Securitisation arises in three very different contexts. A banker wanting to remove loans from its balance sheet to free up own funds. A corporate treasurer seeking to mobilise trade receivables at lower cost than factoring. An institutional investor subscribing to the issued securities. Behind these three entry points lies a single mechanism, but the legal reading differs depending on which side of the table you sit.
This guide addresses each profile, as well as practitioners intervening on a securitisation file or challenging an assignment in recovery proceedings.
What is securitisation?
Securitisation is a financial technique transforming illiquid assets – typically receivables – into negotiable securities on capital markets. It enables a credit institution or business to refinance immediately without waiting for receivables to mature. The structure rests on three pillars: asset transfer (the originator transfers a portfolio of receivables); creation of a dedicated vehicle – an organisme de titrisation (OT) or Special Purpose Vehicle (SPV), legally distinct from the originator; and issuance of securities subscribed by investors. Cash flows from the assigned assets serve to remunerate investors.
The key element is bankruptcy remoteness: in the event of the originator’s insolvency, securitised assets remain beyond the reach of its creditors. The investor is exposed only to default risk on the underlying debtors, not to the originator’s failure.
Actors of an operation
The originator (cedant): today, any business may assign receivables to an OT. In practice, three categories dominate: banks (mortgage, consumer or corporate loan portfolios), large industrial companies (trade receivables), and public-sector entities.
The OT: French law offers a dual structure – fonds commun de titrisation (FCT), a co-ownership without legal personality, or société de titrisation (ST), with legal personality as SA or SAS. The choice affects governance, taxation, presentation to international investors and litigation modalities.
The management company (société de gestion de portefeuille, SGP): authorised by the AMF, it orchestrates the entire lifecycle of the OT.
The depositary: Holds assets and controls the regularity of SGP decisions. An incompatibility rule prevents the same entity from acting as both SGP and depositary.
The servicer/collector: Manages administrative recovery of receivables – typically the originator itself, maintaining client relationships.
Assignment by bordereau: a derogatory regime
The assignment regime applicable to OTs derogates from general law. Article L. 214-169 CMF provides that assignment takes effect and becomes opposable to third parties at the sole date on the bordereau, without signification to the debtor or acceptance by authentic act.
The key question – whether signification was nonetheless required to make the assignment opposable to the assigned debtor – was definitively resolved by two Cour de cassation rulings. Cass. 2e civ., 8 February 2024, no. 21-18.702: the formalities of Article 1690 Code civil do not apply to bordereau assignments. Cass. com., 26 March 2025, no. 23-23.857: Article 1324 (post-2016 reform) is equally inapplicable. The assignment is opposable to all, including the debtor, at the bordereau date alone.
However, a bordereau without a date is void of all effect (Cass. com., 15 March 2023, no. 21-24.490). Verifying the date is the first reflex in any defence.
The surety retains the faculty to exercise the retrait litigieux (Article 1699 Code civil) even where the receivable was assigned in bulk (Cass. com., 14 February 2024, no. 22-19.801).
Recovery of securitised receivables
FCT assignees – often recovery funds like Quercius, Ornus or Absus – have become recurring actors before civil and commercial courts. The central defence question is standing: Article L. 214-172 CMF provides that the entity charged with recovery may represent the OT in all court actions without special mandate. Cass. com., 6 March 2024 (no. 22-16.074) confirmed that designation of the servicer in the assignment deed itself constitutes sufficient convention.
The European framework and STS label
EU Regulation 2017/2402 establishes a common framework and the Simple, Transparent and Standardised (STS) label. Three criteria families: simplicity (homogeneous assets, true sale, no active management); transparency (granular data, performance history, clear payment waterfall); standardisation (harmonised documentation, 5% minimum risk retention). The label confers favourable prudential treatment for banking and insurance investors. Extended to synthetic on-balance-sheet securitisations by Regulation 2021/557.
Exposure modes
Beyond classic receivable acquisition, modern securitisation encompasses: synthetic securitisation (only credit risk is transferred via credit derivatives, assets remain on originator’s balance sheet); insurance risk transfer (catastrophe bonds); whole business securitisation (entire revenue streams of a business activity).
Credit enhancement techniques
Tranching (subordination of junior tranches absorbing first losses); overcollateralisation (asset value exceeds securities issued); external guarantees (autonomous guarantee under Article 2321 Code civil); subordinated loans; reserve funds.
When to engage a lawyer
At structuring (FCT vs ST, cash vs synthetic, STS labelling). At assignment (securing the bordereau, verifying receivable eligibility). In recovery litigation for the debtor: verifying bordereau date and completeness, surety’s rights, retrait litigieux, challenging the receivables list.
Solent Avocats acts alongside originators, debtors and sureties. See our banking law guide and banking practice page.