Archive for the ‘Regulations’ Category

Bill would waive retirement penalties to buy REOs

April 20, 2011

Housingwire.com

A bill introduced in the U.S. House of Representatives would waive early distribution penalties on certain qualified retirement plans if the funds are used to buy a house that has been in foreclosure for a year or more.

Bill Posey (R-Fla.) introduced H.R. 1526 — the Housing Recovery Act of 2011. It has been referred to the Committee on Ways and Means.

"It’s not an end-all fix," Press Secretary George Cecala said. "It’s just another idea to help the housing market."

The idea is to add stability to neighborhoods by promoting purchases by owner-occupants or those seeking a second home rather than investors who immediately "flip" the home. Under the bill, the purchaser must agree to hold the property for at least two years to be exempt from early retirement plan distribution penalties.

The bill is expected to apply to distributions from Roth IRAs, 401(k) plans and company pension plans. It would require the person to use the retirement distribution within 120 days of receipt by buying a home that "has been in foreclosure for a year or more."

Cecala said Posey, a Realtor, anticipates that the one-year period would begin at the point that the foreclosed property is listed for sale, but said the congressman is open to amending the bill to be more specific about when the clock would start ticking.

Several states have extremely drawn-out foreclosure processes. Foreclosures in judicial state average about 13 months from start to finish. But once foreclosures are repossessed by the lender and enter what is known as real estate-owned status, or REO, it is not uncommon for them to be snapped up once listed for sale.

In Posey’s home state, his district covers Florida’s "Space Coast" not far from Orlando area. He is owner and founder of Posey Realtors & Co. in Rockledge, near Cape Canaveral.

Florida accounted for nearly 9% of U.S. foreclosure activity during the first quarter, documenting 58,322 properties with a foreclosure filing, second behind California, which accounted for nearly 25% of foreclosure activity, according to RealtyTrac.

Florida foreclosure activity decreased 47% from the previous quarter and was down 62% from the first quarter of 2010 — although the state still posted the nation’s eighth highest foreclosure rate with one in every 152 housing units with a foreclosure filing during the first quarter.

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Broker Fee Rules Take Effect

April 19, 2011

The New York Times

THERE have been changes in federal rules covering how mortgage brokers are paid, and while legal challenges to them persist, the question now is how the new system will work in practice.

Regulators and consumer advocates say borrowers are bound to benefit. Broker trade groups say their industry will shrivel and consumer costs will go up.

Mortgage brokers are middlemen who work with multiple lenders to arrange home loans for customers. They say they add value by helping borrowers find the best deal; their detractors say they add costs that have been hidden in complex fees.

The business has contracted significantly in the last five years. In 2005, during the real estate boom, brokers accounted for 31 percent of mortgages originated, according to Inside Mortgage Finance, a trade publication. Last year it was just 11 percent, and the market was only half as big.

Brokers used to be compensated by a mix of borrower-paid origination fees and lender-paid fees. The most controversial was a “yield spread premium,” paid by lenders when a broker placed a borrower in a loan that charged higher interest than other loans. The justification was that higher rates allowed lower upfront closing costs. The criticism was that the premiums were an incentive to push expensive loans and that the system contributed to a flood of risky loans and thus to the financial crisis.

In response, the Federal Reserve put out rules that prohibit loan originators from being paid by both the borrower and lender on the same deal, and also barring commissions based on anything other than loan size. The rules were set to take effect April 1; two trade groups sued, delaying enactment a few days before a federal appeals court allowed it. Both the National Association of Mortgage Brokers and the National Association of Independent Housing Professionals say they will keep pressing their lawsuits.

On the front line, the problem is that there has been “no clear guidance” on exactly how to arrange commission structures for employees who originate loans, said Melissa Cohn, the president of the Manhattan Mortgage Company, a loan brokerage firm.

“To be honest with you,” she said, “in some cases it’s going to create higher-priced mortgages.” Although the spirit of the law is to protect borrowers, she added, “the reality of it is it’s just going to cause more confusion.”

Mike Anderson, the director of the National Association of Mortgage Brokers, speaking just two days after the rules went into effect, said: “It’s already happening. Rates have already gone up; fees have gone up.” Mr. Anderson, who is also a broker in New Orleans, cited situations in which brokers could no longer cut fees to make deals go through, and others in which banks were raising charges. “The rules basically pick the winners and losers,” he said, with the winners being the big banks. “The losers are the small businesses.”

The Facebook page of the National Association of Independent Housing Professionals is full of complaints from what appear to be mortgage brokers saying the rules will hurt their business, and recounting how unnamed lenders have raised prices.

Despite industry opposition, the change is a victory for borrowers, according to representatives of the Center for Responsible Lending, an advocacy group long critical of the yield-spread premium system. Borrowers “should be getting more honest services from the originator they’re working with,” said Kathleen E. Keest, a senior policy counsel, “because that originator is no longer going to have a conflict of interest if they put a borrower in a loan with a higher interest rate or riskier terms.”

“If people were saying that the way things worked, worked well,” she added, “that’s one thing, but it’s very clear the way things worked before didn’t work for anybody. The notion we need to have the same rules is denying what happened. It’s denying that the way the market was working was disastrous for everybody.”

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Republicans Dive Head First into GSE Reform with Eight New Bills

March 30, 2011

BY JANN SWANSON –Mortgage News Daily

The House Republicans who will ultimately have the most influence on the decision have come out with a plan for reforming the two government sponsored enterprises (GSEs) Fannie Mae and Freddie Mac.

