Deeds in Lieu of Foreclosure of Commercial Mortgages: Borrower and Lender Concerns
Title and Other Due Diligence, Nonrecourse Carveouts, Competing Lenders, Bankruptcy Issues
Recording of a 90-minute premium CLE video webinar with Q&A
This CLE course will examine the issues presented when a lender takes a deed in lieu of foreclosure on commercial real estate. The panel will discuss the advantages of taking a deed in lieu, title concerns, addressing existing liens and other borrower financings, and nonrecourse carve-outs and other negotiating points to consider.
- Advantages of taking a deed in lieu of foreclosure
- Lender concerns
- Due diligence: assessing environmental issues, delinquent taxes, judgments, and other liens and encumbrances
- Subordinate liens are not wiped out: non-merger and other title endorsements
- Mezzanine and junior lenders: intercreditor agreement(s)
- Borrower concerns
- Continuing liability after the conveyance
- Liability to other lenders and creditors
- Key terms of a deed in lieu agreement
- Bankruptcy issues
- Tax issues
The panel will review these and other critical issues:
- What is the primary advantage to the lender of taking a deed in lieu of foreclosure?
- How can a lender retain the right to foreclose out junior lienholders after taking a deed in lieu?
- What are the key provisions that should be included in a deed in lieu agreement?
- Why is property valuation an important aspect of a deed in lieu transaction?
- How might the tax treatment of a deed in lieu transaction vary from a foreclosure?
Jason C. Bergman
Vice President & Senior Underwriting Counsel
Benchmark Title Agency
Mr. Bergman has nearly two decades of experience in the real estate/title insurance industry. Prior to joining... | Read More
Mr. Bergman has nearly two decades of experience in the real estate/title insurance industry. Prior to joining Benchmark, He was a Vice President and Underwriting Counsel for one of the nation’s largest title agencies. Before that, Mr. Bergman was title insurance underwriting counsel for First American Title Insurance Company in New York, and previously served as claims counsel for First American Title Insurance Company and Fidelity National Title Group. He is a three-term Chair of the New York State Land Title Association’s Law Committee, is Vice-Chair of the American Bar Association Real Estate, Condemnation, and Trust Litigation Committee’s Title Insurance subcommittee, and Co-Chair of its Mortgage and Foreclosure subcommittee.Close
Sills Cummis & Gross
Mr. Kakstys’ practice focuses on the acquisition, disposition and financing of commercial properties. He... | Read More
Mr. Kakstys’ practice focuses on the acquisition, disposition and financing of commercial properties. He represents owners of properties throughout the U.S. in connection with purchases and sales, with particular emphasis on shopping center transactions. Mr. Kakstys also represents institutional lenders in the origination of commercial mortgage loans for their securitization and balance sheet lending platforms. His practice encompasses financing a variety of property types throughout the country, including retail, multifamily, office, hotel and industrial assets, and he has experience with a wide array of financing structures and deal features, including subordinate and mezzanine debt, 1031 and reverse 1031 exchanges, leasehold mortgages, industrial development agency interests and tenancy-in-common ownership. Mr. Kakstys also has experience representing clients in connection with loan purchases, sales and modifications and commercial leases and subleases.Close
Mr. Viscount is a commercial lawyer whose practice focuses primarily on the representation of public and private... | Read More
Mr. Viscount is a commercial lawyer whose practice focuses primarily on the representation of public and private business owners, municipal entities and creditor groups in matters involving business, financial and real estate transactions, debt restructuring, workouts, bankruptcies, dispute resolution, and other complex commercial matters. He is a seasoned practitioner who employs a practical approach to develop creative solutions to address the needs of business owners of all types, especially financially distressed companies and their lenders, vendors, and owners.Close