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Parents, not Banks, Should Aim For Empty Nests

March 2, 2017

Authors

Crystal Homa

Parents, not Banks, Should Aim For Empty Nests

March 2, 2017

by: Crystal Homa

I recently happened to find myself among a group of young professionals who had grown up in the same rural area of Georgia, but had dispersed to not only different parts of the state, but also different parts of the country and even at times, the world. At some point in the evening, it became the topic of conversation that one of the members of this group still banked at his hometown community bank despite no longer living there and spending almost a decade traveling the world. His childhood friends were shocked, uttering things like “Wait, you still bank there?” and “Isn’t it time you leave the nest?”

As someone who did not grow up in Georgia and thus was an outsider to the conversation, I really began to think about this.

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Reduce Potential ADA Liability by Making ATMs and Websites Accessible

October 25, 2016

Authors

Marcy Bergman and Merrit Jones

Reduce Potential ADA Liability by Making ATMs and Websites Accessible

October 25, 2016

by: Marcy Bergman and Merrit Jones

Banks and credit unions are among the most recent targets of a wave of demand letters and lawsuits alleging violation of the Americans With Disabilities Act of 1990 (the “ADA”). The most common allegations concern inaccessible ATMs and websites, despite the fact that the ADA and its implementing regulations do not yet address website accessibility.

Title III of the ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation,” 42 U.S.C. § 12182(a), which includes banks and credit unions.

In 2010, the federal regulations implementing the ADA were revised, and expressly addressed ATMs for the first time. Banks and credit unions were given until March 2012 to become fully compliant, and most litigation targeted institutions that failed to comply by that date.

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Pointers for Bank Recipients of Demand Letters Asserting ADA Non-Compliance

October 18, 2016

Authors

Dan Wheeler and Jerry Blanchard

Pointers for Bank Recipients of Demand Letters Asserting ADA Non-Compliance

October 18, 2016

by: Dan Wheeler and Jerry Blanchard

Community banks have recently been on the receiving end of demand letters from plaintiffs law firms alleging that the banks’ websites are in violation of the Americans With Disabilities Act of 1990 (the “ADA”).  Interestingly, there are currently no specific federal standards for websites under the ADA. The Department of Justice (“DOJ”) is in the process of developing regulations for website accessibility, but has announced it will not finalize these regulations until 2018 at the earliest. Even so, the DOJ has emphasized that businesses should make websites accessible to the disabled. While the regulations are being developed, many businesses have been applying the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA with the understanding that the DOJ has made clear that it considers a website accessible if it complies with these guidelines.

When a bank receives a demand letter the first thing they need to do is hire counsel to advise them

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Survey of 2015 Georgia Corporate Case Law Developments

March 31, 2016

Authors

Bryan Cave

Survey of 2015 Georgia Corporate Case Law Developments

March 31, 2016

by: Bryan Cave

The annual survey of decisions by state and federal courts during 2015 addressing Georgia corporate and business organization issues is now available.

This survey covers the legal principles governing Georgia businesses, their management and ownership. It catalogs decisions ruling on issues of corporate, limited liability company and partnership law, as well as transactions and litigation issues involving those entities, their governance and investments in them.

In 2015, there were a number of noteworthy decisions spanning a wide variety of corporate and business law issues. There were two significant decisions involving directors of corporations who simultaneously serve as trustees for trusts who hold a minority interest in the corporation – one dealing with liability issues, the other an insurance coverage dispute. Elsewhere, the Georgia Supreme Court issued an important opinion reaffirming the duty to read transactional documents and clarifying the circumstances under which that duty can be excused. The

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Can a Guarantor Waive his Right to a Foreclosure Confirmation Proceeding in Georgia?

February 23, 2016

Authors

Curtis Romig, Jerry Blanchard and Leah Fiorenza McNeill

Can a Guarantor Waive his Right to a Foreclosure Confirmation Proceeding in Georgia?

February 23, 2016

by: Curtis Romig, Jerry Blanchard and Leah Fiorenza McNeill

Yes.

On Monday, February 22, 2016, in a case closely watched by commercial real estate lenders, borrowers and guarantors, the Supreme Court of Georgia issued its opinion in PNC Bank, N.A.  v. Smith, et al., S15Q1445.  The case was before the Supreme Court on two certified questions from the United States District Court for the Northern District of Georgia.  The two Certified Questions were: (1) Is a lender’s compliance with the requirements contained in OCGA § 44-14-161 a condition precedent to the lender’s ability to pursue a borrower and/or guarantor for a deficiency after a foreclosure has been conducted?; and (2) If so, can borrowers or guarantors waive the condition precedent requirements of such statute by virtue of waiver clauses in the loan documents?

