The Role of "Filtering" in Housing Affordability

Mezzanine loans have become the preferred vehicle for subordinate financing in real estate transactions. The repayment obligation is typically secured by a perfected UCC security interest in the mortgage borrower's equity interests. Counsel should have a thorough understanding of how the foreclosure remedy is exercised under Article 9 and the mezzanine foreclosure ramifications for the mortgage borrower, mortgage lender, and other parties to the transaction. Before commencing foreclosure, the mezzanine lender must review all relevant transaction documents, including UCC insurance policies. If the debtor "opted into" Article 8, the lender must locate the certificate. Counsel must understand the mortgage lender's rights and the rights of any senior mezzanine lenders, ground lessors, or other parties with interest in the underlying property. An intercreditor agreement will likely provide the most significant input into the timing and nature of remedies vis a vis other lenders. Article 9 provides that a public sale must be conducted in a "commercially reasonable" manner, with advance notice to all relevant parties under Sections 9-611 and 9-612. The public must have a "meaningful opportunity" for competitive bidding, requiring some form of advertisement or public notice preceding the sale. The location and manner of the sale should be appropriate to allow for public access to the disposition. Recent New York case law indicates that "commercially reasonable" may entail more stringent standards in light of foreclosure moratoriums and the continuing impacts of the pandemic on real estate properties. The mortgage may limit the transfer of ownership interests in the mortgage borrower to a "qualified transferee," generally defined as either the mezzanine lender itself or an institutional investor meeting specific requirements. This significantly restricts the potential universe of purchasers at a foreclosure sale, and the process of "qualifying" the winning bidder may inject uncertainty surrounding the ability of a buyer to close.

The CTA establishes beneficial ownership disclosure and reporting requirements for any newly formed and existing corporation, LLC or partnership which files formation documents in any state. Real estate counsel must understand the disclosure and other requirements of the CTA, including what constitutes a "beneficial owner" and the entities to which it applies. Any entity that has filed formation documents in any state is considered a "reporting company" for purposes of the CTA, subject to certain exemptions. Newly formed entities must submit a disclosure of its beneficial owners to FinCEN at the time of formation, and existing entities must file the disclosure within two years. A reporting company must also provide updated information to FinCEN within one year upon a change in beneficial ownership. Failure to comply with the new CTA reporting requirements will result in serious penalties. Failure to meet the reporting standards may result in civil penalties of up to $500 per day, and any individual who willfully provides false or fraudulent information may face criminal fines up to $10,000 and/or imprisonment for up to two years. The CTA adds a new layer of reporting and compliance requirements for lenders in real estate finance transactions. Lenders will need to reassess their AML protocols to better match the requirements of the CTA. Listen as our authoritative panel discusses the CTA, the new federal reporting requirements it imposes on borrowers, and the added due diligence issues it presents for lenders.

Most buildings we see today were designed and built at a time when technology was simple and unsophisticated. Fast forward to today and a combination of the Internet, building networks, the cloud and smart connected devices all delivering data to a new breed of data gathering and analysis platforms, allow us to operate assets at a new level of precision. How do I connect devices? What data is important, and how much data is too much? How do I differentiate between all the systems, and which should be integrated? Where do I find the expertise on best practices? This webinar will present insight from industry leaders @ the forefront of the smart building analytics revolution.

Data is the lifeblood of today’s commercial real estate industry. Everyone recognizes the value of data, yet business intelligence tools are notoriously complex to implement, difficult to maintain, and slow to prove themselves. So, how can CRE firms effectively leverage data to assess trends, analyze portfolios, maximize returns and minimize risk?