Services

Thompson Hine's Distressed Real Estate Response Team is comprised of experienced lawyers ready to assist with the unique issues facing lenders, credit enhancement providers, investors, issuers, servicers and special servicers of CMBS assets, creditors’ committees, debtors, borrowers, landlords, retailers and other tenants and other parties in interest throughout the country.

Experience With the Issues

Our team has the experience, including experience gained in prior down cycles, to address the numerous and complex issues that arise from distressed commercial real estate, such as:

• Counseling mortgage and mezzanine loan parties regarding imminent and actual defaults, including issues regarding imminent insolvency and insolvency
• Workouts, deeds in lieu of foreclosure and other consensual resolutions of loan defaults
• Litigation and settlement strategies, including arbitration, mediation and alternate dispute resolution
• Commercial real estate foreclosures, both judicial and non-judicial, including receivership proceedings
• Lender liability claims
• Real property acquisition and disposition, including under Chapter 7 and Chapter 11
• Financial restructurings, recapitalizations and other reorganizations of business entities
• Capital and equity markets issues, including swaps, repurchase agreements and equity holder disputes
• Bankruptcy issues; for example, as to retail bankruptcies:
• going-out-of-business sales
• reclamation claims
• assignments of leases in connection with Chapter 11 asset sales
• assumption and rejection of leases and reciprocal easement agreements
• other executory contracts
• administrative expense claims and claims for lease rejection damages
• cure amounts
• preference claims
• Auctions
• Tax issues
• Environmental clean-up and liability
• Termination or reduction in employee benefit services and fiduciary duties regarding employee benefits

Representative Matters

• Representation of a national equity investment fund holding a preferred equity position as to several underperforming multifamily projects in Florida secured by senior loans, including providing advice as to removal of managing members and negotiations with senior lenders.
• Representation of a New England-based life insurance company as national real estate loan workout counsel, providing independent oversight and advice throughout the country as to real estate workouts for loans closed by other counsel. Example: Deed in lieu of foreclosure for ground leased hotel on university campus.
• Representation of two bank groups in pre-bankruptcy workout with multi-state owner and operator of assisted living facilities. Alterra Healthcare Corporation (District of Delaware). This included coordination of pre-bankruptcy sales of multiple assets in various states that were negotiated and closed by borrower under terms of workout agreement.
• Representation of lender in Chapter 11 case filed by large home builder.
• Representation of lender concerning potential default and bankruptcy issues under acquisition and development loan agreement and revolving residential construction loan agreement for projects in New York, including application of New York mortgage taxes to mortgages securing revolving credit agreements.
• Acted as lead counsel for several New York-based thrifts in contested foreclosures of commercial mortgages securing multifamily and office space within New York City and its suburbs.
• Representation of servicers and special servicers of CMBS assets in connection with workouts and foreclosures, and REO asset management and sales.
• Representation of real estate advisers and mortgage REITs in the sale of distressed assets, including first mortgage whole loans and participations and mezzanine loans.
• Representation of lender as letter of credit provider in disposition of purchased bonds acquired with proceeds of draw on letter of credit following default of projects, including low-income housing tax credit projects.
• Workout counsel in early 1990s downturn for Equitable Real Estate Investment. Included workouts for individual properties and loan pools in all core property groups (retail, office, multifamily, industrial and hotels) ranging in loan size from $1 million to $500 million bankruptcies; foreclosures; short sales; equity participations; and REO asset management and sales.
• Representation of lender in workouts and nonjudicial foreclosures of single loans and loan portfolios secured by vacant and improved residential lots and subdivisions, and judicial confirmations to obtain deficiency judgments.
• Representation of lender in workouts and nonjudicial foreclosures of shopping centers and other commercial buildings and in UCC Article 9 foreclosures.
• Representation of real estate developer in U.S. Bankruptcy Court proceeding to eliminate tax liabilities that arose from foreclosure of non-recourse loans held by partnership entities. In re Pflug, 146 B.R. 687 (Bankr. E.D. Va. 1992).
• Representation of numerous real estate developers in connection with tax impact of workouts of distressed recourse and non-recourse loans.
• Representation of venture capital fund in connection with indemnity claims relating to a vapor extraction system against a former property owner in connection with property owner's bankruptcy.