WWW. NYLJ.COM VOLUME 241—NO. 62 THURSDAY, APRIL 2, 2009 SECURED TRANSACTIONS Proliferating Fraud Challenges Lenders To Step Up Diligence egular readers of this column will fraud was uncovered only in 2008, despite notice something missing from an unusually smooth pattern of consistent today’s byline—the name of my By gains of roughly 1 percent a month for two longtime co-columnist, Shepard W. Alan M. decades5 and notwithstanding investigations Melzer, who passed away suddenly on Christenfeld by the Securities and Exchange Commission RMarch 13. Shep was my partner, friend and (“SEC”) and other regulators that failed to advisor for nearly 20 years, and until his death expose the scheme.6 Madoff was allegedly we had collaborated in writing these articles aided and abetted by an accountant who has continuously since February 1997. An expert of funds. Accordingly, without repeating our been charged with, among other things: (i) in air finance and secured transactions, Shep previous articles’ substance—which remains falsely representing that Madoff’s operations was even more remarkable for his wisdom, as valid today as when it was originally were financially sound and that proper audits generosity, loyalty and good humor. He will published2—it is timely to remind lenders had been conducted; (ii) failing to confirm the be missed greatly. of the most common fraudulent schemes existence of securities that Madoff claimed to Today we revisit the topic covered in hold; (iii) avoiding peer review requirements 1 used by borrowers and to present strategies the first two articles Shep and I published for avoiding them. We will also discuss two applicable to auditors by representing that he in this space, more than a dozen years ago. distinct difficulties today’s credit crisis poses for was not engaged in audit work; (iv) failing to Those columns discussed fraud in secured lenders: assessing creditworthiness and valuing examine revenues of Madoff’s operations; and transactions, outlining the types of swindles collateral.3 (v) failing to examine a Madoff bank account that borrowers most commonly commit, and through which billions of dollars flowed.7 offering guidance to help lenders reduce their Common Types of Fraud Robert Stanford, the head of Stanford exposure to fraud and to address it should it Group, is accused of operating an $8 billion arise. They highlighted some of the hoaxes that Borrower fraud falls into three main fraud. Regulators claim that he lured investors occurred in the recession of the early 1990s categories: false information; multiple financing into buying certificates of deposit by promising and the years leading up to it. of the same collateral; and worthless, overvalued, rates of return substantially higher than those We are now experiencing a global economic non-existent or inaccessible collateral. offered by mainstream banks and by advertising meltdown that has blocked virtually all but the False Information. Borrowers who cannot investments in liquid securities. The SEC, most creditworthy borrowers from obtaining or obtain credit based on their true financial however, asserts that Stanford’s consistent retaining lending commitments. The current condition often resort to providing false returns—which were identical for 1995 and “credit crisis” follows a long period of cheap information to potential lenders to appear 1996—were “improbable, if not impossible,” and plentiful liquidity during which lenders more creditworthy. Manufactured references, and that a substantial portion of Stanford loosened credit standards to an unprecedented, manipulated financial statements, phony bills Group’s assets were held in illiquid real estate if not perilous, degree to win business. This of lading and other forged documents are and private equity investments.8 economic collapse presents a uniquely commonly submitted to get loans. Borrowers Marc Dreier, a New York attorney and the challenging environment for lenders and may also provide fake contact information so founder of an eponymous law firm, has been borrowers. Lenders must identify creditworthy lenders cannot reach them for payment. charged with committing a $700 million borrowers in a climate where few exist, while Several recent scandals underscore the fraud in which he allegedly misrepresented borrowers must compete for a dwindling supply dangers that false information poses to lenders his identity and that of his associate during and investors and the difficulty that lenders and meetings and conference calls.9 investors face in verifying such information. Such schemes, of course, are not limited to ALAN M. CHRISTENFELD is senior counsel at Clifford Chance US. EvAN J. COHEN, a partner at Clifford Chance, Bernard Madoff recently pleaded guilty the United