Because of levels of economic turmoil not seen for nearly a century, some secured creditors have been taking a slightly fresh approach in relation to realisation of their security in the event of a default. One of the common features of secured financing concerning offshore vehicles involves taking a share mortgage over the shares issued by the offshore entity, which allows the secured party to take indirect control of any assets held by the entity. In normal times, the usual way to enforce such security would be to appoint a receiver who would vote the shares and put a new board of directors in who would then monetise the underlying assets and utilise them to pay the secured debt.
However, in present market conditions asset prices are frequently so depressed that attempts to monetise those assets (particularly on a distressed sale basis) frequently result in the proceeds of realisation being far below the level of the secured debt. Worse, if the lender is a bank, accelerating the loan means that the loss can become crystallised on their balance sheet, and many banks can ill afford further strain on their capital base.
Some lenders have sought a somewhat speculative solution to this problem from the pages of history: a foreclosure order. Foreclosure enables the secured party to take beneficial title to the mortgaged shares, and extinguishes the chargor's equity of redemption. This leaves the secured party free to sit on the asset until asset prices recover and they can realise the underlying assets in more favourable circumstances. Courts remain hostile to applications for foreclosure because of the potential for abuse. It also involves something of a gamble; foreclosure extinguishes the underlying secured debt as well. In Palk v Mortgage Services [1993] Ch 330 the Vice-Chancellor commented "foreclosure actions are almost unheard of today and have been so for many years." If the current trend accelerates, more and more law firms may be called upon to dust off ancient precedents.
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