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Municipal

Perspective published on November 1, 2015

The Changing Status of Statutory Liens

Summary

  • Bonds backed by statutory liens have a claim in municipal revenues that arises by force of law as opposed merely to a contract or judicial decree.
  • Bankruptcy headlines in recent years have prompted investors to better understand protections offered to municipal bondholders.
  • States including California and Illinois have recently enacted or considered legislation to secure municipal debt with statutory liens in recognition of the investor protections provided.
  • Securing bonds via a statutory lien conveys a strong willingness to prioritize debt payments.
  • On the other hand, recent statutory lien laws reflect weakening ability-to-pay in some corners of the local government market.
  • Rating agencies have yet to settle on a consistent approach to evaluating statutory liens, and differing agency views have practical effects for investors and issuers.

Interest in statutory liens has heightened, as bankruptcy headlines (Puerto Rico, Detroit, and others) have prompted investors to better understand protections offered to municipal bondholders. Over the past year, municipal investors have grown more aware of the credit protection that statutory liens provide. Rating agencies have opined on their security features, and between March and October 2015, at least five states considered or enacted laws to secure debt obligations with them (Table 1).[1] In late August, the City of Detroit, Michigan[2] earned an A/stable rating from S&P on $245 million in income tax bonds, its first debt since exiting Chapter 9. Those bonds snagged an investment grade rating—nine notches higher than S&P’s B GO rating for the City—in part, by securing the bonds with a statutory lien.[3] We explain the legal security afforded by statutory liens, and discuss why several states are considering securing municipal bonds with them. We also outline rating agencies’ approaches to statutory liens and provide our opinions on these approaches. In our view, recent attentiveness to statutory liens is part of a larger trend in the municipal market: growing demand for securities repaid from revenues remote to governments’ operating budgets.

What’s in a Lien?

Bonds backed by statutory liens have a claim in municipal revenues that arises by force of law as opposed merely to a contract or judicial decree. The market’s growing interest in statutory liens stems almost entirely from their preferred treatment in bankruptcy. Unlike consensual liens (which spring into existence from a contract) or judicial liens (which typically result from a court proceeding), statutory liens remain in place after a bankruptcy case commences.[4] As a result, it is generally harder to impair obligations secured by them.

However, statutory liens are not inviolable. Revenues subject to a statutory lien can be interrupted by the bankruptcy code’s automatic stay.[5] This fact has led S&P and Fitch to lend limited weight to statutory liens in their ratings of municipal bonds. Also, issuers could prime a statutory lien (i.e., place debtor-in-possession lenders ahead of pre-existing lenders), or cram down bondholders with statutory lien protection.

The bankruptcy code’s deference to statutory liens stems from their creation in statute, and the fact that they often evince public policy interests embodied in long-standing commercial practices.[6] Prioritizing obligations backed by statutory liens also furthers a chief aim of U.S. insolvency law: to conform priorities under state law to those in federal bankruptcy court.[7]

Lien-ing In

States including California and Illinois have recently enacted or considered legislation to secure municipal debt with statutory liens in recognition of the investor protections provided (Table 1). These efforts build on Rhode Island’s landmark 2011 law which placed a statutory lien on local debts in that state.[8]

The defining characteristic connecting these states is credit weakness at the local level. In California, lawmakers enacted statutory lien protections to assuage investor concerns arising from recent bankruptcies in Vallejo, Stockton, and San Bernardino. In New Jersey, lawmakers attached a statutory lien to state aid securing bonds issued by financially distressed communities. That decision likely improved market access for Atlantic City and New Jersey’s other struggling cities.[9] In Illinois and Michigan, lawmakers considered statutory lien legislation to ensure market access for their several fiscally fragile local governments. In Nebraska, special tax districts routinely file for Chapter 9.[10]

On the other hand, recent statutory lien laws reflect weakening ability-to-pay in some corners of the local government market. In our 2012 Credit Outlook, we noted that ongoing credit stress at the municipal level portended an increase in municipal insolvency reforms. This year’s statutory lien legislation reflects that conclusion.From a credit perspective, states’ proactive approach to placing statutory liens on debt obligations is a double-edged sword. Securing bonds via a statutory lien conveys a strong willingness to prioritize debt payments. California, New Jersey, Illinois, and Michigan are each home to a handful of weak issuers with large and rising annual pension costs. Acting to protect debt service payments reduces investor worry that bonds may compete with labor costs in a future insolvency.

Rating Agency Split

Rating agencies have yet to settle on a consistent approach to evaluating statutory liens. Moody’s, which assigns credit ratings based on the risk of default and the likelihood of recovery, assigns significant value to statutory liens. Moody’s approach recognizes that bonds backed by statutory liens are likely to provide better recovery prospects relative to other bonds.

