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Commercial Real Estate Financing 2019


Speaker(s): Andrew M. Schutzman, Christine Leas, Daniel B. Rubock, Ellen M. Goodwin, Emilie Cooper, James M. Carolan, Janice Mac Avoy, Jeffrey W. O'Neale, Joseph Philip Forte, Joshua Stein, Michelle V. Kelban, Paul M. Fried, S.H. Spencer Compton, Schuyler G. Carroll, Thomas A. Glatthaar
Recorded on: Apr. 2, 2019
PLI Program #: 251691

Emilie B. Cooper is a partner and member of the Real Estate and Litigation Departments, resident in the New York office. Ms. Cooper is an accomplished litigator and trusted advisor with significant experience handling complex commercial disputes in the real estate and hospitality arenas.

Ms. Cooper has successfully represented companies and individuals, including real estate and hotel investors, developers, lenders, landlords, owners, managers, and operators, in a wide variety of matters including in connection with partnership disputes, breach of contract claims, leasing disputes, commercial tort suits and foreclosures. Her in-depth knowledge of all aspects the real estate industry has proven invaluable to her clients, whether as plaintiffs or defendants. In particular, her understanding their business and operational environment enables her to litigate more effectively, and adopt a practical, solution-oriented approach in all of her cases. She also works hand-in-hand with her transactional colleagues to advise clients concerning the potential litigation implications of their agreements and to provide a litigator's point of view in a transactional context.

Representative matters that Ms. Cooper has been involved in include:
  • Providing ongoing advice to a commercial landlord concerning leasing and other issues in light of COVID-19.
  • Obtaining a preliminary injunction for the manager of a 600-room hotel in Times Square preventing the premature termination of a hotel management agreement.
  • Representing the developer of a building on Billionaires' Row in a claim on a performance bond.
  • Litigating a jury trial on behalf of a private plaintiff pursuing securities fraud claims for insider trading and market manipulation.
  • Representing minority partner in portfolio of over 20 buildings in numerous suits involving claims for fraud, breach of fiduciary duty, breach of contract, rescission, and imposition of a constructive trust.
  • Defending the developer of a luxury residential building in downtown Manhattan in connection with a claim for a brokerage commission.
  • Arbitrating a dispute for a major boutique hotel operator concerning fees owed pursuant to a management agreement for a well-known hotel located in Los Angeles.
  • Representing lenders in foreclosing on over US$300 million of loans secured by two midtown hotels, and in pursuing personal guaranties provided by borrower's principals in connection with the loans.
Ms. Cooper has been named a New York Metro Super Lawyers Rising Star by Thomson Reuters each year from 2015-2020, and was recognized as a “Leading Lady in Real Estate” by Real Estate Weekly in 2019.

Ms. Cooper regularly publishes articles concerning litigation developments that are pertinent to the real estate industry, and authored Lexis Practice Advisor's Practice Note: Commercial Mortgage Foreclosure (NY). She has presented seminars and CLEs on contract interpretation from a real estate litigator's point of view, the implications of COVID-19 on the real estate industry, and leasing litigation issues.

Ms. Cooper is the Chair of the Georgetown Law NYC Regional Engagement Council, sits on the Advisory Board for the annual Hotel & Lodging Legal Summit, and is a proud member of Chief. She also maintains an active pro bono practice, and has successfully obtained asylum for several clients fleeing persecution, including an Ethiopian orphan who originally came to the United States to seek medical treatment for complications from her amputated leg. 

Prior to joining Fried Frank, Ms. Cooper was a partner in the New York office of a national firm and at a New York-based litigation boutique.
 

Bar Admissions/Licensed Jurisdictions

New York, the United States Supreme Court, the US District Courts for the Southern and Eastern Districts of New York, and the United States Court of Appeals for the Second Circuit.


Andrew M. Schutzman is CEO and President of AMS Risk Management & Consulting, Inc., a consulting firm that specializes in providing professional insurance risk management and consulting services to clients on a continuous and project basis.  The practice also provides litigation support and expert witness work on Property & Casualty insurance issues.  Formerly a Senior Vice President at a Long Island consulting practice, Andrew has serviced clients in the financial, manufacturing, construction, real estate, retail, hotel/casino industries, not-for-profit organizations and municipalities over the last twenty-five (25) years. 

