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Corporation As Conservator Or Receiver of Financial Assets Transferred by An

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Corporation As Conservator Or Receiver of Financial Assets Transferred by An FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Part 360 RIN Amendments to 12 C.F.R. § 360.6 Treatment by the Federal Deposit Insurance Corporation as Conservator or Receiver of Financial Assets Transferred by an Insured Depository Institution in Connection With a Securitization or Participation After September 30, 2010 AGENCY: Federal Deposit Insurance Corporation (FDIC) ACTION: Notice of Proposed Rulemaking with request for comments SUMMARY: The Federal Deposit Insurance Corporation ("FDIC") proposes to adopt an amended rule 360.6 regarding the treatment by the FDIC, as receiver or conservator of an insured depository institution, of financial assets transferred by the institution in connection with a securitization or a participation after September 30, 20 i 0 (the "Proposed Rule"). The Proposed Rule would continue the safe harbor for transferred financial assets in connection with securitizations in which the financial assets were transferred under the existing section 360.6. The Proposed Rule would clarify the conditions for a safe harbor for securitizations or participations issued after September 30, 2010. The Proposed Rule also sets forth safe harbor protections for securitizations that do not comply with the new accounting standards for off balance sheet treatment by providing for expedited access to the financial assets that are securitized if they meet the conditions defined in the Proposed Rule. The conditions contained in the Proposed Rule would serve to protect the Deposit Insurance Fund CDIF") and the FDIC's interests as deposit insurer and receiver by aligning the conditions for the safe harbor with better and more sustainable securitization practices by insured depository institutions ("lOIs"). The forty-five (45) days after publication of the FDIC seeks comment for a period of Proposed Rule on the scope of the Rule, the scope of the safe harbors provided and the terms and scope of the conditions included in the Proposed Rule. DATES: Comments on this Notice of Proposed Rulemaking must bc received by (INSERT DATE 45 DAYS AFTER FEDERAL REGISTER PUBLICATION). ADDRESSES: You may submit comments on the Proposed Rule, by any of the following methods: . Agency Web Sitc: http://www.FDIC.gov/regulations/laws/federal/noticcs.htm!. Follow instructions for submitting comments on the Agency Web Site. E-mail: Comments(lìlFDIC.gov. Include RIN # on the subject line of the message. Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 i 7th Street. N.W., Washington, DC 20429. 2 . Hand Delivery: Comments may be hand delivered to the guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7 a.m. and 5 p.m. Instructions: All comments rcceived will be posted generally without change to http://www.fäic.gov/regulations/!aws/tederal/propose.html. incl uding any personal information provided. the FOR FURTHER INFORMATION CONTACT: Michael Krimminger, Offce of Chairman, 202-898-8950; George Alexander, Division of Resolutions and Receiverships, (202) 898-3718; Robert Storch, Division of Supervision and Consumer Protection, (202) 898-8906; or R. Penfield Starke, Legal Division, (703) 562-2422, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. SUPPLEMENTARY INFORMATION: i. Background In 2000, the FDIC clarified the scopc of its statutory authority as conservator or receiver to disaffrm or repudiate contracts of an insured depository institution with respect to transfers of financial assets by an 101 in connection with a securitization or participation when it adopted a regulation codified at 12 C.F.R. 360.6 (the "Securitization Rule"). This rulc provided that the FDIC as conservator or receiver would not use its statutory authority to disaffirm or repudiate contracts to reclaim, recovcr, or 3 recharacterize as property of the institution or the receivership any financial assets transferred by an 101 in connection with a securitization or in the form of a participation, provided that such transfer meets all conditions for sale accounting treatment under generally accepted accounting principles ("GAAP"). The rule was a clarification, rather than a limitation, of the repudiation power. Such power authorizes the conservator or receiver to breach a contract or lease entered into by an 101 and be legally excused from further performance, but it is not an avoiding power enabling the conservator or receiver to recover assets that were previously sold and no longer reflected on the books and records on an IDI. The Securitization Rule provided a "safe harbor" by confirming "legal isolation" if all other standards for off balance sheet accounting treatment, along with some additional conditions focusing on the enforceability of the transaction, were met by the transfer in connection with a securitization or a participation. Satisfaction of "legal the risk that the pool of isolation" was vital to securitization transactions because of financial assets transferred into the securitization trust could be