A report on the benefits of GSE CRT programs, 包括 direct benefits accruing the GSEs, as well as overarching benefits for the broader housing market
国家林业局 信用风险转移s (CRT) Transactions White Paper: 概述 of current structures and regulatory issues in CRT transactions.
In the amicus 短暂的 国家林业局 calls out the longstanding law applying the valid when made doctrine and the protection against harmful economic consequences that the 联邦存款保险公司 Rule provides.
国家林业局 is focused on the impact of regulatory capital and liquidity rules – whether new via proposed regulation or legislative action – and related bank regulatory developments. We are especially focused on implications for the securitization market, as well as on the follow-on effects of these policies for bank lending and availability of 信贷 for consumers and small businesses.
Occasionally judicial rulings have a significant impact on the structured finance market and by direct extension, reduces a portion of the access to 信贷 it supplies. 的 马登v 米德兰基金 情况下 was one of these instances.
的 legal doctrine of “valid-when-made” is a long-standing principle in U.S. banking law that has been relied upon for nearly 200 years. 的 doctrine provides that a loan, if valid at the time of inception, cannot be deemed invalid or its terms determined unenforceable due to its transfer, sale or assignment to another person. This principle has provided certainty to lenders and other market participants who lend to U.S. consumers or supply 信贷 to borrowers via the acquisition or subsequent financing of loans.
However, the “valid-when-made” doctrine has been called into question by the U.S. District Court for the Second Circuit’s decision in the 情况下 of 马登v 米德兰基金.
自 马登, a shadow has been cast on the ability to rely on the “valid-when-made” doctrine, and there is a broad-based view that the 情况下 was decided incorrectly, both from legal experts in the industry as well as regulators. 的re has been a negative impact on the 信贷 markets, demonstrably impacting borrowers in Second Circuit sates of Connecticut, 纽约, 和佛蒙特州. 例如,一个 Columbia-Stanford研究 shows that borrowers with FICO scores below 625 have seen a 52% reduction in 信贷 availability 自从决定. Further, this decision may affect a bank’s ability to securitize or sell loans.
Due to the significant market disruption raised by the ruling , 包括, 非常重要的是, the negative impact to certain underserved consumers and small businesses access to, 和成本的, 信贷, the Structured Finance Association has formed a Task Force to advocate for a regulatory and/or legislative action to provide the market with certainty on this issue.
“的 Valid-When-Made doctrine is of crucial importance for banks’ ability to engage in consumer lending across all financial products. If banks cannot fund that lending activity by selling such assets to non-bank market participants or securitizing those assets, it will have a massive impact on the availability of 信贷 – especially for borrowers that are at the lower end of the 信贷 spectrum.”
Madden-Related Cases: 追逐 and 第一资本金融公司:
Following the Second Circuit’s decision in the 马登v. 米德兰 情况下, two lawsuits in 纽约 could subject the securitization market more broadly to additional litigation that could significantly impact the lending market. What makes these 情况下s unique is that Plaintiffs in both 情况下s scope in Trusts and Trustees for the first time by arguing that because they securitize 信贷 card receivables from national banks, they forfeit federal preemption and thus cannot claim a National Bank Act exemption. 国家林业局 has submitted amicus 短暂的s in both these 情况下s which detail the legal underpinnings of federal preemption, describe the potential harm to the market, and the impact on cost and availability of consumer 信贷.
纽约 State Credit Card Securitization Cases:
Plaintiffs filed two lawsuits in the Eastern District of 纽约 against 第一资本金融公司 Funding LLC, 第一资本金融公司 Master Trust, and 第一资本金融公司 Multi-Asset Execution Trust (科恩v. 第一资本金融公司) and in the Western District of 纽约 against 追逐 Card Funding LLC and 追逐 Card Issuance Trust with Wilmington Trust named as sole trustee (彼得森v. 追逐). Plaintiffs in both 情况下s allege that the two banks violated 纽约 state laws by setting an interest rate over 纽约’s current cap of 16% and seek to recoup the interest payments in excess of that rate and cap rates going forward. While both 情况下s focus on 信贷 card debt, 国家林业局 members warn that the outcome of these 情况下s has the potential to impact all forms of securitized debt by potentially subjecting national banks to overburdensome state-by-state regulation. A favorable outcome for either Plaintiff could have several negative and long-lasting effects on the U.S. securitization and lending market by limiting funding sources and forcing banks to seek more financing away from securitization, thereby impacting their ability to extend 信贷. 国家林业局, in partnership with the Bank Policy Institute, 提起运动 8月13日th supporting the defendants’ motion to dismiss in 彼得森v. 追逐, 并提起 短暂的 in support of defendants in the 科恩v. 第一资本金融公司 10月4日个案th. 在这两种情况下, 国家林业局 highlights the potential negative impact on lending markets and the cost and availability of 信贷 for U.S. consumers and businesses.
