1. Uniform Commercial Real Estate Receivership Act
Thomas S. Hemmendinger
Brennan, Recupero, Cascione, Scungio & McAllister, LLP
Prepared for the Rhode Island Bar Association
September 26, 2016
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2. Uniform Law Commission
Project approval 2011
Study process
Drafting process
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3. Our Goals Guidance to courts and litigants
Preserve the flexibility of the remedy
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4. Our Objectives—Clarity
Grounds for appointment
Receiver’s powers
Sale of real estate
Third party rights
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5. Notice and Opportunity for Hearing—Section 3
Common sense
Constitutional
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6. Scope of the Act—Section 4
Commercial property
Not consumer property
Commercial carve-outs to exception
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7. Grounds for Appointment—Section 6
Waste, loss, dissipation, or impairment
Voidable transaction
Post-judgment
Equity catch-all
Mortgage foreclosure
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8. Receiver’s Qualifications—Section 7
Independence
Court has final say
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9. Lien Creditor Status—Section 9
UCC Article 9 for personal property
Other law for real property
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10. After-acquired Property-Section 10
Rents
Revenue
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11. Collection and Turnover of Property—Section 11
Owner must assist, turn over, preserve, and identify
Receivership property
Debts owed
Possessory liens
Noncompliance
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12. Powers and Duties of Receiver—Section 12
General powers and duties
Powers the court may grant
Duties the court may impose
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13. Stay; Injunction—Section 14
Stay to protect receivership property and facilitate administration of case
Injunction as needed
Limitations
Plaintiff’s foreclosure
Perfection of liens
Governmental matters
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14. Sales Outside the Ordinary Course of Business—Section 16
Free and clear of liens
Senior liens
Flexible process
Liens attach to proceeds
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15. Sales Outside the Ordinary Course of Business—Section 16
Court must approve on notice
Marketable, insurable title
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16. Sales Outside the Ordinary Course of Business—Section 16
Safe-Harbor
Applies to appeals
Applies to other requests for relief
Preserves a good faith buyer’s title
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17. Borrowing—Section 12 Ordinary course of business
Outside the ordinary course
Collateral security
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18. Executory Contracts—Section 17
Codifies the common law
Tenant in receivership
Landlord in receivership
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19. Immunities and Personal Liability—Section 18
Defers to other law
The Barton doctrine
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20. Notice to Creditors and the Claims Process—Section 20
Meaningful and productive notice
Claims process
Distribution to creditors
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21. Ancillary Receivership—Section 24
Facilitates inter-state projects
Main court and ancillary court
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22. Administrative Fees and Expenses—Section 21
Reasonable and necessary fees
Special cases
Petitioner
Waster of assets
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23. All questions answered . . .
All knowledge shared
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24. Thank you for your time and interest. For more info:
Thomas S. Hemmendinger
Brennan, Recupero, Cascione, Scungio & McAllister, LLP
362 Broadway
Providence, RI 02909
Tel. (401)
Fax (401)
Benjamin Orzeske
Chief Counsel
Uniform Law Commission
111 N. Wabash Avenue, Suite 1010
Chicago, IL 60602
Tel. (312) 450‐6621
Fax (312)
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25. Thomas S. Hemmendinger
THOMAS S. HEMMENDINGER is of counsel to Brennan, Recupero, Cascione, Scungio & McAllister, LLP, with offices in RI and MA. He counsels financial institutions, logistics companies, and other businesses on commercial transactions, commercial litigation, bankruptcy, and receivership. He is the author of HILLMAN ON COMMERCIAL LOAN DOCUMENTATION (Practicing Law Institute, New York). Tom is a member of the Uniform Law Commission and, most recently, served as the chairperson of the ULC drafting committee for the Uniform Commercial Real Estate Receivership Act (2015). He is a Fellow of the American College of Commercial Finance Lawyers and a member of the American Bankruptcy Institute, the American Bar Association, and the Association of Commercial Finance Attorneys. He received his A.B. from Brown University and his J.D. from the University of North Carolina School of Law. He is admitted to practice in Massachusetts and Rhode Island.
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