Category: General

Posted on by Duane Morris

In Recent Case, California Court of Appeal Invalidates Default Interest Provision on Nonconsumer Loan

The California Court of Appeal recently held that default interest and late fee charges are unlawful when they are assessed against the full outstanding principal balance on a partially matured note, regardless of whether the loan is a consumer or nonconsumer loan. At present, lenders operating in California should be prepared for borrowers to challenge the imposition of default interest applied against the entire unpaid principal balance in the event of a nonmaturity default.

To read the full text of this Duane Morris Alert, please visit the firm website.

Posted on by Natalie A. Stewart

The UK Recovery Loan Scheme

The British Business Bank’s (“BBB”) Coronavirus Business Interruption Loan Scheme (“CBILS”) was first introduced in April 2021. The new iteration of the Scheme, the Recovery Loan Scheme (“RLS”) launched in August 2022 and will run until 2024.

Following on from our previous article regarding the CBILS, our follow-up article provides updated guidance regarding the new iteration of the Scheme, and examines the amendments that have been made to the Scheme.

Background

The RLS is a government-backed scheme aimed at supporting access to finance for businesses in the United Kingdom, operated by the BBB on behalf of the Secretary of State for Business, Energy & Industrial Strategy. The Scheme’s accredited lenders provide support by means of either a loan, overdraft, invoice finance facility or asset finance facility[1]. The Scheme’s aim is to provide financial aid to businesses that have been affected by Covid-19. The loan can be used for any legitimate business purposes, such as managing cashflow, investment and growth. The eligibility criteria for availing of the Scheme remains the same: small and medium businesses with an annual turnover of up to £45 million. Previously, the CBILS required that the borrower must confirm that it has been negatively impacted by Covid-19.

New Developments

As an update to the previous Scheme, the Covid impact criterion is absent in the new iteration of the Scheme. In the eligibility section of the BBB’s website, it states that there is “No Covid-19 impact test required: Unlike the previous iteration of the scheme, for most borrowers, there is no requirement to confirm they have been affected by Covid-19”[2]. It is unknown whether the absence of the requirement is in direct response to market feedback on the CBILS, however, the lack of the impact requirement is likely due to the ongoing effect that the pandemic has had on the economy, as observed through the ongoing supply chain issues and the cost of living crisis.

Previously, the Scheme supported loans of up £10 million for individual businesses and £30 million across a group, and also provided accredited lenders with a government-backed guarantee of 80 per cent on losses that may arise on facilities of up to £10 million. By contrast, the new iteration will support lending of up to £2 million for borrowers outside the scope of the Northern Ireland Protocol. Borrowers within the scope of the Northern Ireland Protocol may apply for lending of up to approximately £1 million, (subject to aid limit restrictions), and will provide the lender with a 70 per cent government-backed guarantee[3].

The BBB states that businesses that took out a previous CBILS facility before 30 June 2022 are not prevented from accessing the new iteration of the Scheme[4]. However, there is a possibility that businesses may not be eligible to receive the maximum amount.

The BBB also states that the term loans and asset finance facilities are available from three months up to six years, with overdrafts and invoice finance available from three months up to three years[5].

Lenders in the Scheme and the Application Process

When considering a prospective lender, the BBB’s website offers two filter options: ‘Filter by Financial Variant’ and ‘Filter by Region’. The current list of accredited lenders is detailed below:

The new iteration’s list of accredited lenders is short in comparison to the previous list affiliated with the RLS (but does include RBS, HSBC, Lloyds Bank and Natwest among others) and availability varies by region. However, it is likely that the list of accredited lenders will expand over time.

Under RLS, lenders are required to undertake their standard credit, fraud, Anti-Money Laundering (AML) and Know Your Customer (KYC) checks for all applicants[6]. Once an application has been submitted to an accredited lender, the lender will determine whether they can offer a commercial facility on better terms than the RLS facility. If they are able to offer better terms, they will do so. Otherwise, the lender, at their discretion, may elect to use the RLS to support an application. If one’s application with a lender is rejected, a borrower is not prohibited from applying to other RLS-accredited lenders.

For More Information

If you have any questions about this blog, please contact Drew D. Salvest, Natalie A. Stewart, Rebecca Green, Helen Ryan, any of the attorneys in our Banking and Finance Industry Group or the attorney in the firm with whom you are in regular contact.

