CFTC Approves Final Swap Dealer Capital Rule

 

On July 22, the Commodity Futures Trading Commission (CFTC) approved a final rule regarding new capital and financial reporting requirements for swap dealers and major swap participants that are not subject to supervision by a banking regulator and imposing financial reporting requirements for swap dealers and major swap participants generally. The final rule provides swap dealers and major swap participants three alternative methods to establish and meet minimum capital requirements depending on the characteristics of their business. The final rule also includes: a comprehensive model approval process; accompanying financial reporting, recordkeeping, and notification requirements; and a substituted compliance determination process for those swap dealers that may already be required to maintain capital in accordance with a foreign regulator. Release.

Rating Agency Developments (July 17 – July 29)

 

On July 29, Moody’s published an updated ratings methodology titled US Local Government General Obligation Debt. Methodology.

On July 28, KBRA published a surveillance report titled Financial Institutions: Business Development Corporation of America Surveillance. Report.

On July 27, Fitch published an updated ratings methodology titled EMEA Equity Release Mortgage Bespoke Rating Criteria. Methodology.

On July 27, DBRS Morningstar published an updated ratings methodology titled Global Methodology for Rating Sovereign Governments. Methodology.

On July 24, KBRA published a surveillance press release titled KBRA Affirms Classes for Seven RMBS Transactions. Release.

On July 24, Moody’s published an updated ratings methodology titled Moody’s Methodology for Rating Debt Issuance Under Certified Capital Company, New Markets Tax Credit and Similar ProgramsMethodology.

On July 24, Moody’s published an updated ratings methodology titled Moody’s Approach to Rating Trade Receivables-Backed TransactionsMethodology.

On July 24, Moody’s published an updated ratings methodology titled Moody’s Approach to Rating Future Receivables Transactions. Methodology.

On July 23, KBRA published a research report titled Public Finance: Coronavirus (COVID-19): Retail Sales Stabilize but Rising Cases Temper Outlook. Report.

On July 21, DBRS Morningstar published an updated ratings methodology titled North American Commercial Mortgage Servicer Evaluations. Methodology.

On July 21, DBRS Morningstar published an updated ratings methodology titled Rating European Structured Finance Transactions. Methodology.

On July 21, DBRS Morningstar published an updated ratings methodology titled Rating CLOs and CDOs of Large Corporate Credit. Methodology.

On July 21, DBRS Morningstar published an updated ratings methodology titled Cash Flow Assumptions for Corporate Credit Securitizations. Methodology.

On July 17, Moody’s published an updated ratings methodology titled Moody’s Approach to Rating ABS Backed by Equipment Leases and Loans. Methodology.

On July 17, Moody’s published an updated ratings methodology titled Moody’s Global Approach to Rating Auto Loan- and Lease-Backed ABS. Methodology.

On July 17, Moody’s published an updated ratings methodology titled Moody’s Approach to Rating Consumer Loan-Backed ABS. Methodology.

UK: Breathing Space Scheme Regulations

 

A draft of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (the “Regulations”) was published on July 15, with a view to implementing the scheme in England and Wales. It is anticipated that the Regulations will come into force on May 4, 2021.

Overview

The Regulations propose to provide a debtor (specified as an individual in one of the eligibility criteria) with the opportunity to obtain a moratorium that provides “breathing space,” during which creditor action is prohibited, to allow debtors to engage with a debt adviser in order to seek a sustainable solution to their debt problems with their creditors.

How Can Someone Obtain a Breathing Space Moratorium?

In order to enter a breathing space moratorium, a debtor will first have to access advice from a “debt advice provider,” meaning an FCA-regulated debt adviser or an adviser from another organization that qualifies for an exemption from FCA authorization (such as a local authority).

It is worth noting that for the purposes of the Regulations, the “insolvency exclusion” ordinarily available under FSMA 2000 will not apply to a debt advice provider, thus preventing the application of the exception that removes debt counseling as a regulated activity when undertaken by an insolvency practitioner as an officeholder or in reasonable contemplation of an appointment.

Furthermore, a debtor is excluded from accessing a breathing space moratorium if that individual has entered a breathing space moratorium in the previous 12 months.

