Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

FeaturesThe Bankruptcy StrategistBankruptcyLitigation

Appointment of Receiver Under State Law No Assurance Receiver Will Stay If Ch. 11 Filed

By Andrew C. Kassner and Joseph N. Argentina Jr.
November 01, 2023

No sector is receiving more press about the impact of the rapid rise in interest rates than the commercial real estate industry. It seems like every day there is another article about the billions — or trillions — of dollars in debt that will mature over the next 24 months, secured by interests in real estate. For many properties, the owners' equity has been wiped out, and the lenders will be left to exercise rights to foreclose their collateral. An interim step in this process is often the appointment of a receiver to operate and or preserve the property during the foreclosure process. Many clients are not aware that the Bankruptcy Code provides that, upon the filing of a bankruptcy case, the receiver is required to give back possession of the mortgaged property to the debtor unless the lender obtains an order from the Bankruptcy Court excusing the receiver from this requirement. And most of the time, the lender does not want possession returned to the debtor that defaulted under the loan. So when can a receiver be excused from this requirement?

This decision regarding turnover ultimately involves whether the receiver or debtor is more likely to preserve and maximize the value of the property for the benefit of all creditors, not just the lender. The U.S. Bankruptcy Court for the Northern District of Illinois recently addressed this issue in In re Novus Structures, Case No. 23 B 6723 (Sept. 11, 2023), where a state court appointed receiver was not excused from turning over possession of commercial real estate property to the debtor that had filed for bankruptcy.

|

State Court Receiver Appointed In Foreclosure Litigation

According to the opinion, Novus Structures (debtor) owned a small apartment building with only three units and a two-car detached garage (property). The debtor was a borrower under a loan from J&D Commercial, LLC (lender) pursuant to a promissory note secured by a mortgage on the property and an assignment of rents derived from the property. The loan matured in 2019, and the lender initiated a state court foreclosure proceeding to collect the amount due.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Top 5 Strategies for Managing the End-of-Year Collections Frenzy Image

End of year collections are crucial for law firms because they allow them to maximize their revenue for the year, impacting profitability, partner distributions and bonus calculations by ensuring outstanding invoices are paid before the year closes, which is especially important for meeting financial targets and managing cash flow throughout the firm.

The Self-Service Buyer Is On the Rise Image

Law firms and companies in the professional services space must recognize that clients are conducting extensive online research before making contact. Prospective buyers are no longer waiting for meetings with partners or business development professionals to understand the firm's offerings. Instead, they are seeking out information on their own, and they want to do it quickly and efficiently.

Should Large Law Firms Penalize RTO Rebels or Explore Alternatives? Image

Through a balanced approach that combines incentives with accountability, firms can navigate the complexities of returning to the office while maintaining productivity and morale.

Sink or Swim: The Evolving State of Law Firm Administrative Support Image

The paradigm of legal administrative support within law firms has undergone a remarkable transformation over the last decade. But this begs the question: are the changes to administrative support successful, and do law firms feel they are sufficiently prepared to meet future business needs?

Tax Treatment of Judgments and Settlements Image

Counsel should include in its analysis of a case the taxability of the anticipated and sought after damages as the tax effect could be substantial.