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In Part One of this article we took a look at some minimum recommendations for asset searches as a recovery medium. This discussion is based on the assumption that an asset search has already been determined to be sanctionable by, for example, a loan in default, a judgment that has been rendered, a court order obtained for the release of credit information in cases that are not clearly defined under the FCRA or extended consent given in a creditor/debtor or employee - employer relationship.

As Part One suggested, to properly identify a non-corporate subject, fraud examiners in non-law enforcement environments should take the following steps:

Obtain credit reports form the three major credit bureaus, per FCRA requirements

Obtain social security traces form the three major credit bureaus.

Obtain address update/credit report header information from the three major credit bureaus.

Match the information obtained through the independent sources to the information presented by the subject of the asset search.

Part One also provided suggestions for determining assets, including real property ownership, vehicular searches, vessel ownership, aircraft ownership, and banking information. Following is additional financial and business information that should be gathered, as well as liability-related data that impacts the subject s net worth in a recovery action.

Financial Information

Credit reports should be obtained from all major credit bureaus in order to completely determine the subject s credit worthiness or credit status. The Federal Home Loan Mortgage Association ( Fannie-Mae ) determined several years ago that a minimum of three national credit bureau repositories should be accessed to develop credit information prior to the qualification for a mortgage loan. While this is the standard, many companies do not provide this information in the pursuit of the asset search, and limit their request to only one major credit bureau. Some difficulty also exists with respect to the investigative community s lack of access to major credit bureaus, and many credit reports procured for investigative purposes are, in fact, procured through third- and fourth-party blind sources.

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Credit bureau-based research agencies are usually your best source for credit and financial information, as well as banking data, since their primary focus is in the credit community and understanding the limitations of the credit system, as well as knowledge of better access to the credit bureaus. This assures their continued success in operating their business.

Credit reports are important not only from the standpoint of providing identification information, additional addresses unknown to the client, and/or additional name variations in the form of aliases and/or akas, but they also provide an almost up-to-the-minute window of credit activity pertaining to the subject. This gives an impression of the subject s credit worthiness with respect to paying off the obligations the subject is currently faced with, not to mention, in many cases, his or her current whereabouts.

If an overwhelmingly favorable credit report is generated on the individual, chances are strong that the subject may be hiding assets, and a more aggressive collection and/or litigious pursuit is justified. If the individual s credit is in a pre-bankruptcy mode, chances are strong that the lack of discovery of available assets, which would affect the decision whether to charge-off or litigate the matter, is more easily palatable by the analyst.

Credit histories also contain adverse public records that may not have been developed throughout the course of the search, since the primary search parameters are on an exact name basis, and usually a specific jurisdiction basis only. The benefit of credit reporting agencies is that they procure information from large repositories, which contain information from jurisdictions that may not necessarily be germane to the original asset search request.

Corporate Affiliations

A determination of an individual s Officer/Director and/or Registered Agent status within a corporation is important to determine whether or not that individual may own stock in that enterprise, which can also be determined somewhat by a search of applicable public records within certain state jurisdictions. Some states do not provide public access to information with respect to stock ownership in corporations, yet many states do provide information with respect to the Officer/Director and/or Registered Agent status of an individual.

These searches are conducted at the Secretary of State level, and if the information is developed, certain other information with respect to the corporate enterprise may be provided. This includes the status of the corporation (i.e., good standing, suspended, or forfeited), the filing date and filing numbers of the corporate enterprise, and the subject s affiliation with the enterprise.

Many states require a secondary search level to be undertaken, which is the procurement of a Statement of Officers/Directors (ET SEQ.). There are database repositories, which provide President and/or Registered Agent information.
However, most searches that develop Officers and Directors must be conducted by hand at the applicable state jurisdiction.
Security & Exchange Commission files provide information on individuals who own more than 10% of a publicly held or publicly traded corporate entity. This search is conducted by database through a few private companies, and the searches are, by and large, undependable. The searches conducted directly through the SEC, which are extremely time-consuming, are the only valid searches to rely upon within this instance, and for all intents and purposes, inside information with respect to this file indicates that it is roughly 80% accurate and complete.

