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 Attorney Spotlight |
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Janet M. Dery
Janet's areas of practice include lending, banking, real estate, contracts, commercial and corporate law. She has a strong background in contract and corporate law which she regularly applies to her commercial lending practice.
Janet acts as a closing attorney for numerous commercial lenders located throughout the United States. As a closing attorney, Janet reviews SBA guaranteed and conventional loan files, confers with loan processors and in-house counsel, drafts, analyzes and negotiates loan documents, and advises on due diligence documentation.
In her corporate law practice, Janet advises on corporate governance and assists clients in all aspects of corporate transactional law, including the formation/incorporation of businesses and drafting, reviewing and negotiating various documents for business entities, which documents include interest-holder agreements, resolutions, corporate minutes, purchase agreements, and leases.
Janet is a graduate of both the State University College of New York at Oneonta, where she received a Bachelor of Arts degree, and of Widener University School of Law, Wilmington, Delaware, where she received a Juris Doctor degree. In 2007 and 2008, Ms. Dery was honored by being named a Pennsylvania "Rising Star" by Philadelphia Magazine.
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REVISED COLLATERAL POLICY FOR PUBLICLY-TRADED STOCKS AND BONDS
The SBA's longstanding collateral policy on "other personally-held assets", a category which includes items such as stocks, bonds, mutual funds, and certificates of deposit, is that these items "may be pledged to meet SBA's collateral requirements." The new SOP 5010(B), which became effective on October 1, 2009, refines this general policy and more clearly defines the circumstances under which lenders are expected to obtain a lien on a borrower or guarantor's publicly-traded assets. The revisions state that "for publicly-traded assets that are within the borrower's allowable exemption under the personal resources rule. . . . lenders must attempt to obtain a lien on these assets if the loan is not fully secured."
According to this clarification, lenders now must take active steps to lien these publicly-traded assets unless the loan is otherwise fully secured. The process of obtaining a lien on such assets is a dual-part process. First, the borrower must pledge or otherwise encumber the assets. Second, the lender must obtain "control" over the assets. If the assets are certificated stocks or bonds, the lender must take possession of the actual certificates. However, it is more common for publicly-traded assets to be owned as part of an investment portfolio held at a brokerage firm. If this is the case, the lender must obtain a tri-party "control agreement" with the borrower and the brokerage firm. In the control agreement, the brokerage firm acknowledges the lender's lien on the assets and agrees not to allow the borrower to cash out the account without first providing notice to, and obtaining the consent of, the lender.
What makes this new requirement difficult for lenders is that many (if not most) brokerage firms will not sign a control agreement, as they do not want to assume the associated liability. The SBA has recognized this reality in the new guidelines, stating that "if the lender is unable to perfect a lien on these assets, the lender must document the file as to the steps taken to obtain the lien and include any supporting documentation." Accordingly, if a lender cannot obtain the necessary control agreement signed by the brokerage firm, it should take care to document its correspondence with the brokerage firm and include such documentation in its loan file.
For more information on this and other government guaranteed lending topics, contact the author at krozek@starfieldsmith.com, or 215-542-7070.
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Did you know... |
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...that Starfield and Smith, P.C. will be exhibiting at the upcoming NAGGL Annual Conference, October 26 - 28, in Phoenix, AZ? Please visit us at Booth #47 to learn more about the services we provide to lenders nationwide!
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Upcoming Seminars and Events |
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"Rediscover Herndon: Prepare Perfect Purchase Requests"
Presented by David W. Starfield for the NAGGL Annual Conference
Dates: October 27 and 28, 2009
Loacation: Phoenix, AZ
For more information and to register, click here.
To use NAGGL's online registration system, click here.
"Rediscover Franchise Lending"
Presented by Michele Courneya for the NAGGL Annual Conference
Date: October 27, 2009
For more information and to register, click here.
To use NAGGL's online registration system, click here.
"Understanding the SOP 50-10"
Presented by Michele Courneya for the NAGGL Annual Conference
Date: October 29, 2009
Location: Phoenix, AZ
For more information and to register, click here. To use NAGGL's online registration system, click here.
"Guarantee Purchase Process and Package Submission"
Presented by David W. Starfield for the NAGGL Annual Conference
Date: October 30, 2009
Location: Phoenix, AZ
For more information and to register, click here.
To use NAGGL's online registration system, click here. For additional information, please contact us or visit our booth (#47) at the NAGGL Annual Conference, October 26 - 28
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Starfield & Smith, P.C.
Pennsylvania Office
501 Office Center Drive, Suite 350 | Ft. Washington, PA 19034
phone: (215) 542-7070 | fax: (215) 542-0723
Minnesota Office
1516 West Lake Street, Suite 303 | Minneapolis, MN 55408
Loan Documentation | Closing | SBA Guaranty Repurchase
Regulatory Compliance | Franchise Eligibility
Business Consulting
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