Scott Garrett (R-NJ) Chairman of the House Financial Services Subcommittee on Capital Markets and Government-Sponsored Enterprises released what was actually a summary of eight bills, each covering a different aspect of reform and each introduced by a different member of the parent Financial Services Committee.  They cover a broad range of issues involved in bringing the government’s conservatorship of the GSEs to an end and establishing a philosophy as well as a new system of financing the housing industry.

Garret said that this is the first in what will be multiple rounds of "very specific, very targeted bills to end the bailouts, protect the taxpayers and get private capital off the sidelines."  The end result, he said, will formally wind down the GSEs and return the housing finance system to the private marketplace.
"With the American taxpayers on the hook for $150 billion and counting, the bailout of Fannie and Freddie is already the most expensive component of the federal government’s intervention into the financial system.  Americans are tired of the ongoing bailout of the failed government-backed mortgage giants, and they are tired of Democrats’ refusals to address the driving force behind the financial collapse.  While Democrats chose to ignore the problem last Congress, House Republicans stand ready to end the bailout and protect American taxpayers from further losses."

Here is a summary of the bills:

The Equity in Government Compensation Act, sponsored by Spencer Bachus (R-AL), Chairman of the House Financial Services Committee.

The bill suspends the current compensation packages for all GSE employees and replaces them with a system consistent with the Executive Schedule and Senior Executive Service of the Federal Government.  The bill also expresses the sense of the Congress that the 2010 pay packages for senior executives were excessive and the money should be returned to taxpayers.

The GSE Mission Improvement Act, sponsored by Ed Royce (R-CA)

This legislation would permanently abolish the affordable housing goals of Freddie Mac and Fannie Mae.  According to Royce’s comments accompanying the bill, these goals were a central cause behind the collapse of the GSEs and the ongoing goal of the GSEs should be to reduce risk to taxpayers rather than expose them to further losses.  "To meet these goals, the GSEs purchased more than $1 trillion in ‘junk loans.’  These loans accounted for a large portion of the mortgage giants’ losses – losses that were later loaded onto the backs of American taxpayers."

The Fannie Mae and Freddie Mac Accountability and Transparency for Taxpayers Act (H.R. 31), sponsored by Judy Biggert (R-IL) Chairman of the House Financial Services Subcommittee on Insurance, Housing and Community Opportunity.
This bill would establish an Inspector General (IG) within the Federal Housing Finance Agency (FHFA,) the conservator of the GSEs, provide him/her with additional law enforcement and personnel hiring authority, and require him/her to submit regular reports to Congress on taxpayer liabilities, investment decisions, and management details.  These reports would be made publically available.
The GSE Subsidy Elimination Act, sponsored by Randy Neugebauer (R-TX) Chairman of the House Financial Services Subcommittee on Oversight.

The proposed legislation would direct FHFA to phase in an increase in the fees it charges for its guarantee as though they were held to the same capital standards as private financial institutions.  The phase-in would be conducted over two years and would, the summary says, level the playing field so that private capital can re-emerge, decreasing the government’s exposure to housing market risks.

GSE Portfolio Reduction Act, sponsored by Jeb Hensarling (R-TX), Vice Chairman of the House Financial Services Committee.

This bill would accelerate and formalize the previously established rate of reducing the portfolios of the two GSEs by setting annual limits on the maximum size of each portfolio rather than using the percentage decrease currently in place.  The bill would cap the portfolios at $700 beginning in year one and bring them down to $250 billion by the end of year five.

GSE Risk and Activities Limitation Act, sponsored by David Schweikert (R-AZ), Vice Chairman of the House Financial Services Subcommittee on Capital Markets and Government-Sponsored Enterprises.
This bill would prohibit the GSEs from engaging in any new activities or businesses.  The bill’s sponsor acknowledges that FHFA already has such a prohibition in place; the bill merely codifies that prohibition.
The GSE Debt Issuance Approval Act, Sponsored by Steve Pearce (R-NM).
Under the requirements of this legislation, the Department of the Treasury would have to formally approve any new debt issued by the GSEs.  Pearce comments that, "This will help protect taxpayers by requiring the formal legal authority of U.S. debt issuance to approve the issuing of agency debt which is roughly the same as U.S. debt."

GSE Credit Risk Equitable Treatment Act, sponsored by Scott Garrett.   
This proposed legislation would apply any of the standards applied to private secondary mortgage market participants to the GSEs. It would, according to Garrett, ensure that the GSEs are not exempt from new risk-retention rules mandated by Dodd-Frank and that they face the same retention standards as private market participants.  Garrett said this bill will make clear that Fannie Mae and Freddie Mac will be held to the same standards as any other secondary mortgage market participants.  Under Dodd-Frank, Fannie and Freddie could still be able to purchase a mortgage from a financial institution that falls outside of the Qualified Residential Mortgage (QRM) definition and issue asset-backed securities backed by non-QRM assets.  Garrett’s bill would clarify that a GSE loan purchase or asset-backed security issuance would not affect the status of the underlying assets.  If the GSEs purchase a non-QRM loan, all lender risk-retention requirements will still apply, and if the GSEs issue a non-QRM security, all securitization risk retention rules will still apply.

The Financial Services Subcommittee on Capital Markets and Government-Sponsored Enterprises will hold a legislative hearing on the eight bills Thursday, March 31st and then a markup on Tuesday, April 5th. 

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Skin in the Game: Risk Retention Proposal Published

March 30, 2011

BY ADAM QUINONES –Mortgage News Daily

The Office of the Comptroller of the Currency, Treasury,  Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation (FDIC), U.S.Securities and Exchange Commission; Federal Housing Finance Agency (FHFA) and Department of Housing and Urban Development (HUD) have released a proposal to define Qualified Residential Mortgages (QRM). QRMs are home loans that will be exempt from the requirement that mortgage lenders retain a 5 percent share of each loan they originate that is packaged for securitization – keeping "skin in the game."

