In May 2012, the Pennsylvania Superior Court issued its decision in Commerce Bank/Harrisburg, N.A. v. Kessler, effecting fundamental change in the previously understood priority of open-end construction loan mortgages over mechanics liens. At the time of the Kessler decision, the Mechanics Lien Law (“MLL”), 49 P.S. 1101, et seq. provided that, although a mechanics lien for construction of improvements generally has priority as of the date of visible commencement of work, it was subordinate to an open-end mortgage “the proceeds of which are used to pay all or part of the cost of completing erection, construction, alteration or repair of the mortgaged premises…”. The Kessler court interpreted the statute to mean that, in order for the exception to priority to be applicable, all of the loan proceeds secured by the open-end mortgage must be used for such “hard costs,” and none of the loan proceeds could be used for other purposes, such as closing costs, satisfaction of an existing mortgage, or payment of other judgments and liens. As a result of the Kessler decision, lenders have sought to structure transactions to allow for title insurance coverage against mechanics liens for construction loans when visible work commenced prior to the mortgage recording date.
U.S. Supreme Court Decision Answers Question Arising Out of Stern vs. Marshall Decision
In Executive Benefits Insurance Agency, petitioner vs. Peter H. Arkison, Chapter 7 Trustee, Case No. 12-1200, 573 U.S. __(2014) the United States Supreme Court ( Court) delivered its opinion as a follow up to its landmark decision in Stern v. Marshall. In Stern v. Marshall, the Court held that even though bankruptcy courts are statutorily authorized to enter final judgments on a class of bankruptcy related claims, Article III of the Constitution prohibits bankruptcy courts from finally adjudicating certain of those claims. Under Stern’s reasoning, the Constitution does not permit a bankruptcy court to enter final judgment on a bankruptcy related claim, the relevant statute does permit a bankruptcy court to issue proposed findings of fact and conclusions of law to be reviewed de novo by a federal district court. Because the District Court conducted the de novo review that petitioner demanded, the Court affirmed the judgment of the Court of Appeals upholding the District Court’s decision. The following information has been extracted from the syllabus prepared by the Reporter of Decisions and does not represent the actual written decision by the Court.
Banks Previously Sued in Title III ADA Class Action Lawsuits Now Getting Sued Again in Second Wave of Accessibility Lawsuits
A Pittsburgh-based law firm, that has filed well over 100 class action lawsuits under Title III of the Americans with Disability Act (“ADA”) in federal District Courts throughout the country against banks on behalf of a plaintiff who alleged that the banks’ ATMs were inaccessible, is back at it and is filing more ADA Title III class actions against banks. The new ADA Title III class actions claim that the defendant banks’ branch locations are physically inaccessible to individuals in wheelchairs. In the past few weeks, the Carlson Lynch law firm has filed seven such class action lawsuits in the Federal District Court in Pittsburgh, all against banks the law firm had previously sued for alleged ATM accessibility violations. All of the new lawsuits involve the same plaintiff, Damian M. Zipf, who, according to the Complaints, is dependent upon a motorized wheelchair for mobility. Zipf alleges that he has been deterred from patronizing the bank branches because of certain accessibility barriers. In these newly filed wheelchair accessibility class actions, the plaintiff is alleging a variety of general ADA accessibility violations, including, but not limited to, inaccessible parking lots, handicap signs that are too low, inaccessible door hardware and entrances, and obstructed accessible routes. In each lawsuit, the Plaintiff claims to have visited a number of bank branches and has alleged specific ADA violations at each location.
Commonwealth Court Vacates Order Authorizing Sheriff Sale Due To Failure Of City To Comply With Tax Sale Laws
A Commonwealth Court ruling earlier this month, in City of Philadelphia v. Manu, 2013 Pa. Commw. LEXIS 363, may have a significant effect on the City’s procedures in tax sales, and the success of owners and lienholders in setting aside or staying such sales if statutory requirements are not followed.
In January 2011, the City filed a petition seeking to sell a rental property owned by Agnes Manu free and clear of all encumbrances, pursuant to the Municipal Claims and Liens Act (the “Act”), 53 P.S. §7101, et seq. The City first alleged the amount of delinquent water and sewer rents was $0.00 and attached to its petition an “amended” claim of $657.54, plus interest and penalties for “City taxes”. In addition to the property owner and other tax lien holders, several mortgagees had an interest in the property. However, the show cause order that issued on the petition was only directed to the property owner. Further, service of the petition and rule was made only by posting on the property.
