eNews March 24, 2009

eNews Weekly Update - National Association of Credit Management
March 24th, 2009

News Briefs

  1. Credit Enhancements at This Year's Credit Congress
  2. NACM Members Voice Frustration With Preference Statutes
  3. Export Letters of Credit—The Fundamentals
  4. Credit Management for Contractors and Suppliers
  5. Leveraging the Global Economy Crisis to Improve Global Trade Processes
  6. No Safe Haven as Debt Collectors Report Layoffs
  7. CFOs Report on Second-quarter Hiring Plans
  8. Judging a Book by Its Cover


Credit Enhancements at This Year's Credit Congress
As banks, companies and consumers continue to wade through the recession, bankruptcy filings have kept pace, increasing to levels not seen since before the passage of 2005's Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). Unfortunately for unsecured creditors, in many instances, the payments they are owed are often extremely difficult to collect following a customer filing, as secured creditors often take precedence to the point where there's little left for unsecured vendors to claim. Preference claims can also be a major drain on a vendor's accounts receivable simply by way of the exorbitant legal fees often required to properly defend them.

Creditors and their companies have taken to doing more secured business whenever possible and this can often have a marked effect on a company's fiscal health. "I think unsecured creditors generally don't fair too well when companies go bankrupt," said Mark Berman, Esq. of Nixon Peabody, LLP. "Anything they can do to enhance their understanding of how to improve their position, or to recognize warning signs of a customer in trouble and thereby minimize the impact of a subsequent bankruptcy on them, are to be encouraged."

Credit professionals and their companies looking to have a better understanding of how to protect their assets in a customer bankruptcy can learn more by attending Berman's session, "Credit Enhancements," at Credit Congress, which will offer attendees a unique look at some of the steps creditors can take to increase the likelihood that they'll get paid after a filing. "My goal is to go over the various types of things that a credit manager can consider in trying to improve the chances that, in a meltdown, they will be able to be paid," said Berman. "These are generically called credit enhancements and they're alternatives to general unsecured credit."

For more information on this and the other worthwhile educational sessions being offered at this year's Credit Congress in Orlando, or to register, visit http://creditcongress.nacm.org.

Jacob Barron, NACM staff writer


See Award-winning Winter Park at This Year's Credit Congress!

National Geographic Traveler magazine recently listed Winter Park, FL as the world's 38th best historic destination in their fifth annual "Places Rated" survey, which ranks global historic sites and how well they've held up after years of tourism. This year, at NACM's Credit Congress, to be held in Orlando, FL, which neighbors Winter Park, attendees will not only get the chance to soak in the wealth of educational and networking opportunities offered by the premier event for credit professionals, they'll also get a chance to bask in one of the world's greatest historic destination by signing up for the Winter Park Shopping Experience, one of this year's optional Credit Congress events. The tour begins with a relaxing 45-minute, open-air boat ride past luxurious homes along three beautiful lakes and canals, followed by a chance to browse the exclusive boutiques and art galleries filled with one-of-a-kind treasures, as well as stores bearing the names of their favorite designers.

For more information on what this year's Credit Congress has to offer, or to register, click here!



NACM Members Voice Frustration With Preference Statutes
Respondents to the solicitation for comments in last week's eNews article, "Government Looks at Bankruptcy Code: A Call to Action!," voiced their frustration with what was described as the "unfair" treatment of unsecured creditors in Chapter 11 bankruptcies, specifically with regard to preferences.

Some respondents voiced their problems with the shifting nature of company filings and reorganizations, a topic recently addressed during a hearing in the House Judiciary Committee's Subcommittee on Commercial and Administrative Law regarding Circuit City's Chapter 11 filing. Many witnesses of the hearing noted that the Chapter 11 process leaves debtors with little chance of reorganizing into a profitable company, a sentiment echoed by commercial creditors. "Recent experiences have shown that the only reason a Chapter 11 is filed is so the bank will provide temporary financing, so they (the bank) can try to sell off the assets and recoup some of their losses, not so the company can reorganize and move forward," said one respondent. "Why would we provide credit under those conditions?"

