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Thursday, April 25, 2013
Today's Equipment Leasing Headlines
Balboa Capital, Irvine, California
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Balboa Capital, Irvine, California
Balboa is not returning any communication by email or phone from Leasing News to the three officers Pat Byrne, Chairman, Phil Silva, President, Rob Rasmussen, COO.
This complaint has not been resolved since March 3, 2013 and no communication from Balboa Capital, Irvine, California to the lessee on this matter. It regards both a "fair market value" and payoff. It actually started June 11, 2012 with this letter from Thomas Anderson, A-One Auto Specialist, Laurel, Maryland:
"To whom it may concern:
I have been trying to contact your company since receiving a buyout quote on this lease since the Feb. 2, 2012 quote and the Mar. 15th. 2012 quote with no response from your company.
Furthermore I was told that I may be able to start a new lease and combine the previous 2 leases onto one new lease and it would be a dollar buyout lease. 1 was left a message on my answering machine stating that this new lease agreement was denied. I then called several times and left messages without any response. So this letter is also giving you notice that 1 would like to end this lease at the end of my scheduled term and keep this piece of equipment & would like to know what my final payment will be at the end of that term.
I wish I could get better customer service from your company, and am very disappointed and upset with your company for not trying to work with me. Please contact me as soon as possible in reference to my situation.
Thomas R. Anderson Owner
Leasing News got involved and a payoff quote was received by Mr. Anderson received March 4, 2013, and forwarded to Leasing News as well as other documentation, as this was part of another complaint regarding an Evergreen clause as well as the residual (which was somewhat resolved) (2a)
This was a surprise to the Mr. and Mrs. Anderson as they thought the lease was a $1.00 purchase option. This has happened before with Balboa, including one where the lessee produced a copy of the form he sent in with the contracts (he copied all he sent) but never noticed he did not receive a signed copy of this back. Balboa said the machinist forged the document. (3) It should be noted in most of the Balboa Capital leases that have been seen by Leasing News have "fair market value on the face of the contract, whereas this one did not. (4)
There is a "Gmail" from the Balboa Sales Mike Brady where he writes "now with the new terms can trade it up and upgrade at the end of the lease." Doesn't sound like a "fair market value" and gives credence to what the salesman originally told Anderson. (5)
The lease was changed from monthly to quarterly in advance, meaning Balboa changed the rate---it is higher than quoted by paying three in advance, not one. Again, it changes the interest rate, adding anywhere from 60 to 90 basis points. (4)
The payment balance from Balboa does not include any pre-payment discount, but an increase of $1344.52...also does not deduct the $$2,229.15 "required deposit" plus the issue of 6% sales tax of $1,543.84. (2a)(2b)
I don't know if the personal property tax is accurate or inflated, but the State of Maryland does not charge sales tax on personal property tax, according to a telephone call to the department ($39.07) as well as there is no termination fee in the contract for $479.00
There is no justification for the residual of $9,680.00, also considering this was to be paid out at the end, thus you can trade it up for a new piece of equipment ((as per the "Gmail" from the salesman(5)
The Andersons could escape the sales tax, if it is applicable in the state for paying off a lease and purchasing the equipment by just paying the remaining payments, less the deposit, and there is no sales tax on personal property tax as well as termination fee in the contract (plus a copy of the Maryland Personal Property Tax bill to verify the amount is correct and you are not being overcharged; this is a public record and can be obtained by mail).
(1)Letter from Thomas R. Anderson
(2a) Payoff quote 159507-000
(2b) Count of Payments made (payments 000)
(3) Unsigned addendum
(4) Gmail--Quote from Salesman
(5) Lease Quarterly Payments
(Other Balboa Capital complaints located)
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Harris Leasing Joins Funder List “A”
A -Accepts Broker Business | B -Requires Broker be Licensed | C -Sub-Broker Program | D -"Private label Program" | E - Also "in house" salesmen
Footnote: We accept applications from startups & young companies.
We are not accepting broker business at this time.
