THE PLAIN & SIMPLE
Duval & Stachenfeld LLP has created a newsletter, The Plain & Simple, as a tool for keeping our clients and friends current on relevant business and legal topics. We know our clients are busy and do not have the time to go sifting through lengthy articles filled with "lawyerese", so we limit The Plain & Simple to two pages or less. We invite you to read some of The Plain & Simple issues we have produced in the past. If you would like to be added to our distribution list, please send all requests to newsletter@dsllp.com with SUBSCRIBE in the subject line of the email .
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The Plain & Simple: Real Estate and Distressed Real Estate Law
Sales and Use Tax Liability May Pierce the LLC/Limited Partnership Veil in New York
Assume that you are a truly passive investor in a limited liability company or a partnership. The company is not doing well. You have begrudgingly accepted that your equity is likely worthless, but at least you are not responsible for the company's liabilities. If the company has failed to pay sales or use taxes in New York then, unfortunately, you need to think again.
Produced by the Distressed Real Estate Practice Group
October 28 , 2010, Vol. XXIII
Getting in a dust-up? Where and how is often more important than whether you have a good case!
When confronted with litigation, your first instinct may be to look at the merits of a case. However, this article lists some very simple procedural questions that you should consider asking at the onset of a case. The answers to these questions could give enormous leverage, either for or against you.
Produced by the Distressed Real Estate Practice Group
May 5 , 2010, Vol. XXII
Just days after we sent out the most recent Plain & Simple on the fraudulent transfer risk inherent in real property acquisitions from distressed sellers, there was an important development in this area, which we felt merited a follow-on distribution.
Produced by the Distressed Real Estate Practice Group
February 23, 2010, Vol. XXI
This article discusses how that great acquisition you previously closed can come back to affect your IRRs if the seller was distressed and later files for bankruptcy.
Produced by the Distressed Real Estate Practice Group
February 1, 2010, Vol. XX
On Sunday, October 25, 2009, Capmark Financial Group Inc., along with multiple subsidiaries and affiliates, filed for Chapter 11 protection in the United States Bankruptcy Court for the District of Delaware. This article discusses the Capmark filing and lists the subsidiaries that are and are not covered as well as the steps borrowers should take to determine whether or not the lender entity in their deals are part of the bankruptcy filing.
Produced by the Distressed Real Estate Practice Group
October 26, 2009, Vol. XVIII
Kick-Starting Stalled Development Projects with Public Funding
The continuing paucity of access to credit has led multiple real estate development projects to become troubled, or, completely stalled. This article discusses how these projects in question may be eligible for government funded assistance.
Produced by the Distressed Real Estate Practice Group
October 2009, Vol. XVII
“Springing Recourse” for Breach of a “Bad Boy” Non-Recourse Carve-Out Provision Upheld in New Jersey
This article discusses how a recent case has both lenders and borrowers looking very closely at the various “non-recourse carve-out” provisions in their otherwise non-recourse real estate loan documents.
Produced by the Distressed Real Estate Practice Group
September 2009, Vol. XVI
Strategic Defaults in CMBS Loans and Special Servicing
This article discusses how in this environment an increasing number of owners are electing to let their loans go into default as a strategy intended to move the loan into the domain of “special servicing.”
Produced by the Distressed Real Estate Practice Group
July 2009 , Vol. XV
This article provides an update on the Federal Reserve Board's announcement that beginning in late June 2009, it will make its Term Asset-Backed Securities Loan Facility (“TALF”) available to finance new-issue commercial mortgage-backed securities (“CMBS”). In addition, the article discusses the qualifications and terms for TALF.
Produced by the Distressed Real Estate and Structured Finance Strategies
Practice Groups
May 2009 , Vol. XIV
Public-Private Investment Program Update
This article provides an update on the new Public-Private Investment Program (the “Program”) released by the Treasury Department on March 23, 2009.
Produced by the Distressed Real Estate and Structured Finance Strategies
Practice Groups
April 2009 , Vol. XIII
This article provides an analysis of the new Public-Private Investment Program (the “Program”) released by the Treasury Department on March 23, 2009. The Program is Treasury’s latest attempt to remove troubled or illiquid assets from the balance sheets of financial institutions and is designed to maximize the impact of each taxpayer dollar, ensure shared risk (and profits) between taxpayers and private sector participants, and establish private sector price discovery through competing investors.
