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August Leasing Business "half full"
Business is good and those that find it so appear “optimistic,” but those who find business off---are “pessimistic” and appear to look for blame everywhere but at their own operation.
(Leasing News chart)
The Equipment Leasing and Finance Association’s (ELFA) reports their August Monthly Leasing and Finance Index (MLFI-25) as "mixed." Not everyone agrees.
"We found August to be a strong month with above average volume, increase of 18%, "Curt Webster, CVLE, Vehicle Lenders Group, LLC, said." Applications where up 38% but “look-to- book’ was down…It seems that the customers are shopping for the best rate and are very conservative with their purchases. We are optimistic about the future even with all the negative news."
Dwight Galloway, long time industry veteran, questions comparing 2009 to 2010:
“Comparisons with 2009 statistics would not seem to have little validity: It isn't too tough to improve over that dismal year,” Galloway said. “While the increases in a few areas suggest an improving economy, the few modest upticks can more likely be attributed to survival of the few. With many competitors having fallen by the wayside, those that remain, including those in our industry, are simply realizing greater market share.
“The big three, building, mortgage, and auto, are not supporting a recovery as they have in the past and unemployment is actually increasing as the long-time unemployed reenter the job market encouraged by the hints of employers beginning to backfill their open positions. The predictions of ‘a long, very slow recovery’ are proving more accurate each day. Survivors hang on, there is hope yet.”
Others questioned whether there was recovery, perhaps indicating their experience was not optimistic:
“While CSI would concur that there are some modest improvements in most of the demonstrable year-over-year metrics tracked by the MLFI -25, not enough evidence exists to lead us to believe that we are firmly on the ‘yellow brick road’ to recovery,” he said.
Leasing News asked veteran Bernie Boettingheimer, CLP, former founder of Pioneer Capital Leasing, and now president Lease Police for his comments:
“New Business—I used a 6 month moving new business against the same period of March-August 2009 vs. 2010. There was an overall increase of new business of 7.9% in 2010.That is good if the quality is there and the margins are the same or better. That’s $2.1 Billion of new business.
“Age of Receivables- The spike of 4.3% of over 30 days delinquency is alarming and will need to be watched in the coming months. If the economy is slowing down it may be the first signs that the long summer has taken its toll. There was the same type of spike last year at this time. But the delinquency is still too large and needs to be down into the 3’s. I wish we could have the over 60 delinquencies also because that would tell a better story.
“Average Losses-The downward trend is good here but without a review of margins and set-up reserves it is very difficult to judge what an acceptable standard is. The mix of companies reporting makes it necessary for each one of them to compare their figures with the whole industry but even then they all have different business plans.
“Credit Approval Losses-These are trending down the last few months but it would be interesting to see the average age from origination since that would give a better indication of the quality of the many portfolios and the effects of tighter credit standards. Again, the mix of the companies reporting and the different credit philosophies make this category difficult to judge except the trends up or down
“Credit Approval Ratios-This ratio has soared but I can not judge if this is because of a loosening of credit criteria or a combination of increased margins (rates).One thing is sure, the average lessee quality has declined so it must be higher margins and rates.
“Total Number of Employees-No real movement over 6 months.
“Overall, this is the first time that I have ever looked at these figures in earnest. They certainly are an improvement and better than nothing but there is no weighting as to the input of large firms, A to D Funders and average ticket size.”
ELFA MLFI-25 Participants
Previous MFLI-25 reports:
The Famous Leasing News “The List” ---August
Synopsis in Chronological Order:
First Premier Bank, Sioux City, South Dakota (8/10) sues Allied Health Care Services, Orange, New Jersey and Charles K. Schwartz for $1,023,225
De Lage Landen Financial Services, Wayne, Pennsylvania (8/10) sues Charles K. Schwartz, president, of Allied Health Care Services, and for the first time Bruce Donner and his company Donner Medical, claiming the equipment never existed, for $1.425 million.
M&L Marshal & Isley Bank, Milwaukee, Wisconsin (8/10) sues Allied and Charles K. Schwartz for $642,969.42 plus.