很多人都知道, the purpose of Dodd-Frank’s “Volcker Rule”, 2013年完成, was to prohibit proprietary trading by regulated banks as well as to rein in banks investing in private equity firms and hedge funds. 不幸的是, the regulations as written have had unintended consequences on the securitization market.
的 Structured Finance Association’s perspective is that some of these consequences are clearly unintentional, since Dodd-Frank explicitly exempts securitization from restriction under the Volcker Rule by stating that “[n]othing in this section shall be construed to limit or restrict the ability of a banking entity or nonbank financial company … to sell or securitize loans in a manner otherwise permitted by law.”(Section 619 (g) (2)). Notwithstanding this clear statutory language, bank participation in the securitization industry, 是否作为赞助商, 发行人或投资者, continues to be hampered by the breadth of the definition of “covered funds” in the 2013 Final Rule.
Recognizing the need to fine tune some aspects of the initial regulations, 在过去的几年里, the agencies mandated with Volcker Rule implementation have requested public input and issued a reproposal. In an effort to help ensure that the final rules accurately capture the language of the statute, the Structured Finance Association (formerly SFIG) has submitted several comment letters and held many meetings with relevant regulators.
2020年1月, the federal regulatory agencies announced proposed changes to the Volcker Rule that will modify and clarify requirements relating to the Covered Fund provisions of the Rule. 的se changes will ease banks’ compliance burdens and permit additional fund activities that do not present risks that the Volcker Rule was originally intended to address.
Staff and co-chairs of our Volcker Task Force previously met with the Federal Reserve, 货币监理署, 联邦存款保险公司, and SEC to discuss the securitization industry’s key concerns and recommendations, 包括 modifications to the following:
Loan Securitization Exclusion
- 正如上面所提到的, the Volcker statute clearly allows loans to be securitized by a covered bank and not run afoul of the Volcker rule.
- 的 current regulatory language, 然而, is written so narrowly as to exclude certain types of loans. 例如,一个uto ABS issuers are currently not permitted to include auto leases in deals that are exempt from Volcker. Our view is that the final, amended regulations should permit issuers to hold leases and other assets that are not simply “loans”.
Definition of Ownership Interest
- 的 Structured Finance Association believes that regulators should clarify that the safe harbor exclusion for any loan, 债务证券, or other form of bank financing that provide the debt holders with the right to receive stated interest and principal by a final maturity date.
的 Structured Finance Association and its Volcker Task Force welcome the opportunity to provide further comments to the joint agencies and offer solutions on aspects of the Rule that hinder securitization and banking activities that the Rule was never intended to cover.
商业银行, 再保险公司, 抵押贷款保险公司, 房地产投资信托基金, and investment firms are an important source of capital in the mortgage market and help to ensure that homeowners can access affordable mortgage products. Regulators and policymakers play a crucial role in establishing the regulatory and capital framework for these investors and intermediaries to obtain capital relief where appropriate, and that they do so in a safe and sound manner. One such method for obtaining capital relief is 信贷 risk transfer, or CRT.
CRT transactions are financing structures that involve the transfer of 信贷 risk of all or a tranche of a portfolio of financial assets. 的 protection buyer will typically own the portfolio of assets, which may be corporate loans, 抵押贷款, 或其他资产. 的 protection seller may be a bank, an insurance or reinsurance company, 一个信任, or other capital markets investors seeking to take on 信贷 risk.
自2014年以来, the Federal 住房金融 Agency (FHFA) has required Fannie Mae and Freddie Mac (GSEs) to engage in CRT transactions as part of their annual scorecard requirements. 在这段时间里, the GSEs have sold $22B of 信贷 risk to the capital markets on a total unpaid principal balance of single family of $643B. 的 Structured Finance Association supports the fundamental principle expressed by the US Treasury that “similar 信贷 risks generally should be subject to similar 信贷 risk capital charges across market participants”.
的 Structured Finance Association is working to create a level playing field where all participants receive equitable capital treatment for similarly structured risk transactions.
This involves educating policymakers and—where appropriate—advocating for changes or clarifications to in significant risk transfer transactions. Such steps will ultimately benefit consumers as more private capital will be available to provide access to 信贷.
“As policymakers work to expand the use of private capital in housing finance, CRT transactions represent significant potential to expand the breadth and depth of investors able to support these efforts.”
——吉姆Bennison EVP-Alternative Markets, Arch 资本 Group