Let's do the math Tulsa May 31st, 1921 vs Paradise November 19th, 2018. Tulsa 05 +31 + 1921 all numbers added up = 22 2+2=4 Paradise 11 + 19 + 2018 all numbers added =23 2+3=5 THE BOTTOM LINE 5+4= 9 The answer is in the last photo My new website is visible now subscribe and get my free report. http://www.tarhakadebtelimination.org
By: Laurence M. Smith The following article was submitted for publication in the June 7, 2010 issue of Bank and Lender Liability.
The economic downturn that commenced in 2008 and, in many industries, continues today has sounded the death knell for weak or over-leveraged companies, while at the same time presenting opportunities for buyers. If your company is a strategic buyer involved in the target company's industry or a financial buyer without any industry-related experience, what is the preferred means of acquiring the assets of a target that is in financial distress?
For myriad reasons, a secured party transaction under Article 9 of the Uniform Commercial Code (the “UCC”) may be the acquisition method of choice. An Article 9 secured party transaction is an out-of-court process by which a secured lender realizes on its lien encumbering the borrower’s personal property assets and thereby effectuates a transfer of title to those assets. The transfer may be to a third-party purchaser through a public or private disposition—known as a secured party sale—or the transfer may be to the secured party itself who retains the collateral in full or partial satisfaction of the underlying indebtedness—known as a strict foreclosure.1 Common features of each method of disposition are that (1) there is no operative agreement with the target company which, along with its principals is peripheral to the process and (2) the transfer of assets can often be completed within 30 days, without the scrutiny of a bankruptcy court or creditors’ committee or the publicity and cost attendant to sales under Section 363 of the bankruptcy code.
While not affording all of the protections of a sale order entered by a bankruptcy court, a secured party transaction results in the termination of the senior lien that is being foreclosed, as well as the termination of all subordinate liens2; title to the assets being acquired are thus cleansed as part of the process. Moreover, as the secured party who holds the first, paramount lien on the debtor’s assets often does not receive payment in full, the risk that an unsecured creditor will attempt to challenge the process as a fraudulent transfer or otherwise is usually not great, due to the realization that any recovery would first inure to the benefit of the secured lender before any such funds are available to satisfy unsecured claims.
The absence in a secured party transaction of a definitive purchase agreement with the target company is logical but, at the same time, presents challenges. As neither the company nor its equity holders are likely to receive any of the proceeds resulting from a disposition of the company’s assets, they are not the principal stakeholders in the transaction; the secured lender is.
Thus, the incentives for a company and its principals to negotiate an asset purchase agreement in good faith, with an acceptable level of responsiveness and truthfulness, are lacking, as is their willingness or financial wherewithal to provide adequate indemnification to the buyer. Rare are the situations in which the time and cost of negotiating an asset purchase agreement directly with a failing company are justified by the protections garnered by the purchaser in the process.
A secured party transaction, therefore, redirects the primary negotiations away from the debtor and toward the secured lender. But the secured lender’s knowledge of the debtor company and its operations is not coextensive with the knowledge of the company’s principals. Further, in the context of a secured 1232024 party disposition and the agreements by which it is memorialized, the foreclosing lender will make few, if any, representations about the company itself, with affirmative representations being limited to the secured indebtedness that is the basis for the disposition. How can this knowledge gap be bridged? How can the purchaser—and, in particular, a financial purchaser, who may have limited familiarity with the industry in question—obtain the relevant information and assistance that is critical to resuscitating the failed business? The answers to these questions underscore the interdisciplinary nature of making acquisitions through secured party transactions.
That an expertise in Article 9 of the UCC is a prerequisite to navigate a secured party transaction successfully should be apparent: essential to the process are performing due diligence to ensure that the lender has a first priority lien; eliciting representations and warranties to confirm that the lender has not transferred, encumbered or otherwise compromised the rights that are the predicate to the secured party transaction; verifying that landlord liens have been subordinated and the landlord has granted a right of entry that will allow the removal of tangible collateral from the target’s facility; monitoring or, perhaps, directing the sale process to ensure that all facets are commercially reasonable and in compliance with statutory requirements3; and ascertaining impediments to the purchaser acquiring all critical assets due to the limited nature of the secured lender’s lien or the scope of coverage of Article 9. However, mastery of Article 9 of the UCC must be supplemented by an expertise in merger and acquisition (“M&A”) transactions: the former enables the purchaser to acquire the target company’s assets for the agreed-upon consideration, while the latter facilitates the rebuilding of the business with minimal disruption, cost and delay.
