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S. HRG. 111–397 

SECURITIZATION OF ASSETS: PROBLEMS AND 

SOLUTIONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

SECURITIES, INSURANCE, AND INVESTMENT 

OF THE

COMMITTEE ON 

BANKING, HOUSING, AND URBAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

ON 

EXAMINING THE SECURITIZATION OF MORTGAGES AND OTHER ASSETS 

OCTOBER 7, 2009 

Printed for the use of the Committee on Banking, Housing, and Urban Affairs 

( 

Available at: http://www.access.gpo.gov/congress/senate/senate05sh.html 
COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS 

CHRISTOPHER J. DODD, Connecticut, Chairman 

TIM JOHNSON, South Dakota 

JACK REED, Rhode Island 

CHARLES E. SCHUMER, New York 

EVAN BAYH, Indiana 

ROBERT MENENDEZ, New Jersey 

DANIEL K. AKAKA, Hawaii 

SHERROD BROWN, Ohio 

JON TESTER, Montana 

HERB KOHL, Wisconsin 

MARK R. WARNER, Virginia 

JEFF MERKLEY, Oregon 

MICHAEL F. BENNET, Colorado 

RICHARD C. SHELBY, Alabama 

ROBERT F. BENNETT, Utah 

JIM BUNNING, Kentucky 

MIKE CRAPO, Idaho 

BOB CORKER, Tennessee 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

MIKE JOHANNS, Nebraska 

KAY BAILEY HUTCHISON, Texas 

JUDD GREGG, New Hampshire 

EDWARD SILVERMAN, Staff Director 

WILLIAM D. DUHNKE, Republican Staff Director 

DAWN RATLIFF, Chief Clerk 

DEVIN HARTLEY, Hearing Clerk 

SHELVIN SIMMONS, IT Director 

JIM CROWELL, Editor 

SUBCOMMITTEE ON SECURITIES, INSURANCE, AND INVESTMENT

JACK REED, Rhode Island, Chairman 

JIM BUNNING, Kentucky, Ranking Republican Member 

TIM JOHNSON, South Dakota 

CHARLES E. SCHUMER, New York 

EVAN BAYH, Indiana 

ROBERT MENENDEZ, New Jersey 

DANIEL K. AKAKA, Hawaii 

SHERROD BROWN, Ohio 

MARK R. WARNER, Virginia 

MICHAEL F. BENNET, Colorado 

CHRISTOPHER J. DODD, Connecticut 

JUDD GREGG, New Hampshire 

ROBERT F. BENNETT, Utah 

MIKE CRAPO, Idaho 

BOB CORKER, Tennessee 

DAVID VITTER, Louisiana 

MIKE JOHANNS, Nebraska 

KARA M. STEIN, Subcommittee Staff Director 

WILLIAM H. HENDERSON, Republican Subcommittee Staff Director 

RANDY FASNACHT, GAO Detailee 

(II)
C O N T E N T S 

WEDNESDAY, OCTOBER 7, 2009 

Page 

Opening statement of Chairman Reed ................................................................... 1 

Prepared statement .......................................................................................... 30 

Opening statements, comments, or prepared statements of: 

Senator Bunning ............................................................................................... 2 

WITNESSES 

Patricia A. McCoy, George J. and Helen M. England Professor of Law, and 

Director, Insurance Law Center, University of Connecticut School of Law .... 3 

Prepared statement .......................................................................................... 30 

George P. Miller, Executive Director, American Securitization Forum .............. 5 

Prepared statement .......................................................................................... 41 

Andrew Davidson, President, Andrew Davidson and Company .......................... 7 

Prepared statement .......................................................................................... 51 

J. Christopher Hoeffel, Executive Committee Member, Commercial Mortgage 

Securities Association .......................................................................................... 8 

Prepared statement .......................................................................................... 62 

William W. Irving, Portfolio Manager, Fidelity Investments .............................. 10 

Prepared statement .......................................................................................... 69 

ADDITIONAL MATERIAL SUPPLIED FOR THE RECORD

Statement submitted by the Mortgage Bankers Association ............................... 74 

(III)

(1) 

SECURITIZATION OF ASSETS: PROBLEMS AND 

SOLUTIONS 

WEDNESDAY, OCTOBER 7, 2009 

U.S. SENATE, 

SUBCOMMITTEE ON SECURITIES, INSURANCE, AND

INVESTMENT, 

COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS, 

Washington, DC. 

The Subcommittee met at 2:35 p.m. in room SD–538, Dirksen 

Senate Office Building, Senator Jack Reed (Chairman of the Subcommittee) presiding. 

OPENING STATEMENT OF CHAIRMAN JACK REED 

Chairman REED. The Committee will come to order. I want to 

welcome everyone and particularly thank our witnesses for making 

themselves available today. 

This hearing will examine a key activity within our financial 

markets—the securitization of mortgages and other assets—and 

will build on previous hearings this Subcommittee has held to address various aspects of regulatory modernization, including hedge 

funds, derivatives, corporate governance, SEC enforcement, and 

risk management at large financial institutions. 

Securitization is the packaging of individual loans or other debt 

instruments into marketable securities to be purchased by investors. At its core this process helps free lenders to make more loans 

available for families to purchase items like homes and cars and 

for small businesses to thrive. 

But we have learned from the financial crisis that securitization 

or how it is conducted can also be extremely harmful to the financial markets and families without appropriate diligence and oversight. Arguably, many of the basic requirements needed for effective securitization were not met over the course of the last several 

years. 

Today’s panel will discuss how in recent years the securitization 

process created incentives throughout the chain of participants to 

emphasize loan volume over loan quality, contributing to the buildup and collapse of the subprime mortgage market and the broader 

economy. 

Today we find ourselves in the opposite position from a few years 

back with hardly any issuances in key markets that could help return lending to responsible levels. So this afternoon’s hearing is 

about how to strengthen the securitization markets and enact any 

needed changes to ensure that securitization can be used in ways 
2 

that expand credit without harming consumers and the capital 

markets. 

I have asked today’s witnesses to address a number of key 

issues, including the role securitization played in the financial crisis, the current conditions of these markets, and what changes may 

be needed for Federal oversight of the securitization process. 

Unfortunately, a number of the banks who issue these securities 

could not find anyone in their workforce who was willing to testify 

today, but we are lucky to have experts here, both academic and 

business experts. I welcome you all and look forward to your testimony. 

Let me now turn it over to Senator Bunning for his remarks. 

STATEMENT OF SENATOR JIM BUNNING 

Senator BUNNING. Thank you, Mr. Chairman. 

All it takes is a short amount of time studying the market for 

asset-backed securities to realize really how complicated it is. Right 

now there is no basic private securitization market, especially for 

mortgages. I hope this hearing will help us all get a better understanding of the market and what we can do and should be done to 

make it work better. 

In theory, securitization is a great idea that brings more capital 

to the financial markets, leading to more loans for individuals and 

businesses. Done properly, that is a good thing. But as we saw last 

year, if it is done wrong, it can lead to disaster. 

The natural first question is whether the problems we saw were 

a result of a bad theory or bad execution. For several reasons, I 

think what happened was bad execution as a result of other bad 

policies and regulations. 

Probably the biggest factor that led to the problems in the 

securitization market were artificial demand created by bank capital rules favoring highly rated securities over whole loans. That 

artificial demand found a home in residential mortgage securities 

thanks to the GSEs’ loose underwriting and easy money. And the 

rating agencies enabled it all. We should start by fixing those problems. 

Once the bad incentives and artificial demand are taken away, 

real risk analysis can be done, and price can be based on real 

value. The Government will not have to solve all the problems because investors will demand more protections from the issuers. 

For example, the model where issuers were paid by the number 

of deals closed and loan originators passed on all responsibility and 

collects profits up front will not be tolerated by investors in the future. That will lead to a solution tailored to a particular asset and 

flexible enough to be changed as the market evolves. 

I hope our witnesses will comment on these ideas and provide 

some of their own, because we really need them. 

Thank you. 

Chairman REED. Thank you, Senator Bunning, and I would welcome any comments by my colleagues Senator Corker or Senator 

Gregg. 

[No response.] 

Chairman REED. Thank you very much. Now let me introduce 

our witnesses. 
3 

Our first witness is Professor Patricia A. McCoy, the Director of 

the Insurance Law Center and the George J. and Helen M. England Professor of Law at the University of Connecticut Law School. 

Professor McCoy specializes in financial services law and market 

conduct regulation. Prior to her current role, Professor McCoy was 

a partner in the law firm of Mayer Brown in Washington, DC, and 

specialized in complex financial services and commercial litigation. 

Thank you, Professor McCoy. 

Our next witness is Mr. George P. Miller. Mr. Miller is the Executive Director of the American Securitization Forum, an association 

representing securitization market participants including insurers, 

investors, and rating agencies. Mr. Miller previously served as Deputy General Counsel of the Bond Market Association, now SIFMA, 

where he was responsible for securitization market advocacy initiatives. Prior to that, he was an attorney in the corporate department 

at Sidley, Austin, Brown & Wood, where he specialized in structured financial transactions, representing both issuers and underwriters of mortgage and asset-backed securities. Thank you, Mr. 

