Indian Securitisation Market opens big in FY 20 – A performance review and a diagnosis of the inherent problems in the market

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By Abhirup Ghosh , (abhirup@vinodkothari.com)(finserv@vinodkothari.com)

Ever since the liquidity crisis crept in the financial sector, securitisation and direct assignment transactions have become the main stay fund raising methods for the financial sector entities. This is mainly because of the growing reluctance of the banks in taking direct exposure on the NBFCs, especially after the episodes of IL&FS, DHFL etc.

Resultantly, the transactions have witnessed unprecedented growth. For instance, the volume of transactions in the first quarter of the current financial year stood at a record ₹ 50,300 crores[1] which grew at 56% on y-o-y basis from ₹ 32,300 crores. Segment-wise, the securitisation transactions grew by whooping 95% to ₹ 22,000 crores as against ₹ 11,300 crores a year back. The volume of direct assignments also grew by 35% to ₹ 28,300 crores as against ₹ 21,000 crores a year back.

The chart below show the performance of the industry in the past few years:

Direct Assignments have been dominating market with the majority share. During Q1 FY 20, DAs constituted roughly 56% of the total market and PTCs filled up the rest. The chart below shows historical statistics about the share of DA and PTCs:

In terms of asset classes, non-mortgage asset classes continue to dominate the market, especially vehicle loans. The table below shows the share of the different asset classes of PTCs:

Asset class

 Q1 FY 20 share Q1 FY 19 share FY 19 share
Vehicle (CV, CE, Car) 51% 57% 49%
Mortgages (Home Loan & LAP) 20% 0% 10%
Tractor 6% 0% 10%
MSME 5% 1% 4%
Micro Loans 4% 23% 16%
Lease Rentals 0% 13% 17%
Others 14% 6% 1%

Asset class wise share of PTCs

Source: ICRA

Shortcomings in the current securitisation structures

Having talked about the exemplary performance, let us now focus on the potential threats in the market. A securitisation transaction becomes fool proof only when the transaction achieves bankruptcy-remoteness, that is, when all the originator’s bankruptcy related risks are detached from the securitised assets. However, the way the current transactions are structured, the very bankruptcy-remoteness of the transactions has become questionable. Each of the problems have been discussed separately below:

Commingling risk

In most of the current structures, the servicing of the cash flows is carried out of the originator itself. The collections are made as per either of the following methods:

  1. Cash Collection – This is the most common method of repayment in case of micro finance and small ticket size loans, where the instalments are paid in cash. Either the collection agent of the lender goes to the borrower for collecting the cash repayments or the borrower deposits the cash directly into the bank account of the lender or at the registered office or branch of the lender.
  2. Encashment of post-dated cheques (PDCs) – The PDCs are taken from the borrower at the inception of the credit facility for the EMIs and as security.
  3. Transfer through RTGS/NEFT by the customer to the originator’s bank account.
  4. NACH debit mandate or standing instructions.

 

In all of the aforesaid cases, the payment flows into the current/ business account of the originator. The moment the cash flows fall in the originator’s current account, they get exposed to commingling risk. In such a case, if the originator goes into bankruptcy, there could be serious concerns regarding the recoverability of the cash flows collected by the originator but not paid to the investors. Also, because redirection of cash flows upon such an event will be extremely difficult to implement. Therefore, in case of exigencies like the bankruptcy of the originator, even an AAA-rated security can become trash overnight. This brings up a very important question on whether AAA-PTCs are truly AAA or not.

 

This issue can be addressed if, going forward, the originators originate only such transactions in which repayments are to happen through NACH mandates. NACH mandates are executed in favour of third party service providers which triggers direct debit from the bank account of the customers every month against the instalments due. Upon receipt of the money from the customer, the third party service providers then transfer the amount received to the originators. Since, the mandates are originally executed in the name of the third party service providers and not on the originators, the payments can easily be redirected in favour of the securitisation trusts in case the originator goes into bankruptcy. The ease of redirection of cash flows NACH mechanism provides is not available in any other ways of fund transfer, referred above.

Will the assets form part of the liquidation estate of the lessor, since under IndAS the assets continue to get reflected on Balance Sheet of the originator?

With the implementation of Ind AS in financial sector, most of the securitisation transactions are failing to fulfil the complex de-recognition criteria laid down in Ind AS 109. Resultantly, the receivables continue to stay on the books of the originator despite a legal true sale of the same. Due to this a new concern has surfaced in the industry that is, whether the assets, despite being on the books of the originator, be absolved from the liquidation estate of the originator in case the same goes into liquidation.

Under the current framework for bankruptcy of corporates in India, the confines of liquidation estate are laid in section 36 of the IBC. Section 36 (3) lays what all will be included therein. Primarily, section 36 (3) (a) is the relevant provision, saying “any assets over which the corporate debtor has ownership rights” will be included in the estate. There is a reference to the balance sheet, but the balance sheet is merely an evidence of the ownership rights. The ownership rights are a matter of contract and in case of receivables securitised, the ownership is transferred to the SPV.

The bounds of liquidation estate are fixed by the contractual rights over the asset. Contractually, the originator has transferred, by way of true sale, the receivables. The continuing balance sheet recognition has no bearing on the transfer of the receivables. Therefore, even if the originator goes into liquidation, the securitised assets will remain unaffected.

Conclusion

Despite the shortcomings in the current structures, the Indian market has opened big. After the market posted its highest volumes in the year before, several industry experts doubted whether the market will be able to out-do its previous record or for that matter even reach closer to what it has achieved. But after a brilliant start this year, it seems the dream run of the Indian securitisation industry has not ended yet.

[1] https://www.icra.in/Media/OpenMedia?Key=94261612-a1ce-467b-9e5d-4bc758367220

2019 Securitisation volumes in India reach record high

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By Falak Dutta (finserv@vinodkothari.com)

Up, Up & Above!

Yet another year went by and Indian securitization market certainly had a year to rejoice. Starting from the volume of transactions to innovative structures, the market has everything to boast about. Before we discuss each of these at length, let us take stock of the highlights first:

  • The securitization volumes doubled during the year, as securitization in India became a trillion rupee market.
  • DAs continued to be the preferred mode of transaction with Mortgages as the dominant asset class.
  • Clarity on Goods & Services Tax, increased participation of private banks, NBFCs and mutual funds along with healthy demand for non-priority sector loan were primary reasons for this sharp growth.
  • DHFL & IL&FS rushed to securitize as traditional sources of funding dried up due to concerns of debt servicing in the 2nd half of 2018.
  • The country witnessed the first issuance of covered bonds during year.
  • Several new structures were tried, namely, lease receivables securitization, corporate loan securitization, revolving structures etc.

Securitization volumes reaching all time high

The volume of retail securitization grew by 123% as figures soared to ₹1.9 lakh crore compared to ₹85,000 crore in fiscal ’18. Mortgages, vehicle loans and microfinance loans constituted the three major asset classes comprising of 84% of the total volume. The growth was primarily propelled by a combination of three factors.

First, a few big players who stayed away from the market returned after the GST Council clarified that securitized assets are not subject to GST.

Second, Two non-banking companies (DHFL& IL&FS) rushed to securitize their receivables as traditional sources of financing dried up after September 2018. After this, banks started preferring portfolio buyouts over taking credit exposure on the NBFCs.

Third, subsequent to the liquidity crisis faced by several NBFCs, RBI relaxed guidelines of minimum holding period requirement for securitization transactions backed by long duration loans leading to greater number of eligible securitized assets.

The graph below shows the performance of the Indian securitization market over the years:

Source: CRISIL Estimates. Figures in ₹10 Billions

Traditionally the bulk of securitization transactions have been driven by Priority Sector Lending (PSL) from banks. At present though, securitization transactions are being increasingly backed by non PSL assets that are making their presence felt as they gain market traction. The trend has been clear. The share of non-PSL assets as a part of total transaction rose to a record of 42% in 2018, up from 33% in 2017 and a relatively moderate share of 26% in 2016. Banks are focusing on securing long term assets such as mortgages that have displayed fairly stable asset quality to expand their retail asset portfolio.

The case for PSLCs

An additional recurring theme is the growing popularity in PSLCs which serves as a direct alternative to securitization. The volume of transactions have skyrocketed to ₹ 3.3 lakh crore in fiscal ’19 up from ₹ 1.9 lakh crore in fiscal ‘18 and ₹ 49,000 crore in fiscal ‘17. PSLCs which were introduced in 2015, was an idea which appeared in the report of a Dr. Raghu Ram Rajan led Committee- A Hundred Small Steps. Out of the four kinds of PSLCs, the PLSC- General and PSLC- Small and Marginal Farmers remain the highest traded segments. The supply side consists of private sector banks with excess PSL in the general PSLCs category and Regional Rural Banks in SFMF category.