The Dodd-Frank financial reform bill already identified loans guaranteed or originated through FHA, VA, and USDA as qualified for exemption but left other products, including loans written by Fannie Mae and Freddie Mac, up to federal regulators to determine. Under the proposed definition released today,  Fannie Mae and Freddie Mac will indeed be exempt from risk retention regs at least while the GSEs are under government control. When/If Fannie and Freddie are released from conservatorship their exemption status will be revisited. For non-agency loans to meet the QRM definition and avoid being subject to risk retention regs, they must have down payments of 20% or more and DTI of 28% / 36% or less. Also, QRMs will not include products that add complexity and risk to mortgage loans, such as terms permitting negative amortization, interest-only payments, or programs with significant payment shock potential.

FDIC Chairman Sheila C. Bair delivered the following statement at the FDIC’s Board Meeting today:

"This morning we are proposing to address a key driver of the housing crisis: misaligned economic incentives arising from the widespread use of private securitization to fund mortgage lending. Almost 90 percent of subprime and Alt-A originations in the peak years of 2005 and 2006 were privately securitized. During that period, the separation of originating and securitizing loans from the risk of loss in the event of default fed a massive amount of lax, unaffordable lending which fueled the housing bubble. Since neither lenders nor securitizers appeared to hold any real risk in the transaction, the "originate-to-distribute" model of mortgage finance misaligned incentives to reward the volume of loans originated, not their quality. The consequences for our economy have been severe.

Today, the market is trying to find a new model. Title IX of the Dodd Frank Act seeks to address the defects of the prior model of securitization by imposing requirements for transparency, due diligence, representations and warranties, and retention of credit risk. The SEC has already proposed rules to address transparency.
The rule before the Board today proposes new standards for retention of credit risk to help ensure that securitizers will hold "skin in the game" which will align their interests with those of bondholders. This will encourage better underwriting by assuring that originators and securitizers can not escape the consequences of their own lending practices. Fundamentally, this rule is about reforming the "originate-to-distribute" model for securitization, and realigning the interests in structured finance towards long-term, sustainable lending. If we are truly interested in restarting securitization, then we must restore investor confidence and the soundness of the securitization model. As required by Dodd-Frank, the proposed rule creates a comprehensive framework for risk retention

The general rule set out in Dodd-Frank is to require issuers of securitized loans to retain a 5 percent interest in the risk of loss. The law provides an exception to that rule and directs the agencies to set a standard for underwriting and product features that, as shown by historical data, result in a lower risk of default such that risk retention is not necessary. The QRM is the exception, not the rule, and as such, I believe should be narrowly drawn. Properly aligned economic incentives are the best check against lax underwriting. Because QRM loans are exempt from risk retention, the proposed QRM definition sets appropriately high standards regarding documentation of income, past borrower performance, a low debt-to-income ratio for monthly housing expenses and total debt obligations, elimination of payment shock features, a maximum loan-to- value or LTV ratio, a minimum down payment, and other quality underwriting standards. This does NOT mean that under the rule, all home buyers would have to meet these high standards to qualify for a mortgage. On the contrary, I anticipate that QRMs will be a small slice of the market, with greater flexibility provided for loans securitized with risk retention or held in portfolio.
Many have expressed concern that imposing a specific LTV standard, such as 80 percent, or a specific down payment standard, such as 20 percent, will impair the access of low- and moderate-income borrowers to mortgage credit. As a consequence, we are seeking comment on the impact of the QRM standards on low- and moderate income borrowers as we consider the comments on the NPR and work towards a final rule. We take these concerns very seriously and want to make sure they are fully addressed. In particular, I would welcome comment on how and whether we can assure that the unique needs of LMI borrowers can be met through FHA programs as well as appropriately underwritten portfolio lending and risk retention securitizations.
Also included in the QRM standards are loan servicing requirements. Continued turmoil in the housing market caused by inadequate and poor quality servicing underscores the need to make sure that future securitization agreements provide appropriate resources and incentives to mitigate losses when loans become distressed. Servicing standards must also provide for a proper alignment of servicing incentives with the interests of investors and address conflicts of interest. The servicing standards included as part of the QRM requirements address many of the most significant servicing issues. I am particularly pleased that the servicing standards require that there be financial incentives for servicers to consider options other than foreclosure when those options will maximize value for investors. The proposed standards also require servicers to act without regard to the interests of any particular tranche of investors; to disclose any second-lien interests if they service the first lien; and to workout and disclose to investors in advance how second liens will be dealt with if the first lien needs to be restructured. I welcome comment on the proposed servicing reforms, whether they can be strengthened, and whether they should apply more generally to all private securitizations, not just QRMs."

Risk Retention Proposed Rule:

I. Section 941(b) of the Dodd-Frank Act

  • Section 941(b) of the Dodd-Frank Act1 creates section 15G of the Securities Exchange Act. New section 15G requires the OCC, FRB, FDIC, and SEC2 to issue joint regulations requiring securitizers of asset-backed securities (ABS) to retain an unhedged economic interest in a portion of the credit risk (not less than 5%) for assets that the securitizer packages into the securitization for sale to others, except where those assets are underwritten according to underwriting standards established by regulation.
  • Where these regulations address the securitization of residential mortgage assets, HUD and the FHFA also are part of the joint rulemaking group. The Treasury Secretary, as Chairperson of FSOC, is directed to coordinate the joint rulemaking.
  • The agencies are directed to define the appropriate form and amount of risk retention interests, to consider circumstances in which it might be appropriate to shift the retention obligation to the originator of the securitized assets, and to create rules addressing complex securitizations backed by other asset-backed securities.
  • The agencies also must implement the statutory exemption from the risk retention requirements for "qualified residential mortgages" (QRMs) with underwriting and product features that historical loan performance data indicate result in a lower risk of default. Securities backed entirely by QRMs are not subject to any risk retention requirement.
  • Section 15G also requires the agencies to establish underwriting standards indicative of low credit risk for other asset classes used in securitizations, including auto loans, commercial loans, and commercial real estate loans. Securitizations backed by assets that meet these standards may be subject to less than 5% risk retention.

