Distressed Real Estate Alert

September 22, 2009

Authors:

Purchasing Notes Secured by Real Estate

Clifton M. Dugas, II
clifton.dugas@klgates.com
+1.214.939.4953

Eugene F. Segrest
gene.segrest@klgates.com
+1.214.939.4991

Matthew Lopez

Introduction
Many investors are once again looking to purchase real estate-secured notes at a
discount from face value in order to capitalize on the steadily declining real estate
values prevalent in todays market. If history is any indication of what we can
expect as a result of the current downturn (e.g., investors profits from the RTC days
of the 1990s), investors may indeed be able to profit from the downturn in todays
market and the resulting pressure on banks to get certain assets off their books.

matthew.lopez@klgates.com
+1.214.939.5683

K&L Gates is a global law firm with

lawyers in 33 offices located in North
America, Europe, Asia and the Middle
East, and represents numerous GLOBAL
500, FORTUNE 100, and FTSE 100
corporations, in addition to growth and
middle market companies,
entrepreneurs, capital market
participants and public sector entities.
For more information, visit
www.klgates.com.

Prior to closing on a typical real estate note purchase, an investor must determine,
through financial due diligence, (i) whether the borrower and/or guarantors of the
note being purchased have the financial capability to honor the note, or (ii) whether
the value of the collateral exceeds the amount paid for the note together with
incidental costs. Either or both of these questions must be answered in the
affirmative in a loan purchasers determination of whether the transaction will be
profitable and thus worth the risk of a borrower default. The investor must also
analyze the underlying collateral for title issues, lien priority, materialmens liens,
environmental and architectural concerns, etc., in preparation for ultimately owning
and operating the property, should the borrower default on the note and the investor
elect foreclosure as its remedy. While an investor seeking to purchase a single note
or a pool of notes may think of itself as simply an investor in the traditional, financial
sense of the word, it is essentially a mortgage lender, real estate purchaser, financial
analyst, real estate operator and due diligence expert all wrapped into one. A
successful purchaser of real estate notes must possess expertise in all of the
foregoing areas or be prepared to engage third parties who are experienced in such
transactions.
It is important to remember the parties goals as a backdrop to the note purchase
transaction. The ultimate goal of the party selling the note is either to remove a bad
asset (i.e., a defaulted, underperforming, or soon to be defaulted loan secured by real
estate) from its balance sheet or to sell the distressed loan (or even a fully performing
loan) at a profit. The purchaser in a note purchase transaction will seek to make a
profit by (i) receiving a payoff from the borrower in an amount exceeding the
purchase price of the note, or (ii) foreclosing on and liquidating or operating the
underlying real estate in manner that renders income to the purchaser that exceeds
the purchase price of the note.
The keys to limiting the investors liability during the note purchase process and
enhancing the likelihood of an eventual profit to the investor are through due
diligence and careful documentation of the transaction. An investor purchasing a
pool of real estate notes must analyze the transaction as though it were purchasing
the underlying collateral securing the notes. Considerations and issues differ
depending on the type of note and the type of collateral securing the note.
Moreover, engaging counsel experienced in these types of transactions may help
investors avoid potential liability. This alert includes a discussion of the various

Distressed Real Estate Alert

types of transactions an investor may expect to see

in this environment, as well as a general description
of the issues relating to real estate note purchases.