PTCs vs. DAs

Another point of note is the increasing share of the DA’s in the securitization market. The move from PTCs to DA isn’t surprising given the absence of credit enhancements, amount of capital requirements and relatively less regulatory due diligence in DAs. The fact that the share of PTC transaction fell from 47% in fiscal ‘17 to 42% in fiscal ’18 and further to 36% in fiscal ’19 serves as a case in point. However, one hasn’t impeded the growth for the other. DA transactions soared a record 146%. Whereas PTCs soared 95% reaching a volume of ₹69,000 crore. Also, mortgages still remain the preferred asset class, accounting for almost 74% of DA volumes and 46% of total securitization volumes.

Source: CRISIL1 Estimates

Source: CRISIL[1]

India on the Global Map

2018 was a landmark year for global securitization with over a trillion dollars’ worth of issue, as the memories of the 2008 crisis gradually fade into oblivion. The U.S has been the major player in the global market, issuing over half of the total transactions by volume. Europe recorded a surge in volume clocking $106 billion against $82 billion in 2017. In Asia, China both grew and remained the dominant player in Asia at $310 billion, followed by Japan at $58 billion. Elsewhere issuance in Australia and Latin America declined. Some potential factors that could affect the global markets in the coming future include the Brexit uncertainty, market volatility, rising interest rates, renegotiations of existing trade agreements and liquidity. Some of these are contentious issues, the effects of which could sustain beyond the near future.

 

Source: SP Global[2], Values in $US Billion

Conclusion

Heading into the next fiscal year, some of the tailwinds that propelled the market in fiscal 2019 are fading gradually. Pent-up supply following the implementation of the Goods and Services Tax (GST) has almost exhausted, the funding environment for non-banks have been steadily stabilizing and the relaxation on the minimum holding period will be only available till May 2019. The entry of a new segment of investors- NBFC treasuries, foreign portfolio investors, mutual funds and others such brought about differing risk appetites and return aspirations which paved the way for newer asset classes. The trend for education loan receivables and consumer durables loan receivables accelerated in fiscal 2019. Although, the overall volumes of these unconventional asset classes are relatively small at present, investor presence in these non-AAA rated papers is a good sign for the long term prospects of the securitization markets.

“The Indian securitization market in 2018 have attained several significant milestones: from significant growth in non-PSL volumes, to asset class diversity, to attracting new investor base, to innovative structures, the market seems ready to launch into a new trajectory.”, stated Mr. Vinod Kothari, Director at Vinod Kothari Consultants.

He added, “It is only in stressful times that securitization has shone globally– the Indian financial sector has gone through some stress scenarios in the recent past, and securitization has been able to sustain the growth of the financial sector.”

 

Sources:

1) https://www.crisil.com/content/dam/crisil/our-analysis/reports/Ratings/documents/2018/june/securitization-resilient-despite-roadblocks.pdf

6) https://www.spglobal.com/en/research-insights/articles/global-structured-finance-outlook-2019-securitization-continues-to-be-energized-with-potential-1-trillion-in-volume-expected-ag

[1] https://www.crisil.com/content/dam/crisil/pr/press-release/2017/12/retail-securitization-volume-doubles-to-rs-1point9-lakh-crore.pdf

[2] https://www.spglobal.com/en/research-insights/articles/global-structured-finance-outlook-2019-securitization-continues-to-be-energized-with-potential-1-trillion-in-volume-expected-ag

Securitisation laws prevailing in various countries are listed below :

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  • Singapore:
  1. Monetary Authority of Singapore (MAS) Guidelines on Securitisation (The guidelines were finalized in 2000)
  2. Amendment in 2018
    http://www.mas.gov.sg/~/media/MAS/Regulations%20and%20Financial%20Stability/Regulations%20Guidance%20and%20Licensing/Finance%20Companies/Notices/MAS%20Notice%20832%20%20Amendment%20%202018.pdf
  3. Amendment in 2007
    http://www.mas.gov.sg/~/media/MAS/Regulations%20and%20Financial%20Stability/Regulations%20Guidance%20and%20Licensing/Commercial%20Banks/Regulations%20Guidance%20and%20Licensing/Notices/MAS%20Notice%20628%20(2007).pdf
  4. News on Securitisation
    http://vinodkothari.com/2013/11/sing/
  5. Rules on Securitisation
    http://vinodkothari.com/seclawsg/
  • USA:
  1. 15 U.S. Code § 78o–11. Credit risk retention:
    https://www.law.cornell.edu/uscode/text/15/78o-11
  2. Dodd-Frank Wall Street Reform and Consumer Protection Act [Public Law 111–203] [As Amended Through P.L. 115–174, Enacted May 24, 2018]
    https://legcounsel.house.gov/Comps/Dodd-Frank%20Wall%20Street%20Reform%20and%20Consumer%20Protection%20Act.pdf
  3. Securitisation Market
    http://vinodkothari.com/secusa/
  4. Laws on Securitisation
    http://vinodkothari.com/seclawus/
  • Australia:
  1. Australian Prudential Standard (APS) 120 made under section 11AF of the Banking Act 1959 (the Banking Act) By Australian Prudential Regulation Authority
    https://www.apra.gov.au/sites/default/files/aps_120_securitisation.pdf
  2. Covered Bonds issued under Part II, Division 3A of the Banking Act 1959 (Cth)
    https://www.legislation.gov.au/Details/C2017C00067
  3. Laws on Securitisation
    http://vinodkothari.com/seclawaustral/
  4. Securitisation Market
    http://vinodkothari.com/austral/
  • Indonesia:
  1. Bank Indonesia Regulation No. 7/4/PBI/2005 Prudential Principles in Asset Securitisation for Commercial Banks
    https://www.bi.go.id/en/peraturan/perbankan/Pages/bir%207405.aspx
  2. Securitisation Market
    http://vinodkothari.com/secindon/
  • Hong Kong: 
  1. There is no specific legislative regime for securitisation. Securitisation is subject to various Hong Kong laws, depending on the transaction structure, transaction parties, underlying assets, and the nature of the offering of the securities
  2. Securitisation Market
    http://vinodkothari.com/sechong/
  • Canada:
  1. Office of the Superintendent of Financial Institutions, Government of Canada
    http://www.osfi-bsif.gc.ca/Eng/fi-if/rg-ro/gdn-ort/gl-ld/Pages/CAR18_chpt7.aspx
  2. Securitisation Market
    http://vinodkothari.com/seccanad/
  • European Union:(UK, Germany, France,Italy, Sweden, Poland, Spain, Greece, Finland, Malta)
  1. Regulation(EU) 2017/2402 (the Securitisation Regulation) as on December 12,2017
    https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32017R2402
  2. Regulation (EU) 2017/2402 of the European Parliament and of the Council of September 30, 2015
    https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52015PC0472
  3. Securitisation Market:
    http://vinodkothari.com/europe/

 

  • Italy:
  1. Law 130 of 30 April 1999, Italian securitisation law
    https://www.housing-finance-network.org/fileadmin/user_upload/hfn/Country_Law/Law-Italy/2006-00281.pdf
  2. Securitistion Market
    http://vinodkothari.com/secitaly/
  • Greece:
  1. GREEK LAW 3156/2003
    http://www.greeklawdigest.gr/topics/finance-investment/item/317-securitization-law-bonds-l-3156-2003
  • France:
  1. Order No. 2017-1432 of October 4, 2017 , Modernizing the Legal Framework for Asset Management and Debt Financing (Initial Version)
    https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000035720833&categorieLien=id
    Version in force on 26/03/2019
    https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000035720833&dateTexte=20190326
  2. Securitisation Market:
    http://vinodkothari.com/france/
  • Japan: Securitisation in Japan is governed by laws and regulations applicable to specific types of transactions such as the Civil Code (Law No. 89, 1896), the Trust Act (Law No. 108, 2006) and the Financial Instruments and Exchange Law (Law No. 25, 1948) (FIEL).
  1. https://www.fsa.go.jp/common/law/fie01.pdf
  2. http://jafbase.fr/docAsie/Japon/CodCiv.pdf
  3. http://www.japaneselawtranslation.go.jp/law/detail_download/?ff=09&id=1946
  4. Laws on Securitisation
    http://vinodkothari.com/seclawjapan/
  5. Securitisation Market
    http://vinodkothari.com/japan/
  • China:
  1. Administrative Rules for Pilot Securitization of Credit Assets(the Administrative Rules) on April 2005
    http://www.cbrc.gov.cn/EngdocView.do?docID=1720
  2. Securitisation Market
    http://vinodkothari.com/secchina-2/
  • Ireland:
  1. European Union (General Framework For Securitisation And Specific Framework For Simple, Transparent And Standardised Securitisation) Regulations 2018 (Central Bank of Ireland)
    http://www.irishstatutebook.ie/eli/2018/si/656/made/en/pdf
  • South Africa:
  1. In South Africa, securitisations are regulated according to the securitisation regulations issued under the Banks Act 94 of 1990 (the Banks Act)
    https://www.resbank.co.za/Lists/News%20and%20Publications/Attachments/2591/Banks+Amendment+Act+2007%5B1%5D.pdf
  1. Government Gazette 30628 of 1 January 2008 (Securitisation Regulations)
    https://www.resbank.co.za/Lists/News%20and%20Publications/Attachments/2734/30628%20sec%20schemes%202008.pdf
  2. Laws on Securitisation
    http://vinodkothari.com/seclawsa/
  3. Securitisation Market
    http://vinodkothari.com/secafric/
  • Morocco:
  1. Law No. 33-06 on Securitization
  2. Draft amendment of Law on Securitization
    http://www.sgg.gov.ma/portals/0/AvantProjet/8/Projet_loi_Amendement-titrisation_Ang.pdf

Accounting for Direct Assignment under Indian Accounting Standards (Ind AS)

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By Team IFRS & Valuation Services (ifrs@vinodkothari.com) (finserv@vinodkothari.com)

Introduction

Direct assignment (DA) is a very popular way of achieving liquidity needs of an entity. With the motives of achieving off- balance sheet treatment accompanied by low cost of raising funds, financial sector entities enter into securitisation and direct assignment transactions involving sale of their loan portfolios. DA in the context of Indian securitisation practices involves sale of loan portfolios without the involvement of a special purpose vehicle, unlike securitisation, where setting up of an SPV is an imperative.

