Pub. 10 2020-2021 Issue 6

O V E R A C E N T U R Y : B U I L D I N G B E T T E R B A N K S — H E L P I N G C O L O R A D A N S R E A L I Z E D R E A M S March • April 2021 19 loan that is up for renewal, has an op- portunity to review the loan file for any potential problems sooner rather than later, that diligence can yield dividends in risk management. The following is an exemplar overview of what to review: • Review all loan documents to confirm that all have been signed by all parties (including all notary blocks) and that all documents have been properly dated; • Review all loan documents to con- firm that all referenced exhibits have been attached (especially legal descriptions); • For loans secured by real property, ensure the file contains the final Lender’s Title Insurance Policy and that the legal description in the policy matches the legal description in your deed of trust. Also, review to confirm there were no additional exceptions to title added after closing and before issuance of the policy; • Conduct a UCC search to confirm that liens that were paid at closing have been released and that no new junior liens have been filed without your permission. If there is a junior lienor, consider whether an inter-creditor agreement might be appropriate if there is overlap- ping collateral; and • Obtain updated good standing certificates from the state where the entity is registered and from the state(s) where the entity does business. By way of example for “why” this is important in risk management, in a 1996 Colorado Supreme Court case, the creditor, in line with its strategy, successfully relied upon the lack of sig- natures on several credit agreements to win its case. The case emphasized the strength of the credit agreement statute of fraud in Colorado, codified at § 38- 10-124(2), which generally precludes ei - ther a debtor or a creditor maintaining an action or a claim relating to a credit agreement where the credit agreement is unsigned by the opponent and for more than $25 thousand. That partially executed guaranty in a loan file, when everyone can recall seeing the borrower sign it, but no one can find the borrower-signed copy, creates the lender’s risk of being unable to enforce the guaranty. Resolution, through the execution of a new and retroactive guaranty, can be collabo- rative and amiable, though, when the borrower is seeking a deferral or ex- tension on maturity, and the creditor performs a loan file review under- stand such issues. The adage that a stitch in time saves nine is certainly applicable, especially in or near the down portion of the economic cycle when the potential of having to rely upon guarantees and first position in a bankruptcy is a real possibility. Then, with the borrower and lender in sync on communication and all of the boxes checked in the loan review, the lender still may have to revisit workout routes with its borrower with the loan file in good form due to a contraction in the economy. Tools in the Deferral Negotiations When that time arrives, when the loan is faltering due to decreasing borrower revenue and the borrower needs an extension, but the lender requires added assurances, there are proverbial arrows in the lender’s quiver. In the current market, where softening has occurred in the hos- pitality and restaurant spaces, for example, the borrowers remain the most effective value-enhancing opera- tors of the collateral when the country reopens, in return for loan deferrals, lenders have the option of requesting additional collateral. One often-uti- lized tool for lenders is to have the borrower add increased operating funds, in an amount calculated to assist the borrower in weathering the downturn, to a deposit account in the control of the lender, thereby using the advantages of UCC Article 9 that provide the lender a priority secured interest in the deposit account. Harkening back to the clear communication advice, the key is to be transparent with the borrower in what is being requested and what is being offered. In a 2006 Colorado Court of Appeals case that led to pro- tracted litigation to rectify matters for the creditor, the day after the lender conducted a field audit that revealed the borrowers had defrauded the lend- er for years on the extent and value of collateral, the lender’s representative presented the borrowers deeds of trust to add collateral. The borrowers alleged that the lender’s representa- tive’s verbal statements at the meeting caused the borrowers to believe the lending relationship would continue, and the lender would forbear from calling the loan due. This was not the case, and the lender filed suit on the loan within a month. Clarity, and a follow-up email or letter, may have thwarted the borrowers’ subsequent litigious plans much sooner. Despite that, the lender requesting in good faith additional collateral, in and of itself and consisting of a secured interest in land, in this case, was a tactful strategy. Conclusion The difficulty in discussing neg- ative topics while maintaining the relationship, the chaos of a multi-par- ty deal closing, the strain of renegoti- ating the lending relationship can all contribute to understandable over- sight. That said, the above cyclical reminders on improving communi- cation, reviewing and repairing the loan file, and using effective tools to maintain the loan relationship distill to two concepts — diligence and fore - thought — that, when appropriately applied, redirect the situation to a more positive outcome. The present economic stall is an opportunity to re- visit these concepts for the much-need- ed refresher that lenders and their counsel periodically require. n