Lanka to modernize secured transaction systems
Priyantha Fernando
Credit Information Bureau Chairman and Central Bank Deputy Governor
Access to credit is critical for economic growth and is widely
considered as the engine for private sector development. In emerging
market economies more than half of private sector firms have no access
to credit or have very limited access.
Priyantha Fernando |
Survey results indicate that their credit applications mostly get
rejected due to insufficient collateral or unsuitable collateral.
In many cases business owners do not even bother to apply for loans
as they are certain that they could not meet the stringent collateral
requirements such as land and real estate often requested by banks and
other formal financial sector institutions.
Going in depth to this issue, available information and case studies
indicates that the availability of collateral is not the source of the
problem. It is the inability of translating the capital stock of
enterprises which typically constitute movable assets such as machinery,
equipment or receivables. Generally, banks and other formal financial
institutions heavily prefer land and real estate as collateral, but
reluctant to accept movable property as collateral.
However, the good news is that wider distribution of credit could be
achieved by introducing modern secured transaction law which recognizes
utilization of the full value inherent in assets of a business to obtain
credit.
Secured Transactions Systems
A sound legal and institutional infrastructure is critical to
maximize the economic potential of movable assets (machinery and
equipment, inventory, accounts receivable, cash flows, livestock) to be
used as collateral in exchange for loans.
Economic analysis suggests that small and medium sized businesses in
countries that have stronger secured transaction laws and secured
transaction registries have greater access to credit, better ratings for
financial stability, and low rates of non-performing loans and lower
cost of credit.
A concurrent action when modernizing secured transaction law is to
set-up a centralized registration system to record the secured
transactions for the purpose of making them effective against third
parties and for deciding priorities amongst various claimants over a
secured property.
Lenders are permitted to register movable assets on which they
finance the borrowers. When granting loans against movable assets
lenders can search the registry to ascertain whether the assets have
already being mortgaged to another financial institution.
Action has been taken to improve the secured transaction system
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Such registration systems are required to operate electronically to
maintain up to-date records and provide easy accessibility so that it
becomes a source of information for parties dealing with secured assets.
The encouragement of the regulator, CBSL, to financial institutions
to increase their lending operations, especially to key strategic
sectors such as agriculture sector and the small and medium enterprise (SME)
sector, while maintaining credit risks and NPLs at healthy levels, will
become far more effective if information asymmetry in the credit market
is reduced.
Improvements in the Secured Transaction System are an essential
ingredient for reducing such information a symmetries.
A sound secured transaction system has three main pillars. The first
relates to creation of the security interest covering the kinds of
movable assets that can be used as collateral and how those could be
used for collateral finance.
The second consists of the methods of publicizing the security
interest through registration. The third, deals with priority rules and
enforcement of the security interest determining how easily creditors
can recover their investment after default by debtor.
A centralized collateral registry protects secured creditors rights
by providing objective information on whether assets are already subject
to the security right of another creditor.
Scenario in Sri Lanka
The financial sector in Sri Lanka is dominated by banks. The rest of
the formal credit market is divided among registered finance companies
and specialized leasing companies.
Registered finance companies and specialized leasing companies which
are usually the main vehicles for movable asset financing, only
represent around 2.1 percent and 3.5 percent of the total assets
respectively.
Leasing companies and finance companies do not significantly finance
heavy equipment or machinery given the difficulties in protecting their
rights on the assets since they cannot register their security interests
in those assets anywhere.
Because of this they focus most, around 95 percent in financing
vehicles.
In Sri Lanka, the concept behind security interest notice filing is
not well understood and as of yet there are no registries that function
as modern filing registries.
Accordingly, action has been taken to improve the secured transaction
system focusing on (a) improving the legal and regulatory framework for
security transactions based on standard internationally accepted
practices; (b)developing electronic collateral registry; and (c)
creating awareness about the concept of secured transactions among the
main public and private sector stakeholders.
