October 5, 2015Newsletter

October 2015 Banking and Financial Services Newsletter

Property Assessed Clean Energy Financing

By: Danielle M. Bergner

Property Assessed Clean Energy Financing (PACE) has been available in Wisconsin since 2009. The program allows property owners to pay back the costs of installing certain energy and water related building components over time through annual charges that will appear on the owner’s tax bill. PACE Financing is sometimes referred to as “tax lien financing.” Sometimes characterized as “low cost equity,” it requires little to no upfront cash outlay and, because of its non-recourse nature, owners view it as off-balance sheet debt. For landlords, the program is particularly attractive to the extent it allows them to pass through building retrofit expenses to existing tenants. All PACE projects are designed with the ultimate goal of producing energy savings that exceed the costs of the improvements.

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Proposed Changes in the Business Improvement District Law

By: Nancy Leary Haggerty

The State of Wisconsin has a long and important history of Business Improvement District (BID) creation and operation. In fact, the state ranks third in the nation in the total number of operating districts. BIDs have been created in communities large and small, all over the state,  to essentially create a local self-assessment against properties in a defined area of that municipality and with the collected assessments being used just for work in that particular district. Some BIDs use their collected assessments to keep the district neighborhood clean, some to act as a merchant’s association to sponsor events to draw shoppers into the district and some to provide streetscaping and landscaping to beautify an area. At least one BID sponsors parking ramps in a district whose buildings otherwise could not be fully utilized due to a lack of parking.

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SEC Staff Issues New CDIs on General Solicitation Prohibition under Regulation D

By: Michael H. Altman and Vincent M. Morrone

Except in limited circumstances (small offerings [i.e., less than $1 million] under Rule 504 and offerings made to accredited investors only under the new crowdfunding provisions of Rule 506(c)), Regulation D conditions an offering’s or private placement’s exemption from registration on the absence of general solicitation or general advertising. However, Rule 502(c) does not provide much guidance on the meaning of the terms “general solicitation” and “general advertising.” With the new Compliance and Disclosure Interpretations (CDIs) issued by the SEC’s Division of Corporation Finance (Division) on August 6, 2015, issuers now have more clarity on these general solicitation issues.

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Forbearance Arrangements Can Have Value For Debtors

By: Ann Ustad Smith

According to the Seventh Circuit, the value of a forbearance arrangement can be counted along with the amounts due on outstanding loans as part of the “reasonably equivalent value” given by a lender for a deed in lieu of foreclosure.

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FCC Expands the Scope of the TCPA Creating New Challenges for Businesses

By: Michelle L. Dama and Tanya M. Salman

On July 10, 2015, the Federal Communications Commission (FCC) released its Telephone Consumer Protection Act (TCPA) Omnibus Declaratory Ruling and Order (Declaratory Ruling), which resolved 21 pending FCC petitions that sought clarity of TCPA enforcement. (See June 8, 2015 Dama MBF Client Alert: FCC Chairman Issues “Fact Sheet” Announcing Proposed TCPA Declaratory Rulings). The Declaratory Ruling took effect immediately and expanded the scope of the TCPA in ways that will have a real impact on businesses with any calling and/or texting practices, whether for marketing, customer support or debt collection. Accordingly, the Declaratory Ruling provides little solace to businesses facing TCPA claims and is predicted to only heighten the recent upsurge of TCPA class action litigation.

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Illinois Appellate Court Upholds Foreclosure Judgment Despite Discrepancies Between Copies of the Note Attached to Foreclosure Complaint and Submitted into Evidence

By: Victor J. Allen and Carrie A. Hall

In HSBC Bank USA v. Rowe, 2015 IL App (3d) 140553, the Third District appellate court recently affirmed a grant of summary judgment in favor of a lender despite some discrepancies between the copy of the note attached to the complaint and the note submitted into evidence. The Rowe decision presents some valuable practical considerations for lenders and legal practitioners who are engaging in foreclosure work.

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Supreme Court Rules that Disparate Impact Claims are Allowed Under the Fair Housing Act

By: Jeffrey M. Barrett and Ann Ustad Smith

On June 25, 2015, the U.S. Supreme Court, in the case Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, upheld the use of the contentious "disparate impact" legal theory in cases alleging fair-lending discrimination. The high court, in a surprise decision held by a 5-4 vote that the Fair Housing Act of 1968 (FHA) can be read to prohibit policies that adversely affect minority groups even when that was not the stated goal of the policy. The state of Texas, whose housing department was fighting a fair-housing claim, contended that the FHA required that plaintiffs prove intentional discrimination, and that mere reliance on statistics showing that decisions and practices have discriminatory effects was an insufficient basis for an actionable claim under the FHA.

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