Miller. 

Mr. Andrew Davidson is the President of Andrew Davidson & 

Company, a New York firm which he founded in 1992 to specialize 

in the application of analytical tools to mortgage-backed securities. 

He is also a former managing director in charge of mortgage research at Merrill Lynch. 

Mr. Christopher Hoeffel is an Executive Committee member of 

the Commercial Mortgage Securities Association, the trade association representing the commercial real estate capital market finance 

industry. Mr. Hoeffel is also the Managing Director of the investment management firm Investcorp International, responsible for 

sourcing, structuring, financing, underwriting, and closing new 

debt investments for the group. Mr. Hoeffel joined Investcorp from 

JPMorgan Bear Stearns where he was a senior managing director 

and global cohead of commercial mortgages. 

Our final witness is Dr. William Irving, a portfolio manager for 

Fidelity Investments. Dr. Irving manages a number of Fidelity’s 

funds, including its mortgage-backed security Central Fund, Government Income Fund, and Ginnie Mae Fund. Prior to joining Fidelity, Dr. Irving was a senior member of the technical staff at 

Alpha Tech in Burlington, Massachusetts, from 1995 to 1999 and 

was a member of the technical staff at MIT Lincoln Laboratory in 

Lexington, Massachusetts, from 1987 to 1995. 

Welcome, all of you. Professor McCoy, would you please begin? 

STATEMENT OF PATRICIA A. MCCOY, GEORGE J. AND HELEN 

M. ENGLAND PROFESSOR OF LAW, AND DIRECTOR, INSURANCE LAW CENTER, UNIVERSITY OF CONNECTICUT SCHOOL 

OF LAW 

Ms. MCCOY. Thank you. Chairman Reed, Ranking Member 

Bunning, and Members of the Subcommittee, thank you for inviting me here today. 

In the run-up to the crisis, Wall Street financed over half of 

subprime mortgages through private label securitization. When defaults spiked on those loans and housing prices fell, securitization 

collapsed in August 2007. It has been on life support ever since. 
4 

When private label securitization comes back, it is critical to put 

it on sound footing so that it does not bring down the financial system again. The private label system had basic flaws that fueled the 

crisis. 

First, under the originate-to-distribute model, lenders made 

loans for immediate sale to investors. In addition, lenders made 

their money on up-front fees. Both features encouraged lenders to 

‘‘pass the trash.’’ Lenders cared less about underwriting because 

they knew that investors would bear the brunt if the loans went 

belly up. In addition, to boost volume and fees, lenders made loans 

to weaker and weaker borrowers. In fact, when I have examined 

the internal records of some of the largest nonprime lenders in the 

United States, I have often found two sets of underwriting standards: lower standards for securitized loans and higher ones for 

loans held in portfolio. 

Second, securitizations spread contagion by allowing the same 

bad loan to serve as collateral for a mortgage-backed security, a 

collateralized debt obligation, and even the CDO of CDOs. It further spread contagion because investors used tainted subprime 

bonds as collateral for other types of credit, such as commercial 

paper and interbank loans. This shook confidence in the entire financial system because investors did not know where the toxic assets were located. 

Last, securitization resulted in a servicing system that creates 

thorny barriers to constructive workouts of distressed loans. We 

have had too many foreclosures as a result. In this, there were 

three victims: borrowers, who were steered into bafflingly risky 

mortgages, often at inflated interest rates; investors, who were 

forced to rely on ratings because securities disclosures were deficient and securitizations were so complex; and, finally, the public, 

who had to pay to clean up the mess. 

So how do we fix these problems going forward? There are two 

aspects: lax underwriting and loan workouts. 

First, fixing underwriting. One group of proposals seeks to realign incentives indirectly so that mortgage actors do careful underwriting. These include requiring securitizers to retain risk, 

higher capital requirements, better compensation methods, and 

stronger representations and warranties along with stiff recourse. 

I applaud these measures, but they are not enough to ensure 

good underwriting. I doubt, for example, whether prohibiting 

issuers from hedging their retained risk is really enforceable. 

Banks are adept at evading capital standards, and the Basel II 

standards are badly frayed. And stronger reps and warranties are 

only as good as the issuer’s solvency. Consider the fact that most 

nonbank subprime lenders are out of business and 128 banks and 

thrifts have failed since the crisis began. 

Another group of proposals focuses on better due diligence by investors and rating agency reform. This, too, is badly needed. However, memories of this crisis eventually will grow dim. When that 

happens, query whether investors will really take the time to do 

careful due diligence when a high-yield investment is dangled out 

in front of them. 

For these reasons, we need to finish the work the Federal Reserve Board began last year and adopt uniform Federal under-
5 

writing standards for mortgages that apply to all mortgage actors 

across the board. A brand-new study by researchers at UNC–Chapel Hill just found that States with similar laws had lower foreclosure rates than States without those laws. And a 2008 study 

found that State assignee liability laws did not reduce access to 

credit. 

Then one last thought: facilitating loan workouts. Here I propose 

amending Federal tax laws to tax securitized trusts unless they 

provide ironclad incentives to do loan workouts when cost effective. 

Thank you, and I welcome any questions. 

Chairman REED. Thank you very much, Professor. 

Mr. Miller, please. 

STATEMENT OF GEORGE P. MILLER, EXECUTIVE DIRECTOR, 

AMERICAN SECURITIZATION FORUM 

Mr. MILLER. Chairman Reed, Ranking Member Bunning, Members of the Subcommittee, on behalf of the American Securitization 

Forum, I appreciate the opportunity to testify today. 

Securitization plays an essential role in the financial system and 

the broader U.S. economy. It is a mainstream source of credit and 

financing for individuals and businesses and finances a substantial 

portion of all consumer credit. Currently there is over $12 trillion 

of outstanding securitized assets, including mortgage-backed securities, asset-backed securities, and asset-backed commercial paper. 

The size and scope of securitization activities reflects the benefits 

and value it has historically delivered to the financial system and 

economy. Restoration of greater function and confidence to this 

market is a particularly urgent need today, in light of capital and 

liquidity constraints currently confronting financial institutions 

and markets. With the process of bank de-leveraging and balance 

sheet reduction still underway, and with increased bank capital requirements on the horizon, it is clear that the credit and funding 

capacity provided by securitization cannot be replaced by depositbased financing or other alternatives. 

Simply put, the recovery and restoration of confidence in 

securitization is a necessary ingredient for economic growth to resume and for that growth to continue on a sustained basis into the 

future. 

The U.S. securitization markets experienced substantial dislocation during the ongoing financial market turmoil. While there are 

signs of recovery in certain market sectors, others—most notably, 

private residential mortgage-backed securities—remain dormant, 

with other asset classes remaining significantly challenged. 

Although tightened lending standards are one important reason 

for a broader constriction in the supply of credit, the impairment 

and reduction in securitization activity plays an equal, if not more 

important role. 

Certain Government programs, including direct support for Government-guaranteed mortgage securitization and the TALF program for certain asset-backed securities, have been successful in 

supporting financing and the liquidity needs in part of this market. 

However, these programs are temporary, and a larger challenge remains to create a stable and sustainable private capital market 

platform for future securitization activity. 
6 

To accomplish this essential goal, a number of weaknesses and 

deficiencies of securitization revealed by the financial market crisis 

must be addressed. ASF and the broader industry are working actively to pursue and implement certain critical reforms, and we will 

continue to work constructively with policymakers on others. I 

would like to offer several overriding perspectives on these reform 

measures. 

First, many of the problems that have been identified are not inherent in securitization per se. Instead, they relate to the manner 

in which securitization was used. As a general rule, the amount of 

risk inherent in a securitization transaction is equal to the risk 

that is embedded in the securitized assets themselves. However, 

ancillary practices and strategies, such as the excessive use of leverage and undue reliance on short-term funding for long-term liabilities, poor credit underwriting, or the absence of effective risk 

management controls, can amplify and concentrate these risks. 

This does not, however, mean that securitization itself is inherently 

flawed. 

Second, any reform measures should be targeted carefully to address specific and clearly identified deficiencies. Equal care should 

be taken to consider the individual and combined effects of various 

policy reforms to ensure that they do not inadvertently stifle otherwise sound and desirable securitization activity. We are very concerned that some reform measures currently being pursued or 

under consideration—most particularly, the combined effect of accounting standards changes and proposed regulatory capital 

rules—are counterproductive policy responses that are not reasonably targeted to address identified problems. Such reforms may 

render it prohibitively expensive to securitize a wide range of consumer and business assets. In turn, this could blunt the ability of 

the financial system to originate and fund consumer and business 

credit demand that finances jobs and investments, just as the 

broader economy begins to recover. We believe that this is an important matter that would benefit from Congress’s further attention. 

