Real property law directly controls or influences a large percentage of work in the legal field, and we help lenders, businesses, developers, investors and owners navigate these rules to see their project to completion. Our real estate practice runs the full array of services touching on real property law: closing commercial and consumer transactions, escrow holding and services, title insurance, mortgage and other real estate secured lending, project financing, preparing conveyance documents and other recordable instruments, landlord-tenant relationships and disputes, land use, zoning, condominium establishment and termination, foreclosures, REO sales, tax deferred exchanges, leasing, real estate development, property sales and land acquisition.
Troubled assets, whether real estate-based, consumer in nature or otherwise commercial, are a fact of life for any lender. While Bankruptcy is often the solution, our workout practice—which occurs both inside and outside of the Bankruptcy system and courts—seeks to get the most cost-effective solutions to the problems of lenders, creditors and businesses (and, under the right circumstances, the occasional debtor) facing situations involving bad debt, broken promises or obligations that are not being performed. A workout may involve a short sale followed by a deficiency note, a forbearance or any number of different solutions. Over the years, Mike and Ernie have become very creative at accomplishing workouts that are satisfactory to both obliges and obligors. While workouts can be consensual and even friendly, other occasions may call for solutions like foreclosure, replevin, repossession, receivership, collection actions, Article 9 sales, Section 363 sales, acquiring and enforcing judgment liens or eviction. Our attorneys are well-versed in these remedies and, in fact, have practiced extensively in these fields.
Many attorneys spend their entire careers without ever entering a courtroom. At MBSLaw, PLLC, we embrace the courtroom when the appropriate resolution to a dispute is through litigation. While many commercial disputes can and should be resolved outside of the litigation setting, which is sometimes prohibitively expensive, others merit determination by a judge, arbitrator or (only sometimes, since a contractual jury waiver is often in play) a jury. In the last five years our commercial litigation practice has focused on unusual, even bizarre, factual scenarios where there was very little (or no) black-letter law to provide a pre-determined answer. For example, recent engagements have included: the meaning of certain terms in a condominium’s master deed; whether a vendor’s obscenely excessive prices (compared to actual acquisition price) charged to a lessor under an Article 2A finance lease can constitute fraud; whether a defendant’s counter-claim may be included to calculate the amount in controversy requirement for diversity jurisdiction in the Middle District of Tennessee; whether a judgment debtor can protect assets by placing them in tax deferred retirement accounts (in excess of statutory limits) and re-branding the accounts as tenants-by-the-entireties; the enforceability of oral and written statements involving a commercial loan and potential interest rate swap agreement; and the enforceability of a cross-collateralization clause involving commercial property collateral in multiple states.
While commercial lending often involves real estate as collateral, anything with value can serve as collateral, including equipment, inventory, motor vehicles, aircraft, intellectual property, instruments and securities, accounts receivable, intangibles like good will, deposit accounts and even insurance policies and proceeds. Our attorneys specialize in structuring, negotiating and documenting commercial loans for lenders, businesses and, sometimes, borrowers. In fact, Mike and Ernie literally wrote the book on commercial lending in Tennessee, having authored the Tennessee chapter of Commercial Lending Law, Second Edition: A Jurisdiction-by-Jurisdiction Guide to U.S. and Canadian Law, American Bar Association, Business Law Section (2016), the American Bar Association’s best-selling treatise on the subject. Ernie, in particular, is an expert in Article 9 of the Uniform Commercial Code, and has taught seminars on the issue at universities and continuing legal education events.
Consumer Lending and Financial Regulation
Through our title company, American Realty Title, LLC, we close all manner of real estate loans, including consumer loans—generally residential mortgage loans and refinances. As a crucial part of the American economy, these types of loans are heavily regulated by statutes such as the Real Estate Settlement Procedures Act and Truth In Lending Act. Our office closes such loans with TRID-compliant practices and policies, and with so much at stake for ordinary consumers (who are usually facing a mountain of stress during the process), also with no mistakes.
Our practice also includes advice for banks, thrifts, credit unions and other lenders to ensure compliance with federal and Tennessee financial regulation statutes and rules. Likewise, we work with lenders to make sure that their own form loan documents for consumer transactions, whether residential real estate or otherwise, comply with state and federal regulatory schemes. As regulators increasingly require strict compliance with these consumer finance rules for everything from mortgage origination and servicing to credit cards to auto loans and debt collection, we help consumer finance lenders navigate this field to avoid future liability in the form of litigation or regulatory investigations.
Bankruptcy and Creditors' Rights
The Bankruptcy Code is sometimes referred to as the “best welfare program ever enacted in the United States.” In many ways, this idea is very accurate, because Bankruptcy not only provides debtors with a roadmap to start over, it also provides creditors with the requisite level of certainty of outcome necessary to keep investing in people and businesses by lending them money. We, generally, do not represent debtors. Instead, we represent creditors in Chapter 7, 11 and 13 proceedings, and have extensive experience with both simple Bankruptcy matters—such as filing a proof of claim or obtaining relief from the automatic stay—and complex ones—like working through the terms of large Chapter 11 plans or conducting 363 sales of collateral that is subject to strict safety or national security concerns. We also, from time to time, represent investors or other participants in the purchase of a debtor’s assets through a 363 sale. Similarly, we represent vendors, creditors and other parties in adversary proceedings such as preference actions.