Andrew holds the Chartered Property Casualty Underwriter (CPCU) designation, the most recognized degree in the Property and Casualty industry. Andrew also holds a Juris Doctorate from the State University of Buffalo Law School and is admitted to practice in New York.

Andrew has conducted continuing education seminars on a wide variety of insurance topics including Workers Compensation Insurance (New York Chamber of Commerce), Indian Gaming (Sovereign Indian Nation Tribal Government Insurance Conference), Business Interruption/Extra Expense (Long Island Accountant's Association), Directors & Officers Liability/Employment Practices Liability (NYS Society of CPAs) and Small Business Insurance Overview (Institute of Management Accountants).  Andrew has been interviewed and quoted frequently for articles related to insurance matters in such publications as the New York Times, the Habitat, the Cooperator and the Bottomline.

Andrew participates as a member of The American Bar Association, Section

Tort & Insurance Practice and The CPCU Society.


Christine Leas advises clients on a broad array of transactional, as well as regulatory compliance and permitting issues, with a particular focus on complex brownfield and contaminated site redevelopment projects. She also has extensive experience negotiating manuscript environmental insurance policies and resolving coverage disputes.  Christine obtained her law degree from the University of California, Hastings College of Law, and is admitted to practice in New York, California and Connecticut.  She is recognized as a leading environmental practitioner by Who’s Who Legal and New York Super Lawyers.

In addition to counseling developer clients on environmental due diligence, structuring and negotiating the property sale transaction, environmental consulting and remediation service procurement and oversight, environmental insurance and regulatory compliance, Christine has worked with corporate and financial institution clients on environmental aspects of mergers and acquisitions involving many domestic and international properties.  Her experience includes:

  • Due diligence and environmental acquisition counsel on dozens of individual projects as well as portfolio acquisitions within the New York region and nationally for clients including: private equity investors, institutional lenders, turn-key developer of distribution facilities, shopping center and self-storage facility operators
  • Environmental counsel for many mixed use residential and commercial projects on brownfield locations
  • Environmental counsel to family-owned businesses with legacy liability obligations
  • Led several insurance claim recoveries under environmental policies and for legacy environmental liabilities under general liability policies dating back to the early 1900s
  • Permitting counsel and enforcement defense against asserted violations of coastal zone and freshwater wetland regulations

Christine is a frequent lecturer on environmental liability and regulatory compliance issues.  She recently spoke at the Ekos Brazil, SustRem conference in São Paulo, Brazil (October 2018), and has presented many continuing legal education programs for PLI, the New York State Bar Association Environment and Energy Law Section, and the American Bar Association Section of Business Law.


Ellen Goodwin is a partner in the New York office of Alston & Bird’s Real Estate Finance & Investment Group and the former co-chair of the group. Ellen concentrates her practice on commercial real estate finance and has represented investment banks, commercial banks, funds, and insurance companies on a variety of loan transactions for both securitizations and portfolios, including construction loan financings, loan syndications and participations, co-lending and senior/subordinate arrangements, and mezzanine finance. She acts as form and program counsel for a number of active CMBS, balance sheet, and bridge lenders. Ellen’s experience extends to the workout, restructuring, and foreclosure of both securitized and portfolio mortgage loans, and she has extensive experience working with special servicers. She represents both sellers and purchasers of whole loans, subordinate debt, and mezzanine loans.

Ellen is a frequent lecturer on topics concerning real estate finance and workouts and restructurings of mortgage and mezzanine loans. She speaks regularly for the Practising Law Institute, New York State Bar Association, New York City Bar Association, ACREL, and International Council of Shopping Centers.

Ellen has been listed in The Best Lawyers in America© in the Real Estate New York category since 2012 and in The Best Lawyers® Business Edition 2017 – Women in the Law. In 2020, she was recognized as a “Woman of Influence” in commercial real estate by GlobeSt. Real Estate Forum.


