Real Estate Law Blog

Commercial Real Estate Lending--A Brighter Future?

A lot of people I talk to seem to be cautiously optimistic about the real estate market and where it's headed this year. Keith Mullen, author of the hugely helpful blog, Lenders 360, recently posted his thoughts on lessons learned about distressed real estate from 2012 and his predictions for the real estate lending market in 2013. I've included only his list below, but I urge you to check out his blog (click on the link at the end of the list) for his brief discussions of each point.

Keith's Lessons from 2012:

• Realistic Expectations
• Regulators in No Big Hurry
• Loan Originators Paying Attention

Keith's Predictions for 2013:

• Better in Job Growth Markets
• The Same . . Just Less of It
• The New Jobless

[From Distressed Commercial Real Estate: Lessons from 2012 and Predictions for 2013]

Questions I'm pondering: Did lenders (and borrowers) really learn the right lessons from the challenging times since 2008? What are those lessons, and how have lending and borrowing practices changed as a result?

I'd love to hear your thoughts in a comment below.

Laura McClellan
Thompson & Knight LLP
1722 Routh Street, Suite 1500
Dallas, TX 75201

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www.tklaw.com

Guest Blogging at Professional Development Perspectives

Happy to be guest blogging today over at my former T&K colleague's blog. Check it out to learn Eight Actions Law Firm Associates Can Take to Succeed.

Laura McClellan
Thompson & Knight LLP
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What Is an "Ownership Mentality"?

I'm honored to be blogging today at Professional Development Perspectives, the very helpful blog of a former colleague from Thompson & Knight, Cindy Pladziewicz. Here's a link to my guest post there. Please visit and leave a comment with your thoughts.

Laura McClellan
Thompson & Knight LLP
www.tklaw.com
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Foreclosure Crisis Information - Upcoming Symposium

The Berkeley Business Law Journal and the Berkeley Center for Law, Business and the Economy invite you to attend a Symposium on

The Foreclosure Crisis: Challenges and Solutions to the Mortgage Meltdown
Friday, April 13, 2012; 8:30am-1:30pm
International House; 2299 Piedmont Avenue - Berkeley, CA

 

Home foreclosures continue to plague the US economy and wreck havoc in the lives of individuals, families and communities. Attempts to resolve the foreclosure crisis have sparked government programs, lender initiatives, and multiple lawsuits. Speakers from UC Berkeley will join other scholars, business leaders, and policymakers to address what the public and private sectors should and could do to resolve the seemingly endless stream of home foreclosures and avoid their future repetition.  

 

Topics to be addressed will include:

• the current state of foreclosures and their impact on the residential market
• the recent mortgage foreclosure settlement between federal regulators, all 50 states' attorneys general, and the largest loan services
• lender and government initiatives to prevent foreclosures
• how adequate financing can be made available to home purchasers without repeating the foreclosure crisis
• foreclosure process defects and the need for modernization of the recording system  

Panelists to include:

    

William Falik, Mortgage Resolution Partners

Dwight Jaffee, Haas School of Business, UC Berkeley

Paul Leonard, California Office of the Center for Responsible Lending

David Moskowitz, Consumer Lending, Wells Fargo Bank 

Official Representative, Office of San Francisco Assessor Phil Ting

James Rhyne, Thematix Partners

Nancy Wallace, Haas School of Business, UC Berkeley

 

Lunch will be provided, and three units of CLE credit are available.

 

Advance registration is encouraged due to space limitations. To register, please follow this link. For questions, please contact us at [email protected] or call Phyliss Martinez at 510-642-0532.

==================

Laura McClellan

Thompson & Knight LLP
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Trend? Courts Strictly Enforcing Nonrecourse Carveouts

Borrowers typically think of CMBS loans as being recourse only to the collateral for the loan, i.e. the property. They also believe that if they cooperate with the lender after a default they will be able to walk away without personal liability under the loan so long as they do not do certain “bad boy” acts like misappropriation or waste of the collateral. However, recent cases are holding that if the recourse carveouts are triggered, whether inadvertently, and even cured, that the guarantors will become fully liable for the entire balance of the loan.

My colleagues at Thompson & Knight have prepared an alert with information about recent court rulings relevant to this issue. You can read the alert by clicking here. For more information, please feel free to contact me or any of the following T&K attorneys, all of whom have a great deal of experience in the CMBS markets (click on any name for contact information): Mark Weibel (Dallas), David Jones (Houston), Howard Goldman (Detroit), or William O'Connor (New York).

Laura McClellan
www.tklaw.com
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Wise Customer Service Advice for All

In a recent intriguingly titled post ("Be the Lawyer Who Sits on the Toilet Seat") to her excellent legal blog, My Shingle, Carolyn Elefant described her family's treatment at the hands of two very different doctors during the last week of her recently deceased father's life. She then eloquently drew some valuable lessons for lawyers from these doctors' contrasting behavior.

At this point I'm not sure how many of my readers are lawyers, but I found this post thought-provoking and relevant both to my own law practice and, to a large extent, the roles of all business people when interacting with their clients.

I encourage you to read Elefant's post, and then come back here and let me know your reaction. Have you thought about these points in your own professional life? What do you do to show respect for your clients/customers?

Laura McClellan
Thompson & Knight LLP
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Thompson & Knight Names Emily Parker as Managing Partner

The law firm of Thompson & Knight LLP is pleased to announce that Emily A. Parker has been named Managing Partner of the Firm effective February 15. Parker, the first female attorney hired by Thompson & Knight in 1973, has previously served as a Practice Group Leader and Hiring Partner, as well as two terms on the Firm’s Management Committee. From 2002 to 2004, Parker was Deputy Chief Counsel and later Acting Chief Counsel of the Internal Revenue Service, where she was ultimately responsible for all legal matters within the IRS and leadership of the agency’s more than 1,500 attorneys. She succeeds Jeffrey A. Zlotky, who has led the 350-attorney firm since 2009 and will resume full-time his nationally renowned private equity practice specializing in the energy industry.

