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Wednesday, September 26, 2012
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ELFA Monthly Chart Shows New Leasing Business Increase
This is no doubt the economy is in recovery, including the equipment finance and leasing industry, as noted the by Equipment Leasing and Finance Association (ELFA), especially compared to recent years.
(Leasing News Chart)
Most likely July would have been a strong month if July 4th had not fallen on Wednesday, the middle of the week. August, usually a slower month as noted in the ELFA chart, came back and the third quarter may exceed the second quarter.
The other charts indicate why Ascentium Capital CEO Thomas Depping made these remarks:
"The general origination and credit quality trends detailed above mirror our experience at Ascentium Capital. The credit quality of our applications remains unprecedentedly strong and our delinquencies at historic lows. Although we have hedged ourselves against another possible global economic slowdown, we continue to expand our sales force as we have a generally optimistic view of our future."
ELFA President and CEO William G. Sutton, CAE, said, “The pace of new equipment financing continued throughout the summer months as the housing sector, for one, showed signs of a rebound.
Ascentium Capital CEO Thomas Depping added, "One thing I have learned over the past 30 years in the industry is that being over-capitalized and having substantial excess liquidity is never a bad thing."
Echoing the optimism the Equipment Leasing & Finance Foundation Monthly Confidence Index for the Equipment Finance Industry reported "Overall, confidence in the equipment finance market is 53.0, up from the August index of 50.2, reflecting increased optimism despite concerns over companies’ willingness to expand their businesses in the face of economic and political uncertainty."
Anthony Cracchiolo, President and Chief Executive Officer, Vendor Services, U.S. Bank Equipment Finance, was reported in the press release to have changed his viewpoint from recent observations to "The industry is performing well and new businesses are entering the segment to join the positive experience our asset class enjoys. However, the growth of our industry is tightly aligned with the overall U.S. economy and our industry's future will be determined by the broader actions of the U.S. economy.”
Also quoted in the Equipment Leasing and Finance Foundation press release was Russell Nelson, President, Farm Credit Leasing Services Corporation:
"“Continued low interest rates, improving credit quality, growing demand for new/replacement equipment, and new leasing product development will drive continued industry expansion into 2013 and beyond. Uncertainty in the economy, Europe, employment, and upcoming U.S. elections will impact the level of growth recorded during the remainder of 2012.”
The statistics, which many in the industry find easier and more accurate to read, come from the Equipment Leasing and Finance Association MFLI-25 report:
Participants in the ELFA MLFI-25:
Marlin Leasing Stock on the Rise
Marlin Business Service (NASDAQ: MRLN), Mount Laurel, Nevada has seen their stock rise in the last 52 weeks from $9.76 to $23.09, closing on Tuesday at $20.92,even though the stock market was down (Dow 101.37 % NASDAQ: 43.05). Volume also has been very good for Marlin with some days in the low six digits. Of all the leasing stocks to buy, Marlin has been the top performer.
End-of-day Price ($): 20.92
In their second quarter, net income allocated to common stock was $2.8 million and all aspects of their growth were solid with better loss ratios and performance. Condensed consolidated financial statement shows $2.988 million the first three months and $4.637 million for the six months ending. Their high revenue from Evergreen clauses continues as sales personnel continue to hit their quotas, and then some.
The board of directors set up a tier level for performance as well as stock options to give the officers incentive that appears to beneficial to all stockholders.
Key officers sold as per their options purchased and then deposed of stock:
(By filing dates)
George D. Pelose EVP, COO, Secretary
(Does not include stock options, and also note the stock transactions come from the first two weeks of September. There were other months that officers exercised their stock options. The actual dollar number of total from exercising stock options was not noted in the SEC filings and most likely will be included in the year-end 2012 to stockholders.)
Pages 28-32, Marlin Salary Schedule 14A
Marlin Second Quarter:
Leasing Industry Help Wanted
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The List---July and August
Cole Taylor Bank Equipment Leasing, Townson, Maryland (07/12) Edward A. Dahlka, Jr., former president of LaSalle National Leasing Corporation (sold to Bank of America 2007 ), as well as past president of the Equipment Leasing and Finance Association (2002-2003) and Equipment Leasing and Finance Foundation (2010 -2011),
Republic Bank, Bountiful, Utah (07/12) According to several reliable sources, Republic Bank, Bountiful, Utah stopped taking new leasing business two weeks ago.
