Matching Challenge for Children’s Home

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Matching Challenge for Children’s Home

Please join Regal Properties in an effort to build much-needed children’s housing for Hogar Infantil, near Tijuana.  Currently, when the children reach the age of about 12-13 they have to be turned away from the existing home and split up from their siblings because of insufficient resources and facilities.  Some of them are quickly recruited and exploited for illicit purposes like prostitution.  Therefore, Hogar Infantil has a goal to build 4 large houses on its property, at a cost of $150,000 each, which will be used to address this need.  Fortunately, an anonymous benefactor who shares the desire and commitment to build these 4 houses, will match every dollar pledged or contributed by you toward this cause during this month of November.  In other words, your gift of $100 = $200, and your gift of $10,000 = $20,000!  No gift is too small, and the donor will match up to $150,000 (which means we can get 2 houses for the price of 1).  All donations are tax deductible.

Please help by mailing a check TODAY, payable to Hogar Infantil, Inc. c/o Regal Properties, at 690 West B Street, San Diego, CA 92101, and reference “Matching Challenge” on the check memo, and you will receive a receipt for your tax deductible contribution. 

For more information about this children’s home, visit www.Hogar-Infantil.org.

Thank you!

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Retail Rents and Occupancy Rates Continue to Climb Going Into 2014

Heading into 2014, a robust demand for retail space continues to drive down vacancy rates and drive up rents across the nation, according to CoStar. After closing some stores in 2010, many national tenants have begun expanding again, seeking space to open new stores. For example, less than two years ago many commercial real estate analysts predicted the demise of Starbucks while the company braked growth and even closed some stores; but now Starbucks has resumed opening stores, including some it previously closed.

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Regal Properties Leads the Pack in 2013 Deal Closings

Less than one year after closing one of the largest retail purchase transactions in the United States, in 2013 Regal Properties has already successfully closed: (1) the purchase of a 40,000 square foot retail center on Cave Creek Road in Phoenix, (2) the purchase from a bank of a broken residential subdivision in Kerman, California, (3) the purchase of a 12,600 square foot automotive center in Phoenix, and (4) the office lease negotiations, on behalf of 22 tenant-in-common owners, for 123,000 square feet of rentable space occupied by US Cellular in Tulsa, Oklahoma.  Before the end of 2013, Regal Properties expects additional closings in the retail, hospitality, land, office, self-storage and residential sectors based on currently pending transactions and activities.

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122,826 Square Foot Office Lease Negotiated with National Credit Tenant in Tulsa, OK

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Regal Properties successfully negotiated on behalf of 22 tenant-in-common owners of a distressed office building in Tulsa, Oklahoma, a lease with USCC Real Estate Corporation (US Cellular) for 122,826 rentable square feet in this Union Pines Building at 4700 South Garnett Road.  Regal Properties has since been retained by the owners to sell the property.

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Shopping Center in Phoenix, AZ

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Regal Properties represented the buyer in the purchase of this 40,000 square foot retail shopping center on Cave Creek Road in Phoenix, Arizona.

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The Shops at Lake Havasu — 704,000 Square Foot Regional Mall Sold by Regal Properties

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Regal Properties represented BOTH the buyer and seller in the purchase and sale of this 704,000 square foot regional mall for less than $22 per square foot, after successfully facilitating an enormous loan write-down and riddance of the seller’s personal guarantee, in what has been referred to as “the commercial real estate transaction of the year.” Regal Properties orchestrated a complex workout with the seller, existing lender and anchor tenant to enable the buyer’s purchase and the seller’s release of liability to the lender.

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Automotive Center in Phoenix generates 11% Cash-on-Cash with Upside for Investors

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Regal Properties brokered the purchase of this 12,600 square foot automotive center in Phoenix, Arizona, which generates a cash-on-cash return of 11% for the investors in year 1, with remaining value-add potential in the lease-up of the existing vacant space, and a projected IRR of 25%.