Harris Leasing Company has been providing equipment leasing to its customers and dealers since 1969. We offer flexible leasing terms from 12 months to 60 months and dollar amounts from $1,000 to $250,000. We can put together a leasing program to fit your needs even if you are just starting out in a NEW BUSINESS or have had some credit problems in the past. At Harris Leasing Company we take a great deal of pride in the fact that we are in business to help other businesses achieve their goals and succeed.
Although we do fund large transactions, our primary target is $2,000.00 to $25,000.00. We are willing to consider companies that are NEW. Customer service is our number one priority. When you call our office you will talk with a real person and not a computer trying to be a person! Credit decisions are NOT based solely on a point system or by a person sitting in one of a hundred cubicles in a far off land. Rather we take the time to know you and your business. With Harris Leasing Company, you now have leasing professionals who will take the time to understand your business and advise various solutions tailored to your specific needs and budgets.
Full Funder List "A"
Wildwood Industries Fraud Snares Lessor and Lender in
Assignee Old National Bank Claims Mutual Mistake of Fact, Justifying
Old National Bank v Leasing Innovations. CV 11-01539 2013 WL 1339380 (S.D. Ind. 2013)
The Wildwood Industries fraud is a gift that just keeps on giving—to Chicago based leasing lawyers. Sometimes I think that the aggregate amount of attorney fees spent on this case would pay every creditor. In today’s case, the Wildwood fraud snared two familiar faces, Old National Bank of Indiana and California based, Leasing Innovations. While the issue in the case is mundane and not particularly worthy of discussion, the existence of the case, and the assignment in question underscores the necessity for obtaining representations and warranties from the lease broker. The facts follow.
Wildwood Industries leased equipment supposedly worth $2 million dollars from Leasing Innovations. The nature of the equipment was not disclosed in the Complaint, nor the Court’s opinion. Leasing Innovations then assigned the lease to Old National Bank of Indiana (“ONB”) and ONB paid Leasing Innovations $1.9 million dollars.
The facts surrounding the assignment are murky, but the provisions of the assignment are ridiculous, because the document is a single page form, without many of the customary attributes in any assignment I’ve seen. There was no choice of law clause, and no reps and warranties. The assignment was pretty much a bare bones assignment. So it’s hard to tell what happened or why.
On the one hand, Leasing Innovations could have shared 100% of the facts surrounding the deal with the Bank, and the Bank ran its own credit, checked out the equipment (or had the right to do so) and cheerfully entered into the transaction. This wouldn’t be the first time that lenders like ONB flocked to Ponzi scheme like lemmings falling off a cliff. The NorVergence case comes to mind, as all the financial players in that case gobbled up those leases like there was no tomorrow.
On the other hand, Leasing Innovations could have done something wrong, but frankly there is no allegation in the complaint that they failed in any duties to the Bank. I assume that both parties were fooled by Wildwood.
So to me, this is a case of caveat emptor and either the Bank fly-specked the deal, or certainly had the right to fly-speck the deal, and the broker’s assignment was non-recourse.
When the Wildwood Industries fraud came to light, the Bank commenced a suit in Indiana (the Wildwood bankruptcy case is in Illinois), for rescission based on a mutual mistake of fact that Wildwood actually leased tangible equipment. We all know now that there was no equipment involving Wildwood.
The issue of the decision is choice of law (the court applied Indiana law), and while not terribly scintillating the case is more important for what is not discussed—why lenders don’t get the minimum of representations and warranties from their brokers. Even if the deal is lender underwritten, the lenders should try to get some reps and warranties. Examples follow:
• If the broker/lessor oversaw the signatures, and the lender had nothing to do with the signing, the broker should at least warrant the signature This probably wouldn’t have helped here.
• If the broker/lessor filed the UCC-1, then the lender should try to get a rep and warrant that the lessor has a valid perfected security interest in first priority as to the equipment. Because the broker is handling the filing, it should warrant that security interest, but I find many brokers simply refuse to warrant this. This push-pull is a business decision by lender and broker. Arguably, such a warranty would have made the Bank whole here, because there was no equipment.