The term DA is unique to India, that is, only in Indian context we use the term DA for assignment of loan or lease portfolios to another entity like bank. Whereas, on a global level, a similar arrangements are known by various other names like loan sale, whole-loan sales or loan portfolio sale.

In India, the regulatory framework governing Das and securitisation transactions are laid down by the Reserve Bank of India (RBI). The guidelines for governing securitisation structures, often referred to as pass-through certificates route (PTCs) were issued for the first time in 2006, where the focus of the Guidelines was restricted to securitisation transactions only and direct assignments were nowhere in the picture. The RBI Guidelines were revised in 2012 to include provisions relating to direct assignment transactions.

Read more →

RBI temporarily relaxes the Guidelines on Securitisation for NBFCs

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By Financial Services Division, finserv@vinodkothari.com

 

In the wake of the recent hues and cries of the entire country in anticipation of a liquidity crisis in the NBFC sector, the Reserve Bank of India, on 29th November, 2018, issued a notification[1] to modify the Securitisation Guidelines.The amendment aims to relax the minimum holding period requirements of the guidelines, subject to conditions, temporarily. Therefore, the changes vide this notification come with an expiry date. The key takeaways of the notification have been discussed below:

a. Relaxation in the MHP requirements: As per the notification, NBFCs will now be allowed to securitise/ assign loans originated by them, with original maturity of more than 5 years, after showing record of recovery of repayments of six monthly instalments or two quarterly instalments (as applicable). Currently, for loans with original maturity more than 5 years, the MHP requirements are repayment of at least twelve monthly instalments or four quarterly instalments (as applicable).

b. Change in MRR requirements for the loans securitised under this notification: The benefit mentioned above will be available only if the NBFC retains at least 20% of the assets securitised/ assigned. Currently, the MRR requirements ranges between 5%-10% depending on the tenure of the loans.

c. Timeline for availing this benefit: As already stated above, this is a temporary measure adopted by the RBI to ease out the tension relating to liquidity issues of the NBFCs; therefore, this comes with an expiry date, which in the present case is six months from the date of issuance of the notification. Therefore, this benefit will be available for only those loans which are securitised/ assigned during a period of six months from the date of issuance of this notification.

The requirements under the guidelines remains intact.

Further, the RBI has extended the relaxation till December 31, 2019 vide its notification dated May 29, 2019.

To summarise, the MHP requirements and the MRR requirements on securitisation/ assignment of loans looks as such –

Loans assigned between 29th November, 2018 – 30th December, 2019 Loans assigned after 31st December, 2019
MHP requirements for loans with original maturity less than 5 years Loans upto 2 years maturity – 3 months

 

Loans between 2 – 5 years – 6 months

 Loans upto 2 years maturity – 3 months

 

Loans between 2 – 5 years – 6 months
MHP requirements for loans with original maturity less than 5 years If revised MRR requirements fulfilled – 6 months

 

If revised MRR requirements not fulfilled – 12 months

 Loans upto 2 years maturity – 3 months

 

Loans between 2 – 5 years – 6 months
MRR requirements for loans with original maturity of less than 5 years Loans with original maturity upto 2 years – 5%

 

Loans with original maturity more than 2 years – 10%

 Loans with original maturity upto 2 years – 5%

 

Loans with original maturity more than 2 years – 10%
MRR requirements for loans with original maturity of more than 5 years If benefit of MHP requirements availed – 20%

 

If benefit of MHP requirements not availed – 10%

 Loans with original maturity upto 2 years – 5%

 

Loans with original maturity more than 2 years – 10%

 

Vinod Kothari comments: 

  •  Loans with original maturity of more than 5 years are essentially home loans and LAP loans. Home loans are housed mostly with HFCs. These guidelines ought to have come from NHB rather than RBI, but given the tradition that RBI guidelines are followed in case of HFCs as well, this “relaxation” will be more applicable to HFCs rather than NBFCs.
  • In case of LAP loans, given the current credit scenario prevailing in the country, taking exposure on LAP loans itself is subject to question. Issue is – will the relaxation prompt NBFCs to write LAP loans, or will it simply allow them to package and sell existing pools of lap loans sitting on their books waiting for the MHP of 12 months to get over? It is more likely to be latter than the former.
  • However, the so-called relaxation comes with a give-and-take – the MRR is 20%. The NBFC has, therefore, 2 options – wait for 12 months to be over and just do a transaction with 10% MRR, or avail the so-called relaxation and put in on-balance funding of 20%. Therefore, it is only for those who are desperate for refinancing that the so-called relaxation will seem appealing.
  • Our interaction with leading NBFCs reveals that there are immediate liquidity concerns . Banks are not willing to take on-balance sheet exposure on NBFCs; rather they are willing to take exposure on pools. Therefore, for more than 6 months and less than 12 months seasoned LAP pools, this might provide a temporary packaging opportunity.
  • This is indeed the best time to think of covered bonds. The proposition has been lying unresolved for last few years. If banks are willing to take exposure on pools, why not dual recourse by way of covered bonds? That indeed provides ideal solution, with ring fenced pools providing double layers of protection.

[1] https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11422&Mode=0

For more articles on Securitisation and Covered Bonds, refer our page here.

Also refer our article: The name is Bond. Covered Bonds.

 

GST on assignment of receivables: Wrong path to the right destination

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Team Vinod Kothari Consultants P. Ltd

 

There has been a lot of uncertainty on the issue of exigibility of direct assignments and securitisation transactions to goods and services tax (GST). While on one hand, there have been opinions that assignments of secured debts may be taxable being covered by the circuitous definition of “actionable claims”, there are other views holding such assignments of debts (secured or unsecured) to be non-taxable since an obligation to pay money is nothing but money, and hence, not  “goods” under the GST law[1]. The uncertainty was costing the market heavily[2].

In order to put diverging views to rest, the GST Council came out with a set of Frequently Asked Questions on Financial Services Sector[3], trying to clarify the position of some arguable issues pertaining to transactions undertaken in the financial sector. These FAQs include three separate (and interestingly, mutually unclear) questions on – (a) assignment or sale of secured or secured debts [Q.40], (b) whether assignment of secured debts constitutes a transaction in money [Q.41], and (c) securitisation transactions undertaken by banks [Q.65].

The end-result arising out of these questions is that there will be no GST on securitisation transactions. However, the GST Council has relied on some very intriguing arguments to come to this conclusion – seemingly lost between the meaning of “derivatives”, “securities”, and “actionable claims”. If one does not care about why we reached here, the conclusion is most welcome. However, the FAQs also reflect the serious lack of understanding of financial instruments with the Council, which may potentially create issues in the long run.

In this note[4] we intend to discuss the outcome of the FAQs, but before that let us first understand what the situation of the issue was before this clarification.

Situation before the clarification

  1. GST is chargeable on supply of goods or services or both. Goods have been defined in section 2(52) of the CGST Act in the following manner:

“(52) “goods” means every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply;”

Services have been defined in section 2(102) of the CGST Act oin in the following manner:

““services” means anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged;”

Money, is therefore, excludible from the scope of “goods” as well as “services”.

Section 7 details the scope of the expression “supply”. According to the section, “supply” includes “all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business.” However, activities as specified in Schedule III of the said Act shall not be considered as “supply”.

It may be noted here that “Actionable claims, other than lottery, betting and gambling” are enlisted in entry 6 of Schedule III of the said Act; therefore are not exigible to GST.

  1. There is no doubt that a “receivable” is a movable property. “Receivable” denotes something which one is entitled to receive. Receivable is therefore, a mirror image for “debt”. If a sum of money is receivable for A, the same sum of money must be a debt for B. A debt is an obligation to pay, a receivable is the corresponding right to receive.

Coming to the definition of “money”, it has been defined under section 2(75) as follows –

““money” means the Indian legal tender or any foreign currency, cheque, promissory note, bill of exchange, letter of credit, draft, pay order, traveller cheque, money order, postal or electronic remittance or any other instrument recognised by the Reserve Bank of India when used as a consideration to settle an obligation or exchange with Indian legal tender of another denomination but shall not include any currency that is held for its numismatic value.”

