Friday 24 November 2017

Many courtroom battles will provide valuable insight into how agency's work is progressing

This week Paddy McKillen gave us a glimpse into the secretive workings of NAMA and how it is dealing with some of Ireland's best-known property developers. With a raft of other cases due in the courts over the coming weeks, we are finally gaining some insight into how the agency operates

Is it possible that sometime in 2020 the fourth-floor offices that house the National Asset Management Agency (NAMA) at the Treasury Building will be vacant? If things go according to plan, by then NAMA should have folded its tent having recovered the €40bn owed by Ireland's property developers and the Treasury will be looking for a new tenant.

This is the best-case scenario -- that Nama will actually work -- but as Paddy McKillen's High Court case shows, it is way too early to hope for that outcome.

In recent days, the rating agency Fitch offered cause for optimism, saying it was "reasonable" to assume NAMA would break even in the long term. This is based on the Government's latest estimate that due to the hefty discounts at which the agency is buying the developers' loans from the banks, the cost of bailing out the nation's banks could ultimately be €45m-€50m.

It was a reassuring statement for Irish taxpayers amidst all the doom and gloom. Realistically, though, NAMA -- which is already defending its very existence in the courts -- will have to overcome considerable opposition and further legal obstacles to meet its targets and to satisfy the public's demands for fair play.

While we must await the verdict, the McKillen case has allowed us gain some insight into how NAMA's chief executive Brendan McDonagh and his 80-strong team conduct their business.

It seems to have come as a shock to McKillen that they don't do small talk. Indeed, it was NAMA's curt response to his business plan for keeping his loans that triggered the legal action. His correspondence with NAMA showed he couldn't get a response from the agency about whether his loans were being transferred and why. NAMA's team simply wrote "disagree" across the spreadsheet he presented to them.

McKillen also claims he couldn't get an audience with NAMA to find out why they 'disagreed'. However, the bigger property developers have spent a lot of time with McDonagh and his team. Ever since the first tranche of loans from the top 10 property developers were transferred last March, the NAMA boss has been regularly summoning Liam Carroll, Sean Mulryan, Derek Quinlan, Joe O'Reilly, Bernard McNamara, Gerry Barrett, Richard Barrett and Johnny Ronan, Joe, Peter and Michael Cosgrave and Gerry Gannon to their offices to figure out how they are going to repay the billions they owe.

These discussions centre on working out a business plan -- a blueprint approved by NAMA on how they will run down their debts over the next decade or so.

It is NAMA's property portfolio team -- headed by John Mulcahy plus 50 'other' staff who have either worked as bankers, property valuers or who have other property-related skills -- who discuss asset disposals or any other options for dealing with the developers' properties.

Denial

Some developers initially believed that NAMA would allow them to sit on their property portfolio until the market recovered and refused to entertain suggestions of asset sales. Their level of denial was borne out in reports that in some instances, developers were called in to meet NAMA's property team as often as two or three times a week as NAMA sought to drive home exactly what they wanted the developers to do.

Not all of its clients have proved belligerent. Some of the builders are said to have been "energised" to finally be engaging with bankers who will help them to work out their problems, after two years when their own banks were paralysed.

"They have been proactive enough," one developer says of his experience of NAMA. "You would like it if they were a bit faster, but they are starting to move. Everybody's business is different. It depends on whether you have a lot of property in the UK or not."

Other developers watching the courtroom drama unfold have some sympathy for McKillen's predicament and have themselves been frustrated in their dealings with NAMA, but are afraid to publicly air their grievances. To criticise NAMA, according to one, is akin to committing a crime "punishable by death".

This is the agency that has the power to determine which of developers will survive and who will go bust, so they are slow to upset it.

But there is a lot of frustration.

There is a feeling among some of NAMA's distressed clients that Ireland's bad bank is being ultra cautious and lacks the skills to handle the huge task it has been given. The curt communications strategy highlighted by McKillen is a concern for other developers.

"They are being careful not to set down principals that will haunt them later and that makes it very difficult to deal with," one source says.

Other developers say the agency refuses to give its clients the most basic information that could help to better their cases. Requests for clarification from NAMA around technical issues, for example, can yield replies of nothing more than the words "under consideration", they say.

Others are frustrated by the slow pace at which the agency makes decisions, while some claim it just won't make crucial decisions at all. Some builders claim to have lost the prospect of securing long-term new tenants for vacant office blocks because NAMA refused to make a decision on the deal. They blame a cautious "civil service mentality" for this.

The bad bank has also generated enormous paperwork that is clogging the system and creating problems on the ground. In one case, a big builder wanted to write a cheque for more than €20,000 for a sub-contractor but couldn't. "A form had to be filled out by his bank to send it to NAMA and then it had to send the money to the bank rather than directly to the builder. That took three months to do," a source says.

Another developer had worked hard to find an investment fund interested in buying a chunk of his business that would have made a substantial dent in his loans, but lost the deal because of NAMA's inaction, he claims. Others complain they are being treated like "criminals".

This treatment is certainly a culture shock for all of the mostly insolvent developers. The days when they were treated like royalty and could rely on buccaneers like Sean FitzPatrick to make quick loan decisions without having to worry too much about pledging prized assets as security are over. They are stuck dealing with an asset recovery vehicle rather than a bank and that was always going to be a stressful and challenging experience.

NAMA describes its business style as "black and white" and is unapologetic for it. It is conditioned to be "thorough" and "suspicious" of its clients, it says.

The agency is certainly overwhelmed by its colossal workload and is slowly dealing with the restructuring of developers' loans with all of the bad bank loans due to be transferred to NAMA by the end of the year. Last week's decision to let the banks deal with the 650 borrowers with loans under €20m due to be transferred in the next batch will help to ease the burden on its staff and speed up the process.

Such is the complexity and volume of loans that more than six months after the billions of loans owed by the top 10 developers were transferred, NAMA has only managed to approve two business plans. Over the next three months, this is expected to rise to 33 and NAMA will effectively send those developers off to implement those plans under their supervision.

The next round of legal skirmishes will begin shortly, when the banks, acting under NAMA's instructions, head to the courts to close down 12 developers who owe €300m and are refusing to cooperate.

"Part of doing this is saying we are serious," McDonagh has said.

It will inevitably be a display of strength by NAMA and it will be interesting to see how these defiant developers fair. A high-profile insolvency for a truculent developer may concentrate the minds of others and accelerate the agency's progress.

If NAMA wins these actions, a brutal phase of asset sales should quickly ensue and that will bring further legal challenges. The pursuit of personal guarantees will also set new precedents. But while the NAMA Bill granted the agency unprecedented powers to compel borrowers to pay their dues, if it can't touch any assets or properties transferred to developers' wives and relatives before December 2009, that could seriously hamper its work and potentially leave a big shortfall. This will inevitably also be fought out in court.

So we can look forward to many more legal battles between Nama and its clients. Each one will inform us a little more about how it is performing and whether it is was the best way to clean up after the property crash and ultimately make money for us -- the taxpayer.

Irish Independent

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