ABSTRACT. The. President s Column. Spring American College of Mortgage Attorneys CONTENTS

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1 Spring 2015 The ABSTRACT American College of Mortgage Attorneys CONTENTS 1 President s Column 3 Editor s Notes 4 Executive Director s Column Top Ten Tips for Lawyers Delivering Opinion Letters in Commercial Mortgage Loan Transactions 8 Wrongful Securitization Claims and Foreclosure Audits 11 The Bankruptcy Trustee s Avoidance Powers in Wisconsin s Dual Index Recording Environment 15 Canada s Business Environment is Too Cold: Target Goes Home! 18 Technology Update 18 ACMA Fellows in the News 18 Deadline for New Fellow Nominations 19 Save The Date: 2015 Annual Meeting 19 ACMA 2015 New Fellows 20 ACMA Committees 9707 Key West Avenue, Suite 100 Rockville, Maryland T (301) F (301) E W President s Column By Louis S. Pettey It is impossible to begin the first official ACMA communication in 2015 without lamenting the retirement of our longtime executive director, Beverly Levy. Any attempt on my part to put in writing the significance of the many contributions that Bev Levy made to the growth, maintenance, and success of ACMA over the past 15 years will inevitably fall woefully short. Many of us have simply enjoyed the fluid, seamless management of ACMA activities and publications without knowing how it all really takes place, but those of us who have served the College as state chair, committee chair, or in an executive position have all known that Bev was the glue that held it all together. Her management of the activities and publications of ACMA was important, but her skill in understanding people and her institutional knowledge of ACMA and its membership will be sorely missed. We warmly wish Bev and her husband (and our friend), Steve, a happy, healthy, and dynamic retirement. At the same time, we would like to welcome our incoming executive director, Carol Walsh. Carol has big shoes to fill following Bev, but having worked closely with Carol over these past few months, I am confident that our membership will find her equal to the task. If you are attending the Spring Meeting, please take the time to introduce yourself to Carol. As the newly installed president of ACMA, I was confronted with what at first glance appeared to be a daunting task of rotating in a new group of state and provincial chairs in many of our jurisdictions, and appointing or reappointing the many committee chairs, co-chairs, and committee members. Of course, I should have known that the spirit, enthusiasm, and collegiality of the fellows in the College would make that job a lot easier than anticipated. I thank all who took the time to talk over these appointments with me, and I especially thank all who accepted new appointments. The economic climate seems to continue to improve in the real estate market. Although some aspects are lagging a little behind, I think that overall our membership has made the happy transition from workouts to originations. The increased activity has also spawned a welcome growth in referrals by and among our fellows. [continued on page 2]

2 President s Column [continued from page 1] We should all try to remember that our ACMA Roster contains a treasure trove of available real estate financing talent in the United States, Canada, Puerto Rico, and now the Virgin Islands. In addition, please try to remember to log on to the ACMA website and report your referrals. Hopefully, many of you have already made your plans to attend the 2015 Board of Regents Meeting in Palm Springs, California. For various reasons, this year s Regents Meeting is a bit earlier than usual, and that timing, along with the desert location, promises a welcome break from the nasty winter weather for many of our fellows, especially those in the Northeast who have been snowed under. This year s Regents Meeting will also include a roundtable session on Saturday morning before the meeting on various topics that the Program Committee is considering. It should be a lively and informative addition to the usual agenda of activities. We can thank our Program Committee co-chairs John Hosack, Dena Cruz, and Andrew Palmieri, along with the many active members of that committee, for working hard to put together a Spring Meeting program. Needless to say, this year s Annual Meeting in Hawaii seems destined to be one of those can t miss opportunities, combining the legendary ACMA collegiality, a first class continuing education program, and a destination that many of us have yearned to visit but have never seen. Keith Colvin has arranged a fabulous package at the gorgeous St. Regis Princeville in Kauai, and I urge every fellow to join us in what is certain to be a most memorable Annual Meeting. I extend a sincere thanks to Norm Roos, editor of The Abstract, for putting together another informative issue of our prized publication. Our appreciation extends to all of the ACMA fellows who have contributed their time and expertise in submitting articles for this edition. The continuing excellence of our membership in every aspect of the College s efforts makes me proud and humble to serve as your ACMA president. I look forward to seeing many of you in Palm Springs and Hawaii in u PRESIDENT Louis S. Pettey, Gaithersburg, Maryland PRESIDENT-ELECT Donald A. Shindler, Chicago, Illinois SECRETARY Alec G. Nedelman, Los Angeles, CA TREASURER Nancy R. Little, Richmond, Virginia IMMEDIATE PAST PRESIDENT AND EXECUTIVE COMMITTEE CHAIR Robert A. Holmes, Denver, Colorado BOARD OF REGENTS Nancy J. Appleby, Alexandria, VA Jean L. Bertrand, San Francisco, CA Abraham Costin, Toronto, Ontario Joyce L. Elden, Wellesley, MA Michael C. Flynn, Troy, MI Michael D. Goler, Cleveland, OH Jonathon L. Goodling, Portland, OR Martha Harris, Dallas, TX Alan Innes, Hartford, CT William J. Jordan, Hartford, CT E. Andrew Keeney, Norfolk, VA Stephen H. Malato, Chicago, IL Gail E. McCann, Providence, RI Beth H. Mitchell, Boston, MA Pedro Morell, San Juan, PR John M. Murphy, Milwaukee, WI Robert R. Nix II, Detroit, MI Andrew F. Palmieri, Washington, DC Virginia M. Pedreira, Seattle, WA Normand Quesnel, Montreal, Quebec Jacob W. Reby, St. Louis, MO Eric P. Stauffer, Portland, ME Lydia C. Stefanowicz, Woodbridge, NJ James C. Wine, Des Moines, IA Lawrence J. Wolk, New York, NY ACMA STAFF EXECUTIVE DIRECTOR Carol A. Walsh SENIOR MEMBER SERVICES MANAGER Lynn Turner VICE PRESIDENT, MEETINGS Grace L. Jan, CAE, CMP MEETINGS MANAGER Julie Burgess SENIOR GRAPHIC DESIGNER Jon Benjamin ACCOUNTANT Dawn Rosenfeld The Abstract 2 Spring 2015

3 Editor s Notes by Norman H. Roos STATE AND PROVINCIAL CHAIRS It s hard to believe that it s time for the Spring 2015 edition of The Abstract, especially for those of us who reside in the frozen snow-covered Northeast. Thankfully, the ACMA leadership had the foresight to schedule our next meeting in the desert a great opportunity for ACMA fellows from all over to enjoy the sunshine and warm weather that makes Palm Springs one of the world s most popular winter destinations. Well, in any event, it is still snowing as I write my Editor s Notes, so I better get back to business before I have to shovel some more (snow). This edition of The Abstract contains a number of interesting and informative articles and reports, including Carol Walsh s inaugural Executive Director s Report. While Bev Levy and her wonderful contributions to the College will be missed (for more on that, see Lou Pettey s President s Column), I look forward to working with Carol in her new role as ACMA executive director. This issue also contains articles by Dan Gentges, Michael Goler, Roger Bernhardt, Larry Wolk, and Team Lem (Megan and Jeff Lem). Larry Wolk, a self-described frequent deliverer of opinion letters in commercial mortgage loan transactions, offers his Top Ten Tips for Lawyers Delivering Opinion Letters in Commercial Mortgage Loan Transactions. Larry starts his article with a couple of provocative questions, including What is the norm? [Editor s Note: I thought I was the Norm.] Professor Roger Bernhardt s article on Wrongful Securitization Claims and Foreclosure Audits addresses the issue of whether a bad securitization constitutes a good defense to a foreclosure. Roger s article starts off with a discussion of the case of Mendoza v JP Morgan Chase Bank, N.A., which involves a borrower s claim that she was the victim of so-called robo-signing, and goes on to provide a closer look at securitization mistakes that may invalidate foreclosures. In his article The Bankruptcy Trustee s Avoidance Powers in Wisconsin s Dual Index Recording Environment, Dan Gentges provides a detailed analysis of the United States District Court for the Eastern District of Wisconsin s decision in Bank of New York Mellon Trust, N.A. v Wittman, reversing a Bankruptcy Court Ruling and holding that a bankruptcy trustee s avoidance powers do not extend to a mortgage recorded improperly in the county tract index but recorded properly in the grantor/grantee index. [continued on page 4] Alberta, Canada, Olivia Colic British Columbia, Canada, David R. Bain Manitoba, Canada, Roger D. Gripp New Brunswick, Canada, John Eric Pollabauer Ontario, Canada, Abraham Costin Quebec, Canada, Fredric L. Carsley Puerto Rico, Pedro Morell Virgin Islands, William S. McConnell Alabama, Reid S. Manley Alaska, Stephen D. Routh Arizona, Dean Formanek Arkansas, James Paul Beachboard California, Gregg J. Loubier Colorado, Thomas P. Kearns Connecticut, Alan Innes Delaware, Mark F. Dunkle District of Columbia, Elizabeth C. Lee Florida, William P. McCaughan Georgia, James M. May III Hawaii, Deborah Macer Chun Idaho, David B. Lincoln Illinois, Stephen H. Malato Indiana, Wendy S. Gibbons Iowa, Anthony A. Longnecker Kansas, Jack C. Marvin Kentucky, David E. Saffer Louisiana, Michael D. Carleton Maine, Michael H. Hill Maryland, Thomas A. Hauser Massachusetts, Beth H. Mitchell Michigan, Melissa B. Papke Minnesota, Paul S. Moe Mississippi, David M. Allen Missouri, Jacob W. Reby Montana, Allan Karell Nebraska, Frank J. Mihulka Nevada, Karen D. Dennison New Hampshire, Peter F. Burger New Jersey, Eugene R. Boffa Jr. New Mexico, Ruth M. Schifani New York, Lawrence J. Wolk North Carolina, Diana R. Palecek North Dakota, Paul M. Hubbard Ohio, Joanne M. Schreiner Oklahoma, Michael S. Laird Oregon, Jonathon L. Goodling Pennsylvania, Ajay Raju Rhode Island, Stanley J. Kanter South Carolina, W. Lindsay Smith South Dakota, Haven L. Stuck Tennessee, Robert E. Wood Texas, Jonathan Thalheimer Utah, Rick L. Knuth Vermont, Molly K. Langan Virginia, Robert Stephen Bozarth Washington, Robert W. Sargeant West Virginia, Joyce F. Ofsa Wisconsin, John M. Murphy Wyoming, Dale W. Cottam The Abstract 3 Spring 2015

