Relations between Fortress Investment Group and Cohen Brothers Realty have soured to the point of default claims and counter-lawsuits. In the middle of the fracas is a reported legal maneuver to use the Uniform Commercial Code rather than traditional court appearances to carry out a $533.6 million foreclosure.
Fortress took legal action in March over loans covering seven commercial properties, alleging the default, as Business of Home reported. Cohen Brothers sought to have the suit dismissed, claiming the move resulted from a “11th hour” reversal on a deal between the two that was part of a plan to create a default on the part of Cohen Brothers, as Crain’s New York Business reported. In 2023, a Fortress executive speaking at an event of The Real Deal said that the company doesn’t make loans as a way to take over properties.
A “we said, they said” story but one that has taken an interesting twist as Fortress uses a Uniform Commercial Code foreclosure that offers a faster path to resolution.
As Benzinga has reported, a typical foreclosure would require separate actions on each property in the associated jurisdictions in which they exist. That process could take years. Also, the lender looking for foreclosure can’t set a minimum price, so a buyer could pay far less than what was owed to the lender.
The UCC process is different, as law firm Pillsbury noted. It does allow for a strict foreclosure, but also other “‘self-help’ remedies that are available to lenders under the UCC and that are more expeditious (i.e., faster and cheaper) to complete,” they wrote, specifically discussing mezzanine lending. “These remedies—which are subject to UCC requirements that supplement (and often override) provisions in the mezzanine loan security documents—are a public sale, a private sale or strict foreclosure.
Pillsbury describes a public sales as one with opportunity for competitive bidding and an advertisement to alert the general public.
“A successful U.C.C. foreclosure would give the winning bidder direct control over Cohen Brothers via equity shares,” Benzinga wrote. “That means they could not only sell off the assets securing the loan to recoup their investment, but they could do it without any court-appointed intermediaries or auctions to slow down the process. They would also have more control over the final sale price.”
So far, CRE lenders have faced the prospect of taking over a property, waiting for the borrower to find refinancing, or using a so-called “extend and pretend” approach of extending the loan term and pretending on their balance sheets that there was of yet no loss.
The UCC route could provide additional options to lenders, complicating the calculus of borrowers with troubled properties.