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Commercial Real Estate Loan Workout Strategies

Increasing vacancies, decreasing rents, negative cash flows, rising cap rates, imprecise valuations, severely constrained financing, and personal guaranties will continue to put severe pressure on over-leveraged commercial real estate owners during the next few years. As the wave of commercial property loan defaults begins to crest, borrowers should be armed and prepared with practical strategies and solutions for dealing with their under-performing properties and maturing loans.

Foresight Analytics recently estimated about two-thirds of the $800 billion in commercial real estate (“CRE”) loans held by banks, maturing in the next 5 years, exceed the value of the property. U.S. bank regulators increasingly complain losses on souring CRE loans pose the biggest risk to lenders. “The most prominent area of risk for rising credit losses at FDIC-insured institutions during the next several quarters is in CRE lending,” FDIC Chairman Sheila Bair recently said. “Prudent loan workouts are often in the best interest of financial institutions and borrowers.”

Consequently, regulators have recently issued new guidelines to help the institutions modify loan agreements. On September 16, 2009, the IRS issued eagerly anticipated guidance of significant help to borrowers with conduit financing (securitized loans). This guidance will allow some commercial mortgage loans held by Real Estate Mortgage Investment Conduits (“REMICS”) to be modified prior to default, without triggering adverse tax consequences to the holder. According to Foresight Analytics, the flexibility recently extended by regulators will apply to about $110-$130 billion of the $800 billion in underwater loans.

Lenders and loan servicers will almost certainly become increasingly overwhelmed and inundated with troubled loans in 2010. Borrowers with distressed properties must prepare themselves to understand and compare all of their options, and then take a proactive and timely approach to alleviating their financial distress.

Maturing Loans

In a maturing loan situation, when no other financing seems to be available, it may be possible to simply extend the existing loan for a fee (usually ½ to 1 point), in order to buy up to 2 years. Under these circumstances, a borrower would be well advised to approach its lender, approximately 4-6 months before the loan matures, with evidence of the borrower’s unsuccessful refinance efforts and a specific proposal for the extension. As part of the proposed extension, the borrower might also request other modifications such as an interest rate reduction, if appropriate.

Good Money After Bad

In a distressed property situation, a borrower should first carefully consider whether it makes economic sense to even try to save the property. Throwing good money after bad makes no sense. In making this determination, the borrower must formulate realistic projections about the net operating income, cash flow and cap rate over the next 1-3 years, and consider the opportunity cost of nursing an ailing property back to health instead of investing the resources into something more stable and profitable. Tax ramifications should also be carefully considered.

Perhaps some equity and profit can still be preserved by a normal sale. However, if the borrower has no remaining equity, and his or her projections show little prospect for a timely recovery, then a short sale or deed in lieu of foreclosure might make more economic sense. Both of these options require the lender’s cooperation, and both may have significant tax and legal consequences, including with respect to previous tax-deferred exchanges and any forgiveness of recourse debt.

Loan Workouts and Modifications

In other situations, modification of various loan terms and other workout possibilities might provide the means for the investors and lender to salvage more of their investment and minimize their respective losses. The workout might include an interest rate reduction, amortization schedule adjustment and, in rare cases, a forbearance or principal reduction.

Several factors can influence the loan workout process. For example, a commercial bank will generally have more flexibility than a special servicer for a commercial mortgage-backed security (“CMBS”), especially with regard to principal reduction. The lender’s willingness to negotiate a workout may also depend on the story of how the property has changed, and whether the proposed modification will fix the problem causing the distress.

Certain strategies will also enhance the borrower’s ability to achieve a desired loan modification. The borrower should approach the lender early, before feeding the property for several months, and before going into default. Though not a necessity, it sometimes takes a monetary default for a CMBS loan to get transferred from a general servicer to a special servicer with workout authority.

Lenders and loan servicers have their hands full now and, therefore, the borrower should make its case easily comprehensible and thorough by including an historical and pro-forma cash flow model, credible and fresh market research, and a detailed strategy for emerging from the distress situation. The borrower must recognize that the lender/servicer desires a sound borrower and asset manager, who contribute to the modification and who will not default in the future. In general, the borrower will benefit by presenting multiple modification options. CMBS loan servicers may also require an illustration of the net present value of various modification options.

