Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Commercial Mortgage Modifications: Lien Priority, Title Insurance and Bankruptcy Issues Structuring Modification Agreements While Avoiding Legal Pitfalls THURSDAY, FEBRUARY 7, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Aimee Contreras-Camua, Partner, Pircher Nichols & Meeks, Los Angeles Erin F. Natter, Partner, Pircher Nichols & Meeks, Los Angeles The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.

2 Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial and enter your PIN when prompted. Otherwise, please send us a chat or sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

3 Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you that you will receive immediately following the program. For additional information about continuing education, call us at ext. 2.

4 Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to Conference Materials in the middle of the lefthand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

5 Commercial Mortgage Modifications Strafford Webinar: Commercial Mortgage Modifications: Lien Priority, Title Insurance and Bankruptcy Issues February 7, 2019 Aimee Contreras-Camua, Esq. Erin F. Natter, Esq Nothing herein is to be construed as legal, tax, investment, business or insurance advice. 5

6 TYPES OF COMMERCIAL MORTGAGE LOAN MODIFICATIONS Technical Modification Correcting Scrivener's errors or perfection defects Contemplated in the loan documents (Example: updating the legal description due to a lot line adjustment) Extension of Maturity Date Material Economic Terms Modification Increase loan amount, additional funds added to debt Change interest rate Other Material Modifications Adding collateral or releasing collateral Implementing cash management Modifying disbursement provisions for additional advances 6

7 TECHNICAL/ EXTENSION OF MATURITY DATE MORTGAGE LOAN MODIFICATIONS Documentation Unrecorded and/or recorded Guarantor/pledgor reaffirmations Title Endorsement Cautionary Tale/Example 7

8 MATERIAL MORTGAGE LOAN MODIFICATIONS: FUNDAMENTAL ISSUES What are the lender s and borrower s strategic objectives? Diligence and inventory the current state of the loan file, the collateral and parties. Pre-Negotiation Letter Agreement, Modification of Loan Documents, and/or Forbearance Agreement Cautionary Tale/Example 8

9 MATERIAL MORTGAGE LOAN MODIFICATIONS: FUNDAMENTAL ISSUES Issues to Consider/ Pre-Foreclosure Considerations Additional collateral, additional guaranties and/or equity pledge Unpaid taxes Estoppels and Subordination Non-disturbance and Attornment Agreements Governing law Cautionary Tale/Example 9

10 MATERIAL MORTGAGE LOAN MODIFICATIONS: LIEN PRIORITY ISSUES Lien/Claim Subordination Protecting Lien and Claim Priority Intercreditor Agreements Bi-furcated Loan Priority Issue Construction Loan Stop Notice Issue Cautionary Tale/Example 10

11 MATERIAL MORTGAGE LOAN MODIFICATIONS: TITLE INSURANCE Modification Endorsement Endorsement for Additional Advances ALTA 2006 Creditor s Rights Exclusion No creditor s rights coverage for loss or damage arising out of any claim (including a claim to avoid, invalidate, or subordinate a mortgage or deed of trust) which arises out of a transaction creating the interest of the insured lender or owner by reason of federal bankruptcy or state insolvency, or similar creditor s rights laws (such as fraudulent transfers, preferential transfers, equitable subordination). Mechanics Lien Coverage Cautionary Tale/Example 11

12 MORTGAGE LOAN MODIFICATIONS: BANKRUPTCY ISSUES- PREFERENCE CLAIMS AND SPECIAL RISK AREAS Preference claims avoid payments or transfers to a creditor on account of pre-existing debt made while the debtor was insolvent and within 90 days before bankruptcy for creditors generally and one year for insiders to the debtor. Exception for a transfer for subsequent new value Special risk areas include: Payments/property transfers on account of pre-existing debt Additional collateral New lien in exchange for old one not accompanied by new debt 12

13 MORTGAGE LOAN MODIFICATIONS: BANKRUPTCY ISSUES- STRATEGY TO MITIGATE AGAINST A PREFERENCE CLAIM New collateral in exchange for new value Careful analysis of debtor s financial condition Prompt perfection of security interest/deed of trust/mortgage postclosing Cautionary Tale/Example 13