The definition above enlists all such instruments which have a “value-in-exchange”, so as to represent money. A debt also represents a sum of money and the form in which it can be paid can be any of these forms as enlisted above.

So, in effect, a receivable is also a sum of “money”. As such, receivables shall not be considered as “goods” or “services” for the purpose of GST law.

  1. As mentioned earlier, “actionable claims” have been included in the definition of “goods” under the CGST Act, however, any transfer (i.e. supply) of actionable claim is explicitly excluded from being treated as a supply of either goods or services for the purpose of levy of GST.

Section 2(1) of the CGST Act defines “actionable claim” so as to assign it the same meaning as in section 3 of the Transfer of Property Act, 1882, which in turn, defines “actionable claim” as –

“actionable claim” means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the civil courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent;”

It may be noted that the inclusion of “actionable claim” is still subject to the exclusion of “money” from the definition of “goods”. The definition of actionable claim travels beyond “claim to a debt” and covers “claim to any beneficial interest in movable property”. Therefore, an actionable claim is definitely more than a “receivable”. Hence, if the actionable claim represents property that is money, it can be held that such form of the actionable claim shall be excluded from the ambit of “goods”.

There were views in the industry which, on the basis of the definition above, distinguish between — (a) a debt secured by mortgage of immovable property, and a debt secured by hypothecation/pledge of movable property on one hand (which are excluded from the definition of actionable claim); and (b) an unsecured debt on the other hand. However, others opined that a debt, whether secured or unsecured, is after all a “debt”, i.e. a property in money; and thus can never be classified as “goods”. Therefore, the entire exercise of making a distinction between secured and unsecured debt may not be relevant at all.

In case it is argued that a receivable which is secured (i.e. a secured debt) shall come within the definition of “goods”, it must be noted that a security granted against a debt is merely a back-up, a collateral against default in repayment of debt.

  1. In one of the background materials on GST published by the Institute of Chartered Accountants of India[5], it has been emphasised that a transaction where a person merely slips into the shoes of another person, the same cannot be termed as supply. As such, unrestricted expansion of the expression “supply” should not be encouraged:

“. . . supply is not a boundless word of uncertain meaning. The inclusive part of the opening words in this clause may be understood to include everything that supply is generally understood to be PLUS the ones that are enlisted. It must be admitted that the general understanding of the world supply is but an amalgam of these 8 forms of supply. Any attempt at expanding this list of 8 forms of supply must be attempted with great caution. Attempting to find other forms of supply has not yielded results however, transactions that do not want to supply have been discovered. Transactions of assignment where one person steps into the shoes of another appears to slip away from the scope of supply as well as transactions where goods are destroyed without a transfer of any kind taking place.”

Also, as already stated, where the object is neither goods nor services, there is no question of being a supply thereof.

  1. Therefore, there was one school of thought which treated as assignment of secured receivables as a supply under the GST regime and another school of thought promoted a view which was contrary to the other one. To clarify the position, representations were made by some of the leading bankers and the Indian Securitisation Foundation.

Situation after the clarification

  1. The GST Council has discussed the issue of assignment and securitisation of receivables through different question, extracts have been reproduced below:

 

  1. Whether assignment or sale of secured or unsecured debts is liable to GST?

Section 2(52) of the CGST Act, 2017 defines ‘goods’ to mean every kind of movable property other than money and securities but includes actionable claim. Schedule III of the CGST Act, 2017 lists activities or transactions which shall be treated neither as a supply of goods nor a supply of services and actionable claims other than lottery, betting and gambling are included in the said Schedule. Thus, only actionable claims in respect of lottery, betting and gambling would be taxable under GST. Further, where sale, transfer or assignment of debts falls within the purview of actionable claims, the same would not be subject to GST.

Further, any charges collected in the course of transfer or assignment of a debt would be chargeable to GST, being in the nature of consideration for supply of services.

  1. Would sale, purchase, acquisition or assignment of a secured debt constitute a transaction in money?

Sale, purchase, acquisition or assignment of a secured debt does not constitute a transaction in money; it is in the nature of a derivative and hence a security.

  1. What is the leviability of GST on securitization transactions undertaken by banks?

Securitized assets are in the nature of securities and hence not liable to GST. However, if some service charges or service fees or documentation fees or broking charges or such like fees or charges are charged, the same would be a consideration for provision of services related to securitization and chargeable to GST.

 

  1. The fallacy starts with two sequential and separate questions: one dealing with securitisation and the other on assignment transactions. There was absolutely no need for incorporating separate questions for the two, since all securitisation transactions involve an assignment of debt.

 

  1. Next, the department in Question 40 has clarified that the assignment of actionable claims, other than lottery, betting and gambling forms a part of the list of exclusion under Schedule III of the CGST Act, therefore, are not subject to GST. This was apparent from the reading of law, therefore, there is nothing new in this.

 

However, the second part of the answer needs further discussion. The second part of the answer states that – any charges collected in the course of transfer or assignment of a debt would be chargeable to GST, being in the nature of consideration for supply of services.

There are multiple charges or fees associated in an assignment or securitisation transaction – such as  servicing fees or excess spread. While it is very clear that the GST will be chargeable on servicing fees charged by the servicer, there is still a confusion on whether GST will be charged on the excess spread or not. Typically, transactions are devised to give residuary sweep to the originator after servicing the PTCs. Therefore, there could be a challenge that sweep right is also a component of servicing fees or consideration for acting as a servicing agent. The meaning of consideration[6] under the CGST Act is consideration in any form and the nomenclature supports the intent of the transaction.

Since, the originator gets the excess spread, question may arise, if excess spread is in the nature of interest.  This indicates the need for proper structuring of transactions, to ensure that either the sweep right is structured as a security, or the same is structured as a right to interest. One commonly followed international structure is credit-enhancing IO strip. The IO strip has not been tried in Indian transactions, and recommendably this structure may alleviate concerns about GST being applied on the excess spread.

  1. Till now, whatever has been discussed was more or less settled before the clarification, question 41 settles the dispute on the contentious question of whether GST will be charged on assigned of secured debt. The answer to question 41 has compared sale, purchase, acquisition or assignment of secured debt with a derivative. The answer has rejected the view, held by the authors, that any right to a payment in money is money itself. The GST Council holds the view that the receivables are in the nature of derivatives, the transaction qualifies to be a security and therefore, exempt from the purview of supply of goods or supply of services.

While the intent of the GST Council is coming out very clear, but this view is lacking supporting logic. Neither the question discusses why assignments of secured receivables are not transactions in money, nor does it state why it is being treated as derivative.

Our humble submission in this regard is that assignment of secured receivables may not be treated as derivatives. The meaning of the term “derivatives” have been drawn from section 2(ac) of the Securities Contracts (Regulation) Act, 1956, which includes the following –

(A) a security derived from a debt instrument, share, loan, whether secured or unsecured, risk instrument or contract for differences or any other form of security;

(B) a contract which derives its value from the prices, or index of prices, of underlying securities.

In the present case, assignment of receivables do not represent any security nor does it derive its value from anything else. The receivables themselves have an inherent value, which get assigned, the fact that it is backed a collateral security does not make any difference as the value of the receivables also factor the value of the underlying.

Even though the logic is not coming out clear, the intent of the Council is coming out clearly and the efforts made by the Council to clear out the ambiguities is really commendable.

 

[1] Refer: GST on Securitisation Transactions, by Nidhi Bothra, and Sikha Bansal, at  http://vinodkothari.com/blog/gst-on-securitisation-transactions-2/; pg. last visited on 06.06.2018

[2] At the recently concluded Seventh Securitisation Summit on 25th May, 2018, one leading originator confirmed that his company had kept transactions on hold in view of the GST uncertainty. It was widely believed that the dip in volumes in FY 2017-18 was primarily due to GST uncertainty.

[3] http://www.cbic.gov.in/resources//htdocs-cbec/gst/FAQs_on_Financial_Services_Sector.pdf

[4] Portions of this note have been adopted from the article – GST on Securitisation Transactions, by Nidhi Bothra and Sikha Bansal.

[5] http://idtc-icai.s3.amazonaws.com/download/pdf18/Volume-I(BGM-idtc).pdf; pg. last visited on 19.05.2018

[6] (31) “consideration” in relation to the supply of goods or services or both includes––

(a) any payment made or to be made, whether in money or otherwise, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government;

(b) the monetary value of any act or forbearance, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government:

Provided that a deposit given in respect of the supply of goods or services or both shall not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply;

Indian securitisation market remains stagnant as PSLCs rule the market

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Despite the economic slowdown due to GST, the Indian securitization market has performed fairly well, though it has not been able to match the volume of last year. During FY 17-18, the overall volume of the market stood at Rs. 84,000 crores, which is Rs. 1000 crores less than what happened a year back. Of the total volume, there were direct assignments worth Rs. 49000 crores and the remaining were pass through certificates. After the introduction of the securitization distribution tax in 2012, the market shifted towards DAs and the same continued until 2016 when the same was removed. This also reduced the gap between DAs and PTCs, however, the gap has increased once again. The following two graphics show the trend of securitization and the market composition (DAs vs PTCs) during the last few years.