4 Executive Director s Column By Carol A. Walsh Editor s Notes [continued from page 3] I am so pleased to have the opportunity to serve ACMA as your new executive director. Already, your sense of pride, collegiality, and commitment to the organization and your profession is very apparent to me. I know Bev Levy leaves a legacy of service and dedication to the organization, and I will work to match the standard she has set. I want to reassure you that while my face may be new, the rest of ACMA s management team remains the same: Lynn Turner will continue to provide hands-on member service; Jon Benjamin will continue to put his design and graphics skills to work in support of ACMA s publications; Dawn Rosenfeld will keep a sharp eye on your financials; and Julie Burgess and Grace Jan will provide leadership in the meetings and events department. The team here has been busy supporting ACMA s goals over the past several months. Through the efforts of the Corporate Counsel and Technology Committees, a new section targeted to Corporate Counsel members has been added to ACMA s website. The most recent ACMA Roster is being printed and will be ready for distribution in early March. Thanks to the work of the state and provincial chairs, 15 new fellow nominations were received and processed for the Membership Committee s review. While I have had the chance to talk with many of you over the phone and through exchanges, I hope to meet face-to-face at the upcoming Board of Regents Meeting. The La Quinta Resort & Club, site of the meeting, was a favorite of Old Hollywood, and dinner on Friday night will take place at the Courtyard at La Casa, Greta Garbo s second home. The resort has been recognized by leading travel, golf, and tennis publications as one of the top destination resorts in the world. If we don t meet in person in La Quinta, I hope to do so when ACMA meets for its Annual Meeting at the St. Regis Princeville, Kauai, Hawaii. Halele a, where the hotel is located, was noted in ancient times as the most beautiful place in the Hawaiian Islands. In case you want to test that claim, in the days prior to and following the Annual Meeting, ACMA attendees may receive preferred rates at each of Starwood s Hawaii resorts through the PLAYMORE program You can find out more about the location and the program on ACMA s Events tab on our website. Although I am new to ACMA, I do have 25 years of experience in nonprofit management, including experience with board development and strategic planning, meetings and events, and technology. My passion is working with associations, learning what s important to their members, and then helping to define and implement the plans needed to achieve those goals. I am looking forward to working with you all. u Jeff Lem and Megan Lem (Jeff s daughter and University of Western Ontario Law School senior) provide interesting and colorful north-ofthe-border insights in Canada s Business Climate Is Too Cold: Target Goes Home! their article exploring the whys, wherefores, and implications of the recent departure of this major U.S. retailer from the Canadian marketplace. Finally, Michael Goler, chair of ACMA s Technology Committee, reports on his committee s recent efforts to add value to the ACMA website and bring other technology advantages to the College. In addition to these articles, this issue of The Abstract contains Lou Pettey s inaugural President s Column, which begins with a tribute to our former longtime executive director, Bev Levy. Lou also provides an overview of some of ACMA s activities, including the addition of a roundtable session to the agenda for the upcoming Regents Meeting, as well as a reminder that it is none too soon to make plans to attend the Annual Meeting in Hawaii from October Thanks to Larry, Dan, Michael, Roger, Jeff, and Megan for their contributions to this issue of The Abstract. As always, I invite those who have not submitted an article for publication in The Abstract to do so. I look forward to seeing you in October dare I say in Kauai! u The Abstract 4 Spring 2015

5 2015 Top Ten Tips for Lawyers Delivering Opinion Letters in Commercial Mortgage Loan Transactions By Lawrence J. Wolk As a frequent deliverer of opinion letters in commercial mortgage loan transactions, I am often asked, What tips can you provide? What is the norm? Is this language standard and customary in opinion practice these days? As we begin 2015, we will bid adieu to David Letterman, a longtime late night TV staple. In recognition of his departure, and with full confidence that he will not use this list during his last few nights on the air, I have prepared a list of the top 10 Customary Practice tips for lawyers delivering opinion letters in commercial mortgage loan transactions. Opinion letters, rendered by borrower s counsel to a third party, have long been an integral part of any commercial mortgage loan financing. The customary opinion letter delivered by borrower s counsel contains core opinions that address (i) entity existence, (ii) due power and authority, (iii) due execution and delivery, and (iv) enforceability of loan documents. A legal opinion also serves as a valuable due diligence tool for the lender and its counsel, providing an independent second pair of eyes and a law firm s due diligence to confirm due formation and good standing and the qualification of a borrower to carry on its business, as well as due authorization, execution, and delivery of loan documents. The growing role of custom and practice ( Customary Practice ) in the context of opinion letters was recognized in the Real Estate Finance Opinion Report of 2012 (2012 Report), prepared by a joint drafting committee on which Rob Krapf and Lydia Stefanowicz served as ACMA representatives. A task force comprising lawyers from the ABA, ACMA, and ACREL and including Lydia, Rob, and me is currently preparing a follow-up to the 2012 Report addressing the role, scope, and issues unique to legal opinions delivered by local counsel when supplementing the primary counsel s opinion. The following tips, some of which were addressed in the 2012 Report and others that I have observed in practice, are intended to assist those engaged in commercial mortgage loan opinion practice: 10. Scope of Review: Most opinion letters include a statement that the opinion giver has reviewed such matters as are necessary in its professional judgment to render the opinion. This is merely a recitation of Customary Practice, that an opinion letter covers such law as a lawyer in the jurisdiction would reasonably expect to be applicable to the transaction with the opinion giver exercising appropriate and customary due diligence. Recently we received an opinion letter that, in referencing opinions relating to (i) no violations of laws and (ii) no government consent or approval required for execution, delivery of document, performance of payment obligations or granting of lien, provided that Our opinions in paragraphs and are based on our review of only those statutes, regulations, rules and orders that, in our experience, are customarily applicable to transactions of the type contemplated by the Loan Documents. This language clearly delineates the scope of the opinion giver s due diligence, and I have added it to my form for use when I am the opinion giver. 9. Reliance. While the first page of the opinion letter contains an addressee, Customary Practice is to expand the list of those who may rely on the opinion letter, usually in the closing paragraph of the opinion letter. It is not customary to allow other opinion givers to rely on the opinion letter. As noted in tip 7 below, opinion givers should assume the validity of what The Abstract 5 Spring 2015