James M. Carolan is a partner at Steptoe & Johnson LLP. He has broad experience representing foreign and domestic clients in all aspects of real estate. He has handled acquisitions and sales of single assets and portfolios, ground leases, space leases for office, retail, warehouse and other uses, asset-based and mezzanine financings, development and investment joint ventures, construction and design arrangements, and complex easements for conservation, utilities, construction and access.  His diverse clients include developers, major corporations, universities, funds, art galleries, luxury retailers, restauranteurs, investors and family offices. After spending 14 years as in-house counsel to Yale University, where he advised the central university and endowment on real estate investment, development and general business matters, Jim led the U.S. real estate group of an international law firm for 10 years. In addition to his extensive commercial experience, Jim has handled over $1 billion in luxury residential transactions in and outside the U.S. A frequent lecturer, he has taught courses and classes on real estate law and practice at the Yale Law School, the Yale School of Forestry and Environmental Studies, NYU, Columbia and Cornell. Jim has handled pro bono matters throughout his career, ranging from a child abuse action to affordable housing, and advising on the formation and governance of nonprofits. He is fluent in Italian, and advises Italian speaking clients on their U.S. dealings, and assists foreigner investors dealing with Italy.  Jim raises money for the maintenance of Italian monuments in his spare time.


Janice Mac Avoy is a member of the Real Estate Department and the Litigation Department, co-head of the Real Estate Litigation Practice Group and a member of the Firm's Pro Bono Committee.
Ms. Mac Avoy concentrates her practice in complex real estate-related transactions and disputes, commercial litigation and arbitration, complex commercial landlord tenant disputes and commercial fair market rent arbitrations. She also has extensive experience in creditor’s rights, including complex commercial real estate mortgage foreclosures and UCC foreclosures, workouts and restructuring of real estate secured debt. Ms. Mac Avoy works with the Firm’s Real Estate Department on transactions in order to resolve issues without resorting to litigation.

Ms. Mac Avoy’s clients include commercial landlords and tenants, lenders and investors, broker-dealers and multinational corporations as well as individuals involved in commercial disputes. A significant amount of Ms. Mac Avoy’s practice includes advising clients on complex securitized debt in which the underlying assets are real estate, including the enforcement of lender’s rights, acquisition and divestitures of real estate secured debt and the restructuring of real estate secured debt. She also advises clients in complex partnership and joint venture disputes.

Ms. Mac Avoy has created seminars and CLE presentations on, among other things, the basics of real estate restructuring and workouts, mezzanine loan foreclosures under the UCC and the parameters of the attorney-client privilege in the corporate context. Ms. Mac Avoy has also published articles on lender liability claims, developments in the law of attorney-client privilege, electronic discovery and the appropriate use of email.

Ms. Mac Avoy is ranked by Chambers USA: America's Leading Lawyers for Business for Real Estate Litigation, which describes her as “the best real estate litigator in New York.”

Ms. Mac Avoy received the “Courage Award” from The Women Lawyers Association of Los Angeles for her exceptional dedication and commitment in the fight to protect women’s reproductive freedom. She received the "Commitment to Justice Award" for her extensive work on and long-term commitment to family law cases referred to her by Her Justice (formerly inMotion). In addition, she was honored with the 2018 Zero Tolerance Award by Sanctuary for Families at the annual Zero Tolerance gala for her lifelong commitment to the protection and empowerment of women. In 2019, Ms. Mac Avoy was admitted as a member to the American College of Real Estate Lawyers (ACREL), a premier organization of US real estate lawyers.

Ms. Mac Avoy is regularly named among Crain's New York Business' list of Notable Women in Law, a feature honoring achievements of the brightest and boldest legal minds with both distinguished careers and exceptional civic and philanthropic activities. In 2019, Globe St. Real Estate Forum named Ms. Mac Avoy to its Women of Influence feature, which recognizes remarkable commercial real estate professionals. Ms. Mac Avoy also was inducted into Real Estate Forum’s “Women of Influence” Hall of Fame, and has been named by Super Lawyers as one of the Top 50 Women in New York.
Ms. Mac Avoy serves on the boards for Sanctuary for Families and the Center for Reproductive Rights. She is a member of the American College of Real Estate Lawyers (ACREL), the American Law Institute and the CREW Network (The Association of Commercial Real Estate Women), as well as a member and voting representative of the CRE Finance Council.