Finally, from an industry perspective, ASF is focused primarily 

on devising and implementing concrete steps to improve the basic 

securitization market infrastructure in response to specific deficiencies identified in preexisting practices. Grouped broadly under 

the heading of ‘‘Project Restart,’’ these reforms will substantially 

improve and standardize information and data that is captured and 

reported to investors in securitized products, including, in the case 

of residential mortgage-backed securities, extensive and detailed 

loan level data. With these data enhancements broadly in place, 

securitization risks will be more transparent and capable of evaluation by investors and other market participants. At the same time, 

these data and standardization improvements will support higherquality rating agency, due diligence, quality assurance, valuation, 

and other processes that depend on accurate and reliable underlying data. 

And, finally, and briefly, another important goal of Project Restart is to enhance and standardize representations and warranties 

that originators of mortgage loans typically provide. Much like a 

defective product is returned to a store from which it was sold, a 
7 

mortgage loan that does not meet specified underwriting criteria 

should be returned to the originator through its removal from a 

securitization trust for cash. We believe that more effective representations and warranties will result in a full retention of economic risk by originators of defective loans consistent with the policy goal of requiring those who originate assets for securitization to 

retain a meaningful and continuing economic stake in the quality 

of those loans. 

I thank the Subcommittee for the opportunity to testify today. 

Chairman REED. Thank you very much. 

Mr. Davidson, please. 

STATEMENT OF ANDREW DAVIDSON, PRESIDENT, ANDREW 

DAVIDSON AND COMPANY 

Mr. DAVIDSON. Good afternoon, Chairman Reed, Ranking Member Bunning, Members of the Subcommittee. 

More than 2 years since the collapse of the Bear Stearns highgrade structured credit enhanced leverage fund, its name a virtual 

litany of woes, we are still in the midst of a wrenching economic 

crisis, brought on at least in part by the flawed structure of our 

securitization markets. I appreciate the opportunity to share my 

views on what regulatory and legislative actions could reduce the 

risk of such a future crisis. 

I believe that securitization contributed to the current economic 

crisis in two ways: 

First, poor underwriting led to unsustainably low mortgage payments and excessive leverage, especially in the subprime and AltA markets. This in turn contributed to the bubble and subsequent 

house price drop. 

Second, the complexity and obfuscation of some structured products such as collateralized debt obligations caused massive losses 

and created uncertainty about the viability of key financial institutions. 

Now to solutions. Boiled down to the essentials, I believe that for 

the securitization market to work effectively, bondholders must ensure that there is sufficient capital ahead of them to bear the first 

loss risks of underlying assets; that the information provided to 

them is correct; that the rights granted to them in securitization 

contracts are enforceable; that they fully understand the investment structures; and that any remaining risks they bear are within 

acceptable bounds. 

If these conditions are not met, investors should refrain from 

participating in these markets. If bondholders act responsibly, leverage will be limited and capital providers will be more motivated 

to manage and monitor risks. 

If this is the obligation of investors, what then should be the role 

of Government? 

First, Government should encourage all investors and mandate 

that regulated investors exercise appropriate caution and diligence. 

To achieve this goal, regulators should reduce or eliminate their reliance on ratings. As an alternative to ratings, I believe regulators 

should place greater emphasis or reliance on analytical measures 

of risk, such as computations of expected loss and portfolio stress 

tests. 
8 

Second, Government should promote standardization and transparency in securitization markets. While the SEC, the ASF, and 

the rating agencies may all have a role in this process, I believe 

that transforming Fannie Mae and Freddie Mac into memberowned securitization utilities would be the best way to achieve this 

goal. 

Third, Government can help eliminate fraud and misrepresentation. Licensing and bonding of mortgage brokers and lenders, along 

with establishing a clear mechanism for enforcing the rights of borrowers and investors for violations of legal and contractual obligations, would be beneficial to the securitization market. However, I 

believe that there are superior alternatives to the Administration’s 

recommendation of retention of 5 percent of credit risk to achieve 

this goal. 

I would recommend an origination certificate that provides a direct guarantee of the obligations of the originator to the investors 

and the obligation of the originator to the borrowers coupled with 

penalties for violations even in good markets and requires evidence 

of financial backing. This would be a more effective solution. 

If the flaws that led to the current crisis are addressed by Government and by industry, securitization can once again make valuable contributions to our economy. 

I look forward to your questions. Thank you. 

Chairman REED. Thank you, Mr. Davidson. 

Mr. Hoeffel, please. 

STATEMENT OF J. CHRISTOPHER HOEFFEL, EXECUTIVE COMMITTEE MEMBER, COMMERCIAL MORTGAGE SECURITIES 

ASSOCIATION 

Mr. HOEFFEL. Thank you. I am testifying today on behalf of the 

Commercial Mortgage Securities Association. CMSA represents the 

collective voice of all market participants in the commercial real estate capital market finance industry, including lenders, issuers, investors, rating agencies, and servicers, among others. These participants come together to facilitate a transparent primary and secondary market for commercial mortgages. 

I am also an investor in CMBS, but I have more than two decades of experience as a commercial lender and a CMBS issuer. I 

would like to thank the Committee for the opportunity to share our 

views on securitization, which is crucial to borrower access to credit 

and our overall economy. 

This afternoon, I will focus specifically on securitized credit markets for commercial real estate, focusing on three issues: first, the 

enormous challenges facing the $3.5 trillion market for commercial 

real estate finance, of which about $850 billion is securitized; second, the unique structure of CMBS and the need to customized regulatory reforms accordingly to support recovery; and, finally, the 

need to restore the CMBS market to meet significant borrower demand. 

Today the commercial real estate market is facing a perfect 

storm based on three interconnected and pressing challenges. First, 

there is no liquidity or lending. In 2007, there were approximately 

$240 billion in CMBS loans made, approximately half of the total 

real estate lending market. CMBS issuance fell to only $12 billion 
9 

in 2008, despite strong credit performance at the time and high 

borrower demand. It has now been well over a year since a new 

CMBS deal has been done. 

Second, there are significant loan maturities through 2010. In 

fact, hundreds of billions of dollars is coming due in the next 2 

years. Capital refinance these loans is largely unavailable, and 

loan extensions are difficult to achieve. 

Third, the downturn in the U.S. economy persists. Commercial 

real estate is greatly impacted by the macroeconomic factors: high 

unemployment, low consumer confidence, poor business performance, and falling property values. This last point is especially important to highlight. Remember, commercial real estate did not 

cause the current liquidity crisis. It has been negatively affected by 

it now, 2 years into the crisis. Second, even within the commercial 

real estate finance industry, CMBS or securitization did not cause 

stress. In fact, nonsecuritized loans are now underperforming 

CMBS and are experiencing in some cases greater defaults. Ironically, securitization may be ultimately an exit strategy for these 

troubled loans. 

As financial policymakers, including the current and previous 

Administration, have rightfully pointed out, no recovery plan will 

be successful unless it helps restart the securitization markets. The 

IMF also asserts that securitization will assist withdrawal of Government interventions, employing private capital to fuel private 

lending. 

Today many recovery efforts in the commercial real estate market, such as TALF and PPIP, have been helpful. But they are in 

a nascent and delicate stage, as discussed in my written testimony. 

So it is important that regulatory reforms, including accounting 

changes, as George mentioned, must work to strengthen the 

securitized markets and to give private investors who bring their 

own capital to the table certainty you and confidence. 

Above all, in the commercial real estate context, there is a real 

concern that some of the reform proposals will be applied in a onesize-fits-all manner that could actually impede recovery. Specifically, there are a number of important distinctions between CMBS 

and other asset-based securities markets, and the upshot of these 

distinctions is that they help the CMBS market avoid problems of 

poor underwriting or inadequate transparency. These significant 

differences are in four major areas: 

First, the borrower. In CMBS, the borrower in most cases is a 

sophisticated business within income-producing property and contractual revenues from tenants as opposed to some situations in 

the subprime residential mortgage where a loan may have been underwritten for a borrower who could not document his income. 

Second, the structure of CMBS. There are only about 100 to 300 

loans in a typical CMBS deal as opposed to thousands of loans in 

residential deals. This enables greater due diligence and analysis 

to be performed on CMBS pools by several different parties, including rating agencies and investors. 

Third, the existence of a third-party investor or B-piece buyer in 

the securitization process. Unlike other asset classes, CMBS has an 

investor who purchases a first loss position and conducts extensive 

due diligence as a result, which includes sit visits to every prop-
10 

erty. This investor also re-underwrites proposed loans in a potential pool, and they can negotiate to kick out any loans in which 

they do not wish to invest. 

Finally, greater transparency. CMBS market participants have 

significant access to loan, property, and bond level information at 

issuance and on an ongoing basis. In fact, the CMSA investor reporting package is used as a model for transparencies by other 

types of ABS markets. 

It is from this unique perspective that we approach regulatory 

reform proposals that will undoubtedly change the CMBS market. 

We do not necessarily oppose some of these proposals despite the 

fact that they will address practices that were typical in the 

subprime and residential securitization markets, not CMBS. Instead, we ask that policymakers ensure that such reforms are tailored to address the specific needs of each securitization asset class 

and to recognize the many safeguards that already exist in the 

CMBS market today. 