The Note Purchase and Sale

Agreement
The first step in a purchase of notes secured by real
estate is the negotiation of a note purchase and sale
agreement. The parties to a purchase and sale of real
estate notes should strive to use a contract tested in
previous transactions. The contract should be fair to
each party and should include all specifically
negotiated deal points.
Any investor should, through its counsel or
otherwise, make every effort to obtain as much
information as possible on the notes and the
documents governing the underlying loan before
executing the contract. The more information an
investor can gather at the outset of the process and
prior to entering into the contract, the better able it is
to evaluate any resulting implications and
incorporate them into its purchase price offer for the
notes, as well as mitigate the risk of reaching an
impasse (due to the necessity of a major purchase
price adjustment mid-contract) after incurring
significant due diligence expenses.
A well-drafted loan purchase and sale agreement is
the parties greatest tool in ensuring a successful
transaction. The contract should provide for the
sellers agreement to unconditionally sell the note
and transfer all governing loan documents relating to
the note, including, without limitation, the deed of
trust or mortgage encumbering the real property, any
assignments of leases and rents, any guaranties, and
any other documents securing the underlying loan.
Such a transfer obviously includes with it all of the
sellers rights to enforce the terms of the loan
documents and exercise all remedies against the
borrower, including, without limitation, the right to
foreclose on the real property collateral, commence
deficiency actions, and assert claims against
guarantors. Moreover, the contract should contain
provisions requiring the seller to fulfill various
obligations as a condition to the purchase, such as:
1. Clearly and specifically identify and deliver the
note, the deed of trust, the assignment of leases
and rents, the UCC financing statements, the

guaranty, the SNDA agreements and any other

documents and files relating to the note,
including the loan file and the correspondence
file;
2. Provide for an assignment of the original
lenders title policy coupled with an
endorsement bringing the policy up to date, as
well as copies of all exception documents
referenced in the title policy;
3. Provide for delivery of sellers existing survey
of the real estate collateral and state a
mechanism by which the investor can obtain an
updated survey, if necessary;
4. Clearly state the time for a feasibility study
period whereby the investor can adequately
conduct all due diligence and, if necessary,
terminate the contract without any liability
other than the independent consideration
bargained for under the contract;
5. Require the seller to deliver a certified payment
history related to the note through the closing
date; and
6. Contain a provision whereby the seller
represents and warrants, at a minimum, (i) that
seller is the current owner of the note and that it
has not been previously assigned, (ii) that there
are no unaccounted for escrow payments held
by seller, and (iii) that the note is free and clear
of all claims and liabilities.

Due Diligence Process

(a) Generally
The due diligence process is perhaps the
investors most crucial undertaking in connection
with the real estate note purchase transaction. It
is during this stage that the investor can truly
determine whether the price to be paid under the
contract justifies the risks associated with the real
estate note purchase. The only way the investor
can do this is by meticulously analyzing each
aspect of the purchase, including review of the
loan documents, the real property collateral for
the note, the financial condition and solvency of
the borrower and any guarantors, and the
financial condition and solvency of the seller. If
during this process the investor discovers an
unacceptable risk (assuming its attorney has
appropriately drafted the contract), it can
September 22, 2009

Distressed Real Estate Alert

terminate the contract without continued liability

prior to the expiration of its free look feasibility
period. Haphazard due diligence, however, may
place the investor in a less desirable position with
severely undervalued assets if, for instance, an
unresolved title defect, development restrictions,
or pre-existing environmental conditions exist on
the real estate securing the note. It is an
understatement to say that the due diligence
process is crucial to a successful real estate note
purchase. In fact, the process for a real estate
note purchase is often more intensive and
cumbersome than it would be for a purchase of
the underlying real estate alone.

contain an unconditional promise to pay a

certain amount, (iii) be payable on demand
within a stated time, and (iv) be payable to
order or bearer. Ideally for the note
purchaser, all the foregoing elements would
be met, the note would be negotiable and
the note purchaser would become a holder
in due course upon consummation of the
transaction. If this is the case, the note
purchaser is in the best position to enforce
the borrowers payment obligations under
the note and has minimized the risk of
various common law defenses to its
enforceability.

(b) Review of Loan Documents

Particular attention should be given to the

payment terms under the note, including
the interest rate and maturity date, which
are especially important because of the
various statute of limitations applicable to
the right to foreclose under a real estate
loan agreement and/or deed of trust.

(i) Loan Agreement

The loan agreement governing the loan,
along with the deed of trust or mortgage,
serves as a general guide of the lenders
remedies in the event of borrowers default.
The terms of these documents determine the
various rights and remedies of the investor,
as lender and holder of the note, and those
of the borrower. Other matters to be
considered include the loan-to-value ratio,
covenants imposed in the loan agreement,
income and expense projections relating to
the cash flow of the real estate, and any
covenants relating to debt service. In the
event of any existing borrower defaults, the
investor will want to consider whether the
default is material, whether the lender (or
loan seller) has formally placed the
borrower in default, and the likelihood that
the borrower can cure the default. Also
during its analysis, the investor should
determine the existence of any inter-creditor
or other co-lender agreements and
determine if they affect the priority of the
investors lien.

