Am Law 100 firm Polsinelli has welcomed John A. Chamberlin as a shareholder in the Real Estate Finance Practice Group. Based in the firm’s Chicago office, he brings over 20 years of experience representing institutional investors, commercial banks, investment banks and opportunity funds in complex commercial real estate financings. He is the fourth shareholder Polsinelli has added to the Chicago office in the past 12 months and the sixth real estate finance shareholder the firm added nationwide.

“We are continuing to opportunistically grow our real estate finance bench by adding extremely talented lawyers we know and respect in the market as our clients prepare for a stabilizing and strengthening commercial real estate finance market,” said John T. Duncan III, Chair of Polsinelli’s Real Estate Finance Practice and the Financial Services Division. “John’s deep experience and impressive track record in this space – in particular, his wealth of experience originating large and complex loans – make him an excellent addition to our team. His skills will further enhance our ability to provide top-tier service to our clients as they navigate the ever-changing commercial real estate finance market.”

“What attracted me to Polsinelli was the firm’s commitment to maintaining, supporting and expanding top-level real estate and real estate finance practices and its dedication to delivering outstanding service to clients,” said Chamberlin.

Joining Polsinelli from an Am Law 10 firm, Chamberlin has extensive experience in a variety of commercial real estate transactions, including permanent loans, mezzanine loans, construction loans, and mortgage loans for commercial mortgage-backed securitization programs (CMBS).

He also has significant experience in single-family rental (SFR) financings, loan participations, loan assumptions and sales, loan modifications, and loan workouts and restructurings. He has represented both lenders and servicers in connection with the modifications and restructurings of commercial mortgage and securitized loans. Chamberlin earned his J.D., magna cum laude, Order of the Coif, from the University of Illinois College of Law. He received his B.A. in history from Brigham Young University.

Polsinelli is a recognized leader in the commercial real estate finance industry. Polsinelli’s Real Estate Finance team has the geographic footprint and depth and breadth of experience necessary to support clients with offices across the nation. The team has closed thousands of commercial mortgage loans secured by property in all 50 states, the District of Columbia, the U.S. Virgin Islands and Puerto Rico, totaling over $69 billion in principal advanced.

View Polsinelli’s Commercial Mortgage Lending Experience Map. The team regularly represents a wide variety of commercial real estate lenders, including originating commercial real estate loans for capital markets executions (both CMBS and CLOs), mortgage REITs, insurance companies, debt funds, banks and other financial institutions and market participants in transactions of all sizes and complexities across all asset classes, including full-service resorts, office, retail, multi-family, single-family rental, mixed-use projects, storage, manufactured home parks and industrial facilities.

ArentFox Schiff is pleased to announce the addition of partner Jena Watson to its Real Estate and Municipal Bond practices in the firm’s San Francisco office. Jena brings nearly three decades of experience managing project and municipal finance and commercial real estate transactions, including 10 years in senior in-house counsel roles in financial institutions.

Most recently, Jena served as Senior Vice President, Associate General Counsel and Associate Corporate Secretary, at HomeStreet Bank. In this capacity, she advised leadership teams on a range of regulatory strategy, legal compliance, and operational issues, while also managing commercial agreements and financial transactions. Earlier in her career, Jena served as Associate General Counsel of the Multifamily Division at Fannie Mae and, prior to that, spent many years in private practice at large international law firms.

At ArentFox Schiff, Jena will counsel both private and public companies on a range of financing transactions. Her practice will focus on serving as counsel in municipal finance transactions; assisting clients in financing, real estate, and other aspects of infrastructure deals; and advising on public-private partnership (P3) projects. Jena has represented both lenders and borrowers in private debt financings, recapitalizations and acquisition facilities, leveraged and structured financings, mezzanine debt, securitized executions and distressed debt situations, among other complex transactions. She has worked on large financial transactions in numerous industries, including housing, energy, and manufacturing projects.

