New Liabilities for Financial Institutions

Lenders, special servicers and financial institutions are now finding themselves in a very difficult position with new potential liability exposures. Although they may hold a form of security, most lenders (particularly financial institutions) are not in the business of being landlords, developers, contractors, operators or property managers.

The pending collapse of the commercial real estate market is going to further burden CMBS servicers and Balance Sheet Lenders. The biggest concern is that traditional foreclosure may trigger unforeseen problems including insurability, liability, claim exposure, tenant management (and retention) and construction management and construction defect issues.

While there is no cure-all solution, it has become apparent that the appointment of a Receiver is a viable avenue for preserving, managing, restoring, completing and, ultimately, disposing of certain real property assets. Further (and, if necessary) a Receiver can facilitate, through the court, the restructuring of existing debt-converting a non- performing loan into a new performing loan.

Non-judicial foreclosure guarantees that the lender will become fee title holder of the foreclosed distressed real property. All of the costs, liabilities and problems associated with that property will now become the burden of the lender. If the property is in the midst of construction, the burden and responsibility of completing construction or abandoning it, lies with the lender after a foreclosure.

After foreclosure, if the real property is a going concern, maintenance, tenant management and lease renegotiations (popular today) will be in the hands of the lender/servicer (or its designee). This creates multiple avenues of lawsuit exposure for servicers and lenders. While the laws are complex, it is unequivocal that lenders/servicers will be seen as target "deep pockets" in future litigation by plaintiffs' attorneys.

Protection to the Lender/Servicer Provided by a Receiver

The Receiver's role as an officer of the Court protects the asset by providing Court oversight and approval of the Receiver's business decisions - providing the lender or financial institution with insulation from many of the claims and hardships they would have inherited had they followed the traditional route of foreclosure and ownership.

In instances where there are multi-unit structures, multiple tenants, incomplete construction, code violations or other unique problems with a particular parcel and its structure, the appointment of a Receiver provides "insulation" to the lender/servicer from certain claims and responsibilities. Those responsibilities are shifted to the Court, through its neutral, the Receiver.

A Receiver can operate, under the Court's supervision to resolve these unique problems and, ultimately, "clean-up" collateral for foreclosure or sell the property through a court approved sale process. Each asset must be evaluated on a case by case basis to determine what avenue, including the appointment of a Receiver, is best for that particular asset.

Problems that can be avoided through the appointment of a Receiver

The appointment of a Receiver can facilitate the following:

  • Provides the Court/Receiver the ability to sell real property "as is, where is" thus limiting exposure to the lender/servicer and the Receiver;
  • A Receiver, with Court guidance, can engage the leasing & sales brokerage community to implement the best value add strategy for asset preservation;
  • A Receiver can acquire, confirm and/or reinstate insurance (including WRAP policies);
  • Allows Receiver to hold assets to maximize value through improvements or through "time";
  • Can limit or avoid double transfer tax exposure through a one time receiver sale;
  • Can avoid having the lender be an "owner" (and thus, limits exposure and liability to the lender/servicer);
  • Provides experienced day to day management for the real property;
  • Allows for funding to complete projects through Receiver Certificates;
  • Does not need to disrupt on-going construction or business;
  • Encourages borrowers continued cooperation (motivated to see project through and avoid insolvency);
  • Does not waive lender's rights against guarantors (and such claims may be raised in the same action);
  • Gives lenders a non-judicial foreclosure "back door";
  • Provides for equitable powers of the Court usually beyond those of a Bankruptcy Court; and (most importantly)
  • Secures and maximizes the value of the asset.