Illustration

The following example illustrates some typical differences in commercial underwriting criteria and economics for the same property in 2007 and 2009:

2007 Origination Underwriting

2009 Refinance Underwriting

Valuation/Price

$10,000,000

$4,533,333

Cap Rate

6.0%

9.0%

NOI

$600,000

$408,000

LTV

80%

65%

Loan Amount

$8,000,000

$2,946,667

Required Equity

$2,000,000

$5,053,333 additional

Amortization

Interest-only 2 years of 30

25 years

10 Yr Treasury

4.70%

2.85%

Credit Spread

45

500

Swap Spread

50

25

Total Interest Rate

5.65%

8.10%

Debt Service

$545,455

$275,261

DCR

1.10

1.30

In addition to more stringent underwriting criteria shown in the 2009 refinance column, the NOI in this example decreased after the loan origination in 2007, due to increased vacancy rates, rent reductions, and expenses. Assuming the vacancy rate is now 15% instead of 5%, and rents are now 20% less than they were in 2007, then the NOI might approximate $408,000 instead of $600,000, and the property might easily have gone from having a good positive cash flow to a distressing negative cash flow. Using today’s cap rate of 9%, the property value has plummeted from $10,000,000 to $4,533,333, as shown in the 2009 column, such that all equity has been lost, and refinancing has become economically infeasible due to the current equity shortfall of $5,053,333.

In this situation, the borrower might consider multiple concurrent strategies, including a short sale or deed in lieu of foreclosure (with a release of any guarantor), and a loan modification. The loan modification might include re-amortization over a longer period, with a reduction in the interest rate, and an elimination of principal reduction for a period of time sufficient to allow the property owner an opportunity to fill vacancies and improve rental income. In appropriate situations, the loan modification might even include a discount of the principal balance on the note as a means of incentivizing the owner to continue operating the property at least until it returns to stabilization. However, the lender may also require the borrower to demonstrate its continued financial commitment to the property by putting additional cash into an interest reserve or toward a principal pay-down.

Importance of Consultants

The importance of knowledgeable and experienced consultants to guide the borrower and guarantors through the process of a loan workout cannot be overstated. Borrowers will need to perform objective and sophisticated economic analyses and feasibility studies, income and expense projections, and property valuations. Terms and agreements will need to be negotiated with lenders and servicers. Transactions must be carefully documented for legal and tax purposes. Additionally, even a capable borrower would do well to employ a third party consultant to act as his or her negotiator and intermediary, and to provide emotionally and financially detached objectivity and advice.

In a typical workout situation, the borrower will need a team of professionals which include a CRE lawyer, tax advisor, possibly a broker to provide a Broker Price Opinion to the lender and/or to market the property, and an economic/financial consultant to assist with preparing income and expense projections, forecasts, valuations and feasibility analyses. In some less common situations, other consultants may be beneficial, including bankruptcy counsel and litigation counsel.

Planning and Preparation

Strategic planning and preparation will greatly enhance a borrower’s chances of preserving invested capital, minimizing economic losses, and weathering the CRE storm. Borrowers and guarantors should carefully consider all of their options, and the consequences of each, with the assistance of qualified consultants. Then, if the workout strategy includes a potential loan modification, the borrower should present the lender or servicer with substantiated cash flow models, credible market research, and a detailed strategy for emerging from the distress situation.

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* Larry Murnane is a broker and lawyer in San Diego, California, emphasizing commercial real estate transactions, including CRE loan modifications and extensions. He is also the founder of Regal Properties, a Commercial Real Estate Investment Company licensed by the California Department of Real Estate, which works with a team of experienced consultants handling a variety of CRE loan workouts.

This article is for general informational purposes only, and should not be considered legal, tax, business or investment advice for any particular person or matter. Each situation is unique in some respect, and the law as well as the real estate and financial markets and institutions are constantly changing, such that this article or the information in it may not apply to a particular situation, or may no longer be current and accurate.

