UND SCHOOL OF LAW - HOMECOMING CLE 2015 DEBTOR CREDITOR, BANKRUPTCY AND COMMERCIAL LAW ILLUSTRATED
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1 UND SCHOOL OF LAW - HOMECOMING CLE 2015 DEBTOR CREDITOR, BANKRUPTCY AND COMMERCIAL LAW ILLUSTRATED THE LAW IN CARTOONS... SERIOUSLY, FOLKS Presented by John S. Foster, Tracy A. Kennedy & John D. Schroeder Zimney Foster P.C South Columbia Road Ste. 200 Grand Forks, ND (701) Website: tracykennedy@northdakotalaw.net johnfoster@northdakotalaw.net jschroeder@northdakotalaw.net
2 DISCLAIMER These materials are intended for educational purposes only. Nothing in this program, the program materials, or communications stemming from the program (including questions and answers) should be considered as the rendering of legal advice or as creating an attorney-client relationship between any program attendees/readers and the presenters/authors. Persons having a need for legal advice should engage the services of a licensed attorney in all legal matters. Seminar attendees/readers should assure themselves that these presentations/materials/communications are current and applicable at the time they are reviewed or considered. The presenters/authors do not warrant that these presentations/materials/communications will continue to be accurate, because laws and interpretation of laws evolve and change over time, nor do they warrant them to be completely free of errors when delivered/published. Seminar participants/readers should verify statements before relying on them.
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4 HOMECOMING SEMINAR FACULTY BIOS JOHN S. FOSTER is retiring at year end 2015 from nearly 40 years in the practice of law and from almost 35 years teaching at UND Law School. He is a Shareholder, Director and President Emeritus of the Law Firm of Zimney Foster P.C. in Grand Forks, where his practice over his career has been devoted to banking law, commercial transactions and creditors rights in bankruptcy. He earned his BA degree cum laude, from the University of Wisconsin and his Juris Doctor degree, with distinction, from the University of North Dakota School of Law. Foster serves as Special Assistant Attorney General for North Dakota Mill & Elevator Association and the Bank of North Dakota, and a former Assistant States Attorney for Grand Forks County. For over three decades Foster has been adjunct faculty at the University of North Dakota School of Law where he taught Debtor/Creditor Law, Bankruptcy Law, Commercial Paper and Advanced Commercial Transactions, and he has lectured on Uniform Commercial Code, bankruptcy and creditors rights issues for lawyers and bankers associations. He also is faculty on the Dakota School of Banking sponsored by North Dakota Bankers Association. Foster is listed in The Best Lawyers In America and Chambers USA: America s Leading Business Lawyers. Foster has also served as a Director of a National Bank. He is the author of four law school textbooks for the UND Law courses he taught, and has published in the North Dakota Law Review. Foster has also authored numerous seminar texts on topics such as UCC Revised Article 9, workout agreements, check fraud, bankruptcy, agricultural liens, personal guaranty law, judgment collection, foreclosure issues, prejudgment remedies, and commercial loan documentation. Foster proudly turns the practice and teaching reins over to his extremely talented, able and comedically gifted Law Partner Tracy. TRACY A. KENNEDY is a Shareholder, Director and Treasurer of the Law Firm of Zimney Foster P.C. in Grand Forks, where her practice is devoted to banking law, commercial and business law, creditor s rights and agricultural lending and credit transactions. She is adjunct faculty at the University of North Dakota School of Law, where she is teaching UCC Article 9 Secured Transactions. She has co-authored with her Law Partner John Foster a UCC Article 9 textbook. She also serves as faculty on the Dakota School of Banking sponsored by North Dakota Bankers Association. She is listed in The Best Lawyers In America and Chambers USA: America s Leading Business Lawyers. US News & World Report named her Lawyer of the Year 2015 in her areas of expertise and in her geographic practice area. Ms. Kennedy served as President of the Grand Forks County Bar Association in She was appointed by the Bankruptcy Judge for the District of North Dakota where she serves on the Bankruptcy Rules Committee. She earned her BA Degree from Minot State University in 1994, and obtained her J.D. Degree from the University of North Dakota School of Law in Ms. Kennedy served as an associate editor of the North Dakota Law Review. She practices in North Dakota and Minnesota State Courts, and in the US District Court for the State of North Dakota and the US Court of Appeals for the Eighth Circuit. She has presented seminars to various legal and lending organizations in commercial topics such as loan documentation, UCC, loan workouts, agricultural liens, collection law, foreclosures and bankruptcy. JOHN D. SCHROEDER grew up in East Grand Forks, Minnesota. Mr. Schroeder graduated summa cum laude from Concordia College in Moorhead, Minnesota with a Bachelor s Degree in Political Science and a minor in Religion in He graduated summa cum laude from the University of North Dakota School of Law in 2013 earning his Juris Doctor. He is licensed to practice law in North Dakota and Minnesota.