“A seasoned finance lawyer, Jena has proven herself to be a trusted advisor to companies and governmental entities in structuring and securing financing for their most critical development projects. Her in-house leadership experience and success managing municipal finance, project finance, and other financing transactions in private practice will bring significant value to our clients. Having worked with Jena personally over the years, I’ve seen firsthand the benefits of her business-minded approach, extensive knowledge of public and private financings, and genuine care for driving the best possible outcomes. We could not be more thrilled to welcome her to the team.”

David L. Dubrow, Partner and Municipal Bond Recovery Team Leader

Blank Rome LLP is pleased to announce that Partner Joel V. Sestito, Of Counsel Rachel E. Mather, and Associate Olivia S. Ortiz have joined the firm’s nationally recognized Real Estate group in Chicago. Real estate finance pros, Joel, Rachel, and Olivia represent lenders in real estate and commercial loan transactions. The team joins from Akerman.

The team’s arrival follows several notable hires in the firm’s Chicago office, including partners Eric Tower, Rikke Dierssen-Morice, and Bill Katris who joined earlier this year. And last month Blank Rome expanded to Dallas with the addition of seven attorneys, including Real Estate partner Justin Mapes.

“We are thrilled to welcome Joel, Rachel, and Olivia to the firm,” said Grant S. Palmer, Blank Rome’s Chair and Managing Partner. “We have a strong national practice in complex real estate financing and the addition of this talented team enhances our capabilities. With decades of experience and exceptional insight into the real estate and financial markets, Joel and the team will be assets to our financial institution clients, especially national, regional, and community banks, as they engage in commercial loan transactions.”

Joel represents lenders at all stages of the loan process, including the negotiation and documentation of new loan transactions, the workout and disposition of troubled loan assets, and the exercise of various creditor’s remedies. He advises clients regarding secured and unsecured, single lender and syndicated loans, revolving lines of credit, mezzanine loans, A/B loans, loan on loan financings, and securitized loans. Joel also has experience with loan transactions that involve EB-5 financing, new markets tax credits, historic tax credits, low-income housing tax credits, and ground lease financing. He also counsels clients in the acquisition, disposition, and development of multifamily, retail, office, industrial, and other real estate assets.

Rachel and Olivia focus their practices on representing financial institutions and other lenders in syndicated and single-bank real estate and construction financing transactions. Rachel also represents private equity and other strategic buyers in acquisition financing transactions and in representing borrowers and lenders in negotiating and documenting a variety of other secured and unsecured commercial lending transactions, including asset-based and cash-flow facilities, mezzanine debt facilities, international financing facilities, and asset securitizations.

“With strong roots in Chicago and sophisticated national practices, Joel, Rachel, and Olivia will be excellent additions to our growing office and to our local finance team,” said Kenneth Ottaviano, Partner and Chair of the firm’s Chicago office. “Joel has represented lenders in a variety of multimillion dollar commercial loan transactions spanning senior housing, multifamily, single-family rental, and industrial construction—deals that are essential to the Chicago economy and beyond. The group’s experience will be invaluable to our growing office and the firm and I look forward to collaborating with them.”

“Blank Rome’s Real Estate practice is well-known and highly regarded,” Sestito said. “The group has developed a leading reputation in real estate finance, known for being efficient and effective with a collaborative team-based approach. I look forward to growing my practice and broadening the work we do for clients on the firm’s national real estate platform.”

Joel earned his LL.M at Georgetown University Law Center, his J.D. at the University of Illinois Chicago School of Law, and his B.A at the University of Richmond.

Rachel earned her J.D. from Marquette University Law School, magna cum laude, and her B.A. from the University of Wisconsin – Madison.

Olivia earned her J.D. from the University of Utah S.J. Quinney College of Law, and her B.S. from Arizona State University.

***

Services Industry Team, which helps clients navigate the entire life cycle of real estate projects.

Adamson is the former general counsel of a national real estate developer and has approximately 20 years of experience in real estate and commercial development. She has deep experience advising on industrial, multifamily, self-storage, master planned communities, timber and natural resources development, and other commercial properties.