6 is opined to in the other opinion letters. The 2012 Report states emphatically that it is not appropriate for the lender s counsel to rely on an opinion delivered by borrower s counsel. Whenever I receive a request from a lender s counsel to rely on my opinion, especially when they have drafted the loan documents, I cite the 2012 Report to dissuade them. 8. Knowledge. Most opinions are delivered with a signature of a law firm, albeit signed by a partner. It is, however, an opinion delivered by a law firm, with knowledge of all firm lawyers imputed. It is common practice to limit knowledge to the knowledge of only those lawyers who have worked on the transaction. I prefer clarity and specifically list the lawyers by name in the opinion. 7. Companion Opinions but Not Conduit Opinions. Opinion givers should avoid conduit opinions or any reliance on another opinion with respect to issues not covered in the opinion being delivered. It is preferable to assume the validity of matters opined to in the other opinions. Many opinion givers add language acknowledging their understanding that the lender is relying on the other opinion with respect to those matters addressed therein and not covered in the opinion giver s opinion letter. 6. Opinions Based Solely on a Certificate. Certain factual opinions, such as those addressing good standing, are based solely upon a government-issued certificate. It is appropriate in such instances for the opinion giver to include the actual name of the certificate (e.g., certificate of subsistence) in lieu of, for example, a generic reference to a good standing certificate. Other pass through opinions include factual opinions such as to our knowledge the execution of the documents and payment of the note and completion of the transaction will not violate any documents to which Borrower is a party, with such knowledge based solely on a certificate of a signatory from a borrower, which is customarily, but not always, attached to the opinion letter. It is not, however, appropriate for an opinion giver to opine with respect to (i) laws or (ii) organizational documents using a knowledge or certificate qualifier. 5. Brevity Is Welcome. Some opinion givers provide only a general reference to having reviewed borrower organizational documents, and others provide a list of the documents reviewed. Either is considered acceptable. Opining as to current good standing usually suffices without reference to earlier initial entity formation filings. While many opinions list all loan documents reviewed, preferred practice is to list only the loan documents about which the opinion giver is specifically opining or that are required to be reviewed in order for the opinion giver to render the opinions provided in the opinion letter. 4. Usury vs. Choice of Laws. A usury opinion is deemed implicit in an enforceability opinion and/or the no violation of laws opinion. However; a separate usury opinion paragraph is usually requested by lenders and is customary when a transaction involves the laws of more than one state (e.g., the real property is located in Texas, the borrower is a Delaware limited liability company, and the note and guaranty and other loan documents are governed by the laws of New York. Because of the importance of usury, good practice dictates that an opinion giver provide a specific exclusion of usury if no usury opinion is intended to be included in the opinion letter. Unlike usury, a choice of laws opinion, which is often included in opinion letters delivered in transactions involving the law of more than one state, is not implied in a general enforceability opinion. Therefore it is customarily provided in a separate opinion paragraph. 3. Clearly Define Your Role as an Opinion Giver. When engaged solely as special or local counsel, with little familiarity with the borrower and perhaps involved in the transaction solely for the purpose of delivering [this] opinion, the opinion letter will customarily not include knowledge opinions. The limiting self-label of special or local counsel should be supplemented by a statement that, In such capacity we have reviewed only the documents listed and made no further inquiry or investigation, providing the recipient with a clear explanation that only limited due diligence was performed and setting forth the limited nature of the opinion giver s involvement, clearly differentiating it from that of the borrower s primary counsel. The Abstract 6 Spring 2015

7 2. Provide Appropriate Limitations on Enforceability. In a transaction where the lawyers, property, and governing law are all of the same state, practitioners, especially those who represent borrowers, have long argued, unsuccessfully, that the document enforceability opinion should more appropriately be delivered by lender counsel, the draftsperson of the loan documents. However, it is unlikely that we will see the enforceability opinion delivered by lender counsel any time soon. Enforceability opinions do not extend to each and every document provision due to the numerous limitations that practitioners include in opinion letters. In addition to stating that certain provisions may not be enforceable, opinion givers often provide that remedies are only available upon a material breach or a breach of a material provision or only upon a breach of an obligation to pay principal or interest. Opinion givers in many states provide a list of remedies and opine that the listed remedies will be available to the lender. In other locales, in lieu of a laundry list approach, opinion givers provide a statement to the effect that notwithstanding the qualifications set forth, in our judgment, subject to the other exceptions, qualifications and limitations set forth in the opinion, and the possible unenforceability of any particular provision of or remedy in the Loan Documents, in our judgment, any such unenforceability will not (i) render the Loan Documents invalid as a whole, or (ii) [substantially] interfere with the practical realization of the principal benefits of security intended to be provided thereby. (although the qualification substantially may be the subject of negotiation with lender). 1. New York, New York. Many lenders making loans secured by mortgages encumbering real property located outside New York provide that the loan transaction is intended to be governed by the laws of the state of New York. Loan documents will customarily state that the law of New York governs, except that creation, perfection, and remedies (or other situs specific matters) relating to the loan documents are governed by the law of the state in which the real property is located. We are frequently engaged as special New York counsel for the sole purpose of rendering a local New York law opinion in transactions where the real property is located outside New York and where the borrower was also formed under the laws of another state. When serving as special or local New York counsel engaged to address matters not covered in the opinion of borrower s primary counsel, we will opine as to usury, enforceability of the New York loan documents (including perhaps a pledge of an account located in New York), and choice of laws. Set forth below is a pass through choice of law opinion, which relies exclusively on the wording of Section of the New York General Obligations Law, and which has been consistently found acceptable by lender s counsel with whom I have dealt. Section of the New York General Obligation Law provides that the parties to any contract, agreement or undertaking, contingent or otherwise, in consideration of, or relating to any obligation arising out of a transaction covering in the aggregate, not less than two hundred fifty thousand dollars, including a transaction otherwise covered by subsection one of section of the uniform commercial code, may agree that the law of this state shall govern their rights and duties in whole or in part, whether or not such contract, agreement or undertaking bears a reasonable relation to this state. Based upon such Section , we are of the opinion that a New York court will give effect to provisions in the New York Loan Documents providing that the New York Loan Documents are governed by New York law. I include this New York choice of laws opinion last, as the Letterman show was live from New York, and I think the language above is helpful for New York practitioners and for lender s counsel in other states seeking a choice of law opinion from New York counsel. u Lawrence J. Wolk is a member of the law firm of Rosenberg & Estis, P.C. in New York, New York. The Abstract 7 Spring 2015

8 Wrongful Securitization Claims and Foreclosure Audits By Roger Bernhardt Mendoza v JPMorgan Chase Bank, N.A. (2014) 228 CA4th 1020 was a wrongful foreclosure action based on the Borrower s claim that she was a victim of so-called robo-signing and was prejudiced by alleged improprieties in the securitization of her loan. She did not dispute that she was in default, but she asserted that the defendants were attempting to take advantage of the complex securitization process and defraud yet another homeowner. She argued that the Court should not allow the bank defendants to trample over 200 years of well-settled property laws just because Plaintiffs at one time owed somebody the money. The court of appeal affirmed the order sustaining the lender s demurrer. The wrongful foreclosure claim was based on the premise that the foreclosure sale was void because a botched attempt to securitize Borrower s loan poisoned the subsequent foreclosure. Borrower alleged that: Her note and deed of trust were improperly transferred into trusts before applicable closing dates set forth in pooling and servicing agreement (PSA). Those trusts therefore had no interest in the note or deed of trust. The lender s beneficial interest in the loan vanished once it signed the PSA. A later assignment of the deed of trust and note in anticipation of the foreclosure were fraudulently executed by a robo-signer (i.e., the officer executing various documents was in fact an employee of the trustee, so lacked authority). The court rejected the wrongful foreclosure claim, explaining that securitization of a loan does not alter or affect the legal beneficiary s standing to enforce the deed of trust. Rather, it merely creates a separate contract, distinct from the borrower s debt and obligations. In support of its conclusion, the court noted California s comprehensive statutory framework regulating nonjudicial foreclosure sales and joined other courts in refusing to read any additional requirements into the statutes. See, e.g., Gomes v Countrywide Home Loans, Inc. (2011) 192 CA4th The court acknowledged that if someone without the power to convey property executes a deed under the statutory scheme, the deed is void, not merely voidable. There is a critical distinction between a glitch in an attempted securitization and an attempt to pass title by an entity without an interest to convey. Simply put, Borrower lacked standing because she was not a party to the PSA. Borrower s attempt to distinguish Gomes ignored the central holding of the case the comprehensive statutory nonjudicial scheme did not provide for judicial action to determine whether the person initiating the foreclosure process is indeed authorized to do so (and the court refused to imply one). More fundamentally, whether there was a flaw in the securitization process was immaterial to whether the proper parties foreclosed. The court acknowledged a lone case that appeared to support Borrower s securitization argument (Glaski v Bank of America (2013) 218 CA4th 1079) but found no state or federal support for the Glaski analysis and followed the federal lead in rejecting this minority holding. A petition for review of this decision was filed and granted by the Supreme Court. Roger Bernhardt s Take (from the CEB Real Property Law Reporter: This opinion was initially unpublished, but the court of appeal apparently had second thoughts and later certified it for publication. I too had initial doubts about a comment or its public significance, but I also have since come around to thinking that it is worth paying attention to for three reasons. The Abstract 8 Spring 2015

