Uniform Commercial Real Estate Receivership Act

Uniform Commercial Real Estate Receivership Act Uniform Commercial Real Estate Receivership Act - Start

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Uniform Commercial Real Estate Receivership Act




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Uniform Commercial Real Estate Receivership Act

Thomas S. HemmendingerBrennan, Recupero, Cascione, Scungio & McAllister, LLPPrepared for the Rhode Island Bar AssociationSeptember 26, 2016

9/26/2016

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Uniform Law Commission

Project approval 2011Study process 2011-12Drafting process 2012-159/26/2016

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Our Goals

Guidance to courts and litigantsPreserve the flexibility of the remedy9/26/2016

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Our Objectives—Clarity

Grounds for appointmentReceiver’s powersSale of real estateThird party rights9/26/2016

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Notice and Opportunity for Hearing—Section 3

Common senseConstitutional9/26/2016

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Scope of the Act—Section 4

Commercial propertyNot consumer propertyCommercial carve-outs to exception9/26/2016

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Grounds for Appointment—Section 6

Waste, loss, dissipation, or impairmentVoidable transactionPost-judgmentEquity catch-allMortgage foreclosure9/26/2016

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Receiver’s Qualifications—Section 7

IndependenceCourt has final say9/26/2016

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Lien Creditor Status—Section 9

UCC Article 9 for personal propertyOther law for real property9/26/2016

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After-acquired Property-Section 10

RentsRevenue9/26/2016

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Collection and Turnover of Property—Section 11

Owner must assist, turn over, preserve, and identifyReceivership propertyDebts owedPossessory liensNoncompliance9/26/2016

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Powers and Duties of Receiver—Section 12

General powers and dutiesPowers the court may grantDuties the court may impose9/26/2016

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Stay; Injunction—Section 14

Stay to protect receivership property and facilitate administration of caseInjunction as neededLimitationsPlaintiff’s foreclosurePerfection of liensGovernmental matters9/26/2016

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Sales Outside the Ordinary Course of Business—Section 16

Free and clear of liensSenior liensFlexible processLiens attach to proceeds9/26/2016

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Sales Outside the Ordinary Course of Business—Section 16

Court must approve on noticeMarketable, insurable title9/26/2016

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Sales Outside the Ordinary Course of Business—Section 16

Safe-HarborApplies to appealsApplies to other requests for reliefPreserves a good faith buyer’s title9/26/2016

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Borrowing—Section 12

Ordinary course of businessOutside the ordinary courseCollateral security9/26/2016

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Executory Contracts—Section 17

Codifies the common lawTenant in receivershipLandlord in receivership9/26/2016

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Immunities and Personal Liability—Section 18

Defers to other lawThe Barton doctrine9/26/2016

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Notice to Creditors and the Claims Process—Section 20

Meaningful and productive noticeClaims processDistribution to creditors9/26/2016

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Ancillary Receivership—Section 24

Facilitates inter-state projectsMain court and ancillary court9/26/2016

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Administrative Fees and Expenses—Section 21

Reasonable and necessary feesSpecial casesPetitionerWaster of assets9/26/2016

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All questions answered . . .

All knowledge shared9/26/2016

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Thank you for your time and interest. For more

info:Thomas S. HemmendingerBr

ennan, Recupero, Cascione, Scungio & McAllister, LLP

362 Broadway

Providence, RI 02909

Tel. (401) 453-2300

Fax (401) 453-2345

themmendinger@brcsm.com

www.brcsm.com

Benjamin Orzeske

Chief Counsel

Uniform Law Commission

111 N. Wabash Avenue, Suite 1010

Chicago, IL 60602

Tel. (312) 450‐6621

Fax (312) 450-6601

borzeske@uniformlaws.org

www.uniformlaws.org

9/26/2016

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Thomas S. Hemmendinger

THOMAS S. HEMMENDINGER is of counsel to Brennan, Recupero, Cascione, Scungio & McAllister, LLP, with offices in RI and MA. He counsels financial institutions, logistics companies, and other businesses on commercial transactions, commercial litigation, bankruptcy, and receivership. He is the author of HILLMAN ON COMMERCIAL LOAN DOCUMENTATION (Practicing Law Institute, New York).Tom is a member of the Uniform Law Commission and, most recently, served as the chairperson of the ULC drafting committee for the Uniform Commercial Real Estate Receivership Act (2015). He is a Fellow of the American College of Commercial Finance Lawyers and a member of the American Bankruptcy Institute, the American Bar Association, and the Association of Commercial Finance Attorneys.

He received his A.B. from Brown University and his J.D. from the University of North Carolina School of Law. He is admitted to practice in Massachusetts and Rhode Island

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9/26/2016

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