|

In this digital age, the courts increasingly have zero tolerance for errors on a UCC-1 financing statement intended to perfect a lender’s security interest in collateral as part of a loan transaction. Most recently, a federal court in Rushton v. Standard Industries, Inc., et al. (In re C.W. Mining Company), 488 B.R. 715 (D. Utah, 2013) ruled that a UCC financing statement that omitted two periods from the debtor’s name was materially misleading, and the “secured party” was therefore not perfected. A lender who thought it was properly secured on a $3 million obligation suddenly found itself entirely unsecured because of this seemingly trivial mistake!

The debtor in this matter was C.W. Mining Company, whose fortunes had slipped, leading to a bankruptcy. Well before the bankruptcy petition was filed a creditor with a security interest in coal owned by the debtor (C.W. Mining Company was a coal producer) filed a UCC-1 financing statement naming the debtor as “CW Mining Company.” The bankruptcy trustee (usually the bad guy in these situations, from the secured creditor’s point of view) brought an action to, among other things, avoid the lien because of this mistake, arguing that the creditor was not properly perfected.

The Bankruptcy Court and the Federal District Court, on appeal, agreed with the trustee. They held that the manner in which the creditor set forth the debtor’s name on the UCC-1 financing statement was seriously misleading, as it omitted the two periods. Of major importance was the fact that the search algorithm used by the state – Utah in this instance – did not pick up the filing in its data base when the debtor’s proper name was entered.

Continue reading ›

|

In Silicon Valley, home to many large technology corporations and thousands of innovative startups, businesses need to move quickly to stay ahead of the competition. As a small business attorney in San Jose, I have formed countless of limited liability companies (LLCs), partnerships and corporations with the Delaware and California Secretaries of State over the years. And one of the first questions my eager small business clients ask me in our initial meetings is almost always, “How long will it take to form my company?”

For many years my answer was that we could have the filed Articles of Incorporation (for a Corporation), Articles of Organization (for an LLC), or Certificate of Partnership within about a week. When the California Secretary of State slowed down a few years ago, I had to tell clients that it could take as much as several weeks. However, in the last year or so the delays crept up to three months or more for the California Secretary of State to process and return a business filing.

Of course, California does provide a 24-hour expedited filing option, for an additional $350 over the usual filing fees. In my more cynical moments I have had to wonder whether it was the California budget crisis that was causing filing times to slow down because of lack of resources, or if the Secretary of State was purposefully taking longer to return routine filings in order to force virtually everyone to pay the “rush” fees.

Continue reading ›

|

Head’s up!! UCC financing statements are changing as of July 1, 2013. Lenders and borrowers need to take extra care to ensure that they have correctly prepared UCC financing statements and, of course, consult with an attorney as necessary. UCC filings are of critical importance in any secured loan transaction, whether it involves asset based loans, technology lending, construction financing, equipment financing, and even real estate lending where fixture filings may be an integral part of the transaction or personal property may be included in the collateral pool. Accordingly, changes in UCC forms affect every lender, secured party and borrower. In a problem loan, loan workout or bankruptcy situation, the validity of the lender’s security interest becomes of paramount importance.

For lenders, the basic rule for perfecting a lien or security interest in most types of assets is to file a UCC-1 Financing Statement with the Secretary of State where the debtor or borrower is registered. If the borrowing company happens to be in San Jose or Palo Alto, California, for example, and is registered as a California corporation, the UCC-1 is filed with the Secretary of State in California. As of July 1, a revised form of UCC-1 is to be used in most states, including California and Delaware.

The changes to the form are driven by privacy concerns and primarily involve eliminating entries for a company’s registration number and an individual’s social security number. Such identifying information has not been required – in fact, social security numbers have automatically been redacted or made unreadable – for a while now in California. One thing the change highlights, however, is the ever-increasing importance of getting the debtor’s name correct on the UCC form, character by character, as other references to a borrower or debtor no longer appear.

Continue reading ›

|

As a business and M&A lawyer in San Jose, it is not uncommon for me to burn the midnight oil hammering out a deal for a Silicon Valley client. There is often a need to break from the perpetually connected life to recharge the lithium cells, so to speak. On a recent bike ride in Santa Clara on the local single track, it occurred to me that the life of a deal can be contained in a single mountain bike ride.

