Last week's proposal by the Federal Deposit Insurance Corp. to put a rule into law that would protect favorable accounting treatment for loans that have been pooled and securitized is being greeting by open arms in the asset-backed and mortgage-backed worlds.
The measure has the potential of bringing clarity and stability to the issue of property rights as it relates to the future of securitization.
When banks securitize assets so that they can sell them for immediate profit, they are able to remove the loans from their balance sheets. Under a Financial Accounting Standards Board accounting guideline passed half a year ago, called Financial Accounting Statement 125, banks receive that benefit only if the securitized loans cannot be pulled out of the pool, even in cases of bankruptcy.
The FDIC, however, in its role as receiver of failed banks, has the right to reclaim assets that were transferred in a securitization by a company or entity that was insured by them.
Although the FDIC made a public statement last December that it would not exercise that right, banks, legislators and lawyers for FASB and its subcommittees did not trust that this would be the case, and conducted a campaign to formalize the FDIC's stated policy.
The FDIC is now finally responding, seeking to limit its own power to take loans out of securitization pools.
"Only a rule, which is binding, would provide sufficient certainty regarding the FDIC's treatment of securitizations and participations," the FDIC said in a summary of the comment letters it received.
For market players, this news is heartening in that it will secure once and for all that assets pooled for securitization cannot be removed by an outside source. According to insiders, if a bank was suddenly told that pooled assets may be put back on their balance sheets because the FDIC reclaimed them, the bank would incur a tremendous liability that would surely wreak havoc on the whole system.
"You cannot have an economic system without property rights," said Peter Rubinstein, head of asset-backed research at Prudential Securities Inc. "And so, you've got to establish that when a loan is sold into a trust, it is sold with no recourse - it really belongs to the trust. And if you don't have that basic property right, then what do you have?"
According to Andy Wasko, a spokesman for the Bond Market Association, his organization was supportive of the original FDIC policy statement on the subject matter, and is very happy that the FDIC took this additional action.
"We're hopeful this action will be sufficient to bring comfort to market participants and other commentators and that this area can now benefit from additional legal certainty and basically quiet down the uncertainty that exists," Wasko said.
"From our perspective, it is a powerful statement about the role that securitization can play in the financial markets and the economy," he added. "The fact that the FDIC appears to be recognizing that and doing what it can to help is a very good thing, as we see it."
Statement 125 FASB and FDIC Duke it Out
According to sources, the FDIC was apparently responding to rules set forth by FASB and the Auditing Standards Board (ASB), whose lawyers, accountants and auditors were not satisfied with the language of the FDIC's initial policy statement last December.
Statement 125, written by FASB late last year, is the document that led to a questioning of the FDIC's authority and the ensuing controversy. The statement originally presumed that the FDIC had to pay principal plus interest-to-date of payment when they reclaim assets that were transferred in a securitization.
This, however, is not so, and Statement 125 is currently being amended, said Vickie Lusniak, project manager of FASB. In point of fact, there were certain times when the FDIC was only paying principal plus interest-to-date of receivership. Therefore, there was still a liability there - FASB's lawyers and auditors could not accept the fact that the FDIC might actually have the powers that they thought they did not have.
"The board just could not get comfortable with the FDIC's powers," Lusniak said. "The FDIC's statement of policy, issued in response to Statement 125, was not binding, and could be relinquished or repealed. They could take the assets back without giving compensation.
"The lawyers were up in arms. The FDIC took that to heart and last week's announcement was a culmination of discussions between constituents, the FDIC and comments about the proposed regulation," Lusniak said.
Lusniak added that FASB's auditors simply want assurance, and that Statement 125 is being amended to reflect the new information regarding the FDIC. The revised Statement 125 will be broader and not pass any judgment regarding the FDIC. On the other hand, Lusniak said, FASB is going to wait until comments for the current FDIC proposal are received and analyzed before completing FASB's amended statement.
Despite the rewritten statement, in order for federal auditors to feel absolutely comfortable that past reclaimed assets were isolated incidents, Lusniak added that the FDIC will have to satisfy lawyers on two specific points: First, that the assets wouldn't come back on the books of the person who had let go of it, and second, that the sale of the assets can be considered a true sale at law.
According to Rubinstein, this issue of "true sale" is exactly where the liability can be greatest.
"Let's say an accountant goes in and audits a firm, or a big bank, and the bank sold $20 billion of credit cards but retained excess spread and claimed it as a sale," Rubinstein said. "Now if the bank goes bankrupt and the FDIC sucks all the assets out of the banks, the lawyers and accountants might say, Maybe there is not a true sale here, maybe we should put it back on the balance sheet.'
"Now that would create a lot of problems," he said.
Might Not Affect MBS
While this whole ordeal may not be a significant issue for agency MBS - which have either full faith in government or implied faith in government backing, and are therefore immune to issues of bankruptcy - the nonagency and asset-backed securities sectors may be most affected by the possibility of this proposal turning into a regulation.
"I haven't heard anybody worry about that loophole through bankruptcy for MBS," said Linda Lowell, head of mortgage research at Credit Suisse First Boston. "This is because loans are sold to securitizations and they're owned in a trust, but it would definitely make a bigger difference for asset-backed securities."
Still, the idea that a security should be bankruptcy-proof is the overriding issue here, and the FDIC's action is an important step in the right direction, sources note.
"The linchpin behind securitization is that the assets placed in a trust really belong in a trust. And the legal system creates a set of rules that allow an economic system to flourish," said Prudential's Rubinstein. "And if the underpinning of property rights are kicked out from underneath the economic markets, who would buy into a trust? And how can you sell the shares in a trust?
"Rules must be unambiguous."