In this regard, two aspects of regulatory reform are of utmost interest to CMSA: a requirement that securitizers—that is, bond 

issuers and underwriters—retain at least 5 percent of the credit 

risk in any securitized loan pool; and a restriction of the ability of 

issuers to protect against or hedge this 5-percent retained risk. 

As is explained in more detail in my written testimony, the basic 

concern we have about both of these proposals is whether they will 

be applied in a one-size-fits-all manner. While we agree that it is 

important for the appropriate parties to keep skin in the game, 

CMBS deals are already structured to do this in a way that has 

worked well for the market and for the overall economy for years 

and can continue to serve the policy objective that is sought here. 

As discussed earlier, first loss buyers conduct their own extensive 

credit analysis on the loans, examining detailed information concerning every property before buying the highest-risk bonds in the 

CMBS securitization. If these reforms are not applied in a tailored 

fashion, the danger is that the reforms will end up hampering the 

ability of CMBS lenders to originate new loans, thereby limiting 

capital and the flow of credit at a time when our economy desperately needs it. 

Thank you. 

Chairman REED. Thank you very much. 

Dr. Irving, please. 

STATEMENT OF WILLIAM W. IRVING, PORTFOLIO MANAGER, 

FIDELITY INVESTMENTS 

Mr. IRVING. Good afternoon, Chairman Reed, Ranking Member 

Bunning, and Members of the Subcommittee. Thank you for the opportunity to participate in today’s panel. 

I have a very simple three-part message that I want to convey 

today. 

First, securitization can be a very effective mechanism for channeling capital into our economy to benefit the consumer and commercial sectors. 

Second, as a result of the financial crisis, the residential mortgage-backed security market and the asset-backed market are 
11 

sharply bifurcated. As I will describe, some are performing well, 

some less so. 

And then, finally, third, there are four broad areas of reform worthy of pursuit to help the securitized markets function better. In 

my remaining time, I will elaborate on these three points. 

One of the most important benefits of the securitization process 

is that it provides loan originators an additional funding source as 

an alternative to conventional retail deposits. As an example, I 

manage the Fidelity Ginnie Mae Fund, which has doubled in size 

in the past year to over $7 billion in assets. The mortgage-backed 

security market effectively brings together shareholders in this 

Ginnie Mae Fund with individuals all over the country who want 

to purchase a home or refinance a mortgage. In this manner, 

securitization breaks down geographic barriers between lenders 

and borrowers, thereby improving the availability and cost of credit 

across regions. 

Second, to provide further insight into the value of securitization, 

consider what happened to the consumer ABS sector. From 2005 

through 2007, auto and credit card ABS issuance was roughly $170 

billion per year. However, after the collapse of Lehman Brothers in 

September of 2008, new issuance came to a virtual halt. As a result, the interest rate on new car loans provided by finance companies increased by about 5 percentage points between July of 2008 

and year end. Issuance did not resume until March of this year, 

when the TALF program began. Thanks to TALF, between March 

and September, there was $91 billion of card and auto ABS 

issuance. Coincident with the resumption of a functioning auto 

ABS market, new car financing fell back into the 3 percent range. 

I will now turn to the agency mortgage market, which is also 

performing well, thanks to the extraordinary Government intervention over the past year. This intervention has had two parts. First, 

in September of 2008, Fannie Mae and Freddie Mac were placed 

into conservatorship, thus reassuring tens of thousands of skittish 

agency MBS investors that the Government stood behind their investments. 

Second, the Federal Reserve pledged to purchase $1.25 trillion of 

agency MBS by the end of 2009. So far, the Fed has purchased just 

over $900 billion, thus reducing significantly the spread between 

the yields on agency MBS and Treasuries. As of this week, the conforming balance 30-year fixed mortgage rate is approximately 4.85 

percent, which is very close to a generational low. Furthermore, the 

agency MBS market is deep and liquid. 

In contrast, the new issued private label mortgage market has 

received no Government support and has effectively shut down. 

From 2001 to 2006, issuance in this market had increased almost 

fourfold, to $1.2 trillion. But when the financial crisis hit, the 

issuance quickly fell to zero. Virtually the only source of financing 

for mortgage above the conforming loan limit, so-called ‘‘jumbo 

loans,’’ is a bank loan, and generally the available rates are not 

that attractive. 

At first glance, the higher cost of jumbo financing may not seem 

to be an issue that should concern policymakers. But consider the 

following. If the cost of jumbo financing puts downward pressure 

on the price of homes costing, say, $800,000, then quite likely there 
12 

is going to be downward pressure on the homes costing $700,000 

and so forth. So in my opinion, at the same time that policymakers 

deliberate the future of Fannie Mae and Freddie Mac, they should 

consider the future of mortgage finance in all price and credit quality tiers. 

To help improve the functioning of the securitized markets, I recommend that regulatory and legislative efforts be concentrated in 

four key areas. First, promote improved disclosure to investors at 

the initial marketing of transactions as well as during the life of 

a deal. For example, there should be ample time before a deal is 

priced for investors to review and analyze a full prospectus, not 

just a term sheet. 

Second, strengthen credit underwriting standards in the originating process. One way to support this goal is to discourage upfront realization of issuers’ profits. This issue is complex and likely 

will require specialized rules tailored to each market sector. 

Third, facilitate greater transparency of the methodology and assumptions used by the rating agencies to determine credit ratings. 

In particular, there should be a public disclosure of the main assumptions behind rating methodologies and models. 

Finally, support simpler, more uniform capital structures in 

securitization deals. This goal may not be readily amenable to legislative action, but should be a focus of industry best practices. 

Taking such steps to correct the defects of recent securitization 

practices will restore much-needed confidence to this critical part 

of our capital markets, thereby providing improved liquidity and 

capital to foster continued growth in the U.S. economy. 

Thank you, and I look forward to answering your questions. 

Chairman REED. Thank you very much, Dr. Irving. 

In fact, I wanted to thank all the witnesses for their not only 

very insightful, but very concise testimony. I appreciate it very 

much. All of your written statements will be made a part of the 

record and any of the statements that my colleagues wish to be 

submitted will be made part of the record. 

Let me pose a question to all of you, which in some cases will 

allow you to elaborate on your initial comments. We have seen a— 

I am getting to the point now where I can say lifetime, and that 

is a long time—shift from a very small secondary market for loans 

to a well-functioning market, now to one that has basically seized 

up. I think some rough numbers that I have seen, that loans on 

bank balance sheets, roughly $3.5 trillion, compared to 

securitization products, about $7.1 trillion, and that market has 

sort of collapsed. 

So the issue is how do we—or what are the key factors that are 

stalling this market and that have to be addressed by us? And 

again, I think you have alluded to some of them, but let me start 

with Professor McCoy and go down the row. 

Ms. MCCOY. Thank you. The problem right now on the investor 

end is lack of investor trust. Investors were not getting useful disclosures up front. They simply weren’t. They weren’t given information on the individual loans in the loan package so they could figure out whether the underwriting was good or bad. The due diligence done on those deals by investment banks left a lot to be de-
13 

sired, and in some cases, I fear, was tantamount to fraud to the 

investors. 

When I have looked at securitization prospectuses for mortgagebacked securities, often they would say, here are our underwriting 

standards. But many of the loans in the loan pool were exceptions 

to these standards, and there is no further description of the exception loans or how many of the loans in the loan pools are exception 

loans. In some cases, it was more than half, and I guarantee you 

they did not exceed the underwriting standards. They fell far 

below. So this is a pig in the poke, and for starters, that needs to 

be fixed. 

My additional concern is that investors’ interests are not always 

protective of borrowers. We also need to rebuild securitization so 

that it does not saddle borrowers unknowingly with products that 

they cannot afford to repay, and that is a separate issue. 

Chairman REED. Mr. Miller? Thank you. 

Mr. MILLER. Senator, I think the reasons are interrelated. There 

are a number of them. I think I would agree, overall, if I had to 

characterize it, it would be a significant lack of confidence in various parts of securitization market activity. I think that it certainly 

relates to withdrawal of confidence from investors who are in parts 

of the market for the kind of data and data integrity and reliability 

to give them comfort that they are able to evaluate—make meaningful evaluations of securitized instruments. I think it clearly relates to similar lack of confidence in certain rating agency methods 

and processes. 

Having said that, I think it is important to note that while there 

are clearly parts of the securitization market that are dormant and 

significantly challenged, there are other parts of the market that 

are functioning to some reasonable degree of normalcy, and while 

I think you can also point to Government programs, for example, 

TALF playing a significant role, TALF has also been beneficial in 

that it has brought back non-TALF issuance in investors for products that aren’t directly supported by Government loans. And I 

think what that reveals is that it is not something that is endemic 

to securitization as a whole, but there are specific and identifiable 

deficiencies that need to be addressed. 