Partnerships

Searches for partnerships, be they limited partnerships, general partnerships, or specific partnerships, are conducted at the state and local jurisdictional levels, depending upon the state. In California, for example, searches at the California Secretary of State s Office identify LP-1 Statements, which are filed by the general partner of the limited partnership, and identify not only a name reservation, but also the name of the general partner of the business. This one-page form is not a full-blown search with respect to the partnerships that could pertain to an individual. The search conducted at the county or parish jurisdictional level would identify all general partnerships, which would be required to be recorded and limited partnerships which own real estate.

Uniform Commercial Code Filings

While a Uniform Commercial Code Financing Statement could be primarily viewed as a lien instrument, in the context of an asset search it should be addressed as more of an asset determinator. From the perspective of a UCCs relationship to an asset, when an individual is identified as a debtor, usually the debtor s status pertains to the securing of personal property for a business that may not have been disclosed throughout the course of additional research.

The age of the Uniform Commercial Code Financial Statement (they expire after five years in 48 states) would determine the extent of possible equity in equipment and fixtures, which may pertain to an individual and/or his business. In the case of a manufacturing facility, with depreciation schedules as they are, clearly a 4 -yearold UCC-1 on a piece of equipment that was purchased new at the time the UCC was filed would still retain equity, and thus constitute the discovery of a hidden asset which may be liquidated.

There is also a little known side of the UCC spectrum that is often ignored by examiners. This is searching for Secured Party status on a UCC-1. Clearly, this would be where the subject is, in fact, the Creditor on a UCC-1, with the implications of the discovery of this type of hidden asset quite obvious. Many states do not provide Secured Party status indexing, and thus, while it is not available in most states, it can be expected within certain state jurisdictions where the asset search will be based.

Sole Proprietorship Entities

A search should be conducted of the Fictitious Business Name and/or Assumed
Name Index of the applicable county or parish level of jurisdiction to determine if the subject s name appears as a Registrant, or Declarant of a Fictitious Business Name or Assumed Name Registration. The discovery of these items usually constitutes the discovery of additional bank account search possibilities, as well as entities and/or enterprises that may be unknown to the institution or client.

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Other Assets
In many instances, an individual could hold offshore assets in the form of trusts, partnerships, and so forth. A thorough search of applicable public records within the jurisdictions germane to the activities of the subject can often reveal information, which might lead to the discovery of these offshore assets. This particular type of asset search is highly sophisticated, and should be left specifically to agencies that have demonstrated high levels of competence in international asset research. The trustworthiness of the agency should be scrutinized before entering into a contract.

LIABILITIES

Litigation

A search should be conducted of the applicable jurisdiction to determine the extent of possible litigation involving the subject from both current and prior perspectives. A standard expectation for the research should be primarily an index review of the cases, which are outstanding, and if required, an analysis to determine the extent of pending lawsuits, which, as of the date of the report, remain unresolved. The search should be conducted on a ten-year basis, with the pending actions focused within a five-year window.

Federal, State, and Local Tax Liens

A search of the applicable jurisdictions should be made in the Recorder s Office to determine the extent of federal, state and/or local tax liens that might impact the net equity position of the subject. The existence of, for example, a $150,000 federal tax lien could wipe out all equity positions enjoyed by the assets discovered throughout the course of the research. Thus, the discovery of this liability is critically important in the assessment of the subject s net worth and ability to pay.

Bankruptcies

A search should be conducted through applicable jurisdictions germane to the residences and/or activities of the subject of the U.S. District Bankruptcy Court records for a ten-year period. The purpose of this research is to determine if the subject has established a pattern of filing bankruptcy, and/or possibly (in the event a bankruptcy is discovered) to scrutinize the assets and/or creditor s list to determine if there was fraudulent misrepresentation of assets and/or liabilities at the outset of the credit relationship with the institution.

Judgments

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Searches for Abstracts of Judgments, or Judgments, are usually conducted in the applicable jurisdiction s Recorder s Grantee/Grantor Indices. The searches should reflect primary judgments that were filed in the applicable jurisdiction by the court, and can be included in the research for pending and/or previous lawsuits at the court jurisdiction level. The Abstract of Judgment concept is that a particular judgment is extracted from the court records, and abstracted to the county jurisdiction, in order to encumber items of personal and/or real property which are identified, and are targeted for attachment and liquidation to pay off the claim. Plaintiff actions can be considered potential assets, and should not be overlooked.