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California Real Estate Foreclosure Procedures, Timelines and Strategies for Lenders and Borrowers

This article will provide a general summary of real property foreclosure procedures, timelines and strategies for borrowers and lenders in California.

As a precursor, it helps to understand that the creditor typically has a promissory note evidencing the loan or mortgage, which is secured by a recorded deed of trust. The deed of trust identifies the trustor, trustee and beneficiary, as well as the property securing the note. The truster is the debtor, and the beneficiary is the lender. The trustee is a neutral third party instructed to cancel the note and reconvey the deed of trust upon payment of the obligation, or to foreclose on the property in the event of a default on payment of the note. Trustees will almost always require the original note to do either.

The beneficiary/lender holding a deed of trust may generally foreclose by two different methods in California: (1) judicial foreclosure, and (2) non-judicial foreclosure (power of sale auction). The latter method constitutes about 99% of all foreclosures in California, for reasons discussed below.

Judicial Foreclosure 

A judicial foreclosure requires court action (lawsuit before a judge), and is generally used only to resolve complex and subjective issues and disputes involving the chain of title, destruction of property (“waste”), and fraud. The other primary advantage to this method of foreclosure is the possibility of obtaining a deficiency judgment (i.e., a judgment against the debtor for the difference between the value of the foreclosed property and the amount of the debt).

The primary disadvantage to a judicial foreclosure, and the reason so few creditors choose this route, is that the court action typically takes 8-14 months, at substantial expense to the creditor. The foreclosing creditor usually must hire an attorney to prosecute the case, while the debtor continues to occupy the property (and sometimes intentionally damage and strip it) without making any mortgage payments. Further, the outcome of the lawsuit can be uncertain. For these reasons, very few creditors pursue this method of foreclosure.

Non-Judicial Foreclosure

 A secured creditor may pursue a non-judicial foreclosure if the deed of trust includes a “power-of-sale” clause authorizing the trustee to sell the property for monetary default, as is common. This primary advantages to this method include expediency, relatively low costs, and a more certain schedule and outcome. A non-judicial foreclosure generally takes about 4-5 months to complete if handled by a qualified trustee. The primary disadvantage is the creditor’s inability to obtain a deficiency judgment against the debtor.

The non-judicial foreclosure process basically involves three stages: (1) recording a Notice of Default, (2) publication, posting and mailing of a Notice of Sale, and (3) the trustee’s sale.

In the first stage, the lender/beneficiary informs the trustee that the borrower/trustor has defaulted. The trustee then prepares and has the lender execute a Substitution of Trustee and a Notice of Default, which the trustee then records with the County Recorder and mails to the borrower and other parties who have recorded a Special Request for Notice. The trustee also orders a trustee sale guarantee from a title company. (For owner-occupied residential property, Senate Bill 1137, effective as of September 6, 2008, requires the lender/beneficiary make certain efforts to contact the borrower at least 30 days prior to recording a Notice of Default.) The borrower has a 3-month opportunity from the recording of the Notice of Default to bring the account current with the lender or to pay off the entire debt. (Senate Bill 7 and Assembly Bill 7, expected to become effective in May 2009, and expire on January 1, 2011, provide that for loans secured by a first deed of trust, recorded between January 1, 2003 and January 1, 2008, on the borrower’s principal residence, the reinstatement period is 3 months plus 90 days, subject to possible exemption for a lender with a “comprehensive loan modification program.”)

In the second stage, the trustee mails a Notice of Sale to the IRS and California Franchise Tax Board, if required, at least 25 days prior to the sale date; and at least 20 days prior to the sale date mails the same notice to the borrower and other parties requesting notice, and posts the Notice of Sale on the property and in a public place, usually the county courthouse. The trustee must also publish the notice for three consecutive weeks in a newspaper within the judicial district, the cost of which can be substantial in some areas. For owner-occupied residential property, Senate Bill 1137 also requires posting of a Notice to Residents and mailing of a Notice to Residents. The Notice of Sale is recorded with the County Recorder’s Office 14 days prior to the sale.

