The US economy is about to pay the butcher’s bill for a massive disruption of worldwide financial markets resulting from the elimination of the London Interbank Offered Rate, or LIBOR. And, we are doing this on purpose. It seems the denizens of the heights of our international financial fabric felt they had to do this in light of the discovery that a handful of bankers had unlawfully colluded to cause LIBOR to be mispriced for their personal advantage. As Captain Renault said, “I’m shocked, shocked!” This was so bad that we had to blow up the LIBOR index upon which trillions of dollars of financial assets are based? While bankers behaving badly is a problem, why are we punishing markets because our banking regulatory cadres failed to prevent bad behavior? At best, this is a monument to irrational rectitude.
Just a few short months ago we took on the breathtakingly ill-conceived Current Expected Credit Loss (CECL) standard that the Financial Accounting Standards Board (FASB) proposed to implement starting in 2020. CECL will require major shifts in the way lenders model, forecast and reserve for future losses. It would materially drive up capital requirements, impair earnings and ultimately drive spreads higher to the borrowing community. And by the way, it would be pro-cyclical. If we were actually going to do these things (and we shouldn’t), an unelected financial standard setting committee is surely the wrong party to hold the pen.
The lending community screamed bloody murder, and for good reason. Luckily, the small banking community was at the forefront on this cri de coeur. While the money center banks may be one of our pols’ favorite whipping boys, everyone in politics loves the small banker (visions of Jimmy Stewart dancing in their reptilian brains) because those bankers made loans to their constituents, support their local community and, oh, by the way, made significant political contributions.
In order to avoid burying the lead, let me tell you where I’m going here. The CRE securitization business is in trouble. We need to throw out what biologists call the punctuated equilibrium, where once a system initially stabilizes, it thereafter changes little and resists radical change. Elsewise, our business is at very material risk of irrelevance.
But to give you some time to mull all that over, let me set the table first. I’ve been worried…
Tim Sloan resigned as the CEO of Wells Fargo a few months ago. I had briefly worked with Tim and much admired him so, on a personal level, this was sad. Now, Mr. Sloan’s resignation might have been a compelling and obvious move in any crisis consultant’s playbook, so I get that – but – oh, the vilification!
This commentary is about the ease with which we now embrace vilification and the substitution of ad hominem attacks for policy discussion about ideas and about the danger this poses to capital market participants. Continue Reading
The annual June CREFC conference at the Marriott Marquis in New York City was slightly less well attended than Miami (well, no duh!), but low conference attendance and stormy weather didn’t stop over 400 people from attending Dechert’s annual party at the Knickerbocker. The market outlook from the commercial real estate finance crowd this year – perhaps – was remarkably positive given where we are in the cycle. Were we all trying to convince each other, or ourselves? Any unusual anxiety could, of course, be due to the thick fog and heavy rain but the conference itself felt a bit darker than in prior years because there are reasons for anxiety, right? This year, in addition to the tired sports analogies (how many 9th innings can there be?), there were multiple references to driving a car directly into a wall. That’s dark, man. Continue Reading
In an effort to advance the conversation around climate change within the CRE finance community, Jason S. Rozes and Nitya Kumar Goyal recently published Climate Change Impact on Commercial Real Estate Finance — What the Industry Needs to Know Today, which provides a great foundation for understanding how climate change affects our industry and identifies recent developments that require further discussion. Climate change, and particularly its intersection with commercial real estate, is a complicated issue that presents a range of threats and opportunities and we at Crunched Credit look forward to wading into it with you. For more information on this topic or other CRE finance matters, please read our previous post or contact Jason S. Rozes and Nitya Kumar Goyal.
Contagion, at least of the buggy sort, can make for a terrific, spooky movie. Remember Gwyneth Paltrow and Matt Damon in Contagion? (Spoiler alert – she dies early on.) Got to admit, I love The Stand and Captain Trips; we all love a good scare… in the movies. In reality, however, contagion means bad things are happening: Bubonic Plague, excess body piercings and the 24 hour news stories (in no particular order). Contagion is very scary. Continue Reading
A recent decision out of the District Court for the Southern District of New York may bring greater certainty to the interpretation of what constitutes a “financial institution” in connection with the safe harbor in section 546(e) of the bankruptcy code. The decision, In re Tribune Fraudulent Conveyance Litig., 2019 U.S. Dist. Lexis 69081 (S.D.N.Y. Apr. 23, 2019), addresses whether transfers are protected from avoidance under the section 546(e) safe harbor when a “financial institution” merely acts as a conduit and is neither the debtor nor the real party in interest that ultimately received the payment as a result of the debtor or the recipient being the customer of the financial institution and may undercut the practical impact of the Merit Management case. To read more about this decision, as well as the implications it may have on section 546(e) fraudulent transfer litigation, check out this Dechert OnPoint by Dechert’s Business Restructuring and Reorganization group.
Note: This was republished on June 6, 2019 to reflect factual updates.
Sutton 58 Associates LLC v. Pilevsky et al., is a New York case which gets to the heart of the enforceability of classic single-purpose entity restrictions in commercial real estate lending. At issue is how far a third-party may go to cause a violation of a borrower’s SPE covenants, and whether those covenants are enforceable at all.
A Defaulted Construction Loan and Frustrated Attempts to Foreclose:
Sutton 58 is a case involving a defaulted New York City construction loan consisting of mortgage and mezzanine debt provided by Gamma Real Estate. After a maturity default, Gamma’s attempt to foreclose on its equity collateral through a UCC foreclosure sale was hindered by the bankruptcy filings of the mortgage borrower and mezzanine borrower.
The borrowers were established as single-purpose bankruptcy-remote vehicles but subsequently acquired additional assets from one of the defendants (Sutton Opportunity), and took on debt from Prime Alliance (another one of the defendants – both controlled by the individual Pilevsky family defendants). Sutton Opportunity obtained a 49% indirect stake in each borrower as a result of the asset transfer. The additional assets and debt destroyed each borrower’s status as a “Single Asset Real Estate” entity under the Bankruptcy Code (or “SPE”), and allowed both entities to file a petition for bankruptcy. Both the transfer of assets and the transfer of indirect equity interests in each borrower violated separateness covenants in the mortgage and mezzanine loan documents.
I’m a great admirer of Jack Cohen and his periodic market commentary. I answered his last one and then after the two of us talked, we decided we’d publish them together as a duet. So here you go.