Miscellaneous Liabilities

Additional searches should be conducted on a wide-area basis, both at the state level (Secretary of State) and the county or parish jurisdictional level, to determine if additional liabilities exist from the standpoint of judgments, tax liens, or county-based UCC Financing Statements. These identify specific types of assets such as crops, timber, and inventory. They are not usually found at the state level UCC search, and most agencies do not provide them unless requested to do so. This search is more specifically covered in the following Intelligence section.

Intelligence

In any good asset search, the fraud examiner should develop intelligence throughout the course of the research that would refer to information as specified above concerning additional names on real estate ownership, transferee names, and so forth. Additional modules of research that should be conducted include criminal histories on the individuals targeted within the asset search, as well as a search for evidence of known connections with other business enterprises and/or individuals with whom regular associations are engaged.

There are multiple methods of access to this type of information, not the least of which would constitute a surveillance (highly unusual in an asset search) which would identify the comings and goings of the subjects at hand, and would assist in the identification of the intelligence type of data. Additional information is developed with respect to the assets, in order to assist in the determination of the market value so that a net equity figure can be derived for one asset, or a group of assets, from all levels.

To delve into the methods of this type of discovery would be to get into the mind of the fraud examiner working the case, and shall not be addressed in this article, but should be included in an overview process in the Intelligence Section of any asset search report.

Some other instances where information would be helpful include areas where other tangible net worth is discovered, such as intelligence provided by developed sources close to the subject regarding stamp collections, gold coin collections, cash under a mattress, and so forth. This information is highly inconsistent within the context of a normal asset search, and, while hoped for, should not be expected as a matter of doing business with a particular fraud examiner.
Go to www.apscreen.com for the remainder of this article.

About the Author

Thomas C. Lawson, CFE, CII is President and Founder of APSCREEN International, the world s leading full service Consumer Reporting Agency since 1980. Lawson is called one of the real pros as he has helped to reshape laws including those for employment screening, permissible credit reporting, asset discovery and fraud examination. Tom is a Life Member of: ACFE, ASIS, SHRM, PIHRA, PNRRA, PRRN, CII, WAD, WIN, FCAOC and OCEMA.

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The return on the bank’s equity (ROE) is the net income divided by its average equity. The return on the bank’s assets (ROA) is its net income divided by its average assets. The (tier 1 or total) capital divided by the bank’s risk weighted assets a measure of the bank’s capital adequacy. Most banks follow the provisions of the Basel Accord as set by the Basel Committee of Bank Supervision (also known as the G10). This could be misleading because the Accord is ill equipped to deal with risks associated with emerging markets, where default rates of 33% and more are the norm. Finally, there is the common stock to total assets ratio. But ratios are not cure-alls. Inasmuch as the quantities that comprise them can be toyed with they can be subject to manipulation and distortion. It is true that it is better to have high ratios than low ones. High ratios are indicative of a bank’s underlying strength, reserves, and provisions and, therefore, of its ability to expand its business. A strong bank can also participate in various programs, offerings and auctions of the Central Bank or of the Ministry of Finance. The larger the share of the bank’s earnings that is retained in the bank and not distributed as profits to its shareholders the better these ratios and the bank’s resilience to credit risks.

Still, these ratios should be taken with more than a grain of salt. Not even the bank’s profit margin (the ratio of net income to total income) or its asset utilization coefficient (the ratio of income to average assets) should be relied upon. They could be the result of hidden subsidies by the government and management misjudgement or understatement of credit risks.

To elaborate on the last two points:

A bank can borrow cheap money from the Central Bank (or pay low interest to its depositors and savers) and invest it in secure government bonds, earning a much higher interest income from the bonds’ coupon payments. The end result: a rise in the bank’s income and profitability due to a non-productive, non-lasting arbitrage operation. Otherwise, the bank’s management can understate the amounts of bad loans carried on the bank’s books, thus decreasing the necessary set-asides and increasing profitability. The financial statements of banks largely reflect the management’s appraisal of the business. This has proven to be a poor guide.