In the third and final stage, the borrower’s reinstatement right expires five business days prior to the sale date, and the property is sold on the sale date, usually on the courthouse steps, to the highest bidder. At the sale, the beneficiary gets a credit for the opening bid, in an amount equal to the monies due the lender plus foreclosure fees and costs. Anyone else bidding at the sale must have cashier’s checks (payable to the bidder in case they are not used). After the sale, the trustee records the trustee’s deed and disburses funds to the lender. The successful bidder cannot obtain title insurance with respect to the purchase, though subsequent purchasers can.

Under Senate Bill 1137, the party taking title at the trustee’s sale must also maintain the property, or risk a fine of $1,000 per day, and any tenants (other than the borrower/owner) must be given 60 days notice prior to being required to quit the property. Tenants can be required to pay rent during their occupancy.

Lender Strategic Recommendations 

Contact a reputable trustee to handle the entire foreclosure proceeding. The California Civil Code generally allows for either the trustee’s fees or attorney’s fees to be passed on to the borrower through a non-judicial foreclosure, but not both. The trustee’s fees are fixed by statute at 1% of the debt balance, so unless the attorney can handle the entire foreclosure proceeding for less, it will be more economical to retain the trustee as soon as possible.

After the sale, make sure any former owner-occupants receive a 3-day notice to quit, and any other tenants receive a 60-day notice to quit (assuming the city in which the property is located has not imposed a moratorium on evicting tenants of foreclosed residential properties). Because it can be tough to identify all of the occupants, and a defective notice has no legal effect, a 60-day notice is always safer. A plan to reasonably maintain the property should also be promptly implemented to avoid potential fines. In this regard, some lenders may find it economically prudent to offer the occupants approximately $1,000 to turn over the property in good and undamaged condition, along with the keys at the time of sale.

Borrower Strategic Recommendations

A borrower in default or on the verge of default should promptly contact the lender to discuss options, including: (1) forbearance or restructuring of the loan, (2) a short sale, and (3) a deed-in-lieu-of-foreclosure. Often lenders would rather modify the loan (e.g., lower the interest rate, re-amortize the loan over 40 years, reduce or defer a portion of the principal balance, etc.) and forgive late fees than take the property back. However, assuming the borrower and the lender cannot agree on a loan modification or forbearance, the borrower should ask the lender if it will agree to a short sale or a deed-in-lieu-of-foreclosure.

In a short sale, the lender agrees to accept less than the amount owed on the loan because the loan amount exceeds the property value. Before signing a purchase and sale agreement contemplating a short sale, the seller should get the lender’s approval, or condition the sale on the lender’s approval within a specific timeframe. If more than one lender is involved, both will have to be consulted, and the holder of the first deed of trust will usually need to agree to give the holder of the second at least a small portion of the sale proceeds in exchange for cooperation.

A deed-in-lieu-of-foreclosure only works if the lender desires to take back the property. If so, the borrower can offer to deed the property back to the lender, and pay for the lender’s title insurance policy (to protect against junior liens), for the purpose of avoiding the expense and embarrassment of foreclosure and, possibly, preserving a better credit rating. The lender will also want to make sure commercial property or vacant land has not been environmentally contaminated, and may even require the borrower’s indemnification against this risk.

If the lender will not cooperate with the above three strategies, and the foreclosure sale appears imminent, the borrower can possibly delay the sale by: (1) asking the lender to postpone the sale to allow more time for reinstatement, (2) filing for bankruptcy protection, (3) seeking a court injunction, and (4) requiring the lender to produce the original promissory note (which sometimes gets lost in the packaging and bulk-selling of loans). However, employing any of these tactics will simply delay the trustee’s sale, not prevent it. Filing a homestead exemption, transferring title, leasing the property, and even death, will not likely avoid or delay the inevitable.