In answering the first question in the affirmative, the Georgia Supreme Court upheld its reasoning in First Nat. Bank & Trust Co. v. Kunes, 230 Ga. 888,

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Bryan Cave Files Amicus Brief On Behalf of GBA in Overdraft Case

January 3, 2016

Authors

Bryan Cave

Bryan Cave Files Amicus Brief On Behalf of GBA in Overdraft Case

January 3, 2016

by: Bryan Cave

Byran Cave filed an amicus brief on behalf of the Georgia Bankers Association and the Georgia Chamber of Commerce in the Bickerstaff v. SunTrust Bank litigation currently pending before the Georgia Supreme Court in which a bank customer seeks to certify a class action against SunTrust to challenge the propriety of certain overdraft charges.

The trial court below ruled that while the plaintiff could opt out of an arbitration clause in the deposit agreement with SunTrust to pursue such challenges in his own right, the plaintiff could not do so on behalf of a class. The Georgia Court of Appeals affirmed the trial court ruling that “the deposit agreement contract and its arbitration clause prohibit [plaintiff] from altering others’ contracts where he is neither a party nor in privity with a party.” The plaintiff in the case then petitioned the Georgia Supreme Court to grant certiorari in the case.

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The State of Banking in Atlanta: 2015 vs. 2005

October 8, 2015

Authors

Robert Klingler

The State of Banking in Atlanta: 2015 vs. 2005

October 8, 2015

by: Robert Klingler

Last week we looked at the state of banking in Georgia based on the FDIC’s latest summary of deposits information, and now we turn our focus to Atlanta.  The overall number of banks in the Atlanta Metropolitan Statistical Area (the 9th largest MSA in the country), fell from 138 to 97, a 30% decline.  As in broader Georgia, this number overstates the decline of independent banking organizations, as the number of holding companies operating multiple bank charters in the Atlanta area fell from 4 to 1, with the number of unaffiliated financial institutions falling from 126 to 96 (a 24% decline).

The total amount of deposits assigned to branches in the Atlanta MSA rose from $95 billion to $146 billion, a 54% increase (as compared to a 43% increase for the entire state, and an increase of only 23% in the state but outside the Atlanta MSA).  The

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Fourth Circuit Upholds FDIC’s Ordinary Negligence Claims

October 6, 2015

Authors

Michael Carey

Fourth Circuit Upholds FDIC’s Ordinary Negligence Claims

October 6, 2015

by: Michael Carey

The United States Court of Appeals for the Fourth Circuit, which governs North and South Carolina as well as Virginia, West Virginia and Maryland, has issued an important ruling in FDIC v. Rippy, a lawsuit  brought by the FDIC against former directors and officers of Cooperative Bank in Wilmington, North Carolina.  As it has done in dozens of cases throughout the country, the FDIC alleged that Cooperative’s former directors and officers were negligent, grossly negligent, and breached their fiduciary duties in approving various loans that caused the bank to suffer heavy losses.  The evidence showed the FDIC had consistently given favorable CAMELS ratings to the bank in the years before the loans at issue were made.  The trial court entered summary judgment in favor of all defendants, criticizing the FDIC’s prosecution of the suit as an exercise in hindsight.  The Fourth Circuit, however, vacated the ruling as it applied to

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The State of Banking in Georgia: 2015 vs. 2005

October 2, 2015

Authors

Robert Klingler

The State of Banking in Georgia: 2015 vs. 2005

October 2, 2015

by: Robert Klingler

On September 28, 2015, the FDIC published the 2015 summary of deposits information.  Using this data, we compared the deposit data for Georgia, comparing 2015 to 2005.  Without even looking at the numbers, we knew the period would represent significant change, as the Great Recession had a significant impact on the banking industry, particularly in Georgia.

As a headline number, the total number of banks with branches in Georgia fell from 367 to 248, a decline of over 32%.  However, as with many reports showing the number of bank charters, this number overstates the effect of consolidation as it also reflects internal holding company reorganizations in which multi-bank holding companies have consolidated into one bank charter.  These internal consolidations reduced the number of bank charters in Georgia by 51, as the number of multi-bank holding companies fell from 18 to 6 (one of which combined their subsidiary bank charters

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Oral Arguments on HWA Decision

September 16, 2015

Authors

Bryan Cave

Oral Arguments on HWA Decision

September 16, 2015

by: Bryan Cave

On Monday, September 14, 2015, the Georgia Supreme Court heard oral arguments in the case of PNC Bank, National Assoc. vs. Kenneth D. Smith, et al., Case No. S15Q1445.

As noted in our prior blog post, this case is of great interest to banks operating in Georgia which are involved in real estate lending.  At issue is whether a lender may conduct a non-judicial foreclosure on real estate serving as collateral, and then pursue a guarantor without first pursuing a confirmation of the sale.  In addition, the Court is being asked to consider whether a guarantor may waive such a requirement.  In an earlier case, HWA Properties, Inc. v. Cmty. & S. Bank, 322 Ga. App. 877 (2013), the Court of Appeals held that a confirmation following a foreclosure sale is no longer a prerequisite to suing the guarantor for a deficiency when the guaranty waives such a confirmation. 

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