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Lenders 360

Dead Debtor (tortoise) v. Living Lender (hare): Which One Correctly Values On-line Information?

Posted in Good Times for Lenders, Technology Notes, Tough Times for Lenders

The dead are beating their lenders in recognizing the value of, and then protecting, their on-line lives – I mean assets. Does the tortoise beat the hare (again)? Even when the tortoise is dead? This perspective rings out in this:

  • The Dead: on-line assets (accounts, sites and materials) are recognized as an important asset by executors, agents, guardians and beneficiaries; and trust and estate professionals are planning for the care of those assets
  • Their Lenders: on the other hand, lenders and their lawyers are not focusing on the ways technology is changing commercial real estate – such as the changes needed in their loan documents in order to appropriately include on-line assets (and access to them) as part of the loan collateral

In the March ’11 issue of Mortgage Tech Magazine, I wrote about a variance of this cognitive dissonance, where one group “gets it” (property owners) and the group financing it (lenders) seems to be blind on the ways that technology is changing commercial real estate.  And periodically here on L360, I offer up my thoughts under my “technology” category (over on the right side of this page). It jumped out to me again in the JanuaryFebruary 2012 issue of the ABA’s Probate & Property magazine, which is published by the section of the American Bar Ass’n populated by trust and estate lawyers and by real property lawyers. The magazine has in interesting article by Gerry Beyer and Naomi Cahn on estate planning for on-line accounts and other “digital assets.”  The article acknowledges that it is a sequel to a paper in 2011, and refers to an influential blog post in 2010. Separately, earlier this month, Tom Mighell and Dennis Kennedy covered this topic in their Kennedy-Mighell Report podcast.  This is an “old” topic for Dennis – one of my favorite pieces on estate planning and digital assets is a 2010 piece by Dennis Kennedy in the ABA”s “Law Practice Today” monthly webzine. In contrast:

  • where is all of the writing and information on “how” technology is changing legal issues in commercial real estate finance?

Clearly, the trust & estate lawyers (in their care for the dead) are way ahead of the real estate finance lawyers (in their care for the [living] lenders). Long live the dead tortoise. Please post your comments below.