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Strategies and Drafting Techniques for Loan Workouts and Enforcement In 2022
This article describes a series of strategies and drafting techniques relevant to commercial real estate loan workouts and enforcement. The following is not a "how-to" primer on loan enforcement or restructuring the distressed loan. Instead this article identifies some of the current solutions and insights that have been observed, implemented and proposed during this pandemic-impacted workout cycle. These are "Real Estate Loan Enforcement Hot Tips for 2022."
Pre-Workout Agreement
Consider the article (also by this author) in the New York Law Journal (The 'Pre-Workout' Agreement in Loan Workout Negotiations (Sept. 17, 2019)) for a summary of the terms and provisions of the fairly market-standard or accepted pre-negotiation (or pre-workout) agreement. In short, by preserving in writing the status quo among the parties, that agreement is designed to: 1) protect the lender against post-default lender liability defenses and claims that purportedly arise during the course of discussions; and 2) pave the way for a risk-free negotiation, exchange of ideas, proposals and concessions and enhancements — none of which would be binding until a written agreement is approved and executed by all. (For a rather fulsome discussion of the exchange of concessions for enhancements in the distressed loan workout, see the article by this author, Exchange of Enhancements for Concessions — Insights into the Modern Loan Workout, appearing in the New York Law Journal on June 19, 2020.)
The pre-workout agreement is the borrower's "ticket for admission" to workout discussions with its counterparties. So, here's the "Hot Tip":
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.