Arbitration Carve-Out Clauses In Commercial and Consumer Secured Loan Transactions

Rome, Donald Lee; Shaiken, David M. S.
August 2006
Dispute Resolution Journal;Aug-Oct2006, Vol. 61 Issue 3, p42
Academic Journal
The article discusses the justification of secured creditors to use their non-waivable statutory rights against real property and/or tangible personal property under mortgage foreclosure laws, replevin laws or Article 9 of the Uniform Commercial Code. The precedent of the non-waivable statutory rights in the Supreme Court case of Shearson/American Express v. McHahon is elaborated. The concerns of the lender and the borrower are enumerated, and carve-outs for arbitration clauses in loan agreements are described. The authors conclude that carve-outs are fair, but that many attorneys fail to understand them properly.


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