Deutsche Bank Settles Two BlackRock RMBS Suits

 

Deutsche Bank settled with BlackRock and other RMBS investors in New York federal (BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Company, S.D.N.Y., No. 1:14-cv-09367) and California state (BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank Trust Company Americas, Orange County Superior Court, No. 2016-00843062) suits that argued Deutsche Bank failed to fulfill its obligations as trustee of over 500 RMBS trusts valued at more than $570 billion. The settlement comes after the investors repeatedly failed to certify the cases as class actions. The settlement amount was not disclosed.

Judge Grants Stay in U.S. Bank Fee Suit

 

S.D.N.Y. Judge Victor Marrero granted a stay in a proposed class action that alleges that U.S. Bank as trustee improperly used money from trusts to fund its defense in an RMBS suit. Royal Park Investments filed the underlying RMBS trustee suit in 2014 (Royal Park Investments SA/NV v. U.S. Bank National Association, No. 1:14-cv-02590), alleging that U.S. Bank breached its duties as trustee. While the suit was pending, Royal Park Investments filed another suit against U.S. Bank in 2017 (Royal Park Investments SA/NV v. U.S. Bank National Association, No. 1:17-cv-06778) for misuse of trust funds to fund the underlying suit. U.S. Bank contends that indemnification clauses in the trusts’ governing documents allow it to reimburse itself for these legal expenses. Royal Park counters that legal fees are not recoverable if the relevant litigation is the result of U.S. Bank’s gross negligence. Because this gross negligence is a “central factual question” in both suits, Judge Marrero granted the stay to resolve the claim first in the underlying RMBS suit.

LMA Paper on the Consequences of a No-Deal Brexit on the European Loan Market

On December 3, the Loan Market Association (“LMA“) published a paper on the impact of a no-deal Brexit scenario on lending to borrowers located in EU countries by UK lenders, and the wider negative impact on the EU economy. A link to the paper can be found here.

The LMA states that it is vital that transitional arrangements are put in place as soon as possible so that borrowers are adequately protected irrespective of the manner of exit of the UK from the EU. It sets out a number of issues which arise when considering the need for transitional arrangements in a syndicated loan market context, along with proposed solutions, including:

  • Licensing and the ability to do cross-border business in respect of both new and existing customers.
  • Ensuring the continuing validity, effectiveness and enforceability of the loan contract itself, including the extent to which judgments of the English courts will be enforceable in EU member states.
  • Ancillary issues outside of core lending activity but which might impact the decision or ability of an institution to lend.

The paper also sets out a “package” of products and services provided by both syndicate lenders and other specialist providers, which borrowers require access to in addition to the syndicated loan itself. The LMA states that without appropriate transitional arrangements, borrowers may find themselves in a difficult situation if a particular product becomes illegal to provide post-Brexit.

Securitization Regulations 2018 Published

 

On December 4, the Securitization Regulations 2018 (SI 2018/1288) were published on legislation.gov.uk, together with an explanatory memorandum. A link to the Securitization Regulations 2018 can be found here and a link to the explanatory memorandum can be found here.

The Regulations reflect the application of the Securitization Regulation ((EU) 2017/2402)) in the UK. The Securitization Regulation harmonizes and reforms existing rules on due diligence, risk retention, disclosure and credit-granting that will apply in a uniform way to all securitizations, securitizing entities and all types of EU regulated institutional investors. It also creates a new framework for simple, transparent and standardized long-term securitizations and asset-backed commercial paper programs.

Among other things, the Regulations designate the FCA and PRA as the competent authorities in relation to the Securitization Regulation and require the FCA to maintain and update a register of all persons it has authorized as third-party verification agents. They also amend the Financial Services and Markets Act 2000 (“FSMA“), and other UK legislation, to create the new supervisory, investigative and sanctioning powers required by the Securitization Regulation and ensure UK legislation is compatible with the Securitization Regulation.

The Regulations will come into force on January 1, 2019.

EFDI Guidance on DSGs’ Alternative Funding Policy

On December 5, the European Forum of Deposit Insurers (“EFDI“) published a non-binding guidance paper (dated June 18, 2018) on deposit guarantee schemes’ (“DGSs“) alternative funding policy. The guidance paper can be found here.

Under Article 10(9) of the Deposit Guarantee Schemes Directive (2014/49/EU) (“DGSD“), DGSs are required to have in place adequate alternative funding arrangements to enable them to obtain short-term funding to meet their obligations. EFDI notes that, in practice, DGSs have only a few available options to enable them to implement this requirement: credit lines, bond issuances, repos, ex-post contributions and other private sources.