As stated above, the debtor has no personal liability for the deficiency in the event of a trustee’s sale. However, this difference between the balance of the mortgage and the sale price has generally resulted in taxable “phantom income” to the borrower in the form of forgiveness of debt, causing the lender to send the borrower a 1099-C. The recent Mortgage Forgiveness Debt Relief Act of 2007, now excludes from gross income any amounts attributable to discharge of indebtedness incurred to acquire a principal residence, up to $2,000,000, until January 1, 2010. California’s Franchise Tax Board has adopted similar provisions. This benefit only applies to taxpayers who lose their homes in 2007-2009, and does not apply to investment properties or second homes, or to mortgages incurred subsequent to the home purchase.

Summary & Conclusions

Foreclosures have grown at such an alarming rate in recent years that law makers have attempted to stem the tide with recent legislation designed to force lenders to slow down the process and work with borrowers for alternative solutions. Lenders have been encouraged to adopt loan modification programs intended to help borrowers stay in their homes. Such programs typically include some combination of an interest rate reduction, extended amortization period, deferral of a portion of the principal amount until loan maturity, and reduction of principal, in order to target a ratio of the borrower’s housing-related debt to the borrower’s gross income of 38% or less.

In those situations where the borrower simply cannot or will not cure the default or reach a loan modification agreement with the lender, or the lender will not agree to a short sale or a deed-in-lieu-of-foreclosure, then the lender will likely commence a non-judicial foreclosure, which will take at least four months to complete (while the borrower is not making any payments). Upon such foreclosure, the borrower loses his or her entire ownership interest in the property, but will not be liable for the deficiency; and the lender now has a distressed property on the books to maintain and sell. Therefore, the borrower and the lender might both have been better off if they had successfully negotiated an alternative solution with the help of an objective, qualified professional.

This article is for general informational purposes only, and should not be considered legal advice for any particular matter. Each situation is unique in some respect, and the law is constantly and rapidly changing, such that the information in this article might not apply to a particular situation, or may no longer be current and accurate at the time of reading.

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The Landlord’s Response to a Retail Tenant’s Request for Rent Reduction

Retail landlord’s everywhere have almost certainly experienced tenant requests for rent reductions during these challenging economic times. When responding to such requests, the landlord should consider doing the following:

1. Require a written confidentiality agreement before discussing any rent or other lease modifications with the tenant, to reduce the risk of opening a Pandora’s Box with other tenants.

2. Ask the tenant to provide a current financial statement, a report of annual sales for the last 2 years (to show trending), and the most recent income tax returns, to assist the landlord in confirming the need and amount of an appropriate rent adjustment.

3. Ask the tenant how he or she plans to repay the abated rent, explaining that any abatement is merely a temporary measure to improve cash flow, and must be tacked on to the end of the lease or otherwise included in a restructure.

4. Inform the tenant that any abatement will be personal to tenant, and non-assignable, and will be conditioned on the following:

(a) Tenant shall remain open for business and not be in default beyond any applicable cure period;

(b) Tenant shall report its gross monthly sales to landlord by the tenth day of every month;

(c) Landlord shall have the right to terminate the lease and recapture the space, upon sixty days prior written notice, for the duration of the lease term;

(d) Tenant shall forfeit any options to renew or extend the lease;

(e) Any exclusive use provision in the lease shall be stricken.

(f) Tenant shall provide landlord with an estoppel certificate confirming the lease is in full force and effect, landlord is not in default or breach of any lease provision, and tenant has no right to any other credits, reductions, offsets, defenses, free rent, rent concessions, allowances or abatements of rent under the lease;

(g) Tenant shall obtain the prior written consent of any lease guarantors for the proposed amendment or modification of the lease; and

(h) In the event of an uncured default or breach of the lease, then all conditionally abated rent shall become immediately due and payable to landlord.

Any modification of lease terms, including the abatement or restructuring of rent, should be properly documented in the form of a mutually executed amendment to lease, using terms consistent with the lease and prior amendments, by a lawyer or broker skilled in drafting such agreements.

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