§78o–11 — Title 15 Commerce and Trade | U.S. Code

Summary

Requires a securitizer to keep part of the credit risk when it packages loans into asset-backed securities and sells them to others. Key words: "Federal banking agencies" means the OCC, the Federal Reserve Board, and the FDIC; "insured depository institution" is the usual bank definition; "securitizer" is the issuer or the person who puts the loan pool together and transfers loans to the issuer; "originator" is the person or lender who creates the loan and sells it to the securitizer. Within 270 days after July 21, 2010, the banking agencies and the Securities and Exchange Commission must write rules requiring securitizers to keep an economic stake in the credit risk of assets they securitize. For residential mortgage securitizations, HUD and the Federal Housing Finance Agency join those agencies in making the rules. The rules must stop securitizers from hedging away the risk they are required to keep. They must set the allowed ways to hold risk, how long the risk must be kept, and minimum amounts. In most cases a securitizer must keep at least 5 percent of the credit risk of the assets that back the security. If all of the loans in a pool are "qualified residential mortgages" (to be defined by the agencies using loan features shown to lower default risk), the securitizer may not have to keep risk. The agencies must make separate rules for different asset classes (for example, residential mortgages, commercial mortgages, commercial loans, auto loans) and must set underwriting standards for each class. For commercial mortgages the rules may allow different ways to meet the retention amount, such as keeping a set percentage of risk, allowing a third party to buy the first-loss piece under strict conditions, finding that underwriting and controls are adequate, or using strong representations, warranties, and enforcement. The rules must cover CDOs and securities made from other asset-backed securities. Agencies may give total or partial exemptions when that serves the public interest and protects investors. Loans made, insured, guaranteed, or bought by institutions supervised by the Farm Credit Administration are not covered. The agencies must consider whether an originator’s retention reduces the securitizer’s required retention, and they must weigh whether loans show low credit risk, whether market practices encourage poor lending, and the effect on consumers’ and businesses’ access to credit. The banking agencies enforce the rules for banks and related institutions; the SEC enforces them for other securitizers. The Financial Stability Oversight Council Chair coordinates the joint rulemaking. The final rules take effect one year after publication for residential-mortgage-backed securities and two years after publication for other asset classes. Issuers of securities backed only by qualified residential mortgages must certify that their internal checks ensure the loans really meet the definition.

Title 15, §78o–11

Commerce and Trade — Source: USLM XML via OLRC

(a)In this section—

(1)the term “Federal banking agencies” means the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation;

(2)the term “insured depository institution” has the same meaning as in section 1813(c) of title 12;

(3)the term “securitizer” means—

(A)an issuer of an asset-backed security; or

(B)a person who organizes and initiates an asset-backed securities transaction by selling or transferring assets, either directly or indirectly, including through an affiliate, to the issuer; and

(4)the term “originator” means a person who—

(A)through the extension of credit or otherwise, creates a financial asset that collateralizes an asset-backed security; and

(B)sells an asset directly or indirectly to a securitizer.

(b)(1)Not later than 270 days after July 21, 2010, the Federal banking agencies and the Commission shall jointly prescribe regulations to require any securitizer to retain an economic interest in a portion of the credit risk for any asset that the securitizer, through the issuance of an asset-backed security, transfers, sells, or conveys to a third party.

(2)Not later than 270 days after July 21, 2010, the Federal banking agencies, the Commission, the Secretary of Housing and Urban Development, and the Federal Housing Finance Agency, shall jointly prescribe regulations to require any securitizer to retain an economic interest in a portion of the credit risk for any residential mortgage asset that the securitizer, through the issuance of an asset-backed security, transfers, sells, or conveys to a third party.

(c)(1)The regulations prescribed under subsection (b) shall—

(A)prohibit a securitizer from directly or indirectly hedging or otherwise transferring the credit risk that the securitizer is required to retain with respect to an asset;

(B)require a securitizer to retain—

(i)not less than 5 percent of the credit risk for any asset—

(I)that is not a qualified residential mortgage that is transferred, sold, or conveyed through the issuance of an asset-backed security by the securitizer; or

(II)that is a qualified residential mortgage that is transferred, sold, or conveyed through the issuance of an asset-backed security by the securitizer, if 1 or more of the assets that collateralize the asset-backed security are not qualified residential mortgages; or

