Forensic, General & Medical
Expert Witnesses

Commercial Mortgage, Commercial Real Estate, CMBS Servicing and Expert Witness

Roy H. Owen

Roy H. Owen

27 Anson Street
Charleston, South Carolina 29401

Phone(917) 579-1153

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Expert WitnessForensic ExpertSpeaker
Roy H. Owen has a professional career in asset management, management consulting, and structured finance, including: commercial real estate portfolio management (both debt and equity); non-performing commercial mortgage loan and franchise finance debt resolution; commercial mortgage and CMBS servicing and special servicing; corporate restructuring and bankruptcy services (for both debtors and creditors); financial institution restructuring and recapitalization; and litigation management, litigation consulting, and expert witness testimony. He is a retired partner in Deloitte Consulting.

Services

Roy H. Owen provides the following services:

• Corporate restructuring, and bankruptcy services (for both debtors and creditors)
• Financial institution restructuring and recapitalization
• Commercial real estate portfolio management (both equity and debt)
• Non-performing commercial mortgage loan and C&I loan resolution and REO asset management
• Commercial mortgage/CMBS servicing and special servicing
• Credit and market risk monitoring
• Commercial mortgage underwriting and securitization
• Acquisition and disposition of portfolios of performing and non-performing commercial mortgage loans
• Litigation, including litigation consulting, expert witness testimony, and as 30(b)(6) corporate representative
• Public/private joint ventures


Litigation Support Services

Primary Issues and Areas of Expertise - Commercial and multifamily residential mortgage loan origination, underwriting, servicing, and securitization; breaches of representations and warranties in the sale of mortgage loans to commercial mortgage-backed securities (CMBS) trusts; franchise lending; breach of contract; standard of care (breach of fiduciary duty); customary real estate and financial services industry practices and procedures; good faith and fair dealing between lenders and borrowers; intercreditor agreements; exercise of fair value options; A/B note structures; lender liability; reporting; valuation; discounting of equities in closely-held companies; loan defaults; collection and foreclosure; resolution of defaulted loans; REO management; bankruptcy; damages; material and adverse effect; insurance claims resolution; borrower/guarantor recourse; CMBS non-recourse carve-outs; post-closing insolvency; commercial real estate markets and trends; qualified rehabilitation of historic properties; preservation and conservation easements; covenants, conditions, and restrictions (CCRs); 1-4 family residential development; residential and commercial condominium regimes; property owners’ associations; architectural review boards; and real estate regulatory and public policy matters, including land use, zoning, entitlements, eminent domain, and tax-increment financing.

Areas of Expertise

Additional Expertise:

CMBS Litigation, Borrower Counterclaims, Loan Servicing

Profile

Professional career in consulting, advisory, and management spanning over thirty years, including:
• Corporate restructuring, and bankruptcy services (for both debtors and creditors)
• Financial institution restructuring and recapitalization
• Commercial real estate portfolio management (both equity and debt)
• Non-performing commercial mortgage loan and C&I loan resolution and REO asset management
• Commercial mortgage/CMBS servicing and special servicing
• Credit and market risk monitoring
• Commercial mortgage underwriting and securitization
• Acquisition and disposition of portfolios of performing and non-performing commercial mortgage loans
• Litigation, including litigation consulting, expert witness testimony, and as 30(b)(6) corporate representative
• Public/private joint ventures

Retired partner in Deloitte & Touche’s Valuation and Real Estate Consulting Group, Deloitte Consulting’s Financial Services Industry practice, and Deloitte’s Reorganization Services Group.

Independent advisory, formerly serving as Managing Director at Waterstone Asset Management, a rated special servicer, responsible for CMBS special servicing, whole loan NPL asset management, and management of defaulted securitized specialty/franchise finance pools. Former Managing Director of the commercial mortgage asset management and distressed debt operations of Crown NorthCorp, Inc., a rated CMBS special servicer. Former senior advisor to Marshall & Stevens, a full-line valuation firm. Currently concentrating in litigation consulting and expert witness testimony.

Independent advisor, manager, and consultant over three decades to a range of institutional clients and agencies.

MBA from Stanford University’s Graduate School of Business and B.S. in Aerospace Engineering from the Georgia Institute of Technology.

Consulting Practice

All States, Asia, Europe.

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Professional Experience

Roy Owen has had an extensive professional career in management consulting, asset management, portfolio management, and structured finance, as well as non-profit management and public policy work. Private sector activities have included: commercial real estate portfolio management (both debt and equity); non-performing commercial mortgage loan and franchise finance debt resolution; commercial mortgage and CMBS servicing and special servicing; corporate restructuring and bankruptcy services (for both debtors and creditors); financial institution restructuring and recapitalization; insurance claims resolution; and litigation management, litigation consulting, and expert witness testimony.