II. Overall Approach

  • The proposed rule prescribes underwriting criteria for QRMs and certain other asset classes, and provides that sponsors of securitizations comprised of these "qualified assets" are not required to retain risk under section 15G.

Consistent with the statutory purpose of requiring "skin in the game" for all but the least risky assets, the QRM underwriting standards are conservative. The proposed standards also are designed to be unambiguous; they draw "bright lines" in order to facilitate transparency and enable verification by securitization sponsors and investors.

  • While the risk retention exemptions under the proposal area conservative, the proposal also contains various options for how the risk retention requirements can be satisfied for non-exempt assets. A securitizer may then chose, based on the type of asset involved and market and investor expectations, which form of risk retention to use. The agencies intended that these options would provide flexibility so that the risk retention requirements not impede the reemergence of robust securitization markets for nonexempt loans.
  • Comments received during the public comment process will be vital to the agencies in evaluating the appropriate stringency of standards for QRMs and other categories of assets exempt from risk retention, and whether the flexibility of the multiple risk retention options proposed would achieve the agencies’ objective of not impeding securitization activities for non-exempt asset classes.

III. Description of the proposal

A. Underwriting Standards

1. Qualified Residential Mortgages (QRMs)

Historical Data. The proposed rule establishes the terms and conditions under which a residential mortgage would qualify as a QRM. As required by the statute, the agencies developed these underwriting criteria through evaluation of historical loan performance data, which is described, in detail, in the preamble to the proposal.

Nontraditional Product Features. The proposed rule generally would prohibit QRMs from having product features that add complexity and risk to mortgage loans, such as terms permitting negative amortization, interest-only payments, or significant interest rate increases.

Underwriting Standards. The proposed definition of QRM would establish conservative underwriting standards designed to ensure that QRM loans are of very high credit quality. These standards include:

  • Maximum front-end and back-end borrower debt-to-income ratios of 28% and 36%, respectively;
  • A maximum loan-to-value (LTV) ratio of 80% in the case of a purchase transaction (with a 75% combined LTV for refinance transactions, reduced to 70% for cash-out refis);
  • A 20% down payment requirement in the case of a purchase transaction;Borrower credit history restrictions, including no 60-day delinquencies on any debt obligation within the previous 24 months.

Mortgage Insurance. The LTV ratio must be calculated without considering mortgage insurance. Although mortgage insurance protects investors from losses when borrowers default, and thus lessens the severity of the loss, the statute directs the agencies, in developing the QRM criteria, to consider whether mortgage insurance reduces the risk that default will occur in the first place.

Servicing Requirements. The proposal includes in the criteria for a QRM a limited set of servicing requirements that may lower the risk of default on residential mortgages The proposal requires that the originator of a QRM incorporate in the mortgage transaction documents certain requirements regarding servicing policies and procedures for the mortgage, including procedures for loss mitigation actions, and procedures to address subordinate liens on the same property securing other loans held by the same creditor.

  • The servicing requirements focus on establishing a process for the creditor to take loss mitigation activities into account in servicing QRMs, but they do not dictate particular types of actions to be undertaken, and they factor in consideration of the relative estimated economic impacts on the QRM of loss mitigation versus other approaches in dealing with distressed loans.
  • The servicing requirements included in this proposal cannot supplant the ongoing interagency effort to develop national mortgage servicing standards. Those national mortgage servicing standards would apply to residential mortgages regardless of whether the mortgages are QRMs, are securitized, or are held in portfolio by a financial institution. The primary objective of this separate interagency effort is to develop a comprehensive, consistent, and enforceable set of servicing standards for residential mortgages that all servicers would have to meet. Also, the separate interagency effort is taking into consideration a number of aspects not included in the QRM servicing standards, including the quality of customer service provided throughout the life of a mortgage; the processing and handling of customer payments; foreclosure processing; operational and internal controls; and servicer compensation and payment obligations.
  • The proposal also requests comment on whether this national approach is a more effective way to address problems of servicing than the proposed QRM criteria.

Alternative Approach. The preamble also requests comment an alternative approach that would apply less conservative underwriting standards to QRMs, including lower down payments and the use of private mortgage insurance, and would increase the risk retention requirements for non-QRM mortgages.

2. Other "qualified assets"

The proposed rule also would not require a securitizer to retain any portion of the credit risk associated with a securitization transaction if the ABS issued are exclusively collateralized by auto loans, commercial loans, or commercial real estate loans that meet underwriting standards included in the proposed rule.3 The underwriting standards proposed under this provision of 15G have been designed to be robust and ensure that the loans backing the ABS are of very low credit risk. They were developed by the Federal banking agencies based on supervisory expertise.

Auto Loan Asset Class. Given the highly depreciable nature of the collateral for auto loans, the underwriting standards associated with the auto loan asset class focus primarily on the borrower’s ability to repay the loan, comparable to industry standards for unsecured lending.

Commercial Loan Asset Class. The underwriting standards associated with the commercial loan asset class are designed to assure that the borrower’s business is in, and will remain in, sound financial condition and maintain the ability to repay the loan.