• If the lease is written by the broker/lessor, then a representation and warranty that the lease represents a valid and enforceable obligation under its terms would also be appropriate. For California lessors, this is particularly important, as the broker/lessor has to licensed here. This provision would have also saved the day here, as the lessor is unlicensed.
Of course, there are other reps and warranties that should be considered, but the point here is that this lender was oblivious to the point of being reckless with this bare bones assignment, and the broker was extremely skilled with its documents.
While the case is not determinative of the specific rights of either the broker or the lender (it only decided choice of law), I found the lack of reps and warranties to be particularly shocking. We will have to stay tuned to this case to see whether Indiana law supports rescission for this type of claim.
Tom McCurnin is a partner at Barton, Klugman & Oetting in Los Angeles, California.
Previous Tom McCurnin Articles:
NAELB Announces New Web Site
The National Association of Equipment Leasing Brokers has announced a new web site, and is going through the beta process and believes all facets are now up and running. It is open to non-members, but specific programs and information are available only to members---who must log in with a new password to the new web site.
The up-date was orchestrated by members and is receiving many accolades.
Leasing Industry Help Wanted
Please see our Job Wanted section for possible new employees.
Abbott & Costello Predicted This
Small business lending grows under SBLF, TARP banks lag
The U.S. government's Small Business Lending Fund (SBLF) appears to be accomplishing its goal of driving increased small business lending at banks.
The remaining 269 bank participants have grown qualified small business loans by an average rate of 93.0% over the baseline at the end of 2012. This compares to average small business loan growth of just 5.6% at similarly sized banks who did not receive SBLF funding over the same period.
The aggregate qualified small business loans of the current banking participants stood at $44.7 billion at Dec. 31, 2012, compared to the baseline of $36 billion. The 50 community development loan funds (CDLF) — the other participants in the program — also recorded an average growth of 63.2% in the qualified small business loans over the baseline.
The baseline, as defined under the program, is the average amount of qualified small business loans outstanding in the four quarters ended June 30, 2010. The amount may be adjusted to show the effect of any merger or loan purchase activity.
For the small business loan growth at non-SBLF banks, SNL studied small business lending at non-SBLF banks with less than $10 billion in assets at Dec. 31, 2012. The analysis revealed that these banks have grown small business loans by an average growth rate of only 5.6% since June 30, 2010. The study included all small nonfarm loans secured by nonfarm, nonresidential properties and commercial and industrial loans to U.S. addresses with original amounts of $1 million or less and all small farm loans secured by farm residential and other improvements, and loans to finance agricultural production and other loans to farmers with original amounts of $500,000 or less.
The Treasury defines qualified small business lending as all commercial and industrial loans, loans secured by owner-occupied nonfarm, nonresidential real estate, loans to finance agricultural production and other loans to farmers and loans secured by farmland, with the original principal and commitment amount of $10 million or less and the loan is not to a business with more than $50 million in revenues. It also excludes loan portions guaranteed by the U.S. government or for which a third party assumes risk.
Most of the lending growth came from the non-TARP banks. Former TARP banks grew their qualified small business loans by only 26.2% over their baseline on average basis, whereas the non-TARP banks have more than doubled their qualified small business loans from the baseline at Dec. 31, 2012. The former TARP banks are those SBLF participants that used the SBLF proceeds to repay the TARP outstanding.
The SBLF program, a brainchild of President Barack Obama, was enacted into law as part of the Small Business Jobs Act of 2010 (JOBS Act) to provide eligible financial institutions with capital in an effort to boost small business lending across the country. The Treasury had $30 billion available under the program, but it received 932 applications for only $11.8 billion, of which only 332 applications were approved for $4 billion in disbursements. Additionally, roughly half of the SBLF bank participants entered the program by exchanging TARP shares for SBLF shares.