Non-profit and public sector work has included foundation management and comprehensive urban and regional development initiatives, on both a compensated and pro-bono basis. Mr. Owen is a retired partner in Deloitte & Touche and Deloitte Consulting in the firm’s real estate capital markets, reorganization services, and financial services industry practices, with postings in both the U.S. and Asia.


Licenses

Real Estate Broker (South Carolina - Inactive Registration)


Legal Experience & Services

Cases

Remanded 2012 Loan Repurchase Demand Case –
Retained in 2016 when 2012 loan purchase demand case (described below) was remanded to the trial court by the Second Circuit Court of Appeals. Case settled prior to 2017 trial date. Bank of New York Mellon Trust Co., N.A. v. MSMCI, Case No.11 Civ. 0505-CM-GWG (S.D.N.Y.).

Dispute Regarding Purchase Price in B-Note Holder’s Exercise of Option to Purchase Defaulted A-Note
Retained in 2016 by special servicer in dispute regarding inclusion of special servicing compensation in calculation of defaulted mortgage loan purchase price in purchase of defaulted A-note under the terms of intercreditor agreement. Prepared declaration. Participated in arbitration hearing. Arbitration between LNR Partners, LLC, and Arbor Realty SR, Inc. Case No. 01-16-000-3976.
Borrower Defenses and Counterclaims in California Foreclosure of Senior Note and Related Junior Note
Retained in 2016 on behalf of defaulted borrower on securitized senior note and related junior note held outside the securitization trust, both secured by a California multifamily property. Among other matters, opined on the noteholders’ dealings with the borrower and the nature of relationships and potential conflicts of interests between and among the mortgage loan seller, the special servicer on the senior note, the controlling class representative for the securitization trust, the owner of the junior note, and the asset manager for the junior note. Prepared a declaration, and was deposed. Case has been continued and is awaiting trial. Wells Fargo Bank, N.A., as trustee for the Registered Holders of the LSTAR Commercial Mortgage Trust 2011-1, Commercial Mortgage Pass-Through Certificates, Series 2011-1, Plaintiff, v. Vinod K. Kaura, et al., Defendants. (Superior Court of the State of California, County of Kern, Case No. S-1500-CV-276872-LHB, consolidated with Case No. S-1500-CV-277837-LHB.)

Borrower Counterclaims in California Non-Judicial Foreclosure
Retained in 2014 on behalf of defendant CMBS trust in response to borrower assertions of improper foreclosure, alleging, among other matters, that the trust’s inclusion of a prepayment fee in the notice of sale was unlawful. Scope of testimony to include the rationale for inclusion of a yield maintenance provision in the loan documents at issue, the reasonableness of the yield maintenance provision at the time the loan documents were signed, and the obligations imposed on the trust to maximize recovery for certificateholders. Client prevailed on motion for summary judgment. Figueroa Tower I, II, and III, California Limited Partnerships v. U.S. Bank, N.A., as trustee, by and through special servicer C-III Asset Management LLC for the registered holders of CD 2006-CD3 Commercial Mortgage Pass-Through Certificates, et al. Case No.: BC506014 (Superior Court of the State of California for the County of Los Angeles).

Opinion Regarding Appropriate Date for Determination of Breaches of Representations and Warranties with Material and Adverse Effect in the Sale of a Loan to a CMBS Trust
Retained in 2013 on behalf of a mortgage loan seller as defendant in an action brought by a Special Servicer on behalf of a CMBS trust, alleging breaches of representations and warranties in the mortgage loan purchase agreement governing the sale of the subject loan to the trust. The plaintiff alleged that the breaches arose and the material and adverse effect on the trust could only be determined at a point in time several years after the securitization closing date, with corresponding implications on the statute of limitations under New York law. Expert report submitted. Deposition taken. Court ruled granting plaintiff’s motion for summary judgment. Ruling appealed, and appeals court ruled in favor of defendant. U.S. Bank, N.A., as Trustee, v. Dexia Real Estate Capital Markets (U.S. District Court, S.D.N.Y.; Case 1:12-cv-09412-SAS)

Assertion of Full Recourse under CMBS Non-Recourse Carve-Out for Alleged Post-Closing Insolvency
Retained in 2013 on behalf of borrower defendant in a complaint for damages, foreclosure, and other relief brought by a special servicer on behalf of a CMBS trust, asserting, among other matters, that the borrower breached one of the “bad boy” carve-outs by virtue of the alleged failure to maintain borrower solvency and, therefore, special-purpose entity status post-closing. Prepared and exchanged expert report. Case settled immediately - prior to public disclosure of experts. Retention remains confidential.