The market showed a 72% YoY growth on issuance of pass through certificates from Rs 25000 crores in FY16 to Rs 43000 crores in FY17 however, and a 24% decrease in FY18 to Rs 34800 crores. The slowdown in securitisation was mainly due to lack of clarity surrounding incidence of Goods & Services Tax on the ‘assignment’ of secured loan receivables as well as a sharp spike in PLCS lending volume.

The volume of PSLC market leapfrogged to around Rs 1.84 lakh crore in FY18 from mere Rs 50,000 crore in FY17. Trading of PSLC was introduced in 2016 and FY18 was the first full year of its use. Here, banks needed to meet priority sector loan targets buy the priority sector obligation certificate from the seller bank without the transfer of risks or loan assets. Seller banks earn a fee without reduction in the loan portfolio unlike in securitization or direct assignment deals. The PLCS are also easier to execute as happens without any real transfer of assets whereas PTCs require pooling of assets and selling it.

Despite a slowdown in the market, several new asset classes were tried during the year. For the first time, asset classes like educational loans, consumer durable loans were tried. The market also witnessed return of Collateralised Loan Obligations.

7th Securitisation Summit, 2018 & 2nd Indian Securitisation Awards

Vinod Kothari Consultants, along with the Indian Securitisation Foundation, has also announced the 7th Securitisation Summit, 2018 on 25th May, 2018 at World Trade Center, Mumbai. This is an industry forum where stakeholders from the entire industry gather to discuss various issues concerning the market and try to take up issues with the regulatory authorities so as to make the environment facilitating in India. The details of the event can be viewed at: www.vinodkothari.com/secsummit/

Also, during this years’ summit, Indian Securitisation Foundation will also announce the second edition of the Indian Securitisation Awards. There are five categories award – most innovative deal of the year, large and small arrangers of the year, trustee of the year and law firm of the year.  Details can be viewed at:

http://vinodkothari.com/wp-content/uploads/2018/04/INDIAN-SECURITISATION-AWARDS-2018-BROCHURE.pdf

Chinese securitization market continues to grow – S&P Report

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By Nidhi Bothra (finserv@vinodkothari.com)

 

Amdist slowdown of the Chinese economy, bulging debt load and excessive investments, the impetus has been on securitisation to convert assets into asset-backed bonds. China’s ABS market has wide range of assets such as loans, real estate, toll ways, auto loans, housing loans etc. Read more →

SECURITISATION NEWS AND DEVELOPMENTS – Nov 2002 to date

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[This page lists news and developments in global

securitisation markets – please do visit this page

regularly as it is updated almost on a daily basis. 

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Read on for chronological listing of events, most recent on top:

Previous newsletters

Sept-Oct 02 ...June-Aug 02 ...May 02 ...Apr 02 ...Mar 02 .…Feb 02 .…Jan 02 .…Dec., 01.…Nov, 01 .…  Oct.,2001.,Sep.,2001., Aug 2001… July, 2001, .June, 2001, May, 2001,…April 2001… March 2001 ..Jan. and Feb.2001  Nov. and Dec.2000 Sept. and Oct. 2000 July and August 2000 May and June 2000 April 2000  Feb and March 2000   
For all news added before 21 January, 2000, please click here   
For all news added before 9th November, please click here   
For News items added prior 3rd August, 1999, click here.

Pensive mood prevails at IMN gathering

The asset-backed market has suffered major jolts in the past few months. The latest news of sub-prime auto ABS originator AmeriCredit scaling up its losses due to revaluation of cashflows from auto securitization deals has not surprised many.

The mood at the recently concluded industry event organised by IMN was pensive, with undertones of tension. One participant is reported to have said: ""We are in a critical point of the ABS market. We are paying for the sins of the past. We were hiding behind growth and covering our mistakes."

The ABS market has passed through the largest bankruptcy of an ABS issuer – Conseco Finance. Recently, it also witnessed a case of mismanagement of cashflows in National Century fiasco.

Added to that is the regulatory oversight and increased accounting worries.

Looking forward, much depends on the health of the consumer, speakers at the conference said. But that outlook looks decidedly downbeat. If consumers — whose spending accounts for two-thirds of the U.S. economy — falter, it spells problems not only for the economy, but also for the returns on asset-backed securities, analysts said. "It's going to be a tough year for the ABS market. There's significant likelihood that the consumer in general will be much more distressed," said a panelist from Moody's.

South African legal dispute to put questions on securitisation structure

Over a very short span of development, the South African securitisation market has seen a failed securitisation conduit, as also failed securitisation originators. Soon, it might also see a court ruling either affirming or rejecting the transfer of assets to securitisation SPVs.

A company called Siltek that securitised its assets has gone bankrupt, and its liquidators have pleaded that the transfer of assets to securitisation SPV was a fraud on creditors and the taxmen. The bank that bought the securities in the deal has been issued summons.

The deal was structured by a securitisation conduit called Mettle. The book debts of Siltek were transferred to a vehicle called Xavier.

Also challenged by the liquidator is the tax impact of the transaction, particularly the issue of preference shares by the SPV to Siltek.

Comment On a first look, there seems to be nothing wrong in the structure of the deal. Originators do go bust, and that is why securitisation exists. Issue of preference shares to the originator as a first loss piece is also fine and cannot in any way be dubbed as a tax dodging device.

Germany takes the synthetic route to CLOs

The German Structured Finance public term market doubled its volumes in 2002 compared with 2001. However, looking at the synthetic issuance volume, the notional values nearly tripled over the previous year in 2002.

A recent S&P report provides data about cash versus synthetic deals in Germany. The total volumes (including notional values of unfunded deals) added up to USD 39.3 billion in 2002 compared with $19.6 billion in 200. Howeever, unfunded volumes tripled to $29.7 billion in 2002 compared with $10.6 billion a year earlier. Germany takes a staggering 72% share of the total European unfunded issuance.

From the end of 1999, almost all German CLO, RMBS, and CMBS transactions have been synthetic in nature. The market for these types of transactions was nonexistent prior to 1999 yet now stands at $29.7 billion.

Besides the regular KfW-assisted deals, there were several new features in 2002:

  • There was a deal called Gelt 2002-1, the first synthetic leasing ABS transaction. It was arranged by DZ Bank AG.
  • Non-SPE synthetic structures are increasingly becoming common: the first such deal in Germany was a synthetic RMBS transaction, Building Comfort 2002-1, was arranged by Bayerische Hypo- und Vereinsbank AG (HVB)

SME loan CLOs gather speed in Europe

CLOs backed by thousands of small business loans became a popular asset class in several European countries. Partly with government support, this might be the way to lend to small businesses.

Part of these CLOs were based on the cash structure, but of late, banks have been stressing more on the transfer of risks than raising of liquidity and going for synthetic structures.

A whole lot of such SME loan CLOs have emerged from Germany, where KfW runs a program targeted at SME lending called Promise. [See below for more]. CLOs under the Promise template have become a regular feature in Germany. However, Germany is not the only country to have SME loan CLOs. There have been cash funded deals from Spain, the Netherlands, and UK. The Spanish transaction is also based on a partial guarantee from the government.

An S&P report gives a list of SME CLOs in Europe as under:

 
European CLOs of SMEs Transactions
Transactions rated by Standard & Poor's   Originator   Closing date   Maturity date   Issuance (Mil. €)   Funding   Note collateral  
   Germany*
CORE 1999-1 Ltd. Deutsche Bank AG March 1, 1999 March 17, 2009 2,297 Fully funded cash flow SME loans
CORE 1999-2 Ltd. Deutsche Bank AG June 30, 1999 April 30, 2004 1,216 Fully funded cash flow SME loans
GELDILUX 1999-2 Ltd. Bayerische Hypo- und Vereinsbank AG Sept. 16, 1999 Sept. 30, 2003 750 Fully funded synthetic Pfandbriefe, MTN program, and cash deposit
CAST 1999-1 Deutsche Bank AG Dec. 6, 1999 Dec. 31, 2008 392 Partially funded synthetic Pfandbriefe and credit-linked notes
CAST 2000-1 Deutsche Bank AG June 30, 2000 June 20, 2009 340 Partially funded synthetic Pfandbriefe and credit-linked notes
CAST 2000-2 Deutsche Bank AG Dec. 8, 2000 June 20, 2009 220 Partially funded synthetic Credit-linked notes
Promise-I 2000-1 PLC IKB Deutsche Industriebank AG Dec. 19, 2000 Feb. 5, 2010 213 Partially funded synthetic Schuldscheine
Promise-K 2001-1 PLC Dresdner Bank AG May 22, 2001 June 22, 2008 58 Partially funded synthetic Schuldscheine
Promise-Z 2001-1 PLC DZ Bank AG Deutsche Zentral-Genossenschaftsbank Aug. 15, 2001 April 27, 2011 137 Partially funded synthetic Schuldscheine
Promise-I 2002-1 PLC IKB Deutsche Industriebank AG March 26, 2002 Sept. 5, 2009 4,170 Partially funded synthetic Schuldscheine
Promise-A-2002-1 PLC Bayerische Hypo- und Vereinsbank AG March 28, 2002 July 28, 2012 1,620 Partially funded synthetic Schuldscheine
GELDILUX 2002-1 Ltd. Bayerische Hypo- und Vereinsbank AG May 27, 2002 June 17, 2007 3,000 Fully funded synthetic Pfandbriefe and cash deposits
Promise-C 2002-1 PLC Commerzbank AG Nov. 5, 2002 Oct. 28, 2010 119 Partially funded synthetic Schuldscheine
   The Netherlands
SMILE Securitisation Company 2001 B.V. ABN AMRO Bank N.V. Dec. 13, 2001 Nov. 22, 2027 5,000 Fully funded cash flow SME loans
   Spain
Fondo de Titulización de Activos BBVA-2 Banco Bilbao Vizcaya Argentaria, S.A. Dec. 6, 2000 Jan. 21, 2019 900 Fully funded cash flow SME loans
   U.K.
Melrose Financing No. 1 PLC Bank of Scotland Feb. 27, 2001 Feb. 15, 2011 1,103 Fully funded cash flow SME loans
*CORE 1998-1 Ltd. was redeemed for the full amount in November 2002.

