Foreclosures, Loan Modifications and Lender's Remedies

Our approach to modification, workout, foreclosure, and enforcement practice is to first understand what the client wants to achieve, then provide a document review, followed by a clear assessment of alternatives available, and then determine strategy and positioning with the client. We have no formulaic solution to every problems, although the goal is always to advance our client’s position. We enable our clients to act quickly to restructure terms or secure collateral without litigation where practicable.

We craft the best business solutions available. We fashion terms designed to keep the loan performance moving forward while providing the lender with additional means of quickly capturing collateral in the event of a renewed default (e.g., waivers of redemption, deed in lieu provisions, receivership provisions, guaranties, additional collateral, etc.) These remedies may not have been obtained upon loan creation, but can, in most cases, be obtained when restructuring. If the lender has made a business decision to restructure the loan, we document loan modifications and loan extensions, create A-B notes, and institute lockbox accounts, disposition plans, and other agreements appropriate to the loan transaction. We are familiar with servicing obligations and inter-creditor considerations that must be considered, and we work constructively with loan officers and in-house counsel to achieve our client’s goals.

When a loan or borrower appears beyond rescue, we provide a realistic litigation assessment. Prolonged litigation can extend non-performance, and we work towards cooperative turnover of collateral and/or an expeditious enforcement process. Deed in lieu transactions often become more likely when the borrower perceives aggressive enforcement. We have a reliable foreclosure procedure, leveraging associates and other professional staff members, supervised by experienced partners, to provide value-based services including preparation of nonjudicial foreclosures and pursuit of collection and cash control remedies. We locate and pursue alternative borrower assets, guarantor claims, and all avenues to collection. We regularly prosecute judicial foreclosures and have achieved the appointment of receivers in both judicial and non-judicial foreclosures.

We are also prepared to assist a lender in disposing of owned assets. For one client, we created an online auction bidding process that resulted in a highly successful realization of value. The auction site included access to title work, survey, and other due diligence items necessary to satisfy conditions of purchase.

We have successfully obtained dismissal of filings for bad faith and lift of stay orders. We have successfully captured rental income streams through rent assignment implementation, and litigated the rights to rents post-petition and post-foreclosure.