The fallout from a landmark court ruling on the Titan v Colliers negligent valuation case continues to have widespread ramifications in the commercial mortgage-backed securities (CMBS) market.
The issues raised by the case and subsequent appeal remain high on the agenda in the CMBS market as potential claimants weigh up their prospects of success in raising an action.
Following this week’s Commercial Real Estate Finance Council’s autumn conference in London, Georgina Squire, head of dispute resolution at solicitors Rosling King LLP (RK) said: “CMBS professional negligence claims are still one of one of the most talked about topics in the wake of the Titan v Colliers case.
“The Court of Appeal upheld the precedent set by the High Court on who has title to sue. Titan was the correct claimant with the right to pursue a claim against Colliers. It is now clear that claims can be brought in the name of an issuer or security trustee on behalf of the noteholders.
“As many of the loans did not default until only a few years ago, claims are still running as they fall well within the six-year time limit in tort. This is still an area to be investigated by special servicers if the circumstances of a particular loan do not appear to make sense – eg: the real estate has plummeted in value way beyond what is expected from market changes.
“Having traded a loan or book of loans, the new owner may find that the loans are not what they believed them to be and there can be claims as a result for breach of warranty or indemnity in the sale and purchase agreement. There are often relatively tight time limits and restrictions on such claims, which is why it is worth looking at issues quickly when they arise and not leaving them for a rainy day.
“If the secured real estate is not worth what the lender thinks it should be worth – perhaps it has deteriorated in condition or lost its tenants. Why is that? Is it that the managing agents have not done their job properly and let the property deteriorate? This could be the subject of a claim.”