Prior to joining Parker Poe, Adamson served for more than seven years as general counsel for Johnson Development Associates, Inc. (JDA), which is based in South Carolina and has offices and developments across the country. As general counsel, Adamson oversaw the myriad legal issues surrounding development, construction, and operation for JDA, from letter of intent to closing, contract negotiation, project finance, employment issues, regulatory compliance, supervision of outside counsel, and more.

Adamson is also a founding charter member of Commercial Real Estate Women (CREW) Upstate. She earned her law degree from the University of South Carolina and her bachelor’s degree from Furman University.

“Dayston v, LLC v. Brooke, voided a real estate contract because it failed to satisfy the Texas statute of frauds,” discusses Charles Sartain in Gray Reed’s Energy & The Law.

“Brooke sued Dayston asserting that the contract was void due to an insufficient legal description and asked for return of earnest money.”

This post details what is required for a sufficient legal description.

Read the article.

“Two Broward attorneys were arrested this week for their involvement in a nearly $750,000 fraud scheme to rip off unsuspecting victims of foreclosure surplus checks, according to the Broward Sheriff’s Office,” report Brooke Baitinger Eileen Kelley in South Florida Sun Sentinel’s Crime News.

“The attorneys, Rashisa Overby and Ria Sankar-Balram, worked with Illya and Patricia Tinker, a married couple nicknamed ‘tomb raiders’ for another multimillion-dollar scheme in which they stole properties across South Florida, some of which belonged to the dead.”

“The Broward Sheriff’s Office arrested Overby and Sankar-Balram Monday. Balram was released from jail after posting a $57,000 bond. Overby who faces significantly more charges — 29 counts of fraud, money laundering and grand theft among other charges, had bond set at $140,000.”

Read the article.

“A lawyer representing Jennifer Dulos’ family has filed a federal complaint seeking to require the state Judicial Branch to foreclose on Fotis Dulos’ former Farmington residence even though housing proceedings have been halted due to the coronavirus pandemic,” reports Lisa Backus in Stamford Advocate’s Local News.

“Attorney Richard Weinstein, representing Gloria Farber and the estate of her late husband, Hilliard, wants the proceedings to move forward on the 14,000-square-foot home that was already in foreclosure when Fotis Dulos died Jan. 30 from an apparent suicide.”

“In March, Gov. Ned Lamont issued an executive order, putting a moratorium on foreclosures and evictions as the pandemic spread throughout Connecticut. Weinstein filed the complaint against Judge Patrick Carroll, chief court administrator for the state Judicial Branch, out of ‘sheer frustration,’ the attorney said. ‘Judges are precluded from entering into foreclosures and evictions even in non-COVID-related cases,Weinstein said. ‘My client is paying all this money every month and nothing is happening. I did not want to sue the judge, but every day that goes by, it costs the estate money.'”

Read the article.

“We’ve all seen, or perhaps been assaulted by, a surfeit of articles about force majeure clauses and how all of our agreements should include one. Other pundits have gotten way ahead of this one by explaining how we will have a better world if the advice to include such clauses would be taken by all. They’ve noted that very few agreements with a force majeure provision have covered the kind of closures we have experienced and are still experiencing. But, what we’ve not seen is much understanding that there is nothing special about a ‘force majeure’ clause: it is no more than another risk-shifting device,” writes Ira Meislik in Meislik & Meislik’s Retail Real Estate Law blog.

At the beginning of this month, a Bankruptcy Court for the Northern District of Illinois published an opinion about one such force majeure clause in a restaurant lease. Consistent with the advice we are seeing from all corners of our industry, the clause (according to the court, and correctly so) covered the restaurant’s closing because of COVID-19 restrictions imposed by Illinois’ governor. Read the lease’s clause for yourself:

Read the article.

“The Fourth Court of Appeals of Texas overturned a jury verdict awarding HouseCanary, Inc. (“HouseCanary”) $740 million in damages for trade secret theft and fraud against Title Source, Inc., now known as Amrock,” reports Mena Gaballah, PharmD and Joshua M. Rychlinski in Crowell Moring’s Trade Secrets Trends.

