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Friday, July 13, 2012

Today's Equipment Leasing Headlines

    Take Charge of Google's Revised Privacy Controls
  by Nick Medioti,
     Classified Ads---Senior Management
30 Days---No Response!
 ---re: Marlin Bulletin Board Complaint
  Companies Who Do Not Notify Lessee regarding termination
   nor have such a standard for their discounters
New Hires---Promotions
   Classified Ads---Help Wanted
 "Pre-Funding of Leasing" ruling
   By Scott D. Chait, Esq.
  Fall Leasing Conferences---Up-date
   United Capital Refinances Multi-Unit Applebee’s® Operator
    $2 Million Illegal Tax Refunds on Deceased Returns
       Australian Shepherd Puppy
       Rancho Santa Fe Adopt a Dog
   Savages/Your Sister's Sister
    Margaret/Friends w/Kids/the Turin Horse
    Movies/DVD reviews by Fernando Croce
News Briefs---
Big United order allows Boeing to claim a successful Air Show week
   Former Sonoma National Bank chief to lead First Community Bank
      Bankruptcy in California Isn’t Seen as a Trend
         How the Richest 400 People in America Got So Rich

Broker/Funder/Industry Lists | Features (collection)
Top Ten Stories Chosen by Readers | Top Stories last six months

  You May have Missed---
   SparkPeople--Live Healthier and Longer
    Sports Briefs---
     Baseball Poem
      California Nuts Brief---
       "Gimme that Wine"    
          This Day in American History
           Daily Puzzle
               Weather, USA or specific area
                 Traffic Live----

######## surrounding the article denotes it is a “press release” and was not written by Leasing News nor information verified, but from the source noted. When an article is signed by the writer, it is considered a “by line.” It reflects the opinion and research of the writer. It is considered “bias” as it is the writer’s viewpoint.

Please send Leasing News and ask them to subscribe. We are free! Send email to and put in subject line: subscribe


Take Charge of Google's Revised Privacy Controls
by Nick Medioti

Google's privacy settings can be tricky to navigate, but these tips should help limit what Google can find out about you.

Google Dashboard
Go to

The Google Dashboard offers an overview of the information that Google has stored on your personal account across many of its services. You need to log in with your Google account (typically an email address). Click through the various services and review the data that Google is storing. Then clear out any data you no longer want associated with your account

Google Web History
Go to

Google Web History keeps track of your Web browsing to help Google serve you customized search results (and ads). Even while you're logged out of your Google account, Google can track your search history via a browser cookie. To turn this off, visit When here, click "Remove all web history."

On the next screen, click "OK" to confirm.

Google will then stop tracking your Web history. While you have completed this, according to Electronic Frontier Foundation, Google may continue to log the data for internal purposes to improve its search accuracy.

Disable Ads

You can go here also by going to settings. To disable personalized ads, head to settings or use the address above. In the left column, under "Ads on Search and Gmail', click "Opt Out" button to the right. You can always "opt in,” if you change your mind.

To prevent personalized ads that appear on other sites via Google’s Web ad services (a growing feature that works by looking at an ad, not choosing the product, but it is brought up to you again in Google News or another site), visit the same page as above. In the left column, under "Ads on the Web", click "Opt out" and click the "Opt out" button to the right.




Classified Ads---Senior Management

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

Philadelphia, PA
27 yrs. exp. sales, ops., credit, strategy, P&L mngmet. Most recently created & executed the biz plans for 2 highly successful Bank-owned small ticket leasing subsidiaries. 
Southern CA
20 years exp. as hands-on leasing CFO, managing accounting, treasury, FP&A, including securitizations, Great Plains/FRx, budgets, risk management.  MBA.  Also available as interim Controller/CFO, consultant.

Free Posting for those seeking employment in Leasing:

All “free” categories “job wanted” ads:


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30 Days---No Response!
---re: Marlin Bulletin Board Complaint

Ed Dietz, General Counsel for Marlin Business Services Corp., Mount Laurel, New Jersey wrote a letter to the editor that appeared in "Letters? We get eMail" June 13, 2012 stating: "...add Marlin's name to the list on of leasing companies that notify lessees in advance of lease expiration...

"Please allow this letter to serve as Marlin's formal demand that you immediately (1) post a correction on stating that Marlin does, in fact, notify lessees in advance of lease expiration (and locate such correction in at least as prominent a position as you gave to the inaccurate information you previously posted), and (2) add Marlin's name to the list on of leasing companies that notify lessees in advance of lease expiration. I expect the correction to appear today."

He had also included William G. Sutton, CAE, President & Chief Executive Officer, Equipment Leasing and Financial Association with an email regarding the "request."

Leasing News made this request in its response on June 13, 2012:

"Regarding Mr. Dietz request concerning notification of lessees regarding residuals, please start the dialogue by responding to this complaint posted April 4, 2012:

Marlin Business Services, Mount Laurel, New Jersey
 Bulletin Board Complaint

Leasing News has attempted since March 22, 2012 to contact officers at Marlin Leasing, with over six emails to one officer, including four telephone calls, as well as two emails to four officers followed up with two telephone calls. The emails included the complaint as well as the documents, and the telephone calls were follow-up to the emails.

There has been no response.

Ken J. Krebs
Beneficial Capital 
(800) 886 - 8944

“I’ve been in this industry for about twenty years and although the past three have been rough, overall it has been a great experience.  We have worked closely with so many quality people over the years, many who unfortunately are no longer around...I’m looking for some help, and hoping you may be able and willing.  One of our Lessee’s contracts, that had been sold to Marlin, was put into auto renewal because the Lessee neglected (forgot) to exercise their purchase option.  The contract was originally structured with two payments in advance as security deposit, followed by 60 monthly payments, and a 10% purchase option. They’ve recently realized they have now made 65 payments (five extra).  In an effort to settle, they have offered to pay Marlin an additional $1,500 and to forfeit the return of their security deposit.  This is a $25,000 contract with a $2,500 purchase option.  The security deposit amount is $1,196.36.  So, they are offering $1,500 plus $1,196.36 to settle the $2,500 purchase option.  If accepted, this would give Marlin an additional 5 full payments plus $196.36. Marlin has declined the offer and in turn has requested an additional $3,000 payment as well as forfeiture of the security deposit. Can you help with this?"