(ii)less than 5 percent of the credit risk for an asset that is not a qualified residential mortgage that is transferred, sold, or conveyed through the issuance of an asset-backed security by the securitizer, if the originator of the asset meets the underwriting standards prescribed under paragraph (2)(B);

(C)specify—

(i)the permissible forms of risk retention for purposes of this section;

(ii)the minimum duration of the risk retention required under this section; and

(iii)that a securitizer is not required to retain any part of the credit risk for an asset that is transferred, sold or conveyed through the issuance of an asset-backed security by the securitizer, if all of the assets that collateralize the asset-backed security are qualified residential mortgages;

(D)apply, regardless of whether the securitizer is an insured depository institution;

(E)with respect to a commercial mortgage, specify the permissible types, forms, and amounts of risk retention that would meet the requirements of subparagraph (B), which in the determination of the Federal banking agencies and the Commission may include—

(i)retention of a specified amount or percentage of the total credit risk of the asset;

(ii)retention of the first-loss position by a third-party purchaser that specifically negotiates for the purchase of such first loss position, holds adequate financial resources to back losses, provides due diligence on all individual assets in the pool before the issuance of the asset-backed securities, and meets the same standards for risk retention as the Federal banking agencies and the Commission require of the securitizer;

(iii)a determination by the Federal banking agencies and the Commission that the underwriting standards and controls for the asset are adequate; and

(iv)provision of adequate representations and warranties and related enforcement mechanisms; and 11 So in original. The word “and” probably should not appear.

(F)establish appropriate standards for retention of an economic interest with respect to collateralized debt obligations, securities collateralized by collateralized debt obligations, and similar instruments collateralized by other asset-backed securities; and

(G)provide for—

(i)a total or partial exemption of any securitization, as may be appropriate in the public interest and for the protection of investors;

(ii)a total or partial exemption for the securitization of an asset issued or guaranteed by the United States, or an agency of the United States, as the Federal banking agencies and the Commission jointly determine appropriate in the public interest and for the protection of investors, except that, for purposes of this clause, the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation are not agencies of the United States;

(iii)a total or partial exemption for any asset-backed security that is a security issued or guaranteed by any State of the United States, or by any political subdivision of a State or territory, or by any public instrumentality of a State or territory that is exempt from the registration requirements of the Securities Act of 1933 [15 U.S.C. 77a et seq.] by reason of section 3(a)(2) of that Act (15 U.S.C. 77c(a)(2)), or a security defined as a qualified scholarship funding bond in section 150(d)(2) of title 26, as may be appropriate in the public interest and for the protection of investors; and

(iv)the allocation of risk retention obligations between a securitizer and an originator in the case of a securitizer that purchases assets from an originator, as the Federal banking agencies and the Commission jointly determine appropriate.

(2)(A)The regulations prescribed under subsection (b) shall establish asset classes with separate rules for securitizers of different classes of assets, including residential mortgages, commercial mortgages, commercial loans, auto loans, and any other class of assets that the Federal banking agencies and the Commission deem appropriate.

(B)For each asset class established under subparagraph (A), the regulations prescribed under subsection (b) shall include underwriting standards established by the Federal banking agencies that specify the terms, conditions, and characteristics of a loan within the asset class that indicate a low credit risk with respect to the loan.

(d)In determining how to allocate risk retention obligations between a securitizer and an originator under subsection (c)(1)(E)(iv), the Federal banking agencies and the Commission shall—

(1)reduce the percentage of risk retention obligations required of the securitizer by the percentage of risk retention obligations required of the originator; and

(2)consider—

(A)whether the assets sold to the securitizer have terms, conditions, and characteristics that reflect low credit risk;

(B)whether the form or volume of transactions in securitization markets creates incentives for imprudent origination of the type of loan or asset to be sold to the securitizer; and

(C)the potential impact of the risk retention obligations on the access of consumers and businesses to credit on reasonable terms, which may not include the transfer of credit risk to a third party.

(e)(1)The Federal banking agencies and the Commission may jointly adopt or issue exemptions, exceptions, or adjustments to the rules issued under this section, including exemptions, exceptions, or adjustments for classes of institutions or assets relating to the risk retention requirement and the prohibition on hedging under subsection (c)(1).

(2)Any exemption, exception, or adjustment adopted or issued by the Federal banking agencies and the Commission under this paragraph shall—

(A)help ensure high quality underwriting standards for the securitizers and originators of assets that are securitized or available for securitization; and

(B)encourage appropriate risk management practices by the securitizers and originators of assets, improve the access of consumers and businesses to credit on reasonable terms, or otherwise be in the public interest and for the protection of investors.