Commercial Real Estate Loan Asset Class. The underwriting standards associated with the commercial loan asset class are designed to ensure that the property securing the loan is stable and provides sufficient net operating income to repay the loan, and recognize the relatively lower risk presented by stabilized properties and multi-family properties with established tenants.

Residential Mortgage Asset Class. Section 15G also contemplates a residential mortgage asset class with reduced risk retention comparable to the proposed rules for auto loans, commercial loans, and commercial real estate loans. The agencies are not proposing a different set of residential mortgage underwriting standards than the QRM standards at this time. One issue that would be raised by an additional residential mortgage asset class  is whether the risk retention requirement should be higher than zero, and whether such a retention level would provide adequate incentive for underwriting mortgages meeting the underwriting standards for the class.

  • The agencies are requesting comment whether a residential mortgage asset class should be created, whether private mortgage insurance should be included, what other appropriate underwriting criteria might apply, and what level of risk retention would be appropriate.

Other Asset Classes. The agencies have the authority to develop underwriting rules for more asset classes, but the agencies are not proposing to do so at this time. Although there are additional asset classes in the ABS market, they exhibit significant differences among underwriting factors for different loans within the class, or tend to be higher risk assets. As a practical matter, this makes it difficult to establish robust underwriting standards for an entire class through regulation. Moreover, the agencies’ proposed risk retention alternatives present a great deal of flexibility that should facilitate securitization activities in these other asset classes.

3. Quality Control

The proposal contains two provisions to guard against abuse of the QRM and other qualifying asset exemptions.

  • First, the process of selecting and assembling the assets for securitization must be performed according to adequate internal supervisory controls to ensure they were underwritten in accordance with the rule, and the sponsor must provide a selfcertification as to the adequacy of these controls to potential investors in the securitization.
  • Second, if any of the loans are subsequently determined not to have been underwritten in accordance with the standards, the sponsor must buy them back from the pool for cash (at unpaid principal balance plus accrued interest) within 90 days.

4. Other exempt assets

Federal and State Guarantees. Consistent with section 15G, the proposed rule also exempts government-guaranteed securitizations and assets from the risk retention requirements.

Pass-through Re-securitization Transactions. The rule also exempts single class resecuritizations providing for the pass-through (net of expenses) of principal and interest received on underlying asset-backed securities for which credit risk already has been retained in accordance with section 15G (or which were exempt).

B. General Risk Retention Requirements

1. Scope of Application.

Sponsor. The proposed rules generally require that a securitization "sponsor," or one of its consolidated affiliates, hold the required risk retention. Practically speaking, of all the various parties involved in a typical securitization transaction, the "sponsor" is the true decision-maker behind the securitization transaction and determines what assets will be securitized. In light of this, the proposed rule provides that a sponsor of an ABS transaction is the party required to retain the risk under the rule. The proposed rule defines the term "sponsor" in a manner consistent with the definition of that term in the SEC’s Regulation AB.

Originator. The proposed rule would permit a securitization sponsor to allocate a proportional share of the risk retention obligation to the originator(s) of the securitized assets, subject to certain conditions. This would have to be voluntary on the originator’s part, however, through a contractual agreement with the sponsor.

  • The proposed rule defines "originator" as the person that "creates" a loan or other receivable. This only covers the original creditor-and not a subsequent purchaser or transferee.
  • To ensure the originator has "skin in the game," the proposal requires the originator to be the originator for at least 20 percent of the loans in the securitization, take on at least 20 percent of the risk retention, and pay up front for its share of retention, either in cash or a discount on the price of the loans the originator sells to the pool.

2. Acceptable Forms of Risk Retention.

Consistent with the statute, the proposed rule generally would require a sponsor to retain an economic interest equal to at least 5% of the aggregate credit risk of the assets collateralizing an issuance of ABS (the "base" risk retention requirement). The agencies have sought to structure the proposed risk retention requirements in a flexible manner that will allow the securitization markets for non-qualified assets to function in a manner that both facilitates the flow of credit to consumers and businesses on economically viable terms and is consistent with the protection of investors.

The proposed rule provides several options for the form in which a securitization sponsor may retain risk. These include:

  • A 5% "vertical" slice of the ABS interests, whereby the sponsor or other entity retains a specified pro rata piece of each class of interests issued in the transaction (that is, the sponsor must hold 5% of each tranche);
  • A 5% "horizontal" first-loss position, whereby the sponsor or other entity retains a subordinate interest in the issuing entity that bears losses on the assets before any other classes of interests;
  • An "L-shaped interest" interest whereby the sponsor holds at least half of the 5% retained interest in the form of a vertical slice and half in the form of a horizontal first-loss position;
  • A "seller’s interest" in securitizations structured using a master trust collateralized by revolving assets whereby the sponsor or other entity holds a 5% separate interest that participates in revenues and losses on the same basis as the investors’ interest in the pool of receivables (unless and until the occurrence of an early amortization event);
  • A representative sample, whereby the sponsor retains a 5% representative sample of the assets to be securitized, thereby exposing the sponsor to credit risk that is equivalent to that of the securitized assets; or
  • For certain "eligible" single-seller or multi-seller asset-backed commercial paper conduits collateralized by loans and receivables and covered by a 100% liquidity guarantee from a regulated bank or holding company, a 5% residual interest retained by the receivables’ originator-seller. This option would not be available to ABCP programs that operate as SIVs or securities arbitrage programs.
  • The rule also provides that Fannie Mae and Freddie Mac will be able to satisfy the risk retention requirement through their guarantees (which cover 100% of principal and interest) as long as they continue to operate under the conservatorship or receivership of the FHFA and with direct government support through the Treasury Department’s Senior Preferred Stock Purchase Agreement.

