Sometimes a parcel of commercial real estate suffers such title problems that it becomes so unwieldy that a title insurance is unwilling to insure over. In such situations, the extraordinary powers of a Bankruptcy Court may be the only solutions available. The program for which this paper was written dealt with the questions of when Bankruptcy applies, and what extraordinary tools it provides, for such title problems.
Welcome to my blog. I use it primarily to publish my materials from programs I present before the American Bar Association, the American College of Real Estate Lawyers, the American Inns of Court, the District of Columbia Bar, the Maryland State Bar Association, the Harvard Business School Club of Washington, D.C., and other organizations. I would love to receive any questions, comments, criticisms and suggestions you may have on any of these topics. Please check my law firm’s website, at www.samuelson-law.com, and contact me.
- All articles contained in this Blog are only as of their respective dates. None of them has been updated since then. The reader is urged to supplement all of those materials.
- Particular facts and circumstances, and changes of law or fact, may affect the statements in the articles in this Blog.
For Bankruptcy purposes, limited liability companies ("LLC's") are not treated as limited partnerships, but as corporations. Even a single member LLC is treated differently from an "individual" in Bankruptcy. The Bankruptcy of a member of a LLC call have a sever impact on the LLC itself. This Article is from a program recently given by Ken Samuelson, and deals with (a) some of the unique aspects of LLCs under Bankruptcy law; and (b) issues that frequently arise in Bankruptcies of LLCs, even if not unique to LLCs.
Many real estate developers have signed so-called "bad boy" clauses personally guaranteeing the re-payment of all or part of a mortgage, made to a single asset entity as the borrower, if that entity files bankruptcy (or, even under some clauses, is placed in an involuntary bankruptcy). In Bank of America, N.A., et. al. v. Lightstone Holdings, LLC, et. al., Index No. 601853/09, the Supreme Court of the State of New York, New York County, recently enforced one such clause dealing with a voluntary bankruptcy of the mortgagor.
When a real estate development is carved-up in such a way as to create multiple owners with different types of interests, trying to structure a workout package that pleases everyone can be extremely difficult. Often, the debtor's tools in bankruptcy - to discharge, prioritize, bring in new money, avoid, recapture, limit, and cramdown - are the only ways to try to salvage the development. This program examines the use of such remedies in the context of one such multi-owner structure - the condo/hotel - and why receiverships simply don't provide enough recognized controls.
When a commercial real estate loan goes, or is going, bad, each party has options. Pretend and extend, state receiverships, foreclosures, short sales, bankruptcies, and deeds-in-lieu of foreclosure - whether within or without the context of a formal workout agreement - each has its own pros and cons for each party. Deciding what to do is particularly difficult in the case of a hotel, since a hotel is both a real estate investment and an operating business, usually with labor unions and flags, sometimes with public/private incentives, and often with numerous other third parties. Hotels that are part of a complex including condominiums or other facilities add even more interested parties and their lenders. The following are some of the main considerations involved.
The decision of whether and how to sell assets in a bankruptcy proceeding can trigger a number of disagreements, and the bidding process itself can attract some unusual bids. For example, in some cases, the Trustee may not feel that selling a particular asset is worth the time and trouble; however, a creditor may disagree. Another example occurs in a case in which the bankruptcy estate has potential claims for breach of contract or torts. In such a case, the breaching party or tortfeasor may be willing to offer the highest and best price to buy (and, thus, resolve) those claims against itself. In some cases, the most valuable bid may be a non-cash one. However, if the benefits of such a non-cash bid are public benefits, or do not otherwise ultimately produce cash with which to pay the creditors entitled to be paid, the Trustee may not be able to accept that bid. In some cases, it is difficult to evaluate the value of a bid in terms of the ability of the bidder to perform of of the Trustee's costs of keeping the bankruptcy proceeding open or of performing its own obligations under the terms of the bid. The purpose of this article is to high-light some of the case law dealing with such conflicts
Presented at the Annual Meeting of the American College of Real Estate Lawyers on October 31, 2009 in Washington, DC
The LandAmerica bankruptcies taught us that we cannot merely assume that third-party escrow arrangements are safe from unrelated third-party creditors. Now we know that the bankruptcy of the third-party intermediary, especially where the funds are not covered by deposit insurance and time deadlines are involved, can have profound implications far beyond the loss of the deposit itself. The following explores what happened in the LandAmerica case with respect ot Section 1031 escrow deposits and what drafting implications that has for future transactions.