"Preference possibilities have definitely reined in my decisions on how much risk I am willing to take on a debtor who is showing red flags. If we sell a lot and try to collect as we should, we will be penalized if they file bankruptcy," they added. Other respondents noted that, since the burden of proof falls on the creditor to prove that a payment is not a preference, court and legal fees can make deflecting these claims an unprofitable endeavor. "I feel the system is unfair," said one respondent. "It seems that all the trustee does is look at ALL checks the debtor mailed within 90 days of filing and then puts in a claim for all of those payments. The creditor then has to prove that it was not a preference, often with expensive attorney's fees. The creditor is put in the position of being guilty until proven innocent. For large preference claims, even if it is not a preference, the cost of defending the creditor's position is often prohibitive and a cheaper solution is to make a settlement with the trustee."

Another respondent noted that unsecured creditors whose credit and collections departments do their job well are often the ones who suffer in a bankruptcy filing. "Preferences came into being for a good reason," they admitted. "However, it has gotten to the point where a company who does a better job of collecting their accounts receivable prior to a bankruptcy filing is penalized."

As mentioned in last week's eNews article, Capitol Hill is once again open to looking at the Bankruptcy Code and the role it plays in our nation's economic recovery. Make your voice heard on this matter! Send your preference stories and opinions to jakeb@nacm.org.

Jacob Barron, NACM staff writer


Liens & Bonds: Building the Optimal Credit Department

The construction industry is facing an uphill climb as projections for the residential housing sector remain dismal and non-residential firms are shedding positions at a rapid pace as they watch profit margins vaporize. For credit managers, construction credit is a one-of-a-kind animal. Grantors are often asked to extend lines of credit beyond their customer's company's net worth. Even the terminology is unique to construction credit, with back charges, NTOS, Pay-if-Paid and retainage. Then there are powerful tools like liens and bonds that can make or break a company. As such, construction-oriented credit professionals need to be experts in maximizing the leverage provided by lien and bond claim statutes. NACM will hold a half-day session April 24th in Atlanta, Georgia, where Greg Powelson, director, NACM's Mechanic's Lien and Bond Services (MLBS), will lead credit managers through the basics of collecting job information on through foreclosure, to addressing liens and bonds from a national perspective, as well as when credit managers must take action.

Members interested in attending the event can register here.



Export Letters of Credit—The Fundamentals
While exporting has certainly become more en vogue with the fall of the U.S. dollar, there's still no shortage of risk in the current market, and, to mitigate the difficulties facing companies in the global marketplace, many credit professionals turn to letters of credit (LCs). "I believe it is one of the safest ways to do business internationally," said Danielle Austin of Export Trade Associates, LLC, who, in her recent NACM-sponsored teleconference "Export Letters of Credit—The Fundamentals," offered listeners a lively, plain-terms rundown of all the things they needed to know in order to use LCs properly.

First and foremost in the minds of exporters, and also banks that issue LCs, should be the LC documents themselves, which have to be pristine to be worth anything. "An estimated 70% of all LCs submitted to banks for payment are initially rejected due to incorrectly issued documentation. This rejection can lead to payment delays, additional fees and even non-payment of the drawing," said Austin. "In order for you to get paid, you have to have complying documents. You want to make sure that all of your documents are absolutely perfect." Aside from having pristine documents, creditor companies should also choose the right type of LC and structure it to position their company in the best way possible. "We fund half of this process, we need a voice in it," she said. Austin took attendees on a step-by-step tour of an actual LC, describing how to read it and how to structure certain portions to ensure prompt payment upon submission.

"One of the first things paid under the International Monetary Fund (IMF) are letters of credit. Korea went bankrupt and that money's allocated. It's set aside," said Austin, further illustrating the worth of LCs. She also noted that the use of LCs can serve a sales purpose as much as they do a security one. When a company's credit and sales departments are linked together in their mission to sell on an LC basis, and both groups understand the process, LCs can work as a sales tool by offering a potential buyer the opportunity to leverage their capital and expand the relationship they have with their bank. "The good thing is that when our sales team is on board with us and we explain this process to our sales team, it actually benefits the customer because it lets them use their working capital," she said. "If we allow them to issue an LC through their bank, it allows them to leverage their credit."

