Real Estate Advisor Law Blog

Real Estate Advisor Law Blog

Tag Archives: Finance Issues

Losing Priority: The Risk of Noninsider Equitable Subordination

Posted in Bankruptcy/Creditor's Rights Issues, Finance Issues, Litigation Issues
Following an era of relaxed standards for issuing loans, lenders must be aware of a bankruptcy court’s ability to subordinate liens for equitable reasons. On May 13, 2009, in In re Yellowstone Mountain Club, the Bankruptcy Court for the District of Montana issued an order subordinating the secured lender’s $232 million claim below the (i) debtor-in-possession… Continue Reading

Another Thought On SNDAs.

Posted in Finance Issues, Leasing Issues
When representing a tenant, I always want an SNDA so that if the landlord defaults on its mortgage my client is assured that it can remain in the space as long as there are no tenant defaults.  When representing a landlord, it is becoming increasingly more difficult to get lenders to make any change to… Continue Reading

“Back In My Day Perpetual Meant Forever. Today, Five Years”: New 9th Circuit Law Interpreting Perpetual Letters of Credit

Posted in Finance Issues, Legislative Update
A perpetual letter of credit (LOC) does not last as long as you might think.  In physics “perpetual motion” is movement that goes on forever.  Commercial law is less ambitious.  Under U.C.C. § 5-106(d), a “perpetual” LOC expires after five years.  To further complicate the issue, a recent case from the 9th Circuit held that… Continue Reading

Will the Treasury’s New Initiative Broaden the Home Loan Modification Program?

Posted in Finance Issues, Legislative Update
The Home Affordable Modification Program (HAMP) was announced on February 18, 2009.  The first set of details were published by the Treasury Department on March 4, 2009.  Those details were revised and republished on April 21, 2009 and updated on June 8, 2009. The mission of the HAMP is to save risky home mortgages from… Continue Reading

Hurry Up and Wait

Posted in Finance Issues, Legislative Update
So you finally got a buyer for your house after having it on the market for nine months. As frosting on the cake the buyer says she can close within a week.  Great! Right? Well, if your buyer made her mortgage loan application on or after July 30, 2009, it may take a little longer.   On… Continue Reading

Foreclosure Rescue Scams Proliferating

Posted in Finance Issues, Litigation Issues
Where there’s trouble, there’s trouble. As a growing number of homeowners have defaulted or neared default on their mortgages, numerous schemes have cropped up taking advantage of their willingness to do whatever it takes to save their homes.    The Court in State v. Cicerchi, 2009 Ohio 2249 (Ohio Ct. App. 2009) took the time to… Continue Reading

Follow the (Note’s) Instructions

Posted in Finance Issues, Litigation Issues
A helpful reminder to lenders – if you’re going to foreclose, read the note and mortgage and do what they say. In a recent Ohio Court of Appeals case, the bank failed to follow these instructions and was rewarded by having its foreclosure complaint dismissed.  The borrower missed a payment on her mortgage and the bank… Continue Reading

Protecting Tenants at Foreclosure

Posted in Bankruptcy/Creditor's Rights Issues, Finance Issues, Legislative Update
The rights of owners and tenants in post-foreclosure property have been dramatically altered by new legislation signed by President Obama. On May 20, 2009, President Obama signed the “Helping Families Save Their Home Act,” which contained provisions to aid renters whose landlords go through foreclosure. Title VII of the Helping Families Act (the “Act”) is entitled “Protecting… Continue Reading

Ohio Lenders Precluded from Bringing Third Complaint on Same Note

Posted in Finance Issues, Litigation Issues
  In U.S. Bank National Association  v. Gullotta, 120 Ohio St 3d 399, the Ohio Supreme Court decided that multiple actions under the same note and mortgage are subject to the two-dismissal rule and res judicata preclusion. The decision could have far-reaching implications for lenders seeking to workout loans with troubled borrowers.    The history of the… Continue Reading

Ohio Foreclosures – Legislative Update

Posted in Finance Issues, Legislative Update
Two foreclosure related bills of great interest to both borrowers and lenders were introduced in the Ohio House of Representatives in February but are moving slowly, if at all, through the legislative process.  One of the bills is too bold to have a serious shot at getting signed by Governor Strickland, but the other is… Continue Reading

Sunny and Warm in Ohio

Posted in Finance Issues, Real Estate Tools
Monday marked the fourth straight day in Ohio of sunny skies and temperatures in the 80s.  That’s quite remarkable given that we are just five weeks into spring and the summer solstice is almost two months off.   The unusually hot weather was almost nice enough to make one think of being on a Florida spring… Continue Reading

Cuyahoga County’s New Land Bank – A Step Toward a “Sustainable Cleveland”

Posted in Finance Issues, Legislative Update
As I mentioned in an earlier post, Ohio Governor Ted Strickland recently signed legislation creating a new “land bank” in Cuyahoga County. Like a dose of cold medicine, Senate Bill 353 is not a cure for the foreclosure crisis, but it should help solve one of its primary symptoms – abandoned and vacant housing.  More than… Continue Reading

Ohio Supreme Court Allows Collection of Attorney Fees on Mortgage Reinstatement

Posted in Finance Issues, Legislative Update
Mortgage lenders scored a victory at the Ohio Supreme Court in the recently decided Wilborn v. Bank One Corporation, 2009 Ohio 306 (2009). In Wilborn, eleven borrowers brought suit against their lenders.  Ten of the eleven cases (the eleventh did not involve a reinstatement provision and was decided differently) went like this: Lender brought foreclosure action against… Continue Reading

Ohio’s Foreclosure Prevention Task Force – Mission Accomplished?

Posted in Finance Issues, Legislative Update, Litigation Issues
 In March 2007, Governor Strickland created the “Ohio Foreclosure Prevention Task Force” to address the ever-increasing number of foreclosures plaguing the state. The group’s final report, issued in September 2007, identified 27 recommendations for state action. Since the rise in foreclosures likely won’t be going away anytime soon, perhaps it’s appropriate to take stock of Ohio’s progress… Continue Reading

The CRO Program: Landowner and Lender Responsibility when a Regulated Facility Closes

Posted in Environmental Issues, Finance Issues, Legislative Update, Litigation Issues
On January 27, 2009, the front page of the Columbus Dispatch read, “44,000 Jobs Gone.”Other articles report of companies shuttering their facilities or filing bankruptcy. As one affected employee interviewed for the Dispatch article succinctly stated, “It’s scary.” And it’s no less scary for landowners and lenders dealing with properties that have been abandoned.  Landowners whose tenants… Continue Reading

Lender Liability – Minimizing the Risk

Posted in Finance Issues, Litigation Issues
A side effect of the foreclosure crisis has been a growing concern among lending institutions over the possibility of “lender liability.” Lender liability encompasses any number of actions that may be asserted by a borrower against a lender based on either the lending process or final loan documents. Borrowers have been seeking new and inventive ways of avoiding foreclosure,… Continue Reading

Financing for LEED-Certified Buildings

Posted in Air Quality Issues, Environmental Issues, Finance Issues
If you are building new or renovating an existing building, you may have considered trying to obtain LEED certification for your project but decided after analyzing the cost that it was not within your budget. Well now, thanks to the Ohio Bipartisan Job Stimulus Plan (HB 554), LEED-certified projects may be eligible to receive funding. A little-known… Continue Reading