When considering whether a breathing space moratorium ought to apply, the debt advice provider must assess whether:

  1. the debtor has sufficient funds or income to discharge or liquidate his debts as they fall due;
  2. it would benefit the debtor to enter into a debt solution (such as bankruptcy, an individual voluntary arrangement or a voluntary debt management plan);
  3. the debtor may be eligible to enter into a debt solution during a moratorium or as soon as reasonably practicable after the moratorium ends; and
  4. the moratorium period is necessary in order for the debt advice provider (i) to assess which debt solution would be appropriate for the debtor, (ii) to advise the debtor on which debt solution would be appropriate or (iii) for a debt solution to be put in place.

What Are the Protections of a Breathing Space Moratorium?

During the breathing space moratorium, the accrual of contractual and default interest is stopped, as well as the incurrence of fees and charges. Creditors are also prevented from taking enforcement action against the debtor. The creditor recovery and enforcement moratorium extends to any contact between the debtor, the creditor or his agent relating to the repayment of debts covered by a breathing space moratorium. A breathing space moratorium will include almost all personal debts with broadly the same set of exclusions as apply in bankruptcy and will cover the business debts of sole traders who have a turnover under £85,000.

Additionally, creditors are barred from the retrospective application of interest and charges should a debtor leave the breathing space moratorium without entering a debt solution.

However, if a debtor falls into arrears on an ongoing liability (such as mortgage payments, rent, insurance premiums, taxes and utility bills) as it falls due to be paid during the breathing space moratorium, he will not be protected from enforcement action or the charging of additional interest, fees and charges on these missed bill payments.

Creditor Notifications

It is proposed that entries and exits of debtors to and from a breathing space moratorium would be recorded through an Insolvency Service-run central portal that will be populated with information supplied by the debt advice provider. Creditors would be informed through this service of any entries and exits.

Additionally, it is proposed that there will be a private register of debtors in the scheme, and individual creditors will have access to a register of those individuals who owe them debts who are in a breathing space moratorium and have been included in the portal. However, creditors will not be able to access details of other debtors on this register.

Mental Health Moratorium

Additionally, an alternative mechanism to a breathing space moratorium will be available to debtors receiving treatment for a mental health crisis. In such cases, a debt advice provider would not carry out a financial assessment, but instead would provide access to a breathing space moratorium on the basis of evidence demonstrating that the debtor is receiving mental health crisis care.

Evidence of such a mental health crisis will be available from social workers, nurses, occupational therapists or clinical psychologists who have specific training in mental health and mental capacity law, are experienced in supporting people in crisis and are usually based in community, crisis or home treatment teams and approved by local authorities.

The mental health moratorium benefits from the same protections as the breathing space moratorium, although it is not fixed at 60 days and instead will continue for however long the individual’s crisis care lasts.

Timescales

The protections afforded by a breathing space moratorium last for a period of 60 days, and as noted above, debtors may not access a breathing space moratorium if they have entered a breathing space moratorium in the previous 12 months.

No earlier than 25 days and no later than 35 days after the commencement of the moratorium, the debt advice provider will have to complete a “midway review” to ensure that the debtor is continuing to comply with the ongoing eligibility requirements.

Our Thoughts

The Regulations will offer welcome relief for debtors. Although it is uncertain what the “state of play” will be when the Regulations come into force in May 2021, the ongoing Covid-19 pandemic has led and is likely to continue to lead to a greater number of defaults on debts. While many creditors have been accustomed to providing informal breathing space moratoria to debtors in order to support them in seeking appropriate debt advice, the Regulations introduce greater formality to the process. It is likely that without the introduction of the Regulations, during a period with an uncertain economic outlook, many creditors would have been more reluctant to provide informal breathing space moratoria.

Notwithstanding the above, the Regulations will be particularly relevant when it comes to payday loans and credit cards, where the high rates of interest charged can be very burdensome. With the pausing of interest and default interest under the Regulations, individuals will be offered some respite from such debts.

Finally, in a world where mental health is becoming an increasingly discussed topic, it is a positive step that the Regulations will introduce mechanisms to protect vulnerable individuals in society.