First Security Bank, Canby Minnesota (8/10) sues Allied Health Care Services, Orange, New Jersey and Charles K. Schwartz for $241,240 plus
Drake Bank, St. Paul, Minnesota (8/10) sues Allied Health Care Services, Orange, New Jersey and Charles K. Schwartz $270,053.79 plus
United Western Bank, Denver, Colorado (8/10) sues Allied Health Care Services, Orange, New Jersey and Charles K. Schwartz for $167,146.
Texas Capital Bank, Dallas, Texas (8/10), filed in the District of New Jersey, Newark, a complaint for $608,602. Asks for Replevin.
CIT, New York, New York (8/10) Announces Continued Progress in Reducing Funding Costs.
IFC Credit, Morton Grove, Illinois (8/10) second interim fee and expense filing from Fishman Glantz Wolfson & Towbin LLC, Special Counsel, Fee: $664,464.55, Expenses: $12,960.21; issue over personal property taxes on Ludwig portfolio.
Equipment Acquisition Resources, Palatine, IL.(8/10) E.A.R. Counsel asks for $254,249 legal services (8/10) Sheldon Player still big player at casino's, while BK trustee files $4 million tax suit against IRS as Player, EAR tax returns were bogus
Marlin Leasing, Mount Laurel, NY (8/10) files second quarter Net Income $1.6 million, and what do you know, the SEC report shows $1.6 million in "Evergreen Lease" payments, mainly copiers.
Franklin National Bank of Minneapolis, Minneapolis, Minn. (8/10) files $216,000 suit against Allied Health Care Services, Orange, New Jersey
AMC Funding Group, Charlotte, NC (8/10) Reports from brokers and vendors not being paid, or worse, checks bouncing. Owner is reportedly Brendan Messenheimer, who also owns Advanced Med Corp, Greensboro, North Carolina.
Commercial Equipment Lease, Eugene, Oregon (8/10)Home Federal Bancorp, Inc., Home Federal Bank, Nampa, Idaho, whose bank purchased the 15 branches of LibertyBank, Eugene, who were the owners of Commercial Equipment Lease. Len E. Williams, President/CEO was very complimentary about the management of the leasing company by Jim Johnson, which has been in business for 35 years. The company is a specialist in the small ticket market place with a very successful and proven origination process.
LEAF Financial, Philadelphia, Pennsylvania (8/10) 158 laid off, LEAF Specialty, Columbia, South Carolina goes dark. Parent Resource America blames it on leasing: http://leasingnews.org/archives/Aug2010/8_06.htm#ra_blames
Full Listing: Chronological:
Full Listing: Alphabetical
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Capstone Financial Joins “Broker/Lessor” list
A - City Business License | B- State License | C - Certified Leasing Professional | D - State(s) sales/use tax license | E - Named as "lessor" on 50% or more of lease contract signed. |
Broker/Lessor List “A:”
At least a few companies are beginning to realize that the pool of experienced leasing sales professionals and executives will begin to evaporate during the next ten, maybe fifteen years. As 70 million Baby Boomers retire, as the leasing industry executives are retiring now, close to retiring, or can't for another ten years, who will be replacing them. Equipment finance companies, like all U.S. companies, are facing an unprecedented shortage of talent.
Right now we are seeing many corporate and government key management retire, but then go back to work for the same company or competitor as an "independent contractor." They keep their pension, but make about the same salary, sometimes higher as is happening in all industries from the court system, telephone company, utilities, or leave a bank for a corporate consulting job.
As leasing companies see the average age of their sales teams rising, the time is quickly approaching when they must step up efforts to recruit, train and retain sales professionals to replace not only retiring Baby Boomers, but younger team members who opt to ply their sales talents in other industries. For many companies, both large and small, mistakes in recruiting talent, and failure to retain talent, may impact their survival as competition for sales professionals heats up.
The dwindling supply of talent should be accompanied by increased costs of recruiting and retaining salespeople. The impact of these increased costs will be exacerbated by the consequences of bad hires. Smart management teams are already making plans to stop hiring and investing in poor performers. Identifying, hiring and retaining productive salespeople are fast becoming a top priority for leading edge companies in all industries.