Patrick and Cynthia Tingling
D'Lor Salon & Spa
Atlanta, Georgia

“This is Patrick & Cynthia Tingling Owners of D’Lor Salon & Spa in Atlanta. We Regret that we have to take this course of action.
We feel that Marlin has received enough funds for the value of the equipment that was leased. We are willing to meet our obligations if they would meet us half way... the experience with marlin have left us a bad taste, hopefully you will be able to make sense to then that sometimes goodwill is far more valuable than driving customers away from the industry.
We must make a decision by tomorrow in order to prevent another monthly deduction from our bank account.
Patrick and Cynthia..."

It appears the lease payments are ACH and the lessee was not aware that the original lease was up until they had made five extra payments on a 10% Purchase Option, which they are will to make: 

There is no doubt this is not a "true lease" but a "capital lease" or "loan" in many states. This lease has a Pennsylvania choice of law and a Pennsylvania mandatory forum -- even though the lessee is in Georgia, the vendor is in Missouri, and there is absolutely no connection to Pennsylvania.


Michael J. Witt, Esq.
4342 Oakwood Lane
West Des Moines, IA 50265
Tel: (515) 657-8706
Mobile: (515) 868-1067
Fax: (515) 223-2352

“In my opinion Marlin stands on shaky grounds here.  Most so-called ‘10% purchase option’ transactions in the small-ticket arena are not true leases under UCC 1-302 but are, instead, loans.  It is preposterous to say that a loan can have an ‘automatic renewal’ provision.  (How would anyone feel if, after paying off their mortgage over 30 years, the bank called and said the mortgage had "automatically renewed" for an additional 12-month period based on an auto-renewal clause hidden in the fine print?!) 

“Marlin, we must all admit, was entitled to a particular return at the end of the 5-year term of this lease.  However, it is now trying to illegitimately (in this one attorney's opinion) bloat its originally planned-for return by taking advantage of the fact that when this small-business lessee took out this lease in 2006, it did not purchase a un-purchasable 2011 calendar to mark the date it was required to notify Marlin not to renew the lease. 

“Few people know that if Marlin did not have an auto-renewal program, it would be losing money (which only begs the question, how much longer do Marlin investors think that this flimsy business model can endure?).  If this is not a true crime under our criminal codes, it is a crime against the industry that so many of us try to uphold every day we go to work.”

D’Lor Salon & Spa Lease Contracts:

June 13, 2012---Letters??---We get eMail



Companies who utilize Evergreen Clauses for Extra Lease Payments

These companies use language in their purchase options to confuse, perhaps to deceive, with the result an automatic continuation for an additional twelve months of payments.

Several have contiuation of payments and the requirement of replacing the equipment for a new lease. Leasing News has had complaints involving companies who invoke the twelve months on a $1.00 purchase option, as well as on an Equipment Finance Agreements.

ACC Capital, Midvale, Utah
IFC Credit, Morton Grove, Illinois
Jules and Associates
LEAF Financial Group, Philadelphia, Pennsylvania
Marlin Business Leasing, Mount Laurel, New Jersey
Marquette Equipment Finance, Midvale, Utah
Mazuma Capital Corporation, Draper, Utah
Onset Financial, South Jordan, Utah
Republic Bank, Bountiful, Utah
Tetra Financial Group, Salt Lake City, Utah

ACC Capital, Midvale, Utah---This company is no longer in business, although its portfolio is being wound down, according to its owner Loni Lowder; the receivables are being collected by creditors. Lowder today is an employee, manager, Stalwart Contract Finance, Salt Lake City, Utah. To date, all Evergreen Clause complaints have been satisfied.

IFC Credit, Morton Grove, Illinois---This company is in bankruptcy, appeared many times in the Leasing News Bulletin Board prior to filing bankruptcy, but engaged in Evergreen Clauses, and unfortunately a recent example is a complaint to the trustee, stemming from M&T Bank lease assignment expiring and notify the lessee that they did not notify about the residual, which was a $1.00. This has happened many times with other banks who have taken over the IFC Credit Corporation portfolio. Calls and letters to the trustee and attorneys have gone unanswered.

Jules and Associates, Los Angeles, California--- Jules and Associates, Los Angeles, California---A repeat customer, who notified Jules and Associates on a lease, but was not before the 180 day expiration, so Jules and Associates instead of the 1% due for the residual ($2,308.79) charged six more payments or $40,463.94, and if 1% is not paid in this time, they will be subject to another three months.

LEAF Financial Group, Philadelphia, Pennsylvania---It appears this company is in a more wind down phase, moving its operation of LEAF Commercial Credit with basically the same management. There have been complaints about the Evergreen Clause, including one this year for an Equipment Finance Agreement!

Marlin Business Leasing, Mount Laurel, New Jersey---The actual SEC filings state the profit earned from Evergreen Clause, primarily from copier leases. Bulletin Board Complaints have been received about this practice in addition to the SEC financial statement filings.

Marquette Equipment Finance, Midvale, Utah --- According to Dorran Sampson, Vice-President/Broker Relations: "Marquette Equipment Finance does not offer an Evergreen product. Our master lease provides for extensions but is negotiated at the schedule level. Notice periods are also negotiated at the schedule level and vary depending on the Lessee’s needs."

When the company was bought and became Pacific Western Equipment Finance (a division of Pacific Western Bank) he maintained the same position. It was noted his old company was still on the list, and a request of his "master lease" was made.

"Our docs are the same as when we were with Marquette. Because we’re public now, it is very difficult to get documents released."

I asked him if he could send to a broker wanting to do business with him, "Sorry, can’t forward to you or your brokerage."