A ride starts with the first drop of a pedal. Any deal starts with the first realization that two people or groups can get together and construct a process that will create value for both of them. Whether it is a simple software license, or a complex strategic alliance and funding deal, it is that first pedal that moves everything forward.

Whether you are involved in a transaction deal or a single track mountain bike ride, you need the right tools to make it all work. For a lawyer, it is the years of learning that just begin after you leave law school. The late nights wrestling with creating a structure that will reduce risks and the time spent attending or teaching professional seminars all contribute to the base of knowledge that comes to bear in every transaction. Making sure your tires fit the trail and your derailleur is adjusted and chain oiled can make the difference between a ride and an ordeal.

Continue reading ›

|

As a veteran M & A lawyer in San Jose, where deal making has never gone out of style, I have been though my share of mergers and acquisitions. For business counsel, the closing of a deal is one of the times I get to spike the ball in the end zone as I watch the cash flow to a happy (and relieved) seller. Needing only to put together a closing package, my work is done and I am off to popping the corks at the closing dinner. Or is it?

From sole proprietors and small businesses to large corporations, many business owners enter the sale process believing the closing of a deal is accompanied by a one-way ticket to paradise. They often find out, however, that the fun is just beginning. The first year after closing presents a number of challenges, all of which must be carefully managed to make sure the seller gets the full value of the business.

As I have discussed in prior blogs there are a number of adjustments, associated with audits and working capital, which occur within the first three to six months after closing, including the following:

Continue reading ›

|

Some tax law changes recently went into effect that that will have an impact on both individuals and businesses in San Jose and throughout the State:

Yet Another Gas Tax Increase

On February 28th the Board of Equalization approved a 3.5 cent gas tax increase, effective July 1, 2013. This brings the gas tax rate to 39.5 cents for 2013-2014. This adjustment should produce revenue at the same rate as if Proposition 30 applied to gas sales. (Proposition 30 resulted in a 0.25% state sales tax increase which does not apply to gas sales.)

Continue reading ›

|

In the wake of the California Supreme Court’s Riverisland ruling concerning lender liability, lenders in the San Francisco Bay Area and Silicon Valley may want to evaluate and consider modifying their current lending procedures. As a San Jose based attorney experienced in loan documentation, problem loans and loan workouts throughout California, I have followed the ebb and flow of lender liability law for many years. Although it is a bit early to assess the long term impact of the California Supreme Court’s Riverisland decision, it is not too early to consider precautionary steps, which generally have to be taken at the outset when the loan is being negotiated and documented, to minimize the chance of claims being asserted later.

The court in Riverisland said that a lender’s oral statements about loan terms, even if made before the documents were signed, can come into evidence in a lawsuit if the purpose is to show that the lender used fraud to induce the borrower to enter into the transaction. The facts of Riverisland are discussed below. Before Riverisland, if the borrower’s evidence of oral statements by the lender about the loan terms was inconsistent with the loan documents, the borrower’s evidence could not even come into the case. Now it can, if the purpose is to show fraudulent inducement by the lender. And the facts supporting the borrower’s claims can be taken from the borrower’s own testimony of his or her recollections. This shifts some bargaining strength toward the disgruntled borrower in problem loan negotiations, as it will be difficult after Riverisland to eliminate such fraud claims early in litigation, or perhaps even before a trial.

The immediate question for lenders is whether any changes in the loan-making and loan documentation process are needed to protect against the potential effect of the Riverisland ruling. Some ideas of possible changes are offered below.

Continue reading ›

|

Having represented both buyers and sellers in mergers and acquisition transactions in Silicon Valley for more years than I care to admit, I have been through a number of closings. Some M&A closings that I have been involved in were smooth affairs, accomplished through an exchange of a single phone call with a confirming email, while others have stretched into all night marathons. Although it is often difficult to know whether your deal will allow you to finish at a reasonable time, there are a number of actions you can take to make sure your closing is as smooth and stress free as possible.