5 While in law school, Mr. Schroeder was a member of the North Dakota Law Review and was the Student Articles Editor for the 2012 and 2013 school year. He is the author of the Outstanding Note, chosen by the North Dakota Bar Foundation, for 2012, titled Who are My Real Mommy and Daddy? Third Party Child Custody Determinations and the Need for Legislative Guidance in North Dakota with this Policy-Laden Area of Law published at 88 N.D. L. Rev. 235 (2012). Prior to attending law school Mr. Schroeder worked in consumer and small business banking in East Grand Forks. Mr. Schroeder s practice is dedicated primarily to representing financial institutions in loan documentation and collections, business and estate planning, probate, and commercial litigation. He, his wife and two young children live in Grand Forks.
6 UND SCHOOL OF LAW - HOMECOMING CLE 2015 DEBTOR CREDITOR, BANKRUPTCY & COMMERCIAL LAW ILLUSTRATED THE LAW IN CARTOONS... SERIOUSLY, FOLKS Presented by John S. Foster, Tracy A. Kennedy and John D. Schroeder CONTENTS UCC Art. 9 SECURED TRANSACTIONS Security Agreement vs. UCC-1 Financing Statement...5 Proper Debtor Name on UCC-1 Financing Statement...7 UCC-1 Financing Statement Filed in Debtor s Location...9 Filing in the Right Place vs. the Wrong Place...12 Exceptions to Debtor Location Filing...13 UCC Perfection vs. Central Notice System vs. Government Assignments...15 Signatures? When Are They Needed For UCC Transactions?...17 Purchase Money Security Interest ( PMSI ) Super Priority...19 How to do a PMSI Properly...21 Special Rules for PMSI on Livestock & Inventory...23 Motor Vehicle Perfection Consumer/Farmer/Businessman vs. Dealership...25 Perfection by Control...27 Perfection in Sales & Leases Chattel Paper...31 Who Has to be Notified of a of Repossession Sale?...33 Setoff vs. UCC 9 Security Interest in Deposit Accounts...35 AG INPUT LIENS Agricultural Lien Priorities...39 Good Ag Liens vs. Bad Ag Liens...41 Essentials Ag Invoice Requirements...44 BANKRUPTCY Types of Bankruptcy...47 Automatic Stay...49 Proof of Claim...51 Debts Die, Liens Live...53 Avoidable Preferences...55 Avoidable Setoffs...57 Strong Arm Power...59 Tardy Perfection...61 Loaning Money to a Bankrupt Debtor...63 Use of Collateral & Cash by Debtor in Chapter
7 MORTGAGE & GUARANTY LAW How Long Do Mortgage Liens Last?...69 Critical Timing of Guaranties...71 Future Advance Clauses...73 Prepayment Penalties...75 COMMERCIAL PAPER - UCC Art. 3, 4, 4A & 5 Checks & Notes Negotiation Process...79 How a Collection Agent on a Bad Check or Defaulted Note Can Claim Holder-In-Due-Course Status the Shelter Rule...81 Forged Maker Won t Kill Holder-In-Due-Course Status...83 Forged Payee or Indorser Will Kill Holder-In-Due-Course Status...85 Underlying Transaction Liability vs. Negotiable Instrument Liability...87 Negligence Precluding Assertion of Forgery or Alteration...89 Final Payment of a Check and the Four Legals...91 Check Forgery & Alteration Reporting Deadlines To Get Account Recredited...93 Wire Transfers UCC & Feds Work Together...95 Consumer Electronic Money Transactions Rights and Remedies...97 How Letters of Credit Work...99 Credit Card Analogy for a Letter of Credit Transaction International Letters of Credit
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