And so that is why, again, from ASF’s perspective, things that 

lie more perhaps within the industry’s control are areas where we 

are focusing to rebuild the securitization infrastructure, improve 

the quality, comparability, standardization, and reliability of data, 

and then finally to—and I think this goes to some of Andy’s comments, which I agree with—to help rebuild confidence in the operational processes and controls so that protective measures that are 

there to protect investors and ensure that their rights and entitlements as promised are delivered, that those protective measures 

actually work. And I think there is some significant work and effort 

that is needed in that area, but all directed at helping to rebuild 

and restore confidence. 

Chairman REED. Mr. Davidson. 

Mr. DAVIDSON. Addressing the current illiquidity, I would focus 

sort of on two different areas. One is the area of uncertainty. We 

still have a tremendous amount of economic uncertainty and regulatory uncertainty, and that just takes some investors out of the 
14 

market because they need the risks to know a little bit better. And 

the other area is just the lack of availability of leverage to certain 

types of instruments. Without leverage, many instruments have to 

trade at very discounted prices, and so the institutions who hold 

those now and do have leverage are not willing to transact at the 

all equity price as opposed to the leveraged price. And I think that 

is why some of the Government programs, like TALF, have been 

so effective is because they have reinstituted leverage into these 

markets. 

In thinking about the solutions, we have to consider what is the 

appropriate amount of leverage and make sure that that can be delivered through those markets because that will be an important 

part of their future success. 

Chairman REED. Thank you. 

Mr. Hoeffel, you can also focus in on the commercial loan—— 

Mr. HOEFFEL. Yes. I will definitely have a bent to that. I will 

look at it from both the investor and the lender point of view, or 

the originator or issuer point of view. 

For investors, one of the issues, as Mr. Davidson mentions, is 

their inability to finance their investments, so that has caused 

spreads to be very volatile and, in general, trend toward higher 

spreads than what we had seen when the market was healthier. 

TALF has certainly helped that from a secondary point of view, 

some of the existing securities, and may help in some new issues 

if we get some deals done, but that is yet to be seen. 

There are certainly concerns about the rating agencies and the 

rating process, not that they were necessarily wrong, but as I think 

several people have mentioned, we need greater transparency so investors can understand what the rating process is and delve in and 

do their own critical analysis of what the ratings mean. 

And third, from an investor point of view, I think there are concerns about the continuous changes in accounting and regulatory 

policies. They don’t know what the potential ramifications of investing in a security might be down the road because some of the 

FASB rules keep changing and there is a certain amount of uncertainty there that is unpalatable. 

From a lender point of view, because, again, of the volatility of 

credit spreads, in order to make a loan work, you would have to 

originate it at a pretty high spread today and that is not competitive to the few people that are active in the markets. Some banks 

and life companies are making new commercial mortgages. 

Second, there is a big challenge in the commercial real estate 

space to aggregate collateral. In a healthy market, it takes 3 to 6 

months to aggregate sufficient loans to do a securitization. Today’s 

market, it would probably be longer. Typically, lenders would 

hedge their positions against movement in credit spreads or interest rates during that aggregation period through a number of different derivative options that don’t exist right now, or are so 

uncorrelated to the market that they can’t really use them to effectively hedge. So people are unwilling to take the balance sheet risk 

to aggregate loans solely for securitization. 

And similarly, lenders or aggregators are concerned about ongoing accounting changes in the market and how that might affect 

them while they are aggregating, but before they sell. 
15 

Chairman REED. Thank you. 

Dr. Irving, finally. 

Mr. IRVING. I will make four comments. First of all, I think uncertainty about home prices and how borrowers behave when they 

are underwater on their mortgage, when the loan-to-value ratio is 

greater than 100, has increased the risk premium in the market. 

And the second facet of uncertainty which is causing skittishness 

about these securities is just uncertainty about Government policy. 

The Government in some sense has been in the position inadvertently of picking winners and losers in terms of which investments 

do well and which do not. Those that get the Government support 

perform better than those that do not, so it becomes less of an intrinsic relative value of the cash-flows and more an assessment of 

how the Government policy is going to go. 

The third would be the equity-like price volatility that we have 

seen exhibited in many of these marketplaces, again causes there 

to need to be an increased risk premium, that is, prices go down. 

And then finally, the complexity. We have sort of a rule of thumb 

on our trading room floor that for every additional sentence I need 

to describe to my boss the structure of the security I am buying, 

the price has to be lower by about a point, and—— 

Chairman REED. That would be terrible here. 

[Laughter.] 

Chairman REED. Thank you, Dr. Irving. And one point, I think, 

emerges, and I am going to turn it over to Senator Bunning, is as 

we proceed forward on financial reform legislation, that will provide one way of at least an additional degree of certainty and calculation of the market, so that might contribute to, in a small way, 

to expanding this market. 

Senator Bunning. 

Senator BUNNING. Thank you, Mr. Chairman. 

I am going to start on the other side. Without reform of bank 

capital standards, rating agencies, and housing subsidies like the 

GSEs, is there any way the private asset-backed security market 

will ever return? 

Mr. IRVING. So first of all, we do have evidence that—from the 

TALF program for a number of—— 

Senator BUNNING. That is Government-backed, though. 

Mr. IRVING. No, but where I am going to go with that is that certain high-quality issuers are no longer relying on the TALF program. They can do issuance without the benefit of the Government 

subsidy. 

More generally, though, I would say that the past year’s experience would suggest that in the residential mortgage market, some 

sort of a Government guarantee is probably going to be required, 

and the evidence that I would put forth to that would be if you look 

at the striking difference between the performance of the agency 

market, even before the Fannie Mae–Freddie Mac conservatorship, 

and a nonagency market, where in the nonagency market, even 

prime jumbo responsible loans with a loan-to-value ratio of 70 were 

priced at, like, 80 cents on the dollar, there was so much furor in 

the marketplace and so much concern, that I think that that evidence suggests to me that in times of tremendous stress, at least, 

there needs to be some sort of a Government backstop. That is not 
16 

to say necessarily you need to have organizations with large retained portfolios, but some sort of a Government guarantee or credit guarantee, in my opinion. 

Senator BUNNING. Another question. Which problems that surfaced in the asset-backed securities markets can be solved by market participants on their own, and which need Government action? 

All of them, or just some of them? 

Mr. IRVING. Well, for instance, I think that in terms of aligning 

the interests, one of the key principles is to align the interests of 

the investors and the issuers. For instance, there is the proposal 

of issuers retaining a 5-percent slice of the security. I would say 

that that is far too blunt an instrument, and what we need instead 

is to take a step back and set up an overall regulatory environment 

and then let that regulator work with a trade organization like 

ASF to—and CMSA and come up with more detailed rules that are 

tailored to each particular sector of the market. 

So, for instance, in that case of aligning the interests of the investors and the issuers, I think that is something that a regulator 

should do by working closely with the organization to tailor solutions for each individual marketplace. 

I think maybe one area where legislative could help would be in 

terms of disclosure in the rating agencies, so we have fuller transparency on their methods and quicker turnaround when there is 

changing to their methodology or when they discover errors in their 

process. 

Senator BUNNING. Mr. Miller, you mentioned that there were 

about $12 trillion worth of assets. How much would you say of that 

is near or under water? 

Mr. MILLER. Well, from a, I think—and we can look into this and 

get back to you with specific detail, but the $12 trillion refers to 

the amount of securitized assets currently outstanding—— 

Senator BUNNING. That is correct. I understand that. 

Mr. MILLER. Right. I think a very small minority of that would 

be in technical default, so that the securitized instruments are not 

paying as promised—— 

Senator BUNNING. We have approximately five million homeowners that are in foreclosure or are—obviously, their houses are 

worth less than their mortgages. 

Mr. MILLER. Right. And I am distinguishing here—I am speaking 

at the security level, so the mortgage—— 

Senator BUNNING. I understand that, but those securitized mortgages were the things that were sold as AAA rated, and that is 

where we got into all kind of the devil is in the details. And I find 

that the rating agencies were right in the middle of all that. In 

other words, they were the ones that were selling those as AAA 

quality to not only other banks, but the same banks that had sold 

them the mortgages in the first place, and all around the world. 

And that is why when the bubble burst, it didn’t just burst here 

in the United States, it burst in Europe and other places. 

Mr. MILLER. I would certainly agree with that, and to the extent 

that rating agencies were overly optimistic or miscalculated in 

terms of their assessment of credit—— 

Senator BUNNING. Do you think they did due diligence in finding 

out exactly what kind of mortgages they were securitizing? 
17 

Mr. MILLER. I don’t think the rating agencies traditionally have 

performed due diligence on the underlying mortgages. I do think— 

I guess the point that I was going to make is that to the extent 

they did get it wrong, I think, number one, it emphasizes the critical importance of avoiding undue reliance on rating agencies by all 

parties. 

And then, second, as I indicated in my earlier testimony, I think 

one of the core features of reform that will assist issues and problems with the rating agencies and many other issues and deficiencies that we have identified is simply having access to better 

data that can then support better due diligence, better quality assurance, better rating agency processes in a much more transparent way. I think part of the problem is that judgments made by 

rating agencies and others were really not easily capable of similar 

evaluation by others. 

