Asset Searching for Recovery Actions - The Decision Maker's Tool Part 2

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.

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 ½-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.

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

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.

Miscellaneous Information

It is important to understand that today we are faced with many research possibilities from the standpoint of hands-on jurisdiction research versus database research. It is important to specify whether or not database research is, in fact, acceptable, or if hand research is required. Extensive experience in FDIC and FSLIC work for over ten years dictates that the standard of research for these agencies, as well as Resolution Trust Corporation until recent months has been that only hands-on work is acceptable in an asset search.

It must be understood that while database search capabilities appear seductive, many lack the depth and breadth to provide a sufficient search upon which decisions should be made, and a case should be analyzed. There are technical problems with database research that shall not be delved into here, but it should be generally understood that reliance only upon database searches does not give the complete picture, and may end up providing inadequate information upon which an improper decision will be made.

Close attention needs to be paid to understanding the differences of a hand search versus a database search. The common rule of thumb should be the clear understanding that when a search is purchased from a database company, what the purchaser is really buying is the amount of money that has been invested in the computer's search logic, not necessarily the information provided by the jurisdiction which the company purchased. A hand search, on the other hand, is conducted by an individual at the applicable jurisdiction by searching records provided by the jurisdiction, which are as up-to-date as possible.

Database research provides information that is usually not updated within thirty to sixty days. It is also important to understand that database information is usually based upon the “first-cut� data/magnetic tapes provided by the jurisdiction to the database firm, and may not include updated, completed or extricated information that is critical to the determination of whether or not a record exists on file, and/or is in fact reportable under applicable statutes within the applicable jurisdictions. The most recent legislation that specifically identifies the limitations and requirements of database service companies include California Assembly Bill 1629, Chapter 1194, Public Law91-508 (FCRA), the CCPA and various other local, state and federal statutes.

Conclusion

While these guidelines give insight into modules of research which should be integral to any decent asset pursuits, it is important to understand the capabilities an integrity of the firm you're using to conduct some or all of the research with you, or for you. Clearly, while the use of databases is on the rise, it remains good practice to consistently test the information you receive against independently known or researched information for its depth and accuracy.

This investigative attitude will not only help you to weed out the questionable information, but will help you to more clearly establish your expectations with whomever will be assisting you in determining if discoverable and attachable assets exist, which can be attributed to the subject of your inquiries.

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.