When Default Looms and You Haven't Enough Reserves: All Is Not Lost

The cooperative corporation did not have sufficient reserves to reinstate or satisfy the payment obligations. The corporation did not have access to mortgage financing; nor could the shareholders afford to satisfy their financial obligations through assessments. 

Legal Lesson 

While this particular circumstance involves an HDFC co-op, the actions taken apply to co-ops generally: communicate, educate, negotiate and get the community and local politicians on your side. Also, more obviously, avoiding payment defaults in the first place. 

This co-op board was able to address HPD's concerns and enter into a new regulatory agreement and a restructured payment agreement as a result of the following strategic actions:

• Prompt notification and frequent follow-up communications with all shareholders, through written reports, supplemental shareholder meetings, and committee meetings. This educational process enabled the board to secure the support of the necessary supermajority to revise the corporation's governing documents to allow the new regulatory agreement.

• Outreach by the corporation's counsel and board of directors to local, state, and federal elected officials and to other key community contacts. This was intended to ensure that HPD heard from many advocates on behalf of the corporation and its shareholders, and evidencing the commitment of the board of directors and shareholders to improving fiscal management and responsibility.

Marc A. Landis is a partner at Phillips Nizer.

Photo by Jennifer Wu

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