Las Vegas—Master servicers are witnessing greater numbers of borrowers trying to force the transfer of their loans to special servicing, according to Kevin Donahue, senior vice president of PNC Real Estate/Midland Loan Services Inc. “Borrowers are becoming a little savvier” in pursuing their alternatives, said Donahue. They understand that the master servicer cannot perform “material modifications” on the loan, he said.
Donahue was speaking at a session on problem loans at the Mortgage Bankers Association’s (MBA) Commercial Real Estate Finance/Multifamily Housing Convention and Expo held this week in Las Vegas. At the conference, mortgage bankers considered processes and options for handling troubled loans at sessions such as “Real Estate Owned Management and Disposition” and “Options for Stressed and Distressed CMBS in the Current Market.”
Loans that default or that are in imminent default are transferred from the master servicer –who has limited power to modify loans—to the special servicer. The special servicer can then work out the loans with the borrower and retain the loan for the bond investors, or dispose of the loan to recover value if the first alternative fails.
As far as appointing servicers, Robin Green, partner at Bryan Cave LLP, said that generally, in most states such as Texas the special servicer can obtain a court appointed receiver “very, very quickly.” Appointing a receiver is a “really good opportunity” for the special servicer “to get in there, understand the property better and access the property if negotiations have broken down, she said.
The receiver, she cautioned, is not a representative of the lender. As manager it may protect the lender, but it is not the lender’s “agent.” However, she said that in reality, the special servicer is able to go to court and indicate a preference for a special servicer, and 90 percent of the time in most jurisdictions, it can obtain the receiver it requested.
Bruce Nelson, principal at Situs Realty Services, noted that the special servicer has the obligation to achieve the highest net present value of the asset. The special servicer’s obligations, he said, include understanding the collateral; running the operations of the collateral through various scenarios; and developing an idea of an appropriate exit strategy.
Kevin Donahue, senior vice president of PNC Real Estate/Midland Loan Services Inc., said that the status of loans in his company’s special servicing portfolio (roughly in the order of greatest to smallest percentage) include: bankruptcy, modification, business plan pending; foreclosure REO; pending return to master servicer; non-monetary default; and discounted payoff.
Jeffrey L. Arpin, partner with Bryan Cave LLP, outlined alternatives for exiting defaulted loans that are not worked out: Selling the note; obtaining a discounted payoff from the borrower; selling the property with the receiver in place; possession through for example foreclosure; or walking away from the loan.
Arpin noted that the note sale market today is mature and very active in certain asset classes, and that note sales remain a “clean” and “easy” option for the lender. A discounted payoff from the borrower is least palatable, he said. The upsides to selling the property through a receiver are that the receiver has access to the property and has a knowledge of operations. The downside is that the special servicer works for the court, and the special servicer may have little control over the receiver.
Nelson, of Situs Realty, said that exit options with cooperative borrowers include: loan modifications, assumptions, bankruptcy, deeds in lieu of foreclosure, discounted payoffs and forbearances. Exit options for the special servicer without a cooperative borrower include: note sale, foreclosure, receiverships, collateral sale through receivership; bankruptcy; REO sale (as is or stabilized) and judgments.
Speakers seemed to agree that foreclosure is one of the least desirable alternatives to the loan holder. Arpin noted that under foreclosure, a lender becomes an owner of the property. “This is probably the riskiest place to be,” he said. He said foreclosure is one of the most costly and most time consuming to the note holder, but also the process through which the most value can be recovered.
Dale Clayton, loan workout team leader, regional manager with KeyBank Real Estate Capital, advised mortgage bankers about what needs to happen after foreclosure. The note holder, he said, should to obtain a clear title—it cannot be assumed that the title will necessarily easily transfer to the new owner; the special servicer needs to make sure the property manager is on top of issues such as payment of taxes at the property—otherwise the owner will be responsible for any liabilities; the note holder needs to prepare a budget upfront ; and the new owner needs to know the value of the property.
“You are the owner. You need to know the deal,” agreed Beau Jones, director of asset management at Prudential Mortgage Capital Co.