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OCC’s Commercial Real Estate Lending Handbook: Misses the List on Legal Issues

Posted in Articles, Good Times for Lenders, Guaranty Issues, Market Trends, Remedies, Technology Notes, Training

Over the last few weeks, I’ve commented on the new version of the OCC’s Commercial Real Estate Lending Handbook (I give it a gentlemen’s C); and I listed a few legal topics that deserve some guidance from the OCC. “Guidance” could even merely be a list of important topics (ending with a warning that the… Continue Reading

OCC Lending Handbook Needs Parenting on Important Legal Topics

Posted in Articles, Training, Workout Issues

In an earlier posting, I reviewed the OCC’s new Commercial Real Estate Lending handbook .  The purpose of the handbook is to give parenting – I mean guidance – on risks inherent in commercial real estate lending.  On legal topics, the handbook takes a mind-boggling approach: it swings from legal light, to “I know it when I… Continue Reading

Grading the Examiners: OCC’s Commercial Real Estate Lending Handbook gets a “C”

Posted in Good Times for Lenders, Guaranty Issues, Insurance & Environmental Risks, Remedies, Training, Workout Issues

Last month, the Office of the Comptroller of the Currency published the Commercial Real Estate Lending handbook (August 2013).  The 128 page handbook gives guidance to bank examiners and bankers on risks inherent in commercial real estate (“CRE”) lending.  It replaces a 95 page version published in 1995 (and revised in 1998). For this new school year… Continue Reading

Real Estate Title Review: Don’t Miss These Stealth Restrictions

Posted in Good Times for Lenders, Insurance & Environmental Risks, Training

In many cities, urban growth now fills the farmland that once surrounded Navy and Air Force airfields.  Real estate development and finance near Navy and Air Force runways, however, requires special attention to a special set of restrictions called “AICUZ.”  These Department of Defense regulations severely restrict land located near military runways.  It is easy… Continue Reading

What Law to “Choose” in Commercial Mortgage Loan Docs? Simple.

Posted in 1 Guest Writers, Good Times for Lenders, Training, Workout Issues

Provisions in commercial mortgage loan documents,  where a particular state law is “selected” as the governing law, can drive a deal into a ditch, and take a good (or growing) lending relationship into the emergency room.  In many situations, this topic is a good example of over-thinking, and perhaps over-lawyering. Simply stated, which of these two… Continue Reading

Hide and Seek: Service of Process as a New Loan Provision

Posted in Good Times for Lenders, Remedies, Training, Workout Issues

Lenders are refreshing their mortgage loan documents with provisions based on the “lessons learned” during the recent (continuing?) economic experience.  One change is to add a service of process provision. The change is based on this basic lesson learned: when the tough times hit, borrowers and guarantors sometimes are hard to find. A few simply… Continue Reading

Construction to Permanent Loan on the Return: Tips on Due Diligence and Loan Documents (part 1)

Posted in Good Times for Lenders, Market Trends, Training

Credit seems to be more available for commercial real estate.  For example, I know of one commercial real estate lender working on a construction to permanent loan program.  This type of lending blends two types of loans: a construction loan to build the project and a term loan to finance it once the project hits… Continue Reading

Lender or Servicer Looking to Follow Litigation Trends & Cases? Follow the “Financial Appellate Voice”

Posted in Good Times for Lenders, Tough Times for Lenders, Training

David Johnson and Joe Regan are sharing their knowledge and experience in the Financial Appellate Voice, a new blog focusing on litigation involving the financial services industry in Texas. They start strong with a webcast and posts on these topics (these are just a few that jumped out at me): a webcast with an update… Continue Reading

Lenders & Leases: Spotting a “Troubled” Tenant – the need for “forensic” leasing

Posted in Good Times for Lenders, Tough Times for Lenders, Training

Whether you’re a loan originator, or a loan servicer, reviewing a commercial lease (or amendments) becomes more challenging in tough real estate markets simply because there are more tenants in distress – and you need to identify them. So, are there lease provisions that could indicate a distressed tenant? Below  is a short list of… Continue Reading

