HARP – On This. . .

 2016 Updat

Are you planning to purchase, finance, develop or redevelop any of the following types of commercial real estate in the USA?

• Shopping Center
• Office building
• Large Multifamily/Apartments/Condominium Project
• Sports and/or Entertainment Venue
• Mixed-Use Commercial-Residential-Office
• Parking Lot/Parking Garage
• Retail Store
• Lifestyle or Enclosed Mall
• Restaurant/Banquet Facility
• Intermodal logistics/distribution facility
• Medical Building
• Gas Station
• Manufacturing facility
• Pharmacy
• Special Use facility
• Air Rights parcel
• Subterranean parcel
• Infrastructure improvements
• Other commercial (non-single family, non-farm) property

A KEY element of successfully investing in commercial real estate is performing an adequate Due Diligence Investigation prior to becoming legally bound to acquire or finance the property.  Conducting a Due Diligence Investigation is important not just to enable you to walk away from the transaction, if necessary, but even more importantly to enable you to discover obstacles and opportunities presented by the property that can be addressed prior to closing, to enable the transaction to proceed in a manner most beneficial to your overall objective. An adequate Due Diligence Investigation will assure awareness of all material facts relevant to the intended use or disposition of the property after closing. This is a critical point. The ultimate objective is not just to get to Closing – but rather to confirm that the property can be used or developed as intended after Closing.

The following checklists – while not all-inclusive – will help you conduct a focused and meaningful Due Diligence Investigation.

The law is clear.  The so-called “Land Patent” defense does NOT work.

This is not earth shattering news, but it is a reminder that defenses to mortgage foreclosure actions must be well grounded in fact and warranted by existing law or a good faith argument for the extension, modification or reversal of existing law. In simple terms – defenses must at least be legally plausible.

One of the more bizarre defenses raised by a small group of defendants who refer to themselves as “sovereign citizens” is a so-called “land patent” defense. It does not work – at least not in Illinois.

In a long, unusual, and fairly cumbersome opinion filed by the Illinois Appellate Court on September 23, 2013, in the case of Parkway Bank and Trust Company v. Victor Korzen and Tomas Zanzola, 2013 IL App (1st) 130380, the First District Appellate Court addressed “a number of tactics a small number of debtors use to both delay the ultimate resolution of cases against them and to use the legal system for improper purposes. Some people might classify those who engage in these tactics as “sovereign citizens”, but regardless of nomenclature, their methods are not only counterproductive, but detrimental to the efficient and fair administration of justice. A recent New York Times article noted the FBI has labeled the strategy as “paper terrorism”.

I am a strong proponent of raising every viable defense to a mortgage foreclosure when representing a defendant. There are many defects in mortgage loan files, and many more defects arising from faulty loan administration, defective securitization of syndicated loans, and breaches of public policy and black letter law by lenders. Some lenders have fraudulently manufactured and forged missing assignment documents and other documents to fill material document gaps. There are legitimate defenses that can be raised and valid lender liability claims that can be pursued in many circumstances if the situation warrants and the resources are available to mount a strong defense and counter-attack.

That said, not every so-called “defense” is legitimate, and some are just plain goofy.

Among the illegitimate “defenses” is the claimed “land patent” defense. It simply does not work. It is not well grounded in law, and there is no good faith argument for the extension, modification or reversal of existing law that courts in Illinois – or probably anywhere in the United States – are likely to recognize as having been pursued in “good faith”. As a consequence, if you raise the “land patent” defense in defense of an Illinois mortgage foreclosure action, you are going to lose, be sanctioned, and perhaps be prosecuted for committing a Class 4 Felony.

In this short post, I do not intend to give an in-depth description of the (faulty) theory behind the land patent defense, but I will direct your attention to paragraph 72 et seq. of the Parkway Bank v. Korzen case, referred to above. Read this case if you are thinking about using the land patent contrivance as a “defense”, particularly in an Illinois mortgage foreclosure action. It does not work.

“How can you have any pudding, if you don’t eat your meat?”

Pink Floyd

Assignments of Rents.

Here’s a topic that doesn’t pop up in light conversation very often.

Assignments of Rents.

Virtually every commercial real estate financing includes an assignment of rents – either as a separate instrument, or in the mortgage, or both. We think we know what it means, and what protection in provides. But do we?

Assignments of Rents.

What could assignments of rents possibly have to do with Pink Floyd?

It has been suggested on occasion, only half-jokingly, that