Final Credit Risk Retention Rules Adopted for Asset Backed Securities and Residential Mortgage Backed Securities

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The Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency, Department of Housing and Urban Development, Federal Housing Finance Agency, and Securities and Exchange Commission (the “Regulators”) adopted the final regulations (the “Final Rules”)on October 21 and October 22, 2014, implementing Section 941 of the Dodd-Frank Act which generally requires that a sponsor of a securitization retain at least 5% of the credit risk of any asset that the sponsor, through the issuance of an asset-backed security (“ABS”), transfers, sells or conveys to a third party.2 The Regulators initially proposed rules to implement Section 941 of the Dodd-Frank Act over three years ago (the “First Proposal”)3 and issued a second set of proposed rules in August 2013 (the “Re-proposal”).4

Although the Regulators largely adopted the Re-proposal as drafted, the Final Rules did respond to some of the concerns expressed by commenters. One of the important differences between the Final Rules and the Re-proposal is that the Regulators dropped the restrictions on projected cash flow to eligible horizontal residual interests.5 The Regulators also adopted a definition of “qualified residential mortgage” (“QRM”) that aligns with the definition of “qualified mortgage” (“QM”) adopted by the Consumer Financial Protection Bureau (the “CFPB”) under its ability-to-repay regulations, rather than the far more restrictive “QM-plus” proposal contained in the Re-Proposal.6

The Final Rules are certainly a major disappointment to many market participants. The Final Rules did not adopt the representative sample option that automobile ABS issuers and sponsors had requested.7 The Regulators rejected arguments that collateralized loan obligations (“CLOs”) are different from other types of ABS, and the Final Rules did not provide any additional exemptions for CLO managers other than the “lead arranger” exemption, which is largely considered impractical. See our OnPoint, U.S. Risk Retention Final Rule: Playing it Forward for CLOs (October 22, 2014). Finally, the Final Rules did not broaden the definition of a qualifying commercial real estate loan to make it a practical safe harbor for general commercial lending nor exempt single borrower loans. See our other related OnPoint, Credit Risk Retention Final Rule: Steering CMBS through the Regulatory Wake (October 27, 2014).

The Final Rules are effective (i) one year from the date the Final Rules are published in the Federal Register with respect to ABS secured by residential mortgages and (ii) two years from the date the Final Rules are published in the Federal Register with respect to all other classes of ABS.8

General Provisions

Under the Final Rules, a sponsor can satisfy its risk retention obligations by retaining (either by itself or by a majority-owned affiliate), on the closing date of the securitization, no less than 5% of (i) each class of ABS interests (which must be held in the same proportion for each class) (vertical retention), (ii) the fair value (as calculated by GAAP and determined as of the day on which the price of the ABS interests to be sold to third parties is determined) of the first-loss tranche (horizontal retention) or (iii) any combination thereof, so long as the sum of the percentage of the vertical interest and the percentage of the fair value of the horizontal interest is no less than 5%.9 Notably, the Final Rules differ from the Re-proposal in that a sponsor need not use fair value to calculate its vertical interests, as the Regulators were swayed by commenters’ argument that a 5% interest in the cash flow of each class would always be equivalent to a 5% interest in each class, and thus a fair value calculation would be unnecessary for compliance with the Final Rules.10

In lieu of holding all or part of its risk retention in the form of a horizontal interest, the Final Rules permit a sponsor to establish and fund, in cash, an eligible horizontal cash reserve account, held with a trustee for the benefit of the ABS issuer, in an amount equal to the same amount as would be required if the sponsor held a horizontal interest. Such funds may only be used to satisfy payments on ABS interests in the issuer on any payment date on which the issuer has insufficient funds to satisfy an amount due on any ABS interest and, in response to comments to the Re-proposal, if as a result of a shortfall in available cash flow, to pay critical expenses of the issuer unrelated to credit risk, such as litigation expenses or trustee or servicer expenses, so long as such payments would be paid prior to any payments to ABS interest holders and would not be paid to parties affiliated with the sponsor.11

However, the Regulators did not expand the recognized legal forms of risk retention to include options such as pari passu or subordinated participation interests or pari passu or subordinated companion notes, as they believed that the Final Rules provide sufficient flexibility and permitting additional legal forms would add unnecessary complexity.12 In addition, the Final Rules do not permit third-party credit support (such as insurance policies, guarantees or standby letters of credit) or overcollaterization as methods of risk retention.13

