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December 9, 2015

Best Practices: Help! What Searches Should I Order?

by Katie O'Brien

The Small Business Administration (“SBA”) sets forth many regulations which lenders are required to follow, but the SBA does not give lenders much guidance when it comes to performing due diligence on its borrowers. Instead, the SBA expects lenders to use a prudent lending standard to guide their practices. An important part of a lender’s due diligence is ordering searches on borrowers, guarantors and sellers to make sure the collateral securing the loan is not encumbered (or is encumbered only by those liens the lender was expecting) and that there are no liens filed against the parties to the transaction. Lenders can protect themselves and their borrowers and cut down on unnecessary costs by understanding which searches are required depending on the type of transaction and the specifics of the deal. Below is an explanation of some of the more common searches that lenders may want to consider ordering.

Certificate of Good Standing

  • Certificate from a Secretary of State which shows that an entity is active and/or in good standing to transact business in the state where the entity is formed or the state where the entity is doing business
  • Order on borrowers, guarantors and sellers if these parties are registered entities such as corporations, limited liability companies or limited partnerships; order in the state where the entity is formed and the state where entity is doing business, if different

Corporate Tax Lien Certificate

  • Varies by state, but typically shows whether an entity has paid its corporate taxes to the taxing authority in the state where the entity is doing business
  • Consider ordering on entities which are buying, selling or pledging collateral as unpaid taxes may result in a senior lien in favor of the state on the assets securing the loan; order in the state where the entity pays taxes

Uniform Commercial Code (“UCC”) Search

  • Shows whether or not personal property being pledged as collateral has already been pledged to another creditor
  • State UCC searches – order on individuals or entities that are buying, selling, or pledging personal property as collateral; order in state where entity is organized/incorporated or where the individual is a resident
  • County UCC searches – order on individuals or entities that are buying, selling, or pledging personal property which is affixed to the real estate (i.e. fixtures); order in county where the fixtures are located

Tax Lien and Judgment Search

  • Shows all tax liens or judgments which have been filed against an entity or individual
  • Consider ordering on borrowers, sellers and guarantors (if the guarantor’s income is a source of repayment for the loan); order in the state and county where the business is operating or where the individual resides

Bankruptcy

  • Consider ordering bankruptcy searches on borrowers, sellers and guarantors to confirm that no parties in the transaction have filed bankruptcy; order in county where the business is operating or where the individual resides

Pending Litigation Search

  • Shows pending lawsuits which have been filed against an entity or individual, but have not yet resulted in a judgment or dismissal
  • If borrower is purchasing the stock of a business, a lender should consider ordering a pending litigation search on the company being purchased to ensure that the borrower does not assume any lawsuits as part of the sale; order in county where the business is operating

Owner and Encumbrance Search (i.e. Property Search or Title Search)

  • If a loan is secured by real property, but there is not enough equity in the property to warrant the cost of title insurance, lender should obtain a search of the county records to confirm the title holders and lien holders of record

There is no one size fits all search order, but Lenders can protect themselves and their borrowers and save borrowers money by understanding which searches are necessary depending on the specifics of the deal. For more information regarding searches and closing and documenting loans, contact Katie at (267) 467-1207 or at kobrien@starfieldsmith.com.