Bankruptcy Remoteness and Incentive-Compatible Securitization

Journal of Legal Studies

The interface between securitization law and insolvency law is the central legal concern in designing securitization transactions. The complex structure of these transactions under the Securitization Act of 2004 should be understood within a specific legal context: the possible bankruptcy, insolvency, or liquidation of the “originator” (i.e. the entity requiring securitization financing), which may jeopardize the claims of asset-backed security investors. It is a solution to the risk that security holders with claim to specific assets may end up being subordinated to the interest of preferred creditors and ranked pari passu with, or even lower than, unsecured creditors in a rehabilitation or liquidation proceeding. Under present law, this risk may arise through the “substantive consolidation” and “clawback” provisions of the Financial Rehabilitation and Insolvency Act (FRIA) of 2010. This risk is mitigated through the creation of a bankruptcy remote vehicle and true sale of receivab...

2013

Conventional wisdom about bankruptcy-remote transactions tends to be grounded on two assumptions. First, bankruptcy-remote transactions are a highly specific, and borderline case, of anecdotal relevance for bankruptcy policy. Second, bankruptcy-remote transactions are either a welcome or dangerous innovation, with little scope for nuances. This article tries to examine the relationship of bankruptcy-remote transactions and bankruptcy policy in a new light, using precedent and scholarly analysis from different jurisdictions. First, the article establishes the different ideas encompassed by the concept of ‘bankruptcyremoteness’, and puts bankruptcy-remote structures in the broader context of bankruptcy policy. Second, the article uses the ‘vehicle-shielding’ concept of bankruptcy-remoteness and tests traditional legal threats such as avoidance, re-characterization or substantive consolidation, seeing whether their academic importance from an academic perspective is matched by their relevance as a threat in practice. Third, the article analyses the instances where vehicle shielding has actually been, or can be, put in jeopardy, and the reasons for it. The article concludes that bankruptcy-remote transactions should cease to be considered a marginal case for bankruptcy law. Rather, the tensions between different goals, at the core of bankruptcy policy, are very present in the context of these transactions, only such tensions materialize in ways different from that those originally envisaged. Academic analysis should adjust to this complex reality, rather than the opposite.

Economic Theory, 2006

This paper studies the institution of bankruptcy when exclusive contracts cannot be enforced ex ante, e.g., a bank cannot monitor whether the borrower enters into contracts with other creditors. The institution of bankruptcy enables the bank to enforce its claim to any funds that the borrower has above a fixed "bankruptcy protection" level. Bankruptcy improves on non-exclusive contractual relationships but is not a perfect substitute for exclusivity ex ante. We characterize the effect of bankruptcy provisions on the equilibrium contracts which borrowers use to raise financing.

Most insolvency jurisdictions provide several mechanisms to reverse transactions entered into by a debtor prior to the commencement of the bankruptcy procedure. These mechanisms, generally known as claw-back actions or avoidance provisions, may fulfil several economic goals. First, they act as an ex post alignment of incentives between factually insolvent debtors and their creditors, since the latter become the residual claimants of an insolvent firm but they do not have any control over the debtor´s assets while the company is not yet subject to a bankruptcy procedure. Thus, avoidance powers may prevent or, at least, reverse opportunistic behaviors faced by factually insolvent debtors prior to the commencement of the bankruptcy procedure. Second, these devices may also prevent the creditors’ race to collect when insolvency threatens. Therefore, the existence of avoidance actions may reduce, at an early stage, the ‘common pool’ problem that bankruptcy law seeks to solve. Third, avoidance powers also protect the interests of both the debtor and its creditors when the former is facing financial trouble and some market participants want to take advantages of this situation. Finally, the avoidance of pre-bankruptcy transactions can also be helpful for the early detection of financially distressed debtors, so it may encourage managers to take corrective actions in a timely manner. As a result of these goals, the existence of avoidance powers can create several benefits. However, the use –and even existence– of avoidance actions is not costless. On the one hand, the use of these actions may generate litigation costs. On the other hand, the existence of these mechanisms may harm legal certainty, especially in countries in which it is relatively easy to avoid a transaction, usually because bad faith is not required, the look-back period may be too long, or no financial conditions are required to avoid a transaction. Therefore, insolvency legislators should carefully deal with these costs and benefits in order to make sure that the existence of avoidance powers does not do more harm than good. On the basis of this exercise, this paper analyzes, from a comparative and functional approach, the optimal way to design claw-back actions across jurisdictions.

This article exposes and explores a puzzle at the heart of the current economic crisis: The surprising under-use, and increasing misuse, of Chapter 11 of the United States Bankruptcy Code, the principal legal system for salvaging troubled businesses. The answer offered here: The rise of the shadow bankruptcy system. "Shadow bankruptcy" describes the severely under-regulated non-bank financial institutions (e.g., hedge funds, private equity funds and investment banks) that increasingly dominate and manipulate Chapter 11 reorganizations. Like the "shadow banking" system for which it is named, shadow bankruptcy thrives on and promotes opacity and undisclosed, possibly perverse, incentives. Shadow bankruptcy players exploit regulatory gaps to conceal their identities and motives, and so increase the uncertainty, complexity - and thus the cost - of negotiations to restructure distressed firms; they burden judicial resources through internecine fights of little benefit...

Journal of Financial Intermediation, 2012

We consider the role of the nonrecourse financing of securitization by a financial institution (FI). Our model suggests that even though the FI has the opportunity to provide liquidity support afterward, it is optimal for the FI to use the nonrecourse financing of securitization initially, because the nonrecourse security makes liquidation of the original asset more attractive for an FI that knows that the original asset is bad. However, our model also predicts that the nonrecourse financing of securitization, together with short-term maturity financing, forces the financial system to perform inefficiently in handling troubled loans and causes problems with inefficient liquidity support and overinvestment under certain conditions, despite the nonrecourse property of securitization. The theoretical results provide empirical implications for recent problems with securitized and structured finance in the United States and Europe.

Journal of Financial Economics, 2003

Debtor-in-Possession (DIP) financing is a unique form of financing that is granted to firms filing for reorganization under Chapter 11 of the US Bankruptcy Code. The legal provisions confer enhanced seniority on this financing. Opponents of DIP financing argue that such financing can lead to excessive investment in risky, (even negative NPV) projects. Alternatively, DIP financing can allow funding for positive NPV projects. Related to this is the question whether DIP financing facilitates a quicker resolution of the bankruptcy process. We model and examine these issues empirically. Using a large sample of bankruptcy filings, we find little evidence of systematic overinvestment. Firms receiving DIP financing are more likely to emerge from the Chapter 11 process. Interestingly, DIP financed firms have a shorter reorganization period, they are quicker to emerge and, also quicker to liquidate. The time spent in bankruptcy is further reduced when the DIP lender also has a prior lending relationship with the firm.