recovered in bankruptcy or in a bank receivership. Generally, to satisfy the legal isolation condition, the the transferred financial assets must have been prcsumptively placed beyond the reach of transferor, its creditors, a bankruptcy trustee, or in the case of an 101, the FDIC as conservator or receiver. The Securitization Rule, thus, addressed only purported sales which met the conditions for off balance sheet accounting treatment under GAAP. Since its adoption, the Securitization Rule has been relied on by securitization participants, including rating agencies, as assurance that investors could look to securitized financial assets for payment without concern that the financial assets would be 4 interfered with by the FDIC as conservator or receiver. Recently, the implementation of new accounting rules has created uncertainty for securitization paricipants. Modifications to GAAP Accounting Standards On June 12, 2009, the Financial Accounting Standards Board ("F ASB") finalized modifications to GAAP through Statement of Financial Accounting Standards No. 166, Accountingfor Transfers of Financial Assets. an Amendment of FASB Statement No. I40 ("F AS 166") and Statement of Financial Accounting Standards No. 167, Amendments to FASB Interpretation No. 46(R) ("F AS 167") (the "2009 GAAP Modifications"). The 2009 GAAP Modifications are effective for annual financial statement reporting periods that begin after November 15,2009. The 2009 GAAP Modifications made changes that affect whether a special purpose entity ("SPE") must be consolidated for financial reporting purposes, thereby subjecting many SPEs to GAAP consolidation requirements. These accounting changes may require an IDI to consolidate an issuing entity to which financial assets have been transferred for securitization on to its balance sheet for financial reporting purposes primarily because an affiiate of the 101 retains control over i Given the 2009 GAAP Modifications, legal and accounting the financial assets. treatment of a transaction may no longer be aligned. As a result, the safe harbor provision of the Securitization Rule may not apply to a transfer in connection with a securitization that does not qualify for off balance sheet treatment. F AS i 66 also affects the treatment of participations issued by an 101, in that it i Of particular note, Paragraph 26A of F AS 166 introduces a new concept that was not in FAS i 40, as follows: "... the transferor must first consider whether the transferee would be consolidated by the transferor. Therefore, if all other provisions of this Statement are met with respect to a particular transfer, and the transferee would be consolidated by the transferor, then the transferred financial assets would not be treated as having been sold in the financial statements being presented." 5 defines participating interests as pari-passu pro-rata interests in financial assets, and subjects the sale of a paricipation interest to the same conditions as the sale of financial assets. Statement F AS 166 provides that transfers of participation interests that do not qualify for sale treatment will be viewed as secured borrowings. While the GAAP modifications have some effect on participations, most participations are likely to continue to meet the conditions for sale accounting treatment under GAAP. FDf Act Changes In 2005 Congress enacted 1 i (e)(13)(C)2 of the Federal Deposit Insurance Act (the "FDI Act")). In relevant part, this paragraph provides that generally no person may exercise any right or power to terminate, accelerate, or declare a default under a contract to which the IDI is a party, or obtain possession of or exercise control over any property the IDI, without the consent of the of the 101, or affect any contractual rights of conservator or receiver, as appropriate, during the 45-day period beginning on the date of the appointment of the conservator or the 90-day period beginning on the date of the appointment of the receiver. If a securitization is treated as a secured borrowing, Section i 1 (e)( 13 )(C) could prevent the investors from recovering monies due to them for up to 90 days. Consequently, securitized assets that remain property of the 101 (but subject to a security interest) would be subject to the stay, raising concerns that any attempt by securitization noteholders to exercise remedies with respect to the IOl's assets would be delayed. During the stay, interest and principal on the securitized debt could remain unpaid. The FDIC has been advised that this 90-day delay would cause substantial downgrades in the ratings provided on existing secUTitizations and could prevent planned 2 12 U.S.c. § 1821(e)(I3)(C). J 12 U.sc. § 18\1 el seq. 6 securitizations for multiple asset classes, such as credit cards, automobile loans, and other credits, from being brought to market. Analysis The FDIC believes that several of the issues of concern for securitization paricipants regarding the impact of the 2009 GAAP Modifications on the eligibility of transfers of financial assets for safe harbor protection can be addressed by clarifying the position of the conservator or receiver under established law.
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