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Scott R. Lesser

Principal

Offices

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Education

University of Michigan Law School, J.D., 2008

Princeton University, A.B., 2005

Bar Admissions

As co-leader of Miller Canfield's highly experienced Commercial Real Estate Workout Team, Scott uses his knowledge and expertise to avoid and resolve his clients' concerns before they develop into true issues. Although this often means employing creative strategies to amicably resolve disputes in a way that serves his clients' underlying business purpose, Scott does not shy away from receivership, foreclosure, guaranty or other litigation actions when appropriate.

Scott prides himself on guiding his clients and fellow practitioners alike to practical solutions to distressed real estate and finance situations. In pursuing this end, he co-authors the Michigan Chapter on Receiverships for Strategies For and Against Distressed Businesses, co-authors the "Foreclosure of Mortgages and Land Contracts: Receiverships" chapter in the LexisNexis Practice Guide to Michigan Real Estate Litigation, and is a frequent speaker on distressed asset topics.

In addition to representing special servicers, financial institutions, private investors and other creditors, Scott also leverages his real estate litigation experience to help title insurance companies, receivers, property owners, real estate investors involved in ownership disputes, real estate developers and others work through difficult circumstances. This extends to his involvement with professional organizations, such as the Real Property Law Section for the State Bar of Michigan, for whom he co-authored an amicus brief in Kim v. JP Morgan Chase, et. al.

Representative Matters

  • Represented CMBS special servicers in a pair of guaranty suits establishing full recourse liability on carve-out guarantees arising out of the breach of the single-purpose entity covenants, namely for the borrower's failure to remain solvent.
  • Represented a CMBS special servicer in month-and-a-half trial in a $34 million carve-out guaranty and fraud case.
  • Represented a national lender in restructuring a $18 million loan relationship involving a 10-property industrial portfolio.
  • Represented a CMBS special servicer in a multi-stage workout of a an aggregate $35 million cross-defaulted portfolio of six properties, involving multiple loan restructurings and a deed-in-lieu-in-escrow transaction.
  • Represented investors in $50 million in self-storage facility portfolios in a complicated reorganization, refinancing and buy-out of 1031 exchange investors.
  • Represented a CMBS special servicer in a $45 million single-tenant office receivership sale.
  • Represented a regional bank in the workout of a $28 million multistate loan portfolio acquired from the FDIC.
  • Represented a national lender in a $38 million multi-state business and real estate loan workout.
  • Represented a CMBS special servicer in a $25 million regional mall workout, where the receiver first shut down, then sold one of the oldest malls in the country.

Areas of Expertise

For over 10 years, Scott's practice has focused on representing lenders in working through distressed assets. In doing so, he has represented special servicers, financial institutions and other lenders in workout negotiations and enforcement activities.

His practice actively covers all property types, both core (office, retail, industrial, and multi-family) and non-core (construction loans, health care, hospitality, restaurants, gas stations, mobile home parks, self-storage facilities, etc.). Outstanding principal balances range from as little as $200,000 to as much as $150,000,000, but most frequently lie between $2,500,000 and $25,000,000. Properties are most commonly located in the Upper Midwest (Michigan, Ohio, Indiana, Illinois, and Wisconsin); but Scott has helped develop strategies involving assets in Florida, North Carolina, New Jersey, Kansas, Minnesota, Iowa, Colorado, California, Texas and more.

Scott handles all phases of the workout process, whether resolved consensually or through contested proceedings. His experience includes:

  • Forbearance Agreements
  • Deed-in Lieu Transactions
  • Deed-in-Escrow Agreements
  • Loan Sales
  • Loan Assumptions
  • Receiverships
  • Receivership Sales (both consensual and contested)
  • Mortgage Foreclosures (judicial and non-judicial in Michigan; judicial in Ohio, Indiana, Illinois, and Wisconsin)
  • Suits against Guarantors (both recourse and non-recourse carve-out violations)
  • Fraudulent Transfer
  • Fraud Investigations and Litigation
  • Lender Liability Claims and Litigation
  • Bankruptcy
  • Real Estate Owned (REO) Sales

Reported and Published Decisions

U.S. Bank National Association, as Trustee v. Springfield Prairie Properties, LLC, 2019 WL 977867 (C.D. Ill. Feb. 28, 2019) (guarantor liable for full debt on carveout for transfer of mortgaged property)

Wells Fargo Bank, NA v Cherryland Mall Limited Partnership, 295 Mich App 99 (2011), remanded at 493 Mich 859 (2012), rev'd upon remand at 300 Mich App 361 (2013) (guarantor carve-out liability; constitutionality of retroactive application of Michigan Nonrecourse Loan Act)

Kim v JPMorgan Chase Bank, NA, 493 Mich 98; 825 NW2d 329 (2012) (defects in mortgage foreclosure renders sale voidable, not void; amicus brief filed on behalf of Real Property Law Section, State Bar of Michigan)

7800 W Outer Drive Holdings, LLC v College Park Partners, LLC, 2012 WL 2402010 (Mich App 2012) (foreclosing lender entitled to predefault rents and real estate tax refunds)

51382 Gratiot Avenue Holdings, LLC v Chesterfield Development Co., 835 F.Supp.2d 384, 2011 WL 6153023 (E.D. Mich. 2011), reconsideration denied 2012 WL 205843 (summary judgment for lender on carve-out guaranty for insolvency)

Livonia Properties Holdings, LLC v 12840-12976 Farmington Road Holdings, LLC, 717 F.Supp.2d 724 (E.D. Mich. 20120), aff'd 399 Fed. Appx. 97, 2010 WL 4275305 (6th Cir. 2010), cert. den. 131 S.Ct. 1696 (2011) (borrower's request for preliminary injunction to enjoin foreclosure sale denied because “record chain of title” means documents recorded in register's office and borrower lacks standing to contest interim assignments of mortgages in blank)

Honors

Michigan Super Lawyers, Rising Star, 2015-present

University of Michigan Law School, cum laude

Professional Activities

State Bar of Michigan, Real Property Law Section, Continuing Legal Education Committee, 2018-present

American Bar Association

CRE Finance Council

Speeches

"Privilege and Discovery in Commercial Workouts," KeyBank National Association, March 12, 2019, Cleveland

"Mall Workouts: A Case Study," Torchlight Investors, December 13, 2018, New York City

"Legal Lightning Round," Trigild Spring Lenders Conference, October 18, 2018, San Diego

"Waste Claims in Commercial Real Estate Foreclosure," Rialto Capital Advisors, May 9, 2018, Miami

"Mall Workouts: A Case Study," C-III Asset Management, March 15, 2018, Dallas

Case Study – Single-Tenant Office Workout, Torchlight Investors, November 10, 2017, New York City

"Deeds in Lieu of Foreclosure and Subordination, Nondisturbance and Attornment Agreements," C-III Asset Management, March 9, 2017

Publications

Strategic Alternatives For and Against Distressed Businesses (Chapter 53, Michigan Receiverships), Thomson West, 2014-2019

LexisNexis Practice Guide: Michigan Real Estate Litigation, co-authored "Foreclosure of Mortgages and Land Contracts; Receiverships," 2018-2019

"Receiver Sale of Real Property Free and Clear of Liens," Michigan Real Property Review (Winter 2016-Spring 2017)

Articles