What are the M&A considerations that must be addressed in parallel with, and inform, a secured party transaction? Knowing what sales, technical, financial and other personnel are key to ongoing business operations is usually of paramount importance; assistance from the debtor an entity may be required to identify and negotiate retention agreements with these individuals, some or all of whom may be owed back pay, as well as unused vacation and sick pay, may not be subject to restrictive covenant agreements, and may be principals of the company whose egos have been wounded and whose equity has been rendered worthless. Are there critical vendors--such as utility companies, licensors, franchisors or suppliers of raw materials—whose claims will have to be satisfied in order to induce them to continue doing business with the purchaser? If the resuscitated business will be operated from the same location as the failed company, a new lease or an assignment of the existing lease will have to be negotiated with the landlord, which in many cases is a real estate holding company owned by the same principals who control the operating company that has failed. To capture the goodwill associated with the debtor’s business, the purchaser may want the rights to the name under which the debtor has conducted business; that, in turn, will require the debtor to abandon that name by amending its constitutional documents. Transitioning the business to the purchaser may also require negotiating with unionized workers, complying with environmental or health and safety laws applicable to the operations, and obtaining third-party consents from customers, vendors or regulatory authorities.
Analysis of these M&A considerations leads ineluctably to the conclusion that help from the debtor’s principals will be required in order to effectuate a seamless transfer of the business by means of a secured party transaction. How can that assistance be assured? While the equity in the debtor company will likely be wiped out, the principals of the debtor company can be compensated for their assistance through consulting arrangements, employment agreements or, perhaps, an equity stake in the purchaser. Additionally, the principals of closely held companies are often required to personally guarantee the corporate debt. Another inducement 2 1232024 for the principals to cooperate is a promise that their personal guaranties will be limited in amount or forgiven entirely, if the secured party transaction is consummated without delay or challenge by the debtor or its principals. Relief from the specter of financial ruin and personal bankruptcy that could result from a suit on a personal guaranty may, alone, be adequate incentive to obtain full cooperation from the debtor’s principals. The willingness to pay for the cooperation of the debtor’s principals, or to argue on their behalf to obtain a release of personal guaranties, must be tempered by the realization that all benefits flowing to those principals are likely to be scrutinized carefully and engender resentment. A secured lender with a first position, blanket lien on the company’s assets, who is not getting paid in full, will understandably oppose above-market compensation arrangements with the debtor’s principals or their receipt of a substantial equity interest in the purchaser. Conferring excessive benefits upon the principals may imperil the deal or, at a minimum, heighten the level of adversity with the secured lender, a meaningful concern if that same lender is providing financing to the purchaser to fund the acquisition. Similarly, if junior secured creditors or unsecured creditors become aware that excessive consideration is being paid to the debtor’s principals, they are likely to object and may be emboldened to challenge the Article 9 transaction on that basis. The argument advanced by those creditors would be that consideration that should have flowed to the debtor for the benefit of its creditors has been mischaracterized and diverted to the equity holders of the debtor. Striking the proper balance— between securing the cooperation of the debtor’s principals and not inflaming creditors whose claims will not be paid in full—requires finesse, experience and an appreciation of the competing concerns of all parties involved.
CONCLUSION Successfully acquiring a target company by means of a secured party transaction is in many ways akin to a game of chess. It requires knowledge of the applicable rules and the adoption at the outset of an overall strategy, one that takes account of the various stakeholders, anticipates the offensive and defensive moves each is likely to make and focuses on the result to be achieved within the allotted time frame. Unlike a chess match, however, a secured party transaction may involve the intervention of third parties whose nexus is minor but who, nonetheless, have the potential to frustrate or delay consummation of the acquisition, unless they can be neutralized or their concerns addressed. 1 U.C.C. §§ 9-610 and 9-620 2 U.C.C. § 9-617 3 See U.C.C. § 9-610(b) GET OUT OF DEBT NOW! http://www.newdebtelimination.com
The undersigned, «True_Name», hereinafter “Affiant”, does hereby certify and declare that Affiant is competent to testify and state the matters set forth herein and is willing to testify with first-hand knowledge, all contents herein are true, correct, and complete in accordance with Affiant’s first-hand personal knowledge. Affiant is of sound mind, and over the age of twenty-one. Affiant reserves all rights. Affiant knowingly and willingly affirms:
