An early August ruling in the General Growth Properties bankruptcy case has rattled lenders as some fear it might make it easier for real estate owners to bend bankruptcy rules at the expense of their financiers. The ruling, issued by Judge Allan Gropper of U.S. Bankruptcy Court allowed the Chicago-based REIT to include a number of properties held by special purpose entities (SPEs) in its filing, though the properties are not all in financial distress.
The ruling is noteworthy because SPEs are supposed to be “bankruptcy remote” vehicles designed to protect individual assets from the consequences of financial distress on a corporate level. As a result, the ruling surprised many in the commercial real estate industry. While lenders and bond holders will feel some pain, real estate lawyers are seeing the case as an anomaly, not a glimpse of things to come.
“You have to take a step back and realize that there are some unique features in this case you don't see in a lot of other cases, largely because [the whole company] has filed for bankruptcy protection,” says Adam Weissburg, partner in the finance group of Cox, Castle & Nicholson, LLP, a Los Angeles-based law firm.