Ms. Mac Avoy received her JD from Columbia Law School in 1988, where she was a Harlan Fiske Stone Scholar and associate editor of the Law Review. She received her BA, summa cum laude, from Washington University in St. Louis in 1985, where she was a member of the Phi Beta Kappa society and has since been recognized as a distinguished alumna. Ms. Mac Avoy is admitted to practice in New York; the United States District Courts for the Southern and Eastern Districts of New York; the United States District Court for the Eastern District of Michigan; and the United States Courts of Appeal for the Second, Third and Ninth Circuits.

 


Jeffrey O’Neale is a partner in the Finance Group and chair of the Lending & Servicing Team at Alston & Bird LLP. He focuses his practice on representing institutional lenders, financial institutions and servicers in a variety of secured and unsecured financial transactions including commercial mortgage loan originations, single-family residential mortgage loan originations, loan workouts and restructurings, repurchase and warehouse facilities and credit facilities. A primary focus of his practice is representing special servicers in loan workouts, restructurings and modifications and repurchase facility buyers in the servicing and administration of their commercial mortgage loan portfolios.

Jeffrey received his J.D. from the University of Michigan Law School in 2007. He received his B.A. in international finance and marketing from the University of Miami (FL) in 2001.

Jeffrey is admitted to practice in North Carolina.


Joseph Philip Forte was recently named General Counsel for AmTrust Title Insurance Company.  Prior to taking on this role, Mr. Forte was in private practice as a partner in several major New York law firms and has substantial experience in commercial real estate capital markets and finance, with a particular emphasis on the origination, structuring, workout and enforcement of commercial mortgage loans, having closed tens of billions of dollars during his 47 years in private practice, including permanent, bridge and construction mortgage lending; mezzanine finance; pari passu and subordinate debt; co-lending and participation agreements; loan sales and purchases; loan workouts, foreclosures and restructurings; and environmental risk management for lenders. Through six cycles of downturns and recoveries of real estate markets, Joe has been at the forefront of many major innovations and reform in the real estate finance industry, including the development of the secondary and securitization mortgage markets; reform of Dodd Frank Act’s Basel III High Volatility Commercial Real Estate (HVCRE) Rule; and working with industry on the transition away from LIBOR.

Widely recognized as a leader in the real estate finance industry, Joe has received the Commercial Real Estate Finance Council’s (CREFC) Founder’s Award (2001), the Mortgage Bankers Association of America’s Distinguished Service Award (1998) and the CREFC’s Leadership Award for his service as President (1998-1999) and since 2000, he has regularly been highlighted by Chambers for his real estate practice. Joe has been recognized annually by The International Who’s Who of Real Estate Lawyers (WWL) as one of the top 10 most highly regarded lawyers, and from 2010 to 2013 and 2017 and 2018 as "Global Real Estate Lawyer of the Year". Joe was featured in the Real Estate chapter of the inaugural Who’s Who Legal: Thought Leaders 2017, and thereafter. In 2019, he received the WWL’s highest accolade its Lifetime Achievement Award as “a pioneering figure in real estate financing” working “at the forefront of commercial real estate reform.”

Joe has also been recognized in the Euromoney Guides to the World’s Leading Real Estate Lawyers, Construction and Real Estate Lawyers, Structured Finance and Securitization Lawyers and Banking Finance and Transactional Lawyers, The Legal 500, as well as Best of the Best-United States, Best of the Best-Globally, and Best of the Best, and as "Highly Recommended" by PLC Corporate Real Estate Leading Lawyers Guide. Joe is regularly chosen as a Super Lawyer in New York and is listed in The Best Lawyers in America. Joe frequently publishes and speaks on mortgage finance and workouts, capital markets, regulatory and related issues and is the recipient of several “Best Article” awards from legal and industry publications on commercial real estate finance topics; is the founder and publisher of CREFC’s CRE Finance World magazine since 1999; and is the Contributing Editor of Lexology’s annual Getting the Deal Through - Real Estate and author of that publication’s annual Global Overview and USA Chapter since 2013. He is a fellow of the American College of Real Estate Lawyers, the American College of Mortgage Attorneys, and the Anglo American Real Property Institute, which he served as Chair in 2015 as well as the New York City and New York State Bar Associations.  Joe is active in MBA, CREFC and The Real Estate Roundtable and their working groups.


