The concept of controlonomics is core to lenders' strategies in both loan origination and loan servicing. Specifically, applying controlonomics to a defaulted commercial real estate loan means not just control, but aggressive and tight control.
This type of governance also often means having a court-appointed receiver to control the operation, management and maintenance of the mortgaged property, control the income from the mortgaged property, and – by virtue of the foregoing – better control of the foreclosure process.
Controlonomics themes are embedded within well-drafted loan documents in commercial lending transactions. A well-drafted deed of trust or mortgage (in this article, both referred to as a mortgage) includes a provision regarding the assignment of leases and rents, and in some lenders' loan-closing packages, a separate stand-alone document titled ‘Assignment of Leases and Rents’ will be found.
Some lenders engaging in a heavy application of controlonomics have this provision in both the mortgage and the stand-alone assignment of leases and rents document.
Key words and phrases found in typical assignment of leases and rents provisions – known collectively as the Assignment of Leases and Rents Covenant – include the following:
- Unequivocal language that the borrower (referred to in deeds of trust as the trustor and in mortgages as the mortgagor) ‘irrevocably, absolutely, presently and unconditionally assigns to lender (sometimes referred to in deeds of trust as beneficiary and in mortgages as the mortgagee) all rents, royalties, issues, profits, revenue, income and proceeds of the mortgaged property (collectively known as the rents),’ and assigns all its right, title and interest in and to all the leases and agreements of any kind relating to occupancy of the mortgaged property (collectively known as the leases) to the lender.
- So long as there has not been an event of default (as defined in the mortgage, loan agreement or other loan documents), the borrower has a license to collect and retain the rents.
- If an event of default has occurred, however, and is continuing, the lender shall have the right to terminate the license without notice to or demand upon the borrower and without regard to the adequacy of the lender's security under the mortgage.
- If there has been an event of default, the lender has the right to have a receiver appointed to collect the rents – although this provision may sometimes appear in the section of the mortgage titled ‘Remedies,’ which outlines all actions a lender may take if there has been an event of default.
Receiver appointment
The right to have a receiver appointed by the court may be viewed as a contractual right or statutory right – or both – depending on the state where the mortgaged property is located, or whose law governs the enforcement of the loan documents containing the Assignment of Leases and Rents Covenant.
In California, there is a long line of cases that have addressed the enforceability of contractual provisions in a mortgage granting a secured lender the right to collect the rents pursuant to the terms of the Assignment of Leases and Rents Covenant following an event of default, and the right to have a receiver appointed.
The power of the court to specifically enforce the Assignment of Leases and Rents Covenant through the appointment of a receiver has been consistently recognized.
Moreover, it has been commonly recognized that in the case of an express assignment of rents in a mortgage, the lender is not required to allege or prove that the property itself is insufficient to discharge the secured debt. All that must be shown to the court is that there has been an event of default.
Judicial procedure for appointment of a receiver may differ from state to state. In California, a lawsuit is filed and must include a cause of action for the specific performance of the Assignment of Leases and Rents Covenant, which provides an independent contractual basis for the appointment of a receiver.
The court then appoints a third party, who is generally an individual or company recommended by the lender – but who by law is an independent agent appointed by the court, acting on behalf of the court (and not the lender). This third party is held accountable to the court.
Controlonomics in the realm of receivership law require a well-drafted court order spelling out the scope of responsibility and authority of the receiver.
For instance, the order may authorize the receiver to simply collect monthly rents, or it may be drafted broadly enough to provide the receiver with the power and authority to market and sell the mortgaged property. It will seldom, however, give the receiver control over assets of the borrower other than the rents and the mortgaged property.
Foreclosure strategy
Whether a high-tower office building, roadside motel or 12-unit apartment building secures the loan that is in default, controlonomics dictate that the lender will exercise its rights pursuant to the Assignment of Leases and Rents Covenant to control the rents from the mortgaged property so that the borrower does not collect the rents – or instead of applying the rents to the outstanding indebtedness, pockets or diverts the rents for other business purposes or personal use.
Controlonomics also dictate that the lender will want to control the mortgaged property, and thereby avoid deterioration of the mortgaged property whether by deferred maintenance or inattention to tenant needs and landlord defaults of leases. A borrower who expects to be foreclosed upon is not likely to exercise prudent property management.
In summary, the lender wants to control the status quo through the date of the foreclosure sale when the mortgaged property is sold to a third party, or if no bidder at sale, at such time that the lender becomes the owner of the mortgaged property.
A well-planned foreclosure strategy must necessarily include whether controlonomics require the appointment of receiver. While there may be some justifiable reasons why a lender may opt not to have a receiver appointed, consultation with counsel should be part of the decision-making process.
Gordon L. Gerson is a principal of Gerson Law Firm APC in San Diego, Calif. He represents lenders throughout the U.S. in loan originations and loan servicing matters, including loans secured by commercial, industrial, multifamily, lodging and other character property. Gerson can be reached at ggerson@gersonlaw.com or (858) 452-5400.