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In the main financial results page of a bank’s books, special attention should be paid to provisions for the devaluation of securities and to the unrealized difference in the currency position. This is especially true if the bank is holding a major part of the assets (in the form of financial investments or of loans) and the equity is invested in securities or in foreign exchange denominated instruments.

Separately, a bank can be trading for its own position (the Nostro), either as a market maker or as a trader. The profit (or loss) on securities trading has to be discounted because it is conjectural and incidental to the bank’s main activities: deposit taking and loan making.

Most banks deposit some of their assets with other banks. This is normally considered to be a way of spreading the risk. But in highly volatile economies with sickly, underdeveloped financial sectors, all the institutions in the sector are likely to move in tandem (a highly correlated market). Cross deposits among banks only serve to increase the risk of the depositing bank (as the recent affair with Toko Bank in Russia and the banking crisis in South Korea have demonstrated).

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Further closer to the bottom line are the bank’s operating expenses: salaries, depreciation, fixed or capital assets (real estate and equipment) and administrative expenses. The rule of thumb is: the higher these expenses, the weaker the bank. The great historian Toynbee once said that great civilizations collapse immediately after they bequeath to us the most impressive buildings. This is doubly true with banks. If you see a bank fervently engaged in the construction of palatial branches stay away from it.

Banks are risk arbitrageurs. They live off the mismatch between assets and liabilities. To the best of their ability, they try to second guess the markets and reduce such a mismatch by assuming part of the risks and by engaging in portfolio management. For this they charge fees and commissions, interest and profits which constitute their sources of income.

If any expertise is imputed to the banking system, it is risk management. Banks are supposed to adequately assess, control and minimize credit risks. They are required to implement credit rating mechanisms (credit analysis and value at risk VAR - models), efficient and exclusive information-gathering systems, and to put in place the right lending policies and procedures.

Just in case they misread the market risks and these turned into credit risks (which happens only too often), banks are supposed to put aside amounts of money which could realistically offset loans gone sour or future non-performing assets. These are the loan loss reserves and provisions. Loans are supposed to be constantly monitored, reclassified and charges made against them as applicable. If you see a bank with zero reclassifications, charge offs and recoveries either the bank is lying through its teeth, or it is not taking the business of banking too seriously, or its management is no less than divine in its prescience. What is important to look at is the rate of provision for loan losses as a percentage of the loans outstanding. Then it should be compared to the percentage of non-performing loans out of the loans outstanding. If the two figures are out of kilter, either someone is pulling your leg or the management is incompetent or lying to you. The first thing new owners of a bank do is, usually, improve the placed asset quality (a polite way of saying that they get rid of bad, non-performing loans, whether declared as such or not). They do this by classifying the loans. Most central banks in the world have in place regulations for loan classification and if acted upon, these yield rather more reliable results than any management’s “appraisal”, no matter how well intentioned.

In some countries the Central Bank (or the Supervision of the Banks) forces banks to set aside provisions against loans at the highest risk categories, even if they are performing. This, by far, should be the preferable method.

Of the two sides of the balance sheet, the assets side is the more critical. Within it, the interest earning assets deserve the greatest attention. What percentage of the loans is commercial and what percentage given to individuals? How many borrowers are there (risk diversification is inversely proportional to exposure to single or large borrowers)? How many of the transactions are with “related parties”? How much is in local currency and how much in foreign currencies (and in which)? A large exposure to foreign currency lending is not necessarily healthy. A sharp, unexpected devaluation could move a lot of the borrowers into non-performance and default and, thus, adversely affect the quality of the asset base. In which financial vehicles and instruments is the bank invested? How risky are they? And so on.

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No less important is the maturity structure of the assets. It is an integral part of the liquidity (risk) management of the bank. The crucial question is: what are the cash flows projected from the maturity dates of the different assets and liabilities and how likely are they to materialize. A rough matching has to exist between the various maturities of the assets and the liabilities. The cash flows generated by the assets of the bank must be used to finance the cash flows resulting from the banks’ liabilities. A distinction has to be made between stable and hot funds (the latter in constant pursuit of higher yields). Liquidity indicators and alerts have to be set in place and calculated a few times daily.