Integrity Financial Groups, Murray, Utah (08/12) Doesn't return advance rentals, http://leasingnews.org/archives/Jul2012/7_09.htm#bbc
Element Financial, Toronto, Canada (08/12) Bradley Nullmeyer back with Steve Hudson team. http://leasingnews.org/archives/Aug2012/8_20.htm#nullmeyer
Radiance-Capital, Tacoma, WA (08/12) New complaint on Purchase Option on EFA, Won’t Return $5,000 S.D. http://leasingnews.org/archives/Aug2012/8_13.htm#bbc
Marlin Leasing, Mount Laurel, New Jersey (08/12) 1st Time Net Income Exceeds Evergreen Income
Integrity Financial Groups, Murray, Utah (08/12) Second Bulletin Board Complaint:
Mazuma Capital Corp, Draper, Utah (08/12) Utilizes Evergreen PPR clauses
Onset Financial, South Jordan, Utah (08/12) Utilizes Evergreen PPR clauses
Marquette Equipment Finance, Midvale, Utah (08/12) Utilizes Evergreen PPR clauses
Full Alphabetical List:
Full Chronological List:
Ten Lawyers Against Evergreen Clause Abuse
The original intention of the Evergreen clause in an equipment leasing contract was to have an alternative to when the lessee did not exercise the residual at the end of the contract. Often the clause calls for an automatic additional twelve months when the residual is not resolved.
In most cases, the lessor notifies the lessee that the residual will be due, often ninety days in advance. However, often there is nothing in the contract that requires the lessor to notify the lessee regarding the expiration of the contract.
Contrarily, many small ticket lessors do not notify the lessee, and automatically continue the lease, often via an ACH or continued billing, which often goes unnoticed until many payments have already been made.
Leasing News would like to see an industry standard that lessees are notified in advance of the expiration of their contract regarding its termination. We support the clause, and the notification requirement is wide open, meaning 90, 60, even 30 days and by telephone or mail.
This list of attorneys agrees with this and will be available to lessees, sometimes able to help them without a fee, or at a reduced rate, in an effort to end the abuse of Evergreen clause leases.
(In 1998, he was elected to the United Association of Equipment
Ronald J. Eisenberg
(Proven Leasing Litigator, well respected by all sides)
Ronald P. Gossett
(Many cases including NorVergence, Brican, among others, a winner)
Brandon J. Mark
Attorney at Law, Admitted in Utah and Oregon
(His firm represents banks who buy leases, and his
BARRY S. MARKS
(Well-known to the leasing industry, also Alabama Poet)
(Leasing News Advisor/Well-Known top Leasing Litigator)
(Experienced leasing attorney, aggressive, author, secretary,
(Long time Southern California leasing attorney, well-respected)
Kevin E. Trabaris, Principal
"In my career, I’ve repeatedly seen this provision misused
Michael J. Witt, Esq.
(Former Advanta Leasing
Companies who notify lessee in advance of lease expiration
How Important is the Legal Name on the UCC?
When Filing on Individual Borrowers, Bank Can Use Name on
Shakespeare started one of his most famous quotes with “What’s in a name?” and he didn’t really care what one named a thing, it was the thing that was important, not what one called it. Well, a Federal Bankruptcy Court thought different and invalidated a Bank’s UCC filing over a name, but was reversed on appeal.
The case is In re Miller, 2012 WL 3589426 (C.D. Ill. 2012).
There, the borrower was Ben Miller. That was his legal name on his birth certificate. However, everything connected with the man for the last 20 years was “BenNie” Miller—His Driver’s License, His Social Security Card, His Tax Returns—All of these used his nick name, Bennie Miller.
Mr. Miller borrowed a substantial sum of money from State Bank of Arthur for his business, and did so under his nick name, Bennie Miller. He signed the loan documents as such, and all his underwriting documents were in that name, including a copy of his driver’s license. The Bank filed its UCC-1 under Bennie Miller. As borrowers sometimes do, Miller filed bankruptcy.
