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A Perfected Lien Is Trumped: Must It Be 'Use It or Lose It'?
As creditors well know, a lien holder must be vigilant in both perfecting and maintaining the perfection and priority of its lien. But even a creditor that properly maintains its lien may find that enforcement of (or more specifically, failing to enforce) that lien can affect priority.
A recent decision by the U.S. Court of Appeals for the Second Circuit, City of Concord, New Hampshire v. Northern New England Telephone Operations LLC (In re Northern New England Telephone Operations LLC), No. 14-3381 (2nd Cir. Aug. 4, 2015), is one in a line of cases analyzing when a lien holder, by electing to participate in a debtor's bankruptcy proceeding, risks extinguishing that lien. See Dan B. Prieto and Mark G. Douglas, “Second Circuit Rules That Lien Is Extinguished Under Chapter 11 Only if Secured Creditor Participates in Case,” LJN's Equipment Leasing Newsletter, December 2015, available at http://bit.ly/1Mi80Cw.
In another line of cases involving deposit accounts, courts in jurisdictions such as Florida, Illinois, Indiana, Nebraska, Oregon and Pennsylvania have been the site of an ongoing battle between creditors that garnish a deposit account to satisfy the debt of an obligor, and the bank where such obligor's account is maintained. See Barsco v. H.W.W., 346 So. 2d 134 (Fla. Dist. Ct. App. 1st Dist. 1977); Fifth Third Bank v. Peoples Nat. Bank, 929 N.E.2d 210 (Ind. Ct. App. 2010); One CW v. Cartridge World North America, 661 F. Supp. 2d 931 (N.D. Ill. 2009); Myers v. Christensen, 776 N.W.2d 201 (Neb. 2009); Davis v. F.W. Financial Services, 317 P.3d 916 (Or. Ct. App. 2013); In re Szymanski, 413 B.R. 232 (E.D. Pa. 2009).
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?