“Amrock and HouseCanary are competitors in the real estate sector. Amrock provides title insurance, property valuations, and settlement services in real estate transactions. HouseCanary is a real estate analytics company that developed software to determine property values. HouseCanary agreed to provide this software to Amrock, and, according to HouseCanary, Amrock reversed engineered it. After the relationship between the two broke down, Amrock sued HouseCanary for breach of contract and fraud, and HouseCanary counterclaimed for breach of contract, fraud, misappropriation of trade secrets, among other claims. The jury found for HouseCanary, awarding it compensatory and punitive damages as well as attorney’s fees.”

Read the article.

“A state appeals court Wednesday overturned a record $706 million verdict rendered by a San Antonio jury more than two years ago,” reports Patrick Danner in San Antonio Express News’ Business.

“The 4th Court of Appeals in San Antonio reversed a trial court’s judgment on real estate analytic firm HouseCanary Inc.’s fraud and misappropriation of trade secret claims against Amrock Inc., a Detroit home appraisal company affiliated with Quicken Loans Inc. Amrock formerly was known as Title Source Inc.”

“The two claims were sent back to a state District Court in San Antonio for a new trial.”

Read the article.

A “plaintiff entered into an exclusive listing agreement with the defendant, Deal Lake Village Gardens, LLC to broker a sale of the defendant’s apartment complex. The agreement included the following provision: “If a sale or exchange is consummated after the termination of this agreement to or on behalf of a party who was introduced to the property by [plaintiff], [plaintiff] will also be entitled to a full commission.” writes Gary M. Albrecht in Cole Schotz’ Real Esate & Construction Law.

“The property was sold, but not until after the term of the plaintiff’s exclusive listing expired. At the trial court level, the plaintiff argued that even though the property was sold after the exclusive listing agreement expired and the defendant had hired a new broker, it had earned a commission because it had introduced a principal of the purchaser to the property while its exclusive listing agreement was in effect. The trial court rejected the plaintiff’s claim, but its reasoning came under the Appellate Division’s scrutiny.”

“When negotiating exclusive listing agreements or other forms of commission agreements, whether on the side of a property owner or broker, any right to a commission after a broker’s agency has expired must be discussed and memorialized in a contract to avoid a similar fate to the parties of this case, which in the case of the defendant, may include the payment of two full commissions (in addition to legal fees) depending upon the disposition of the remanded case at the trial court.”

Read the article.

“The recent decision of the Bankruptcy Court for the Southern District of New York in In re AAGS Holdings LLC, Case No. 19-13029 (SMB) (Bankr. D. Del. Nov. 12, 2019), underscores the ability of debtors — and specifically, for purposes of this client alert, parties to real property purchase contracts — to take advantage of the Bankruptcy Code’s 60-day tolling period to get more time to close on a purchase despite a “time of the essence” (TOE) closing deadline. The SDNY Bankruptcy Court … held that a debtor’s bankruptcy petition is not filed in bad faith when the petition is filed in order to obtain a statutory 60-day extension of a TOE closing deadline. The decision underscores the need for sellers to consider the effect of this automatic bankruptcy extension when negotiating with buyers over the terms of a consensual closing extension (e.g., fees and increased deposits) even if the contract does not have a financing contingency.” warn Adam C. Rogoff, Daniel Ross Berman and Caroline Gange in Kramer Levin’s Perspectives.

“The court found that the term “Closing Date” as defined in the PSA was, in fact, ambiguous.”

Read the article.

William C. Guthrie has been appointed Managing Partner of Foley & Lardner LLP’s Orlando office effective February 1, 2020. Guthrie is a partner and business lawyer, member of the Business Law Department and Real Estate and Consumer Financial Services practice groups, and chair of the Hospitality & Leisure Industry Team. He represents clients in the condominium, resort and hospitality industries, including globally recognized developers, lenders, managers and exchange groups.

“The question of does a lien exist without a debt for it to secure is a complicated issue that unfortunately does not have a universal answer.” discusses Vincent E. Mauer in Frost Brown Todd’s blog.