“Emily’s legal skills, leadership qualities, and vision are well known, and the entire Firm is enthusiastic that she has agreed to accept these responsibilities,” says Zlotky. “This new role is just the latest in a series of firsts that have distinguished Emily’s career in the law and in public service.”

In addition to her new duties, Parker will continue to serve clients and maintain her nationally respected practice in the area of corporate taxation and litigation. Parker has represented large corporate taxpayers in a number of landmark cases in the energy industry and the area of estate taxation. Her 2010 victory in Container Corp. v. Commissioner resulted in Thompson & Knight being named the “U.S. Tax Court Firm of the Year” by International Tax Review. In response to the Tax Court’s decision in that case and because of concerns about the potential loss of revenue resulting from the ruling, the U.S. Congress amended the underlying law.

“I’m honored to serve the clients and attorneys of Thompson & Knight,” says Parker. “We have spent the last year developing our strategic plan, and I will be focused on implementing that plan to enhance and expand the Firm. I believe that the Firm is well-positioned for the future, and we will continue to build the talent, trust, and culture that allow us to deliver outstanding results for our clients every day.”

During her career Parker has been recognized in a wide range of business and legal publications, most recently being named as 2012 Dallas Litigation & Controversy-Tax Lawyer of the Year by The Best Lawyers in America^®.  She has held numerous leadership positions for local, state, and national bar organizations, including service as Vice Chair of the American Bar Association’s Section of Taxation.  She has also served as a community volunteer for Dallas CASA, the Child Abuse Prevention Center, and Easter Seals of Dallas.

Parker earned her law degree with honors in 1973 from the Southern Methodist University School of Law (now known as SMU Dedman School of Law), and was selected as the school’s 2007-2008 Distinguished Alumni for Government Service. She earned her undergraduate degree with highest honors from Stephen F. Austin State University in 1970.

ACMA Publishes Resource Guide for Mortgage Lenders

Did you know that every other year the American College of Mortgage Attorneys updates its Mortgage Law Summary? This hefty volume offers a compendium of useful information regarding mortgage law topics in each state and Puerto Rico. Each jurisdiction's summary is prepared by licensed attorneys from that jurisdiction, is subject to peer review, and covers such topics as the form of security instrument used, recording requirements, the foreclosure process, usury limits, title insurance options, and many other topics of interest to mortgage attorneys and their lawyers.

The most recent edition of the Mortgage Law Summary, edited by yours truly, was published in October and includes updates reflecting recent legislative activity in the various jurisdictions. If you're still using a prior edition, you don't have access to the most up-to-date reporting. For more information or to order your copy of the newest edition, visit ACMA's website at www.acmaatty.org.

Laura McClellan
Thompson & Knight LLP
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Mezzanine Lender Held to Strict Terms of Intercreditor

In a recent decision, the US District Court in Arizona ruled on a dispute between a senior (real-estate-secured) lender and the mezzanine (ownership-interest-secured) lender on a resort property in Arizona, granting the senior lender's request for a preliminary injunction to prevent the mezzanine lender from conducting a UCC sale of its collateral. The ruling in U.S. Bank National Association, Trustee v. RFC CDO 2006-1 Ltd. has drawn a lot of attention among lenders and their lawyers because of its implications in the many such disputes now or anticipated to be engaged.

The ruling turned on the interpretation of provisions in the intercreditor agreement that the two lenders signed when the project financing originally was put into place. Based on a widely used form of intercreditor, the agreement was the mechanism by which the two lenders structured their respective rights and obligations with respect to each other. With the project in trouble and the loans in default, the mezzanine lender sought to realize on its collateral by conducting a UCC sale and thus acquiring the ownership interest in the entity that owns the project (that is, the senior lender's borrower). The senior lender objected, claiming that the mezzanine lender could not enforce its rights to its collateral without first curing outstanding defaults under the senior loan. In analyzing the agreement, the Court agreed with the senior lender, finding that the intercreditor agreement's clear language prohibited the mezzanine lender from conducting a UCC sale without, among other things, first curing all outstanding borrower defaults under the senior loan.

The Court looked carefully at the agreement's language, including verb tenses in the relevant sentences, to find the requirement that the cure of senior loan defaults must have been cured as of the time that the mezzanine collateral (i.e., ownership interests in the senior lender's borrowing entity) is transferred. The Court enjoined the mezzanine lender from conducting the sale unless and until all requirements of the intercreditor are satisfied.

This ruling is a reminder of something that contract parties (and their lawyers) should already know: language matters. One can assume that a lot of lenders' attorneys will be reviewing their intercreditor forms and rethinking the provisions analyzed by the Court in this case.

For a copy of this ruling, or to discuss its implications for your past or present loan transactions, please feel free to contact me.

Laura McClellan
www.tklaw.com

 

Limits on Lender Insurance Requirements

When making real-estate-secured loans, lenders routinely require borrowers to maintain specified types and amounts of insurance on the property that serves as the lender's collateral. Loan document insurance provisions also typically require the borrower to provide to the lender evidence that the required insurance is in place. As a reminder, Texas law prohibits lenders from requiring a borrower to provide evidence of renewal/replacement policies any sooner than 15 days before the expiration of an existing policy (Sec. 549.054 of the Texas Insurance Code).

If you have questions about insurance requirements or other loan document provisions, feel free to contact me.

Laura McClellan
www.tklaw.com