Austin also discussed Incoterms, online tools like the Supplement to the Uniform Customs and Practice for Documentary Credits for Electronic Presentation or "eUCP," and the different types of LCs. Credit professionals who missed out on her most recent teleconference can catch a reprisal in Austin's session at this year's upcoming Credit Congress, to be held in June in Orlando. For more information about this year's educational opportunities, visit http://creditcongress.nacm.org/.

Jacob Barron, NACM staff writer


Hot Issues in Bankruptcy in Today's Economic Climate

There's a lot of anxiety brewing in the credit world. The economy is sputtering and last year, business bankruptcies spiked upward 54%. This places an onus on a credit professional's knowledge of the bankruptcy landscape, particularly with recent cases seeing a re-emergence of "Critical Vendor" orders, Chapter 11 proceedings with the priority claim for unpaid suppliers of goods and those that have made reclamation a more problematic remedy. To help keep members stay abreast of the latest strategies to utilize on the bankruptcy battleground, NACM will sponsor a teleconference on March 26th entitled "Hot Issues in Bankruptcy in Today's Economic Climate," presented by two of NACM's legal icons, Wanda Borges, Esq., Borges & Associates, LLC and Bruce Nathan, Esq., Lowenstein Sandler PC.

The duo will highlight important recent court decisions and orders, including rights and obligations with respect to supply agreements, recoupment and setoff agreements, as well as other executory contracts. The discussion will also key in on the newest developments in preferences, featuring recent cases on whether credit card payments are recoverable and on the new value and ordinary course of business defenses. With the trend in liquidation becoming more prevalent in Chapter 11 filings, legal steps to take to enhance collectability on trade claims will also be a point of focus credit professionals won't want to miss. To register for this teleconference, members can click here.



Credit Management for Contractors and Suppliers
Pessimism is at a premium in today's economy. For construction-oriented credit managers it's more pronounced. The slump in the housing and commercial building sectors has translated into higher instances of delinquency and default in an industry where payment cycles are already normally drawn out. It also means that security rights—mechanic's liens and bonds—are worthy of elevated interest.

"In the current market we are in, you may have noticed that things have gotten a little tight," said Jim Fullerton, Esq., president, Fullerton & Knowles PC. "Defaults are up for materials suppliers particularly." Fullerton stressed that security rights are imperative on any construction project during the NACM-sponsored teleconference "Credit Management for Contractors and Suppliers" claiming, "That is your one ace-in-the-hole to survive a bankruptcy and to be able to collect your money despite the bankruptcy of your customer."

Mechanic's liens are typically for private projects. There are a variety of bonds for public projects, like highways, schools, firehouses and similar construction endeavors, and private owners of projects can also require some type of bond. The most common is a payment bond, in which a surety provides security that all persons supplying labor and materials to a project will be paid, with subcontractors and suppliers being third-party beneficiaries. If the principal on the project defaults, the subcontractors and suppliers have the right to sue the surety directly to receive payment, except in the event of a supplier to a supplier. Unfortunately, project participants are often guilty of an elementary mistake that can end up costing them dearly.

"The single biggest mistake I see that people make is not asking if a project is bonded," said Fullerton. "Before they quote, before they ship to a project—especially private projects—they should ask, 'Is this project bonded? Give me a copy of the bond.'"

Fullerton explained that companies can be more aggressive about pricing on a project if they know that they have security for the sales. "And that's a real life story," remarked Fullerton. "You really can sell cheaper. You can give extended terms. You can make a lot of accommodations to a customer if you know there's a reduced risk of taking a complete loss."

The other benefit is that after work has started it's much harder to get a copy of the payment bond once a problem has arisen. Often times, construction-oriented credit managers are under very tight deadlines to enforce their bond rights. Though the deadline is generally 90 days after last delivery to give notice, the realities of the situation are vastly different. Credit managers aren't going to declare a payment in default until 60 or 75 days after delivery. That means they'll typically only have a week to three weeks to make bond claims.

"At that point, your customer may not be responding to telephone calls anymore," said Fullerton. "The general contractor is not going to want you to get a copy of the bond because you are going to sue them if they give you a copy. Your best chance, generally, is to get it from the owner, but even here you can have problems, largely because the shortness of time."