(3)(A)Notwithstanding any other provision of this section, the requirements of this section shall not apply to any loan or other financial asset made, insured, guaranteed, or purchased by any institution that is subject to the supervision of the Farm Credit Administration, including the Federal Agricultural Mortgage Corporation.

(B)This section shall not apply to any residential, multifamily, or health care facility mortgage loan asset, or securitization based directly or indirectly on such an asset, which is insured or guaranteed by the United States or an agency of the United States. For purposes of this subsection, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and the Federal home loan banks shall not be considered an agency of the United States.

(4)(A)The Federal banking agencies, the Commission, the Secretary of Housing and Urban Development, and the Director of the Federal Housing Finance Agency shall jointly issue regulations to exempt qualified residential mortgages from the risk retention requirements of this subsection.

(B)The Federal banking agencies, the Commission, the Secretary of Housing and Urban Development, and the Director of the Federal Housing Finance Agency shall jointly define the term “qualified residential mortgage” for purposes of this subsection, taking into consideration underwriting and product features that historical loan performance data indicate result in a lower risk of default, such as—

(i)documentation and verification of the financial resources relied upon to qualify the mortgagor;

(ii)standards with respect to—

(I)the residual income of the mortgagor after all monthly obligations;

(II)the ratio of the housing payments of the mortgagor to the monthly income of the mortgagor;

(III)the ratio of total monthly installment payments of the mortgagor to the income of the mortgagor;

(iii)mitigating the potential for payment shock on adjustable rate mortgages through product features and underwriting standards;

(iv)mortgage guarantee insurance or other types of insurance or credit enhancement obtained at the time of origination, to the extent such insurance or credit enhancement reduces the risk of default; and

(v)prohibiting or restricting the use of balloon payments, negative amortization, prepayment penalties, interest-only payments, and other features that have been demonstrated to exhibit a higher risk of borrower default.

(C)The Federal banking agencies, the Commission, the Secretary of Housing and Urban Development, and the Director of the Federal Housing Finance Agency in defining the term “qualified residential mortgage”, as required by subparagraph (B), shall define that term to be no broader than the definition “qualified mortgage” as the term is defined under section 129C(c)(2) of the Truth in Lending Act, as amended by the Consumer Financial Protection Act of 2010,22 See References in Text note below. and regulations adopted thereunder.

(5)The regulations issued under paragraph (4) shall provide that an asset-backed security that is collateralized by tranches of other asset-backed securities shall not be exempt from the risk retention requirements of this subsection.

(6)The Commission shall require an issuer to certify, for each issuance of an asset-backed security collateralized exclusively by qualified residential mortgages, that the issuer has evaluated the effectiveness of the internal supervisory controls of the issuer with respect to the process for ensuring that all assets that collateralize the asset-backed security are qualified residential mortgages.

(f)The regulations issued under this section shall be enforced by—

(1)the appropriate Federal banking agency, with respect to any securitizer that is an insured depository institution; and

(2)the Commission, with respect to any securitizer that is not an insured depository institution.

(g)The authority of the Commission under this section shall be in addition to the authority of the Commission to otherwise enforce the securities laws.

(h)The Chairperson of the Financial Stability Oversight Council shall coordinate all joint rulemaking required under this section.

(i)The regulations issued under this section shall become effective—

(1)with respect to securitizers and originators of asset-backed securities backed by residential mortgages, 1 year after the date on which final rules under this section are published in the Federal Register; and

(2)with respect to securitizers and originators of all other classes of asset-backed securities, 2 years after the date on which final rules under this section are published in the Federal Register.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Securities Act of 1933, referred to in subsec. (c)(1)(G)(iii), is title I of act May 27, 1933, ch. 38, 48 Stat. 74, which is classified generally to subchapter I (§ 77a et seq.) of chapter 2A of this title. For complete classification of this Act to the Code, see section 77a of this title and Tables. section 129C(c)(2) of the Truth in Lending Act, as amended by the Consumer Financial Protection Act of 2010, referred to in subsec. (e)(4)(C), probably means section 129C(b)(2) of Pub. L. 90–321, as amended by title X of Pub. L. 111–203, which defines “qualified mortgage” and is classified to section 1639c(b)(2) of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as a note under section 5301 of Title 12, Banks and Banking.

§78o–11 Credit risk retention