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Current State of the Absolute Priority Rule in 2017

The absolute priority rule has proved particularly vexing to judges and attorneys alike in the Ninth Circuit for several years. This was a result of the Ninth Circuit’s interpretation of the bankruptcy code that allowed individual chapter 11 debtors to retain a significant portion of their assets without the consent of their creditors. Finally, in one of the most important local bankruptcy cases of 2016, the Ninth Circuit finally closed this loophole in Zachary v. California Bank & Trust (In re Zachary), 811 F.3d 1191 (9th Cir. 2016).

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With over 50 million users, DocuSign is the most widely used eSIgnature and Digital Transaction Management platform globally. It allows users to complete and sign documents, and then send them to others for signature. Commercial users create personalized signatures on their tablets and other devices to facilitate the easy exchange of virtual “paperwork” such as health care documents, sales contracts, lease agreements, and any other financial documentation.

Read more on Bankruptcy Court in California Finds Signatures Generated By DocuSign Invalid For Federal Court Declarations…

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In a decision regarding enforcement of predispute contractual waivers of jury trial, the California Court of Appeal found that even when the contract contains an otherwise valid choice-of-law clause in which the parties have agreed to be governed by the laws of a state that enforces such waivers, California fundamental public policy precludes enforcement of such predispute contractual waivers of jury trial.

Read more on Court Rules That Predispute Contractual Jury Trial Waivers Are Unenforceable In California Notwithstanding Choice of Law Clauses….

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Ninth Circuit Rules Landlord Damages Cap in Bankruptcy Case Apply Only to Lease Termination ClaimsThe U.S. Court of Appeals for the Ninth Circuit held recently that the statutory cap on a landlord’s damages claim in a bankruptcy case only apply to claims arising directly from the termination of a lease, allowing landlords in the Ninth Circuit to pursue uncapped claims for damages not tied to lease termination.

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Ninth Circuit Rules FDIC Claims Subject to Insured vs. Insured ExclusionOn January 10, 2017, the U.S. Court of Appeals for the Ninth Circuit ruled in FDIC v. BancInsure, Inc. that claims of wrongdoing brought by the FDIC as receiver for Security Pacific Bank are subject to the insured vs. insured exclusion in a D&O policy issued by BancInsure, Inc.

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California Treasurer Working to Give Cannabis Industry Access to Banking ServicesFollowing the passage of Proposition 64 that legalizes marijuana for adults over 21, California State Treasurer John Chiang has formed the Cannabis Banking Working Group to develop a plan for giving the state’s cannabis industry access to banking services later this year.

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Ninth Circuit Rules Debtor May Only Cure Contract Default in Bankruptcy by Fulfilling Post-Default Interest Rate ProvisionsThe U.S. Court of Appeals for the Ninth Circuit recently ruled in In re New Investments, Inc. that a debtor may only cure a contractual default under a Chapter 11 reorganization plan by fulfilling the contract’s post-default interest rate provisions. This decision overturns the Ninth’s Circuit’s 1988 rules in In re Entz-White Lumber & Supply, Inc. and joins several other circuit courts in requiring a debtor to pay default interest.

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Bill Passes House to Limit Dodd-Frank Regulations to Certain Financial InstitutionsA bill introduced in Congress by Rep. Blaine Luetkemeyer entitled the “Systemic Risk Designation Improvement Act of 2016” (H.R. 6392) aims to amend Dodd-Frank to change the criteria for labeling financial institutions as a systemically important risk, leading to reduced regulation for smaller banks.  It passed the House by a vote of 254-161 on December 1, 2016, and is now in the Senate for a vote.

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DBO Commissioner Finds Funding Not Necessary to Establish Lender StatusIn a final decision regarding an administrative enforcement action involving unlicensed lender activity under the California Finance Lenders Law (CFLL), California Department of Business Oversight (DBO) Commissioner Jan Lynn Owen determined that a business does not have to fund loans in order to be considered a lender under Cal. Fin. Code § 22009.

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Ninth Circuit BAP Ruling Disallows Late-Filed Proofs of Claim in BankruptcyIn a Chapter 13 bankruptcy case, the U.S. Court of Appeals for the Ninth Circuit Bankruptcy Appellate Panel has ruled that a creditor must file a timely proof of claim in order to participate in the distribution of a debtor’s assets, and the debtor’s acknowledgement of the debt owed does not relieve the creditor of timely filing its claim.

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