Even on a public project, the contracting officer has up to 14 days to provide a copy of the bond under a Freedom of Information Act request.

"So, again, the bottom line is that there really is no substitute for getting a copy of that bond before you even quote that project," said Fullerton.

Another fundamental mistake is not paying enough attention to what type of bond is being used on the project. Failure to review the actual bond can result in government entities inadvertently exposing general contractors to more risk than required, private owners exposing general contractors to risks that do not aid the owner, general contractors exposing themselves to avoidable liabilities and subcontractors and suppliers failing to preserve rights that they didn't know that they had.

Above all, suppliers and subcontractors need to remain vigilant about their position in the ladder of supply to ensure that they are eligible for bond rights.

"You need to be careful with intervening contractors, what I call artificial tiers," warned Fullerton. "Unfortunately, this most often happens with minority contractors of various types. There's another sub in there that you may not even have been aware of and they were brought in to comply with certain minority contracting requirements. They may not even have a real active role on the project, but they're there, at least on paper, and the problem is that might put you one further step removed from the owner than you realized you were. And it can bump you out of bond rights."

In association with NACM, Fullerton authored the Construction Law Survival Manual, which is well known and widely used by participants in the construction process. The 545-page manual provides valuable information about construction contract litigation, mechanic's liens, payment bond claims, bankruptcy and credit management and contains over 30 commonly used contract forms and is available through NACM's Bookstore, the association's Resource Library and is constantly updated on the website www.FullertonLaw.com.

Matthew Carr, NACM staff writer


The Illusion of a Good Deal: What Are You Really Paying for
Credit Card Processing?

Now is the time for companies to take the initiative to streamline costs by improving efficiencies and bolstering their bottom lines. Simple solutions, such as tweaking business-to-business merchant processing, can sometimes save a company thousands of dollars in interchange, convenience and related fees. Robert Day, president of Commercial Interchange for Fifth Third Bank Processing Solutions, will offer the benefits of his expertise to credit managers during the NACM-sponsored teleconference, "The Illusion of a Good Deal: What Are You Really Paying for Credit Card Processing?" on March 30th. Day will highlight the number one mistake companies make in terms of credit card processing contracts as well as how companies can stop downgrades, develop an understanding of "PAD" and what its impacts are, and how to get net processing rates close to 1%.

Members interested in attending this event can register here.



Leveraging the Global Economy Crisis to Improve Global Trade Processes
"The banks are still working through how they're going to support your local trade into the future so you're pretty much left to your own devices with how you muster up your working capital," said Forrest Old, executive vice president at RMS, during his recent FCIB-sponsored teleconference, "Leveraging the Global Economy Crisis to Improve Global Trade Processes." Old, along with colleagues Kathleen Attinello, assistant VP at RMS and J.P. Parent, director of RMS' Montreal office, delved into the various solutions that exporters can use to maximize their cash flow during these currently difficult times.

"Certainly as exporters you have an especially challenging task. We think that, at this time, especially during a credit crisis, getting paid and managing your cash and optimizing your working capital are critical," said Old, who began his presentation by outlining the risks currently facing overseas sellers and offered five building blocks upon which exporter credit departments should base their attempts to get the most out of the global economy: technology, reporting & analysis, upstream activities, structure & perception and alignment. Old offered best-in-class tools and strategies that can help a company work more efficiently and quickly, because in today's economy, time is often not on your side. "The real issue is that there's a distinct cost of waiting. If you are not harvesting your accounts, time is working against you," he said. "What we're talking about is fighting those timelines and the tools and appropriate methods that can really drive that timeline in the right direction and have them work with you instead of against you."

Technologically speaking, Old discussed workflow tools that help isolate and identify disputes. "We have systems that we have seen that demonstrate best practices and workflow tools that are invoice-based and allow you to determine the root cause for a dispute," he said. "The databases that are structured to support these workflow tools are easily accessible and maintainable." Old also discussed other more technologically-advanced tools, such as interactive voice response (IVR) systems, which have traditionally been associated with customer service outfits but have moved to accounts receivable as a means of enabling customer self-serve options, like pay-by-phone, and prioritizing calls in queues based on size, age or risk designation. "What the IVR is giving us is a chance to do resolution much faster," added Parent. "It allows us to get right to people and gives us the ability to focus right away on who can pay right now."