(ii) Note
With respect to the note itself, the note
purchaser should first determine whether
the note evidencing borrowers payment
obligations is a negotiable instrument. In
order for the note to be negotiable, the
Uniform Commercial Code requires that the
note (i) be signed by the borrower, (ii)

The note purchaser may often find itself,

however, in a situation where the note is
non-negotiable. These circumstances
increase the necessity for heightened
scrutiny of the sellers and the borrowers
past performance under the note, because
the note purchaser will be taking the note
subject to all claims and defenses affecting
its enforceability. In these instances, the
note purchaser should secure an estoppel
certificate from the seller whereby the
seller clearly states all known or unknown
defenses which would affect the
enforceability of the note. While securing
the estoppel certificate from seller does not
preclude the assertion of such defenses by
the borrower, it will, however, provide the
note purchaser a remedy against the note
seller (who hopefully is financially solvent)
in the event the note is deemed
unenforceable due to any such defenses
arising during the time period in which the
seller held the note.
As noted above, the note purchaser should
take physical possession of the note upon
consummation of the transaction. A
detailed analysis of all the issues
September 22, 2009

Distressed Real Estate Alert

surrounding the note is beyond the scope of

this article; however, the main issues a note
purchaser should pay particular attention to
include:
1. Security for the note (with the note
referencing the deed of trust, as
discussed below);
2. Maturity date and interest rate;
3. Order of application of any
prepayments;
4. Right of holder to accelerate upon
default (allowing the note purchaser to
seek the full amount due in the event
borrower fails to meet its payment
obligations); and
5. Recourse or non-recourse status of the
note.

(iii) Deed of Trust or Mortgage

The deed of trust or mortgage constitutes
the security for the note and is the legal
mechanism by which the note purchaser can
obtain title to the real estate encumbered by
such deed of trust or mortgage. This
document plays a crucial role because it
allows the note purchaser, directly or
through its trustee under the deed of trust,
depending on the state, to obtain ownership
of the property, whether through judicial
(court-enforced sheriffs sale) or nonjudicial (public sale) procedures. The
mortgage or deed of trust should
specifically give the lender the right to
foreclose on the underlying real estate in the
event of the borrowers failure to make its
payment obligations under the note or for
any other material default under the note,
loan agreement, or any other loan
documents. A determination by the note
purchaser of the priority of the lien granted
in the deed of trust or mortgage is of
paramount importance since a first lien on
the property allows the note purchaser to
institute foreclosure proceedings upon the
borrowers default (without regard to the
application of sales proceeds) and
subsequently receive title to the property
through foreclosure generally free and clear

of any inferior liens. Any senior liens,

however, should be reviewed to determine
order of priority and to assess any risk that
the sales proceeds from foreclosure
proceedings would be insufficient to pay
the borrowers debt to the note purchaser
after satisfying the senior lien. In addition,
the note purchaser should, at a minimum,
review the deed of trust or mortgage to
ensure it contains:
1. The identity of the borrower,
beneficiary and trustee (including
addresses);
2. A specific description of the
indebtedness under the note (the
amount of debt secured);
3. A due-on-sale clause (triggering the
full amount of the indebtedness
becoming due upon a sale or other
disposition of the real property
collateral);
4. The right to foreclose through judicial
or non-judicial foreclosure
proceedings, depending on the state;
and
5. A satisfactory legal description of the
real estate.
The note sellers title insurance policy
should also be reviewed in order to confirm
that the lien is insured at the priority level
that the note buyer believes it is acquiring.