9 1. It cites almost everything. In many respects, Mendoza looks like just another, almost humdrum decision rejecting a homeowner s postforeclosure attack on the trustee sale that was conducted after she stopped paying her mortgage and rejecting her contention that the foreclosure was bad because her loan had been improperly securitized a claim frequently made by the foreclosure defense bar and almost as frequently vetoed by the judiciary. But on that point, the opinion is worth saving because of its citation-laden summary of the many decisions that have pronounced a foreclosure sale not wrongful simply because the underlying loan might not have been properly securitized. Glitches in the trustee sale process (e.g., relating to substitution of trustee, notice of default, notice of sale, and conduct of the sale) can matter and, when they occur, may give a borrower even one in default a plausible defense or basis for vacating the sale. On the other hand, glitches in a loan s earlier securitization (e.g., regarding compliance with applicable pooling and servicing agreements, federal REMIC rules, or the state s trust laws) are not likely to eliminate her obligation to pay her mortgage, notwithstanding the possibility that someone other than her foreclosing lender or servicer might be better entitled to collect that debt. This opinion s defense of a lender against this sort of securitization attack can save similarly situated ones a good deal of library time by serving as their research engine and at the same time provide borrowers with a ready list of the hurdles they will have to overcome to even get close to a jury. On the other hand, I expect that both crowds have those lists already (including similar pre-glaski rulings, such as in Wise v WFB [CD Cal 2012] 850 F Supp 2d 1047, and last-minute refusing-to-take-a-stand holdings, as in Kan v Guild Mortgage Co., ordered published on October 15 of this year and reported in this issue on p 147). 2. Foreclosure audits. Many of the securitization attacks have suffered from being overspeculative, unpersuasively arguing that perhaps something had been done wrong when the individual loan was being transferred into the pool, but not demonstrating that it had actually occurred. Mendoza s attack, however, did attempt to overcome that difficulty. She argued that unlike Gomes, whose allegations were based on sheer speculation, she has identified the true beneficiary and has provided the factual basis lacking in Gomes an audit report. These foreclosure audits or forensic loan audits have become increasingly popular for borrowers in default looking for better weapons to stop or undo foreclosures that threaten to wipe them out. The complicated federal and state securitization rules, and the thousands of pages in the transactional documents designed to bring their securitized pools into compliance with those rules, include enough fussy and complicated requirements and deadlines as to make them often easier to be missed than to be met. Especially during the boom years, when the activity was so frantic, undoubtedly many loans perhaps entire pools were not in perfect compliance with all those mandates. But, although speculating that perhaps a loan s securitization was wrongly done might not suffice as a defense, a borrower who could actually show that her particular loan was truly mishandled may have a stronger case. A loan that had not been deposited into the trust pool within the window of time set by its PSA has arguably never gotten into the hands of the pool trustee if applicable state trust law says so; thus, it may be held by someone else, which could mean that the wrong party might be trying to enforce it if all of that could actually be proven. Those hopes and prospects have brought foreclosure auditors into the picture, with their promises of documenting for borrowers just how their loans were in the auditor s opinion defectively securitized (as well as also, according to them, probably defectively made). These audits might constitute a useful service if they were well done, but the data seems to indicate that this is not quite the case. The Federal Trade Commission has said there is no evidence that forensic loan audits will help you get a loan modification or any other foreclosure relief, even if they re conducted by a licensed, legitimate and The Abstract 9 Spring 2015

10 trained auditor, mortgage professional or lawyer. (FTC, Consumer Information, Forensic Loan Audits.) Too many foreclosure audits are just phony rescue scams. (The latest one I read about cost the borrowers $3,600 and got their attorney in trouble. Matter of Smithwick, State Bar Court Case No. 11-O , Review Department, May 16, 2014, available at statebarcourt.ca.gov/portals/2/documents/opinions/smithwick.pdf) Audit reports often sound as speculative as information and belief pleadings on this issue sound. A truly thorough audit of a loan s securitization would review all of the requirements in the prospectuses, the loan purchase agreements, and the pooling and servicing agreements (and in all of the amendments, supplements, and schedules to those documents). It would then compare those requirements with the terms of the borrower s note (and its endorsements and allonges and delivery mechanisms), and the terms of her deed of trust (and its assignments and recordations), to see whether all requirements and deadlines in those documents were met. We ll never know what the audit in Mendoza actually reviewed or concluded because it was not included in the appellate record. But since Mendoza claimed that she had identified the true beneficiary of her loan, I suspect that her auditor had concluded that her loan had not been properly transferred into the trust and was therefore still held by the original beneficiary and trustee, which made them, according to the auditor, the only ones entitled to enforce it. Counsel for a borrower contemplating paying for such an audit should admonish her client that for even a competent one to do any good, the audit will have to be admitted into evidence and its authoring auditor permitted to testify on it which will entail his being deposed and then subject to cross-examination by the offended lender regarding the basis for his adverse conclusions. Even if all of those obstacles can be overcome, the judge could decide that the audit report is immaterial because it does not impact the borrower s obligation to pay her loan notwithstanding those defects. That is the issue that may well be decided next. 3. Yvanova, Keshtgar, and Glaski. The Mendoza court is not the first one to grapple with this issue, nor the first to rule that a bad securitization does not entitle a borrower to stop paying her mortgage or challenge her foreclosure sale. In fact, its lengthy review of federal and state opinions shows that only one state appellate court the Fifth District, in Glaski v Bank of America (2013) 218 CA4th 1079 had publicly declared its belief that a borrower can get much profit from a bad securitization, while every other court after Glaski appears to have rejected that conclusion. (Westlaw told me that it knew of 64 opinions declining to follow that decision.) But 64 1 may not count for much if the minority has the support of the California Supreme Court. Right now, our high court has that issue squarely before it. Earlier this year, the Second District in Yvanova v New Century Mortgage Corp. (2014) 226 CA4th 495, like the Third District in Mendoza and earlier in Keshtgar v US Bank (2014) 226 CA4th 1201, rejected the Glaski position. Keshtgar involves a preforeclosure challenge and Yvanova a postforeclosure one, but both hold that improper securitization does not make a foreclosure wrongful. Whether or not Mendoza also goes up, the high court can give us a much more definitive understanding of where California stands on this contentious issue sounds compelling, and a better tally might include non-california forums, although some notable tribunals have surprised lenders by demanding they adhere to the rules requiring the proper transfer of notes, even when others would argue that it does not matter. See, e.g., Ibanez v US Bank Nat l Ass n (2012) 856 F Supp 2d 273 (Massachusetts). If the California Supreme Court sides with the majority view and rejects bad securitization as a defense, then defaulting borrowers will have to find defects outside that process if they hope to stop or avoid their foreclosures. Improper securitization may be relevant to other parties in the secondary market, and the lending industry may have a lot of cleaning up to do for, e.g., pool investors, but not for prepool borrowers who received their loan funds before any securitization of their documents even started. The Abstract 10 Spring 2015 [continued on page 14]