“Commercial lawyers know that a properly constructed consensual mortgage or security interest can secure the debt created by funds loaned after the lien is granted.  This is common in commercial revolving loan situations and real estate lines of credit.  The lien continues to exist and dates back to its recording or filing for priority purposes even if the amount owed goes to zero and back up again.”

“What happens in a situation where the lien arguably is not consensual and structured to meet the legal requirements that may permit the lien to continuously exist even when there is no debt to secure?”

Read the article.

Buchalter is pleased to announce and welcome its newest Shareholder, Roxana K. Chamouillé to its Orange County office. Chamouillé handles sophisticated commercial real estate transactions on behalf of property owners, purchasers, and local, regional and nationwide institutional lenders. Her emphasis is on financing, acquisitions and dispositions.

Chamouillé’s extensive real estate experience includes negotiating, reviewing and closing loan and purchase and sale documentation for the acquisition, disposition, refinancing, and development of a wide range of commercial real estate projects. She has also been a lead and supervising attorney for highly complex litigation matters involving construction defects, insurance coverage, and failed commercial real estate transactions. Chamouillé has represented developers, insurance carriers, and business owners in all stages of litigation, successfully negotiating favorable settlements for her clients.

Chamouillé earned her J.D. at the University of Southern California Gould School of Law and her B.S. from the University of California Los Angeles.

Jason Reeves and Helen Campbell of Zelle LLP offer some advice on commercial property insurance contracts in the firm’s Articles.

“Over the past decade, as commercial property insurance rates softened, so too have terms and conditions. In some instances, attempts to broaden coverage have also had the effect of diluting the clarity and consistency of manuscript forms. The role that underwriters’ contract wordings managers once played in tidying up such issues was weakened when the new imperative was to sign up to a policy wording as presented or risk not having an offered line taken up.” they write.

“The market is changing. As the property market continues to show signs of hardening,” he offers some fixes underwriters should consider.

Read the article.

James M. Wicks of Farrell Fritz writes about a recent breach of contract case in which a court found that an unsigned termination agreement between a real estate broker an another party was enforceable even though it never was signed.

He explains that the court focused its analysis on two questions: Is there evidence supporting a finding of an intent to be bound?, and if so, is there evidence that the parties “positive[ly] agree[d] that it should not be binding until so reduced to writing and formally executed”?

The ruling is a reminder that written agreements without the “not bound until signed or executed” clause is risky business, Wicks writes.

Read the article.

A Texas court concluded that “personal effects,” in a last will and testament did not include mineral royalties, report Charles Sartain and Rusty Tucker in Gray Reed’s Energy & the Law blog.

The case involves a woman’s will that listed her checking account and miscellaneous property. The will also directed her independent executor to receive “all my personal effects to clear my estate after my death.”

The will did not mention mineral royalties that the executor started transferring to his personal account. Her heirs contested the executor’s use of those royalties.

Read the article.

Blomberg Law is reporting that a real estate developer is suing New York City litigation boutique O’Shea & Partners for breach of contract, alleging it charged “grossly excessive” and padded fees when it represented the developer beginning in 2013.

Plaintiffs claim the firm charged “almost $1.9 million over a three year period, without engaging in any discovery, or document collection, whatsoever.”

In the complaint in the New York court, plaintiffs Madison Equities LLC and the group’s principal, Robert Gladstone, are seeking at least $900,000 over the “fraudulent” billing, writes Bloomberg’s Melissa Heelan Stanzione.

Read the Bloomberg Law article.

Before agreeing to a real estate sales contract or lease, the parties may prepare a letter of intent, term sheet or other form of preliminary agreement (together, called here an “LOI”), writes Stephen Siegel of Novack and Macey.

An LOI reflects that the parties have agreed on certain important terms of a deal, though not on all of its provisions or details.

“A well-crafted real estate LOI should address the parties’ intentions on such questions in clear terms. An LOI that is unclear as to what, if anything, it obligates the parties to do can invite uncertainty, disagreements and even litigation,” Siegel writes.

Read the article.