A search of PACER, a national index for U.S. district, bankruptcy and appellate courts brought up a number of Marquette cases, and the first one hit pay dirt: Merchants & Farmers Bank, a Mississippi Corporation versus Marquette Equipment Finance and Applied Financial. It was a similar case and while "dismissed with prejudice" (6), it had the arguments regarding the purchase option and a copy of the complete contract with a similar PPR as with Mazuma Capital:

"(g) Lessee's Options at End of Initial Period. At the end of the Initial Period of any Lease, Lessee shall, provided at least one-hundred-eighty (180) days prior written notice is received by Lessor from Lessee via certified mail, do one of the following: (1) purchase the Property for a price to be determined by Lessor and Lessee, (2) extend the Lease for twelve (12) additional months at the rate specified on the respective Schedule, or (3) return the Property to Lessor at Lessee's expense to a destination within the continental United States specified by Lessor and terminate the Schedule; provided, however, that for option (3) to apply, all accrued but unpaid late charges, interest, taxes, penalties, and any and all other sums due and owing under the Schedule must first be paid in full, the provisions of Sections 6(c) and (d) and 7(c) hereof must be specifically complied with, and Lessee must enter into a new Schedule with Lessor to lease Property which replaces the Property listed on the old Schedule. With respect to options (1) and (3), each party shall have the right in its absolute and sole discretion to accept or reject any terms of purchase or of any new Schedule, as applicable. In the event Lessor and Lessee have not agreed to either option (1) or (3) by the end of the Initial Period or if Lessee fails to give written notice of its option via certified mail at least one-hundred-eighty (180) days prior to the termination of the Initial Period, then option (2) shall apply at the end of the Initial Period. At the end of the extension period provided for in option (2) above, the Lease shall continue in effect at the rate specified in the respective Schedule for successive periods of six (6) months each subject to termination at the end of any such successive six-month renewal period by either Lessor or Lessee giving to the other party at least ninety (90) days prior written notice of termination."

The first option is to purchase the equipment for a price to be determined by Lessor and Lessee and requires a certified letter 180 days prior. This sounds like a fair market purchase option, but the “price to be determined” language means that the Lessor can set any price it wants. This option is illusory in my opinion.

The second option is to continue the lease for an additional 12 months, the “Evergreen” period. No notice of this provision is given to the lessee either in advance of signing or prior to exercising this option. Republic Bank purchases these 12 month extensions in advance of their exercise. How would the bank know that the lessee is going to exercise this option, unless everyone knows it is the only practical option for the lessee to exercise? Republic Bank President Boyd Lindquist confirmed in a telephone call that he “buys” these extensions from Mazuma and has for quite some time.

The third option is to return the equipment, but the clause is draped with the condition that the lessee has to re-lease identical equipment for a similar term. It also has 180 day certified letter requirement, and applies to the second option of 12 months, but also has the clause of an automatic six month option. So what is the point of exercising this option? At the end of this re-lease, there would be the same three identical options, so the lessee would be required to re-lease and re-lease. It’s just like Groundhog Day.

Leasing News is working on obtaining information on other companies so named to add to the list, including follow-up on the master lease for Pacific Western Equipment Finance. If you have a copy, please send and will keep your name “off the record.”

((7) See for Copy of Filing, including contract.)

Mazuma Capital Corp, Draper, Utah Several routie "end of lease agreements, as alleged in Unified Container and Anderson Dairy (1) "8. The basic scheme involves the inclusion of a purchase, renewal, return (“PRR”) provision in the lease. The lessor assures the customer they will be able to purchase the equipment at the end of the initial term in the lease for a reasonable or nominal price. Often, the lessor promises the equipment can be purchased at a fixed percentage of the total amount financed. However, at the end of the initial lease term, the lessor refuses to honor the agreed upon purchase price or negotiate in good faith regarding a purchase price, but instead, insists the lease automatically renews for an additional term (usually twelve months).

9. The inclusion of the purchase and return options in the lease are entirely illusory and intended only to give the customer the false impression that it can exercise any of the three options at the end of the initial lease term, when in fact, the lessor will only allow an automatic renewal at the end of the initial lease term.) There are other exhibits. This case was settled "out of court."
    (page 3)

H. Jared Belnap, President & CEO, Mazuma Capital Corp., takes exception on beingon the Evergreen list. His full letter and Leasing News Response is at (5).

Onset Financial, South Jordan, Utah --- Onset contract, which contained:

“Section 20
n. Lessee's Options at Maturity of Base Period. At the maturity of the Base Period of any Lease, Lessee shall, provided at least one hundred fifty (150) days prior written notice is received by Lessor from Lessee via certified mail, do one of the meowing: (1) purchase the Property for a price to be determined by Lessor end Lessee, (2) renew the Lease for twelve (12) additional months at the rate specified on the respective Schedule, or (3) terminate the Schedule and return the Properly to Lessor at Lessee's expense to a destination within the continental United States specified by Lessor; provided, however, that for option (3) to apply, all accrued but unpaid late charges, interest, taxes, penalties, and any and all other sums due end owing under the Schedule must first be paid in full, the provisions of Sections 8f, 8g and 7d hereof roust be specifically complied with, and Lessee must enter into a new Schedule with Lessor to lease Property which replaces the Property fisted on the old Schedule. With respect to options (1) and (3), each party shall have the right in its absolute and sole discretion to accept or reject any terms of purchase or of any new Schedule, as applicable. In the event Lessor end Lessee have not agreed to either option (1) or (3) by the maturity of the Base Period, or if Lessee fails to give written notice of Its option via certified marl at least one hundred fifty (150) days prior to Use maturity of the Base Period, or if an Event of Default has occurred under any Lease, then option (2) shall apply at the maturity of the Base Period. At the maturity of the renewal period provided for In option (2) above, the Lease shall continue in effect at the rate specified in the respective Schedule for successive periods of six (6) months each subject to termination at the maturity of any such successive six-month renewal period by either Lessor or Lessee giving to the other party at best thirty (30) days prior written notice of termination." (1)

((8) See for Copy of Onset Contract with PPR purchase option.

Republic Bank, Bountiful, Utah Purchases and participates in extended Evergreen clause agreements.

They are legal in all states, except four states require advance notification be given to the lessee regarding termination of the lease and its residual (Four states: New York Rhode Island, Texas, Illinois (In Illinois, Consumer law, but may affect commercial, especially a proprietorship, partnership or personal guarantee)"

Tetra Financial Group, Salt Lake City, Utah Several routine "end of lease agreements, as alleged in Unified Container and Anderson Dairy (1)

“22. Mazuma Capital is associated with Republic Bank and obtains financing for its leases containing PRR provisions from Republic Bank.