ELFA Business Report Flat 2012-2013,
(Chart: Leasing News)
The Equipment Leasing and Finance Association MLFI-25 report for March showed an increase over February by $2.1 billion, but comparing the first quarter of 2013 above with 2013 is not very good news.
(Chart: Leasing News)
These charts are from Equipment Leasing and Finance Association
Previous MLFI Reports:
Report Finds Starbucks is Top Quick Serve for Q1 2013
Starbucks is the top quick service restaurant brand with $166 million of Impact Media Value according to General Sentiment’s Q1 2013 QSR MediaMatch. Taco Bell ($89 million), Chipotle ($51 million) and Kentucky Fried Chicken ($36 million) remained in the top four. Burger King ($33 million) rounded out the top five, moving up one place while McDonald’s ($29 million) and Pizza Hut ($21 million) each dropped a spot.
IHOP ($16 million) was the biggest mover this quarter, jumping from nineteenth to ninth as a result of its free pancakes promotion for National Pancake Day in February. McDonald’s ($29 million), Wendy’s ($21 million) and Applebee's ($18 million) ranked sixth, seventh, and eighth, respectively. Pizza Hut ($16 million) came in tenth.
“Most of the QSR brands maintained their positions this quarter, while a few saw minor movements in the rankings,” says Pete Moran, CEO of General Sentiment. “The larger social media story is IHOP’s movement from nineteenth to ninth, which was the result of a successful PR campaign substantiated by social media analytics.”
More details follow on what drove Impact Media Value for the top five QSR brands:
The report also provided MediaMatch data for IHOP, showing the most suitable TV show matches for the QSR brand. The top five television show matches based on overlap with the IHOP audience, which contains 135,884 mentioned are "The Jamie Foxx Show," "Guy Code," "Beyond Scared Straight," "Tyler Perry’s House of Payne," and "Bad Girls Club."
### Press Release ############################
Changes at the Captives Forum
The equipment manufacturers’ European trade association, The Captives Forum, which focuses on members use of finance as a means to increase sales of their products, has announced changes to its officers.
Elliot Lennick, New Chairman
After a number of years as Chairman, Patrick Jelly of Pitney Bowes, has been appointed to the role of President and Elliot Lennick has been appointed Chairman for a two year term. Nils Jaeger, of John Deere Financial has been appointed Vice Chairman.
Patrick Jelly (Vice President, Sales, Pitney Bowes Europe and Vice President, Pitney Bowes Financial Solutions Europe) said “Bret Thomas (CEO, Xerox Global Leasing Group) and I founded the Captives Forum in 2007 based on the belief that we could share ideas and best practice with Captive Finance companies in an environment that facilitated open discussion. We have been delighted with the progress we have made and the introduction of new members who share these beliefs and have made a significant contribution to our Forum over the last 6 years. I intend to remain closely involved and am delighted that we will continue under the strong support and guidance of Elliot and Nils, two senior leaders from the European Captive’s industry”
Elliot Lennick (Vice president and Head of International Sales, MAN Finance International) has been a strong supporter of the Captives Forum from the outset and a member of the Executive Committee. A well know figure in the industry, he has been with MAN for over 13 years and has responsibility for all of MAN Financial business outside of Germany. He is a Governor of the Leasing Foundation and has served as Chairman of the Commercial Vehicle Committee of the BVLRA.
Speaking of Patrick’s time as Chairman, Elliot said “Patrick’s contribution has made the Captives Forum a recognised body within the European leasing community. The respect that we have gained within the industry is through Patrick’s endeavours. As Chairman for the next two years, I aim to carry on with the vision both Patrick and Bret had in 2007 and will continue to look for new members that share our manufacturing parentage and international focus.”
Appointed to the new role of Vice Chairman, Nils Jaeger (Vice President, John Deere Financial, John Deere Global Trade Finance and John Deere Bank) is another member who has the important experience of working in the parent company’s equipment business prior to his role in the financial operation of the John Deere Group. He has lived and worked in a number of European countries and the USA, and therefore brings a wide international experience to the Forum. Nils is a Governor of the Leasing Foundation and is a member of the Executive Committee of the Captives Forum. Nils said “I am delighted to have become so involved with the Captives Forum.