Other topics included looking upstream for potential payment problems, the importance of analysis in predicting payment, creating company-wide support of the A/R function and aligning the interests of sales and credit.

For more information on FCIB's educational offerings, visit their website at www.fcibglobal.com.

Jacob Barron, NACM staff writer


FCIB International Credit Executives (I.C.E.) Conference

One of FCIB's premier annual educational and networking events, the International Credit Executives (I.C.E.) Conference, will be at The Drake Hotel in Chicago, Illinois, April 19-21, 2009. The deadline to secure reservations at one of the Windy City's most storied establishments has been extended until March 25, 2009. The conference will be highlighted by programs addressing critical issues facing international finance and credit practitioners, including the breadth of the current recession, the risks and challenges in selling to financially distressed customers in foreign markets and managing credit during a global credit crisis.  As usual, the offerings will include the unparalleled expertise of S.J. Rundt & Associates' Dr. Hans Belcsak's "World Markets in Review" and the unmatched perspectives of the "International Round Table Forum."

For more information about FCIB's I.C.E. Conference, click here. Professionals planning to attend can register online or on-site.



No Safe Haven as Debt Collectors Report Layoffs
Businesses are wrestling with contraction as consumer spending dries up and available capital vaporizes. Creditors, concerned with making sure they are able to recover as much as possible on past-due accounts, have viewed the year-over-year increases in both delinquency and charge-off rates across a broad spectrum of credit products with considerable unease. This in turn has resulted in more creditors looking to reduce risk as quickly as possible and they have shifted their recovery strategies, adopting early stage outsourcing and increasing debt sales.

On the surface it would appear that debt collection and repossession services would be a thriving haven in the current weak economy. The reality is that even these companies aren't safe from the overhead crunch and are being forced to cinch their belts tighter. The "4th Quarter Credit & Debt Collection Confidence Survey" by Kauklin Ginsberg of the accounts receivable management (ARM) industry showed that despite the fact that more than half of debt collectors reported an increase in their number of accounts in the final quarter of 2008, more than a third of companies reported forced reductions in staffing.

"The sheer volume of accounts currently delinquent or in default would lead many to assume this to be a boon time for debt collection agencies," said Dimitri Michaud, consumer finance analyst, Kauklin Ginsberg and author of the report. "However, collection agencies reported staff reductions at the end of 2008—an illustration of the strains the deteriorating economy is currently having on the ARM industry."

In the fourth quarter, nearly 38% of debt collection agencies reported layoffs. The outlook for the first quarter of 2009 continued to remain grim as 27% of agencies admitted that they plan to eliminate positions, with job cuts expected by more than 16% of companies six months from now. Among creditors, nearly 24% responded that they had laid off workers in their recovery departments in the fourth quarter and nearly 32% said they expect to eliminate positions in their in-house collections during the first quarter of this year.

With consumer confidence souring, debtors are finding themselves in a position of being less willing or simply unable to pay on their past-due bills. Of the collection agencies that participated in the Kauklin Ginsberg survey, 67% reported that current consumer perceptions are having a direct impact on their ability to recover outstanding receivables, with 41% reporting weakened recovery performance in the fourth quarter.

"What likely caught many off guard seems to have been the sheer number of consumers that were at the brink, even prior to the economic slowdown," admitted one survey respondent, who thought there would likely be more payment arrangements on the horizon for 2009 as the economy at-large deals with the weight of rising unemployment and the ARM industry struggles with declining recovery rates.

Matthew Carr, NACM staff writer


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CFOs Report on Second-quarter Hiring Plans
A net 2% of chief financial officers (CFOs) interviewed for the Robert Half International Financial Hiring Index predict decreases in accounting and finance personnel in the second quarter of 2009, with most (86%) executives reporting a desire to maintain current staff levels for the next three months. Five percent of respondents indicated they plan to add full-time employees while 7% expect staff reductions.

"Businesses are increasingly reluctant to hire in the current environment, choosing instead to maintain staff levels until they see definitive signs of an improving economy," said Max Messmer, chairman and CEO of Robert Half International (RHI). "Companies that are hiring are more selective because they can be—there is a larger pool of skilled applicants available. As a result, employers are taking extra time to identify and hire the best available person for each open position."