23. Like what took place at Amplicon, Inc., the PRR scheme utilized by Matrix, Applied Financial, LLC, Mazuma Capital, Tetra Financial Group, LLC and others has begun to be exposed through litigation and negative press. See Deseret News (2) articles attached hereto as Exhibits B (2) and C. (3)”

Here is a case where New York courts threw out the Evergreen Clause as not legal in New York, even though venue appears to be Utah. (4))

(1) 36 main pdf

(2) Deseret News

(3) Exhibit C

(4) Salon Management case

(5) Mazuma Takes Exception on Being on Evergreen List

(6) Order to Dismiss with Prejudice

(7) Copy of filing, including contract

(8) Copy of Onset Contract with PPR purchase option



New Hires---Promotions

Steve Anderson has joined the Commercial and Specialty Finance Business as senior vice president and business development officer to support the Healthcare lending team, Capital One Bank. Previously he was senior director, Oxford Finance, joining the firm March, 2011. Previously he was director, Capital Source Finance (April, 2003-Feburary, 2011), vice-president, Kugman Associates, Capital Markets (October, 2001-April, 2003), vice-president, Finova Capital Corporation (May, 1996-October, 2001), Associate/Operations Manager, LINC (December, 1993-May, 1996). DePaul University MBA, Finance (January 1995 – June 1998) The University of Iowa BA, Broadcast Communications (August 1988 – August 1993) Activities and Societies: Tau Kappa Epsilon.

Jim Coates promoted to regional vice president, client relations, Midwest, for LeasePlan, USA. He joined the company in February, 2008. Previously he was branch manager, Enterprise Rent-a-Car (January, 2033-February, 2008). Georgia Institute of Technology - Georgia Tech College of Management BS MGT, Finance, Chemical Engineering (1994 – 2000). Member: NAFA' Honors and Awards: CAFM (Certified Automotive Fleet Manager)

John Kosko joins TD Bank as vice-president, business development officer in SBA Lending for Northern New Jersey." He will be focused on providing SBA financing to qualified small businesses throughout Passaic and Hudson counties in Northern New Jersey. Previously he was director, credit and risk management, CIT Bank, small business Lending (May, 2010-June, 2012), regional sales manager, CIT Small Business Lending (2006-May, 2010), vice president, small business lending (2004-2006), vp-small business lending, TD Bank (2003-2004), commercial loan officer, Valley National Bank (1992-1998). Seton Hall University MBA, Finance (1994 – 1998) Penn State University BS, Quantitative Business Analysis (1988 – 1992).

Chuck Sell appointed senior vice president of sales and marketing, Northland Capital Financial Services, Minnetonka, Minnesota. Previously he was SVP Diversified Industries Sales Manager, TCF Equipment Finance (2009-July, 2012), National Sales Manager, TCF Equipment (February, 2001-September, 2008)Stonier Graduate School of Banking (2003 – 2006) Boston University M.S.B.A., Business Administration, Management and Operations (1984 – 1985), St. Cloud State University Bachelor of Science (B.S.), Business Administration and Management, General (1980). Activities and Societies: President - SCSU Aero Club.


Leasing News Help Wanted

Dallas-Fort Worth
Seasoned Leasing professional in Dallas-Fort Worth area, experienced in 3rd party generated business. Must be highly ethical, self starter with a good understanding of financials and able to produce immediately and consistently. Generous commissions paid and
benefits after initial trial period.

Please submit resume to
Contact: Ron Mitchell 214-615-0667 direct


Exp. only, 1 Southeast, 1 West Coast
Looking to Expand Your Career
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Ads are placed in the "Help Wanted' section by category, alphabetical, with the ad with the most lines first in the group. They appear on the web site and in each news edition at the top, not in flash, but in separate news editions. (The “help wanted” top ad are changed in each news edition in sequence with other “help wanted” ads, mostly in a chronological basis.) The ad always appears in the classified help wanted section in each news edition, plus remains on the web site, even when it appears at the top of the headlines.

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Pre-Funding of Leasing” ruling

By Scott D. Chait, Esq.
Peretore & Peretore, P.C.

An increasingly common issue in the equipment finance industry is vendors and customers demanding pre-funding before delivery of the equipment. As such, while courts generally look askance at waivers of rights and remedies under the UCC, equipment lessors should take note of a 2011 case out Iowa in which the court held that the parties could contractually waive acceptance of goods as a prerequisite for application of Article 2A’s “hell or high water” provision.

In GreatAmerica Leasing Corp. v. Wahoo Productions of Florida, Inc., 2011 U.S. Dist. LEXIS 43467 (N.D. Iowa Apr. 21, 2011), the defendant entered into a finance lease to acquire certain equipment for its three Floridian restaurants. While some of the equipment had been delivered and installed, the remainder was being held by the vendor until one of the restaurants was completed.

Despite delivery not being completed, at the request of the lessee the lessor paid the vendor in full. However, the lessor did so only after receipt of an additional guaranty and, most importantly, execution of a lease addendum which provided, in part, that the lessee acknowledged and agreed that the lessor had paid the vendor in full at the lessee’s request despite not all the equipment being delivered and the lessee nonetheless agrees that the lease commences immediately and is non-cancelable, including that the lessee will make all payments even if the remainder of the equipment is not delivered.

This point was critical because under Article 2A’s “hell or high water” provision (UCC §2A-407), a lessee’s obligations to make payment becomes irrevocable only upon acceptance of the goods. While there clearly had been no acceptance of the goods which had not yet been delivered (pending completion of one of the restaurants), the court held that acceptance of the goods was not a necessary predicate for the lessor to benefit from the “hell or high water” provision because the lessee had expressly waived that requirement in the lease addendum.

The Court’s reasoning turned on (i) the fact that the UCC provides that its provisions “may be varied by agreement” (Iowa Code § 554.1302) , (ii) the defendants cited no authority that its right to acceptance under the Code could not be varied, and (iii) especially in light of the lease addendum, “the actual delivery and receipt of equipment is not an absolute requirement to enforce an equipment lease as to the finance lessor.” GreatAmerica Leasing Corp., 2011 U.S. Dist. LEXIS 43467 at *27.

