" classified ad:
http://www.leasingnews.org/Classified/Outsourcing/Outsourcing-post.htm

(Leasing News provides this ad “gratis” as a means
to help support the growth of Lease Police)

Leasing News: Fernando’s View: Easter Edition
By Fernando Croce

Though Christmas, Halloween and Thanksgiving all boast a long list of holiday-themed movies, Easter-related films are rarer but just as inspiring. With Easter Sunday right around the corner, take some time off from hunting eggs and chocolate bunnies and check Netflix for these classic holiday choices.

Easter Parade (Charles Walters, 1948): For a tuneful holiday, tune in to this MGM classic, a Fred Astaire-Judy Garland musical which bounces along as cheerfully as the Easter Bunny. On the eve of holiday celebrations, song-and-dance man Don (Astaire) is crushed to part ways with his stage partner Nadine (Ann Miller). Determined to prove that he can get somebody else, he picks naïve showgirl Hannah (Garland) and sets out to train her for next year’s Easter parade. As her dance steps grow more assured, so does their love for each other. But can their emotions stay strong in time for Hannah’s debut? Combining toe-tapping numbers with comic elements straight out of “My Fair Lady,” the movie provides a joyous way to spend Easter with loved ones.

It’s the Easter Beagle, Charlie Brown (Phil Roman, 1974): Created by legendary cartoonist Charles Schultz, the Peanuts gang became a favorite with young viewers for specials that taught the meaning of such holidays as Christmas, Thanksgiving and Halloween. The same goes for this funny and endearing feature, which finds Charlie Brown and friends getting ready to celebrate Easter. As the great egg hunt draws near, all the characters are pursuing their own way-+s of doing the holiday justice: Charlie Brown is concerned about the commercialization of Easter, Lucy is setting up her own private egg hunt, and Peppermint Patty is teaching Marcie the proper way to paint eggs. Meanwhile, Linus is telling everyone about the Easter Beagle, a role tailor-made for the one and only Snoopy. Amusing and heartwarming fun for the entire family.

King of Kings (Nicholas Ray, 1961): “Ben-Hur” and “The Greatest Story Ever Told” may be better-known Hollywood Biblical epics, but this retelling of the New Testament may be the most passionate version. From the birth in Bethlehem to the Crucifixion, the film follows Jesus (played by the underrated Jeffrey Hunter) in a large-scale yet intimate portrait of his telling encounters with John the Baptist (Robert Ryan), Barabbas (Harry Guardino), and Judas (Rip Torn). Known for “Rebel Without a Cause,” Nicholas Ray might seem like an usual choice to direct the movie, and yet his affinity for troubled outsiders works inventive and poignant wonders here, keeping a humane rather than grandiose eye on epic sequences like the Sermon on the Mount.

The Gospel According to St. Matthew (Pier Paolo Pasolini, 1964): For an unconventional yet inspiring account of the life and death of Jesus, try this one-of-a-kind classic from Italy. The director, Pier Paolo Pasolini, believed in the neo-realist style of movies, which told stories using real locations and (in contrast to most Hollywood epics) non-professional actors for maximum authenticity. As a result, his version of the story of Jesus (played by Enrique Irazoqui) often has the naturalistic freshness of a documentary, with the impression of a camera eavesdropping on the likes of Mary, Peter and John the Baptist. By cutting away at the pomp of typical Testament spectacles, Pasolini gets to heart of the teachings of Jesus, and makes viewers discover them anew.

The Last Temptation of Christ (Martin Scorsese, 1988): Martin Scorsese’s characters often deal with turbulent spiritual struggles, so it was only a matter of time before he directed a film dealing directly with Christ. When it was first released, this portrayal of the life of Jesus (played by Willem Dafoe) stirred tremendous controversy, condemned by religious figures before it even opened. Seen today, however, the most startling thing about it is how tender and lyrical it is in its view of a man torn between his holy and human impulses. Following Jesus and his relationships with Judas (Harvey Keitel) and Mary Magdalene (Barbara Hershey), Scorsese’s film is at once remarkably visceral and achingly spiritual, and a far preferable modern take than Mel Gibson’s blood-soaked 2004 epic.