11 The Bankruptcy Trustee s Avoidance Powers in Wisconsin s Dual Index Recording Environment By Daniel W. Gentges 1. Synopsis: A mortgage recorded against the wrong parcel may still survive the bankruptcy trustee s avoidance powers in a dual index recording state. In 2013, the United States District Court for the Eastern District of Wisconsin held that a bankruptcy trustee s avoidance powers as hypothetical bona fide purchaser do not extend to a mortgage that was recorded against the wrong parcel in a county tract index but was recorded properly in the county s grantor/ grantee index. Though an unpublished decision, the district court s holding offers some good news for lien holders whose instruments contain incorrect legal descriptions but are nonetheless traceable through a recording index. In Bank of New York Mellon Trust N.A. v. Wittman, 1 the district court reversed a bankruptcy court ruling that a mortgage legal description containing the wrong lot number for the encumbered parcel was void as to a bankruptcy trustee under 544(a) (3) of the United States Bankruptcy Code. 2 The district court concluded that, where a Wisconsin county 1 No. 12-C-846, 2013 WL (E.D. Wis. Jan. 16, 2013) (Unpublished). 2 Textual references to the United States Bankruptcy Code are hereafter indicated as xxx of the Code and chapter xx of the Code. establishes both a tract index and a grantor/grantee index for registration of conveyances, a mortgage recorded in the county tract index against the wrong parcel but properly recorded in the county grantor/grantee index provides sufficient notice to third parties of the mortgagee s interest. Accordingly, a bankruptcy trustee s hypothetical bona fide purchaser status under 544(a)(3) of the Code may not be used to set aside the mortgage lien. 2. Factual and Procedural Background of Wittman. The background facts in Wittman are straight forward. Marcelino and Michelle Wittman owned real property in the city of Appleton, Wisconsin. The conveyance deed legally described the property as Lot Twenty-six (26), GRACE- GORDON ESTATES, City of Appleton, Calumet County, Wisconsin. 3 Over a number of years, the Wittmans granted mortgages against their property to secure separate loans. In October 2003, the Wittmans obtained a $140,000 refinancing loan from Metro Center Mortgage, Inc. To secure the new loan, the Wittmans granted a mortgage against 3 Wittman, 2013 WL , at *1 their property to Mortgage Electronic Systems, Inc. (MERS) as nominee for Metro Center Mortgage. Ultimately, MERS assigned the mortgage to Bank of New York Mellon Trust Company, N.A. (BONY). The mortgage correctly identified the Wittmans, the street address of their property, and the tax identification number assigned to their property. Rather than identifying the Wittmans property as Lot 26 of GRACE-GORDON ESTATES, however, the legal description contained in the Wittmans mortgage incorrectly identified their property as Lot Twenty-seven (27), GRACE-GORDON ESTATES, City of Appleton, Calumet County, Wisconsin. 4 The Calumet County Register of Deeds utilizes both a tract index and a grantor/grantee index to record conveyances. As a result of the incorrect legal description, the Wittmans mortgage was recorded against the wrong property in the county tract index. The Wittmans mortgage was recorded properly, however, in the county grantor/grantee index. In February 2010, the Wittmans commenced a bankruptcy proceeding under chapter 13 of the Code before 4 See id. The Abstract 11 Spring 2015

12 the United State Bankruptcy Court for the Eastern District of Wisconsin. They filed their chapter 13 plan the same day. In March and December 2010, BONY filed proofs of claim in the Wittmans bankruptcy proceeding, in each instance identifying the Wittmans mortgage as security for BONY s claims. The Wittmans objected to BONY s claims on the grounds that the legal description contained in their mortgage identified the wrong parcel number for their property and was therefore void as to a chapter 13 trustee under 544(a)(3) of the Code. The chapter 13 trustee for their proceeding joined the Wittmans objection and consented to their use of his avoidance powers. 5 (3) a bona fide purchaser of real property from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of commencement of the [bankruptcy proceeding], whether or not such purchaser exists. 6 Section 544(a)(3) grants to a bankruptcy trustee whatever rights under applicable law a hypothetical bona fide purchaser of the debtor s property holds on the commencement date of the bankruptcy proceeding. Wisconsin law applied to the status of the Wittmans mortgage and to the rights of a hypothetical bona fide purchaser. 7 an instrument properly indexed therein and recorded at length at the place there shown shall be deemed to be duly recorded for purposes of this section, despite any error or omission in the process of including the instrument, or prior instruments in the same chain of title, in other records. Where an instrument is not properly indexed in such tract or abstract of title index, or where such index is not publicly maintained, the instrument shall be deemed to be duly recorded only if the instrument, together with prior instruments necessary to trace title by use of alphabetical indexes by names of parties, are properly indexed in such alphabetical indexes, and recorded at length at the places there shown. 9 A bankruptcy trustee s avoidance powers under the Code extend to the rights of a hypothetical bona fide purchaser under 544(a)(3). Section 544(a)(3) of the Code provides in part as follows: (a) The trustee shall have the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by 5 Before addressing the substantive issue, BONY challenged the Wittmans objection as improper. BONY asserted that an objection is not the proper means to avoid a lien under 544(a)(3) of the Code, noting that Federal Rule of Bankruptcy Procedure 7001 directs the use of an adversary proceeding to determine the validity, priority or extent of a lien or other interest in property of the bankruptcy estate. Both the bankruptcy court and the district court rejected BONY s procedural argument, recognizing the trustee s joinder in and consent to the Wittmans objection and rejecting the formal application of Federal Bankruptcy Rule Wittman, 2013 WL , at *2 The bankruptcy court analyzed that the Wittmans objection in light of which records maintained by the Circuit County Register of Deeds must be consulted by a bona fide purchaser in order to obtain or retain preferred status versus BONY. Looking to Wisconsin law, the court concluded that a trustee asserting bona fide purchaser status under 544(a)(3) of the Code need only search the county tract index. To reach its conclusion, the court relied first on section (2) of the Wisconsin statutes, 8 which provides in part as follows: Where a public tract index or abstract of title index is maintained, 6 11 U.S.C. 544(a)(3). 7 Wittman, 2013 WL , at *3. 8 Textual references to the Wisconsin statutes are hereafter indicated as chapter xxx or section xxx.xx, without the designation of the Wisconsin statutes. Although the Wittmans mortgage contained the wrong lot number in the legal description for their property, the bankruptcy court concluded that the mortgage was nonetheless indexed properly within the meaning of section (2). As a result, the court concluded that reference to the county grantor/grantee index under section (2) was unnecessary to determine the voidability of the Wittmans mortgage. The bankruptcy court next turned to section , which addresses notice of conveyances from the public record. Section grants to a purchaser of real property for valuable consideration and without notice of an adverse claim the right to take title to the property free of 9 Wittman, 2013 WL , at *5 (quoting Wis. Stat (2)). The Abstract 12 Spring 2015

13 any adverse claim that is outside the recorded chain of title. Section (4) defines the chain of title as: instruments, actions and proceedings discoverable by reasonable search of the public records and indexes affecting real estate in the offices of the register of deeds and in probate and of clerks of courts of the counties in which the real estate is located; a tract index shall be deemed an index where the same is publicly maintained. 10 The bankruptcy court concluded that, because of the incorrect reference to the Wittmans lot number in the legal description for their property, a bona fide purchaser would take title free of their mortgage. The court noted the specific reference to tract index in the statutory definition of chain of title and concluded that a bona fide purchaser is not obligated to search beyond the tract index. Accordingly, the Wittmans mortgage was not in the chain of title for purposes of serving as notice to a bona fide purchaser. The bankruptcy court therefore sustained the Wittmans objection to BONY s proofs of claim under 544(a)(3) of the Code, and BONY became a general unsecured creditor in the Wittmans chapter 13 proceeding. 3. The District Court s Review: Where two mechanisms for recording exist, the bona fide purchaser must examine both. BONY appealed the bankruptcy court s avoidance of its mortgage lien. The district court disagreed 10 Id. at *6 (quoting Wis. Stat (4)). with the bankruptcy court s conclusions, holding instead that for a purchaser of real estate in Wisconsin to obtain bona fide purchaser status without notice of adverse claims, the purchaser must search a county register s grantor/grantee index and where one exists, must also search the register s tract index. 11 The district court recognized that, under Wisconsin law, every conveyance that is not recorded as provided by law shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate or any portion of the same real estate whose conveyance is recorded first. 12 The court also noted that under Wisconsin law, purchasers of real estate in good faith acquire their interests without notice of existing rights in the real estate, but that notice of another party s interest in real estate extends beyond actual knowledge to constructive knowledge. The court followed the reasoning of the Wisconsin courts in recognizing that constructive notice is based on the assumption that the party assumed to possess such notice should, as a reasonably prudent person, have acquired knowledge to give him or her actual notice of the adverse interest. 13 The district court observed that, under Wisconsin law, a purchaser of real estate is presumed conclusively to have knowledge of every conveyance of such real estate that is properly 11 See id. at *6 12 Id. at *3 (quoting Wis. Stat (1)(a)). 13 See id. (citing Kordecki v. Rizzo, 106 Wis. 2d 713, , 317 N.W.2d 479 (1982) (quoting Rundell, Recording of Deeds in Wisconsin, 1 Wis. L. Rev. 340, 353 ( ))). recorded, without regard to whether the purchaser actually examines the public record. In Wisconsin, the public record of conveyances is maintained by the registers of deeds for all of the state s counties. Each register of deeds must maintain a grantor/grantee index that is searchable by the names of the grantor and grantee, or by the document number or volume and page number where an instrument is recorded. Significantly, a county board may also require the register of deeds to maintain a tract index, but a tract index is not mandatory. 14 The district court noted that the Calumet County Register of Deeds maintains both a grantor/grantee index and a tract index. The court acknowledged that because the Wittmans mortgage contained the wrong legal description for their property, a search of the county tract index would not have disclosed BONY s interest. Nevertheless, a search of the county grantor/grantee index would have disclosed BONY s interest. The court recognized a 2005 title search presented by BONY, which identified the Wittmans mortgage despite the incorrect legal description. The court also recognized a declaration from a title examiner who asserted that title companies in Calumet County regularly search both the county tract index and the county grantor/grantee index for documents affecting title to real estate. 15 The district court then turned to Wisconsin s recording statute (chapter 706) and concluded that a county 14 See id. at *4 (citing Wis. Stat (1)(a), 59.43(9)(a) and 59.43(12m)(a)). 15 See id. at *4. The Abstract 13 Spring 2015

