In today’s stressful economic climate, commercial property owners often are the victims of their tenants’ problems. While a national tenant may file for bankruptcy with the expectation of reorganizing under Chapter 11 of the Bankruptcy Code, the landlord is left having to service the mortgage without cash flow from that tenant or any ability to commence an eviction or related action as a result of the automatic stay. 11 U.S.C. § 362. Sooner or later (likely sooner), the landlord’s bank will come calling, in the form of a foreclosure action.
While the defaults under the mortgage present their own challenges (the rapid accrual of default interest, late fees and attorney fees and costs), the likely first step in the foreclosure action will be a motion to appoint a receiver; indeed, this requested relief often is sought contemporaneously with the filing of the foreclosure complaint. The motion will seek the appointment of a receiver simply to collect rents or, more often these days, to take full managerial and operational control over the property, divesting the landlord of all its rights and interests (though not title, as of yet). This article details some defenses the borrower, i.e., the landlord, can assert to ward off the appointment.
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