An Introduction to Third-Party Closing Opinion Letters (Part 1)

Sep 18, 2019 | ALI CLE Legal Journals, Real Estate

Before writing this article, I intended to jump right to the details of third-party closing opinion letters for secured lending transactions involving personal property collateral. However, after reviewing many materials and reflecting on my experience in the opinion letter arena, jumping directly in seemed premature. Instead, I believe the better approach is to undertake a three-step process using three articles. In this first article, we lay a foundation of the fundamental opinion practice concepts. The second article will build upon the first and focus on opinion letters in real estate secured loan transactions. In the concluding article, we turn our attention to opinion letters in secured loan transactions the UCC governs.

Bowling pins

I recently re-watched the 1998 Coen Brothers’ cult classic film “The Big Lebowski,” starring Jeff Bridges as Jeff “The Dude” Lebowski, John Goodman as Walter Sobchak and Steve Buscemi as Theodore Donald “Donny” Kerabastos.[1] The film follows The Dude, who is mistaken for a millionaire of the same name. The millionaire’s wife finds trouble with the wrong people, who break into The Dude’s home and urinate on his rug. Hilarity ensues as The Dude and his bowling pal Walter seek restitution for the rug.[2] Writers use the Big Lebowski as a tool to explain the American mind.[3] I am ill equipped to so the same, but can use quotes from the film as a narrative device to guide us though our opinion letter discussion.[4]

[1] The film follows The Dude, who is mistaken for a millionaire of the same name. The millionaire’s wife finds trouble with the wrong people, who break into The Dude’s home and urinate on his rug. Hilarity ensues as The Dude and his bowling pal Walter seek restitution for the rug.[2] Writers use the Big Lebowski as a tool to explain the American mind.[3] I am ill equipped to so the same, but can use quotes from the film as a narrative device to guide us though our opinion letter discussion.[4]


[1] In December of 2014, “The Big Lebowski” became one of 700 “culturally, historically, or aesthetically significant” films the Library of Congress preserves for future generations through its National Film Registry. The Registry praises the “tale of kidnapping, mistaken identity, and bowling” for its exploration of “alienation, inequality, and class structure via a group of hard-luck, off-beat characters suddenly drawn into each other’s orbits.” The 2014 class of films include “Saving Private Ryan,” “Rosemary’s Baby,” “Willy Wonka and the Chocolate Factory” and Ferris Bueller’s Day Off.”

[2] We summarize the plot in this sentence, but think about the many things you love about “The Big Lebowski”: the performances, the musical sequences, the endless onslaught of brilliantly quotable lines, the Jesus. Strangely, the actual plot of the movie is secondary to most people’s enjoyment of the movie. According to Joel Coen, they knew the plot would probably be a bit confounding to most viewers on the first watch, and they knew that it probably would not matter. “The plot is sort of secondary to the other things that are sort of going on in the piece,” he said in a DVD extra for the film. “I think that if people get a little confused it’s not necessarily going to get in the way of them enjoying the movie.” Adam D’Arpino, “23 Huge Facts about the Big Lebowski,” Mental Floss, March 6, 2018.

[3] See, e.g., David Haglund, Walter Sobchak, “Neocon, The prescient politics of the Big Lebowski,” Slate, September 11, 2008; David Martin-Jones, “Representing Automobility: No literal connection: images of mass commodification, US m

INTRODUCTION

[Scene: The Dude’s bungalow. This quote is from a conversation between Jeffrey “The Dude” Lebowski and Maude Lebowski, the other Jeffrey Lebowski’s scheming daughter, who Julianne Moore plays.]

MAUDE:       So Deiter has the money?

DUDE:           Well, no, not exactly. It’s a complicated case Maude. Lotta ins. Lotta outs. And a lotta strands to keep in my head, man. Lotta strands . . . .

This article should do a better job of explaining the complicated topic of opinion letter practice than The Dude does in in explaining his complicated case to Maude Lebowski. There are multiple challenges to overcome before issuing a third-party closing opinion letter. Most experienced lawyers are adept at the challenge of preparing the substantive legal analysis. The more difficult challenge may be navigating the practice habits of opposing counsel who apply sometimes-misguided pressure to include or exclude certain opinions and limitations. Some lawyers treat issuing an opinion letter as a rote exercise, others take it to an unreasonable extreme, while many strike an appropriate balance. That disparity may lie in how many of us learned to prepare opinion letters, which is where a senior attorney provides a quick overview of the transaction and refers us to an opinion letter from a precedent transaction to follow. Over time, our substantive knowledge of the legal topics about which we opine becomes strong and we focus on the result (i.e., issuing the opinion letter), but we may not have had the mentoring or opportunity to step back and develop a full appreciation for some of the fundamental opinion practice issues. Developing and occasionally brushing up on these fundamentals can help us better serve clients, reduce stress and decrease liability exposure. This article attempts to distill the primary points of a broad, complex and sometimes controversial subject into a practical framework. Copious endnotes accompany this article with citations to resources that provide in-depth guidance on opinion practice issues the reader should find helpful. In the coming pages and later articles, we will explore the ins, outs and strands of opinion practice. Lotta strands.

The Practical Real Estate Lawyer

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