14 tract index is not the exclusive means by which purchasers of real estate in Wisconsin may be placed on notice of adverse claims. The court noted that section (7), in particular, recognizes that instruments recorded with a county register may contain errors or otherwise fail to meet all of chapter 706 s requirements for recording, while nonetheless preserving their validity. Section (7) provides: Every instrument which the register of deeds shall accept for record shall be deemed duly recorded despite its failure to conform to one or more of the requirements of this section, provided the instrument is properly indexed in a public index maintained in the office of such register of deeds and recorded at length at the place there shown. 16 The court asserted that section also supports the conclusion that a county tract index is insufficient means by which a purchaser may obtain bona fide status without notice of adverse claims. The court noted that section denies priority to an earlier conveyance that does not appear of record in the chain of title. The court revisited the statutory definition of chain of title and noted that the definition includes instruments discoverable by reasonable search of the public records and indexes affecting real estate in the offices of the register of deeds. 17 The court rejected the bankruptcy court s apparent conclusion that section s reference to a county tract 16 Wis. Stat (7). 17 Wittman, 2013 WL , at *6 (quoting Wis. Stat (4)). index as an index where the chain of title is publicly maintained excludes other public record indexes. The court concluded that a bona fide purchaser under Wisconsin law must search the grantor/grantee index in addition to the tract index. 18 The district court then analyzed whether the Wittmans mortgage, even though in the chain of title, was sufficient to provide constructive notice of a prior claim to the Wittmans property despite containing an incorrect legal description. The court observed that a purchaser examining the Calumet County grantor/grantee index would have discovered the Wittmans mortgage. In spite of the incorrect legal description in the mortgage, discovery of the mortgage in the first instance would have placed a purchaser in the position to discover more information about the mortgage and conclude that the mortgage constituted a lien against the Wittmans property. The court therefore concluded that a bankruptcy trustee could not claim the position of a bona fide purchaser under 544(a)(3) of the Code with respect to the Wittmans mortgage and reversed the bankruptcy court s decision accordingly, thereby restoring BONY to the position of a secured creditor in the Wittmans chapter 13 proceeding. 19 u Daniel W. Gentges is a shareholder of the firm Whyte Hirschboeck Dudek S.C. in Milwaukee, Wisconsin. 18 See id. 19 See id. at *9. Wrongful Securitization Claims and Foreclosure Audits [continued from page 10] On the other hand, if the court endorses the Glaski position (which its proponents predict may happen because of the court s earlier refusal to review Glaski itself or to depublish it) and holds that securitization mistakes may invalidate foreclosures, there is going to be a lot of follow-up litigation. Do all securitization mistakes have the same effect, or do some hurt borrowers more than others? Must an individual borrower show how she was actually hurt or prejudiced by what went on? Does the blunder justify her in demanding more proof of entitlement to collect from her adversary? Even if no one else is also demanding payment? Or does the mistake as some claim completely excuse her from having to pay anybody or having her property remain encumbered by the original mortgage? A pro-glaski result will keep us all quite busy for a long time. u Roger Bernhardt, a member of ACMA, is professor of law at Golden Gate University and editor of CEB s California Real Property Law Reporter, from which this article is taken. His other writings may be found at RogerBernhardt.com. The Abstract 14 Spring 2015

15 Canada s Business Environment Is Too Cold: Target Goes Home! By Megan Lem and Jeffrey Lem In the many ACMA conferences that we have gone to over the years, one of the rituals that we have observed, almost without exception, has been the obligatory late-night shopping trip to the local Target store. Dinearounds be damned, there was a Target store open until 10:00 p.m.! Frankly, in retrospect, it were never entirely clear what we found so exciting about shopping at Target (or Tar-zhay, as we liked to say). Sure, there were tons of relatively cheap products, but Walmart also had a ton of relatively cheap products, in stores that were just as big, if not bigger. Somehow, Target just seemed brighter, cleaner, and more chic. Law school doth not retail experts make. Suffice it to say that, whatever it was, well, it was a cool cross-border shopping experience for many Canadians, and it became very de rigueur for Canadian tourists to make a stop at Tar-zhay whenever they went stateside. Well, by 2011, the business mavens in Minneapolis (Target s head office) also took notice of the growing trend of Canadian dollars showing up in its tills and decided to make the move to establish a brick and mortar presence in Canada. While a bold move for Target, it was hardly unheard of, and there were many examples of other U.S. retailers having done likewise long before. Walmart, perhaps the closest market competitor to Target in terms of retail offerings and customer demographics, had come to Canada in 1994, and very soon thereafter became dominant on the Canadian retail landscape. Likewise, Home Depot, Costco, Sears, Lowes, and many other retailers had done the same years and, in some cases, decades earlier. The business case, frankly, seemed like a slam dunk. So, in a blaze of hoopla, Target invaded north of the border, taking over a portfolio of approximately 190 retail locations from the Zeller s chain of discount retailers owned by Hudson s Bay Company (a historic Canadian retailer now ironically owned by an American private equity company based in New York!). To much fanfare, the first of 133 Target stores opened its doors to the Canadian retail public less than two years later, in the spring of 2013, after having jettisoned a number of unwanted Zellers locations (ironically, many of them to Walmart) and after very expensive leasehold improvements on the remaining Zellers stores, to create that iconic red bullseye Target look across the entire remaining portfolio. In the Canadian retail surprise of the century, more than $7 billion dollars and less than two years later (681 days to be exact), Target, on January 15, 2015, decided to cut its Canadian losses, file for bankruptcy protection for its Canadian subsidiary, and exit the Canadian market. Wow! Think about it and let it sink in: less than two years in operation and having spent $7 billion dollars! To exacerbate matters, the burn rate of almost a billion dollars per annum in operating losses for each of the first two years was over triple the pre-opening estimate, and the revised break-even date, at the rate things were going, was pushed back to at least 2021! Business school journals and newspapers have been awash in retrospective analyses of what can only be described as one of the most colossal retail failures of all time. Again, law school doth not retail experts make, and while it is admittedly easy to be an armchair quarterback after the game (why try to throw the football from the one yard line when you have Marshawn Lynch in the backfield and three downs to run the ball 36 inches?), we have nothing dispositive to add to the raging coverage over Target s failure in Canada. A few anecdotal observations may, however, be of some interest to ACMA fellows. First of all, it could not possibly have been the Canadian weather that did Target in. Americans have to remember that 90% of the Canadian The Abstract 15 Spring 2015

