
commercial real estate
Today’s borrowers in default or in danger of soon reaching that stage would do well to recognize that the current attitude among special servicers may well be: “What can you do for us?”
While having a CMBS loan transfer to special servicing works to a property owner’s benefit in many ways, special servicers today view the relationship with the borrower as strictly business. Even the trump cards borrowers may have held in times past, such as the threat of filing for bankruptcy, no longer apply, given the terms of the new-generation CMBS loan documents they signed when they obtained the mortgages.
“It would be a mistake for the borrower to come in and make threats. Special servicers have little discretion and authority and worry about being sued by holders of the trust. It is important for the borrower to understand that special servicers have a job to do, and the easiest action for them is moving to foreclosure,” warned attorney Stuart Saft, global real estate chair at Dewey & LeBoeuf.
Volume is not helping. Special servicers now have their work cut out for them. As of June 30, 2010, a full 12 percent of all outstanding CMBS loans were in special servicing, according to Fitch Ratings. This represents $92 billion (5,207 loans). The number of loans transferring to special servicing is “growing exponentially,” reported Fitch, which projects 15 percent of all outstanding CMBS will be in special servicing by year-end 2010.
To determine the best approach to working with their special servicers, commercial property owners need to understand what the specialists’ positions are. Typically, a CMBS loan is transferred from the master servicer, which in normal times services the loan, to the special servicer when one of three triggering events occurs: The loan defaults or is at least 60 days delinquent, the loan is in imminent default or the borrower is in bankruptcy. The special servicer is a specialist in handling defaulted loans, and, unlike the master servicer, has the power to change the loan terms.
The key point for borrowers to keep in mind is that the duty of the special servicer is to the trust that holds the loan and that originally securitized the CMBS. Special servicers are usually appointed by the holders of the lowest-rated tranches of the CMBS, and are governed under the trust’s pooling and servicing agreement, usually to maximize recovery on behalf of all the bondholders based on analyzing alternatives using net present value. “Special servicers will always act in the best interests of their bondholders (CMBS loans) and will pursue any course of action to that end,” said Jeramie Concklin, CEO of Guardian Solutions, a commercial loan restructuring firm that represents commercial property owners nationwide in detailed negotiations with special servicers.
A number of options can be negotiated in the case of a loan in monetary or maturity default—or imminent default—once it has transferred to special servicing. The most favored resolution from the principal’s point of view is often to modify the loan to more favorable terms so as to be able to hang on to the real estate. According to Fitch, the vast majority (77 percent) of loans resolved in the first half of the year were returned to the master servicer.
However, the more desirable outcomes for borrowers compose only a minority of loan resolutions, according to Trepp L.L.C. (see “Frequent Foreclosures” at left). For example, only 27.9 percent of loans in special servicing are modified, whereas almost 55 percent will be resolved via either foreclosure or REO, according to Paul Mancuso, vice president of product management for Trepp.
There are certain approaches commercial property borrowers can take when negotiating with special servicers. “An important point to keep in mind while conducting negotiations with special servicers is to demonstrate that the borrower’s proposal is in alignment with the special servicer’s fiduciary responsibility to the bondholders to maximize the best possible financial outcome for the bondholders,” said Concklin.
Indeed, special servicers will not readily grant whatever resolution the commercial property owners request. “You have to prepare a compelling case for the special servicers to accept. For example, just because you have funds on hand for a discounted buyout of the note does not mean the special servicer will agree to it. The discounted buyout proposal would have to be better than the alternatives he has in his playbook from the bondholder’s perspective,” said Concklin.
Consequently, rather than approaching the special servicer with a simple request, it is important to present a strong business plan, including appraisal. “The special servicers are dealing with so many requests for loan documentation that they will have no time or inclination to come up with a business plan for you,” said Christine McGuinness, partner in the law firm of Schiff Hardin. McGuinness added that borrowers also often need to forego something in return, such as future upside on the property or additional equity paydown, in order to obtain loan modification. “It is very rare that special servicers will just modify the loan,” she said.
It is also critical that commercial property owners examine in advance their exposure under the loan documents and third-party agreements, said Jim Beard, partner in the law firm of DLA Piper L.L.P. The first question to ask in the documents review is whether the borrower or principal executed a repayment guarantee, which makes them liable for repayment of the debt, said Beard. More important, the principal needs to discover what are the carve-outs that are excluded from the non-recourse terms of the loan. The carve-outs that would render principals personally liable for damages and repayment of the entire loan could include filing for bankruptcy or contesting a mortgage foreclosure, said Beard.
Another risk in filing for Chapter 11 bankruptcy protection nowadays is that the special servicer could file a motion to lift the automatic stay on the foreclosure action and change the proceedings to a Chapter 7 liquidation—which accelerates the lender’s ability to foreclose on the property, Saft warned. “The leverage (gained by filing for Chapter 11 today) is very limited,” he noted. Only 5.1 percent of CMBS loans in
special servicing are resolved via bankruptcy, according to Trepp.
On the bright side, lenders are said to prefer to avoid foreclosure if they can help it, since real estate ownership is not their line of business. Also, bondholders of the lowest CMBS tranches, who have the final say, are often reluctant to take the foreclosure route as that may not result in optimal recovery value. The B-piece holders of the loan “are more interested in maximizing the value of the loan so that they do get paid,” affirmed McGuinness. It is difficult for the owner to find out who the Bpiece holders are and their positions, but “you can know pretty quickly if the special servicer has a deal with you, or looks over your business plan,” she noted.
Generally, special servicers appear more likely to take a strategic, long-term view on resolving distressed loans than banks, whose modus operandi may be a clean balance sheet, noted Michael Fay, president of Colliers International, South Florida, which consults for special servicers. And Beard advised that if the principal knows there is no hope for the property, it is better to convince special servicers from the beginning to take back the title through a deed in lieu of foreclosure so that both parties can avoid the troubles of foreclosure.
By Keat Foong