Premium capture cash reserve account. In addition to the base credit risk retention requirement, the proposed rule would prohibit sponsors from receiving compensation in advance for excess spread4 income to be generated by securitized assets over time. The proposed rules accomplish this by imposing a "premium capture" mechanism designed to prevent a securitizer from structuring an ABS transaction in a manner that would allow the securitizer to take an up-front profit on a securitization (before any unexpected losses on the securitized assets appeared) that would pay the sponsor more up front than the cost of the risk retention interest it is required to retain. o If a sponsor structures a securitization to monetize excess spread on the underlying assets-which is typically effected through the sale of interest-only tranches or premium bonds-the proposed rule would "capture" the premium or purchase price received on the sale of the tranches that monetize the excess spread and require that the sponsor place such amounts into a separate "premium capture cash reserve account" in the securitization.

  • The amount placed into the premium capture cash reserve account would be separate from and in addition to the sponsor’s base risk retention requirement under the proposal’s menu of options, and would be used to cover losses on the underlying assets before such losses were allocated to any other interest or account.

("Excess spread" is the difference between the gross yield on the pool of securitized assets less the cost of financing those assets (weighted average coupon paid on the investor certificates), charge-offs, servicing costs, and any other trust expenses such as insurance premiums, if any.)

3. B-Piece Buyers in CMBS transactions.

As contemplated by section 15G, the agencies propose to permit, for certain securitizations of commercial mortgage-backed securities (CMBS), a form of horizontal risk retention in which the horizontal first-loss position initially is held by a third-party purchaser (known as a "B-piece buyer") that specifically negotiates for the purchase of the first-loss position and conducts its own credit analysis of each commercial loan backing the CMBS.

  • Since B-piece buyers also typically serve as the special servicer of troubled assets in the pool, investors have sometimes complained that they manipulate their servicing powers to benefit the residual interest they hold (offsetting the consequences of poor underwriting for the firs-loss piece) To address this concern, the agencies are proposing to require appointment of an independent Operating Advisor to oversee servicing.

4. Prohibition Against Hedging or Transferring Required Risk Retention

As a general matter, the proposed rule prohibits a securitizer from hedging its required retain interest or transferring it, unless to a consolidated affiliate.

  • The rule would permit hedging of interest rate or foreign exchange risk; pledging of the required retained interest on a full recourse basis; and hedging based on an index of instruments that includes the asset-backed securities, subject to limitations on the portion of the index represented by the specific securitization transaction or applicable issuing entities.

D. Disclosure Requirements

The proposed rule also includes disclosure requirements specifically tailored to each of the permissible forms of risk retention. The disclosure requirements are designed to provide investors with material information concerning the securitizer’s retained interests, such as the amount and form of the interest retained, and the assumptions used in determining the aggregate value of ABS to be issued (which generally affects the amount of risk required to be retained). Further, the disclosures are designed to provide investors and the agencies with an efficient mechanism to monitor compliance.

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SEC moves to charge Fannie, Freddie execs

March 21, 2011
By Zachary A. Goldfarb and David S. Hilzenrath –The Washington Post

The Securities and Exchange Commission is moving toward charging former and current Fannie Mae and Freddie Mac executives with violations related to the financial crisis, setting up a clash with the housing regulator that oversees the companies, according to sources familiar with the matter.

The SEC, responsible for enforcing securities laws, is alleging that at least four senior executives failed to provide necessary information to investors about the companies’ mortgage holdings as the U.S. housing market collapsed.

But the agency that most closely regulates Fannie and Freddie, the Federal Housing Finance Agency, disagrees with that assessment, according to sources familiar with the matter.

FHFA officials think Fannie and Freddie’s financial disclosures, which agency staff members had reviewed before the documents were released to the public, were sufficient, the sources said. One source added that FHFA has sent a letter to the SEC opposing the filing of charges.

An FHFA spokesman declined to comment.

Over the past eight weeks, the SEC sent notices to the executives saying they may face civil charges. The SEC has not yet formally filed such charges and ultimately may choose not to.

The agency alleged that executives at both companies misled investors about their exposure to dangerous mortgage products, such as subprime loans, sources familiar with the matter said.

The executives include former Fannie chief executive Daniel Mudd, former Freddie chief executive Richard Syron, former Freddie chief financial officer Anthony “Buddy” Piszel and current Freddie executive Donald Bisenius, who recently announced that he would leave the company after he received his notice.

The allegations are slightly different for both the companies. One of the chief allegations against Fannie executives is that it characterized mortgage loans as “prime” — meaning high-quality — when they should have been classified in a more risky category of loans.

Meanwhile, Freddie executives are accused of not fully warning investors about the risks associated with subprime loans.

Fannie and Freddie, on the verge of collapse as the financial markets imploded in the fall of 2008, were seized by the federal government. The companies, now owned by taxpayers, have needed $150 billion in aid to stay afloat.

The SEC case may also add to a brouhaha on Capitol Hill over federal expenditures by Fannie and Freddie for former executives. The companies are spending tens of millions of dollars to cover the legal costs of a different set of former executives who face private class-action lawsuits. FHFA officials say the former executives are legally entitled to that coverage.

The SEC case will add to those taxpayer bills because the executives facing allegations are also indemnified.

In the years relevant to the SEC case, Fannie and Freddie routinely submitted their financial disclosures to FHFA’s predecessor agency before releasing them to the public.

“The disclosures and procedures that are the subject of the [SEC] investigation were accurate and complete,” Mudd, now chief executive of Fortress Investment Group, said in a statement released to Bloomberg News this month.

He added, “These disclosures were previewed by federal regulators, and have been issued in the same form since the company went into government conservatorship.”

One person familiar with the matter pointed out that the SEC itself reviewed Freddie’s disclosures in 2008 as part of the company’s application to become officially registered with that agency.