Senator BUNNING. Meaning, in other words, being able to distinguish the mortgages that were in the portfolio—— 

Mr. MILLER. Yes. 

Senator BUNNING. ——that they were doing. 

Mr. MILLER. That is certainly part of it. 

Senator BUNNING. Are all of you familiar with the 1994 law that 

the Congress passed giving the Federal Reserve the jurisdiction 

over all banks making mortgages and also the mortgage brokers 

that were making mortgages? They were empowered with oversight—the Federal Reserve was—to see that they were doing their 

job. In other words, they were watching the store. And it was exactly 14 years from the day that we passed that bill that the first 

regulation was written, and that was 2 years into Chairman 

Bernanke’s oversight, the first regulations were promulgated on 

mortgages. So we went 14 years without a regulation. Would someone like to comment on that? 

Ms. MCCOY. Senator, I am very familiar with that history. 

Senator BUNNING. OK. 

Ms. MCCOY. I am actually writing a book on it. 

[Laughter.] 

Senator BUNNING. I have spoken enough to write a book on it, 

so—— 

[Laughter.] 

Ms. MCCOY. I was on the Consumer Advisory Council for the 

Federal Reserve from 2002 to 2004. We begged the Federal Reserve 

to exercise that power. We were aware of the burgeoning problems 

with the subprime market at that time, and I was privately told 

by Governor Gramlich that he very much supported that rule, but 

it would never fly with the Board. 

Senator BUNNING. Oh, really? 

Ms. MCCOY. Yes. 

Senator BUNNING. Well, it is funny, but the Congress of the 

United States gave that power to the Federal Reserve and expected 

them to completely fulfill their obligation in oversight of the mortgage market, whether it be the bank or whether it be the mortgage 

broker. 

Ms. MCCOY. When we would talk to Federal Reserve staff during 

that time period, we were told that we only had anecdotes to offer, 
18 

that we could not produce proof of a deleterious effect on the macroeconomy, and that, therefore, the Board would not take action. 

Senator BUNNING. Well, I can tell you when Chairman Greenspan and Chairman Bernanke came before this Banking Committee as a whole, they were all warned about it, especially early 

in the early 2000s, that we were getting ourselves into a potential 

bubble situation like we did in the dot-com bubble, and we couldn’t 

get action out of the Federal Reserve. I am just wondering if anybody here was aware of that. No one here was aware that the Fed 

had that power except the person who was in direct contact with 

the Federal Reserve? 

Ms. MCCOY. Yes. 

Senator BUNNING. OK. Thank you very much. 

Chairman REED. Thank you, Senator Bunning. 

Senator Corker. 

Senator CORKER. Since I was in another hearing, I am going to 

let Senator Gregg go and I will go after him. 

Chairman REED. Senator Gregg. 

Senator GREGG. That is very kind of you, Senator. 

First off, I thought your testimony was exceptional and very, 

very helpful and constructive, everyone’s, and the fact that you 

were concise and had specific thoughts and ideas as to what we 

should do is extremely useful. 

My opening thought, though, however, as I listened to all of you, 

was does any of this need to be legislated? It sounds to me like almost every specific proposal you have suggested should fall to a 

regulatory agency to do, and most of it went to underwriting and 

better underwriting standards, it seemed like. So I would ask anybody on the panel, is there anything here that needs legislation to 

accomplish it versus just having the proper regulatory agencies noticed that this is the way we should approach these issues? 

Ms. MCCOY. Senator, if I may, I have jotted down eight different 

things, and we can divide them between the private market and 

Government intervention. 

I think representations and warranties, recourse clauses, standardizing products, and having a functioning resale market for mortgage-backed securities is probably a private sector function, although the Government might convene discussions along those 

lines. 

But for Government action—— 

Senator GREGG. I am talking about Congressional action, not—— 

Ms. MCCOY. Yes. Yes. I believe that better disclosures to investors can be handled by the SEC directly and Congress does not 

need to intervene there. 

Better underwriting standards, I think, do need Congressional 

action because the Fed is still not sufficiently aggressive and there 

is very strong legislation in both chambers along those lines. 

Higher capital standards, I believe banking regulators will address. 

Rating agency reform may very well need Congressional attention. 

Senator GREGG. I would just note that I think if you are going 

to have a uniform underwriting standard, you don’t want that written into law if you want to have flexibility on how—— 
19 

Ms. MCCOY. Yes, but I believe—— 

Senator GREGG. That is going to require some mutation. 

Ms. MCCOY. The authorization needs to come from Congress and 

then delegated, I have proposed, to the new agency. 

Senator GREGG. You don’t think that power already exists within 

the Fed or—— 

Ms. MCCOY. Well, the power may exist within the Fed, but the 

Fed is not exercising it effectively. 

Senator GREGG. OK. So does anybody else have Congressional action that is required? 

Mr. DAVIDSON. Senator Gregg, certainly in the area of Fannie 

Mae and Freddie Mac, which is central to the mortgage-backed securities market—— 

Senator GREGG. Yes, I accept that. 

Mr. DAVIDSON. ——Congressional action is necessary. And then 

that would have a number of spillover effects, depending on how 

that process went, that may or may not require further Congressional action. 

Senator GREGG. Does anybody else have anything? You know, 

this does come down to underwriting. Everybody used that as an 

example of where the problem lies. Should we move toward a system like the Australians have, where you basically have to put a 

certain percent down—in Australia, I think it is 20 percent—then 

you have recourse on mortgages. Or should we continue with the 

system of the Congress telling everybody in America that they have 

a right to have a loan to buy a house, no matter whether they can 

pay it back or not, through the CRA? Or is there someplace in between? 

Mr. HOEFFEL. Senator, I don’t think you need to regulate underwriting per se. I think you need to make sure that potential investors who might be impacted by the underwriting are fully aware 

of what they are investing in, so that if the underwriting has been 

poor, it is not glazed over by a rating or a structure. They have all 

the information they need to make the proper assessments. 

Mr. MILLER. I would agree. I don’t think it is desirable to legislate or regulate underwriting standards per se. I do think it is important, though, for those involved in credit underwriting functions, and I am thinking specifically in the residential mortgage 

market, for those involved in those activities—mortgage lenders, 

brokers, and others—to be subject to the same type of regulation 

so that you have a level playing field and consistent standards that 

apply to all who are engaged in those functions. 

Ms. MCCOY. I am forced to disagree. We saw a situation in which 

the residential mortgage lending industry was unable to organize 

self-regulation, and, in fact, engaged in a race to the bottom in 

lending standards, which was aided and abetted by our fragmented 

regulatory system which, as Senator Bunning noted, refused to impose strong standards. That is how we got in this mess, and I think 

the only way that we prevent that from happening is to have some 

basic common sense standards that apply to all lenders in all 

States from the Federal Government. 

To my mind, the most important one is require borrowers to 

produce documentation that they have the ability to repay the loan 
20 

at inception. That is common sense. We don’t have to obsess about 

down payment requirements. But that, to me, is essential. 

Senator GREGG. I don’t want to—doesn’t that go to recourse? I 

mean, should there be recourse? 

Ms. MCCOY. Against the borrower? 

Senator GREGG. Right. Should that be a standard that we subscribe to in this country, which we don’t now? 

Ms. MCCOY. Well, some States do subscribe to it. It depends on 

the State. 

Senator GREGG. Well, is it a good idea or bad idea? 

Ms. MCCOY. I think right now, it is causing people who have already lost their houses to be pushed further into crisis and it is not 

helping the situation right now. 

Senator GREGG. And didn’t this push to the bottom—wasn’t the 

shove given by the Congress with the CRA and the way it set up 

Fannie Mae and Freddie Mac as basically guaranteed entities? 

Ms. MCCOY. Actually, CRA loans have turned out to perform 

pretty well, and one of the reasons is that banks held them in portfolios so that those higher underwriting standards actually applied 

to CRA loans. They have been a success story among different 

classes of loans. 

Fannie Mae and Freddie Mac, I agree, they cut their underwriting standards, but they joined the bandwagon late. The private 

label nonconforming loans created a strong competitive threat that 

they felt necessary to meet, and so they were not the cause of the 

problem, although they did join the bandwagon. 

Senator GREGG. Thank you. 

Chairman REED. Senator Corker. 

Senator CORKER. Thank you, Mr. Chairman, and I am sorry I 

missed part of the end of the testimony going to another hearing, 

but I got the general idea. 

Focusing on commercial real estate right now, I know there has 

been a lot of discussion. We were just in New York, lots of people 

concerned about this huge amount of indebtedness that is coming 

due, huge amounts of loans done 10 years ago. You had 10-year 

term, 30-year ARM. In essence, you kind of sold the project at that 

time because it was almost—you almost got full value because underwriting was so loose, so you kind of wondered, what is the problem? These have got to roll over, and the developer kind of sold the 

deal on the front end. 

But I guess as we—and I know that is not the case in every case. 

