Judge Approves Liquidation Plan For Olga Urbana

15 December 2015 – Valencia Plaza

Commercial court number 1 in Alicante has approved the liquidation plan for the developer of the In Tempo building in Benidorm, the tallest residential skyscraper in Europe, construction of which began in 2006. Olga Urbana is the construction company behind this unfinished building, which has now been put up for sale. The company has filed for bankruptcy and Antonia Magdaleno has been appointed as the bankruptcy administrator.

The company that constructed the building filed for bankruptcy after its main creditor, Sareb, which inherited the loan originally granted by Caixa Galicia amounting to just over €100 million, requested legal intervention in the company. According to the court order, Sareb proposes that the direct sales phase last for at least five months.

In addition, if during the first three months of this phase, an offer is received to directly purchase the building for a price equivalent to at least 70% of its appraisal value, then Sareb asks that it be awarded to the bidder without waiting for the five month period to end. Nevertheless, the sale must involve the property in its entirety; offers will not be accepted for individual homes.

Original story: Valencia Plaza (by Estefanía Pastor)

Translation: Carmel Drake

Blackstone To Offer Debt Forgiveness On Spanish Mortgages

1 July 2015 – Bloomberg

Blackstone Group LP is seeking to restructure some of the €6.4 billion Spanish home loans it bought at a discount to help borrowers meet repayments, according to three people with knowledge of the matter.

The world’s largest private equity firm is offering to cut outstanding debt or allow homeowners to hand back the keys and walk away from loans, said two of the people, who asked not to be identified because the matter is private. Blackstone holds the mortgages of 40,000 homeowners in Spain after buying the debt for €3.6 billion from struggling savings bank CatalunyaCaixa.

Blackstone can avoid the time and expense of repossessing homes by helping borrowers find ways to continue paying their mortgages, something that is more difficult for Spanish banks because of provisioning requirements and central bank regulations. Avoiding evictions may also mute political claims that private investors are coming to Spain to take people’s homes away.

“If you are struggling to pay your mortgage, you are undoubtedly better off having Blackstone as your creditor than a traditional Spanish bank,” said Juan Villen, Head of Mortgage Services at property website Idealista.com. “Blackstone can be much more flexible.”

Andrew Dowler, a London-based spokesman for Blackstone, declined to comment when called by Bloomberg News.

Loan Portfolio

The subject of Spaniards losing their homes is a hot-button political issue, with power in the Madrid and Barcelona town halls swinging to parties that pledged to ban evictions during municipal elections in May. The Platform Against Evictions activist group organized demonstrations outside Blackstone’s offices in New York, London, Madrid and Barcelona in March, and posted a video on its website accusing the firm of intending to evict “en masse.”

Anticipa, Blackstone’s mortgage servicing unit, took over the management of the loan portfolio two months ago, with about 75 percent of the debt classified as under-performing or non-performing, according to the people. It will take about seven years to restructure the debt, they said.

Spanish home prices have fallen by more than 42% since the peak in 2007, according to Tinsa, Spain’s largest homes appraiser. That has left about a fifth of borrowers in negative equity, according to Villen. Lenders in the country foreclosed on more than 70,000 properties in 2014, with Andalusia, Catalunya and Valencia hit the hardest, according to the National Statistics Institute, which began compiling data at that start of that year.

Post Keys

Blackstone’s plan to allow homeowners to post the keys and walk away from their debts, a legal process known as “dation in payment”, is seen as a significant step by analysts.

“Unlike in the U.S. and other European countries, Spanish law stipulates a bank can foreclose on a home and still pursue the borrower for the rest of his life if the value of the loan is higher than the price that the bank forecloses at,” Villen said. “The offer of “dation in payment” is a refreshing way of approaching borrowers that are in negative equity.”

The private equity company will only foreclose on “strategic defaulters” who can pay but refuse to, while homeowners at risk of social exclusion, which represent about 3% of Blackstone’s portfolio, will be allowed to remain in their property paying subsidized rents, the people said.

Original story: Bloomberg (by Sharon R. Smyth)

Edited by: Carmel Drake

Amendment To Insolvency Law Creates “Bonkers Rule”

24 April 2015 – Expansión

The latest amendment to the Spanish Insolvency Act (Royal Decree-Law 11/2014, dated 5 September) has totally changed the rules of the game for investors in distressed debt.

Although it has gone relatively unnoticed amongst other novelties that have grabbed the attention of scholars (such the new cram-down majorities or the special provisions in the transmission of business units), the new rule to calculate the value of securities over the assets of insolvent companies is of great importance for the debt business.

Pursuant to this new rule, securities (basically mortgages and pledges) will no longer cover the initially agreed amounts in insolvency proceedings in those cases in which the receiver’s report had not been issued when the reform entered into force. The “privileged credit” is now capped at the (current) fair value of the collaterals, reduced by 10% to cover foreclosure expenses, minus the amount of any higher-ranking debt.

The new rule, without clear precedents in the main jurisdictions of our legal environment, has been received in some cases with suspicion and in others with shock by top foreign firms with ambitious investment projects in distressed debt. Especially by private equity funds and investment banks having set their sights on portfolios of secured debt owned by financial entities that need to “clean up” their balance sheets and reduce their exposure to the real estate sector (eg. Sareb); transactions that generally have a strong insolvency component. It is also a disincentive for the players of the incipient “direct lending” industry, the most genuine expression of the “shadow banking” phenomenon. These players are thus pushed to request additional guarantees or higher interest rates for refinancing (in a sector with a high cost of capital per se). With financial models ready and binding offers filed, such last-minute surprises are not welcome by potential new lenders. Certain City executives have baptized the amendment as the “bonkers rule” (“regla de locos”), and expressed their wishes for the Government to stop moving the goalposts during the game. As Ignacio Tirado ironized in Expansión (“Trotski y la reforma concursal”, 13 November 2014), it looks like there is a Trotskyist hiding among the Government’s ranks, because of the “permanent revolution” theory being applied to the Insolvency Act.

Leaving the pure economics and irony aside, it is shocking from a legal standpoint that a cornerstone of real estate law such as mortgage liability (with Registry publicity versus third parties) loses all effectiveness upon the filing for insolvency. We are aware that Insolvency Law is a law of exception, which requires a balancing of interests, but we do not believe that choking half a dozen basic tenets of mortgage law for the sake of the utopian “par conditio creditorum” principle (“all creditors should be treated equal”) contributes to enhance payment to creditors, or the continuity of the debtors’ business. On the contrary, it impairs the legitimate expectations of creditors to protect their claims, it contravenes the basic rules of legal certainty (Article 9.3 of the Spanish Constitution) and creates instability by giving rise to interpretative and transitory right issues.

The constant amendments to the Insolvency Law (two on average per year from its entry into force on 1 September 2004), including material changes such as the one we have analyzed, give an image of a fluctuating legal system, always a step behind economic reality, driven by the unchanged and stubborn percentage of companies that end in liquidation. No one has thought that the key could be to facilitate their recapitalization; not to put spokes in the wheels of investors.

Royal Decree-Law 11/2014, together with the so-called “second opportunity law”; RDL 1/2015, are being processed as new draft bills (“proyectos de ley”), so they are subject to new amendments. Maybe it would be a good idea to listen to the market and that legal certainty prevails over a questionable “insolvency justice”. Especially when two core objectives for economic recovery are at stake: attracting foreign capital and cleaning up banks’ balance sheets.

Original story: Expansión (by Antonio García García)

Translation: Dentons