An attorney for Syron said Freddie made accurate disclosures. Attorneys for Bisenius and Piszel could not be reached.

Approval by a federal regulator is not a defense for a misleading securities filing, said Donald C. Langevoort, a Georgetown law professor. It could make it harder for the SEC to prove fraud, but the agency can file other kinds of charges, he said.

Even in charging fraud, “the SEC enforcement staff is well within bounds in proceeding if it believes that the regulators who approved did not have all the relevant facts, and the subject in question knew or recklessly disregarded such facts,” Langevoort said by e-mail.

If the SEC were to take enforcement action against Fannie Mae, Freddie Mac or any of their executives, it would not be the first time. In the past, the fact that other regulators had overseen the companies did not shield them from SEC action.

Before they were taken over by the government, the companies went through twin accounting scandals. Each firm paid a fine to settle SEC fraud charges and was forced to correct past financial reports.

Although the Office of Federal Housing Enterprise Oversight, predecessor of the FHFA, had previously given both companies a clean bill of health, in 2003 and 2004 the regulator accused them of accounting irregularities, and the SEC later agreed.

Mudd and Syron were placed in charge of the companies with mandates to clean up the accounting and organizational problems left by their predecessors.

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Fed gives OK for large banks to boost dividends, restart stock buybacks

March 18, 2011

Housingwire.com

Some of the largest banks in the country may boost dividends and restart stock repurchase plans now that the Federal Reserve has completed its comprehensive capital analysis and review.

About two years ago, the central bank advised financial institutions "that safety and soundness considerations required that dividends be substantially reduced or eliminated."

On Friday, the Fed plans to discuss its review with banks that requested a capital action, and all 19 firms that were subject to the stress tests will get "more detailed assessments of their capital planning processes next month."

The mandates to boost capital levels included in Basel 3 and the new requirements in the sweeping Dodd-Frank financial reforms have "substantially clarified the regulatory environment in which these firms will be operating," the Fed said.

From the end of 2008 through 2010, common equity increased by more than $300 billion at the 19 largest U.S. bank holding companies, the Fed said. Allowing these banks to return capital to shareholders improves the entire sector and helps promote the firms long-term access to capital, according to the central bank. The Fed has advised firms to keep dividends to 30% or less of earnings in 2011.

Washington thinktank MF Global anticipates some large firms to act immediately on the Fed decision.

"We would expect most of those banks to make announcements in the coming hours and days," analysts at the Washington-based commodities and derivatives brokerage said.

Under the Fed’s stress tests, banks had to show the ability to maintain at least a 5% Tier 1 common ratio. The most-recent test wasn’t "as standardized" as the Supervisory Capital Assessment Program undertook in early 2009, and doesn’t appear to be as transparent.

"We hear many initial complaints about the black box nature of this stress test," MF Global said. "It is true that the Federal Reserve has provided less detail than in the 2009 test. Yet the Fed did disclose the key economic assumptions. So we believe there is more here than the first impression indicates."

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Fed sees economy on ‘firmer footing’

March 17, 2011

-Bloomberg

Federal Reserve policy makers said the recovery is gaining strength and that higher energy prices will have a temporary effect on inflation, while reaffirming plans to buy $600 billion of Treasuries through June.

“The economic recovery is on a firmer footing, and overall conditions in the labor market appear to be improving gradually,” the Federal Open Market Committee said Tuesday in its statement after a one-day meeting in Washington. The effects of higher fuel and commodity costs on inflation will be “transitory,” and officials “will pay close attention to the evolution of inflation and inflation expectations,” the Fed said.

The statement represents an upgrading of the outlook by Fed Chairman Ben S. Bernanke and his colleagues, who removed language that the recovery is “disappointingly slow” and that “tight credit” is holding back consumer spending. Policy makers went out of their way to acknowledge higher commodity prices while dismissing any inflation danger.

“This statement takes QE3 off the table, as they are taking off the downside risk in deflation and saying the economy is on track,” John Silvia, chief economist at Wells Fargo Securities in Charlotte, N.C., said in a reference to speculation that the Fed might embark on a third round of quantitative easing. “They are coming to the view that the economy has improved over time. They are going to finish QE2. There is no need for more stimulus at this point.”

Even so, the statement echoed a cautionary note from the prior release, saying that “the unemployment rate remains elevated, and measures of underlying inflation continue to be somewhat low, relative to levels that the Committee judges to be consistent, over the longer run, with its dual mandate” for stable prices and maximum employment.

The Fed left its benchmark interest rate in a range of zero to 0.25%, where it’s been since December 2008, and retained a pledge in place since March 2009 to keep it “exceptionally low” for an “extended period.” Officials next meet April 26-27 in Washington.

Payrolls have increased by an average 134,000 a month for the past five months and the unemployment rate has dropped by almost 1 percentage point over three months to 8.9% in February, the lowest since April 2009. Still, the pace of job growth is too slow for officials including New York Fed President William Dudley, who said in a speech last week that a “substantial pickup is sorely needed.”

The average U.S. retail price of regular unleaded gasoline rose to $3.56 a gallon this week, the highest since October 2008.

“Commodity prices have risen significantly since the summer, and concerns about global supplies of crude oil have contributed to a sharp run-up in oil prices in recent weeks,” the Fed said. “Nonetheless, longer-term inflation expectations have remained stable, and measures of underlying inflation have been subdued.”

The Fed’s preferred price gauge, which excludes food and fuel, rose 0.8% in January from a year earlier, matching December’s year-over-year gain, the lowest in five decades of record-keeping. Fed officials aim for long-run overall inflation of 1.6% to 2%.