The below addresses what challenges an owner may make to the purchase price obtained in a Maryland foreclosure sale of commercial real estate. Since this area of the law is changing rapidly, the reader needs to check statutes adopted, and cases rendered, after 10/21/08 and, particularly, not to assume that any of the below applies to residential property.
Steps a Secured Lender Should Consider in a Chapter 11 and the Role of a Proposed Plan of Reorganization at Each Step
The plan of reorganization is one of the most critical documents in a Chapter 11 bankruptcy proceeding. Even before declaring a default under a mortgage or deed of trust, a secured lender needs to plan ahead by considering, among other things (a) what remedies the lender has at each step of a bankruptcy proceeding; and (b) whether the borrower/debtor can, at each such step, propose a sufficient-enough plan of reorganization to prevent the lender from realizing upon those remedies. Such planning will also help the lender predict how long the bankruptcy proceeding is likely to take, what it is likely to cost, and what the lender's risks of adverse consequences, such as a cramdown, are. If nothing else, such planning will help the lender to determine what terms it should offer in workout negotiations.
As a Chapter 11 bankruptcy proceeding progresses, a secured lender will want to consider seeking in the following order in light to thedebtor's ability to then propose a sufficient-enough plan of reorganization: (a) a lift Stay, (b) a conversion or dismissal, and (c) counting the classifications and the votes to avoid a cramdown.
Every time a new bankruptcy opinion is rendered with respect to a lease, or even a challenge to a lease clause is made in a court, draftspersons and their clients wonder what could have been done to avoid the risks and expense of dealing with the issue. Thus, these days, form leases are being reviewed frequently. Some attempted drafting solutions will be rejected by the court outright as being within the ambit of a statutory prohibition or as interfering with the role of the court in interpreting statutes. In a commercial case, especially one in which the lease grants the landlord alone the right to attorneys' fees, draftpersons may view a questionable clause as possibly intimidating an unsophisticated tenant or as giving the landlord at least an additional argument in court. This article deals with some of the provisions landlords or tenants may attempt to draft into leases to deal with a bankruptcy of themselves or of the other party.
If mezzanine and other lenders are involved when a real estate project is going badly, especially one in the middle of construction, the lenders will probably have to decide whether, and, if so, on what terms, to continue finding. If the best course of action is indeed to continue funding, then issues are likely to arise as to how to incentivize potential funding sources to provide the additional funds, and the developer, if the developer is the best person to complete the construction, to continue. Obviously, many risks and variations are possible. The following form is a template for addressing some of those issues and is to be used in the context of local boilerplate.
The following form is designed to address the situation in which a lender and the borrower agree upon a workout in the form of a deed-in-lieu. As with all forms, it needs to be tailored to the particular transaction. Furthermore, it does not include state and local requirements or any of the boilerplate.
Title Insurance Company's Concerns in Issuing Coverage for Lender Remedies for Distressed Commercial Real Estate
By: Kenneth L. Samuelson, Esq.
|Lender and Borrower enter into a workout agreement pursuant to which Lender's subsidiary takes record title and the mortgage remains upon the property||Lender forecloses upon the property (straight or via a lift stay); and Lender, or Lender's subsidiary (as REO), sells it to an unrelated third party||Borrower files bankruptcy and the property is sold under the jurisdiction of the Bankruptcy Court|
|Why should Lender get an owner's insurance policy?||Coverage as to the existence of any intervening acts and the types of items described below, particularly creditors' rights endorsement.||In selling REO, the creditor's rights exception does not relate back to the prior sale.|
|Insuring over standard exceptions|| 1. Borrower's/|
Seller's affidavit and indemnity is worthless.