16 population lives within a hundred miles of the U.S./Canada border, and very few stretches of that border ever see winters as harsh as those regularly experienced in Minnesota! Whenever we regale our American ACMA fellows with stories about how harsh our Canadian winters are, we first check to see if they are from Minnesota, and if they are, we mitigate our descriptions accordingly! Target s executives simply cannot blame climactic shock (at least in terms of weather) for their miscalculations! While we may not be retail pundits within any proper meaning of the word, it is readily apparent to us that, for whatever reason, Target s brand motto, Expect more. Pay less, somehow did not apply north of the 49th Parallel. Every single time we visited a Canadian Target store, the shelves looked palpably bare. We are not exaggerating. For whatever reason, in stark contrast to their U.S. counterparts, the shelves in Target s Canadian stores always looked empty giving an almost Stalin-esque Soviet look to them it was almost as if Target Canada was chronically in liquidation. Really, it felt like everything was always out of stock! It was actually quite a jarring look, especially for Canadian shoppers accustomed to the U.S. Target experience. Furthermore, the few goods that were on display seemed expensive to boot! The relatively high shelf prices on the inventory that was available for purchase has been mentioned by many retail commentators in the Canadian business press. It was never entirely clear, however, whether Target s pricing in Canada was actually ever much higher than their immediate competitors. Empirical studies in early 2014 in fact suggested that Target s prices in Canada were not appreciably higher than Walmart s prices in Canada for the same basket of typical retail items. That said, there was a perception, fair or not, that prices in Canadian Target stores were more expensive than those in the Zellers that they replaced and in the Canadian Walmarts down the street. Some analysts have suggested that Canadian consumers had grown accustomed to the cheap chic offered in U.S. Target stores and expected the same relative pricing in Canada, subject only to currency conversion disparities. At Target Canada, there was a perceived price differential on identical goods that could not be explained simply by currency conversion, and Canadian consumers apparently responded accordingly. In fairness to Target, this differential pricing policy was not limited to Target and is a complaint regularly leveled by Canadian consumers against many retailers operating Canada (including, ironically, Canadian retailers who sell out of both the United States and Canada!). Alas, there is new legislation proposed at the federal level (the Price Transparency Act) purporting to empower the Canadian Competition Bureau (the Canadian governmental authority that is homologous to the Federal Trade Commission in the United States) to investigate this apparent country pricing bias on the part of retailers selling on both sides of the 49th Parallel. Mark Katz, an antitrust law expert with Davies Ward Phillips & Vineberg LLP in Toronto and a former co-chair of the ABA International Antitrust Law Committee, notes that: [T]he Canadian government is determined to remedy what it (and many Canadians) regard as an unjustified gap between US and Canadian prices for the same goods. In particular, the government has focused on what it perceives to be unjustified country pricing or cross-border price discrimination ie businesses charging more for goods sold in Canada than in the US beyond what might be justified by the allegedly higher costs of doing business in Canada. Although the Price Transparency Act bill was tabled at the end of 2014, mere weeks before Target sought bankruptcy protection for its Canadian operation, the Price Transparency Act had its origins in a Canadian Senate report released almost two years earlier, so the investment chill was already in the air long before Target even opened its first store in Canada. Although nobody (yet) has cited the legislation as a factor in the Target decision to pull out of Canada, one cannot help but wonder whether the very specter of such pending legislation, when piled on top of the nearly billion-dollar-a-year operating losses that Target was already hemorrhaging in Canada (actually, that is arterial spray, not hemorrhaging), might have tipped the scales on Target s decision. It is unlikely that Target s Canadian misadventures were a function of real estate legalities. For the most part, The Abstract 16 Spring 2015

17 the leases that Target inherited north of the border should have been very familiar to the leasing executives in Minneapolis. According to Christina Kobi, a Canadian retail leasing law expert with Minden Gross LLP in Toronto, as a general rule, Canadian commercial leases are more pro-landlord than the equivalent leases in the United States because of the historically greater concentration of retail mall ownership in Canada and the relatively weaker national retail chain tenants in Canada. This general rule would not, however, likely have been a significant factor in the Zellers lease portfolio that Target acquired. Zellers would have been an anchor tenant in almost all of the retail malls that it occupied and would have had more than enough bargaining power to obtain relatively strong, pro-tenant leases in almost all such locations. Not surprisingly, Target is shuttering all of its locations with bankruptcy protection under the Companies Creditors Arrangement Act, a Canadian federal statute that is more or less the legislative equivalent to Chapter 11 of the United States Bankruptcy Code. Creditor protection, especially in liquidation scenarios, can also be achieved in Canada under a companion piece of legislation, the Bankruptcy & Insolvency Act, which is more analogous to a bankruptcy under Chapter 7 of the United States Bankruptcy Code although bankruptcy lawyers on both sides of border would howl in protest at the simplicity of these analogies, as significant procedural and substantive differences exist between the U.S. and Canadian bankruptcy schemes. Suffice it to say, however, that almost all large insolvencies in Canada tend to be conducted under the Companies Creditors Arrangement Act, largely to take advantage of the greater flexibility of judicial orders typically available under the Companies Creditors Arrangement Act. The initial stay of proceedings sought by Target was only for 30 days and is likely to be extended by Target with the permission of the court (indeed, by the time this edition of The Abstract makes it to print, Target will likely already be operating under such an extended stay). Although we have not reviewed Target s court pleadings under the Companies Creditors Arrangement Act, anecdotal evidence suggests that there is nothing terribly unusual about the Chapter 11-like proceedings, save and except for some extraordinary measures implemented by Target for the benefit of the approximately 17,500 employees let go as a result of the Canadian collapse. Target has apparently created a trust fund of approximately US$60M to ensure that each Canadian employee receives at least 16 weeks worth of working notice or termination pay, an unusually generous gesture since this level of employee termination pay does not otherwise enjoy a statutory priority in a Canadian bankruptcy. At the time of the writing of this article, there remains considerable uncertainty (but plenty of speculation) over exactly how Target managed to botch the expansion to Canada so spectacularly, how Target s shuttering process will evolve, and how in the world the Canadian retail sector is going to absorb the almost 20 million square feet of space now bearing for lease signs in lieu of red Target bullseyes. What is certain, however, is that: (1) everything that made the Target experience fun for Canadian tourists travelling stateside was utterly lacking when Target finally brought that experience directly to Canadians on our own turf; (2) the retail market in Canada is in for tumultuous times, backfilling all of this anchor retail space flooding onto the market simultaneously; and (3) the Target store in Palm Springs, California, is guaranteed to have at least two additional Canadian customers come March! u Megan Lem is a senior at the University of Western Law School in Ontario and a long-time U.S. Target shopper. Jeffrey Lem is the director of titles for the Province of Ontario and a long-time financier of his daughters U.S. Target shopping. The Abstract 17 Spring 2015

18 Technology Update By Michael D. Goler, Chair ACMA Fellows in the News Technology Committee I am pleased to report that your Technology Committee is continuing to look for ways to add value to the College s website and bring other technology advantages to our fellows. We just recently completed an update to provide an entire set of pages and content for the Corporate Counsel group. Corporate Counsel members now have a dedicated series of pages where they can exchange information, learn about upcoming events and teleconferences among their members, and upload/download materials and written content for their various meetings, including annual meetings. I want to thank our committee for its work on this issue, and I also want to thank the Executive Committee for taking the time to meet with Joyce Elden and me to discuss the why and wherefore of these dedicated Web pages and how it will inure to the benefit of the College as a whole. As many of you will also recall, our committee circulated a new technology survey last year, to which many of you responded and provided some very interesting information. We appreciate your telling us your preferences for the kinds of technologyrelated content and information you find valuable. Quite a few ideas and issues have percolated up from your responses, and we continue to meet to talk about them. We have been and will continue discussions with the Program Committee on how we can create CLE programming for the Annual Meeting, as well as other ideas, both to respond to your survey responses and to bring content on other technology issues to your attention in ways that will make the information useful to you. We also want to remind you that the website is ready to post any hot topics an individual fellow believes are of interest, whether to practitioners across jurisdictions or just within an individual state or federal circuit. Please send topics to us (after you have reviewed them with your individual state or provincial chair), and we will get them posted and let other fellows know. Finally, we want to remain sensitive and responsive to your individual needs. Tell us what you find helpful (or not) on the website. And if anyone has any technology-related idea, issue, or concept she or he thinks would be of value, interesting, or helpful to members of the College, please tell me or any other member of the Technology Committee, and we will check it out. u Michael D. Goler is a member of the law firm Miller Goler Faeges Lapine LLP in Cleveland, Ohio. ACMA Fellow Christopher Devlin is returning to private practice at the Portland, Maine, firm of Bernstein Shur (http://www.bernsteinshur.com) from his in-house position at Unum Group. Bernstein Shur has over 100 lawyers with offices in Maine and New Hampshire and coverage throughout New England. ACMA Fellow Doug Smart has joined Clise Properties as vice president and general counsel. Smart was formerly at the Seattle law firm of Graham & Dunn (now Miller Nash Graham & Dunn) and a shareholder there since Founded in 1889, Clise Properties, Inc. is one of Washington s preeminent real estate companies. u Deadline for New Fellow Nominations June 15, 2015 New Fellow Nominations must be received by June 15, 2015, to be considered on the next Membership Committee call. Nomination forms and guidelines for membership can be found on the ACMA website: https://www. acmaatty.org/fellow/youracma/ nominate.cfm. The Abstract 18 Spring 2015

