January 2014

You are browsing the site archives for January 2014.

So you’re headed for receivership and foreclosure, when the borrower rep or your counsel asks, “What about a deed in lieu?” “I don’t know,” you think. “Getting a receiver appointed and foreclosing is what I’m most familiar with.” Fair enough. But the benefits of a DIL might surprise you. You just have to put a good agreement in place that protects you. (more…)

On December 17, 2013, the United States Court of Appeals for the Sixth Circuit issued an opinion in the matter of Grant, Konvalinka & Harrison, P.C. v. C. Kenneth Still, (Case No. 12-6374) resolving two bankruptcy issues of first impression for the Sixth Circuit. While there were several issues before the Court, the matters of first impression were (1) which party bears the burden of establishing the validity of a creditor’s security interest in a proceeding for relief from the automatic stay; and (2) whether a trustee may use hypothetical lien-creditor status and avoidance powers to oppose a motion for relief from the automatic stay even after the expiration of the statute of limitations to affirmatively pursue an avoidance action. (more…)

A. Statutory Overview

When foreclosing on commercial properties, lenders and servicers must assess the liabilities to which they may be exposing themselves under various state and federal laws and regulations. One such liability (that can often be overlooked) are the requirements imposed by the Americans with Disabilities Act (“ADA”) which, in certain circumstances, can paint a large target on the backs of “deep pocket” lenders who obtain title to commercial properties via a foreclosure or voluntary transfer. See 42 U.S.C. 12101, et seq. (more…)