By contrast, S&P, which rates only to the likelihood of default, expects statutory liens to impact bond ratings infrequently.[11] S&P emphasizes statutory lien protection in distress situations, reasoning that an issuer will prioritize well-secured bonds over others when fiscal conditions deteriorate.

Fitch, which also rates only to the likelihood of default, gives the least weight to statutory lien protection. Fitch believes that defaults on bonds backed by statutory liens are “likely” in a bankruptcy scenario.[12] Unlike S&P, Fitch makes little, if any, distinction between bonds backed by such liens in distress situations relative to other bonds.

Figure 1 illustrates how this ratings differentiation has practical effects for investors and issuers. Moody’s rates California school district GO bonds higher than S&P on a routine basis. Much of the ratings difference is explained by Moody’s emphasis on the strong security structure for California school district GOs, which includes a statutory lien in ad valorem tax revenue. Of the 90 California school district GO bonds rated by both Moody’s and S&P through twelve months ending October 14th, 2015, Moody’s assigned a higher rating 58 times and S&P assigned a higher rating only seven times. This runs counter to prevailing divergent rating trends between Moody’s and S&P in the local government tax-backed space. Until very recently, Moody’s consistently downgraded more local government credits than it upgraded, while S&P upgraded more often.[13]

Our Take: How Much Does Statutory Lien Protection Really Matter for Bondholders?

Our view is more akin to Moody’s; statutory lien protection matters significantly for bondholders. In the context of municipal insolvency, the presence of a statutory lien likely reduces the incidence of default and, if default occurs, increases potential recovery value. The major risks for bondholders include vague language in the lien statute itself, or an overburdened pledged revenue stream.

Recent Chapter 9 cases support the idea that issuers will infrequently seek to default on bonds secured by statutory liens. In Detroit, presiding Judge Steven Rhodes would have forced the city to pay the full amount of its GO bondholders’ claims if it was proven they benefitted from a statutory lien.[14] In Stockton, California, presiding Judge Christopher Klein reached a similar conclusion when he declared a statutory lien invalid that would have required the City to pay, in full, obligations to the California Public Employees’ Retirement System. Both cases strongly suggest that there is little value in attacking a legitimate statutory lien in bankruptcy; in the end, the issuer is likely to owe a full recovery.

Provisions specific to Chapter 9 also create incentives for issuers to honor statutory liens. Sections 903 and 904 of the code explicitly limit the bankruptcy court’s power to alter state fiscal policies or interfere with the use of municipal property. These sections of the code arguably oblige Chapter 9 judges to be more deferential to statutory liens than in cases arising under other bankruptcy chapters.[15] Furthermore, Chapter 9 explicitly permits a municipality to continue making payments to bondholders during a bankruptcy, if it so chooses, regardless of whether those payments would be preference claims under other chapters of the code.[16] This language makes it easier for a municipality to justify timely principal and interest payments, especially in instances where the municipality’s financial problems stem from something other than overwhelming debt (e.g., burgeoning pension stress or an unexpected lawsuit).

When a municipality nonetheless seeks to impair debt secured by a statutory lien, recovery value should be very strong.

When a municipality nonetheless seeks to impair debt secured by a statutory lien, recovery value should be very strong. As mentioned above, a municipality might impair debt backed by a statutory lien per the automatic stay. It might also try to cram down a bondholder with an interest in a statutory lien. However, in either case, the bankruptcy code requires that bondholders be provided value that is equivalent to that secured by the lien.[17] In the case of a GO bond secured with a statutory lien in an unlimited amount of ad valorem taxes, that “value” is whatever amount of taxes is necessary to ensure bondholders are paid.[18]

The riskiest situations for bondholders are likely ones in which an issuer is severely indebted or the existence of the statutory lien is questionable.

The former situation is obvious, upon reflection. No statutory lien can save a bondholder from an issuer that cannot, in reality, pay its obligations. A statutory lien in an unlimited amount of ad valorem tax revenue is of limited value if an issuer is in a fiscal trap and further tax rate increases create no additional revenue.

The latter situation is likely more common. There, a statute purporting to evidence a lien may lack precise language. In fact, this was a problem in Detroit’s bankruptcy. Among other things, bondholders in that case argued that Michigan law created a statutory lien in ad valorem taxes for the benefit of investors, but Judge Rhodes was less sure.[19] The judges’ circumspection created a risk that bondholders might be treated as “unsecured,” and a settlement was reached.

