Articles Posted in Real Estate

In the world of asset protection planning there are times when it is advantageous to hold a personal residence in a limited liability company. Generally, such a situation would be applicable where there is a client who wishes to protect a valuable asset from future unknown creditors, the conveyance to the LLC is not a fraudulent transfer, the desire to obtain creditor protection trumps the loss of any property tax benefit otherwise available to a principal residence, and the client accepts certain complexities that go along with the transaction. For example, the client will need to enter into a lease with the LLC upon arms length terms in order to avoid the LLC being deemed the alter ego of the client which would likely nullify any creditor protection benefits.
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Today, with the proliferation of books, articles and seminars focused on asset protection planning, there is scarcely a lawyer about who does not know that limited liability companies have some built in asset protection planning features. Even to the uninitiated, there is a vague understanding of creditors not being able to seize a member’s interest and some awareness of the charging order remedy.
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Those of us who practice in the asset protection planning and tax arenas are already familiar with the Craft case where the Supreme Court determined that a delinquent taxpayer’s entireties interest constitutes an interest in property to which the Federal tax lien applied irrespective of Michigan law to the contrary. This decision led to the forced sale of the property even though one of the tenants by the entireties had no tax liability. Notwithstanding Craft, there remained some limited comfort that a District Court may exercise reasoned discretion to deny an IRS motion to sell entireties property in order to protect the interests of innocent third parties.
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An extraordinary decision by the Michigan Court of Appeals should place asset protection planning at the forefront on the minds of all individuals who have outstanding nonrecourse guarantees of commercial loans. As a result of the decision handed down by the Court in the case of Wells Fargo Bank v. Cherryland Mall Limited Partnership, David Schostak and Schostak Brothers & Co. (December 27, 2011), real estate investors/developers employing nonrecourse commercial mortgage-backed securities (“CMBS”) loans now find themselves personally liable for any deficiency if the loan defaults. You are undoubtedly wondering: if these are nonrecourse loans how can the loan guarantors become liable for the unpaid debt?
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It is not much of a stretch to understand why a Michigan asset protection lawyer would be contacted by a prospective client about a possible short sale. The concern of the homeowner, of course, is whether the lender will agree to accept the proceeds from the short sale in full satisfaction of the debt. The opportunity to have a debt discharged for less than its balance is a goal typical of the asset protection planner and thus a short sale can be an excellent strategy to reduce debt for which an individual has personal liability. However there are significant issues that need to be considered.
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