14 MORTGAGE LOAN MODIFICATIONS: BANKRUPTCY ISSUES- TYPES OF FRAUDULENT TRANSFER Intentional Fraud: for purpose of hindering, delaying, or defrauding creditors Constructive Fraud: deemed fraud based on facts and circumstances indicating that the debtor is insolvent, AND has not received reasonable equivalent value in exchange; engaged in business for which debtor s remaining property was unreasonably small capital ; OR intended to incur debts that would be beyond debtor s ability to pay Cautionary Tale/Example 14

15 MORTGAGE LOAN MODIFICATIONS: BANKRUPTCY ISSUES- FRAUDULENT TRANSFER What does insolvent mean? Insolvent means, at a given moment in time:... financial condition such that the sum of such entity s debts is greater that all of such entity s property, at a fair valuation... excluding exempt property (under bankruptcy law) and any property that was fraudulently transferred. Calculation of insolvency includes contingent liabilities (such as a guaranty obligation), but at something less than face value. Additional risk factor- Equitable Insolvency 15

16 MORTGAGE LOAN MODIFICATIONS: BANKRUPTCY ISSUES- FRAUDULENT TRANSFER/PREFERENCE REMEDY The exchange is set aside by the Bankruptcy Court Transferee must disgorge or pay a higher amount, depending on applicable law and circumstances. Transferee Defenses to Fraudulent Transfer Claim Gave value and was in good faith Did not know (and should not have known) of debtor s insolvency 16

17 MORTGAGE LOAN MODIFICATIONS: BANKRUPTCY ISSUES- FRAUDULENT TRANSFER LIABILITY Upstream or cross-stream guaranties supported by deed of trust or mortgage; In re Tousa, Inc. (2012) Deed of trust grantor or mortgagor not receiving loan proceeds Additional collateral- securing antecedent debt constitutes value if securing your own or downstream subsidiary debt. Cautionary Tale/Example 17

18 MORTGAGE LOAN MODIFICATIONS: BANKRUPTCY ISSUES- STRATEGY TO MITIGATE AGAINST FRAUDULENT TRANSFER/PREFERENCE LIABILITY Thorough analysis of debtor s financial statements Updated property appraisals/ or broker price opinion Solvency opinion Structure workout settlement/modification based on the Earmarking doctrine (pre-bankruptcy transfer may not be avoided as preference or fraudulent conveyance if payment supplied and earmarked for distribution to the creditor by non-debtor third party) 18

19 MORTGAGE LOAN MODIFICATIONS: BANKRUPTCY ISSUES- FAILURE TO RECORD OR PERFECT LIENS AGAINST BANKRUPTCY Trustee or DIP in bankruptcy/reorganization case may void unperfected liens. Automatic stay in bankruptcy precludes post-petition filing or perfection by creditor. Frequent issues of landlord lien creditors, unperfected UCC Article 9 secured creditors, and holders of badly drafted or unrecorded deeds of trust or mortgages. 19

20 MATERIAL MORTGAGE LOAN MODIFICATIONS: BANKRUPTCY ISSUES- EQUITABLE SUBORDINATION Claim based on allegations of inequitable conduct by the creditor to the detriment of other creditors: Fraud, illegality, or breach of fiduciary obligation Actions resulting in undercapitalization of the debtor Creditor s use of debtor as alter ego Likely of success of equitable subordination claim rises as proximity of relationship between debtor and creditor increases. Remedy against creditor is loss of stated lien priority and subordination to other creditors by the Bankruptcy Court. 20

21 MATERIAL MORTGAGE LOAN MODIFICATIONS: TAX AND OTHER ISSUES There may be unintended tax implications in connection with entering into a loan modification if the loan modification is seen as entering into new debt, and the lender has been deemed to have realized gain. Cautionary Tale/Example Waste; Nippon Credit Bank v N. Cal. Blvd. (2001) Cautionary Tale/Example 21

22 ADDITIONAL INFORMATION For additional information about Aimee Contreras-Camua or Erin F. Natter, or about Pircher, Nichols & Meeks, LLP please visit 22