Foreclosures, Loan Modifications and Lender's Remedies
The “Loan Attention Team” is a working group of transactional, litigation and creditors’ rights lawyers and legal assistants assembled to provide the broadest perspectives of support to a lender administering a loan that has matured or is non-performing.
Our approach to modification, workout, foreclosure, and enforcement practice is to first understand what the client wants to achieve; then provide a document review; followed by a clear assessment of alternatives available, and then determine strategy and positioning with the client. We have no formulaic solution to all problems, although the goal to us always is to advance the client’s position in terms of control of its destiny and efficiency for the future. We work with the client to enable it to act quickly to restructure terms or secure collateral, without litigation where practicable.
We work to craft the best business solutions, as well as to be prepared to pursue whatever action is necessary. We fashion terms designed to keep the loan performing going forward, while providing the lender with additional means of quickly capturing collateral in the event of a renewed default (e.g., waivers of redemption, deed in lieu provisions, receivership provisions, guaranties, additional collateral, etc., which could not be obtained upon loan creation, but can, in most cases, be obtained when restructuring). If the lender has made a business decision to restructure the loan, we are experienced in documenting loan modifications and loan extensions, creating A-B notes, instituting lockbox accounts, disposition plans, and other agreements appropriate to the loan transaction. We are familiar with servicing obligations and intercreditor considerations that must be taken into account; and we work constructively with loan officers and in-house counsel to achieve the client's goals.
When a loan or borrower appears beyond rescue, our experience has shown that a realistic litigation assessment is critical. Prolonged litigation can obviously extend non-performance, and we seek to motivate a cooperative turnover of collateral and/or creatively expedite the enforcement process. Deed in lieu transactions often become more likely when the borrower perceives aggressive enforcement. We have a reliable foreclosure procedure, using trained associates and legal assistants to prepare nonjudicial foreclosures and to pursue collection and cash control remedies, supervised by experienced partners. We locate and pursue alternative borrower assets, as well as actively pursue guarantor claims and all avenues to collection. We regularly prosecute judicial foreclosures, and have achieved appointment of receivers in both judicial and non-judicial foreclosures.
We are also prepared to assist a lender in disposing of owned assets. For one client, we created an on-line auction bidding process that resulted in a highly successful realization of value. The auction site included access to title work, survey and other due diligence items necessary to satisfy conditions of purchase.
Our skills, of course, include bankruptcy. We have successfully obtained dismissal of filings for bad faith. We have obtained lift of stay orders, and have successfully captured rental income streams for lenders through rent assignment implementation, and litigated the rights to rents post petition and post foreclosure. Although not all bankruptcy cases can be managed so forcefully, our experience positions us to take the courses most likely to succeed.
Our collective experience in this work covers a broad range. Here are a few examples:
- For MetLife, loan modifications, workouts, and/or foreclosures of high value properties in the office, retail and commercial, and multi-family markets. In several of these matters, we dealt with bankruptcy filings and were successful in pursuing remedies and collecting rents during the case, and, in each situation, reaching a conclusion that advanced the lender’s interests to its satisfaction. We have successfully had a bankruptcy case dismissed based on abusive filing. We have successfully applied the law allowing a lender to receive rents post-foreclosure. We recently completed a loan modification extending the term of a loan, creating multiple tranches of debt integrated with new borrower capital, with added lockbox and reserve features.
- For Prudential Insurance Company of America, as a borrower and owner of an office/retail complex, we negotiated a restructuring of its loans with several banks.
- In representing Orix Capital Markets, its predecessor, BancOne Consulting and Management Company, and its successor, Keycorp Capital Markets, each acting within its authority as special servicer, we have documented and negotiated loan modifications, and foreclosed loans, of office, light manufacturing, and multi-family properties.
- We worked with Merrill Lynch Business Financial Services and its other counsel to document prospective acceptance of a deed in lieu and to commence a judicial foreclosure of Michigan property in a multi-state portfolio, where strategy of timing of action and the effect of action in various jurisdictions would impact rights in others.
- For an out-of-state bank, we obtained appointment of a receiver of a troubled Michigan office building and coordinated remedies in a cross defaulted loan with security in another jurisdiction. In the process, we revised the building's lease to facilitate the receiver's marketing of the property.
- Many national and community-based banks and other financial institutions have relied on us in loan modification negotiation, and deed in lieu transactions, and foreclosures involving a range of income-producing properties, including a regional shopping center, multi-family projects, and licensed properties such as nursing homes and hotels. Some of these have been contested vigorously and others have been resolved through negotiated resolution.
- For Freddie Mac, we have handled foreclosures, receivership, bankruptcy, and REO dispositions of a dozen or more apartment complexes.
Regional representation of numerous shopping center owners and developers in the development, construction, financing and leasing of their projects, including the negotiation and drafting of complex leaseholds with national anchor tenants.