Borrower Counterclaims in Florida Foreclosure
Retained as a CMBS servicing expert in 2013 by plaintiff CMBS trust by and through its Special Servicer in response to a defaulted borrower’s affirmative defenses and counterclaims in a foreclosure action brought by the trust. Borrower claimed that Special Servicer dealt in bad faith in its negotiations with borrower over borrower’s proposed discounted payoff of the defaulted mortgage loan, and that the Special Servicer and the trust reneged after allegedly reaching a binding agreement with the borrower. Prepared an expert report rebutting reports put forward by two experts retained by the borrower. Testified in court in the ensuing bench trial. Court ruled in favor of the plaintiff trust. U.S. Bank, National Association, as trustee for the registered certificate holders of Bank of America, National Association – First Union National Bank Commercial Mortgage Pass-Through Certificates, Series 2001-3, acting by and through C-III Asset Management LLC, as Special Servicer. Case No.: 01-12-CA-001252 DIV MG (Circuit Court of the Eighth Judicial District in and for Alachua County, Florida).

Breach of Fiduciary Duty –
Retained in 2013 as an expert on customary commercial real estate asset management industry practices, reporting, client communications, and standard of care in a case brought by an investor against an asset manager alleging breach of fiduciary duty, breach of contract, and conversion of funds in the management of multiple institutional grade properties owned by various limited liability corporations and limited partnerships. Case settled without disclosure of experts.


Loan Repurchase Demands -
Retained in 2013 as a consulting expert on behalf of a Special Servicer and CMBS trust to investigate breaches of representations and warranties on multiple loans in the trust and to pursue repurchase demands against the mortgage loan seller, as warranted. Notice of breaches of representations and warranties and demand for repurchase delivered to seller, and complaint filed. Court granted defendant’s motion for summary judgment. Wells Fargo Bank, N.A v. Sovereign Bank, N.A., Case No. 13-CV-4313 (S.D.N.Y.).

Loan Repurchase Demand -
Retained in 2012 as a consulting expert on behalf of a special servicer and CMBS trust regarding breaches of representations and warranties on a single loan in the trust and to pursue repurchase demands against the mortgage loan seller. Notice of breaches of representations and warranties and demand for repurchase delivered to seller, and complaint filed. Court granted defendant’s motion for summary judgment. Wells Fargo Bank, N.A v. Sovereign Bank, N.A., Case No. 13-CV-1222 (S.D.N.Y.).

Loan Repurchase Demand –
Retained in 2012 as a commercial mortgage servicing expert and rebuttal witness on behalf of plaintiff, a rated CMBS Special Servicer in a demand for repurchase of a large commercial mortgage loan sold by a New York investment bank to a CMBS trust. The plaintiff alleged breaches of representations and warranties with material and adverse effect in the sale of the loan to the trust. The defendant responded with multiple defenses, including assertions that the trustee, master servicer, and special servicer inadequately managed the loan in accordance with customary industry standards and the Servicing Standard. Expert rebuttal report submitted. Deposition testimony submitted. Court granted defendant’s motion for summary judgment. Plaintiff appealed. Bank of New York Mellon Trust Co., N.A. v. MSMCI, Case No.11 Civ. 0505 (S.D.N.Y.).

Non-recourse Carve-outs -
Retained in 2012 by commercial mortgage borrower principals to advise on demands asserted by CMBS trust against guarantors under standard CMBS non-recourse loan documents for loans not in default and for which no apparent “bad boy” carve-out events had occurred.

SOVC 2007-C1 Repurchase Demand -
Retained in 2012 as a consulting expert by a rated CMBS Special Servicer on the servicer’s demand for repurchase of a commercial mortgage loan sold by a New York commercial bank to a CMBS trust. The servicer alleged breaches of representations and warranties with material and adverse effect in the sale of the loan to the trust. Pre-litigation settlement discussions resulted in repurchase by the mortgage loan seller at full defined Purchase Price.

EMAC and FMAC Securitization Trust Insurance Claims
As servicer on behalf of multiple franchise finance securitization trusts which had initiated arbitration against AIG and subsidiaries arising from a large number of unpaid environmental insurance claims, negotiated in 2011-12 an ultimately favorable settlement of those claims following litigation filed by AIG subsequent to the arbitration panel decision. Commerce and Industry Insurance Company v. U.S. Bank National Association, as Indenture Trustee for the Registered Holders of FMAC Loan Receivables Trusts 1997-B, 1998-B, 1998-C, 1998-D and 2000-A, Civil Action Number 1:07-CV-5731 (S.D.N.Y.); Chartis Specialty Insurance Company v. LaSalle Bank, National Association, as Loan Pool Trustee to EMAC Owner Trusts 1998-1, 1999-1 and 2000-1, Civil Action Number 6103-VCN (Del. Chancery Ct.).