Produced by the Distressed Real Estate Practice Group
March 2009 , Vol. XII
TARP UPDATE: The New Financial Stability Plan
This article examines and comments on the new measures Treasury Secretary Timothy F. Geithner announced on Tuesday, February 10, 2009 that are intended to provide additional relief from the credit crisis and complement the stimulus package that is working its way through Congress.
Produced by the Distressed Real Estate Practice Group
February 2009 , Vol. XI
A Transfer Tax Can be a Hidden Cost When Purchasing a Real Estate Loan and TARP Update
This article warns of the threat of hidden transfer taxes when purchasing a loan and the foreclosing on the underlying property. This edition also has an article providing an update on the Troubled Asset Release Program established by the Emergency Economic Stabilization Act of 2008, specifically the program’s shift away from asset purchase towards capital injection.
Produced by the Distressed Real Estate Practice Group
November 2008, Vol. X
This article discusses three new initiatives announced by the Department of the Treasury, the Federal Deposit Insurance Corporation, and the Federal Reserve Board – namely, the Capital Purchase Program, Temporary Liquidity Guarantee Program, and Commercial Paper Funding Facility, each promulgated under the Troubled Asset Relief Program established by the Emergency Economic Stabilization Act of 2008.
Produced by the Distressed Real Estate Practice Group
October 2008, Vol. IX
New Risks: Credit of Title Insurers; Safety of Escrow Accounts
This article warns of new risks with respect to the title insurance companies and escrow accounts that have surfaced in light of the current economic situation.
Produced by the Distressed Real Estate Practice Group
October 2008, Vol. VIII
The “Emergency Economic Stabilization Act of 2008”
This article outlines the “Emergency Economic Stabilization Act of 2008,” and the Troubled Asset Relief Program that is established under it.
Produced by the Distressed Real Estate Practice Group
October 2008, Vol. VII
Confidentiality Agreements- Don't Take Them Too Lightly
This article discusses the legal significance of confidentiality agreements by outlining material issues that may arise with respect to them.
Produced by the Corporate, Litigation and Real Estate Practice Groups
January 2008, Vol. VI
Buying Debt? Make Sure You “Buy” It Rather Than Take It By “Assignment”
This article suggests that loan acquisitions be structured as a “purchase and sale,” rather than as an “assignment,” to protect the loan purchaser from inheriting lender liability claims caused by the seller.
Produced by the Bankruptcy, Corporate and Real Estate Practice Groups
November 2007, Vol. V
You Stepped In You-Know-What- Don't Make It Worse
This article recommends ways to protect communications within an organization in the event that litigation is contemplated.
Produced by the Litigation, Corporate and Real Estate Practice Groups
July 2007, Vol. IV
The small (but quite worrisome) sale of a small parcel of land out of a bigger parcel and Possibly the worst issue in a ground lease
This article warns of possible issues a potential seller should consider before it sells a small parcel of land which was acquired as part of a larger property. Additionally, this edition has an article discussing issues arising out of casualty insurance proceeds in ground leases, one of the many tough issues that arise in the context of ground leases.
Produced by the Real Estate Practice Group
February 2007, Vol. III
A hole for the borrower in a portfolio loan and A hole for the tenant in a long-term lease
In multi-property portfolio loan documents, the lender will generally push for a provision that allows a default pertaining to any one property to trigger a default under the entire loan, while the borrower will resist this harsh outcome. This article proposes several possible compromises, which would reasonably protect the borrower, without exposing the lender to unreasonable risk. Additionally, this edition has an article proposing the use of a “reminder notices” in long-term leases to prevent the future loss of valuable rights as a result of the simple failure to timely send a notice.
Produced by the Real Estate Practice Group
November 2006, Vol. II
Buy/Sell And Forced Sale Mix and The Sole Order Escrow
This article stresses the importance of considering the impact of buy/sell and forced sale provisions in documents, especially in relation to each other, to avoid disputes. Additionally, this addition has an article examining the importance of the sole order escrow, in which one party, usually the buyer, has the unilateral right to instruct the escrow agent to release a deposit from escrow.