But what is the key? Some organization that wants to begin originating commercial real estate loans again and securitizing them 

from just doing those things and market needs to make those be 

sold by keeping recourse or doing other kinds of things? I just don’t 

get it, really. The real estate values are dropping. You are underwriting at lower levels. The bond holders today are going to take 

a haircut to get financed out. The developer is going to have a little 

bit different deal or lose his property, but what is to keep the private market from just functioning right now? I really don’t get it, 

and I don’t understand why the focus is on us. 

Mr. HOEFFEL. Well, there are a couple of different responses. 

One is that there are loans being made by insurance companies 

and some banks that are holding those loans—— 
21 

Senator CORKER. Right. 

Mr. HOEFFEL. So that business is happening. Unfortunately—— 

Senator CORKER. And it is heating up a little bit, isn’t it? 

Mr. HOEFFEL. It has picked up, but there is just not a capacity 

for banks and insurance companies to fill the void that is left by 

the absence of securitization. They just don’t have the balance 

sheet strength or size to write all the loans that need to be written. 

But it can be done. 

For the securitized, and you may have missed these comments, 

there is a mechanical issue in that there are a lot of people who 

would like to go and make loans to securitize, but it takes a great 

deal of time to aggregate a sufficient pool to go out and create a 

pool to securitize. It was 3 to 6 months. It may be 6 to 12 months 

today just because the market has slowed down. 

Traditionally, issuers would hedge their positions against movements in credit spreads or interest rates during that aggregation 

period, but there really aren’t any instruments to do that now. 

There is no efficient way for them to warehouse their lines while 

they are—warehouse their portfolios while they are aggregating or 

hedge those specific interest rate risks—not credit risk, not credit 

of the underlying asset, but just movements in market spreads. 

And until that really exists, people are not willing to take on the 

balance sheet strain of aggregating a billion dollars’ worth of new 

commercial mortgages, even if they are underwritten to lower values and better standards. 

Plus, there is so much uncertainty on what the ultimate execution might be for those securitizations. It is kind of a chicken and 

the egg. Once a few securitizations get done, an index will be able 

to be created so people can use that to hedge their positions. But 

until that happens—— 

Senator CORKER. Let me ask you, so I would assume there are, 

like, trillions of dollars of legacy securitizations that already are 

pulled together. 

Mr. HOEFFEL. Mm-hmm. 

Senator CORKER. People have an operating history on those portfolios. So there would be no risk in aggregation. Those exist. So 

why isn’t there a market to at least deal with the legacy issues? 

Why aren’t people cranking that up and going in and writing those 

assets down? The operating history is there. I don’t understand 

why that is not occurring and why somebody isn’t willing just to 

put up some recourse liability to make that get done and move on. 

Mr. HOEFFEL. There is a market for both legacy loans and legacy 

securities. The securities market has been helped by TALF as an 

ability to finance those acquisitions, but there has been both TALFfinanced and non-TALF-financed trading of mortgage securities. 

For whole loans, there is a market, as well, but those loans are 

being purchased based on new values and that requires the seller 

to recognize a loss, and many times sellers don’t want to recognize 

that loss if they don’t have to. So if a loan is written to $100 and 

the market value based on what you think the property is worth 

is $70, to sell the loan, you would sell it for $70 or less and then 

the owner of the loan would have to recognize a $30 loss. 

Well, if the mortgage is performing, it is a 10-year loan and there 

is sufficient cash-flow today to service that loan, the seller is going 
22 

to forestall that sale until they ultimately have to, and hopefully 

between now and the time that loan matures, the value of the underlying asset may improve. So there hasn’t been a lot of impetus 

for holders of whole loans to sell. 

Senator CORKER. So back to the securitization—is it OK if I continue? 

Chairman REED. Go ahead. 

Senator CORKER. Back to the securitization piece, I assume that 

what is happening on that side is the loans are just being extended, and if you happen to own some of those securities, you are 

just in them longer than you anticipated being in those securities. 

Mr. HOEFFEL. That decision is being made by the servicers alone 

on a case-by-case basis. In some cases, they are being extended. In 

some cases, they are being foreclosed or otherwise worked out. So 

there has been resolution, but there is just such a wave of requests 

for work-outs and modifications, it is going to take time to get 

through that. 

Senator CORKER. What role should—you know, there is a lot of 

discussion here about covered bonds, and I realize that at the volume levels we are talking about, it is not going to certainly supplant the need for securitizations down the road, but what level of 

faith should we as policymakers have in the cover loan process 

here in our country as it relates to commercial real estate? 

Mr. HOEFFEL. I think we want to not do anything that precludes 

commercial mortgages from being eligible to be in a covered bond 

issue. I don’t think it is going to be the solution. It can be another 

tool to provide liquidity to the commercial real estate market, but 

because banks or the issuer has to keep those assets on their balance sheet and there will be regulatory capital requirements 

against those assets, it is a tool, but it is not going to be a sufficient tool to fill the void. 

Senator CORKER. Let me just ask one more question. 

Chairman REED. Take your time. 

Senator CORKER. Do you think there is a sense among a lot of 

the larger players that we are going to do something here? I am 

hearing that from some of the larger players, and so instead of 

going ahead and taking some of these write-downs and moving on 

and sort of taking the pain, they are waiting, thinking that either 

through TARP or some other mechanism here, we are going to create a solution. 

Mr. HOEFFEL. There is hope that something will happen, and 

some players are—may be waiting. I think it would be difficult to 

justify to sit around and wait for something to happen if you don’t 

know it is going to happen, but that may be, in fact, the case. 

Senator CORKER. Would it be a good signal to the market to let 

everybody know that TARP is over at the end of the year, that the 

circumstances that created the need for it are different and not 

there today, and would that help the market sort of move along 

versus this hope that there is a possibility that there won’t be as 

great a loss and, therefore, let us hold on and not do the writedowns now? 

Mr. HOEFFEL. I think TARP and the TALF financing for commercial real estate has been a help. It has created liquidity and it has 

created trading volumes. Certainty, I think, is always beneficial. If 
23 

people know absolutely when something is going to start and when 

it is going to stop, the market can react to it, and the market may 

not always react favorably, but it will react one way or the other. 

And I think part of the problem with some of these programs is 

they have had fits and starts, and people think it is going to go one 

way and then it goes another or dates aren’t certain. So the market 

will react one way or another to certainty and I think certainty is 

beneficial for everybody. 

Senator CORKER. Would anybody like to respond to the certainty 

of people knowing that this is a private sector issue? We may do 

some regulatory reform down the road, and I know Mr. Miller had 

some concerns about what some of those might be, and I guess in 

another setting we will probe those, but does anybody else want to 

respond to the people who are involved in commercial real estate 

financing knowing that nothing else is going to occur? Would that 

alone not help move along the process to some degree? 

Mr. DAVIDSON. You know, the Government had become, through 

various programs, both the Fed, Treasury, TARP, TALF, PPIP, 

very involved in the financing of a wide variety of financial instruments, and I think rapidly removing all of those at once will certainly be detrimental to the market because there are no other 

mechanisms in place now. So I agree with the idea that certainty 

is important, but I also believe that there needs to be a transition 

period, given how extensive Government’s involvement currently is 

in financing. 

Mr. HOEFFEL. One clarification. It is not only certainty what 

Congressional action will be, but certainty of what the regulators 

are going to do and what the accountants are going to do, because 

all of those things have been interplaying and some of the good 

work that is done here is undermined by work that is done elsewhere in Washington or in Connecticut. So I think you need certainty on all fronts. 

Senator CORKER. And I would just close by saying that in the 

event we did end TALF as, I think, everybody had hoped might 

happen at the end of the year, the programs that are funded right 

now, TALF and others, they would continue on until they ran out. 

So it wouldn’t be like all the Government assistance that is occurring today would end at the same time. It is just there would be 

no more commitments. 

Thank you all for your testimony. 

Chairman REED. Thank you, Senator Corker. 

Let me begin a second round with a question that Mr. Hoeffel 

and others have raised, which is the FASB’s role in the 

securitization process, particularly Statements 166 and 167, but all 

of the FASB rules affect this. Let us start with Mr. Hoeffel. Can 

you comment about how that might be inhibiting and what might 

be due to help FASB? 

Mr. HOEFFEL. OK. Well, FAS 166 and 167 get rid of the QSP, 

the qualified special purpose entity, that was the vehicle through 

which many securitizations were done. On a going-forward basis, 

I think we can work with that, but one of the key issues is that 

it is retroactive, so that people who have invested a small part of 

a securitization pool, maybe the bottom five to 10 percent, will be 

forced to consolidate all of the assets and all of the liabilities for 
24 

that transaction onto their balance sheet, which could give them 

rate cap issues or low covenance, if they are a private company, on 

their financing. So it is a real challenge. 

It is almost impossible for these companies to get audited after 

the fact because they would have to consolidate everything down 

to the individual loan level, which may or may not be feasible given 

the terms of the loans themselves. So it is a significant challenge 

to the market. 