Barclays Capital Real Estate, Inc. -
Retained on behalf of Barclays Capital Real Estate (U.S.), as Mortgage Loan Seller, to evaluate and respond to a demand by the plaintiff CMBS trust to repurchase a commercial mortgage loan sold to the trust. Plaintiff alleged breaches of representations and warranties with material and adverse effect. Expert report submitted. Case settled before deposition. U.S. Bank, N.A. v. Barclays Capital Real Estate (U.S.), Case No. 2:10-CV-06997 (C.D. Cal.).

Trustees for Certificateholders of LaSalle Commercial Mortgage Pass-Through Certificates, Series 2006-MF2 and 2006-MF3 –
Lead manager of plaintiff in lawsuits filed in multiple federal courts demanding repurchase of certain commercial mortgage loans by LaSalle Bank, N.A., as mortgage loan seller, for alleged breaches of representations and warranties with material and adverse effect in the sale of loans to the CMBS trusts, and, in the Ohio case, for fraud and fraudulent misrepresentation. Deposed as plaintiff’s 30(b)(6) corporate representative in the Ohio case, and served as lead plaintiff witness and plaintiff corporate representative, testifying on the stand for two and a half days during three-week jury trial in Dayton in November 2009. In the Ohio case, jury found for the plaintiff and against LaSalle National Bank/Bank of America on all issues submitted. Also testified in December 2010 bench trial during damages phase. Deposed as fact witness in Oklahoma and Nevada cases. Testified as fact witness for the plaintiff in the May 2011 jury trial in the Oklahoma case. Jury found for the plaintiff on two of the three loans at issue. All pending litigation settled in early 2012. Wells Fargo Bank, N.A. v. LaSalle Bank, N.A., Case No.3:07cv0449 (S.D. Ohio); Wells Fargo Bank, N.A. v. LaSalle Bank, N.A., Case No. 2:08-cv-01448 (D. Nev.); Wells Fargo Bank, N.A. v. LaSalle Bank, N.A. Case No. 5:08-cv-01125 (W.D. Okla.).

Merrill Lynch Mortgage Lending, Inc. –
Expert retained in 2005 by counsel for Merrill Lynch Mortgage Lending, as defendant in lawsuit demanding repurchase of a loan for alleged breaches of representations and warranties with material and adverse effect in the sale of a loan to a CMBS securitization trust. Prepared expert report and was deposed. Case settled before going to trial. LaSalle Bank, N.A. v Merrill Lynch Mortgage Lending, Case No. 04-CIV-5452 (S.D.N.Y.).

New York investment bank –
Consulting expert retained in 2003-05 on behalf of a New York investment bank, as mortgage loan seller to three CMBS trusts, defending against demands for repurchase in three law suits brought on behalf of the trusts alleging over 700 breaches of representations and warranties with material and adverse effect on approximately 80 loans. Cases settled on eve of trial.

Trammell Crow, et. al. -
Expert retained by counsel for Trammell Crow, et. al. in breach of contract and breach of fiduciary duty litigation involving Joel Peterson, former Trammell Crow Company National Managing Partner and Chief Financial Officer. Managed team of real estate analysts, prepared expert report, was deposed, and testified in Texas state court jury trial (1993) in three subject areas: real estate valuation procedures and results, national and local real estate markets and trends during the decade of the 1980’s, and the discounting of equities in the transfer of closely-held real estate securities. Case settled prior to verdict. Trammell Crow Company, et. al. v. Joel C. Peterson, et. al., Case No. 91-11784-B (Dallas Co. Dis. Ct).


Affiliations

Commercial Real Estate Finance Council/Commercial Mortgage Securities Association –
• Served as charter member of the board of directors of the Commercial Mortgage Securities Association (now, Commercial Real Estate Finance Council), developing standards for the emerging industry and serving as co-chair of the first three annual CMSA open conventions.
• Following the onset of the recent capital markets crisis, served on the CMBS 2.0 CREFC Model Reps and Warranties Committee and chaired the sub-committee designing new proposed PSA language for retention of risk through improved resolution of breaches of representations and warranties.

Other professional associations, past and present, include -
• National Association of Corporate Directors
• Turnaround Management Association
• Regional Plan Association of NY, NJ, and CT
• Urban Land Institute


Qualifications

Experienced in commercial mortgage loan servicing and defaulted loan resolution; CMBS servicing and special servicing; and litigation between and among lenders, CMBS trusts, servicers, and borrowers.


Seminars & Training

Certified Insolvency and Restructuring Advisor - Courses I, II, and III


Professional References

Attorney and other references available upon request.


Education

Master's in Business Administration - Stanford University Graduate School of Business
Bachelor of Science in Aerospace Engineering - Georgia Institute of Technology





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