O’Connor Cochran LLP offers its lender and servicer clients an eBook written by its partners called, “Structuring and Enforcing Commercial Real Estate Loans In California – A Practical Guide.”
Our book is a handy reference that outlines, in plain English and in question-and-answer format, the basics of California law governing commercial real estate loans. Each question is presented simply, with a short answer, then followed with a longer explanation of the key legal variables.
Our book discusses Deeds of Trusts, Assignments of Rents, Guaranties, and how to structure them. It also discusses remedies, including receiverships, pre-judgment attachments, workouts, foreclosures, pre-negotiation agreements and other methods available to lenders and servicers seeking to enforce their loans. It also summarizes many specific issues that are different in California than in other states, such as the fact that a plain pre-dispute jury trial waiver is not enforceable, and provides solutions to reach the desired goal of enforcing the parties’ agreements.
Topics covered in our eBook include:
- Is judicial foreclosure available as a remedy in California? How long does it take?
- Is nonjudicial foreclosure available as a remedy? How long does it take?
- Can a lender pursue judicial foreclosure and nonjudicial foreclosure simultaneously?
- For a lender seeking to enforce a commercial real estate loan in California, are there any exceptions to the “one-action” and “security-first” rules?
- Do Section 2938 rent demands under the Assignment of Rents given to either the borrower or the tenants violate the one-action rule? Do they bar a deficiency judgment against the borrower?
- What happens to the rents collected by the lender pursuant to a Section 2938 rent demand or other enforcement action?
- If the lender must pay the costs of protecting and preserving the property out of the rents and profits it receives, does that prevent the lender from seeking a receiver?
- Does California law provide a guarantor with any special rights and defenses that are unique to guarantors?
- Does California law provide a guarantor with any defenses based on the one-action, security-first and anti-deficiency rules?
- Are waivers of a guarantor’s rights and defenses valid under California law?
- Will California courts enforce “sham guaranties”?
- Is there anything that a lender can do when the loan is originated to protect itself against a guarantor’s subsequent assertion of a sham guaranty defense?
- How can a lender protect itself against attempts by the borrower or the guarantor to circumvent the terms of a pre-negotiation agreement?
Copies of our eBook are made available at no charge to our clients and potential clients upon request to one of our partners.
℘ See also: OCC Presentations to Clients