Peter Janovsky Published in Real Estate Finance and Investment
Peter Janovsky is a regular guest columnist for Real Estate Finance and Investment, a publication of Institutional Investor. His most recent column, Promises, Promises: Contracts, Fraud and Third Parties appeared in the August 12, 2013 issue. The column discusses the circumstances under which a contracting party can sustain a fraud claim against the other party to the contract or third parties. Although Courts are likely to limit fraud claims against contracting parties, they appear to be increasingly open to upholding claims based on fraudulent inducement by a non-party to the contract, such as a principal or parent company of a contracting party.
His column in the July 1, 2013 issue of Real Estate Finance and Investment was The Enforceability of Automatic Stay Waivers in Bankruptcy Cases. The column discussed provisions in forbearance agreements executed prior to a bankruptcy case, typically in single asset commercial real estate cases. In these agreements, the borrower consents in advance to the lender obtaining relief from automatic stay in bankruptcy to foreclose on property. Courts have adopted various criteria to determine whether these agreements may be enforced, including the consideration for the stay waiver, its effect on other parties, whether a plan can be confirmed by a borrower and whether the borrower was a sophisticated party represented by counsel in agreeing to the waiver. Representing a real estate lender, Mr. Janovsky prevailed on the enforcement of such a stay waiver in a 2012 New Jersey bankruptcy case. In re Bank Building, LP, (Case No. 11-39636 (MBK), Bankr. D.N.J. 2012) (available on Pacer or upon request).