Unprecedented FCPA Wake-Up Call for U.S. Broker-Dealers and Foreign Banks: Has the Perfect FCPA Storm Finally Arrived for U.S. Financial Markets?
On May 7, 2013, the U.S. Attorney’s Office for the Southern District of New York (SDNY) unsealed extraordinary criminal charges against two registered representatives of a U.S. broker-dealer and a high-level Venezuelan government official for engaging in a “Massive International Bribery Scheme.” What makes this fraud scheme remarkable is that it involves the activities of a U.S. broker-dealer, its client, a foreign-owned and controlled bank, the Foreign Corrupt Practices Act (FCPA) and several suspicious transactions that potentially should have raised concerns—a perfect storm. This case may be the catalyst that jump-starts a government FCPA sweep of Wall Street that has been predicted since 2011, but not realized.
District Court Clarifies Distinction Between Burdens of Proof on Stay Relief and Adequate Protection in American Airlines Bankruptcy
In AMR Corporation, et al., Debtors, Case No. 12-3967, 2013 WL 1339123 (S.D.N.Y. April 3, 2013), the United States District Court for the Southern District of New York acknowledged that to be granted relief from the automatic stay under 11 U.S.C. § 362(d), a secured creditor has the initial burden to show that there has been a decline—or at least a risk of decline—in the value of its collateral.
Only then will the burden shift to the debtor to prove that the value of the collateral is not, in fact, declining. On the other hand, for purposes of adequate protection under 11 U.S.C. § 363(e), the secured creditor need only establish the validity, priority or extent of its interest in the collateral. At that point, the debtor bears the burden of proof under § 363(e). The distinction between the respective burdens of proof in §§ 362(d) and 363(e) can be a significant consideration for the formulation of a secured creditor’s strategy at the outset of a chapter 11 case.
A New Legal Perspective on ACH Fraud
A Missouri court recently handed down a judgement in an ACH/wire fraud dispute between Choice Escrow and BancorpSouth, and in a change from rulings in similar cases, this judgment favored the bank. The judge’s findings may well impact how other cases are decided in the future.
Partner Joseph Burton comments in Bank Info Security on the case and what the decision may mean going forward. Click here to read the article and listen to the interview.
Chapter 11 Single Asset Real Estate Cases Dismissed For Cause
The United States Bankruptcy Appellate Panel of the 6th Circuit affirmed the Bankruptcy Court dismissal of five single – asset real estate Debtors’ Jointly Administered Chapter 11 cases under the “For Cause” dismissal provisions of the United States Bankruptcy Code, 11 U.S.C.A. § 1112 (b). see In re Creekside Senior Apartments, LP, et al., 2013 WL 1188061 (6th Cir. BAP Ky.)
The Debtors appealed from the bankruptcy court determination which dismissed five single asset real estate cases. Each Debtor owned a parcel of real property on which it operated a low-income housing apartment complex. In order to demonstrate that cause exists to dismiss a case the moving party must demonstrate that there is both a (1) substantial or continuing loss or diminution of estate assets and (2) an absence of a reasonable likelihood of rehabilitation.
Continue reading “Chapter 11 Single Asset Real Estate Cases Dismissed For Cause”
Bankruptcy Dollar Amount and Form Changes that May Affect You
Adjustments to certain dollar amounts in the Bankruptcy Code may affect your decision and strategy to either file a bankruptcy or in defending certain actions filed against you or your company. The automatic adjustments to the dollar amounts in various provisions of the Bankruptcy Code, 11 U.S.C. 101 et seq. went into effect on April 1, 2013. You may access the official forms by clicking the following link to the United States Courts:
www.uscourts.gov/…/BankruptcyFormsPendingChanges.aspx
Continue reading “Bankruptcy Dollar Amount and Form Changes that May Affect You”
First ADA ATM Accessibility Class Action Lawsuit Is Filed in Atlanta
Pittsburgh-based law firm, Carlson Lynch, responsible for the filing of over 100 nearly identical Americans with Disabilities Act (ADA) ATM class action lawsuits in federal district courts in Pennsylvania and Texas since March 2012, filed in federal district court in Atlanta last week the first of what are likely to be many ADA ATM accessibility class action lawsuits against Atlanta-area banks. If the plaintiff and plaintiff’s law firm follow the same strategy that was used in Pennsylvania and Texas, it is anticipated that a number of virtually identical class action lawsuits will be filed by against Atlanta-area banks, and banks throughout Georgia, over the course of the next several days and weeks.
Click here to read more about the more salient ADA ATM requirements.