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When Your Lender Comes Looking For You: How to Avoid Liabilities in Non-Recourse Carveout Guaranties in Commercial Real Estate Loans

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DESCRIPTION

Exceptions to nonrecourse liability in commercial real estate loans and the companion non-recourse carveout guaranties have become a standard feature of loan documentation.  Carveout guaranties have increased in complexity and scope from the original concept, prompted by controversial decisions such as Wells Fargo Bank, NA v. Cherryland Mall Ltd. P’ship and 51382 Gratiot Avenue Holdings, LLC v. Chesterfield Development Company, LLC.

As a component of the fallout from the Great Recession, these guaranties continue to generate significant litigation surrounding enforcement of carveout guaranties.

This 90-minute program is designed to provide case law update on recent decisions construing carveout provisions and give specific drafting suggestions based on case law and actual negotiated loan documents to address carveout issues that typically arise in commercial real estate loan documentation.

Educational Objectives:
• Understand the background and typical language of carveout guaranties
• Explore the relevance of carveout cases and their trends, with a focus on recent, post-Cherryland decisions
• Discover how the carveout and springing recourse provisions might be drafted to more clearly express the intentions of the parties to avoid the imposition of unintended liabilities

Who would benefit most from attending this program?
Real estate attorneys and professionals who represent lenders, borrowers, and guarantors in real estate transactions.

SPEAKERS

GARY E. FLUHRER, MEMBER, FOSTER PEPPER PLLC

Gary E. Fluhrer is a member in the Seattle office of Foster Pepper PLLC where he serves on the firm’s Real Estate and Financial Institutions Practice Groups. Gary is a Fellow of the American College of Real Estate Lawyers, a trustee and past president of the Pacific Real Estate Institute and a member of various trade and legal organizations.  He has represented numerous developers, investors, banks and other investment entities in acquisitions, dispositions, construction and permanent loans, structured finance, joint ventures and partnerships and portfolio transactions. Gary is a graduate of the University of Washington School of Law where he was editor in chief of the Law Review. He is a member of the Washington bar.


SCOTT B. OSBORNE, OF COUNSEL, FOSTER PEPPER PLLC

Scott B. Osborne is of counsel to Foster Pepper PLLC in its Seattle office. He received his undergraduate degree from Yale University in 1971 and graduated from the University of Washington School of Law in 1975 where he was a member of the Order of the Coif. Scott has lecturered at the University of Washington School of Law, where he taught real property security and currently teaches real estate law in the University‘s College of Built Environments. He is the past Chair of the Real Property, Probate and Trust Section of the Washington State Bar. Gary also is a Fellow of the American College of Real Estate Lawyers and a member of the Pacific Real Estate Institute. He is a member of the Washington bar.


SUSAN G. TALLEY, MEMBER, STONE PIGMAN WALTHER WITTMANN L.L.C.

Susan G. Talley is a member in the New Orleans office of Stone Pigman Walther Wittman L.L.C., where she co-chairs the firm's Real Estate, Finance and Construction Practice Group.  Her practice includes all aspects of real estate development, financing, leasing, purchase and sales. Susan is a Past Chair of the American Bar Association Section of Real Property, Trust and Estate Law and currently serves as the Chair of the Section's Nominating Committee and is a member of its Planning Committee. She is a Fellow of the American College of Real Estate Lawyers, serving on its board and as chair of its Meetings Committee, and the Anglo-American Real Property Institute. Susan received her J.D. from Tulane University Law School and graduated from Louisiana State University. She is a member of the Louisiana bar.