The Chapter 13 Trustee ascertained from the Petition that his true name was Ben Miller, and filed an Adversary Action to disallow the secured claim of the Bank on the grounds that the Code requires the UCC to be filed under the debtor’s name. Since, Miller’s true name was Ben Miller, not Bennie Miller, as the Bank’s UCC-1 was filed under, the Trustee argued the Bank’s filing was illegal and void, and sought to strike the Bank’s secured claim. The Bankruptcy Court agreed, holding that the Bank should have used Miller’s legal name. The Bank appealed.
On appeal, the District Court reversed the holding. The Court discussed the case law holding that a legal name is necessary, and essentially blew off that authority, holding that under Illinois law, a person may change his name without resorting to a legal proceeding, and thus, Miller effectively changed his name from Ben Miller to Bennie Miller. That’s not exactly kosher, but at least the Court got the right result.
The Court, with very little legal authority, justified its decision:
“It seems absurd that a debtor could provide his driver's license, Social Security card, and federal income tax returns when securing a loan, and then later have the privilege to assert that the creditor was not entitled to the security because the name on the debtor's birth certificate did not match.”
Most State Legislatures are due to vote on amendments to § 9-503 later this year, and the amendments give the States two choices to resolve the Ben Miller dilemma. The first alternative is that the filing creditor must use the most recent driver’s license or State issued I.D. card for filing against individual debtors. The second alternative provides the creditor with three choices, any one of which would provide safe harbor, the borrower’s individual name, his or her surname and personal name, or the name on the debtor’s most recent driver’s license. Note the term “surname” because in some instances an individual’s surname is not the individual’s last name.
Based on early polling, it appears as though most States will probably enact the first option, making the driver’s license the mandatory and exclusive name of the debtor. This probably makes more sense, because secured creditors file, but also search. It obviously would be easier to search under the name on the driver’s license than trying to figure out what the surname of a debtor might be.
There are four lessons for the secured creditor.
First, if the secured creditor is financing an individual borrower, realize that the name on the tax returns, driver’s license or birth certificate may not be the debtor’s legal name in the State in which the creditor is filing the UCC-1. Check with a title company or lawyer to determine what name to file against.
Second, there is no harm in filing under multiple names. The secured creditor may file against the name on the birth certificate, the name on the tax returns, the name on the driver’s license, and when in doubt as to what the surname might be, in some Hispanic and Asian names, reverse the order and make another filing. The same principals apply to searches—the secured creditor should do multiple searches.
Third, this lesson also applies to corporate names and "dba's." While the secured creditor should probably use the name given on the Articles of Incorporation, there is simply no reason why, if there is any doubt whether it’s Debtorco, Inc., or just Debtorco Inc., without the comma, the secured creditor should not make multiple filings.
Fourth, the secured creditor should check with its lawyer or title company after the first of the year to determine whether the State in which the filing is to be done, has enacted one of the revisions discussed above and if so, which alternative. Puerto Rico has already adopted the revisions. Each State will have transition periods in which creditors which desire to re-file their UCC-1 may do so.
What’s in a name? Nothing apparently if the borrower has a driver’s license.
Tom McCurnin is a partner at Barton, Klugman & Oetting in Los Angeles, California and represents banks and financial institutions in UCC matters.
Previous Tom McCurnin Articles:
Why I Became a CLP
The National Association of Equipment Leasing Broker’s (NAELB) motto, 'Success by Association' is most appropriate. I've profited financially as well as intellectually from my association with NAELB. Perhaps the most important benefit of association is that of the strong encouragement within NAELB to practice high standards of personal and professional conduct with our funding sources and fellow brokers and their long time support of the Certified Lease Professional ('CLP') program.
I remember the stirring challenge at the 1996 NAELB annual meeting to become a CLP. Several CLP's put on an overview of the CLP program and the steps needed to obtain the CLP certification. While I had been in the leasing business since 1973 and had run the large ticket group for a major bank, had been a lessee/lessor advisor and purchased numerous portfolios of leases and loans for our own account, I was nevertheless intrigued by what the NAELB was attempting to do in raising the ethical and professional level of the leasing community. I accepted the challenge, gained new knowledge and through UAEL became a CLP in 1997. I've subsequently become a "mentor," presently serve as the foundation’s Secretary, and enjoy being able to give back to my profession.
Both the NAELB and National Equipment Finance Association (FEFA) support the CLP program, providing at their annual conferences an all-day CLP Review. This comprehensive eight-hour program is taught by CLP's and provides an in-depth review of some of the tougher subjects in equipment leasing: lease classification and terminology, leasing law, documentation and collection, math of leasing and accounting for leases. There is no additional cost for the class.
