As I type this blog post, I am sitting at my desk with a four-inch-thick binder filled with title insurance forms—form policies, form endorsements, premium rate tables, survey requirements, etc.—and it occurs to me that many people who deal with real estate loans and title insurance on a daily basis may have never read a title insurance policy.

It’s probably not necessary for a loan officer involved in a real estate transaction to read the whole title insurance policy, but it may be helpful to have a basic understanding of the benefits and limitations of a lender’s title policy as well as some of the optional endorsements.  To provide a basic understanding of title insurance, this post is the first in what will be a series of articles on title insurance from a lender’s perspective.

Continue Reading Title Insurance: What is its Value?

The use of unitranche financing creates opportunities for lenders and value for borrowers.  There are some risks that lenders must understand in these structures.

With the volume and competition of middle market financings growing, many loan officers and lenders are asking, “What can we do better in order to get more business?”

In an acquisition financing scenario, unitranche may be a good path for you and your borrower.  Continue Reading Unitranche Financing – is it for you?

For better or worse, banks frequently obtain possession of, or title to, pieces of property.  Often times, these parcels of land have been neglected and are in poor condition.  It would not be surprising to find a property that a bank obtained via foreclosure that had decaying trees looming over a neighbor’s fence.  But what happens when that tree falls, causing damage to the neighbor’s property?  Is the bank liable?  Continue Reading TIMBER! – Liability for damage to private property caused from a fallen tree?

Appellate Case Update

The Connecticut Appellate Court has (finally) recently weighed in on the topic of whether or not a claimed defense of a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”) constitutes a legally sufficient special defense to a foreclosure action in Connecticut.  Put simply, the result of this case is that CUTPA is not a legally sufficient special defense to foreclosure.  In reaching this decision, the Court outlined that the intent of the Act is to permit claims for violation of its provisions and was not meant not to shield parties from liability on existing claims by opposing parties who are alleged to have violated its terms.

Continue Reading CT Unfair Trade Practices Act is Only a Sword – Not a Shield in Foreclosure Actions

Massachusetts bankruptcy courts have invalidated mortgages containing defects, including the failure of lenders to observe strict formalities in the execution of mortgage acknowledgements.   Continue Reading The Massachusetts Supreme Judicial Court Lends a Helping Hand to Inadvertent Lender Omissions in the Execution of Mortgage Acknowledgements

In May, I posted about “Estate Planning in the Digital Age” and mentioned the practical limitations of shared passwords as a means of digital estate planning.  Recent cases suggest that relying only on password sharing, even if it works, is risky, both for family members and fiduciaries. Here’s why.

Continue Reading Password (Sharing) Risks Persist for Fiduciaries and Family Members

A bank director’s responsibilities are similar to directors of other types of corporations, including the duties of loyalty and care. Federal banking regulators have strong enforcement powers to address violations of law, breaches of fiduciary duty, or unsafe and unsound practices. When an FDIC-insured bank goes into receivership, the FDIC undertakes an investigation to determine the reason for the failure and whether to pursue claims against directors, officer or their parties for corporate waste, breaches of fiduciary duty or negligence.

Continue Reading What Community Bank Board Members Need to Know About D&O

On January 1, 2015, Connecticut adopted an additional method of foreclosure known as foreclosure by market sale.  This method permits an owner-occupant of a 1-4 family residential property who is in default of the first mortgage to obtain the lender’s consent to market and sell the property in order to avoid a judicial foreclosure.

Continue Reading Amendment to Connecticut’s Foreclosure By Market Sale Statute

One of the plethora of new procedures enacted in the 2016 General Assembly’s legislative session is a concept which is being dubbed a “judgment of loss mitigation.”  The procedure seems straightforward at first – a lender can seek to have the Court approve a modification of a mortgage loan and sanction the mortgagee’s priority over any other encumbrances of record or it can approve a conveyance of all interest of the mortgagor to the mortgagee within the new statutory structure.  So, why do lenders need to be aware of this new procedure?  And will this newly enacted process help anyone? Continue Reading Connecticut Foreclosures: Judgment of Loss Mitigation – Good, Bad or Unnecessary?

You might wonder whether lenders can enforce a guaranty of a loan from an individual or entity that has no formal connection with the borrower, i.e. someone who is not an owner or affiliated company. Generally, the answer is yes with some qualifications for potentially insolvent guarantors discussed below. However, lenders are well-advised to take the steps outlined at the end of this post to minimize the risk of a subsequent challenge by the guarantor.

Continue Reading Enforcing Personal Guaranties