Links For more on CLOs, see our page here.

Spain: 2002 was brilliant, and 2003 is promising

Securitisation activity performed brilliantly in Spain in year 2002, with volumes (including Spain-related assets for cross-border issuances) increasing some 70%. A recent S&P special report says that this is by far the largest volumes achived in Spain. Over just 4 years, the volume of issuance in Spain has quadrupled.

Spain is the 5th largest market in Europe – followed by UK, Italy, Germany and the Netherlands.

In 2002, the growth was pulled mainly by repeat issuances from originators who have already tasted the benefits of securitisation. Besides, securitisation of small business loans, known as PYMEs in Spain, became a strong asset class. However, like in many other countries, RMBS is still the larget component of Spanish ABS.

On the legislative front, the 2002 Spanish Finance Act was passed last November, which created mortgage transfer certificates ("certificados de transmisión de hipoteca"). These, together with mortgage participations, now allow originators to securitize both conforming and nonconforming loans through a fondo de titulización de activos.

According to the S&P report, For the same reasons as in 2002, the Spanish securitization market in 2003 will continue to grow at a brisk pace. Some repeat originators are already working on transactions for the first quarter, others will go to market later in the year. There will be recurrent issuances from established originators and new types of transactions will be structured. Some corporate originators are already looking into the possibility of taking advantage of this source of financing.

Links See also our country page on Spain here.

ISDA and other bodies jointly respond to Basle securitization paper

ISDA, American Securitization Forum, European Securitisation Forum, and International Association of Credit Portfolio Managers recently jointly commented on the second BIS paper on securitization. The second working paper was issued in October 2002 by the Secu-ritisation Group of the Basel Committee on Banking Supervision.

The highlights of the joint response are as under:

  • The proposed risk weightings for lower rated tranches under the RBA remain higher than justified, which will cause significant market disruption. As such, the bodies recommended that the Securitisation Group return to basic principles by aligning the RBA more closely with the underlying credit function and the actual practices of banks and by harmonising ABS risk weights with the Committee’s proposals for corporate positions.
  • Regulatory capital requirements for synthetic securitisations remain too high and dis-criminate against synthetic transactions as compared with traditional securitisations.
  • For super-senior positions in synthetic securitisations, there should be no need to seek external credit protection as the same is unwarranted additional cost for a position at which there is no appreciable risk.
  • With regard to revolving securitisations, the requirement that there be a pro rata sharing of interest, principal, expenses, losses and recoveries based on the beginning of the month balance of receivables out-standing is redundant and too restrictive and should be eliminated.
  • In addition, the 100% credit conversion factor (80% for controlled amortisation) for committed retail and all non-retail exposures implies that no risk is transferred to investors. This requirement should be reduced significantly or at least explained, as it is clear that risk is indeed transferred.

Links For more on regulatory issues in securitisation, see our page here.

New accounting rules to hurt several deals

According to accounting experts, the new US accounting rules on consolidation will hurt several deals including asset backed commercial paper conduits, several CDOs and other complex structured finance transactions.

For full text of the story on Reuters, click here.

On this site, we have posted a presentation by Deloitte Touche on the impact of the new rules, also containing an implementation guide. Martin Rosenblatt of Deloitte, one the World's best experts on securitization accounting, has kindly contributed this presentation. The presentation is available on the premium section of the website. To get access to the premium content, join our premium list here.

National Century investors to lose about 2/3rds

According to reports in US press, National Century will complete winding up in next about 4-5 months, and the investors in the asset-backed bonds may be forced to write off at least 2/3rds of their investments. Of the USD 3.3 billion owned by the company, it is expected to realise only about USD 1.2 billion of assets at most.

In the meantime, investors have already started writing off their investments. Some National Century bondholders have already written off most of the value of their investments. Credit Suisse, which underwrote most of National Century's bond sales, has written off 83 percent of its holdings of National Century debt. The bank said in November its $258 million of securities were worth $44 million, citing "massive fraud" by National Century.

Ambac Financial Group Inc., has also reportedly written down 80 percent of its $174.5 million investments in National Century bonds, more than the 70 percent figure it announced in November.

Links For earlier news items on National Century, see here. For more in the securitization hall of shame, see our page here.

Taiwan joins ABS fray:
First financial ABS deal approved

Taiwan's Ministry of Finance said Monday it has approved the island's first financial asset-backed securities product, which will be issued by Land Bank of Taiwan and comprise assets from the Industrial Bank of Taiwan. Government-owned Land Bank will issue two tranches of bonds totaling NT$3.65 billion (US$1=NT$34.560), backed by 41 loans belonging to Industrial Bank and the loans' guarantees, the ministry said. The first tranche, totaling NT$2.81 billion, will have a maturity of three years and seven months, and will carry a fixed coupon of 2.8%, while the subordinated tranche is worth about NT$840 million, the ministry said. The bonds will be privately placed and the subordinated tranche will be held by Industrial Bank, the ministry said.

The ABS deal included assets from 13 industries, such as semiconductor, communications, construction, retail, flat panel display and compact disc manufacturing, the ministry said. Each of the industries account for between 0.6% and 25% of the total assets, the ministry said. The ministry said the average annual return on the assets is 4.04%.

Taiwan Ratings Corp. will rate the first tranche of the asset-backed securities. Industrial Bank began working last year with SG to develop products for Taiwan's nascent asset-backed securities market.

CDOs in blunderland?
Investor to sue CDO managers for alleged mismanagment

According to a news item on on portal of Risk Waters, Jersey-registered collateralised bond obligation (CBO) investor Beaford is suing US investment bank Morgan Stanley and French insurer Axa, along with a number of its subsidiaries, for failing to properly manage three CBOs between 1996 and 2002. Morgan Stanley will contest the allegations, in what could prove a landmark case for CBO arrangers and managers.

The CDO landscape is littered with defaults and downgrades of late. Many of these CDOs contained blind portfolios of obligors, or otherwise, the investors had placed a total reliance on the CDO managers' experience and discretion. It is not unlikely that management of CDOs becomes an increasingly contentious issue in the structured finance market.

Beaford's objections significantly predate the more sophisticated managed CDO structuring taking place today. But the issue of how arrangers and CDO managers deal with investors that have seen significant credit events erode the value of their investment pools is still ongoing.

Links For more on cash and synthetic CDOs, see our page here.

Standard and Poor's bullish about 
Spanish securitisation market

The Spanish securitization market is set to show at least 30% growth in the year ahead after an impressive 2002 performance, according to an article by S&P."2002 was by far the most impressive year for the Spanish securitization market to date," the rating agency said. "Volumes were driven by a combination of repeat issuance and new entrants, which bodes well for future growth."

The Spanish securitization market closed 2002 70% higher at $18.4 billion compared with $10.6 billion a year earlier. A total of 27 transactions closed compared with 18 in 2001. Once again, RMBS was the dominant asset class. Year-end 2002 volumes came in at $10.8 billion, more than double the $5.7 billion seen a year earlier, representing 60% of overall Spanish issuance. A total of 16 transactions closed compared with 10 in 2001 and all were executed on a fully funded basis.

Talking of the prospects for this year, the S&P report says: " While mortgage lenders will remain the market's staple over the course of 2003, other institutions are now actively looking at securitization as a financing tool".

Given the importance and recent growth of synthetic transactions in the European market as a whole, in 2003 Standard & Poor's expects developments in the regulatory and legal frameworks for synthetic securitizations for both Spanish originators and domestic investors, the S&P report commented. "There are restrictions on the issuance of these types of transactions and the effect of such deals on financial institutions' capitalization ratios needs to be clarified," it said. "Additionally, some investors are prohibited by the regulatory authorities from investing in this type of security." In 2003, it is expected that that government guarantee program for SME securitizations will be continued, with a funding allocation that at least matches that of last year.

Link For more on securitisation in Spain, see oure page here.