If a sponsor holds all or part of its risk retention in the form of a horizontal interest, the sponsor is required to provide additional disclosure to investors prior to the time of sale of the related ABS, including the fair value of its retained horizontal interest (or if specific prices, sizes or rates of interest are not available, a range of fair values), a description of the material terms of the horizontal interest and a description of the valuation methodology, key inputs, assumptions and reference data used to calculate the fair value.14 After the closing of the ABS transaction, the sponsor must disclose the fair value of the horizontal interest actually retained and the fair value of the horizontal interest the sponsor is required to retain (in each case, based on actual sale prices and tranche sizes) and any material differences between valuation methodology, inputs or assumptions used to calculate the fair value or range of fair values disclosed prior to the closing of the ABS transaction.15 If a sponsor holds all or part of its risk retention in the form of a vertical interest, the sponsor is required to disclose, prior to the time of sale of the related ABS, the form of vertical retention, the percentage the sponsor is required to retain, the amount the sponsor expects to retain at closing, and the material terms of the vertical interest.16 After the closing of the ABS transaction, the sponsor must disclose the actual amount of vertical interest the sponsor retained, if such amount is materially different from the amount disclosed prior to the closing of the ABS transaction.17

Significantly, the Final Rules dropped the requirement proposed in the Re-proposal that the sponsor calculate and certify to investors that, for each payment date, projected cash flows to be paid to the horizontal interest would not exceed the projected principal repayment rate for the other ABS interests on such payment date. The Regulators agreed with the commenters that the restrictions would not operate without significant risk of unintended consequences and recognized they were unable to identify a cash flow restriction mechanism that would function without having an unduly restrictive impact on particular asset classes.18

The Final Rules adopted the proposed ability in the Re-proposal to blend certain qualified assets with non-qualifying assets (“Blended Pools”), including commercial loans, commercial real estate loans and automobile loans. Sponsors will be able to reduce its risk retention requirements down to a minimum of 2.5%, in proportion to the ratio of qualifying assets to non-qualifying assets.19 If it is determined that a loan did not satisfy the underwriting and other requirements to be qualified for the asset type, the sponsor must repurchase or cure such deficiency within 90 days if it wants to preserve the Blended Pool exemption.20

Restrictions on transferring or hedging a sponsor’s risk retention were unchanged from the Re-Proposal. With respect to residential mortgage backed securities (“RMBS”), the transfer and hedging restrictions expire on the date that is (1) the later of (a) five years after closing date of the securitization or (b) the date on which the total unpaid principal balance of the residential mortgage loans is reduced to 25% of the original unpaid principal balance as of the closing date of the securitization and (2) in any event no later than seven years after the closing date of the securitization.21 With respect to all other ABS other than RMBS, the transfer and hedging restrictions expire on the date that is the latest of (1) the date on which the total unpaid principal balance of the assets that secure the ABS is reduced to 33% of the original unpaid principal balance as of the closing date of the securitization, (2) the date on which the total unpaid principal obligations under the ABS interests issued in the securitization is reduced to 33% of the original unpaid principal obligations at the closing date of the securitization, or (3) two years after the date of the closing date of the securitization.22

Risk Retention for Qualified Residential Mortgages

Under the Dodd-Frank Act, securitizations composed solely of QRMs are exempt from the risk retention requirements.23 The Final Rules adopted the proposed definition in the Re-proposal by directly incorporating the CFPB’s definition of QM into the definition of a QRM.24 A QM is generally defined as a loan that meets the following requirements:

  • regular periodic payments that are substantially equal;
  • no negative amortization, interest only or balloon features;
  • a maximum term of 30 years;
  • total fees that do not exceed 3% of the total loan amount (or such other applicable amounts specified for small loans up to $100,000);
  • payments underwritten using the maximum interest rate that may apply during the first five years after the date on which the first regular periodic payment is due;
  • consideration and verification of the borrower’s income, assets and debt obligations; and
  • total debt-to-income ratio that does not exceed 43%.25