Even with higher unemployment rates, however, some financial executives continue to report difficulty finding highly skilled professionals for certain functional areas. Twenty-five percent of CFOs interviewed cited accounting positions as the most difficult to fill and 19% said they experience the greatest challenges when hiring for finance roles.

Accounting and Finance Hiring—By Region
CFOs in the West South Central states (AR, LA, OK, TX) expect the most hiring activity in the second quarter. A net 4% of CFOs in the region project additional hiring of full-time accounting and finance staff. Eleven percent of executives plan to add employees while 7% forecast personnel reductions.

"A diverse industry base, including sectors such as oil and gas that remain steady, has helped the West South Central weather some of the economic turmoil and maintain pockets of growth," Messmer said. "Companies need mid-level general accountants, controllers and senior audit managers and they place a particular priority on professionals able to assist in multiple areas."

Robert Half commissioned additional interviews with CFOs in more than 40 major metropolitan areas to provide snapshots of financial hiring trends in these markets. The local results are available at www.roberthalf.com/PressRoom.

Accounting and Finance Hiring—By Industry
Among industries, 6% of professional services CFOs expect to increase hiring in the second quarter and 4% plan a decrease, a net 2% increase. A net 2% of CFOs in the finance, insurance and real estate sector also said they will expand their staff levels.

Source: Robert Half International


Credit Reports

NACM understands that business credit reports are the keystones that help credit professionals make sound credit decisions. NACM Affiliates can provide credit professionals with the most complete, objective and accurate reports available.

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Click here to learn more about NACM's Credit Reports.



Judging a Book by Its Cover
There are scoring models and programs that can eliminate the burden of a credit professional having to weigh an opinion on every single application that comes in. Decisions can be made for customers that are either automatically accepted or rejected, leaving the credit manager to focus their expertise on those difficult applications, where "gut feelings" sometimes come into play. Though credit managers don't often see their prospective customers face-to-face, a recent study released by Rice University showed this could provide some insights.

It may not be groundbreaking on the surface, but researchers Jefferson Duarte, associate professor, Rice's Jesse H. Jones Graduate School of Management and Stephan Siegel and Lance Young of the University of Washington found that a person's appearance may play a role in whether they are deemed "trustworthy" by potential lenders.

"Economists have long recognized that in principle, trust could play an important role in markets," wrote the researchers. "There is, however, limited empirical evidence of the importance of trust and trustworthiness in actual transactions. Instead, research has tended to focus on the relation between the average degree of trust in countries and their economic outcomes."

The researchers cultivated their conclusions by utilizing more than 6500 applications from an online peer-to-peer lending site, Prosper.com, in which potential borrowers submit their credit profile and oftentimes a photo of themselves in hopes of securing funding. The researchers wrote, "Most potential borrowers seem to feel that providing a photograph is important to their chances of being funded, since over 60% of potential borrowers opt to provide one." The photos of the potential borrowers were then shown to a group of workers at Amazon.com's Mechanical Turk (MTurk) site, who were asked to rate the likelihood of each person in the photograph repaying them on a $100 loan on a scale from 1 to 5.

Interestingly enough, the study unveiled that individuals who were perceived to be the most trustworthy had credit histories that matched the perception. The MTurk employees were able to separate those with high credit scores from those with low credit scores by simply looking at their photographs. Also unearthed in the study was that individuals who were viewed as "trustworthy" defaulted on loans—having a scheduled payment more than four months past due—far less often, even after accounting for credit scores. The researchers wrote, "The results are similar when we control for attractiveness, which means that our trustworthiness proxies are not simply conveying information about the physical attractiveness of the potential borrowers."

The researchers found that, "borrowers who are perceived as untrustworthy are economically and significantly less likely to have their loan requests filled, even controlling for physical attractiveness, detailed demographic information, credit profile, income, education, employment and loan-specific information."

"Our results suggest that people's appearance conveys important information about their willingness to meet their obligations," the researchers concluded. "More importantly, our results suggest that trustworthiness perceptions are indeed important to facilitating transactions."

Matthew Carr, NACM staff writer


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