1. Affiant is the person making this Affidavit. 2. ORIGINAL LENDER NAME, hereinafter “Lender”, is engaged in the business of taking deposits making loans. 3. Affiant is the sole legal and absolute owner, maker, or issuer of the estate and any asset(s) or property (is) regarding the estate and Affiant has never assigned, transferred, nominated any of Affiant’s right, title, or interest to any others. 4. Affiant has no knowledge of nor has Lender ever revealed or disclosed to Affiant any trust relationship or creation of any trust or any other(s) regarding alleged account # _____________ or the Mortgage/Deed of Trust. 5. Affiant never intended to agree to or consented to any trust relationship or creation of trust between Lender and Affiant. 6. Affiant never knew of nor agreed nor consented to Lender or any others granting authority and becoming a trustee, agent, or having agency over any of Affiant’s property. 7. Affiant understood Affiant was obtaining Lender’s capital and not obtaining credit or a line of credit nor an open-end nor closed end of any form of credit. 8. Lender advanced credit to Affiant thus inducing Affiant into believing said advancement was from Lender’s funds. 9. Affiant was induced by Lender into believing Lender’s capital was the only funding source of the alleged transaction. 10. Lender actions to date prevent full disclosure to Affiant denying Affiant an opportunity to make a fully informed decision with regard to this alleged transaction. 11. The lender never disclosed any documented fact that Lender purchased Affiants alleged obligation thereby allegedly obligating Affiant to Lender. 12. The lender never produced or offered for signature, a binding bill of sale for ownership of Affiant’s monetary interests. 13. Lender induced Affiant into believing Lender’s capital was the sole source of funding regarding alleged account # ________________. 14. The lender is knowingly and willfully engaging in the collection of an extension of credit while inducing Affiant into believing Affiant is repaying Lender’s own capital. 15. The lender is using extortionate enforcement of payment without clear and full disclosure of foundation to Affiant. 16. Lender is intentionally concealing and withholding material facts regarding any trust or the creation of any trust in re alleged Mortgage/Deed of Trust connected to alleged account # ____________________. 17. The lender is intentionally concealing and withholding material facts regarding any trustee or beneficiary, designated, nominated, appointed, or assigned by Affiant. 18. The lender is willfully withholding or concealing full disclosure of all material facts to Affiant. 19. The lender is using undue influence upon Affiant to retain domination over the Affiants will to obtain the rights and property of Affiant without Affiant’s complete knowledge and intentional consent or agreement. 20. Lender’s action(s) exceed persuasion under duress by restraining and injuring Affiant’s will, property, and rights without the consent, agreement, and knowledge of Affiant.
Any man or woman having first hand knowledge of all the facts asserted herein having power and authority to rebut this affidavit must rebut each and every point separately with the rebutting party’s own signature and endorsement notarized, under the penalty of perjury and willing to testify, and executed as true, correct, and complete with positive proof attached. Absent positive proof any rebuttal shall be deemed null and void having no force or effect, thereby waiving any of Lender’s immunities or defenses. Any rebuttal shall be mailed to the undersigned and the Notary address within ten (10) calendar days of Lender’s receipt of this affidavit. When a rebuttal is not received by both the Affiant and the Notary within 10 days this entire Affidavit and default provisions shall be deemed true and correct. Lender further agrees and consents to this administrative notice and default under this affidavit as clear and convincing evidence and proof of the facts asserted herein:
1. Lender agrees to a Deed of release or release of Mortgage. 2. Lender agrees to set aside any Mortgage/Deed of Trust. 3. Lender agrees that each point in this affidavit shall constitute a single claim against Lender’s bond(s) for each point not specifically rebutted by Lender. 4. Lender agrees to release any information, rather private or otherwise, to Affiant about any of Lender’s agents or representatives Employee Dishonesty Bond, Directors and Officers Policy Bond, or any other liability bond(s), including the insurance or bond company name, bond company information, bond enforcement information, or any other of Lender’s bond information Affiant requests. 5. Lender hereby obligates and guarantees Lender’s bond(s) to secure the performance of non-rebuttal of this affidavit to Affiant for any unfaithful performance of fiduciary duties, financial loss, or damages sustained by Affiant in connection to any breach of contract or this affidavit. Any amount is not limited by the value of any property or costs incurred by Affiant in seeking remedy for Lender’s breach. 6. Lender shall further agree that once or if Lender’s bond(s) expire, terminate or do not equal the total amount due Affiant, Lender’s President, Directors, and any of Lender’s agents and representatives shall become individually liable for any difference due Affiant. 7. Lender obligates and guarantees the Lender’s current or future bond(s) to discharge any allegations against Affiant. 8. Lender immediately grants to Affiant the unconditional right of rescission regarding alleged account # _________________ and any security interest attached thereto. 