Produced by the Real Estate Practice Group
September 2006, Vol. I
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The Plain & Simple: Corporate Law
Confidentiality Agreements- Don't Take Them Too Lightly
This article discusses the legal significance of confidentiality agreements by outlining material issues that may arise with respect to them.
Produced by the Corporate, Litigation and Real Estate Practice Groups
January 2008, Vol. VI
Buying Debt? Make Sure You “Buy” It Rather Than Take It By “Assignment”
This article suggests that loan acquisitions be structured as a “purchase and sale,” rather than as an “assignment,” to protect the loan purchaser from inheriting lender liability claims caused by the seller.
Produced by the Bankruptcy, Corporate and Real Estate Practice Groups
November 2007, Vol. V
You Stepped In You-Know-What- Don't Make It Worse
This article recommends ways to protect communications within an organization in the event that litigation is contemplated.
Produced by the Litigation, Corporate and Real Estate Practice Groups
July 2007, Vol. IV
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The Plain & Simple: Litigation
Confidentiality Agreements- Don't Take Them Too Lightly
This article discusses the legal significance of confidentiality agreements by outlining material issues that may arise with respect to them.
Produced by the Corporate, Litigation and Real Estate Practice Groups
January 2008, Vol. VI
You Stepped In You-Know-What- Don't Make It Worse
This article recommends ways to protect communications within an organization in the event that litigation is contemplated.
Produced by the Litigation, Corporate and Real Estate Practice Groups
July 2007, Vol. IV
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The Plain & Simple: Bankruptcy Law
Buying Debt? Make Sure You “Buy” It Rather Than Take It By “Assignment”
This article suggests that loan acquisitions be structured as a “purchase and sale,” rather than as an “assignment,” to protect the loan purchaser from inheriting lender liability claims caused by the seller.
Produced by the Bankruptcy, Corporate and Real Estate Practice Groups
November 2007, Vol. V
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Nonprofits Are In a Bind As The Markets and Madoff Sink Endowments Underwater
In light of the alleged fraud involving Bernard L. Madoff Investment Securities, this article provides an overview of the rules governing how non-profit organizations may utilize their endowment funds.
Produced by the Tax Exempt Organizations Practice Group
December 2008, IX
In These Tough Times, Does A Merger Make Sense For Your Non-Profit?
This article provides an overview of certain key issues which non-profit organizations should address before proceeding with a merger.
Produced by the Tax Exempt Organizations Practice Group
October 2008, Vol. VIII
Tax Exempt Organizations Prepare Themselves for Heightened Regulatory Scrutiny:
An Overview of the Redesigned 2008 IRS Form 990In December 2007, the IRS released the final draft of the 2008 Form 990. The IRS developed the new form to enhance transparency, promote tax compliance and minimize the reporting burden on filing organizations. This article highlights the key aspects of the 2008 Form 990.
Produced by the Tax Exempt Organizations Practice Group
September 2008, Vol. VII
Having an Impact Without Causing an Impact: Tax Exempt Organizations Going Green
This article suggests ways for tax exempt organizations to reduce their greenhouse gas emissions, or their “carbon footprint.” Aside from environment benefits, “green” initiatives reduce overhead and operational costs, increase employee morale, attract and retain the best talent, are a good source of PR, and may even attract funding opportunities.
Produced by the Environmental and Tax Exempt Organizations Practice Groups
June 2008, Vol. VI
Guidance to Tax Exempt Organizations Involved in Political Activities
This edition summarizes the IRS’ Revenue Ruling 2007-41, which provides 21 factual situations that illustrate what tax-exempt organizations can and cannot do in terms of their involvement in politics.
Produced by the Tax Exempt Organizations Practice Group
January 2008, Vol. V
New York Attorney General’s Settlement With Morris Foundation
This edition reports on the New York Attorney General’s settlements resolving claims of excessive compensation of two board members and an officer of the Morris Foundation; the IRS’s informal guidelines on reporting nonprofit compensation information on Form 990; the IRS’s investigation of improper political activity by more than 350 nonprofit organizations; and the suspension of development agencies banning authority, as a result of a political impasse in Albany, which affects financing for certain New York nonprofits. Also, this edition summarizes additional proposed principles of effective practice for charitable organizations, specifically those relating to “Strong Financial Oversight” and “Responsible Fundraising.”