Joshua Stein is the sole principal of Joshua Stein PLLC, a boutique commercial real estate law firm that he formed in Midtown Manhattan after 20+ years as a partner at a leading global law firm. His firm celebrated its 10th anniversary in 2020. His practice focuses on acquisitions, development, financing, hotels, leasing (particularly ground leases), and loans. He acts regularly as an expert witness and occasionally as an arbitrator or mediator. He is a member of the American College of Real Estate Lawyers, the Association for Real Property and Infrastructure (ARPI), and the American College of Mortgage Attorneys. Since 1997, he has chaired the Practising Law Institute’s annual two-day seminar on commercial real estate financing. He chaired the New York State Bar Association Real Property Law Section for the year ending in May 2006. He has written five books and more than 300 articles on commercial real estate law and practice, many available at www.joshuastein.com. His name regularly appears in published lists of leading lawyers, such as the Chambers guides, International Who’s Who of Business Lawyers, Best Lawyers, and Super Lawyers. He received his undergraduate degree from UC Berkeley and his law degree from Columbia, where he was a Harlan Fiske Stone Scholar and a managing editor of the Columbia Law Review.


Michelle Kelban, Global Co-Chair of the Real Estate Practice at Latham, focuses her practice on all aspects of commercial real estate law, with a particular concentration on highly structured capital raising and financing, acquisitions, joint venture recapitalizations and workouts and restructurings for both borrowers and lenders. She represents capital providers in a range of real estate transactional structures and is a “skilled and extremely competent” lawyer who is “very knowledgeable and service oriented” according to The Legal 500 US.

  • Asset and entity level acquisitions and dispositions in respect of real estate based operating businesses
  • Single asset and multiple property portfolio financings for a range of property types and performing and non-performing loan assets
  • Mezzanine financings, preferred equity structures, equity investments, joint ventures, and equity recapitalizations
  • Workouts, restructurings, distressed and performing loan sales
  • Foreign investors with respect to all types of in-bound U.S. acquisitions, joint ventures, and financings

In 2020, Ms. Kelban was elected to the American College of Real Estate Lawyers, an invitation-only organization comprised of leading real estate lawyers across the US.

Experience

Ms. Kelban has significant experience with a range of property types such as:

  • Hotels and resorts
  • Casinos
  • Mixed use projects
  • Assisted living facilities and senior housing facilities
  • Office buildings

Ms. Kelban’s experience includes advising:

  • A private equity fund in the exercise of remedies in connection with a subordinated mezzanine loan secured by a 148 asset hotel portfolio located in 32 states and the transfer of such portfolio to the client, as lender, in lieu of a foreclosure
  • Real estate aspects of a preferred equity co-investment in Albertsons Companies, one of the largest food and drug retailers in the US
  • An institutional lender in multiple, highly structured loans secured by non-performing loans, performing loans, and portfolios of fee assets
  • A Middle Eastern investor in acquiring the Montage Beverly Hills
  • A Middle Eastern investor in acquiring the Intercontinental Barclay New York Hotel through a joint venture structure together with acquisition financing and construction financing and structuring for a major hotel renovation
  • An institutional lender in connection with a mortgage loan with a future advance component secured by 36 commercial real estate assets and a mezzanine loan secured by the equity interest in mortgage borrowers
  • A Middle Eastern investor in the purchase of the retail and hotel condominium components of a to be constructed trophy property in downtown Manhattan
  • A foreign investor in connection with the complex development joint venture, acquisition, pre-development and construction financing of One Wall Street, a landmarked office building located in downtown New York City
  • A private equity fund as borrower pledging large non-performing loan portfolios as collateral under multiple loan transactions


Paul Fried is an Executive Managing Director and Head of Equity Capital Markets at Greystone. Greystone is a national finance company, originating $19 billion last year, annually a top 10 agency lender by volume, and the country’s top FHA-HUD lender. Paul leads an investment banking team, and oversees equity raises and investments for real estate owners and developers. His team originated $900 million last year of Fannie, Freddie, HUD and bridge loans, and arranged $700 million of equity and debt  assignments.

Paul’s experience, prior to Greystone, includes overseeing debt and equity capital markets for L&L Holding, and he was a Director with Deutsche Banc and a member of the investment committee, and cofounder of finance company Allegiance Capital. He started as an attorney. He was in the corporate reorganization group at Milbank, Tweed.