9. Lender agrees to the filing of a UCC-3 deleting the alleged mortgage/deed of trust in any public record. 10. Lender agrees to the filing of a UCC-5 Correction in any public registry to correct the inaccurate, unlawful or illegal mortgage/deed of trust in any public record. 11. Lender agrees this affidavit shall be used as first party evidence or positive proof in any remedy sought by Affiant. 12. Lender shall return any money or property of Affiant including but not limited to any original documentation, including but not limited by, any Notes, securities, assets, applications, transfers, blotters, book entries, assignments, and security interests to Affiants address stated herein. 13. Lender waives all rights to adjudicate the alleged agreement referenced herein. 14. Lender’s president and any directors waive all immunities regarding any future actions sought by Affiant. 15. Lender shall immediately terminate any security interest and certify to Affiant the termination within 10 days. 16. The lender is barred from any alleged right, title, or interest in any alleged account, note, monetary instrument, asset, or Mortgage/Deed of Trust regarding Affiant. 17. Any alleged trustee or successor of Lender is hereinafter completely removed and disqualified as trustee, agent, or successor by Affiant. 18. Lender and any of Lender’s assigns or nominees are estopped henceforth from any action against any of Affiant’s rights or property. 19. Lender abandons all right of entry, possession, judgment, assignment or notice regarding Affiant or Affiant’s property. 20. Lender abandons the right of an alleged waiver or estoppel. 21. Lender hereinafter discharges any alleged Mortgage/Deed of Trust or any alleged debt. 22. Lender agrees that Lender is in violation of the Statute of Frauds. 23. All relationships between Lender and Affiant are null and void. 24. Lender agrees that Lender has breached the oral trust relationship with Affiant. 25. Lender agrees that Lender has employed the extortionate extension of credit with regard to Affiant. 26. Lender agrees that Lender is hereby removed and disqualified as trustee(s) pursuant to: a. Conflict of interest b. Concealment c. Breach of fiduciary responsibility (is). d. Fraud.
_______________________ YOUR NAME
On this ____ day of _________, 20__, _________came before me, the Notary herein and under oath, attested and affirmed the signature as true, complete, and correct on the foregoing affidavit. I, the Notary, personally witnessed the Affiant swore under oath or penalty of perjury that the contents of this Affidavit are true, accurate, and complete. The Affiant also acknowledged the signing thereof to be of his/her own voluntary act and deed.
State of _____________ ) ) County of ___________ )
Signed this day________________, of____________________, ______________ at
My commission expires on: ________________________
By_________________________ seal:___________________ PROOF OF SERVICE
I, the undersigned do hereby certify that on this ____ day of ________, 20__, that I did serve upon the LENDER, a true and correct copy of the foregoing Affidavit to their address as stated below using United States Postal Service Certified mail numbered ___________________________.
In the past couple of years, the economy has headed south, and mortgage delinquencies are at record levels and climbing. What has exacerbated the problem is the fact that a lot of these loans have been repackaged and resold, many times without your knowledge through Securitization and you gave your permission and consent for the banks and Pretender Lenders to do this!! SIMPLY because you did not read the NOTE and MORTGAGE LIEN CONTRACT before you signed!! Of course, you’re talking about highly leveraged situations that put you all at risk and severely crashed worldwide capital markets.
Consequently, there has been a huge rash of foreclosures. The big problem is that you may think that there’s not much you can do. It’s a well-known fact that in certain neighborhoods when foreclosure notices go out, the homeowners don’t even bother to try to fight it. You simply give up and leave. In the process of leaving, many times you leave everything there. You leave your TVs, beds, computers, you name it. You simply just walk out and abandon things that took a long time to acquire. It’s almost like you’ve been hit with despair, depression, and thoughts of suicide, isn’t it? Wouldn’t it be a great thing to know that you can actually protect your real estate holdings? How can you possibly do that? The fact is that many people today are upside-down in a mortgage as compared to their home’s value.
Your current property value may be worth only $297,000 at the present time, and when you got the loan, it was worth $600,000 or $700,000 and perhaps the loan was for $600,000 after the down payment of $ 100,000.00. Today, you still have that $600,000 loan plus interest of $727,000 that you owe for a total of $1,327,000 for the period of the alleged 30-year mortgage. But you’re upside-down to the tune of the total amount owed. You don’t see any other option except to walk away.
Most people do so, without realizing that your equity really belongs to you. One of the best options that would prevent you from having to walk away is to eliminate the mortgage companies or banks claim against your property. How can you possibly go about doing that? Let me show you how I did it! http://www.newdebtelimination.com
Everybody assumes that, because a bank or mortgage company is involved, there must be a valid contract.