Performed a pesticide due diligence review of a client’s sale of a subsidiary which manufactured and sold fertilizers, nutrients and registered pesticides. During the due diligence investigation, an unresolved “show cause letter” from EPA’s pesticide enforcement office alleging that the subsidiary was selling unregistered pesticides was uncovered. The scope of the potential liability was narrowed sufficiently to allow the transaction to close and EPA eventually decided not to pursue the enforcement action
Advised clients engaged in acquisitions of the potential implications of GHG emission limits and regulatory programs
Performed due diligence on a client’s planned acquisition of another sulfuric acid manufacturing facility
Provided bounding estimates on the future remediation costs during environmental due diligence on a “to be acquired“ company
Advised clients in due diligence investigations on complex future environmental risks that are likely to impact the economics of a transaction
The Split Ring sculpture, by Clement Meadmore, will return to downtown Grand Rapids in June 2016. It originally sat outside the Frey building before being moved to Woodland Mall. The sculpture is now returning to downtown after almost 50 years. Steve Stapleton and Ingrid Jensen worked on the negotiations and contracts to bring this iconic piece back to the heart of downtown.
Defended coal mining company against claims for statutory violations, breach of implied contract/unjust enrichment, breach of contract, negligence, misrepresentation, unfair trade practices, trespass in property damage and subsidence actions by landowners
Represent and defend substantial real estate developer and owner against large scale mechanic’s lien claims surrounding work and improvements performed by tenant
Represent national real estate company in various contract and business tort disputes, including not only litigation but advising on pre-litigation strategies and cost beneficial approaches
Successfully defended coal mining company in state court litigation by land owners, involving breach of contract, fraud and civil conspiracy claims in connection with lease disputes
Representation of non-profit corporations in a wide array of zoning and land-use matters.
Representation of developers in joint ventures and real estate limited partnerships.
Redevelopment of the iconic Argonaut Building in Detroit, Michigan at a project cost in excess of $150,000,000 through a multi-layered tax credit transaction involving State and Federal Historic Tax Credits, New Market Tax
Provide legal representation to several small business owners, developers and franchisees in the development of single site properties (gas stations and quick service restaurants) with a focus on land acquisition, annexation, easements (utilities) government entitlements, leasing and construction matters
Represented local municipality in the creation of a not for profit development entity to facilitate the development of a $500 million dollar comprehensive redevelopment plan to accommodate the acquisition and development of land for a multi carrier cargo development plan
Represented and counseled a not for profit developer in the establishment of a development joint venture in the construction of a 96 unit Section 42 federal tax credit low income senior housing facility
Represented developer in the acquisition and development of 300 acres of industrial land in the southern suburbs of Chicago with a value of $20 million dollars. Coordinated the preparation of a redevelopment plan for the area targeting land acquisition; brownfield assessment/cleanup; site planning/design; development/ project finance; training /job creation with a goal of attracting environmentally safe and non invasive businesses to the industrial area
Represented a local municipality and economic development group in obtaining the first State of Illinois single community Redevelopment Authority with bonding authority of $200 million dollars
Represented fund in designing and structuring the real estate investment models to accommodate raising foreign investment capital to be blended with other investment incentives such as New Market Tax Credits, Tax Increment Financing and other incentive based programs
Represented commercial development client in the development of over 200,000 square feet of commercial retail strip centers located in the Chicago metropolitan area. Responsible for land acquisition, site planning/design; government entitlements; (zoning/incentives); analysis and procurement of project financing, and construction management. Utilized various economic development tools to improve profitability such as real estate tax rebates (class 8) and tax increment financing
Representation of investment companies in 1031 exchanges and tenant in common agreements
Representation of Michigan developer in all aspects including condominium documentation, negotiation of purchase contracts, closings and tax appeals at the local level and state level
Represented development joint venture consisting of private equity firm and real estate developer for the development and construction of quick service restaurants throughout the United States
Representation of private companies, including a local real estate investment fund raising equity to purchase multi-family properties in the Chicagoland area, in the preparation of private placement memoranda and subscription documents under Regulation D of the Securities Act of 1933
Represented a private equity fund to establish an immigrant investor fund for the investment in real estate and/or mid-market with a funding goal of $100 million dollars
Representation of purchasers and sellers in the acquisition and disposition of real property
Representation of landlords and tenants in negotiation of leases for multi-use buildings, industrial and office space
Representation of local and regional lenders in sophisticated lending transactions, including multi-family housing and shopping center loans, nursing home accounts receivable lending, senior and mezzanine finance, construction loans, and asset based lending
Preparation and negotiation of AIA Contracts on behalf of owner with respect to general contractors, engineers and architects
Lead counsel for various retail shopping plaza owners in multiple counties. Draft leases and amendments and enforce landlord rights
Lead defense counsel in dispute over lease of warehouse involving over $1 million in claims. Filed motion for summary judgment leading to successful resolution of action
Represented local and national real estate developers in multi-million dollar breach of commercial contract/lease actions against landowners and tenants
Represent national title company in litigation matters involving alleged title defects, tort claims and contractual disputes
Representation of several high-profile hospitality groups in connection with the development, sale, purchase, financing, refinancing, leasing and management, as applicable, of many prominent restaurants and taverns located in Western Pennsylvania and the surrounding area
Representation of many local, regional and national retailers in connection with their purchase and/or lease of real property, equipment and inventory, as well as in connection with the day-to-day operation and management of their business affairs