The Secured Transaction Act (STA) has been drafted by the Finance
Ministry and is expected to be implemented during 2011.
The salient features of STA
Objective:
Promote further access to credit by recognizing collateral in movable
assets.
Scope:
The Act identifies that all pledges, mortgages or obligations of
movable property may be secured with any movable collateral. This
exempts certain transactions such as collateral registered under the
Motor Traffic Act or the Civil Aviation Authorities Act.
Nature of collaterals:
Legal rights of a debtor who register secured interests in the
Secured Transaction Registry maintained at the Credit Information Bureau
(CRIB) are protected above any other obligation.
Additionally any interest in collateral placed by the debtor under
the secured obligations may be utilized to secure more than one
obligation as well.
Authorization of the debtor:
A party who secured an obligation with movable collateral shall be
entitled to file a notice with the CRIB. These notices will be valid for
a period of 5 years from the date of filing of same which can be
renewable.
Role of CRIB:
Under the provision of the Act, the CRIB is empowered with the
responsibility of maintaining the Secured Transaction Registry, also
called the Moveable Assets Registry.
Secured Transaction Registry:
The CRIB has developed “in-house” the software to file information
pertaining to the secured interests and maintain the information
electronically at a centralized data-base.
It is a ‘notice’ registry in which only a simple notice of the
essential facts of the secured transaction, namely identity of the
debtor, the identity and contact information of the secured creditor, a
general or specific description of the collateral and the amount of the
loan secured by collateral.
Registration requirements are kept as simple as possible to eliminate
errors and to encourage use among financial institutions and their
borrowers. It features an on-line access for registration and searches,
register the defined types of assets as collateral.
The services provided through the registry include:
* Initial registration notices
* Continuation, amendments and termination of such notices
* Supplying searching services for current and historical records.
All services will be provided through clients, i.e., (CRIB members);
Banks, Finance Companies and Leasing Companies. The CRIB members will
set-up their relevant customer accounts in the Registry.
The registry IT system at CRIB performs four major functional
requirements; Registration, Search, Member Access Management and a
Billing Process. It is the duty of the CRIB to provide the lending
institutions, at their request, information available with the STR on
the availability of debt secured by collateral and its details.
The registry which has been development was tested with institutions
drawn from banks, finance companies and leasing companies. It was in
July, 2010, that CRIB first announced to the media regarding
establishing the Secured Transaction Registry. Subsequently, several
workshops were held to educate personnel from the financial sector about
the development of the registry and the Secured Transaction System.
The feed-back received from them to improve the system have been
incorporated in the list of ‘user requirements’ and taken into account
in developing the system. Also while setting up the registration system,
the CRIB has taken a view on the existing registration system for motor
vehicles, registry of assets of corporate entities and decided that
these registries should continue at least in the medium term and to
consider integrating with new secured transaction registry as a longer
term development.
Implementing the Secured Transaction Act and the establishment of a
Secured Transaction Registry, Sri Lanka will be able to move to modern
transaction systems aimed at expanding credit to business, particularly
to the self-employed and SME’s by allowing them to use their movable
property as collateral.
These reforms in the financial infrastructure would help financial
institutions expand lending based on more informed and less risky
decisions about taking specific types of moveable collateral, as the
centralized electronic collateral registry when implemented would
publicize the security interests in all types of moveable property.
Currently, there is a multiplicity of registries depending on the type
of assets that is secured.
Most of those are still paper based systems and are dysfunctional in
terms of publicizing the information available in a timely manner for
creditors to make informed decisions when securing loans with moveable
assets.
Reforming this area could also improve the Sri Lanka ranking of the
getting credit indicator in the World Bank Doing Business Report.
Increasing such rankings would make Sri Lanka more competitive in the
region, leading to attracting more business from overseas contributing
towards Foreign Direct Investments.
This modernization of the Secured Transaction Systems is a joint
effort of the Central Bank, Finance Ministry, CRIB and its members. |