In addition, the definition of QRM will include loans that satisfy the criteria of one of the special types of QMs, such as a covered transaction meeting the CFPB’s temporary QM treatment for loans eligible for purchase or guarantee by Freddie Mac, Fannie Mae and certain government entities that meet certain standard QM requirements.26 Under the Final Rules the definition of QRM will be modified as the CFPB modifies the definition of a QM.27

In order for a securitization composed of QRMs to be exempted from the risk retention requirements, each QRM must be currently performing (i.e., not more than 30 or more days past due, in whole or in part) at the closing the closing of the securitization transaction.28 The depositor for the securitization must certify that it has evaluated the effectiveness of its internal supervisory controls to ensure that all assets that secure the ABS are QRMs and that it has determined that its internal controls are effective.29

As in the First Proposal and the Re-proposal, a sponsor that relies on the QRM exemption will not lose its exemption if it is later determined that one or more of the residential mortgage loans securing the ABS did not meet all of the criteria to be a QRM at the closing of the securitization, provided that (i) the depositor complied with its certification requirement, (ii) the sponsor repurchases the loans at a price at least equal to the remaining unpaid aggregate balance and accrued interest on the loans no later than 90 days after it is determined that the loans do not qualify as QRMs and (iii) the sponsor notifies the holders of the ABS.30

The Regulators will periodically review the definition of a QRM, beginning not later than four years after the effective date of the Final Rules and every five years thereafter.31

Risk Retention for Qualified Automobile Loans

The definition of “qualified automobile loan” under the Final Rules remains unchanged from the Re-proposal; in order to qualify as a “qualified automobile loan”, the originator must satisfy certain underwriting requirements which include (i) the borrower is currently not more than 30 days past due, in whole or party, on any debt obligation and within the previous 36 months, the borrower has not been subject to any bankruptcy proceedings, (ii) the borrower’s debt-to-income ratio is less than or equal to 36%; (iii) the borrower makes a down payment on the loan equal to the sum of 10% of the vehicle purchase price plus certain fees and (iv) the borrower makes equal monthly payments that fully amortize the loan over a maximum of six years from origination for new cars or ten years minus the difference between the current model year and the vehicle’s model year for used cars.32

Footnotes

1. Final Rule Implementing Section 941 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Credit Risk Retention) (Sept. 21, 2014).

2. See Securities Exchange Act of 1934 § 15G, 15 U.S.C. § 78o-11.

3. Notice of Proposed Rulemaking to Implement Section 941 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Credit Risk Retention), 76 Fed. Reg. 24090 (Apr. 29, 2011).

4. Notice of Proposed Rulemaking to Implement Section 941 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Credit Risk Retention), 78 Fed. Reg. 57928 (September 20, 2013).

5. Final Rule, supra note 1, at 89.

6. Id. at 355-356.

7. Id. at 139.

8. Id. at 2.

9. Id. at 427-428 (Subpart B, §__.4(a)).

10. Id. at 83.

11. Id. at 428-429 (Subpart B, §__.4(b)).

12. Id. at 46-47.

13. Id. at 47.

14. Id. at 429-432 (Subpart B, §__.4(c)(1)(i)).

15. Id. at 432-433 (Subpart B, §__.4(c)(1)(ii)).

16. Id. at 433-434 (Subpart B, §__.4(c)(2)(i)).

17. Id. at 434 (Subpart B, §__.4(c)(2)(ii)).

18. Id. at 89.

19. Id. at 489-490 (Subpart D, §__.15(b)).

20. Id. at 494-495, 504-505, 508-509 (Subpart D, §§__.16(b), __.17(b), __.18(b)).

21. Id. at 477-478 (Subpart C, §__.12(f)(2)).

22. Id. at 477 (Subpart C, §__.12(f)(1)).

23. 15 U.S.C. 78o-11(c)(1)(C)(iii).

24. Final Rule, supra note 1, at 479 (Subpart D, §__.13(a)).

25. See 12 C.F.R. 1026.43(e)(2).

26. See 12 C.F.R. 1026.43(e)(4).

27. Final Rule, supra note 1, 479 (Subpart D, §__.13(a)).

28. Id. at 479 (Subpart D, §__.13(b)(3)).

29. Id. at 479-480 (Subpart D, §__.13(b)(4)).

30. Id. at 480-481 (Subpart D, §__.13(c)).

31. Id. at 522 (Subpart D, §__.22).

32. Id. at 505-508 (Subpart D, §__.18(a)).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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