Too many companies make the mistake of chasing superstars when they recruit sales talent. The problem with this approach, frankly, is that there aren't enough superstars to go around, and there will be fewer to choose from in the future. One of the keys to success is to concentrate on not hiring, promoting or training sub-par performers who don't have real potential for growth and improvement.
Sales team turnover, for many reasons, is unavoidable. Some turnover, at least in small amounts, is healthy for most companies. Fresh talent keeps the organization vital, as newcomers often bring new ideas and experiences that can benefit the business. But too much turnover is costly. For example, the turnover costs for telesales positions ranges from $75,000 to $90,000, while the total turnover costs for top sales producers can easily exceed $300,000!
Unless there is an unexpected explosion in the U.S. population, and a significant number of the new citizens turn out to be “born salespeople,” a talent crisis looms in the not too distant future for all U.S. companies.
About the author: Steve Chriest is the founder of Selling UpTM (www.selling-up.com), a sales consulting firm specializing in sales revenue improvement for organizations of all types and sizes in a variety of industries. He is also the author of Selling The E-Suite, The Proven System For Reaching and Selling Senior Executives and Profits and Cash – The Game of Business. You can reach Steve at firstname.lastname@example.org.
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A sequel to a 1980s staple (“Wall Street: Money Never Sleeps”) and a tense, clever little thriller (“Buried”) hit theaters this week, while DVD releases (“Iron Man 2,” “Robin Hood,” “Get Him to the Greek”) give viewers the chance to catch up with three summer hits.
Wall Street: Money Never Sleeps (20th-Century Fox): Is Oliver Stone mellowing with age? After turning “W.” into a surprisingly benign comedy, the usually controversial filmmaker continues to reveal his sentimental side in this sequel to his 1987 box-office hit. It’s been over two decades since powerful corporate raider Gordon Gekko (Michael Douglas, reprising his Oscar-winning performance) went to prison on corruption charges, and the economy has hardly gotten any better since he delivered his famous “greed is good” monologue. Back in Wall Street, he tries to get back into the ruthless financial game via an ambitious young upstart (Shia LaBeouf), who also happens to be dating Gekko’s estranged daughter (Carey Mulligan). Nervy and relevant, the movie functions as both satire and indictment of a world built around the mighty dollar.
Buried (Lionsgate): What to do when you wake up six feet under the earth? That’s the question at the center of this crafty, clever thriller, which uses a very claustrophobic situation as the jumping-off idea for a visceral experience. The story follows Paul Conroy (Ryan Reynolds), a U.S. contractor working in Iraq. In the wake of an insurgent skirmish, he finds himself trapped inside a box buried somewhere in the desert. With only a lighter and a cell phone as his companions, he desperately scramblers to find a way out, and in the process makes astonishing discoveries. Will he make use of them before his oxygen runs out? Director Rodrigo Cortes creates an inventive drama that makes full, suspenseful use of its simple yet disturbing premise, and offers an excellent performance by the underrated Reynolds.
New to DVD
Iron Man 2 (Paramount Pictures): Robert Downey Jr. reprises his role as rich-arms-dealer-turned-superhero Tony Stark in this sequel to the 2008 box-office smash. Once again based on the Marvel Comics character and directed by Jon Favreau, it picks up where the previous installment left off, with Stark trying to combine his playboy lifestyle with his heroic persona as the metallic Iron Man. Since his identity is no longer secret, however, he has to deal with reporters, fans, and government officials who want the secrets behind his powerful armor. The biggest danger, however, comes from a ruthless new foe, Ivan Vanko (Mickey Rourke), who’s determined to take revenge on him. With smooth special effects and a cast that also includes Gwyneth Paltrow, Don Cheadle and Scarlett Johansson, it’s a breezy way to kick off the summer blockbuster season.
Robin Hood (Universal Pictures): The often-told tale of the Sherwood Forest hero is given a new makeover full of blockbuster panache by veteran director Ridley Scott (“Black Hawk Down,” “Gladiator”). Back in brawny-anguished action mode, Russell Crowe stars as the titular protagonist, a brave archer in the medieval England of King Richard the Lionheart (Danny Huston). Left without a leader, however, Robin faces the corruption of Prince John (Oscar Isaac) and the Sheriff (Matthew Macfayden) and decides to join the rebels of Sherwood Forest. With the Sheriff’s forces drawing nearer every day, however, will he be able to bring justice to the land and win the hand of his beloved Maid Marian (Cate Blanchett)? A solid choice for audiences who prefer their heroes with less comic-book superpowers and more human grit.