Both the NAELB and NEFA provide the CLP Foundation with booth space at their annual and regional conferences, in addition to meeting room space for review classes and testing. Both give the CLP Foundation a link on the website and promote CLP products and services to our members.
Note: Nibarger Associates is an investment banking firm which provides corporate financial advisory services in mergers, acquisitions and divestitures of public and privately held business. The firm has a strong specialty in meeting the intermediate and long term financing needs of its clients through equipment financing and leasing and continues to acquire and service asset based portfolios. We are members of Equipment Leasing Association (ELA) and National Association of Equipment Leasing Brokers (NAELB) with a California Finance Lender/Broker license, # 603-8622."
Why I Became CLP testimonials
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#### Press Release #############################
LEAF Announces Securitization of $221 Million of Leasing Assets
Philadelphia, PA - LEAF Commercial Capital, Inc. ("LEAF") a leading independent commercial equipment leasing and finance company, announced today the closing of a new securitization transaction, LEAF 2012-1, which was completed on September 21, 2012.
Through LEAF 2012-1, LEAF securitized a portfolio of approximately $221 million of leases and commercial loans through the issuance of equipment contract-backed notes. The transaction is the second securitization of small ticket equipment leases and commercial loans that LEAF has sponsored since its inception. The leases and loans were originated by LEAF and are backed by various equipment including office equipment such as photocopiers, printers and telecommunications systems, as well as technology, light industrial and healthcare-related equipment.
Guggenheim Securities, LLC, was the arranger of the notes and Natixis Securities Americas, LLC and Credit Suisse Securities (USA), LLC were co-arrangers. LEAF will continue to be the servicer of the assets. LEAF issued nine fixed rate classes of notes that were rated by Moody's and DBRS, with the Class A notes having the benefit of a financial guaranty insurance policy issued by Assured Guaranty Corp. This was a private offering made to qualified institutional buyers pursuant to Rule 144A under the Securities Act of 1933, as amended, by LEAF Receivables Funding 8, LLC, a wholly owned subsidiary of LEAF Commercial Capital, Inc.
"This is our second successful securitization completed in less than two years since launching LEAF Commercial Capital, Inc. “ President and COO Miles Herman said. “We are pleased with our success in securing customer finance programs with top quality equipment vendors as our primary source of originations and also the support we have received from the capital markets that fuels our growth.
“We believe that the confidence hat both investors and the rating agencies have shown in us further validates our business approach. A vital part of a well-rounded funding strategy for an independent finance company is accessing an active term securitization market. This transaction demonstrates and reinforces the fact that, despite difficult economic times, we can effectively participate in this market.
“We will be using the proceeds of this financing to pay down an existing warehouse facility and thus increase our capacity to meet the future financing needs of our valued equipment vendor partners. As a regular programmatic issuer, we look forward to continued future access to the securitization market."
About LEAF Commercial Capital, Inc.
##### Press Release ############################
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Leasing News: The 2012 Toronto International Film Festival
Anna Karenina: As he proved with “Pride and Prejudice” and “Atonement,” director Joe Wright is determined to blow the dust off of the usual screen adaptations of great books. This time, he adapts the great Russian author Leo Tolstoy’s timeless tragic romance of a 19th-century noblewoman (Keira Knightley) who defies the rules of aristocratic society by embarking on a doomed affair with another man. Wright’s extravagant directing style and a strong supporting cast should make this a hit with art-house veterans.
Argo: The Toronto Film Festival is often a launching pad for future Best Picture Oscar winners (“Slumdog Millionaire” and “The King’s Speech” are recent examples), so odds are we’ll be hearing about this true-story dramatization when the time for nominations comes. Continuing his stint as a director, Ben Affleck both directs and stars in this tense story set during the height of the Iranian Revolution in the late 1970s, when Hollywood came to the rescue of American diplomats trapped in a nation in upheaval.
Frances Ha: Best known for his bittersweet portraits of neurotic characters (“The Squid and the Whale,” “Greenberg”), writer-director Noah Baumbach lightens up with this very likable comedy, which gives Greta Gerwig the part she deserves. Gerwig stars as Frances, a struggling New York City dance student whose life takes a sudden turn when her best friend and roommate (Mickey Sumner) decides to move out. Reminiscent of Woody Allen’s early films, this is a movie brimming with spunk, speed, and heart.