What I would like to show you is that all bank and pretender lender Fannie Mae or Freddie Mack contracts are merely presumed to be valid. Remember, ONLY YOU were actually forced under a TAKE IT OR LEAVE IT one-sided bank processed CONTRACT and signed the NOTE and Mortgage Lien Security Contract at your closing without reading it and listening to the closing Notary that worked for the Bank or Pretender Lender while YOU paid her fees!! Yet the basis of a valid contract is completely missing. Therefore, there is no contract at all, because there is no consideration given by the Bank or Pretender lender…!!! NONE!! They did not pay a penny for your property. Wouldn’t it help to know what the “basis” for a “valid contract” is? Look in BLACK’S LAW Dictionary, 4th edition under “CONTRACT”. Most people think that contracts are the paper that they’re written on with a signature affixed.
You think that constitutes a contract. The good news is a contract is actually a “meeting of the minds” with “Valuable Consideration given” What consideration did the Bank give you since you actually paid for your home with the down payment but were unaware of this fact.
A meeting of the minds means that there was FULL disclosure, understanding by both parties, and there was a valuable consideration given by both parties, AND BOTH parties signed and accepted these agreement Contracts and Securities.
What if you found out, and it has been proven, that there was no consideration from the bank at all? What if you found out that the bank never actually disclosed what they were doing? DID not loan you any money?? Do you think you might be able to turn the situation around? If you are ready to fight to keep your home it is very possible to go to the court hearing and win every time. Actually, hundreds of people, already have quietly done just that, but these cases were unpublished and hidden from you, the Public.
The Federal Reserve Bank District of Columbia Note Dollars are not meant for you, the public, to spend like money. 12 U.S.C. § 411- ISSUANCE TO RESERVE BANKS; NATURE OF OBLIGATION; REDEMPTION states: Federal Reserve notes, to be issued at the discretion of the Board of Governors of the Federal Reserve System for the purpose of making advances to Federal Reserve banks through the Federal Reserve agents as hereinafter set forth and for no other purpose, are authorized.
The said notes shall be obligations of the United States and shall be receivable by all national and member banks and Federal reserve banks and for all taxes, customs, and other public dues. They shall be redeemed in lawful money on demand at the Treasury Department of the United States, in the city of Washington, District of Columbia, or at any Federal Reserve bank.
Have you ever wondered what law applies when you write a check or purchase a certificate of deposit (CD)? Checks and certificates of deposit are types of negotiable instruments. Articles 3 and 4 of the Uniform Commercial Code (UCC) have been enacted into law by every state and provide the rules for negotiable instruments.
Negotiable Instruments Defined Negotiable instruments are written documents that promise or order the payment of an exact amount of money. There are two types of negotiable instruments: notes and drafts. A draft is a written order to make a payment and includes things such as personal, business and cashier checks. A note is a promise that payment will be made and includes certificates of deposit and promissory notes.
Generally, in order for a written instrument to be considered a negotiable instrument the promise, or order, to pay must be unconditional, must be for a sum certain, payment must be made on demand or at a time certain, and nothing else may be required of the parties other than the transfer of money.
In order to fully understand what a negotiable instrument is, it is important to recognize common financial documents that are not negotiable instruments and, therefore, not subject to the same laws and regulations as negotiable instruments. For example, physical paper and coin money, fund transfers, and investment securities are not negotiable instruments and their use is governed by different parts of the Uniform Commercial Code or different laws.
The Importance of Negotiable Instruments Negotiable instruments are critical to our economy. They allow people to do business and to be certain that they will receive money for their services or goods without the actual transfer of cash. For example, a business can mail a check to a supplier instead of delivering large amounts of cash. On a smaller scale, the same thing happens when you pay a bill to your electric company with a check rather than mailing cash.
Without the predictable laws in place that protect both the payor and payee of a negotiable instrument, our economy would not be able to function the way that it currently does.
How to Enforce a Negotiable Instrument Given the importance of negotiable instruments, it is important for all parties to understand how to enforce a negotiable instrument and to make sure that their rights are protected. Article 3, Part 3 of the Uniform Commercial Code explains the law regarding the enforceability of negotiable instruments and Article 3 part 4 explains the liability of the parties. Generally, anyone with an interest in the negotiable instrument can enforce its payment when payment becomes due. Parties who do not honor their responsibilities with regard to a negotiable instrument may have breached their agreement and may be liable for damages incurred by the other party.
Negotiable instruments are easy to execute and commonly used in the United States. You may not think of the legal implications every time you sign a check; however, you should be aware that the Uniform Commercial Code applies each time you sign a check and that certain legal obligations and rights apply. GET OUT OF DEBT NOW!http://www.newdebtelimination.com