In the two years since I joined, I have come to appreciate how important it is for manufacturers to have a trade association that focuses on the very different challenges that are faced by us when compared to bank owned lessors.”
Alan Leesmith, Secretary of the Captives Forum said “In recognition of Patrick’s founding role, I am pleased to say that Patrick has agreed to accept the new title of President. This means that we will continue to have the benefit of Patrick serving on the Forum’s Executive Committee. As the number of our members has continue to grow, there will be increasing demands on the Chairman and we recognise the importance of sharing the workload. We have decided therefore to introduce a fixed term of two years as Chairman and at the same time introduce the role of Vice Chairman. This will also provide us with a succession plan for future years.”
The management of the Captives Forum is undertaken by IAA-Advisory. Alan Leesmith, IAA’s International Director, is the Captives Forum’s Secretary and Derek Soper is Advisor to the Captives Forum Board.
#### Press Release #############################
“I am already spayed, housetrained, purebred, up to date with shots, good with kids, good with dogs, and good with cats.”
SHELBY MAGNOLIA's Story...
“Hello, my name is Shelby Magnolia. The kind people at Canine Compassion rescued me from certain death at a Dallas area shelter. I am a soft and gentle 11 year old rough coated collie.
“I am housebroken, quiet and just enjoy being in your presence. I love hanging out on the front porch with my foster mother or simply spending time with the family while they watch TV. While my foster mother’s place is certainly better than the shelter was, I think I would really enjoy a quieter environment where I can live out my golden years in peace and joyful serenity.
“I am wonderful with other dogs of all sizes, cats and even kiddos of the human variety. I do require some medications to keep my old hips comfortable, but I am very easy to care for and the love and loyalty I show in return makes me very endearing and impossible not to love. My foster mom says I have been a blessing and a gift to her and she desires a special retirement home for me that can also enjoy all that I have to offer.
“Do you have room in your heart and home for a regal, loyal companion like me?”
If you would like to apply, please e-mail firstname.lastname@example.org for an application.
**An excellent vet reference is required**
Contact This Rescue Group...
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Paramount Man Sentenced to Federal Prison for Bank Fraud
Los Angeles – Appearing before United States District Judge R. Gary Klausner, a Paramount man was sentenced to 36 months in federal prison for conspiring to commit bank fraud.
Victor Eze, 51, was further ordered to spend two years on supervised release following his prison sentence. Eze has been in federal custody since his arrest in April of last year.
Eze pleaded guilty to one count of conspiring to commit bank fraud on June 11, 2012.
According to the plea agreement, between 2005 and April 18, 2012, Eze altered the payee name on stolen checks received from his unnamed co-conspirators. Eze also counterfeited checks for his co-conspirators. The co-conspirators then cashed and deposited the checks that Eze had altered and counterfeited. Many federally-insured financial institutions suffered actual losses as a result of this conspiracy, including Chase Bank and U.S. Bank.
According to court documents initially filed in this case, Eze admitted to investigators that other members of the conspiracy would bring him fraudulent checks and he would alter payee names and addresses upon their request and would be paid $100 per check for his alterations.
The investigation of Eze was conducted by IRS Criminal Investigation and the U.S. Postal Inspection Service, in conjunction with the United States Attorney’s Office for the Central District of California.
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The Most Popular Home Improvements
In looking at new homes, the National Association of Realtors took a look at what buyers considered important enough that they would pay more for the house.
The report noted “There is a difference in people’s preference and what they are willing to pay for,” the report said. “They may want the steak but are on a macaroni budget.” In many of these, the amount they are willing to pay more doesn't even come close to reality of the cost difference in remodeling a new house compared to buying a new house that has the features. However, the response do indicate the current desires of families living styles.