Like Someone in Love: Viewers who were fascinated by Abbas Kiarostami’s “Certified Copy” last year should love this endlessly surprising drama. Instead of Europe, this time the great Iranian director finds himself in Japan, following the travails of three characters whose actions are often now what they seem. There’s a young student who moonlights as a courtesan, an elderly former professor who’s mistaken for her grandfather, and her hot-headed fiancée. A beautifully made, mystery-filled view of human relationships.
Night Across the Street: When Chilean filmmaker Raul Ruiz passed away a couple of years back, modern cinema lost one of its most playful masters. Fortunately, because he was so prolific, there are still films by him coming out. This one, his farewell movie, is a semi-autobiographic tale of dreams and fantasies, focusing on a retired clerk who recalls his imaginative childhood. With customary wit and style, Ruiz closes out a long, varied career with a wink to the audience.
Passion: Following a five-year absence from the screen, Brian De Palma (“Dressed to Kill,” “The Untouchables”) comes roaring back with this sleekly seductive tale of betrayal and murder. Set in a huge corporate in Germany, the slippery narrative follows the growing rivalry between a ruthless businesswoman (Rachel McAdams) and a meek, young designer (Noomi Rapace). When ideas are stolen, a violent crime takes place and identities are switched. Keeping his lush camera always moving, De Palma reclaims his spot as a modern master of suspense.
Silver Lining Playbook: This ensemble comedy-drama from David O. Russell (“Three Kings,” “The Fighter”) is another likely Academy Award contender. Bradley Cooper stars as a former teacher who comes home after a stint in a mental institution. While still showing traces of unpredictable behavior, he becomes determined to win back his wife with the help of an enigmatic neighbor (Jennifer Lawrence). Robert De Niro, Julie Stiles and Chris Tucker also star in this punchy blend of humor and heartbreak.
Something in the Air: Acclaimed French director Olivier Assayas (“Summer Hours”) returns to the turbulent times of his youth in this tale of student unrest set in the early 1970s. The story follows a group of teenage friends as they are affected by the sometimes violent political demonstrations around them. While some of them get involved in radical causes, others follow their feelings and ambitions. The result is a flavorful snapshot of a restless generation that showcases a cast of talented young actors.
To the Wonder: A mysterious master who in the past could take decades between films, Terrence Malick surprised his fans by taking less than a year to follow his remarkable “Tree of Life” with this achingly poignant love story. Tracing the relationship between an American scientist (Ben Affleck) and a European single mother (Olga Kurylenko), this is a swirling account of the highs and lows of passionate romance. Though Malick’s boldly impressionistic style is challenging, the naked emotions on display are universal.
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Gov. Brown sings Diverless Car bill
Gov. Jerry Brown signs two-year reprieve for state parks
Six animal shelters in Santa Clara County receive $1 million grant from nonprofit
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This Day in History
1774-Birthday of John Chapman, better known as Johnny Appleseed, born Leominster, MA. Planter of orchards and friend of wild animals, he was regarded as a great medicine man by the Indians. The remarkable career of Johnny Appleseed began about 1800. He moved to Pennsylvania, where he sold or gave away saplings and apple seeds to settlers moving west. Chapman then moved on to Ohio, sowing and giving away apple seeds en route. For more than 40 years he traveled through Ohio, Indiana, and western Pennsylvania. He pruned trees he had previously planted and helped pioneers care for the orchards grown form his seeds. His work bore fruit, literally, over an area of perhaps 100,000 square miles. Chapman was ragged in dress and eccentric in his ways. He was also an itinerant preacher, expounding his faith in the Church of the New Jerusalem, the religious organization that grew out of the teachings of Emanuel Swedenborg, the Swedish mystic whose teachings had been introduced to the U.S. in 1784 and whose empathy with the natural world apparently appealed to Chapman. During the War of 1812, Chapman traveled 30 miles to bring troops to Mansfield, Ohio, to forestall a raid by Indian allies of the British. Chapman also introduced and encouraged the raising of many useful medicinal herbs. He died near Fort Wayne, Indian, in 1847.
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