Obligations reduced to a promissory note are often accompanied by a written guaranty. The law treats the guaranty as an independent obligation. A case recently decided by California’s First District Court of Appeal —...more
Many commercial real estate loans are “non-recourse,” which means in general terms that foreclosing on the real estate securing the loan is the lender’s sole remedy for a borrower’s failure to repay the loan. The lender is...more
Below is an overview of the key terms and provisions in intercreditor/subordination agreements governing the relationship between a senior secured lender (the “Senior Lender”) and a mezzanine lender (the “Mezz Lender”)....more
In a decision issued on February 22, 2016, the Supreme Court of Georgia ruled that a guarantor can waive by contract the requirement for a lender to obtain confirmation of a foreclosure sale before pursuing the guarantor for...more
So, What can a Lender Count on from a Guarantor? - In 1933, the North Carolina legislature in reaction to the Great Depression enacted certain defenses against alleged abuses by lenders exercising remedies under...more
The North Carolina Supreme Court recently handed down the final word in a dispute over whether guarantors get the benefit of the state’s anti-deficiency statute after the lender bids on and buys the real property at a...more
In This Issue: - Another Perspective - James C. Cherry, Chief Executive Officer, Park Sterling Bank: With more than three decades of experience in banking in North Carolina and Virginia, Park Sterling's CEO James C....more
For years, the typical post-default strategy of secured lenders has been to foreclose the collateral through the power-of-sale contained in the deed of trust, credit the foreclosure proceeds to the outstanding loan balance,...more
A question that continually arose during the foreclosure deficiency actions that were spurred by the recent “Great Recession,” was whether or not a guarantor on a loan could raise the “defense” offered in N.C. Gen. Stat. §...more
I have recently received numerous questions from commercial lender clients regarding structuring and enforcing commercial real property loans involving revocable trusts. Their concerns have largely centered on how to...more
Fall is football time. And as every football fan knows, not every player on the line of scrimmage is an eligible receiver. Imagine how dramatically it would change the game if the entire offensive line were eligible to catch...more
The Supreme Court of Washington has upheld a lender’s right to pursue a deficiency judgment against a guarantor following a nonjudicial foreclosure of collateral under Washington’s Deed of Trust Act (the “Act”). The court’s...more
By most accounts, a decision from the Georgia Court of Appeals last September represents a sea change in the law governing judicial confirmation of foreclosure sales and post-foreclosure deficiency claims. Indeed, the Court's...more
Lender liability claims generally arise in one of following contexts: (i) claims seeking recovery of damage or "leverage" to accept discounted payoffs; (ii) counterclaims to foreclosure/receivership/guarantor actions; or...more