A statute may also lack clarity regarding the bonds to which the lien applies. Rhode Island’s statutory lien law plainly creates a lien in property taxes for the benefit of GO bondholders.[20] However, it is unclear whether the lien applies to bonds issued before the statute was enacted.

Growing Desire for Segregated Revenues

The uptick in interest surrounding statutory liens stems from a broader shift in market sentiment away from bonds backed by the same resources that governments use to fund ordinary operating expenses. The insolvencies of Vallejo, California; Stockton; San Bernardino, California; Detroit; and Harrisburg, Pennsylvania have underscored that general obligation and appropriation pledges—though still sturdy in most cases—are more vulnerable to impairment relative to “secured” obligations in distress situations. Securing municipal bonds with statutory liens in specific revenue streams is one way to ensure that obligations to bondholders are honored in both good times and bad.

Breckinridge remains committed to assessing our holdings’ creditworthiness one bond at a time, an analysis that includes an assessment of security features that back each bond we hold. We recognize the potential reduction in the incidence of default and increase in recovery value that a statutory lien can provide. We look forward to keeping investors appraised on regulatory trends for municipal bondholders.

 

[1] The states include California, Illinois, Michigan, Nebraska, and New Jersey.

[2] Bonds issued by the Michigan Finance Authority.

[3] See: Local Government Loan Program Revenue Bonds issued by the Michigan Finance Authority, Series 2014F-1, and -2. Available at: http://emma.msrb.org/SecurityView/SecurityDetails.aspx?cusip=A4F40EBAFE5632AC60E07BAA302706572.

[4] For example, section 552(a) permits a municipality in bankruptcy to cease making payments on bonds backed by consensual liens. However, it prohibits similar treatment for bonds backed by statutory liens. For the proposition that obligations secured by statutory liens should mostly or completely be paid, see:

[5] An automatic stay is an injunction that automatically stops lawsuits, and all collection activity against the debtor the moment a bankruptcy petition is filed..

[6] See: John C. McCoid II, Statutory Liens in Bankruptcy, 68 Am. Bankr. L.J. 269 (1994), pp. 284-285.

[7] See: David A. Skeel Jr., What is a Lien? Lessons from Municipal Bankruptcy, 2015 U. Ill. L. Rev. 675.

[8] See: R.I. Gen. Laws §45-12-1(a).

[9] See: Moody’s Investors Service, “Statutory Lien Clarifies Bondholder Protection for New jersey State Enhancement Program,” August 20, 2015.

[10] See: Steven Church, “Nebraska, Not California, is King of Municipal Collapse,” July 16, 2012.

[11] See: Standard & Poor’s, Statutory Liens: Not A Game-Changer, But a Possible Boost to Distressed Credits in Bankruptcy States, March 24, 2015.

[12] See: Fitch, Statutory Liens Do Not Boost U.S. Municipal Debt Ratings, July 16, 2015.

[13] See Standard & Poor’s quarterly rating trends update, September 2, 2015 and Moody’s U.S. Public Finance Rating Revisions, Q2 2015, August 2015.

[14] He noted that if one side prevailed in the dispute over whether a statutory lien existed, “the decision [would] most likely [be] all or nothing.” See: Nathan Bomey, “Detroit, bondholders urged to settle debt dispute or risk losing in court,” Detroit Free Press, February 19, 2014.

[15] See: James Spiotto, Primer on Municipal Debt Adjustment, Chapter 9: The Last Resort For Financially Distressed Municipalities, Chapman and Cutler, LLP (2012), p. 30.

[16] See: 11 USC 926.

[17] Either in the form of “adequate protection” or by offering value which amounts to the “indubitable” equivalent of the interest in the lien, among other requirements. See 11 USC 1129(b)(A).

[18] See: 11 USC 1129(b)(A).

[19] The dispute centered on whether MCL §141.2701 created a statutory lien in ad valorem taxes even though the statute lacked the word “lien”.

[20] See: R.I. Gen. Laws §45-12-1(a).

 

DISCLAIMER: The material in this document is prepared for our clients and other interested parties and contains the opinions of Breckinridge Capital Advisors. Nothing in this document should be construed or relied upon as legal or financial advice. Any specific securities or portfolio characteristics listed above are for illustrative purposes and example only. They may not reflect actual investments in a client portfolio. All investments involve risk – including loss of principal. An investor should consult with an investment professional before making any investment decisions. Factual material is believed to be accurate, taken directly from sources believed to be reliable, including but not limited to, Federal and various state & local government documents, official financial reports, academic articles, and other public materials. However, none of the information should be relied on without independent verification.