 

News Briefs----

Four indicted in Sonoma Valley Bank collapse
http://www.pressdemocrat.com/article/20140410/articles/140419979

Fraud Admitted by Freehold Office Equipment Leasing Firm
http://freehold.patch.com/groups/police-and-fire/p/former-partner-of-freehold-office-equipment-leasing-firm-admits-fraud

Hottest New-Car Lease Deals -- Under $200/Month
http://www.forbes.com/sites/jimgorzelany/2014/04/11/hottest-new-car-lease-deals-under-200month/

NBN Co may have to pay Telstra $98b
http://www.smh.com.au/business/the-economy/nbn-co-may-have-to-pay-telstra-98b-20140414-36mbf.html

Insider Sells at 52-Week Highs
http://www.nasdaq.com/article/insider-sells-at-52-week-highs-cm343890

 

National Sales Representatives Experienced, with existing business to bring, all industries. Salary plus commission, good benefit package. AXIS - A, B, C lender for small and mid-ticket markets. Call Jean Harlow– 800.994.0016 email or forward resumes to: HR@Axiscapitalinc.com axiscapitalinc.com    Growing with fast approvals and quick fundings

 

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--You May Have Missed It

The Internet of Everything: 2014 (slide deck)
http://www.businessinsider.com/the-internet-of-everything-2014-slide-deck-sai-2014-2

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SparkPeople--Live Healthier and Longer

8 Things Your Dermatologist Won't Tell You
http://www.sparkpeople.com/blog/blog.asp?
post=8_things_dermatologists_wont_tell_you

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The Tax Poem

Tax his land, tax his wage,
Tax his bed in which he lays.
Tax his tractor, tax his mule,
Teach him taxes is the rule.

Tax his cow, tax his goat,
Tax his pants, tax his coat.
Tax his ties, tax his shirts,
Tax his work, tax his dirt.

Tax his chew, tax his smoke,
Teach him taxes are no joke.
Tax his car, tax his grass,
Tax the roads he must pass.

Tax his food, tax his drink,
Tax him if he tries to think.
Tax his sodas, tax his beers,
If he cries, tax his tears.

Tax his bills, tax his gas,
Tax his notes, tax his cash.
Tax him good and let him know ,
That after taxes, he has no dough.

If he hollers, tax him more,
Tax him until he's good and sore.
Tax his coffin, tax his grave,
Tax the sod in which he lays.

Put these words upon his tomb,
"Taxes drove me to my doom!"
And when he's gone, we won't relax,

We'll still be after the inheritance tax.

- -Author unknown

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Sports Briefs----

Michael Phelps ending retirement
http://espn.go.com/olympics/swimming/story/_/id/10780808/olympic-great-michael-phelps-ends-retirement-swim-april-meet

How MLB hurts its fanbase
http://sports.yahoo.com/news/how-mlb-s-blackout-policy-hurts-its-already-eroding-fan-base-055955588.html

The draft games begin
http://mmqb.si.com/2014/04/14/nfl-draft-jadeveon-clowney-monday-morning-qb/

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California Nuts Briefs---

Google buys drone company Facebook eyed
http://www.mercurynews.com/business/ci_25564797/google-buys-drone-company-facebook-targeted-reports-say

California scenic coastal expanse preserved near Santa Cruz
http://www.mercurynews.com/science/ci_25566354/california-scenic-coastal-expanse-preserved-near-santa-cruz

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“Gimme that Wine”

http://www.youtube.com/watch?v=EJnQoi8DSE8

Lessons From 40 Years of Winemaking
http://www.winesandvines.com/template.cfm?
section=news&content=131029

Sit and stay at these dog-friendly wineries
http://www.usatoday.com/story/experience/food-and-wine/best-of-food-and-wine/wine/2014/04/10/dog-friendly-wineries/7554827/

1973 Chateau Montelena Chardonnay Crafted by Miljenko "Mike" Grgich Named to Smithsonian's "101 Objects That Made America"
http://www.winebusiness.com/news/?go=getArticle&dataid=130926

Number of Texas wineries skyrockets
http://www.chron.com/life/food/article/Number-of-Texas-wineries-skyrockets-5389164.php

Free Mobile Wine Program
http://leasingnews.org/archives/Feb2010/2_26.htm#mobile

Wine Prices by vintage
http://www.winezap.com
http://www.wine-searcher.com/

US/International Wine Events
http://www.localwineevents.com/

Winery Atlas
http://www.carterhouse.com/atlas/\

Leasing News Wine & Spirits Page
http://two.leasingnews.org/Recommendations/wnensprts.htm