A company, ABC Ltd, lends money on the security of mortgages/hypothecs on immovables. It now wishes to raise money in the financial markets. It wants to use its portfolio of secured loans as security for the transaction. The goals will be that ABC Ltd will not itself become liable on the transaction, and moreover that investors will not be adversely affected by any subsequent insolvency of ABC Ltd. How can the transaction be structured so as to isolate the portfolio of secured loans from the general business of ABC Ltd?
There are only a few articles on securitisation in the Austrian literature, and no court decision at all. The following remarks therefore have only a preliminary character.
In principle, Austrian law provides all the legal instruments required to structure securitisation transactions. First, it will be necessary to set up a new company, a special purpose vehicle (SPV). In a second step, ABC Ltd shall transfer its secured loans to the SPV. In exchange for them, the SPV shall pay a certain sum to ABC Ltd. To raise the money necessary for this payment, the SPV shall issue bonds to investors. If those investors are the only creditors of the SPV, then the security of the claims assigned to the SPV will also secure the investors' claims. As there is no direct relationship between the investors and ABC Ltd, this company will not be liable for the SPV's debts towards the bondholders.