Produced by the Tax Exempt Organizations Practice Group
August 2007, Vol. IV
IRS Executive Compensation Compliance Project
This edition reports on the IRS’s executive compensation initiative to examine non-profit tax returns; Richard Grasso’s victory on hid first appeal from a series of adverse rulings in the New York Attorney General’s case against him citing him for receipt of excessive compensation; the record giving by private foundations in 2006; and the American Red Cross naming of the former IRS commissioner, Mark W. Everson, as its next president and CEO. Additionally, it summarizes additional proposed principles of effective practice for charitable organizations, specifically those that relate to “Effective Governance.”
Produced by the Tax Exempt Organizations Practice Group
June 2007, Vol. III
Additional Provisions of the Pension Protection Act of 2006 Now Effective
This edition summarizes some key provisions of the Pension Protection Act of 2006 that will impact many nonprofit organizations. Also, it discusses the New York State Bar Association’s approval of its proposed comprehensive amendments to the Not-for-Profit Corporation Law. Finally, the edition outlines the proposed principles of effective practice for charitable organizations promulgated by the Independent Sector’s Advisory Committee on Self-Regulation, specifically those in the area of “Facilitating Legal Compliance.”
Produced by the Tax Exempt Organizations Practice Group
February 2007, Vol. II
State and Federal Updates Impacting Charitable Organizations
This edition contains an article summary of the New York State Supreme Court’s recent order regarding Richard A. Grasso, the former head of the New York Stock Exchange; a new New York State bill, streamlining dissolution products for charitable organizations; and Federal Law updates impacting charitable organizations, including the Pension Protection Act of 2006 and the Treasury Department’s financing guidelines on terrorist activity.
Produced by the Tax Exempt Organizations Practice Group
November 2006, Vol. I
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Having an Impact Without Causing an Impact: Tax Exempt Organizations Going Green
This article suggests ways for tax exempt organizations to reduce their greenhouse gas emissions, or their “carbon footprint.” Aside from environment benefits, “green” initiatives reduce overhead and operational costs, increase employee morale, attract and retain the best talent, are a good source of PR, and may even attract funding opportunities.
Produced by the Environmental and Tax Exempt Organizations Practice Groups
June 2008, Vol. VI
The U.S. Environmental Protection Agency’s All Appropriate Inquiries Rule (“AAI-06”) came into effect on November 1, 2006. Compliance with AAI-06 is a pre-requisite to raising certain defenses, commonly known as the landowner liability protections (“LLPs”), under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). This article highlights new standards that landowners or prospective purchasers must meet in order to comply with AAI-06 and preserve one or more LLPs under CERCLA.
Produced by the Environmental Practice Group
November 2006, Vol. I
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Project Greenstorm™: Climate Change, Sustainability & Energy Independence
EPA Moving Closer to Greenhouse Gas Regulation
While key members of Congress begin voicing concern over President Obama’s plan to introduce comprehensive greenhouse gas cap and trade legislation during one of the deepest recessions ever experienced in this country, the U.S. Environmental Protection Agency (“EPA”) is working quietly behind the scenes on its own initiatives to regulate greenhouse gas emissions.
Produced by Project Greenstorm™
April 2009
Economic Meltdown and the Environment: Will Climate Change and Energy Independence Still Be Top Priorities for Obama?
When President-elect Barack Obama is sworn in as the 44th President of the United States on January 20, 2009, he will inherit, among other things, two wars, the deepest recession in more than 20 years, the worst financial crisis since the Great Depression and a waive of foreclosures and failing businesses. Understandably, these challenges alone could derail long-anticipated climate change and energy independence legislation. But will climate-change/energy independence in fact be put on the back burner?
Produced by Project Greenstorm™
November 2008
For Solar and Wind Alternatives, Christmas Comes Early
This edition highlights two add-ons to the Emergency Economic Stabilization Act of 2008 that have particular importance to the survival and advancement of alternative energy technologies: the solar investment tax credit (“ITC”) and the wind production tax credit (“PTC”).
Produced by Project Greenstorm™
October 2008, Vol. II
Georgia State Court Rejects Air Permit for Failing to Regulate CO2
This article summarizes the recent controversy over the regulation of carbon dioxide (CO2)—the primary greenhouse gas (GHG) linked to global warming.
Produced by Project Greenstorm™
August 2008, Vol. I