Gaps (especially in the short term category) between the bank’s assets and its liabilities are a very worrisome sign. But the bank’s macroeconomic environment is as important to the determination of its financial health and of its creditworthiness as any ratio or micro-analysis. The state of the financial markets sometimes has a larger bearing on the bank’s soundness than other factors. A fine example is the effect that interest rates or a devaluation have on a bank’s profitability and capitalization. The implied (not to mention the explicit) support of the authorities, of other banks and of investors (domestic as well as international) sets the psychological background to any future developments. This is only too logical. In an unstable financial environment, knock-on effects are more likely. Banks deposit money with other banks on a security basis. Still, the value of securities and collaterals is as good as their liquidity and as the market itself. The very ability to do business (for instance, in the syndicated loan market) is influenced by the larger picture. Falling equity markets herald trading losses and loss of income from trading operations and so on.

Perhaps the single most important factor is the general level of interest rates in the economy. It determines the present value of foreign exchange and local currency denominated government debt. It influences the balance between realized and unrealized losses on longer-term (commercial or other) paper. One of the most important liquidity generation instruments is the repurchase agreement (repo). Banks sell their portfolios of government debt with an obligation to buy it back at a later date. If interest rates shoot up the losses on these repos can trigger margin calls (demands to immediately pay the losses or else materialize them by buying the securities back).

Margin calls are a drain on liquidity. Thus, in an environment of rising interest rates, repos could absorb liquidity from the banks, deflate rather than inflate. The same principle applies to leverage investment vehicles used by the bank to improve the returns of its securities trading operations. High interest rates here can have an even more painful outcome. As liquidity is crunched, the banks are forced to materialize their trading losses. This is bound to put added pressure on the prices of financial assets, trigger more margin calls and squeeze liquidity further. It is a vicious circle of a monstrous momentum once commenced.

But high interest rates, as we mentioned, also strain the asset side of the balance sheet by applying pressure to borrowers. The same goes for a devaluation. Liabilities connected to foreign exchange grow with a devaluation with no (immediate) corresponding increase in local prices to compensate the borrower. Market risk is thus rapidly transformed to credit risk. Borrowers default on their obligations. Loan loss provisions need to be increased, eating into the bank’s liquidity (and profitability) even further. Banks are then tempted to play with their reserve coverage levels in order to increase their reported profits and this, in turn, raises a real concern regarding the adequacy of the levels of loan loss reserves. Only an increase in the equity base can then assuage the (justified) fears of the market but such an increase can come only through foreign investment, in most cases. And foreign investment is usually a last resort, pariah, solution (see Southeast Asia and the Czech Republic for fresh examples in an endless supply of them. Japan and China are, probably, next).

In the past, the thinking was that some of the risk could be ameliorated by hedging in forward markets (=by selling it to willing risk buyers). But a hedge is only as good as the counterparty that provides it and in a market besieged by knock-on insolvencies, the comfort is dubious. In most emerging markets, for instance, there are no natural sellers of foreign exchange (companies prefer to hoard the stuff). So forwards are considered to be a variety of gambling with a default in case of substantial losses a very plausible way out.

Banks depend on lending for their survival. The lending base, in turn, depends on the quality of lending opportunities. In high-risk markets, this depends on the possibility of connected lending and on the quality of the collaterals offered by the borrowers. Whether the borrowers have qualitative collaterals to offer is a direct outcome of the liquidity of the market and on how they use the proceeds of the lending. These two elements are intimately linked with the banking system. Hence the penultimate vicious circle: where no functioning and professional banking system exists no good borrowers will emerge.

About the Author

Sam Vaknin is the author of Malignant Self Love - Narcissism Revisited and After the Rain - How the West Lost the East. He is a columnist for Central Europe Review, United Press International (UPI) and eBookWeb and the editor of mental health and Central East Europe categories in The Open Directory and Suite101.

Web site:

http://samvak.tripod.com/

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