Tag Archives: lending

Bank agrees to postpone foreclosure sale; forecloses anyway and obtains dismissal of lawsuit against it

28 Dec

The Minnesota Federal District Court recently dismissed the legal action that Etta Bracewell and her husband commenced against U.S. Bank for allegedly breaking its promise that it wouldn’t foreclose on them. Ms. Bracewell and her husband sued the Bank because it foreclosed on them on December 29, 2011, even though just days earlier they say the Bank had promised it would cancel the foreclosure sale.

The case was dismissed because of the Minnesota Credit Agreement Statute (“MCAS”). Minn. Stat. § 513.33. The MCAS insulates banks from lawsuits claiming they made promises or agreements relating to the grant, extension, or even holding off on the collection of loans unless the bank and the borrower have signed a credit agreement specifically stating the terms of the bank’s obligation and the value the bank is receiving in return.

The MCAS exists for a reason. Many people have sued banks claiming they were supposed to get a loan or that they had received an extension of time to pay the bank back, but the promise either was not made or someone within the bank without authority to make such a deal said they would try to get it approved. Sometimes, however, the results can appear unfair to the borrower. If the allegations by Ms. Bracewell and her husband are true, this may be one of those instances, as they alleged they might have taken other action to stop the foreclosure sale if they had known the Bank would not follow through with, or be bound by, its alleged promise.

The case, which is currently available only if you have a subscription to the Federal Courts electronic case filing system or if you subscribe to a legal research publishing service, is Bracewell v. U.S. Bank National Association. In its decision, the court explains the application of the MCAS as follows:

The Eighth Circuit has held that a creditor’s promise to postpone a foreclosure sale constitutes a “financial accommodation” for purposes of the MCAS. Brisbin v. Aurora Loan Servs., 679 F.3d 748, 753 (8th Cir. 2012). Therefore, Plaintiffs may only maintain an action on U.S. Bank’s alleged promise to cancel the sale if that promise “is in writing, expresses consideration, sets forth relevant terms and conditions, and is signed by” Bracewell and U.S. Bank.

Bracewell v. U.S. Bank (citing Minn. Stat. § 513.33, subd. 2). The Court went on to cite to several other recent cases where plaintiffs’ claims were barred by failure to verify their arrangements in signed agreements, including where the bank did not dispute that it made a promise to postpone the foreclosure sale. The Court found that, because Ms. Bracewell and her husband could not, and had not, asserted any of these requirements had been met, their claims are barred.

It may be that the MCAS was applied in the proper manner in this case, and that Ms. Bracewell and her husband did not receive the promise they say they did. But the case nevertheless represents a word to the wise; be sure to get that promise in writing, especially where the MCAS may apply.

Matt Drewes contributed this post. Matt is a Shareholder with Thomsen Nybeck.  He is the head of the firm’s eight-member Community Association Representation Group and the firm’s Creditors’ Remedies Group, and practices in the areas of business and real estate litigation and transactions, employment law, construction litigation, community association law, debtor/creditor law, and insurance. He has been included in several years’ annual lists of Minnesota’s Rising Stars, and has been quoted in the Minneapolis StarTribune, Minnesota Lawyer, Habitat Magazine, and on various websites including Yahoo!Finance.com, Bankrate.com, MSN.com, HOALeader.com, and elsewhere on issues involving construction litigation, community associations and real property issues. He can be reached at mdrewes@tn-law.com or by phone at 952.835.7000.

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Small Businesses May Catch a Break: Small Business Administration is Funding Commercial Loan Refinancing for Loans Maturing By End of 2012

25 Feb

Struggling small businesses may catch a break based upon a new, temporary program from the U.S. Small Business Administration.  Beginning February 28, 2011, the SBA will begin accepting refinancing applications under this new offering within its 504 loan program.  The program applies to commercial loans that will mature or otherwise have balloon payments due on or before December 31, 2012.

Historically, 504 loans have been used to foster long-term financing opportunities for small businesses by providing them with fixed rates and the flexibility of a low initial equity contribution (as low as 10%).  The businesses could then finance up to 90% of the cost of the proposed project or improvement by receiving an SBA guaranteed loan for up to 40% of the cost of the project.  This portion of the financing is funded by an SBA Certified Development Company and secured by a second mortgage.  The availability of subordinated financing reduces the risk and enhances the prospect of bringing in a private lender, which then funds up to 50% of the project cost and receives a first mortgage to secure its loan.

The new program will tweak the standard 504 loan protocol to suit the goal of refinancing those loans reaching maturity owed by stressed, but viable, businesses.  The borrower may refinance the lesser amount of 90% of the current appraised value of the property, or 100% of the existing loan, as well as certain costs associated with the refinancing.  You can read more about the loan program at the Costar Group’s website on its “Headlines” page, here.

There are signs of revitalization in the world of commercial real estate, and this new SBA program has the potential to further that growth, one small business at a time.  If you’re a business owner looking to expand, modernize, or simply to seek relief from the squeeze of an existing loan coming due, or if you’re a commercial lender, we at Thomsen Nybeck provide prompt, efficient and cost-effective legal services to both commercial lenders and borrowers.

Matt Drewes contributed this post.  Matt is a Shareholder with Thomsen Nybeck.  He is the head of the firm’s nine-member Community Association Representation Group and the firm’s Creditors’ Remedies Group., and practices in the areas of business and real estate litigation and transactions, construction litigation, community association law, debtor/creditor law, insurance and employment.  He has been included in Minneapolis/St. Paul Magazine’s list of Rising Stars for several years, and has been quoted on issues involving construction litigation, community associations and real property issues in the Minneapolis Star Tribune, Minnesota Lawyer, Yahoo!finance.com, Bankrate.com, and elsewhere.  He can be reached at mdrewes@tn-law.com or by phone at 952.835.7000.

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