In the guidance paper, EFDI provides a set of recommendations for DGSs alternative funding arrangements on issues including:

  • The size of the alternative funding reserve.
  • The selection of alternative funding instruments.
  • Alternative funding instruments and ex-post contributions’ terms and parameters.
  • Concentration risks arising from counterparties.

ARRC Releases Consultations on Fallback Contract Language for Bilateral Business Loans and Securitizations for Public Feedback

 

The Alternative Reference Rates Committee (“ARRC“) released consultations on U.S. dollar (“USD“) LIBOR fallback contract language for bilateral business loans and securitizations for public feedback. These consultations outline draft language for new contracts that reference LIBOR so as to ensure these contracts will continue to be effective in the event that LIBOR is no longer usable.

The ARRC is seeking feedback on each proposed approach and on the key issues involved. Comments should be sent to the ARRC Secretariat ([email protected]) no later than February 5, 2019.

Questions regarding the consultations should also be sent to the ARRC Secretariat ([email protected]) and will not be posted for attribution.

Rating Agency Developments

 

On November 20, DBRS issued a report outlining its methodology for rating European Structured Finance Transactions. Release

On November 19, Fitch issued rating criteria for Dealer Floorplan ABS. Release

On November 19, Moody’s issued a revised methodology for rating UK Income-Contingent-Repayment Student Loan-Backed ABS. Release

On November 19, Moody’s issued a global approach for rating ABS Backed by Production-Dependent Solar Contracts. Release

On November 15, DBRS issued a report outlining its methodology for rating Canadian Trade Receivables Securitization Transactions. Release

On November 15, Moody’s issued a revised methodology for rating Covered Bonds. Release

On November 15, Moody’s issued a revised methodology for monitoring Scheduled Amortization UK Student Loan-Backed Securities. Release

On November 15, Moody’s issued a revised methodology for rating Insurance Premium Finance-Backed Securities. Release READ MORE

ISDA Publishes Statement on Benchmark Fallbacks

On November 27,the International Swaps and Derivatives Association (“ISDA“) published a statement of the preliminary results of its consultation on new benchmark fallbacks for derivatives contracts that reference certain interbank offered rates (“IBORs“).

The consultation suggests four options for calculating the applicable adjusted risk-free rates (“RFRs“), if fallbacks are triggered, and three options for calculating spread adjustments, as well as setting out which of the options the ISDA expects to proceed with and include in its standard definitions.

The information in the statement is subject to the final decision of the ISDA Benchmark Committee and only reflects its preliminary findings at this stage.

The full statement can be found here.

ECB Speech on Climate Change and Central Banking

On November 27, the European Central Bank (“ECB“) published a speech by Yves Mersch, ECB executive board member, on climate change and central banking. Key points included:

  • Three principal sources of risk have been identified by the Financial Stability Board’s (“FSB“) taskforce on climate related financial disclosures, the European Systemic Risk Board and other bodies: (i) physical risk from exposure to climatic events; (ii) transition risk; and (iii) the undervaluation risk in new “green” financial products leading to price bubbles.
  • The physical risk falls mainly on insurers who need to ensure capital adequacy (the ECB is excluded from supervising insurance firms under the Treaty of the Functioning of the EU) but the banking sector may also be affected to the extent that climatic events affect the physical collateral underpinning lending, such risk is increased if banks have loan portfolios concentrated in particular geographic areas.
  • The ECB is not a regulator for financial markets or banks, so cannot vary the capital requirements of supervised banks to take into account their climate risks, or to encourage climate finance.
  • Climate risks have been identified in the ECB Banking Supervision’s risk assessment for 2019 and will be among the topics covered in the qualitative discussions held with banks on an individual basis.

 

Third European Commission Progress Report on Reducing NPLs in EU

On November 28, the European Commission published a communication setting out its third progress report (COM(2018) 766 final) in reducing non-performing loans (“NPLs“) and further risk reduction in the banking union.

There is an overall trend of improvement, with NPLs declining to an average of 3.4% which is approaching pre-crisis levels, due to action taken by member states and market players. However, there are high NPL ratios still in some member states.

The Commission has delivered all elements of the Council’s July 2017 NPLs action plan. However, it needs to be fully implemented by all actors in order to address the challenge of high NPLs, both in terms of reducing existing stocks to sustainable levels and preventing future accumulation. In particular, the Commission calls on the European Parliament and the Council of the EU to swiftly agree on the banking risk reduction package and all the elements of the legislative proposals to tackle NPLs.

A staff working document (SWD(2018) 472 final) was produced at the Council’s request and following collaboration with the European Central Bank (“ECB“) and the European Banking Association (“EBA“). The document, which is stated to not represent the views of the Commission, the ECB or the EBA, consider the set-up of an EU NPL electronic marketplace platform where banks and investors could trade NPLs to help stimulate development of the secondary market.