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Substantive Non-Consolidation Opinion Letters: Advice for Bankruptcy Counsel

By Paul A. Rubin and Hanh V. Huynh

Substantive non-consolidation opinion letters have long been a regular “check-the-box” item in large commercial real estate transactions. While substantive consolidation jurisprudence has not changed materially over the past decade, these opinion letters should not be treated lightly by borrowers or their counsel.

Each loan transaction is unique, and each non-consolidation opinion letter should be given the same care and individualized due diligence to ensure that the opinion letter will serve its purpose. There are common issues and considerations arising in the substantive non-consolidation context that borrowers and borrowers' counsel would be well advised to anticipate. Failing to do so could delay the closing of the transaction, as lenders that require a non-consolidation opinion typically will not fund their loans without delivery of a satisfactory opinion.

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