Paul has a JD from Rutgers (Newark), where he was an Editor of the Law Review, and a BA from Rutgers College (New Brunswick; History) where he was a Henry Rutgers Scholar. He is a Council Member of the Urban Land Institute and co-council of the NY ULI chapter.


Schuyler Carroll serves as a trusted advisor to a wide range of clients, helping them develop solutions and strategic alternatives to their most complex restructuring matters. His practice focuses primarily on Chapter 11, 15 and 7 bankruptcy proceedings; distressed acquisitions; creditors’ rights enforcement; and litigation and advisory work. Clients also turn to him for out-of-court workouts and non-judicial reorganizations and restructurings.

Schuyler represents debtors, creditor committees, trade creditors, claims traders, and secured and unsecured creditors across a wide range of industries, including financial services, real estate, health care, retail, manufacturing, e-commerce, technology, telecommunications and hospitality.

He is particularly skilled in counseling parties on potential bankruptcy issues related to nonbankruptcy transactions such as investments, loans, and mergers and acquisitions. Schuyler also often represents buyers and sellers of distressed debt and equity, and he has extensive experience representing acquirers of assets of insolvent and bankrupt companies.

Schuyler has in-depth experience in enforcement of creditors’ rights and litigation in creditors’ rights in state and federal courts.  His litigation background includes fraud claims, loan recovery and collection actions, fraudulent conveyance actions, foreclosures and replevin actions, enforcement proceedings, reclamation and other actions under the Uniform Commercial Code, loan participation and syndication actions, defense of lender liability, and usury and fraud claims.


I am a Senior Vice President and Chief Commercial Underwriting Counsel (New York) for Fidelity National Title Insurance Company, where I have been employed since April, 2007. Prior to that, I was President of Title Resource Agency, Inc., a title insurance agency based in New York City, from April 1997 to April 2007. Before that, I was Vice President and Chief Counsel for First American Title Insurance Company of New York from March 1992 to April 1997.

I am a graduate of Providence College (B.A., 1980), and have received my J.D. from Fordham University School of Law (1988). I was admitted to the New York Bar Association in 1989, and am a member of the Title and Transfer Committee.


Spencer Compton is a Vice President and Special Counsel at First American Title Insurance Company, New York Division and has served in the same capacity since 2001 when he joined the pre-merger First American Title Insurance Company of New York as a Vice President. 

With his experience in finance/commercial real estate and leasing, Compton is an invaluable resource to First American’s wide ranging institutional, corporate and high net worth client base.  He is a frequent contributor to Lexis/Nexis websites and publications, the New York State Bar Association’s Real Property Law Journal, and The Practical Real Estate Lawyer.  He is a well-regarded and prolific CLE lecturer and presenter for First American.

Prior to working with First American, Compton was employed in private practice with Duval & Stachenfeld LLP, and earlier with Paul, Weiss, Rifkind, Wharton & Garrison, and Latham & Watkins.  He began his real estate law career with Rogers and Wells in 1989.

Compton is a graduate of New York University and holds a JD cum laude from Brooklyn Law School.  He is a member of the Bar Associations of New York and Connecticut.

Compton is also a faculty member of the Practicing Law Institute; Budget Officer of the New York State Bar Association, Real Property Law Section; a former Co-Chairman of the Legislative Committee; and Co-Chairman of the Commercial Leasing Committee’s “Silent Lease Issues” Subcommittee. 

Compton was born in Sharon, CT and now resides in Brooklyn, NY.  He is married to Emmy Award-winning writer-producer and journalist Karen Compton.


Dan Rubock is Senior Vice President and senior counsel with the Commercial Real Estate Finance Group at Moody’s Investors Service, helping Moody’s develop its policy for structural and legal issues in CMBS.

Prior to joining Moody’s in 1999, Dan practiced law with Cadwalader Wickersham & Taft, Dechert Price & Rhoads and White & Case, concentrating in commercial real estate law and real estate litigation.

Dan is a graduate of Yale College and Columbia Law School. He was elected a Fellow of the American College of Real Estate Lawyers in 2007, is a Certified Mortgage Banker, and is a member of the editorial board of CRE Finance World.