While it’s unclear if the reasoning of the Iowa court will apply in other jurisdictions, or whether it’s applicable in non “finance lease” scenarios (i.e., secured transactions under Article 9), the lesson of GreatAmerica is clear: while actual delivery still remains the ideal scenario to ensure benefit from the protections of “hell or high water” provisions, if circumstances (as they now often do) call for payment to the vendor prior to actual delivery, it’s wise to have the lessee sign a lease addendum acknowledging the non-delivery, but confirming that the lease has nonetheless commenced, is non-cancelable, and the lessee will perform all obligations, including make all payments even if the equipment is never delivered (the addendum at issue in GreatAmerica also contained a waiver of defenses against the lessor, but a lessor should go one step further and include a waiver of defenses against its assignees as well; while this waiver would likely already be included in the lease itself it should be re-iterated in the addendum since it’s such a potent weapon for an assignee (unlike a “hell or high water” provision, a waiver of defenses against assignees provision is not vulnerable to a defense of fraud in the inducement)).

In addition, the case is a good reminder to have well-drafted delivery and acceptance receipts, signed and dated by the lessee in which he acknowledges delivery, installation, the good working order of the equipment, and that the lease is non-cancelable and he waives all defenses.

Finally, lessors should also consider taking a separate promissory note or entering into a side agreement for the pre-funding amount (as well as requiring separate guarantees from the guarantors even if the guarantees of the lease are continuing; there is case law out there that if the lease never commences, neither do the guarantees). This way, if the lease never commences, the lender will have a direct and unconditional obligation from the lessee and guarantors for payment of the pre-funding amount, plus interest.

Scott Chait is an associate with Peretore & Peretore, P.C. and can be reached at or (973) 729-8991.

(1) While the defendants disputed at trial that the lease contained a contractual “hell or high water” clause, since the parties agreed that the lease constituted a “finance lease” under Article 2A, the point was moot because the statutory “hell or high water” provision attached to the lease (and regardless, the Iowa Supreme Court and courts in other jurisdictions routinely uphold contractual “hell or high water” provisions; see e.g., C & J Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65, 78 (Iowa 2011); Wells Fargo Bank Minn. v. Brooks America Mortg. Corp., 2004 U.S. Dist. LEXIS 18573, at *15-17 (S.D.N.Y. Sept. 13, 2004), aff’d 419 F.3d 107 (2d. Cir. 2005); Lyon Fin. Servs., Inc. v. Young Vending Servs., 2003 Minn. App. LEXIS 1180, *2-3, 11 (Minn. Ct. App. 2003).

(2) A provision also included in other states’ versions of the UCC, such as such as New York and New Jersey. See NY CLS UCC § 1-102(3); N.J. Stat. § 12A:1-102(3).

Gary DiLillo, President 440.871.0555 or

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Andy Alper
Frandzel, Robins, Bloom & Csato

Barry Marks
Marks & Weinberg, P.C.

Dwight Galloway
RLC Funding a Division of Navitas Lease Corp

Eric Myers
TAB Bank

Frank Peretore
Peretore & Peretore, P.C.

Geoff Peters
Weltman, Weinberg & Reis Co., L.P.A.

Joe Leonard
Oakmont Capital Services

Roxana Safranek
LeaseTeam, Inc.

Skip Wehner
Pinnacle Capital

Terey Jennings
Financial Pacific Leasing, LLC


September 13—15
Funding Symposium
Rennaisance Washington, DC Dupont Circle Hotel
1143 New Hampshire Avenue, NW
Washington, DC 20037-1522

Chairperson for 2012 Funding Symposium
Lori A. Dean, CLP,
VP, Equipment Finance Operation Manager
Arvest Equipment Finance


October 21-23
ELFA 51st Annual Convention
JW Marriott Desert Springs
Palm Desert, California

Keynote Speakers
19th Chairman of the Federal Deposit Insurance Corporation

Member, Financial Accounting Standards Board

Expert in Branding and Marketing

Convention Brochure, Register, Community Service Projects


November 4-5
2012 Expo NJ Super Regional Meeting
Teaneck Marriott at Glenpointe


November 7 - 9, 2012

32nd Annual Fall Conference
Hilton La Jolla Torrey Pines
La Jolla, California


November 14-16
67th Commercial Finance Conference
JW Marriott Hotel
Phoenix, Arizona


April 18-20, 2013
Annual Conference
Las Vegas, Nevada


To view Leasing Association Events-Meetings Open to All, please click here.




#### Press Release #############################

United Capital Refinances Multi-Unit Applebee’s® Operator

HUNT VALLEY, MD – United Capital Business Lending, a national business lender specializing in franchise finance, announced today that it provided $6,330,000 in financing to Applebee’s® owner, Apple Two Associates, Inc. United Capital refinanced the franchisee’s 15 locations in Florida, Georgia and Alabama.

William Johnson
Sr. VP, Sales/business Development

“United Capital is pleased to partner with Applebee’s® operators during such a transformative time for the brand,” says William Johnson, senior vice president of sales and business development for United Capital. “Our lending programs for remodels, acquisitions, new store development and debt refinancing are helping Applebee’s® franchisees to capitalize on new growth initiatives.”

United Capital Business Lending is a subsidiary of BankUnited (NYSE: BKU), the largest bank headquartered in Florida with over $12 billion in assets.

In addition to Applebee’s®, the United Capital team has financed franchisees for Buffalo Wild Wings®, Denny’s®, Wendy’s®, Popeyes® and Sonic® among others.

For information about financing for franchise acquisition, new unit development, remodeling or debt refinancing, call United Capital at 866-218-4793 or visit the company’s website at

##### Press Release ############################


##### Press Release ############################

$2 Million Illegal Tax Refunds on Deceased Returns

Los Angeles- Masood Chotani, a Los Angeles county former CPA and tax return preparer that spent the last three years as a fugitive in Pakistan, was arraigned on charges that he conspired to defraud the United States and made false claims for income tax refunds, the Internal Revenue Service (IRS). A federal grand jury in Riverside returned an indictment against Chotani on June 23, 2010. The indictment was unsealed earlier this year.

The Indictment alleges that in 2002 and 2003, Masood Chotani, Ather Ali, of Diamond Bar, and Haroon Amin, of Upland, conspired to file at least 250 false income tax returns with the IRS using names and Social Security Numbers of deceased individuals, claiming more than $2,000,000 in tax refunds.

The indictment further alleges that many of the illegally obtained refund checks were deposited into bank accounts within the Islamic Republic of Pakistan and the Republic of Armenia.

According to court documents, most offenses occurred in SanBernardino, Los Angeles, Orange, Riverside, and Ventura counties. Chotani is also charged with personally preparing and filing two false claims for refund on federal income tax returns.

