Go over, two boats Peerless. Even yet in legal regimes that prioritize substance over form, errors in the execution of formalities may produce significant consequences and the chance of transactional failure. And also chapter 11 cases featuring fast asset sales may produce litigation over such procedures for a long time in the future. A recent example illustrates both points.
On March 1, 2013, the United States Bankruptcy Court for the Southern District of Ny issued and certified a judgment for direct appeal to the United States Court of Appeals for the Next Circuit. Your decision grants summary judgment in Official Committee of Unsecured Creditors of Motors Liquidation Company v. JPMorgan Chase Bank, N.A. et al, adversary proceeding 09-00504, in the GM bankruptcy. In-depth summaries have been already received by the decision, at least in a few attorney ads. If a direct appeal is accepted by the Second Circuit, I wish to watch the oral arguments, but hope it’ll be better to locate a seat in the courtroom than in NML v. Argentina.
A brief, crude, stylized model of the facts, all of which happened well before the bankruptcy: the consumer was paying off a $300 million artificial lease obligation, and a document (UCC-3) was supposed to be recorded in the public record ending the success of the financing statement perfecting that interest. One of the submitted termination claims mistakenly known a financing statement number concerning a $1.5 billion term loan, not the artificial lease. Counsel for the person had prepared and filed the record with the incorrect number. But it have been shared beforehand with counsel for JPMorgan, the administrative agent for secured parties in both deals. The mistake was caught by no one until following the bankruptcy case was filed.
Unless another method of efficiency happened to be in place If the document was effective to terminate the financing statement relating to the term loan, the interest securing the term loan could be unperfected. And to the degree unperfected, the security interest interest could possibly be eliminated in the debtor’s bankruptcy beneath the so-called strong-arm clause (see this prior post for a visual). The likely million dollar consequences of an eight-digit clerical error should give a shot to any law school secured orders school – particularly useful during the month of March.
This post is about to digress further here. When secured parties file preliminary financing statements against debtors that’ll not be totally authorized, or authorized at all, although they’re not the stereotypical fake filings a perhaps more predominant authorization situation in the secured transactions world is. Creditors may possibly “pre-file” funding statements against possible borrowers without their consent, on the theory a subsequently performed security agreement will approve them. Article 9 makes superior that such filings require contemporaneous or preexisting consumer acceptance, but obviously not absolutely all creditors play the overall game in this manner. Or, as my friend Lissa Broome has discovered, a bank may be authorized to file a financing statement since the consumer has authenticated a security agrement, but files a statement with a larger equity explanation.
These circumstances are totally distinctive from the GM lawsuit. But these contexts also deserve thorough monitoring of the limits of licensed filings. Well beyond the rather unusual facts captured in the view certified for charm, how to construe consent to cloud, or uncloud, title in the current Article 9 filing system is extremely important to the strength of commercial law.
Back to the true case: applying the law of company to the GM dispute, the bankruptcy court held that the secured party did not approve the termination of the financing statement relating to the term loan. The termination record was for that reason unsuccessful, the security interest linked to the term loan was enhanced at that time of bankruptcy, and therefore the security interest isn’t avoidable on these grounds. The opinion granting summary judgment in support of JPMorgan considers the consent problem in great depth and this Credit Slips post can not do the thinking justice; interested readers can and must examine it for themselves. As noted above, nevertheless, the court qualified the decision for direct appeal to the Next Circuit, and the creditors’ committee has filed an appeal, with a record of issues here. Surely I’ll not be alone in keeping tuned.
See how large of a package this really is. A client that is rude for your requirements one time on the device may be dismissed. Everyone has a negative day from time to time. A coworker who’s merely annoying may be dismissed or retrained to affect the annoying behavior off. If it’s a big deal, you then go forward.
Never stoop with their degree. Shouting? That is maybe not appropriate in a small business environment. Speaking behind someone’s straight back? No good. If someone will let you speak poorly about someone else, they’ll speak poorly about you to someone else. The exception to this is if you are reporting a particular incident to that particular person’s supervisor. Then supply the details and keep emotion out.
Don’t dismiss bullying. This does not mean complaining about every event. Should you that, you’ll be defined as the problem. Alternatively, deal with the person directly. For example, “Jill, I will see you are disappointed. If you are prepared to speak in a normal voice, I will be very happy to speak with you”. Then turn and disappear. Walking away is the key. A screaming bully needs someone to shout out. Without any audience, she fails. Ask the magic question. “Can you clarify?” This works well for the mostly female approach to trying to eliminate someone through subtle methods. When Jill is distributing negative reasons for you among your coworkers, you go up to Jill and say, “Jill, I recognize that you told Stanley that I wasn’t capable of handling the Jones account. Could you please clarify what you meant by that?” It is not really a confrontational question in and of itself, so Jill has little choice for criticism. But it makes it clear that you’re conscious of what she has done and that you will not put up with it.
Ask yourself if you should be the situation. Up to we all want to believe that we’re good, honest, pleasant hard workers, sometimes we are the issue. If you are repeatedly having problems with clients, managers and colleagues, it’s likely that there is something you’re doing. If that’s the case, you need to assess if you can transform or if you must transfer to another occupation or working environment that works better for you. There is no body model that works for all.
Ask “How could I change?” Instead of “can you make her change?” If you are in a situation that you can’t handle yourself and you wish to visit your employer or HR, make sure you ask from the perspective of what changes you can make. You cannot make other people change, but your own behavior can be changed by you. And any savvy manager/HR person will be able to get from your request if the person who you are having difficulty with may be the issue. But this keeps the “problem child” label off your forehead. Plus, you can frequently make tremendous changes in your workplace by changing your own personal behavior.