One gauge of inflation expectations has approached levels from before the financial crisis intensified in 2008. The breakeven rate for 10-year Treasury Inflation Protected Securities, which is the yield difference between the inflation- linked debt and comparable-maturity Treasuries, declined to 2.45 percentage points yesterday since reaching 2.57 points on March 8, the highest since July 2008, Bloomberg data show.

Gasoline and other “highly visible” commodities have shown “significant increases” since the U.S. summer, Mr. Bernanke said in congressional testimony March 1. “The most likely outcome is that the recent rise in commodity prices will lead to, at most, a temporary and relatively modest increase in U.S. consumer price inflation,” Mr. Bernanke said.

The FOMC decision was unanimous for a second consecutive meeting. That means Dallas Fed President Richard Fisher and Philadelphia Fed President Charles Plosser, both skeptics of the second round of so-called quantitative easing who voted for the statement today, don’t disagree strongly enough with the path of policy to dissent.

Fed Governor Kevin Warsh, who resigned in February effective at the end of March, didn’t attend Tuesday’s meeting in accordance with FOMC practice.

Mr. Bernanke, in two days of congressional testimony this month, reiterated the Fed’s outlook that while growth will accelerate this year, he still wants to see a “sustained period of stronger job creation.” He has avoided indicating what the Fed’s next step will be after finishing the $600 billion of purchases.

“While indicators of spending and production have been encouraging on balance, the job market has improved only slowly,” Mr. Bernanke, 57, a former Princeton University economist, said March 1 and March 2 in semiannual hearings on monetary policy.

“The economy still needs help,” said former Fed Governor Lyle Gramley, now senior economic adviser at Potomac Research Group in Washington. “Inflation hasn’t risen to a point where something like” the monetary stimulus “would be counterproductive,” Mr. Gramley said before the announcement.

The central bank, through the New York Fed’s traders, is halfway through the purchases, having bought about $304 billion of Treasuries as of March 9. The total is about $419 billion including securities bought by reinvesting proceeds of maturing assets from the $1.7 trillion first round of purchases of mortgage debt and Treasuries.

The Fed chairman has tried to take credit for higher stock prices and lower corporate-borrowing premiums since the central bank started talking about the second round of quantitative easing. In the testimony, he dated gains to two events in August — the FOMC’s decision to stop the securities portfolio from shrinking by reinvesting maturing mortgage debt and a speech signaling the possibility of QE2.

The Standard & Poor’s 500 Index increased 15% from Aug. 10 through Monday. For investment-grade corporations, the difference between companies’ rates and comparable government securities has narrowed to 1.51 percentage point on March 11 from 1.88 point on Aug. 10, according to Bank of America Merrill Lynch index data.

Yields on 10-year Treasuries declined to 2.57% on Nov. 3, when the Fed announced the second round of asset purchases, from 2.76% on Aug. 10. They were up to 3.36% Monday. Mr. Bernanke said the initial drop reflected investor expectations of Fed buying. Yields later rose “as investors became more optimistic about economic growth and as traders scaled back their expectations of future securities purchases,” he said in the congressional testimony.

At the last FOMC meeting in January, policy makers raised projections for economic growth this year and made few changes to forecasts after 2011. They also made little change to projections for unemployment and inflation.

U.S. retail sales increased in February by the most in four months, the Commerce Department said March 11. Further gains may be tempered by concerns over higher fuel prices that helped push consumer confidence to a one-month low in the week to March 6, according to the Bloomberg Consumer Comfort Index.

Expectations for the inflation rate in one year rose to 4.6% in March from 3.4% in February, according to the Thomson Reuters/University of Michigan consumer sentiment survey released March 11.

Atlanta Fed President Dennis Lockhart said in a March 7 speech that he doesn’t expect consumer-price inflation to accelerate because of the rise in food and energy costs. Speaking to economists in Arlington, Va., Mr. Lockhart said he is “very cautious” about further asset purchases, while not ruling out the possibility because turmoil in the Middle East and Africa risks slowing the U.S. economy.

Pleasanton, Calif.-based Safeway Inc., the fourth- largest U.S. supermarket chain by stores, expects that 2011, “while it will be a challenging year,” will be “much better” than 2009 or 2010, Chief Executive Officer Steven Burd said March 8.

“The economy will improve, but only moderately,” Mr. Burd said at the company’s investor conference. “We’re not looking for any kind of a hockey-stick curve here.”

In Congress, lawmakers are debating how to cut spending to reduce a record budget deficit. After the federal rescues of home-finance providers Fannie Mae and Freddie Mac cost taxpayers $154 billion, politicians are also starting to consider ways to reduce support and tax subsidies for the housing market, which the FOMC described as “depressed” in December and January’s statements.

“During a time when we’re trying to create jobs, why in good God’s name would you start to talk about changing policy and tax implications for new-home purchases?” Robert Toll, chairman of Horsham, Pennsylvania-based Toll Brothers Inc., the largest U.S. luxury-home builder, said on a Feb. 23 conference call with investors.

Purchases of new houses in the U.S. fell more than forecast in January and are running at about one-fifth of the record rate in 2005. Housing starts climbed 15 percent to a 596,000 annual rate, a pace that is still less than one-third the homebuilding boom’s peak of 2.27 million in 2006.

Other parts of the economy are strengthening. Manufacturing grew in February at the fastest pace in almost seven years, while orders to U.S. factories climbed in January by the most in more than four years, reports this month showed.

Japan’s earthquake, which disrupted cooling systems at nuclear reactors, “certainly introduces yet another wild card or potential risk that’s out there,” said Stephen Stanley, chief economist at Pierpont Securities in Stamford, Conn., before the Fed announcement.

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