High Court Win Is No Cure-All For Subordinate-Lien Market

Law360, New York ( June 2, 2015, 5:59 PM EDT) -- Lenders in both consumer and commercial real estate markets have reason to celebrate the U.S. Supreme Court's unanimous ruling in Bank of America NA v. Caulkett, (U.S. June 1, 2015), reversing a contrary ruling of the Eleventh Circuit. The court backed a second-lien lender's right to maintain its lien throughout the bankruptcy process regardless of any diminution in the value of the real property in question. Had the debtors prevailed in Caulkett and its companion case, as they had in lower courts, real estate markets would have been in turmoil as second-lien holders would have had little, if any, recourse on loans with severely diminished equity positions, even if property values later returned to normal levels. In addition, the potential ramifications of similar treatment in Chapter 11 cases involving corporate debtors would likely have led to substantial disruption and a potential credit freeze in the $40 billion subordinate-lien industry for commercial loans....

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