1.  Scrivener's Errors in Lender's Certification Corrected (4/22/14)

 

2.  May HUD attorneys request litigation searches?  (7/1/14)

 

 

 

The entity executing this Lender’s Certificate (this “Certificate”) is __________, a __________ organized and existing under the laws of __________, (“Lender”) (also referred to as a mortgagee in Program Obligations) under that certain Borrower’s Security Instrument, ___________________ (also referred to as a mortgage in Program Obligations) dated __________, 20__, executed by Lender and __________, a __________ organized and existing under the laws of __________ (“Borrower”) (also referred to as a mortgagor in Program Obligations), securing the Note evidencing the Loan by Lender to Borrower in the principal sum of $__________ that Lender has agreed to make on condition that it be insured by HUD pursuant to the Contract of Insurance comprised of Section 232 of the National Housing Act, as amended, and its implementing regulations.
 
Correcting “exiting” to “existing” and remove the words “Lender and” because the Lender does not execute the Security Instrument.
 
Until the form has been corrected, please make these changes "manually."

2.  May HUD attorneys continue to request litigation searches?  It appears the form opinion allows borrower’s counsel to simply provide a listing instead of the actual docket search.  Also, please explain the impact of this update from HUD-ORCF's Lean 232 / Email Blast, February 27, 2014. 
 

Litigation/Docket Searches
To clarify and highlight, ORCF no longer collects litigation searches (except where required by the Attorney’s Opinion as an Exhibit).  Please note that the Attorney’s Opinion form requires the attorney signing it to opine that, to such attorney’s knowledge, based on the Docket Searches and the Attorney’s Opinion Certification, there is no litigation or other claim pending before any court or administrative or other governmental body against the Borrower or General Partner/Managing Member, Operator or the Project except as has been disclosed in Exhibit F to the Opinion.
 
When there is “newly” discovered litigation (“newly” meaning not previously disclosed to ORCF in the application process), ORCF will ask that the Lender immediately address the following:
1. Name and discussion of each newly discovered lawsuit, including estimated potential liability;
2. Whether each newly discovered lawsuit is of the type covered by insurance or whether the lawsuit is for a claim not covered by insurance; 
3. The amount of liability insurance available to cover each newly discovered lawsuit and other pending claims and judgments and the estimated potential liability for such other lawsuits/judgments; and
4. Identify who bears the cost of defense of each newly discovered lawsuit and whether the insurance company is participating in the defense.
 
As required by the attorney’s opinions, litigation searches must be run within 30 days of endorsement.  While HUD will endeavor to promptly evaluate litigation, disclosure of litigation promptly to HUD will minimize the risks of delays in closing.

HUD counsel should not collect either the UCC or docket searches.  Instead, we rely on the lender’s certification that our security instrument constitutes a first lien on the Project.  We rely on the borrower’s attorney’s opinion to list any litigation that turned up in the docket search. 
 
The instructions in the email blast relate to the situation where borrower’s counsel runs a docket search and discovers litigation that was not previously disclosed to ORCF.  The email blast has no impact on the instruction that HUD counsel not collect docket or UCC searches.