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Full Recourse Enforcement of Non-Recourse Loans

By Paul J. Labov and Steven B. Smith

Two recent cases from Michigan could have far-reaching implications nationwide regarding the enforceability of non-recourse loans as fully recourse. Indeed, if the decisions in Wells Fargo Bank, N.A. v. Cherryland Mall Limited Partnership, 2011 WL 6785393 (Mich. App., Dec, 27, 2011) and 51382 Gratiot Avenue Holdings, LLC v. Chesterfield Development Company, LLC, et al., 2011 WL 6153023 (E.D.Mich., Dec. 12, 2011) are accepted in jurisdictions outside of Michigan, many non-recourse CMBS loans could very well be converted to recourse simply because a special purpose entity (SPE) requirement, such as insolvency by the borrower, has been breached. And guarantors, as a result, could face a flood of deficiency claims in respect to loans they believed to be non-recourse. Needless to say, CMBS lenders, borrowers and guarantors should take the time to understand the issues raised in these two Michigan cases.

Background on CMBS Transactions

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