The promise of Promise to cover Europe

German developmental body KfW has declared intents to cover transactions across Europe as it recently launched its first non-German synthetc securitisation deals to cover originations in Austria.

KfW runs program templates called Promise and Provide, wherein it assists German banks to syntheticall securitise RMBS and SME loan deals. The risks are bought from German banks by KfW which in turn transfers the same to capital markets by issue of credit-linked notes. So far, these programs were limited to German banks.

Promise Austria-2002 Plc.was the first non-German issue toward end of last year.

The popularity of the Promise and Provide programs is evident from the surge in their volumes in 2002: 11 transactions adding up to EUR 19 billion have been concluded under the two programmes in 2002, which is more than double the total amount in the two preceding years combined (altogether nearly EUR 9 billion). A KfW press release says: "KfW will focus not only on standard transactions but on the securitisation of portfolios of smaller institutions, that is, it will apply the multi-seller prototype more frequently. In addition, KfW is prepared to make its securitisation platforms available as a standardised instrument to suitable institutions with appropriate loan types in other European countries. As is the case with securitisations in Germany, it could assume the role of a neutral intermediary for European banks as well. "

Links For more on securitisation in Germany, see our page here. For more on synthetic CDOs, see our page here. The Promise transaction is discussed in Vinod Kothari's training courses on CDOs. For details, see here.

FASB's consolidation rules expected shortly

On coming Wednesday, FASB is holding another meeting to resolve some remaining issues relating to the draft of the rules on consolidation of certain special purpose entities. Thereafter, the final rules should follow.

The term "special purpose entities" is NOT used in the draft. Instead, the draft uses the term Variable Interest Entities (VIE).

Entities are separated into two populations: (1) those for which voting interests are used to determine consolidation (this is the most common situation) and (2) those for which variable interests are used to determine consolidation (the subject of this Interpretation).

An entity shall be treated as a VIE and subject to consolidation according to the these rules, if, by design, either of the following conditions exists:

  • The total equity investment at risk is not sufficient to permit the entity to finance its activities without additional subordinated financial support. That is, the equity investment at risk is not greater than the expected losses of the entity. "Equity investment at risk" is not just legal equity carrying voting right but the first loss or residual economic interest class of the enterprise.
  • The equity investors lack any one of the following three characteristics of a controlling finncial interest: 
    (1) The direct or indirect ability to make decisions about an entity's activities through voting rights or similar rights. The investors do not have that ability if no owners hold voting rights or similar rights (such as those of a common shareholder in a corporation or a general partner in a partnership). 
    (2) The obligation to absorb the expected losses of the entity if they occur. The investor or investors do not have that obligation if they are directly or indirectly protected from the expected losses or are guaranteed a return by the entity itself or by other parties involved with the entity. 
    (3) The right to receive the expected residual returns of the entity if they occur. The investors do not have that right if their return is limited by the entity's governing documents or agreements with other variable interest holders or the entity.

Highlights of the draft of the interpretation are avalable here.

We will continue to report developments as they take place.

Links For more on accounting issues related to securitisation, see our page here

Singapore securitisation market looks forward to more activity

The securitisation market in Singapore is looking forward to increased activity in 2003, says a report by S&P. Until now, the potential for growth in Singapore's securitization market has been restrained because issuers have had access to less expensive funding from Singapore's banking system. Recently, however, the securitization market in Singapore has begun to realize its growth potential, due in part to its innovation, and 2003 could be something of a turning point for the area.

During 2002, Singaporean securitisation market was predominated by CDOs and CMBS deals. Of the 4 deals that S&P rated, there was one global collateralized debt obligation (CDO) transaction managed by United Overseas Bank Ltd. (UOB) Asset Management. The other transactions were property-related and sponsored by the leading Singapore developers, CapitaLand Ltd. and Keppel Land Ltd.

As to the potential of CDO market in Singapore, S&P official says Singapore's asset managers have been quick to realize how CDOs complement their traditional fund management business and form a good platform for expanding and building experience and establishing a track record. Other Asian-based asset managers may follow in their footsteps.

Besides CDOs and CMBS, S&P expects more activity in synthetic RMBS and consumer finance segment as well.

Links: For more on securitisation market in Singapore, see our page here.

US senate committee attacks structured finance

The U.S. Senate Permanent Subcommittee on Investigations : Four Enron Transactions ((Fishtail, Bacchus, Sundance, and Slapshot) Funded and Facilitated by U.S. Financial Institutions has submitted its report on 2 Jan 2003. The report attacks structured finance transactions and has called for penal action against financial intermediaries that help public companies produce misleading financial reports by means of deceptive financial products or transactions.

The transactions in question are Fishtail, Bacchus, Sundance, and Slapshot. These transactions related to Enron’s new business venture in pulp and paper trading, and according to the sub-committee were actively assisted by JPM and Citibank's SSB.

Major recommendations of the sub-committee include a review of structured finance deals by banks. The Federal Reserve, OCC, and SEC should immediately initiate a one-time, joint review of banks and securities firms participating in complex structured finance products with U.S. public companies to identify those structured finance products, transactions, or practices which facilitate a U.S. public company’s use of deceptive accounting in its financial statements or reports. By June 2003, these agencies should issue joint guidance on acceptable and unacceptable structured finance products, transactions and practices. By the end of 2003, the Federal Reserve, OCC and SEC should each take all necessary steps to ensure the financial institutions they oversee have stopped participating in unacceptable structured finance products, transactions, or practices.

It calls for stricter examination of structured finance transactions by bank examiners. It expects routine examiners to evaluate a bank’s structured finance activities to determine whether such activity appears to constitute a violation of the SEC policy and, if so, to declare that activity also constitutes an unsafe and unsound banking practice.

Full text of the 41-page report is available here.

Indian securitisation law passed

The upper house of the Indian Parliament passed the securitisation bill, which has been understood more as a law related to non-performing assets. All discussions in the house related to the non-performing assets part.

Now that the Bill has been cleared by both the houses, the only legal formality is the assent of the President. Normally that should only be a matter of days.

Please see our story below for more details and links.

Bankruptcy of National Century smears more tar on ABS business

Off balance sheet funding was already a dirty word, and now, asset-backed securities might also start straining the eyebrow. National Century Financial Enterprises that filed for bankruptcy recently (see also our story below) undoubtedly puts a question or two on the balance of multi-agency surveillance that ABS transactions work on. After all, it is being alleged that bonds to the extent of more than USD 1 billion were not backed by any assets at all.

After all, all corporate financings are asset-backed at the end of the day – because if the corporate does not have any assets, the liabilities have no meaning. But what has always been, and should continue to be, unique to ABS is the predominant asset backing that the bond investors get. To constantly monitor the asset backing, several independent agencies are brought in – trustees, rating agencies, auditors and so on. But National Century case, like similar cases in the past, must ultimately lead to some of these agencies sharing responsibility.

Thus, US financial press is justified in questioning, as Forbes does, in its article titled Why Wasn't NCFE's Collapse Predicted Sooner? by Seth Lubove, dated Nov 21. The articles contends, as is perhaps a fact, that as recently as in August, Moody's had affirmed its ratings for the securities of National Century.

Bank One, the trustee for the bonds, had alleged National of a "systematic trickery". An article in New York Times says: "Investors in asset-backed securities are still questioning how bonds that had carried a top credit rating could now be worth just a fraction of their face value. Moody's Investors Service rated National Century's bonds AAA until Oct. 25. Credit Suisse First Boston underwrote the bonds, and J. P. Morgan Chase had two bankers on the National Century board, including Hal Pote, head of the audit committee. Deloitte & Touche audited the books. Both Bank One and J. P. Morgan were bond trustees."

A story in Washington Post titled A Mystery Over Missing Funds went into the personal life style of the bosses of National Century.

Links For more sad episodes on asset backed securities, see our page here.

Pakistan central bank issues securitisation regulations

The State Bank of Pakistan has recently formulated reguatory standards for capita lrelief on securitisation deals. The rules dated 14th Nov allow banks and depository financial institutions to securitise assets through SPVs, speling out the requirements, prudential standards and capital relief conditions.

Several safeguards have been put in place which are reflective of the prudential standards in place in most other countries by banking regulators. The originating bnak is not allowed to hold equity in the SPV, nor to make it out that the SPV belongs to the bank.

The guidelines provide that banks can securitize their assets relating to lease financing (with acknowledged assignment of lease rental proceeds), mortgage financing and toll financing (for infrastructure developmental projects). Other assets may be securitized by banks with prior approval of State Bank, on a case to case basis. The regulations further provide that a fixed amount of consideration for the securitized assets must be received not later than the time of the transfer of the assets. This is, in fact, contrary to the market practice whereby banks retain an interest in securitised assets by way of a deferred sale consideration.

The SEC's rules on securitisation have been in place for quite some time, though the level of activity on securitisation is still quite limited.

Links For full text of the Prudential guidelines, click here. For more on securitisation in Pakistan, including a recent article on the state of the market, click here. For text of Pakistan SPV rules, click here

Indian securitisation law makes headway

The combo piece of Indian law on securitisation which combines provisions on enforcement of security interests by bankers has been passed by the lower house of the Parliament, Lok Sabha or house of commons and would most likely be passed soon by the upper house as well. It is, thus, expected that it would become law very soon.