Trial is scheduled for September 4, 2012. If convicted, Chotani faces a maximum potential penalty of five years’ imprisonment and a $250,000 fine for each count of conspiracy and presenting false claims.

This case is being prosecuted by Assistant U.S. Attorney Charles E. Pell and Trial Attorney Joseph A. Rillotta of the Justice Department’s Tax Division. This case was investigated by special agents of the IRS Criminal Investigation office in Laguna Niguel. The apprehension of Chotani was made with assistance from the U.S. Marshals Service.

An indictment is merely a formal charge by the grand jury. The defendant is presumed innocent unless and until proven guilty beyond a reasonable doubt.

### Press Release ############################

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Australian Shepherd Puppy
Rancho Santa Fe, California Adopt-a-Dog

Australian Shepherd mix
12.5 lbs
Estimated DOB: 4/4/2012

“Hello! I am a very energetic pup that loves people but needs guidance and a lot of exercise to be the best I can be. Ideally I should go to a home that is active and has the time to take me on very long walks or even jogs or trail hikes. If you are looking for an active best friend who also loves the great outdoors, I could be the one for you. I am here waiting to meet you - so please stop by soon!”

“Please make a donation to help care for me until my new family finds me and takes me home.”

Helen Woodward Animal Center
Location: 6461 El Apajo Road Rancho Santa Fe, CA 92067
Adoption Center Hours: 12-6 M-F, 10-6 Sat, 11-6 Sun. (Holiday Hours)
Friday summer hours -12:00-7:00pm
Phone: (858) 756-4117, Option 1 Adoption


Adopt-a-Pet by Leasing Co. State/City

Adopt a Pet



Fernando's View
By Fernando F. Croc

This week's theater releases present romantic triangles both gritty ("Savages") and endearing ("Your Sister's Sister"), while DVD releases offer a great film that was nearly lost ("Margaret"), sassy humor ("Friends with Kids"), and uncompromising drama ("The Turin Horse").

In Theaters:

Savages (Universal Pictures): Following the relatively sedate releases of "W." and "Wall Street: Money Never Sleeps," controversial director Oliver Stone brings back his hallucinatory side in this gritty, intense thriller. The tricky plot centers on a romantic triangle anchored by Ophelia (Blake Lively), a young California woman who's in love with both Ben (Aaron Johnson), a peace-loving botanist, and Chon (Taylor Kitsch), a tough former military officer. Their relationship goes hand in hand with the run by the profitable marijuana business ran by two men, but things quickly go from smooth to chaotic when they refuse to be bossed around by a powerful Mexican drug cartel. When Ophelia is kidnapped, Ben and Chon band together to take on a ruthless crime queen (Salma Hayek) and her sadistic enforcer (Benicio Del Toro). A fast-paced, unpredictable rollercoaster ride, this is Stone in full visceral mode.

Your Sister's Sister (IFC Films): Writer-director Lynn Shelton follows up on her acclaimed debut "Humpday" with this warm and engaging comedy-drama. Focusing mainly on the shifting emotions between a trio of characters, the movie begins with its blend of the awkward and the heartfelt as thirtysomething schlub Jack (Mark Duplass) runs into his best friend Iris (Emily Blunt) at his brother's funeral. Hoping to ward off his depression, Iris sends Jack off to stay at her family's summer home, where he meets her half-sister Hannah (Rosemarie DeWitt). When romance starts to brew between the two, Jack and Hannah decide to keep things secret from Iris. But can a budding relationship compete with family bonds? Deftly steering the plot back and forth between light farcical complications and intense emotional moments, Shelton and her talented cast come up with a totally disarming charmer.

Netflix Tip: Love him or hate him, there's no denying the originality and passion of writer-director Oliver Stone. "Savages" may be his latest offering, but his career doesn't lack for cinematic provocations. So check out his earlier, often controversial films, from "Platoon" (1986), "Wall Street" (1987) and "Born on the Fourth of July" (1989) to "Natural Born Killers" (1994), "Nixon" (1995) and "Any Given Sunday" (1999).


Margaret (Fox): Made in 2005 and then shelved for years as its writer-director, Kenneth Lonergan, struggled to come up with a satisfactory cut, this sprawling, multi-character drama has become almost legendary among movie buffs as a lost masterpiece. Now it finally comes to DVD, and, wondrously, more than lives up to the hype. Set in Manhattan, it traces the messy chain-reaction of events that takes place when Lisa (Anna Paquin, in a remarkable performance), a young college student, accidentally causes a traffic accident. With the consequences weighing down on her conscience, she desperately seeks solace in her interactions with her mother (J. Smith-Cameron), her teacher (Matt Damon), and a bus driver (Mark Ruffalo). Always keeping the complex narrative involving and emotional, Lonnergan weaves an ultimately unforgettable mosaic of human connection, pain, and redemption.

Friends with Kids (Lions Gate): Audiences who made "Bridesmaids" one of last year's runaway hits will want to check out this new ensemble comedy, which has much of that movie's risqué humor along with much of its cast, too. Like the earlier film, it chronicles the ways in which a sudden turn of events in a woman's life affects a close group of friends. The difference is that the events here deal not with an impending wedding, but impending children. At the story's center are Julie (Jennifer Westfeldt, who also directed) and Jason (Adam Scott), best pals whose desire to have a baby without really becoming a couple forces them to take a closer look at their relationship. Kristin Wiig, Maya Rudolph and Jon Hamm lend solid comic supporting turns in this engaging and at times insightful look at parenthood.

The Turin Horse (Cinema Guild): Movies don't come any more uncompromising than this challenging drama from Hungarian master director Bela Tarr. Like everything else, the plot is stark in its simplicity. An semi-disabled old farmer (Janos Derzsi) lives in a desolate patch of land with his daughter (Erika Bok) and his ailing horse. They've developed a rigid daily routine for life and work, but, as the weather worsens and supplies dwindle, they find themselves facing an increasingly bleak future. Descriptions of it may sound oppressively forbidding, and yet Tarr's tale brims with exciting visual rigor, a silent movie-like feeling for elemental intensity, and a submerged streak of humor. The results may be rough-going for viewers looking for simple entertainment, but adventurous movie lovers will be mesmerized from beginning to end. With subtitles.