19 ACMA 2015 New Fellows Ontario Silvana M. D Alimonte Blake, Cassels & Graydon LLP 199 Bay Street, Suite 4000 Commerce Court West Toronto, Ontario M5L1A9 Canada Phone: (416) Fax: (416) California Kathleen Smalley Locke Lord Edwards LLP 300 South Grand Avenue, Suite 2600 Los Angeles, CA Phone: (213) Fax: (213) Connecticut Candace M. Cunningham Robinson & Cole, LLP 280 Trumbull Street Hartford, CT Phone: (860) Fax: (860) Colorado Joseph Lubinski Ballard Spahr LLP th Street, Suite 2300 Denver, CO Phone: (303) Fax: (303) Delaware Joy A. Barrist Benesch, Friedlander, Coplan & Aronoff LLP 222 Delaware Avenue, Suite 801 Wilmington, DE Phone: (302) Fax: (302) Sara Toner Richards, Layton & Finger, PA 920 N. King Street Wilmington, DE Phone: (302) Idaho Christine E. Nicholas Moffat Thomas Barrett Rock & Fields P.O. Box 829 Boise, ID Phone: (208) Massachusetts Suzanne L. Cartledge John Hancock Financial Services 197 Clarendon Street, C-3 Boston, MA Phone: (617) Fax: (617) Minnesota Eileen M. Roberts Dorsey & Whitney LLP 50 South Sixth Street, Suite 1500 Minneapolis, MN Phone: (612) Fax: (612) Ohio Susan C. Cornett Thompson Hine LLP Austin Landing I Innovation Drive, Suite 400 Dayton, OH Phone: (937) Fax: (937) Julie A. Schoepf Dinsmore & Shohl LLP 225 East 5 th Street, Suite 1900 Cincinnati, OH Phone: (513) Fax: (513) Texas Julia P. Forrester SMU Dedman School of Law P.O. Box Dallas, TX Phone: (214) Vermont Andre D. Bouffard Downs Rachlin Martin PLLC 199 Main Street P.O. Box 190 Burlington, VT Phone: (802) Fax: (802) Virginia William H. Casterline, Jr. Blankenship & Keith, P.C University Drive, Suite 300 Fairfax, VA Phone: (703) Fax: (703) Save The Date 2015 Annual Meeting October 15 17, 2015 St. Regis Princeville Resort Kauai, HI Additional discounts may be available at inter-island Starwood properties for those wishing to do pre- or post-trips through the PLAYMORE program. Group rate of $315 for oceanview rooms (no resort fee) is available from 10/10/15 to 10/21/15. The Abstract 19 Spring 2015

20 ACMA Committees Executive Committee Robert A. Holmes Chair and Immediate Past President Louis S. Pettey President Donald A. Shindler President Elect Nancy R. Little Treasurer Alec G. Nedelman Secretary Carol A. Walsh Ex Officio Bankruptcy Committee Cheryl A. Kelly Chair Lawrence R. Ahern III Craig B. Anderson Frank E. Arado Michael E. Busch Dena M. Cruz Steven D. Fleissig James L. Gosdin Adrian P. Hartog M. Lawrence Hicks Jr. John L. Hosack Brian D. Hulse E. Andrew Keeney Douglas J. Klaassen Robert J. Krapf Antoine Leduc Jeffrey W. Lem Darlene T. Marsh Sam J. McAllester III Frank M. Mock John Eric Pollabauer Leopold Z. Sher Douglas Smart Joshua Stein Stephen J. Werts Branding Task Force Lydia C. Stefanowicz Chair Nancy J. Appleby Catherine Elizabeth Bray Nancy R. Little Stephen H. Malato John M. Murphy Stephen R. Romine Norman H. Roos J. Thomas Trent Jr. Norma J. Williams Carol A. Walsh Ex Officio Budget Committee Nancy R. Little Chair R. Keith Colvin Dena M. Cruz Robert A. Holmes E. Andrew Keeney Donald A. Shindler Louis S. Pettey Ex Officio Carol A. Walsh Ex Officio Business Development Committee Stephen H. Malato Co-Chair J. Thomas Trent Jr. Co-Chair Steven D. Fleissig Sandra T. Hawley Jerome N. Kline Gail E. McCann Frank M. Mock Virginia M. Pedreira Beverly J. Quail Stephen R. Romine Margaret R. Scoopmire J. Stephen Werts Norma J. Williams Lawrence J. Wolk Bylaws Committee Norman H. Roos Chair Jean L. Bertrand James R. Conway III John H. Lewis Alec G. Nedelman W. Charles Rogers III Glenn H. Steele Jr. Canadian Members Committee Jeffrey W. Lem Co-Chair Lynn I. Ramsay, Q.C. Co-Chair David R. Bain Catherine Elizabeth Bray Fredric L. Carsley Craig R. Carter Olivia Colic Abraham Costin Roger D. Gripp Adrian P. Hartog Eric C. Haslett Jim Hilton William C. Hultman Douglas J. Klaassen Antoine Leduc D. John Naccarato James Papadimitriou John Eric Pollabauer Brian A. Tabor, Q.C. Derek Winnett Capital Markets Committee Joseph Philip Forte Co-Chair Richard R. Goldberg Co-Chair Frank E. Arado Susan J. Booth Timothy J. Boyce Matthew J. Comisky Thomas A. Hauser M. Lawrence Hicks Jr. John L. Hosack Cheryl A. Kelly Robert J. Krapf Jeffrey W. Lem Thomas J. Miraglia Keith H. Mullen Michael F. O Neill Lydia C. Stefanowicz Susan C. Tarnower Jonathan Thalheimer Katheryne L. Zelenock Corporate Counsel Committee Ned W. Graber Co-Chair Cindy J. Heidel Co-Chair Joyce L. Elden Immediate Past Co-Chair Cheryl P. Armata Robert S. Bozarth Michael W. Broido Pamela P. Brown Leo J. Buchignani Jr. Michael E. Busch Dean L. Bussey Thomas Hal Clarke Jr. Robert Colan Michael R. Curoe Daniel G. Denton Christopher J. Devlin John R. Donner Wendy S. Gibbons Lisa C. Grimes Eric C. Haslett Charles B. Higgins Michael H. Hill Charles D. Hoyum William C. Hultman Alan Innes William J. Jordan Gretchen Lengel Kelly Stacy D. Lavin Richard B. Leber Deanna Lee Claire T. Manning Thomas L. Martin James M. May III Dragica Mijailovic Thomas J. Miraglia Laura A. Monte Edward A. Murphy Alec G. Nedelman Michael F. O Neill Sylvia Park O Neill William C. Peatross David K. Rair Jennifer Van Ness Rentenbach Joyce L. Schenewerk Catherine L. Shaw John F. Sheehan Sarah V.J. Spyksma Brenda Stugelmeyer Francis J. von Turkovich Legislation Committee Michael E. Buckley Co-Chair Eric P. Stauffer Co-Chair Frank E. Arado Robert S. Bozarth John P. Burton Matthew J. Comisky Jay F. Cook Mark F. Dunkle Michael D. Goler James L. Gosdin Martha Harris William C. Hultman Francis L. Keldermans James G. Marsh Malcolm A. Meyer Sr. Andrew F. Palmieri Douglas J. Smart Steven H. Winkler Meetings Committee R. Keith Colvin Chair Jay F. Cook Louis S. Pettey Carol A. Walsh Ex Officio Membership Committee Donald A. Shindler Chair Louis S. Pettey Vice Chair Catherine Elizabeth Bray R. Keith Colvin M. Lawrence Hicks Jr. Robert A. Holmes Robert J. Krapf Darlene T. Marsh Jacob W. Reby Beth H. Mitchell Ex Officio Norma J. Williams Ex Officio Carol A. Walsh Ex Officio The Abstract 20 Spring 2015



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