(iv) Real Estate Collateral

With respect to any real property collateral,
the note purchase transaction should be
treated as a traditional real estate purchase.
The note purchaser should perform an
onsite inspection of the property secured by
the deed of trust or mortgage and determine
whether an updated survey is required. To
limit the note purchasers liability, an
environmental site assessment of the
property should be obtained, and the note
purchaser should ensure that the current use
of the property is in compliance with
zoning and other governmental restrictions
on the property. Additionally, it is essential
that the note purchaser obtain a new
September 22, 2009

Distressed Real Estate Alert

appraisal of the real property collateral, so

that it may get an accurate understanding of
the current value of the land and
improvements relative to comparable
properties in the local market. The
appraisal will show the approximate market
value of the property, but not necessarily
what the note purchaser could expect to
receive at a foreclosure sale. The note
purchaser should also obtain architectural
reports and any other third party reports
during this stage. Finally, the note
purchaser should analyze any income
stream from the property and ensure that the
purchase price justifies the risk relating to
such income stream in the event the note
purchaser ultimately owns the property via
the foreclosure remedy under the deed of
trust. Analyzing the foregoing issues will
mitigate any chance of the note purchaser
being exposed to unknown, and potentially
costly, liabilities relating to the property.
In addition to undertaking typical title and
survey due diligence that one would see in a
standard real estate acquisition, the note
purchaser must also secure an endorsement
to the original mortgagee policy of title
insurance. In most circumstances, the note
purchaser will not secure a new mortgagee
policy because it will be insured as a
successor or assign under the original
policy. The note purchaser can realize a
cost savings by bringing the sellers existing
policy up to date through an endorsement
from the sellers original title company.
This allows the note purchaser to enjoy all
the protections of the original title policy
without incurring the full cost of a premium
on a new policy. When issuing the
endorsement, the title company will reveal
all new liens against the real property, if
any, arising after the date of the original
policy. The endorsement from the title
company coupled with an estoppel
certificate from the seller should adequately
protect the note purchaser from any
unknown claims to title that would affect
the note purchasers lien under the deed of
trust or mortgage.

(v) Financial Analysis of Borrower

and Seller
The financial solvency of the borrower and
any guarantors of the note is important to
the note purchaser for several reasons.
Determining the solvency of the borrower
allows the note purchaser to assess the
likelihood that the borrower can remedy
any current or future default under the note
or other loan documents. The note
purchaser should analyze the borrowers
financial statements to determine if it is in
compliance with any financial performance
covenants and/or reporting requirements
pursuant to the loan agreement (e.g., net
worth requirements, debt-to-income ratios,
etc.). Implicit in this analysis is a
determination of the likelihood of whether
the note purchaser will ultimately be forced
to foreclose on the property. By
determining the amount of equity the
borrower has in the property (by comparing
a recently appraised value of the property
against the current loan balance), the note
purchaser can determine the likelihood of
default and foreclosure, with the more
equity held decreasing the possibility of
borrowers default, and vice versa.
The financial solvency of the seller should
also be analyzed in case any issues relating
to the loan arise subsequent to the sale.
Although todays market typically calls for
loan sales to be held on an AS IS WHERE
IS basis, the seller may, in some instances,
have ongoing lender liability due to errors
in calculating escrow payments made under
the loan agreement related to the note. This
liability can be transferred to the note
purchaser upon the purchase of the note
and, although the purchase and sale
agreement will provide for seller to
indemnify the note purchaser for such
claims, the note purchaser will want to be
certain that the seller has the financial
ability to do so. Analysis of the sellers
financial solvency should include
researching any litigation related to the
seller and the property, Uniform
Commercial Code and tax lien searches,

September 22, 2009

Distressed Real Estate Alert

mortgagor complaints and regulatory

inquiries associated with the loans.
Real estate note purchases have once again become
the opportunity of choice for clients to profit from
the uncertainties in the real estate market, defaulting
borrowers, and declining real estate values.
Understanding the process as a whole and

appreciating the risks associated with owning the

underlying real estate is key to success in these
endeavors. We have extensive experience in this
arena and would be happy to provide assistance in
these transactions.
For more information contact Eugene Segrest,
Clifton Dugas, or Matthew Lopez.

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September 22, 2009