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Sports Briefs----

Where football rules, morality loses,0,1802708.column

Paterno, not Sandusky, brought down Paterno's legacy

Southern California

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Baseball Poem

by Hank Festa (Los Angeles, CA)

Oh why should the ball of bases be proud? 
Like spring trainings silent and fall playoffs loud 
A season-saving play, a bad ump call replay 
It all belongs to the ages come Judgment Day

The measure of triumph and defeat shall thee grade 
By the end of the year it counts when it's played 
When the luck of the draw or the stars up above 
Can erase the fatalism of the game that we love

The hopeful of eternal optimist mind 
The critic, the expert and their pedant kind 
The stat and the box score, the fan and the fun 
Have no scores left to settle when the home team has won

The hitter who gambles, the gambler who hits 
The brass-ringed hill-toppers with the glass-enclosed mitts 
The famers, the gamers, the shunned and the whinning 
All use the big show for father time's sand mining

The glare of the closer one out away 
The stare of the slugger walked in his way 
The foul of ball and pine of tar 
Protect mortality's cheaters by far

The utility man whose BA is a wash 
The role player riding the bench by gosh 
The subbed deer-in-the-headlight sigh 
Can make history in the blink of an eye

The hero who ran and stole home plate 
The goat a dollar short and a day late 
Every mastered moment or scenic crime 
Has hit or miss a place for all time

So the common man dreams for the chance to lose 
To give his life legend short of booze 
So the record books balk at those who win 
In cahoots with folly to make up for sin

For the watcher and the doer are halves of the same breed 
One takes to greatness and the other gives it seed 
We worship the same field and toss the same ball 
Either with Cracker Jacks or plaques in the Hall

The teams we are rooting, our fathers would root 
Through the win or the loss, our loyalty is moot 
Wait until next year we'll give them a bye 
As long as they win before we die

Each winter off season we confront the bitter frost 
Of years and times of our lives lost 
Marking the past as an innocent lot 
When youth was served but October was not

Forever is a finite stat for winners 
Save always for ageless 7th game sinners 
Eternity is the trying that plays life's game 
Effort is immortality and success is a fickle dame

Thus we know the reason why we'll never have our fill 
When you watch the game hope and time stand still 
The balls and strikes slow down the clock on the wall 
For the chance to substitute winning for the end of it all

Beyond victory is a mindset called loss of hope 
With nothing left to look forward to and no reason to cope 
If tis but a metaphor for a short life cycle crowd 
Then why should the ball of bases be proud?

» Hank Festa's poem, dedicated to the late Steve Bechler, is partially based on verse from "Mortality", by Scotsman William Knox (1789-1825).





