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October 2016 Archives

Deed of Trust Sham Guaranty

If a borrower for a loan secured by commercial real property applies for the loan in the person's own name, the lender is likely to insist that the property and the loan be in the name of a Single-Purpose-Entity (SPE). The lender does this in order to qualify for expedited relief from the automatic stay in bankruptcy, if the borrower tries to slow down or stop foreclosure by filing for bankruptcy. The lender also usually requires a guaranty by the parent company or owner of the SPE. If the money recovered in a foreclosure does not satisfy the loan, almost always the lender cannot recover the shortage from the borrower, but it can recover it from the guarantor. An important exception and defense for the guarantor is available where the lender required the borrower to be an SPE as a subterfuge to circumvent the anti-deficiency laws which protect the borrower against such a claim for the shortage. The law refers to such a lending structure as a sham guaranty.

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