SEC Proposes Rules to Require Issuer Review of Assets Underlying Asset-Backed Securities

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The SEC’s proposal seeks to enhance ABS disclosure in three ways:

• Issuers of ABS that are registered with the SEC would be required to perform a review of the bundled assets that underlie the ABS.
   
• Proposed amendments to Regulation AB would require an ABS issuer to disclose the nature, findings and conclusions of this review of assets.
   
• The issuer or underwriter for both registered and unregistered ABS offerings would be required to disclose the findings and conclusions of any review performed by a third party that was hired to conduct such a review.

The proposal includes detailed requests for comment on whether the Commission should set a minimum review standard, including possible standards that could be included in a final rule.

In addition to today’s proposed rule, the Commission last week proposed regulations to require issuers of ABS — and credit rating agencies that rate ABS — to provide investors with new disclosures about representations, warranties, and enforcement mechanisms. And, last April, the Commission proposed rules that would revise the disclosure, reporting and offering process for ABS to better protect investors in the securitization market.

Public comments on the proposed rules should be received by the Commission by November 15.

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FACT SHEET

Background

Asset-backed securities (ABS) are created by buying and bundling loans — such as residential mortgage loans, commercial loans or student loans — and creating securities backed by those assets, which are then sold to investors.

As a result of the financial crisis and subsequent events, the market for securitizations has declined due, in part, to perceived uncertainty about the accuracy of the information about the loans backing the ABS.

The Dodd-Frank Wall Street Reform and Consumer Protection Act requires the Commission to adopt rules regarding the review of assets, such as loans, underlying the securities no later than 180 days after enactment.

Requirements of the Proposed Rules

Issuers of ABS in Registered Offerings to Perform a Review of the Assets:

Issuers of ABS registered under the Securities Act would be required to conduct a review of the assets underlying the ABS. This requirement, which would implement Section 945 of the new law, would apply to all registered asset-backed securities, regardless of the assets that comprise the bundle. However, the level and type of review may vary depending on such circumstances as the nature of the assets being securitized.

The rule would permit issuers to perform the review themselves or hire a third party to perform the review provided the third party is named in the registration statement and consents to being named as an “expert” under the federal securities laws.

Issuers of ABS to Disclose Information About Their Reviews

Issuers of ABS would be required to disclose the nature of the review performed to satisfy the review requirements, as well as the findings and conclusions of such review. Issuers also would be required to disclose:

• Information about how the loans in the pool differ from the disclosure in the prospectus about the underwriting criteria.
   
• Information about loans that did not meet the disclosed underwriting criteria.
   
• Information about the entity that made the determination that such loans should be included in the pool, despite not having met the disclosed underwriting standards.

In addition, issuers and underwriters would be required to disclose the findings and conclusions of any review performed by a third party that was hired to conduct such a review.. This requirement would implement Section 932 of the new law and would apply to issuers and underwriters of both registered and unregistered offerings of ABS.

What’s Next?

The Commission is seeking public comments on the proposed rules that should be received by November 15.

http://www.sec.gov/news/press/2010/2010-192.htm

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