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This Day in History

      1585 - A group of 108 English colonists, led by Sir Richard Grenville, reached Roanoke Island, North Carolina. Roanoke Island near North Carolina became England's first foothold in the New World. Sir Walter Raleigh sent a detachment of 108 men to build a fort on the island. The detachment included two scientists, Thomas Hariot, a surveyor, mathematician, astronomer and oceanographer, and Joachim Gans, a metallurgist.
    1729—Birthday of Minuteman John Parker. “Stand your ground. Don't fire unless fired upon, but if they mean to have a war, let it begin here.” Captain John Parker to the company assembled on Lexington Green. 
    1787- the Continental Congress enacted a slavery ban for a territory of the United States. The law prohibited slavery forever within the borders of the Northwest Territory, a region east of the Mississippi River, north of the Ohio River, south and west of the Great Lakes, and west of Pennsylvania.     1821--I am sorry to report this is an official holiday in the State of Tennessee, where they celebrate the birthday ( 1821) of Forrest Nathan Bedford. He is a Confederate cavalry commander who was also one of the founders of the original Klu Klux Klan. The KKK was composed of many ex-Southern Civil War soldiers, almost as if it were a “veterans organization.”
    1832 - Ethnologist Henry R. Schoolcraft was the first white person to arrive at the source of the Mississippi River at Lake Itasca, Minnesota. A pioneer in Native American studies, Schoolcraft conducted ethnological research among the Ojibwa in the Great Lakes region.
    1863-starting today and lasting until July 16, antidraft riots broke out in New York City. Modern history's bloodiest riot began when a mob of 50,000 Civil War draft protesters burn buildings (including an orphan asylum), stores and draft offices, attack police. Some club, lynch and shoot large numbers of blacks, who they blamed for the war. Rioters were protesting the provision allowing true red-blooded flag-waving Americans to make cash payment in place of serving in the army. When troops returning from Gettysburg finally restored order, 1,200 were dead.
    1863-- Mary Emma Woolley birthday, president of Mt. Holyoke College (1900- 1937) who under strong leadership expanded it to a major learning institution.
   She was voted one of the 12 most influential women in America.
    1865 Horace Greeley advises his readers to "Go west young man.”
    1868 --Oscar J Dunn, former slave, installed as lieutenant governor of Louisiana.
    1869 -- Street riots against Chinese laborers begin in San Francisco.
    1869 --  Street riots against Chinese laborers begin in San Francisco
    1886--- Birth of Father Edward Flanagan, American Catholic parish priest. Believing there was 'no such thing as a bad boy,' in 1922 he organized Boys Town near Omaha, Nebraska.
    1897- A US patent is granted to inventor Guglielmo Marconi for the radio. 
    1915- Baltimore, MD, became the first city to support a City orchestra  ( $6,000 ).
    1936 112ø F (44ø C), Mio, Michigan (state record)
    1936 114ø F (46ø C), Wisconsin Dells, Wisc. (state record)
    1938 - When the first television theatre opened in Boston, Massachusetts, spectators paid 25 cents to witness the event. Attended by 200 people, the variety show included dancing and singing, and lasted 45 minutes. The acts were transmitted to the room, by television, while the were being performed on the floor above the theatre. 
    1939 - Making his recording debut with the Harry James band was Frank Sinatra, who sang "Melancholy Mood" and "From the Bottom of My Heart."
( lower half of: )
    1940  Captain Jean-Luc Picard Birthday.
    1946---Top Hits
They Say It's Wonderful - Frank Sinatra
The Gypsy - The Ink Spots
I Don't Know Enough About You - The Mills Brothers
New Spanish Two Step - Bob Wills
    1954---Top Hits
Little Things Mean a Lot - Kitty Kallen
Hernando's Hideaway - Archie Bleyer
The Little Shoemaker - The Gaylords
Even Tho - Webb Pierce
    1958- While on tour in Rhinelander, Wisconsin, Buddy Holly water skis across Lake Rhinelander and nearly drowns when he loses control and falls into the water. 
    1959 - The Shirelles song, "Dedicated To The One I Love", was released. The song only hit number 83 on "Billboard" magazine's Top 100 chart. When the song was re- released in 1961, it went to number three on the charts. 
    1959- Paul Anka's' "Lonely Boy" hits #1 
    1960 --Democratic National convention nominates Senator John F Kennedy for president.
    1962---Top Hits
The Stripper - David Rose
Roses are Red - Bobby Vinton
Al Di La' - Emilio Pericoli
Wolverton Mountain - Claude King
    1963--- At the age of 43, Early Wynn pitches the first five innings to register his 300th win as the Indians down the Kansas City A's, 7-4. It will be his last major league win.
    1968-Paul Simon and Art Garfunkel's album, "Bookends" is #1 for the third week in a row. That album along with the "Mrs. Robinson" soundtrack will give the duo 16 straight weeks at #1 on the L.P. charts.
    1968-Steppenwolf's "Born To Be Wild" is released.
    1970---Top Hits
Mama Told Me (Not to Come) - Three Dog Night
Ball of Confusion - The Temptations
Ride Captain Ride - Blues Image
He Loves Me All the Way - Tammy Wynette
    1971 - At the All-Star Game at Tiger Stadium at Detroit, Michigan, Reggie Jackson hit a home run off Doc Ellis. The ball bounced off a light tower deep in right field. With a score of 6-4, the American League won the game. 
    1972 - Baltimore Colts owner Carroll Rosenbloom and Los Angeles Rams owner Robert Irsay proposed a unique trade to the NFL, when the wealthy businessmen traded teams. 
    1973 - During a concert at the John Wayne Theatre in Buena Park, California, the Everly Brothers broke up. Right in the middle of the concert Phil Everly walked off the stage, brother Don said, “The Everly Brothers died ten years ago.”  They recently joined together to sing with the “Simon and Garfunkle” Tour, as both Paul Simon and Art Garfunkle have acknowledged they started singing together to become just like their idols, the Everly Brothers.
    1973 - Alexander Butterfield reveals the existence of the Nixon tapes to the special Senate committee investigating the Watergate break in.
    1974---George McCrae's "Rock Your Baby" begins the first of two straight weeks at #1.
    1974--Eric Clapton's "I Shot The Sheriff" is released.
    1977 --  New York City blackout
    1978---Top Hits
Shadow Dancing - Andy Gibb
Baker Street - Gerry Rafferty
Take a Chance on Me - Abba
I Believe in You - Mel Tillis
    1980 - Afternoon highs of 108 degrees at Memphis, TN, 108 degrees at Macon, GA, and 105 degrees at Atlanta, GA, established all-time records for those three cities. The high of 110 degrees at Newington, GA, was just two degrees shy of the state record
    1982 - In Montreal, Canada, the first All-Star Game to be played outside the United States took place. For the eleventh consecutive year, the National League won when it defeated the American League 4-1. 
    1984- The Yankees retire Roger Maris (#9) and Elston Howard (#32) uniform numbers. The team also erect plaques in their honor to pay tribute to their achievements as Bronx Bombers..
    1984 - When sportscaster Howard Cosell asked to leave "Monday Night Football," saying he was “tired of being tied to the football mentality." Roone Arledge gave him what he wanted, and a year later, Cosell was removed from television altogether. 
    1985 - Simultaneously, the "Live Aid" concert, for African famine relief, occurred in Philadelphia, Pennsylvania and London, England. Performances from JFK Stadium in Philadelphia, London's Wembley Stadium and other venues were broadcast world-wide and raising over $70 million. The all-day and most-of-the-night concert showcased some of rock 'n' roll's biggest names including Mick Jagger, Tina Turner, Madonna, Bob Dylan and Paul McCartney. The concert was attended by 162,000 people, while 1.5 billion people watched the show from their televisions. Bob Geldorf, singer for Boomtown Rats organized the "Live Aid" concert and was responsible for gathering the big name stars, all of agreed to perform without pay. 
    1985 - "A View to a Kill," from the James Bond movie of the same name, performed by Duran Duran, went to the top of the record charts, staying on top for two weeks. Both themes from James Bond movies, "Live and Let Die" by Wings and "Nobody Does It Better" by Carly Simon only reached number two on the record charts. 
    1986---Top Hits
Holding Back the Years - Simply Red
Invisible Touch - Genesis
Nasty - Janet Jackson
Hearts aren't Made to Break (They're Made to Love) - Lee Greenwood
    1986 - Philadelphia Phillie Kent Tekulve broke the National League record for relief appearances for his 820th performance. He helped his team win in the 11-inning over the Houston Astros 5-4. The old record holder was Elroy Face of Pittsburgh.
    1987-Representatives of fifty of America's largest record retailers are guests at Michael Jackson's home in Encino, California to preview his new album, "Bad". The LP, which includes the singles, "I Just Can't Stop Loving You", "Bad", "The Way You Make Me Feel", "Man in the Mirror" and "Dirty Diana", would go on to reach number one on the Billboard Hot 200 chart and sell over 30 million copies worldwide.
    1989 - A thunderstorm at Albany, GA, produced 1.40 inches of rain in forty minutes, along with wind gusts to 82 mph. Afternoon highs of 98 degrees at Corpus Christi, TX, 110 degrees at Tucson, AZ, and 114 degrees at Phoenix, AZ, equaled records for the date. Greenwood, MS, reported 55.65 inches of precipitation for the year, twice the amount normally received by mid July.
    1995-Rush vocalist Geddy Lee sings "Oh Canada" before the All-Star Game at Baltimore's Camden Yards. 
    1995 - The temperature in Chicago, Illinois reached its all-time high -- 106 degrees (Fahrenheit) -- recorded at Midway Airport.
    1996- A Guinness World Record for largest jam session ever is broken when over 2,000 guitarists play a version of Elvis Presley's "Heartbreak Hotel" for 75 straight minutes.
    1999 - Boston Red Sox pitcher Pedro Martinez became the first pitcher to open an All-Star Game with four strikeouts and fanned five in two dazzling innings to lead the American League to a 4-1 victory over the National League at Fenway Park.




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