Federal Reserve Rule Change Allows Bank Directors and Shareholders to Receive PPP Loans

 

On July 15, the Federal Reserve Board (FRB) announced it was extending a recent rule change relating to the Small Business Administration’s Paycheck Protection Program. The rule change will allow certain bank directors and shareholders to apply to their banks for PPP loans for their small businesses. The rule change is effective immediately and will remain effective while the PPP is active. Release.

FHFA Extends COVID-19 Related Loan Origination Flexibilities Through August 31

 

On July 9, the Federal Housing Finance Agency (FHFA) announced that several loan origination flexibilities originally set to expire on July 31 will be extended through August 31. These flexibilities include alternative appraisals on purchase and rate term refinance loans; alternative methods for documenting income and verifying employment before loan closing; and expanding the use of power of attorney and remote online notarizations to assist with loan closings. These loan origination flexibilities are intended to ensure borrowers receive continued support during the COVID-19 pandemic. Release.

Federal Housing Administration Makes New Loan Modification Options Available for Homeowners

 

On July 8, the Federal Housing Administration (FHA) announced an expanded array of loss-mitigation tools available to mortgage servicers. These measures require servicers to assess homeowners for multiple loan-modification options before the end of their forbearance period. These new measures are intended to assist homeowners financially impacted by the COVID-19 pandemic. Release.

SEC Adopts Rule Amendments to Applications for Exemption Under the Investment Company Act

 

On July 6, the Securities and Exchange Commission (SEC) announced that it had voted to adopt rule amendments to establish an expedited review process for applications for exemption for funds under the Investment Company Act. The new process is intended to make the process of applying for more routine exemptions quicker and less expensive for applicants. Release.

Rating Agency Developments (July 2 – July 15)

 

On July 15, Fitch published an article titled Originator-Specific Residential Mortgage Analysis Rating. Criteria.

On July 14, Fitch published an article titled U.S. Public Finance Prepaid Energy Transaction Rating. Criteria.

On July 13, KBRA published a report titled Public Finance: Coronavirus (COVID-19): Why Does Federalism Matter to Municipal Credit? Report.

On July 10, Moody’s published an updated ratings methodology titled Short-term Debt of U.S. States, Municipalities and Nonprofits. Methodology.

On July 10, Fitch published an updated ratings methodology titled Public-Sector Counterparty Obligations in PPP Transactions Rating. Criteria.

On July 10, Fitch published an article titled U.S. RMBS Coronavirus-Related Analytical Assumptions. Criteria.

On July 10, KBRA published a report titled Financial Institutions: U.S. Banks: Thinking Through the Great Unknown-Loan Losses in the Pandemic. Report.

On July 8, Moody’s published a methodology titled Moody’s Approach to Rating Asset-Backed Commercial Paper. Methodology.

On July 7, Moody’s published a methodology titled U.S. RMBS Surveillance. Methodology.

 On July 7, DBRS Morningstar published a methodology titled Rating U.S. Equipment Lease and Loan Securitizations. Methodology.

On July 6, Moody’s published a methodology titled Moody’s Global Approach to Rating Securities Backed by Aircraft and Associated Leases. Methodology.

On July 2, Moody’s published a methodology titled Single-Family Rental Securitizations. Methodology.

FHFA Provides Tenant Protections

 

On June 29, the Federal Housing Finance Agency (FHFA) provided additional protections for owners and renters of multifamily properties by allowing servicers to extend existing forbearance agreements for up to three months, for a total forbearance of up to six months for multifamily property owners with loans backed by Fannie Mae and Freddie Mac. Borrower may qualify for up to 24 months to repay the missed payments once the forbearance period concludes, and borrowers must comply with additional tenant protections during this period. Release.

Financial Regulators Modify Volcker Rule

 

On June 25, financial regulatory agencies modified the Volcker rule’s prohibition on banking entities investing in or sponsoring hedge funds or private equity funds, known as covered funds. The final rule permits banking entities to offer financial services and engage in other activities that fall outside of the issues that the rule was intended to address, and it streamlines the covered funds portion of the rule. The rule will be effective as of October 1. Release. Final Rule.