While it is impossible to forecast exactly what 2025 and beyond will mean for workouts, the ingredients are there for an increase. satisfying its payments and falling short of other loan obligations may present a different challenge. A favorable climate for borrowers over the last decade led to some heavily negotiated loan terms and borrower‑friendly provisions in loan agreements, including favorable grace periods, financial covenants and cure provisions. Some banks find themselves saddled with these provisions in the hands of uncooperative borrowers. This has led some banks to re-evaluate their relationship with these borrowers. But preparation in this situation can also mean patience. Just like a borrower did not fall into distress in a day, the relationship cannot be fixed in a day. If a borrower is continually falling short on debt service coverage reporting, and generally being difficult, it may be time to try to convince the borrower to refinance. Banks may also be tempted to invoke non-monetary defaults in these situations. While this may be possible, a lender would be wise to follow the loan agreement closely and carefully document the defaults. The case of Bailey Tool & Manufacturing Company1 should be a warning to ensure that non-payment defaults are carefully enforced. In that case, the lender declared a default after deeming itself insecure among other defaults. Eventually, the lender took control of the borrower’s accounts and receivables, blocked the borrower from making payroll, and tried to replace the borrower’s management and otherwise “micromanaged” the company. Ultimately the borrower filed bankruptcy and sued the lender, obtaining a significant judgment including punitive damages. In another case of interest to non‑payment defaults, Beaumont Lamar Apartments LLC v. Wallis Bank,2 the lender grew frustrated with the borrower’s delays in construction (which were not the fault of the borrower) and ultimately refused to continue to fund the project and accelerated the loan. The borrower initiated a variety of claims against the bank and its individual directors for negligence, fraud and breach of fiduciary duty. The bank sought summary judgment on these claims, which was denied, forcing further litigation and ultimately settlement. Non-payment defaults take a variety of forms, and any attempt to initiate a lawsuit against a borrower based on a non-payment default should be viewed objectively and coordinated with legal counsel from the beginning. Each distressed borrower presents its own challenges for a workout, whether the default is a payment or non‑payment default. While it is impossible to forecast exactly what 2025 and beyond will mean for workouts, the ingredients are there for an increase. So, as you prepare for the next year, don’t forget special asset planning as part of your bank’s resolutions for a productive and profitable new year! Michael R. Proctor serves as Special Counsel in the Canonsburg, Pennsylvania, office of Bowles Rice LLP. Admitted to practice in Pennsylvania, West Virginia and Ohio, Proctor focuses his practice in the areas of bankruptcy and commercial law. Contact Mike at (724) 514-8934 or mproctor@bowlesrice.com. 1. 2021 WL 6101847 (Bankr. N.D. Tex. Dec. 23, 2021). 2. 2024 WL 455343 (N.D. Tex. Feb. 6, 2024). 12 West Virginia Banker
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