mortgage REITs

’40 Act Leeway for Mortgage REITS and Others

The SEC Investment Management Division published a no-action letter on August 15 addressed to Redwood Trust that provides a certain degree of Section 3(c)(5)(C) compliance leeway for mortgage REITs and mortgage bankers. The Redwood letter is a recognition by the staff that the ebb and flow of mortgage loans into and out of a mortgage banking business, and the retention of cash proceeds from time to time, is an integral part of the business, as is the retention of the right to service loans to facilitate both loan sales and securitizations.

Specifically, the staff concluded that there would be no objection to Redwood treating certain MSRs and cash proceeds in the manner described below for purposes of the Section 3(c)(5)(C) exclusion from the registration requirements of the Investment Company Act of 1940. Redwood Trust No-Action Letter – 2019

  • MSRs created when mortgage loans are sold or securitized can be treated as “qualifying interests” under Section 3(c)(5)(C), and
  • Cash proceeds from mortgage principal amortizations, interest payments and payoffs in connection with real estate-related assets, as well as from the sale of such assets, including to securitization trusts, can retain the characterization of the assets from which the cash proceeds were derived for purposes of Section 3(c)(5)(C), subject to the time limitations indicated in the letter; e.g. sell whole loans and treat the cash proceeds of the sale as “qualifying interests” (subject to such time limitations).

As we stated in our April 12, 2019, letter to the SEC staff on behalf of Redwood, these cash proceeds are “integral parts of and directly related to and arising from Redwood’s mortgage banking activities” and, likewise, created MSRs “are acquired as a direct result of Redwood’s mortgage banking activities”. Our letter references the staff’s Great Ajax no-action letter of February 12, 2018, in which the staff said that it “would be willing to entertain other no-action requests to treat as qualifying interests certain other mortgage-related assets if they are acquired by an issuer as a direct result of the issuer being engaged in the business of purchasing or otherwise acquiring whole mortgage loans (e.g., certain “A-Notes” and servicing rights)”. Orrick Letter to SEC, April 12, 2019

(Redwood also obtained a no-action letter in 2017 relating to the treatment of credit risk transfer securities as “real estate-type interests” under Section 3(c)(5)(C). In the Orrick letter to the staff, we noted, among other things, that credit risk transfer securities share similar characteristics with, and have the same economic substance as, agency partial pool certificates, which are treated as “real estate-type interests” under Section 3(c)(5)(C). In its letter, the staff recognized the similarities between credit risk transfer securities and agency partial pool certificates and concluded that the credit risk transfer securities described could be treated as “real estate-type interests”.  Redwood Trust No-Action Letter – 2017 ; Orrick Letter to SEC, September 5, 2017)

Rating Agency Developments

On February 27, Fitch published updated criteria on U.S. municipal structured finance.  Fitch Report.   

On February 26, Fitch published criteria on U.S. mortgage REITs and similar finance companies.  Fitch Report.  

On February 26, Fitch published criteria on U.S. equity REITs and REOCs.  Fitch Report. 

On February 26, S&P published criteria for deriving the common quantitative metrics for rating banks globally.  S&P Methodology.   

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Rating Agency Developments

On March 17, Fitch released new regional rating criteria for Latin America RMBS, and a Mexican RMBS Addendum, which incorporates an increased data analysis observation period for Mexican RMBS transactions. Fitch Release.

On March 17, S&P updated its methodology for rating unregulated issuers’ hybrid instruments and for classifying the equity content of these instruments. S&P Release.

On March 15, Fitch published its criteria for rating U.S. equity REITs and REOCs. Fitch Release.

On March 15, Fitch published its criteria for rating U.S. mortgage REITs and similar finance companies. Fitch Release.

On March 14, Fitch published a comment that the recent out-of-court settlement between the Lehman debtors and the Dante trustee leaves continuing conflicts of law and uncertainty for cash flow structured finance transactions that have interest and currency rate swaps and “flip clauses”. Fitch Comment.

On March 14, Fitch updated its structured finance counterparty criteria. Fitch Release.

On March 14, Fitch published its covered bonds counterparty criteria. Fitch Release.

On March 14, S&P requested comments on its proposed methodology for rating nonsovereign issuers and structured finance transactions that exceed European Monetary Union sovereign ratings. Comments must be submitted by March 28. S&P Release.

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