[1] https://www.ukfinance.org.uk/covid-19/business-support/recovery-loan-scheme-qa-businesses

[2] https://www.british-business-bank.co.uk/ourpartners/recovery-loan-scheme/for-businesses/

[3] https://www.british-business-bank.co.uk/ourpartners/recovery-loan-scheme/for-businesses/

[4] https://www.british-business-bank.co.uk/ourpartners/recovery-loan-scheme/

[5] https://www.british-business-bank.co.uk/ourpartners/recovery-loan-scheme/

[6] https://blogs.duanemorris.com/london/2020/03/31/new-covid-19-uk-government-financing-options-available/

Posted on by Duane Morris

CFPB Consent Order Could Upend Bank Garnishment Practices

On May 4, 2022, the Consumer Financial Protection Bureau published a consent order concerning Bank of America’s garnishment practices whereby Bank of America agreed to:

  • Refund at least $592,000 to its customers for garnishment fees that were improperly assessed;
  • Pay a civil penalty of $10 million; and
  • Submit a compliance plan for redressing unfair and deceptive acts in its garnishment processing.

The order has significant implications for the banking industry and the processing of garnishments. Accordingly, it would be prudent for all banks to undertake an immediate review of the following.

To read the full text of this Duane Morris Alert, please visit the firm website.

Posted on by Duane Morris

Best Practices for Fund Document Diligence in Fund Financing Transactions

By Anastasia N. Kaup and Melissa A. Sharp

It is critically important, for both lenders and borrowers, to confirm that the borrower is actually authorized to enter into a financing transaction, borrow money, and pledge assets as security for those obligations (if the financing is secured).  If a borrower (entity) acts without express legal authority or beyond the stated scope of authority in its charter, operating agreement, or offering documents (collectively, the “Fund Documents”), the entity may be sued by its investors, the transaction may be voided by a court, the lender may suffer a loss, and/or other negative consequences may result.  Continue reading “Best Practices for Fund Document Diligence in Fund Financing Transactions”

Posted on by Natalie A. Stewart

LIBOR Transition: Feedback from FCA Consultation on Synthetic LIBOR

Further to our recent blog post on synthetic LIBOR, the Financial Conduct Authority (the “FCA”) has published its feedback statement on its consultation regarding the legacy use of 1, 3 and 6 month sterling LIBOR from 1 January 2022. The feedback consisted of 36 responses from market participants, with the majority of respondents agreeing with all aspects of the FCA’s proposals. The FCA has confirmed that it will permit legacy use of synthetic Sterling LIBOR by supervised entities, aside from cleared derivatives.

The FCA confirmed that one, three and six-month synthetic Sterling LIBOR will be calculated as the sum of the applicable one, three or six-month Term SONIA Reference Rates provided by IBA and the fixed spread adjustment applicable as part of the ISDA IBOR fallback for one, three or six-month Sterling LIBOR, which is published for the purposes of the ISDA IBOR Fallbacks Supplement and Protocol. IBA will be required to continue publishing synthetic Sterling LIBOR for all applicable London business days, except London public holidays.

It is of note that some market participants queried the use of forward-looking term RFR as a component for synthetic LIBOR, suggesting the use of RFRs “in-arrears” instead in order to align with ISDA fallbacks. The FCA’s response to this suggestion was that RFRs “in-arrears” are not suitable for contracts which require the interest rate to be identified up-front, and as such contracts are not realistically able to be amended to work using RFRs “in-arrears”, the use of such rates in the calculation of synthetic LIBOR could have the potential to cause market disruption.

Duane Morris’ LIBOR Transition Team:  Roger S. Chari, Chair, Joel N. Ephross, Amelia (Amy) H. Huskins, Phuong (Michelle) Ngo and Natalie A. Stewart.

Posted on by Natalie A. Stewart

LIBOR Transition: Synthetic Sterling LIBOR for limited tough legacy loans

As the cessation of LIBOR panels draws closer, the Financial Conduct Authority (the “FCA”) has been looking at ways to mitigate market disruption in respect of tough legacy loans which link to LIBOR but expire after LIBOR is discontinued. As a result, the FCA will require ICE Benchmark Administration to publish a synthetic Sterling LIBOR for the duration of 2022.

Despite at first instance appearing to be a solution for products which have yet to be amended for the cessation of LIBOR, synthetic LIBOR is only intended to be used for certain tough legacy contracts. To learn more about how synthetic LIBOR will work in practice and the legacy contracts which are likely to be able to utilize synthetic LIBOR, check out our Alert here.