Minority Owner Exiting an Under Performing Deal? Don’t Need Lender Approval? Right . . . Wrong (or “oops”)

Posted in Guaranty Issues, Tough Times for Lenders, Training

People don’t “connect” their ownership (even a minority ownership) with their liability under bad-boy or non-recourse carveout agreements (whether in the form of an indemnity, or as a guaranty).   So, minority owners often transfer ownership without getting a release from bad boy liability .  It could be a costly mistake. With deals under water… Continue Reading

When is Insurance Really NOT Insurance? When the “agent” really is NOT an agent

Posted in Good Times for Lenders, Insurance & Environmental Risks, Training

This seems to be insurance week for me. Later this week, I’ll jump into a recent court case that recently hit the headlines. Today, however, I received an e-mail warning of the POSSIBLE unauthorized issuance of property insurance polices by “an unathorized third party purporting to represent the insurers listed below and not to policies properly issued by the… Continue Reading

Buying Commercial Mortgage Loans isn’t Rocket Science? Right. Unless You Overlook the . . .

Posted in FAQs, Tough Times for Lenders, Training

Buying a commercial mortgage loan is NOT rocket science. There are, however, some very basic aspects of a mortgage loan that should be included or addressed in the purchase of the loan. I list a few of them below. But before we get to them, ask yourself  the question that scientists ask all the time: “what… Continue Reading

Enforceability of Due-on-Sale Clauses: The Case for Collective Amnesia

Posted in Good Times for Lenders, Market Trends, Training

I’ll admit it: I’m old and getting older. This hit me earlier this week as I argued  with a lawyer about the enforceability of due-on-sale clauses in commercial mortgages.  The conversations boggled my mind, because the debate was “settled” in 1982 when Garn-St. Germain (citation below) was enacted – and the debate ended: due-on-sale clauses… Continue Reading

Why the Co-lender Train Wreck? Lenders Used Wrong Agreement

Posted in Good Times for Lenders, Tough Times for Lenders, Training, Workout Issues

Train wrecks draw a crowd.  Look at this old film from the 1913 California State Fair (click the text).       1913 Train Wreck                             Unfortunately, many co-lender structures (secured by distressed commercial real estate) look exactly like this train wreck…. Continue Reading

Lessons Learned: More Tips on Topics to be Included in Loan Documents (& Modifications)

Posted in Market Trends, Training, Workout Issues

Periodically I touch on topics that could be, or should be, covered in loan documents – either when the loan is initially closed and funded, or when the terms of the loan are revisited during an extension or a restructure (collection of blog posts on "lessons learned" [it is a long list]).    Here are… Continue Reading

More Trouble: Will Record Online Sale Numbers Transform Sticks & Bricks Retailing in 2012? I say “yes”

Posted in Market Trends, Technology Notes, Training, Workout Issues

2012 should be the year when online sales broadly impacts "how" retailers view and use their "physical" stores.  This will impact both the owners AND the lenders. Record online sales point to the need (RIGHT NOW) to take a different approach in reviewing and approving retail leases – which for lenders with shopping center and… Continue Reading

Thanksgiving Reflections: ACC Meeting brings 21 Good “Ideas” – but 1 is GREAT!

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

Thanksgiving week is a good time to take a breath, relax and reflect – which is what I offer up here: It also brings to end the industry meeting circuit for 2011. Fred Krebs has a nice posting on the Association of Corporate Counsel blog. As his takeaway from the ’11 annual meeting of ACC, his… Continue Reading

Leases, Lenders & Letters of Credit: Lenders Taking New Approaches With Tenant Letters of Credit (lessons learned)

Posted in Good Times for Lenders, Tough Times for Lenders, Training, Workout Issues

We know commercial real estate is all about the rents – and the credit of the tenant, which some times is enhanced by the tenant giving the landlord a letter of credit. David Staas and Michael Thomas recently clued me in on several lessons learned by commercial mortgage lenders, on the topic of letters of… Continue Reading