2. Purchaser should be able to give it for its own loan policy.
|No Seller's affidavit or indemnity.||No affidavit or indemnity from Borrower or the bankruptcy estate|
|Insuring over mechanics' liens|| 1. Borrower's/|
Seller's affidavit and indemnity is worthless.
2. Purchaser should be able to give it for its own loan policy.
| 1. State law|
2. Issue as to Lender's implied consent.
|Addressed by court order|
|Non-merger endorsement||Non-merger language in the workout agreement and in the deed. Effectiveness under state law?||N/A||State law|
|Creditors' rights endorsement|| 1. Borrower has to request.|
2. Borrower has to acknowledge that the loan is in default.
3. Borrower has to acknowledge that the loan outstanding exceeds the value of the property.
4. Get an appraisal to that effect.
5. What is the consideration to Borrower - forbearance; partial or total forgiveness, release or extension; covenant not to sue principals of borrower or for a deficiency or for breach of various other covenants; walking around money or paying some of Borrower's expenses, including for removal of other liens; no other liens exist; and non-merger language in the workout agreement and deed?
6. If the consideration is forgiveness of indebtedness, issue whether Lender or its subsidiary is a "good faith purchaser for value" as required under the Owner's policy conditions.
|Fear that the foreclosure was not conducted properly, especially with a non-judicial foreclosure. Opinion of lender's counsel to transfer a negligence standard of the attorney to a strict liability standard of the title insurance company?|| 1. Fear that a sale conducted without Court approval may not be conducted "in the ordinary course of business" under Bankruptcy Code Section 363(c). Opinion of lender's counsel to transfer a negligence standard of the attorney to a strict liability standard of the title insurance company?|
2. Fear that, prior to the date a plan or reorganization is approved (beyond appeal), a bankruptcy court could find an equitable subordination under Bankruptcy Code Section 510(c); however, with a reputable lender, title company could have language protecting itself.
3. Cram-down is not a title issue.
A Tenant's Efforts to Assume and Assign a Commercial Lease in a Chapter 11 Triggers Lots of Issues to Fight About
A tenant's right to assume, and then possibly assign, its lease involves more than whether the tenant has met the statutory criteria. Procedural issues are involved such as whether and when to hold an auction, with or without a stalking horse bid; whether the stalking horse bid, or the bidding terms and procedures governing any such auction, unduly favor the stalking horse bid over other potential buyers (including the break-up fee); and whether, particularly in the case of multiple leases, the debtor or Trustee should sell designation rights instead of assigning the leases.
One of the uses of bankruptcy, as a business planning tool, is to enable a debtor to attempt (a) to get out of, i.e. reject, pending leases and contracts [11 U.S.C. Sections 365(a)]; and (b) with respect to rejected real property leases, even to leave some extra money for the unsecured trade creditors, with whom the debtor may want to do business after the case is over, by capping the amount of the damages a landlord can claim by reason of such a rejection of a lease [11 U.S.C. 502(b)(6)]. As to post-petition or post-repossession or post-surrender rent under a real property lease in a tenant bankruptcy, 11 U.S.C. 502(b)(6) limits the landlord's claim (and it is only a claim) to "the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease". However, in the recent case of In re El Toro Materials Company, Inc., 2007 U.S. App. LEXIS 22991 (October 1, 2007), the Court carved out an exception to that lease rejection cap. In that case, the debtor/tenant had rejected the lease and left behind, on the leased premises, "one million tons of its wet clay 'goo,' mining equipment and other materials". The landlord claimed $23 million in damages for the costs of removing those items. The Court held that such removal costs are not subject to that lease rejection cap, i.e. that that cap applies only to rent and rent-like items, not to clean-up or repair costs. However, as with other non-priority rent, the landlord must stand in the same line, as all of the other unsecured creditors, with respect to its claims for such non-monetary defaults.