Obtain Third Party Consents:

The most important task for both the seller and acquirer is to plan ahead. Everything you will need, to accomplish the closing, will take longer than you think. One item which often delays a closing is getting the necessary consents to the transaction required from third parties. Certain third parties, often parties to major relationships that the acquired company, post-closing, requires for its operations, have rights under their contracts to consent to any change in control. Many of these contracts create significant value for the acquired company and their continued existence are often a key incentive for the buyer proceeding with the deal. It is best to identify these material agreements early on and plan a strategy for securing the necessary consents. Other areas where third party consents might be required are when a party, often a strategic investor, has a right of first refusal that is triggered by the transaction.

Continue reading ›

|

A few years ago, I met with a new client here in San Jose about forming a corporation for his real estate management business. He wanted to use his name as the name of the corporation, e.g. John Smith, Inc., and he had no problems with using his name as the Agent for Service of Process, and having his home address as the business address on public record. Imagine my surprise when I went to the Secretary of State’s database to confirm that the name was available and found that the exact name was taken by the same client at the same address. The corporation had been formed back in 1989 and had been suspended for decades.

I discussed it with the client and discovered that he had spoken with another lawyer about forming a corporation many years ago, and although he thought it was just an informational meeting, the attorney actually formed the corporation and the client didn’t even know about it. If my client wanted to use the name of the suspended corporation, he would first have to revive it, in which case, he would have had to pay tens of thousands of dollars in back franchise taxes and interest. I counseled the client to walk away from the suspended corporation and simply start a new one under a different name. In this case, that was okay because he took no assets from the corporation and therefore could not be held personally liable for the corporation’s taxes. However, shareholders should not walk away from a corporation without carefully considering whether the same conclusion would apply to their situation, and whether they are willing to endure the annoying tax notices to the corporation in the meanwhile.

The landmark case in this area is the Appeal of Howard Zubkoff and Michael Potash, Assumers and/or Transferees of Ralite Lamp Corporation (April 30, 1990, 90-SBE-004). In that case, the Board of Equalization stated that the only way shareholders are liable for the corporation’s franchise taxes would be if the Franchise Tax Board proves that all of the following conditions were met:

Continue reading ›

|

Those of us involved in real estate loans, debt financing, and problem loans or loan workouts have sometimes wondered whether a deed of trust can be valid if no trustee is identified. I am often asked this question and, surprisingly, the issue was never been directly addressed by California courts until the end of 2012! In a decision handed down a few months ago, a California Court of Appeals ruled that the omission of a named trustee on a deed of trust at the time it is executed and recorded does not preclude enforcement of the deed of trust through a foreclosure sale of the secured property.

The facts of the case are straightforward. A real estate loan was made and secured by a deed of trust on the property being purchased. The lender designated Mortgage Electronic Registration Systems, Inc., or MERS, as the beneficiary and simply omitted naming a trustee. Later, the borrowers defaulted on the loan and MERS then recorded a substitution of trustee naming ReconTrust Company, N.A. (ReconTrust) as trustee, and assigned its beneficial interest under the deed of trust to a loan servicer who further assigned the beneficiary’s rights to Arch Bay Holdings, LLC – Series 2010B (Arch Bay). As newly appointed trustee, ReconTrust filed the required notice of default and notice of sale, and eventually conducted a trustee’s sale at which Arch Bay purchased the property. After the sale, the borrowers filed a lawsuit asserting, among other things, that the failure to designate a trustee in the original deed of trust was a fatal flaw and precluded any trustee’s sale under the power of sale in the deed of trust. See, Shuster v. BAC Home Loans Servicing, LP, et al. 211 Cal.App.4th 505 (2012).

The court first noted that this issue had never been addressed in prior California rulings. After wading through some technical arguments, the court ruled in favor of the lender or creditor and against the borrower, stating that the essential validity of the deed of trust is not affected because a trustee is omitted in the original deed of trust, as long as a trustee is named prior to a foreclosure. The court reasoned that the very limited powers granted to a trustee under a deed of trust – to convey the property at an out of court sale – are insufficient incidents of ownership or control to make the actual naming of a trustee critical to the validity of the document.

Continue reading ›