Why is the CMA raising money? The CMA is raising money to file an Amicus Brief in the Ninth Circuit Court of Appeals on a key issue impacting its members and their clients.
What is the issue? In the case of In Re Moon, the Bankruptcy Appellate Panel held, in dicta, that, in order to qualify for the broker exemption to the usury limits (10%), only the broker involved in arranging the original loan AND who was also involved in arranging the sale of the property (or, involved in a new sale of the property) can negotiate and arrange a later forbearance of that loan. While not discussed in the opinion, the term forbearance arguably includes extensions, loan modifications, etc. The Moon language makes its very difficult to ever offer a forbearance, extension or loan modification on a loan with a interest rate over 10%. For additional detail on the decision, please click here to see the CMA’s recent article.
What is the current status? The Bankruptcy Appellate Panel opinion is currently on appeal to the Ninth Circuit Court of Appeals. If the Ninth Circuit rules in a similar fashion as the BAP did, the holding would likely become controlling precedent throughout California. Our amicus brief is due June 8th.
What can you do? Please donate to the CMA’s amicus efforts using the link below. In addition, since this issue affects many of your clients and investors, please pass the message and the link on to them as well.
Disclaimer: Nothing herein shall be relied upon as legal advice. Please consult with counsel as to the impact of this decision on any of your loans and before entering into a forbearance, extension or loan modification on loans with rates over 10%. Please also note that, in the event amicus contributions, exceed the cost of the amicus, any remaining funds will be deposited into a CMA account for future amicus efforts intended to protect the CMA and its members.
Lastly, we are also working on a prospective legislative solution.