States. The chairman of Satyam, a co-authored this article, and JONATHAN M. SCHALIT, an to having run a multi-billion dollar Ponzi major Indian computer company, admitted to associate at the firm, assisted in its preparation. scheme, beginning in the 1980s.4 The creating fictitious cash balances of more than $1 THURSDAY, APRIL 2, 2009 billion and to falsifying financial statements for site inspections; (3) differences between a agency’s opinion, holders of the obligations over five years.10 Two of the company’s auditors borrower’s actual operations and a lender’s so rated are as likely to be paid principal and from PricewaterhouseCoopers are alleged to perception thereof; (4) inconsistencies in the interest on time as holders of U.S. Treasuries. have been complicit in the fraud and have borrower’s records; (5) secret operations; (6) The recent widespread inaccuracy of the ratings been arrested by Indian authorities.11 trying to avoid direct contact with lenders; (7) of many traded obligations has cast doubt on Multiple Financing of Collateral. Certain attempting to short-circuit customary credit the rating agencies’ ability to assess accurately lenders require that borrowers grant liens on approval processes; (8) attempting to secure borrowers’ likelihood of being able to service specific assets as a condition to extending financing in an extremely short period of time; their debt. Lenders thus should view borrowers’ credit. Such assets are supposed to be pledged (9) using a firm of accountants that is far too credit ratings with an appropriate degree of to only one lender. To obtain financing from small to audit an account of the borrower’s skepticism and as only one component of a multiple lenders, however, dishonest borrowers size; and (10) having retained many different comprehensive credit analysis. may resort to assigning the same collateral to lawyers to represent it on similar transactions or Valuation in the Wake of the Credit Crisis. different lenders while representing to each having had lawyers disclaim their past opinions “Mark-to-market” and “mark-to-model” are two lender that the collateral is theirs alone. or work product. accounting methods that have forced lenders Duplicative financing of the same collateral recently to recognize multi-billion dollar losses. weakens each creditor’s ability to recoup its Due Diligence Under these methods, lenders must periodically losses in the event that the borrower does not In the face of potential borrower fraud, write down the value of assets to reflect either repay the loan. lenders are well advised to perform rigorous the amount they would be worth upon sale, in Worthless, Overvalued, Non-Existent or diligence, verify independently all information the case of mark-to-market, or that a proprietary Inaccessible Collateral. Worthless, overvalued, provided by or on behalf of borrowers, and, mathematical model imputes to them, in the non-existent or inaccessible collateral is a where information cannot be verified, case of mark-to-model. major concern for lenders. Intangible assets are require more stringent debt service coverage Lenders have criticized mark-to-market especially prone to manipulation by borrowers. ratios and/or more collateral. The same accounting vociferously, charging that it forces Unscrupulous borrowers often intentionally recommendations hold true where collateral financial institutions to recognize losses on still- 18 overstate the value of receivables, re-date stale values cannot be readily ascertained. valuable assets. Underlying this complaint receivables and create fake invoices, among Compounding these challenges, the credit is the fact that the market for particular other things. crisis presents new difficulties in measuring assets in a distressed economy can set values Thomas Petters, the former CEO of Petters borrowers’ creditworthiness and in valuing that, although valid for a limited time, could Group Worldwide, the corporate parent of collateral, both of which we address below. become inaccurate quite quickly. Although it Polaroid, is alleged to have committed a multi- Furthermore, although the types of deception is useful to understand the value of collateral billion dollar fraud in which he obtained loans in which borrowers engage have not changed at any particular time, lenders must plan for secured by non-existent goods and fake accounts fundamentally since we last wrote on the fluctuating collateral values. Notably, the price receivable. The complaint against Petters subject, the well-publicized recent scandals that mark-to-market accounting produces in accuses him of creating false documentation, suggest that today’s frauds affect more victims today’s economy is skewed by depressed global including purchase orders, invoices,