Connections for Success

 

02.26.14

How Should I Handle Nonrecourse Loan Carve-Outs?

Like many borrowers, you may be drawn to nonrecourse loans because the arrangements can shield you from personal liability.  But they do not provide protection in all cases.  “Carve-outs” in the loan documents can saddle you with full liability if violated.  However, you may be able to minimize personal liability for violations through savvy negotiating.

Exceptions to Liability Protection

Under a nonrecourse loan, the lender agrees that the borrower will not be held personally liable on the loan.  Theoretically, that means the lender’s only “recourse” in the case of default lies in the collateral (generally real estate).

However, the lender may include specific carve-outs — or exceptions — that will nullify that restriction.  Common carve-outs include the borrower’s fraud, misapplication of insurance proceeds, waste, or intentional destruction of property.  Few court cases have directly tackled the enforceability of carve-outs in nonrecourse loans or the lender’s ability to accelerate foreclosure and recover the full amount of the loan if a carve-out is violated.

However you should proceed with caution.  As an example, a recent Michigan Appellate Court decision (Wells Fargo Bank, N.A. v. Cherryland Mall Limited Partnership, Mich. Ct. App., Dec. 27, 2011), in which a carve-out guarantor was found liable for the entire mortgage debt due to the borrower’s violation of a covenant that it would remain solvent and pay its debts and liabilities.  When the borrower became insolvent during the real estate market crash, the guarantor found itself liable for a $2 million loan deficiency after the foreclosure.

Advice for Borrowers

Before entering a nonrecourse loan, evaluate and negotiate any carve-outs in the loan documents.  Watch out for overly-broad language and make sure that the potential causes of default are clearly defined.

Also look out for “springing guarantees” that trigger a guarantor’s obligations to pay the full amount of debt, as opposed to only the damages proximately caused by a breach of a carve-out.  Ideally, you want to limit such guarantees to intentional acts, excluding mere negligence or mistake.

You may be able to limit liability under both springing guarantees and carve-outs to only damages caused by the prohibited act, instead of the entire debt deficiency.  Also, require the inclusion of notice and cure periods to secure the opportunity to take corrective action before acceleration and foreclosure.

Once the loan has closed, avoid taking actions that could violate carve-outs, especially those that might affect the value of the collateral securing the loan.  If you sell the property and the buyer assumes the loan, negotiate a release from liability so you are not exposed to potential liability for the buyer’s acts.  (Note that nonrecourse agreements frequently include a carve-out requiring written consent from the lender before transferring mortgaged property.)

Do Not Get Carved Up

To protect yourself from personal liability, carefully review every carve-out with your attorney before entering into a nonrecourse loan.  A financial expert can help you determine proximate damages from a hypothetical (or real) breach of a loan carve-out provision.

For more information, contact us at Anna Coldwell at 312.670.7444.

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