Duane Morris’ LIBOR Transition Team:  Roger S. Chari, Chair, Joel N. Ephross, Amelia (Amy) H. Huskins, Phuong (Michelle) Ngo and Natalie A. Stewart.

 

Posted on by Phuong (Michelle) Ngo

LIBOR Transition: Drama Continues for BSBY

As Bloomberg and banks like Bank of America in the US and DBS Bank in Singapore continue to push forward with BSBY, IOSCO last month rattled its saber with a statement on credit sensitive rates, highlighting the importance of choosing alternative financial benchmarks that are compliant with the IOSCO Principles. The last volley in the continuing back and forth between regulators and proponents of new credit sensitive rates came in July, when Bloomberg tried to address some of the volume and manipulation concerns raised by SEC Chair Gary Gensler and others with BSBY.

The IOSCO statement counters that with a caution that IOSCO compliance is not a one-time test, and even if trading volumes are sufficient for current volumes of loans in such benchmarks, loan volume should not be permitted to grow if it outpaces increases in underlying trading volumes and are unable to be resilient. BSBY is not mentioned by name, but it has been the primary subject of attention.

Two weeks after IOSCO published its cautionary statement, Gensler spoke at the ARRC’s fifth session of The SOFR Symposium: The Final Year, responding to Bloomberg’s July report that it “could not address the main concern that the rate is built off of too thin a market.” Gensler reiterated that that he did not “believe BSBY is, as FSB urged, ‘especially robust,’” adding that, “I don’t believe it meets IOSCO’s 2013 standards.”

Unless regulators back up their words with actions, this drama is mostly noise, and lenders are free to continue to make BSBY loans. Whether they will be successful will depend in part on whether borrowers perceive BSBY as a better deal. For legacy LIBOR loans, the spread adjustment added to the interest rate to transition to SOFR has been set by market convention—about 11.5 basis points for a 1 month term, 26bps for 3 months and 43bps for 6 months. This adjustment reflects that LIBOR is an unsecured rate that is sensitive to fluctuations in credit risk while SOFR is a secured, relatively stable “risk free” rate. Since BSBY is also based on unsecured transactions, there should not be a need to add much, if any, spread adjustment to transition from LIBOR to BSBY. This lower spread could be attractive to borrowers if they believe that over time, the variable credit sensitivity of BSBY will not cause the rate to rise, relative to SOFR, more than the fixed SOFR spread adjustment.

Duane Morris’ LIBOR Transition Team:  Roger S. Chari, Chair, Joel N. Ephross, Amelia (Amy) H. Huskins, and Phuong (Michelle) Ngo.

Posted on by Michael A. Witt

Cryptocurrency Issues for Lenders and Borrowers: How to Proceed In the Absence of Industry Clarity

States are beginning to recognize cryptocurrency as a form of collateral under their Uniform Commercial Codes. As a result, commercial lenders and borrowers are learning more about their legal rights in cryptocurrency. Of particular concern for borrowers and lenders alike is the enforceability of a security interest on cryptocurrency as collateral. Forty-seven U.S. states have not passed legislation on cryptocurrency as an asset category, whereas Texas, Rhode Island and Wyoming have passed cryptocurrency legislation. These three states call cryptocurrency, “Virtual Currency”. The collateral is defined in Texas, for example, as “digital representation of value that functions as a medium of exchange, unit of account, and/or store of value and is often secured using blockchain technology”. To perfect its lien in cryptocurrency, a secured lender can file a financing statement or execute a “control” agreement. That said, it is unclear whether filing a financing statement is sufficient to put prospective secured parties on notice of a then-existing lien. As such, until the industry gains clarity on this matter, lenders need to perfect via “control” to have any certainty in the viability of the priority of their security interest.

Even how a lender goes about “controlling” Virtual Currency, though – which is also a perfection method for asset types such as deposit accounts and investment property – is less than crystal clear at this point. For a user to access cryptocurrency, one needs what is called a private “key.” As such, some prospective lender in this space might require possession of that private key as a condition to funding. However, unless a borrower does not plan to access its cryptocurrency during the course of a loan, from a practical matter, it seems unlikely that a borrower would want to give up its private key. Some industry experts have discussed similar control mechanisms that secured lenders use for deposit account collateral or other receivables, such as deposit account control agreements or source code escrow agreements. Still, until those control mechanisms make their way through the court system, it is impossible to know with any degree of certainty how those methods would work and if they would achieve the requisite “control” under the new law.

For further guidance, please check this space regularly, subscribe to our blog or reach out to Michael Witt or Max Fargotstein.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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