The people who are most interested in an eat-in kitchen tend to be in the 35 to 54 age range, with 30% of those prospective home buyers indicating this is “very important” in a house. Meanwhile, just 21% of those under 35 years of age and 20% over 55 feel the same way. More people, especially those who are raising families, want kitchens that look into family entertainment rooms. Some have even made it a family hangout by placing big-screen TVs and other electronics in the kitchen. “Buyers who are in families want to be in one space and do it all.
Some people simply want a newer home. For those willing to pay more for a newer home, the median that people would dole out was more than $5,000.
Like most features, stainless steel appliances are most important to people between the ages of 35 to 54, with 23% considering them to be a “very important” investment, compared with just 16% of those under the age of 35 and a mere 11% of those over the age of 55. People are primarily driven to buy stainless steel appliances because they look more attractive.
Kitchen islands are most important to people ages 35 to 54, with 24% of them indicating that it is a “very important” characteristic. Just 19% of people under 35 and 13% over 55 considered this feature important. DeSimone noted that kitchen islands often come in handy for those who are raising a family.
Once again, the ensuite master bathroom tends to be more important to people ages 35 and older. “It kind of goes to the ‘home is my sanctuary’ mentality,” Samuelson said. This, along with a walk-in closet in the master bedroom, has become more important in the past 10 years or so. Many people are eager to make their bathroom more “homey” by doing things such as installing televisions on the wall. The fact that many master bathrooms have two sinks is also an appealing option for married couples
Some 25% of buyers under the age of 35, and 28% of those between 35 and 54, considered hardwood floors “very important” when looking for a home. Only 17% of people ages 55 and up felt the same way. In previous generations, homes with carpets were considered better in order to conserve energy, DeSimone said. Even today, older people are more likely to feel more comfortable with carpeting because the insulation makes the home a little bit warmer. But for younger people looking to have many guests at the house and for people with children, hardwood floors are desirable because they are easier to clean than carpets.
Among homeowners between the ages of 35 and 54, 24% viewed granite countertops as “very important,” compared to 18% of people under 35 and 18% of people over 55. Although just one in every five prospective home buyers said granite countertops were very important, 55% of those who bought a home without such a countertop said they would pay extra for it.
A whopping 60% of homeowners were willing to pay extra for a walk-in closet in the master bedroom, with 44% of people between the ages of 35-54 viewing this feature as “very important,” compared to just 35% under the age of 35 and 36% of people 55 and older. DeSimone said the walk-in closet is desired for two main reasons: space and status. The space is very desirable for people as they get older and acquire more clothes, allowing people to be more organized. Having a walk-in closet in the master bedroom is also a status symbol
About 69% of homeowners said they were willing to spend more money for new kitchen appliances.
Nearly seven in 10 homeowners said they would be willing to pay more on central air conditioning — the same as new kitchen appliances and more than any other feature. Central air conditioning was considered “very important” by more than 60% of people in all age groups. Samuelson noted that although people were willing to shell out approximately $2,500 for the feature, that is far less than what it would actually cost to install central air conditioning.
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This Day in History
1507-Little is known about the obscure scholar now called the "godfather of America," the German geographer and mapmaker Martin Waldseemuller, who gave America its name. In a book titled Cosmographiae Introductio, published this day, 1507, Waldseemuller wrote: "Inasmuch as both Europe and Asia received their names from women, I see no reason why any one should justly object to calling this part Amerige, i.e., the land of Amerigo, or America, after Amerigo, its discoverer, a man of great ability." Believing it was the Italian navigator and merchant Amerigo Vespucci who had discovered the new continent, Waldseemuller sought to honor Vespucci by placing his name on his map of the world, published in 1507. First applied only to the South American continent, it soon was used for both the American continents. Waldseemuller did not learn about the voyage of Christopher Columbus until several years later. Of the thousand copies of his map that were printed, only one is known to have survived. Waldseemuller probably was born at Radolfzell, Germany, about 1470. He died at St. Die, France, about 1517-20.
NBA Finals Champions This Date
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