by Jerome S. Cohen - Opinion & Commentary
For real estate investors, Chapter 11 can be a lifesaver - a proverbial "fresh start" from an otherwise seemingly impossible situation - which gives the debtor a respite from creditors. And, given the nature of the current economy and the challenges that confront major companies and individuals in the real estate industry, federal bankruptcy law is possibly a creative solution that can benefit real estate professionals, including: lenders, borrowers, developers, brokers, appraisers, accountants and other advisers. This point - that filing for bankruptcy is a beginning, not an end - bears repeating, because real estate investors deserve the right to work with experienced attorneys who understand this intricate area of law, a discipline that allows companies to often reemerge towards success.
First, the Bankruptcy Code can be a company's sole means of salvation. Hostess, The Los Angeles Dodgers, MGM, Blockbuster, and Trump Entertainment Resorts - all of these businesses have used bankruptcy as a way to regain balance and develop a blueprint for success. Bankruptcy can offer a precious commodity: time. For time gives the debtor the chance to reorganize its finances with a "breathing spell" from creditors.
Second, a bankruptcy filing gives a real estate investor flexibility. The debtor can design new financing for the bankruptcy court's consideration and approval. The judge has wide discretion to fashion a new and practical relationship between borrower and lender.
Third, with plunging real estate values, the debtor can call on the Bankruptcy Court for a "stripdown" of a lender's secured claim. For example: if an owner buys property for $1,000,000 and puts $300,000 down, the bank has a claim for $700,000 and is oversecured. When the property value falls to $600,000, the bank's claim of $700,000 is split into two parts, the secured part equal to the value of the property or $600,000.00, and the unsecured part, $100,000 that attaches to no collateral value. The debtor can generally pay a very small distribution on the $100,000, ,and go forward with easier debt service on the lower secured claim of $600,000. In turn, the lender has devices and procedures for its protection.
In a nation of property owners calling banks for "modification," a process in which the lender acts as a prosecutor and judge, and is so overwhelmed that it may lack the human resources to handle the flood of calls, the owner sees delay and uncertainty - which makes bankruptcy more compelling.
These points are not purely academic. Bankruptcy law - particularly for real estate investors - is of vital importance. A recent ruling underscores the complexity and ongoing development of bankruptcy issues. This case (Philadelphia Newspapers) upholds a debtor's efforts to prevent its secured lenders from credit bidding in connection with an auction held under a plan of reorganization. The economic effect of this legal development can be a benefit for borrowers and a challenge for secured lenders, especially in an era of commercial mortgage backed securities in which a consortium of lenders may not agree upon or be able to make a cash bid.
Real estate investors must be aware of the opportunities available through the Bankruptcy Code. Navigating this complex discipline depends on wise counsel and effective representation. To keep this ship afloat - to enable investors and companies to reach a more ideal destination - requires a thorough understanding of the obstacles (and opportunities) that define our current economy. With resolve and insight, real estate investors can use the Bankruptcy Code for their own improvement.
Published: December 16, 2011
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