Get Him to the Greek (Universal): The lovelorn protagonist from “Forgetting Sarah Marshall” may not return, but one of that comedy hit’s favorite supporting characters does in this rollicking semi-sequel. A hilarious second banana in the earlier movie, ridiculously vain rock singer Aldous Snow (Russell Brand) takes center stage here as the movie follows his eventful tour from London to Los Angeles. Along for the ride is long-suffering records lackey Aaron Green (Jonah Hill), who’s given the unenviable task of keeping an eye on the mischievous performer. Thriving more on the inspired interplay of the two talented stars than on any sort of plot, director Nicholas Stoller keeps this comedy rocking with unexpected jokes and sharp supporting turns (including a very funny one by Sean “P. Diddy” Combs).
Warning to the Over-Confident Lease Drafter:
Here's a reported court decision the wise lessor will want to read and heed: National City Healthcare Finance v. Refine 360, LLC, 607 F. Supp. 2d 881 (N.D. Ill. 2009). It's a good lesson in humility.
There, the lessor sued its lessee for failure to make payments. Unfortunately for the lessor, the remedies provision in the lease agreement was a little too "overblown" for the judge's comfort. That provision stated that, in addition to suing for past-due rent, the lessor could sue for the full, undiscounted amount of future rent plus the undiscounted estimated value of the equipment as of the date of the suit. In other words, the lease attempted to give the lessor the right to receive much more than its true, actual damages.
The judge was clearly irritated by what he perceived as "hucksterism" on the part of the lessor's lease drafter. Writing in a subtle cynical style, he rebuffed the lessor's overreaching and denied its damages request (while giving the lessor permission to go "back the drawing board to prepare and present a revised submission that is not infected with the taints that attach to its current version")
As this particular judge clearly knew — but what many lease drafters apparently hope judges will forget — "it takes no more than a rudimentary understanding of the concept of damages" that a lessor cannot recover undiscounted future value, because to allow otherwise would permit the lessor to recover an unfair windfall. The lease provision in question here is known as a "liquidated damages" clause, and such a clause is unenforceable unless it can be said to reflect a reasonable estimation of the lessor's true, actual damages determined as of the time the contract is made.
But what makes this otherwise plain-Jane case so interesting is how the judge ends his written opinion. After pointing out what courts usually do in collection litigation cases like this — that a party guilty of having an unenforceable liquidated damages clause will nevertheless be allowed to recover its actual damages — the judge goes on to suggest that in this particular case a little punishment might be in order:
"In candor, that [usual outcome] seems an inadequate outcome... [because] if a lessor . . . has the prerogative to insert a clearly overblown damages provision, comfortable in the knowledge that its invalidation will simply put the lessor back in the situation that it would have occupied in the absence of that provision, every incentive for a lessor to prepare a reasonable contractual provision vanishes. That would leave the lessor free to recover the contractually prescribed excessive amounts from unsuspecting lessees or, where lessees are in default, to obtain such unwarranted amounts through courts that have not thought about the problem—and intolerable no-lose and possible-win situation for the lessor." (607 F. Supp. at 884.)
More specifically, the judge wrote that if the lessor chooses to re-file its damages submission, the court might decide not to enforce the separate clause in the lease (outside the liquidated damages clause) providing for the lessee to pay the lessor's enforcement costs, including reasonable attorney's fees.
Clearly there is a lesson to be taken from this opinion — and it applies to your entire contract, not merely your damages provisions: Don't get too greedy in writing your contract forms, because if you raise a judge's ire, he might just throw out generally accepted legal principles and give you less than what the technical law of contracts would otherwise provide.
Michael Witt was Managing Counsel at Wells Fargo & Co and Senior Vice President and General Counsel of Advanta Leasing Corporation. He is now in private practice in Iowa.
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