The Indian law is a curious mixture of three unrelated things – securitisation, asset management companies and enforcement of security interests on loan defaults to banks. From the proceedings in the House during the discussion on the bill, much of the debate was centered on the provisions relating to enforcement of security interests. The Press has also generally coloured securitisation bill as a law relating to non-performing assets.

As far as securitisation transactions are concerned, the Bill did not, in its Ordinance form, help or hinder much See our earlier comments/ article on this issue here. Apparently some amendments have been made at the time of its introduction in the Lok Sabha.

Links For proceedings in the Parliament while discussions on the Bill took place, click here. See our India page here. The text of the original Ordinance law is here

Future flows have been safer than corporate finance: S&P

Enriched by experience of recent sovereign problems in Argentina and impact on future flow transactions, rating agency S&P says emerging market future flows are safer than corporate finance.

Future flow structures provide some protection against sovereign- and corporate-related risks particular to emerging markets. However, no future flow structure (with the exception of one benefiting from a full financial guaranty) can completely insulate against all risks, particularly sovereign risks. Ratings assigned to future flow structures are dependent on a company's ability to generate future receivables and the level of sovereign risk mitigation provided by the structure. This dependency creates a linkage with corporate and sovereign ratings that may require rating adjustments that are commensurate with the rating adjustments that occur on the underlying corporate or sovereign rating.

While ratings on future flows are strongly linked with the local currency rating of a corporate, it is the sovereign rating ceilings that future flow transactions seek to pierce.

A lowering of a sovereign foreign currency rating will not automatically result in a lowering of a future flow rating because Standard & Poor's does not view the sovereign foreign currency rating as a direct link to the rating on a cross-border future flow transaction. The decision to lower or affirm a future flow rating following a sovereign rating change requires a review of the factors that led to the sovereign rating change and how these factors affect the probability of sovereign interference in the future flow structure. The decision to adjust a future flow transaction rating will depend on an assessment of two factors: the extent to which the structure protects against direct sovereign risk, and the extent to which the company is able to isolate its operations from direct and indirect sovereign risk.

Links For more on future flows, see our page here.

Health care securitization company's goof up spills: causes bankruptcy

An apparently small issue in one section of the market can snowball into larger issues of due diligence and fiduciary responsibilities at a time when larger bankruptcies have already made it a sensitive issue.

National Century Financial Enterprises, an Ohio-based health care receivables securitization company was recently found wrongly tapping into reserve funds to buy new accounts and was brought to book by due diligence auditors. In response, National Century failed to pay for the health care bills it had securitized. National Financial had arranged more than USD 3 billion of financing for health care companies.

The result is a major chaos that is seeming spilling. So much so that more thant one health care company has already filed for bankruptcy protection. PhyAmerica Physician Corp., the Durham company that runs nearly 200 hospital emergency rooms in 29 states, has filed for Chapter 11 protection.

There were also reports in US press that Med Diversified Inc., a home health-care provider, announced that its Tender Loving Care Health Services Inc. subsidiary had filed for bankruptcy protection. In addition, Med Diversified said it plans to seek a damage award of up to $1 billion in its planned lawsuit against National Century's service providers. The company said it planned to file complaints against Bank One Corp. and J.P. Morgan Chase & Co., trustees of some of National Century's bond funds, as well as National Century auditor Deloitte & Touche LLC.

FASB reaching finality on SPE consolidation standard

After marathon deliberations spanning over several weeks, the US standard setters are finally reaching a stage where the final interpretation on consolidation of SPEs will be issued soon. At the meeting yesterday, the Board instructed the staff to draft the final rule.

According to reliable sources, the following are the main conclusions reached during the discussions:

1. Special purpose entities are more appropriately called variable interest entities, as it is now getting increasingly clear that the consolidation rule will not be limited in application to SPEs only. While applying consolidation rules, it will be necessary to decide whether consolidation will be based on voting interests or variable interests.

2. In case of new variable interest entities, the new Interpretation would be effective immediately. For all existing entites, the Interpretation would be effective as of fiscal periods beginning after June 15, 2003, (i.e. the third quarter of next year for calendar year companies). There will be no grandfathering provisions. Restatement of prior year financial statements would be permitted.

2. In case of QSPEs under FAS 140, it was decided that it would be better for all parties involved in a QSPE to adopt the financial components approach rather than full consolidation of the entity, with the only exception being if a non-transferor had put himself in a position that would have precluded the transferor from achieving sale accounting. In other words, the components approach, which is the general theme of the securitization accounting standard, would continue to apply as a consolidation would go against the very theme. here was a caution from the board chairman that the attributes of a qspe have to be met and that the board would resist any efforts to broaden the definition of a q to accommodate other transactions.

In view of the major immunity granted to QSPEs, the Board would insist that there are no deliberate attempts to broaden the scope of QSPEs over what is contained in FAS 140.

3. In determination of the key question as to whether to apply the variable interest approach, parties should first determine the entity has any identifiable "decision maker". A decision maker is any party that has the authority to purchase OR sell assets or makes other operating decisions that significantly affect the revenues, expenses, gains, and losses of the variable interest entity. If there is a decision maker and that party either holds variable interests that would absorb a majority of the expected losses or holds variable interests that allow the decision maker to obtain a majority of the residual benefits from the entity's operations, that party is the primary beneficiary. If, based on these criteria, the decision maker is not the primary beneficiary, then other parties to variable interest entities should determine whether their variable interests will absorb a majority of the variability, focusing first on expected losses if they were to occur and then on whether they are entitled to a majority of the residual benefit, if any.

The discussions have also made some rules relating to consolidation of conduit entities.

Links For more on accounting for securitisation, see our page here. For more on SPEs, see our page here.

Malaysia sees first primary market CLO

The first primary market CLO was introduced in Malaysia a couple of days ago by Anfin.

While a traditional CLO is made of loans originated by a bank or banks, which are bought and securitised by the CLO, a primary market CLO is one which itself gives loans to borrowers, and funds itself by issuing securities. Primary market CLOs have been operating in Korea for sometime.

Affin Bank and Nomura Advisory Services (M) Sdn Bhd wrapped up a collateralised loan obligation (CLO) deal that would see the 25 companies from 16 different industries get access to RM1bil from the capital market through the sale of new loans to a special purpose vehicle. Technically, under Malaysian SC guidelines, since there has to be a sale of the loans to an SPV, it seems the bank will give the loans and immediately sell them off to the SPV.

There are two remarkable features of the CLO – one, the loans are not seasoned, and two, the level of subordination in the transaction is only 10% whereas earlier CDOs from Malaysia have had far higher levels of subordination.

This is probably due to the ratings of the borrowing companies: the amounts of money borrowed by the 25 companies range between RM25mil and RM45mil and Malaysian Rating Corp Bhd has rated each company. The minimum credit rating of any of the 25 companies involved in the deal is BBB.

Vinod Kothari comments: on the face of it, this is like each of the 25 borrowers going together to the capital market. The role of the SPV and that of the arranger is minimal – that of merely putting up the whole show together. The subordinated investment also, in all likelihood, will be bought up the borrowers themselves, which, in essence, will mean the borrowers get 90% cash funding for what is their loan on paper.

It is not clear from the report whether the loans are secured or unsecured. If the 10% equity in the transaction has not been put up by the arranger, then this type of transaction for unseasoned, unsecured loans opens avenues for subprime lending trough capital market vehicles. That securitisation can be used as a device of promoting lending which banks would hate to keep on their balance sheets is an often-aired criticism of securitisation, and transactions like this give strength to this belief.

The regulators should view this transaction not as a securitisation, but as direct debt issuance by the end borrowers.Besides, subordination is meaningless if it held back by the borrowers themselves. Of course, who will be holding the subordinated investment is not clear from the press report.

Links For more on Malaysia, see our page here. For more on CLOs, see our page here.

Accounting firm to face USD 2 billion claim on securitization accounting issue

US regulators on Friday filed a USD 2 billion suit against accounting firm Ernst and Young for failing to disclose wrong accounting of retained interests of failed thrift Superior Bank that was ordered to be closed last year for securitization accounting lapses.Evidently, this is a big jolt for securitization and securitization accounting, after Enron.

The claim is directly connected with accounting for securitized interest. Superior Bank, which was aggressive in securiitizing subprime loans, continued to report residual interests at inflated numbers, though its first loss in such loans exceeded three its own equity.

A report on Financial Times says a US banking regulator on Friday filed a $2bn suit against Ernst & Young for its role in a bank failure, saying the firm covered up improper accounting work so it could "buy time" for the sale of its consulting arm to Cap Gemini of France. The suit filed by the Federal Deposit Insurance Corporation stems from the failure of Superior Bank, based in the Chicago suburb of Hinsdale, Illlinois, in July 2001. The failure cost the FDIC $750m.

Recently, US investigators had submitted a report on Superior Bank failure.

Links For more on the Superior Bank case, see our page here. For more on securitization accounting,see our page here.