Descant reports that officials with the hotel industry say ADA lawsuits like those filed by Brooke in the Coachella Valley amount to "extortion" enabled by unscrupulous lawyers. "It's not an illegal racket. But it's a form of legal extortion, in the legal sense," said Jim Abrams, former president and CEO of the California Hotel & Lodging Association, who now serves as legal adviser for the California Association of Boutique and Breakfast Inns.
CMBS conduit lenders require that the franchise agreement be in the name of the borrower (logical, if you need to enforce the terms in the comfort letter and you have to have the correct legal parties executing agreements). But recall our borrower executed the franchise originally in his own name, and he never thought to update it when the hotel entity was formed.
We recently closed a $5-million hotel loan secured by a Hampton Inn in Florida. During property diligence, we noticed a $25,000 legal fee under the “professional expense” category on the profit and loss statement. Since we figured it was a one-time expense, we wanted to back it out of the underwriting. We needed to confirm what the expense was incurred for to be able to do the adjustment. "Mike, we were sued by a guest who said our ADA grab bars in the shower were too high. I could not believe it," said the sponsor. "We called our attorney and he immediately knew what was happening. He said the lowest cost option was to settle." Hmmm. Then recently, we were working on a loan on another Hampton Inn in California. The purchase transaction was muddling along when the owner received a lawsuit for purported ADA violations regarding the substandard size of the ADA designation parking spaces. Wow. Based on these two events, I was riveted by the recent article written by Pratik (Prat) Patel, chairman of AAHOA, called "ADA Litigation: Roadblock to Access." Prat reports a rash of ADA lawsuits against hotels in California. Prat reports that 13 hotels have been sued by the same two people for alleged ADA violations, such as inappropriate ADA parking, non-accessible entrances and non-complaint bathrooms. To combat this business model for some unscrupulous law firms, AAHOA is supporting H.R. 777 sponsored by Rep. Duncan Hunter (R., CA) that would restore the proper balance between ADA litigation and increased accessibility. In the meantime, hoteliers need to be aware that predatory ADA lawsuits are spreading.
According to Descant, the lawsuits were filed by Theresa Brooke, a disabled Arizona woman. Each lawsuit -- filed in April and May -- makes the same claim: The hotel lacks the proper pool lift. Each lawsuit requests that the hotel takes the same set of corrective measures: install a pool lift and pay $8,500 in damages plus legal fees to Brooke. According to these lawsuits, like most others of this kind, Brooke called the hotel to ask if a pool lift was available for each pool and Jacuzzi spa. If the hotel official said one was not available, a representative for Brooke was dispatched to the hotel to verify the absence of the lift.
The SEC notice comes at a difficult time for the firm that was once a dominant participant in the CMBS ratings market. On Friday, July 17, the firm cut its CMBS staff 33%, reflecting its reduced presence in rating recent CMBS transactions. The firm is also defending itself against a $5-billion lawsuit related to pre-crash residential MBS deals that soured. These legal matters could likely cause CMBS issuers to continue to bypass S&P on deals, particularly with other ratings options from Morningstar and DBRS that entered the market after 2010 providing more rating options for issuers.
Granted, the document is written in legalese and can be a little difficult to interpret. However, the document begins with roughly 30 pages of definitions, written such that the concepts are reasonably understandable. Within the definitions are loan basics such as the interest rate, maturity, monthly payment and amortization. But many complex items can also be found in the definitions -- the definition of yield maintenance, restoration threshold for a casualty, definition of permitted transfers and definitions for pretty much every other item that might come up during the term of the loan, for example.