And further, given that there is some weakness in property markets, if a certain class got wiped out through recognized losses or 

realized losses, you could have the next bond holder have to consolidate. So you could theoretically have a BBB or a single-A investor suddenly have to consolidate, and that is not something they 

had envisioned at all when they bought those bonds. 

That will be specific to certain issues, but it is a challenge, both 

the lack of QSP for new issue and the consolidation that would 

happen for existing debt that is out there. 

Chairman REED. Any other comments? Mr. Miller. 

Mr. MILLER. Thank you, Mr. Chairman. Just extending those 

comments a little bit to other parts of the securitization market, at 

a macro level, the outcome of the 166 and 167 accounting standards changes will be to require a large volume of securitized assets 

in many different product sectors to be put back onto balance 

sheets or to prevent them from moving off balance sheet. 

And our position—I want to be clear about this—is we are not 

for or against on- or off-balance sheet accounting. We simply think 

the accounting should be appropriate in light of exposure to risks 

or entitlement to assets. We think FASB’s outcome in these standards is to—will result in an over-consolidation of many of these vehicles where the consolidating party really does not have meaningful entitlements to the benefits of those assets or exposure to the 

risks. 

Having said that, the standards have been—will be adopted. 

They will generally take effect in January. I think our bigger concern at this point, as I mentioned earlier, is the ripple effects of 

those accounting standards changes. If you picture a very large volume of assets coming back onto bank balance sheets exactly at a 

time when those balance sheets are already very constrained, the 

larger asset side of the balance sheets will attract higher regulatory capital charges. They will factor into leverage ratio calculations. They will attract loan loss reserves. 

And our concern, and we have heard this very forcefully from our 

members across a wide range of markets, is that that, coupled with 

other steps being considered, may constrict the ability of financial 

institutions to use their capital base to support new lending. And 

so we are very concerned, both about the accounting standards 

changes, but even more so now about the downstream impacts that 

those may have. 

Chairman REED. Any other comments on this issue? 

Mr. HOEFFEL. One other thought is that the 5-percent retention 

that is being discussed in the regulatory reform proposals will— 

this sort of flies in the fact of that, because if you are required to 

retain 5 percent, now you are going to have to consolidate. So it 

exacerbates some of the issues that Mr. Miller mentioned. 
25 

Chairman REED. Let me raise another issue with Mr. Hoeffel, 

and anyone else, and that is, there seems to be one distinction between residential mortgage-backed securitization and remedies and 

commercial, which is commercial bankruptcy code is available to 

the individual mortgages if they default. Is that a difference that 

makes a difference in terms of the commercial market versus the 

residential market? 

Mr. HOEFFEL. I think it will impact the resolution of workouts, 

and we have seen that forestall some of the workouts that have 

happened in some very large securitizations to date. We are still 

waiting to hear what the outcome of some of those cases are. 

So, again, I think that process, because commercial borrowers 

can file for bankruptcy—we have tried to avoid that through recourse carveouts for bankruptcy, but even that seems to be not as 

enforceable as maybe some people had thought. So it does create, 

again, more uncertainty, which is a challenge for investors going 

forward. 

Chairman REED. But at least in the commercial context, the access to bankruptcy was clearly understood before the securitization 

process took place. And I guess the question would be if someone 

has the ability to work it out, it is understood beforehand. That is 

anticipated by the investors. Does that facilitate the process at all 

or is it sort of neutral? 

Mr. HOEFFEL. Well, investors always knew that bankruptcy was 

an option and always has been. We tried structurally to limit a borrower’s ability to file for a bankruptcy by putting most securitized 

loans into special purpose entities where you needed unanimity of 

all the directors to file for bankruptcy, and there you had independent directors that would not file for bankruptcy on a solvent 

entity. Again, there have been some court challenges to that, and 

many of us are waiting to find out what will happen. 

Nobody thought that commercial real estate, even in an SPE, 

was completely bankruptcy proof, but we did think that there were 

enough hurdles to that to provide protections for investors. 

Chairman REED. Thank you. 

Professor McCoy, you have suggested that borrowers be given an 

affirmative claim against assignees, a violation of Federal lending 

standards. Can you elaborate on that? Then I would ask others to 

comment on that proposal. 

Ms. MCCOY. Yes, I would be glad to. We are in a situation right 

now where in the majority of States, if a borrower’s loan is sold, 

generally through securitization, they lose, without their consent, 

their defenses to collection and their ability to sue the holder of the 

loan for consumer protection violations and fraud. And where the 

rubber really hits the road is when that borrower is sued for foreclosure. 

If the loan has been securitized, let us say the borrower was defrauded originally, the loan later goes into foreclosure, under State 

law the borrower cannot raise the fraud as a defense to foreclosure. 

They lost that, and they lost that through a process over which 

they had no say. 

In addition, because the borrowers can really only sue their lender, or their mortgage broker, it means that we do not have the 

threat of making the borrower whole that investment banks have 
26 

to care about; that investors have to care about when they think 

about will we do due diligence or just rely on the rating agency. 

And I feel in order to bring rationality and consistency to the entire mortgage process, we need to allow borrowers to bring claims 

of fraud and consumer protection violations against whoever holds 

their loan. 

Now, there are ways you can structure this liability that rating 

agencies can rate and that securitization can function with. Economists and I and other coauthors studied the effect of similar laws 

in nine States, and what we found is in six of those States, access 

to subprime credit actually increased, holding everyone else constant, despite assignee liability. 

In three of the States, depending on the indicator, the results 

were mixed, but in no State was there an affirmative drop in access 

to credit. 

Chairman REED. And I am going to ask others to comment on 

this, obviously, but to follow up, would this be a way to complement or displace the requirement of the Administration to hold 

5 percent of a mortgage or 5 percent to give the originator sort of 

some skin in the game or—— 

Ms. MCCOY. I view it as a complement. I am supportive of the 

Administration’s 5-percent retention measure, but my concern is 

even though the Administration would prohibit hedging it, I do not 

think that that prohibition is enforceable because often hedges are 

taken on a broad variety of positions. And there is a lot of devil 

in the details with respect to that proposal, so I would have assignee liability as well. 

Chairman REED. Mr. Miller, and anyone else who wants to jump 

in on this issue. 

Mr. MILLER. Certainly borrowers should have remedies and defenses against fraud that may relate proximately to a foreclosure 

action against them. The details, though, of any assignee liability 

mechanisms are very, very important and should be addressed at 

that level of detail. But, broadly speaking, the securitization industry would have very significant concerns about broad-based assignee liability. While, again, the interests of the borrowers here 

are primary, at the same time those borrower interests are also 

served by having investors who are willing to commit capital to the 

mortgage-backed securities markets. And if those investors are potentially subject to downstream claims by borrowers for origination 

defects over which they have absolutely no ability to perform diligence upon or to verify, they are not sitting at the loan closing 

table, my fear is that and I think the industry’s fear is that if those 

types of assignee liability provisions are broadly introduced, it will 

significantly curtail, if not dry up completely, the willingness of investors to take that risk. If it is not a risk that they can manage, 

I do not believe that it is a risk that they are broadly going to undertake. So there are some very significant competing considerations that would weigh against broad-based assignee liability. 

Chairman REED. Just a follow-up. Would one of aspect of this 

might be that those investors would be much more careful about 

what they are buying and what they are investing in? Because they 

would like to make sure that the originator was doing their job in 

underwriting and that would be a market solution to this problem. 
27 

Mr. MILLER. I think they certainly want to be and will be more 

careful. I think the issue, though, is whether they really are in a 

position even with the extreme time and effort and due diligence 

to be able to know whether, in fact, fraud was committed. I do not 

think they can be in that position, and so there, I do not think that 

at least it is a universal solution or market-based response that 

could work. 

Chairman REED. Thank you. 

Mr. Davidson, do you have a comment? 

Mr. DAVIDSON. Sure. In both my written statement and oral 

statement, I mentioned this idea of an origination certificate. 

Chairman REED. Right. 

Mr. DAVIDSON. And the idea of that is an alternative to both the 

assignee liability and the current way that representations and 

warranties travel through the system. And the idea there is to say 

that these are the obligations of the originator and that that tracks 

along with the loan, or whoever the investor is, and stays as an obligation back to the borrower, and that we also track through a 

bonding system or other capital system capital of that originator or 

lender so that in the case there are violations of representations 

and warranties or there is fraud against the borrower, there is 

money to go after. And so this puts the responsibility in the hands 

of the person who created the problem rather than other parties 

who really, as Mr. Miller has said, cannot really know exactly what 

happened. 

Chairman REED. All right. And, Mr. Miller, you have also suggested a unique identification number for loans. How would that 

work? And would it work in conjunction with Mr. Davidson’s proposal? Or what other aspects would it help? 

Mr. MILLER. I think that it would, and just building on what Mr. 

Davidson just indicated, I think also the representations and warranties and enhancements there are really, I think, very consistent 

with what he was stating in terms of creating an ongoing economic 

responsibility. His proposal is a bit of a variation on that theme. 

I think the unique loan identifier, which ASF has recently announced, will broadly assist the process of being able to drill down 

to the individual level of the mortgage loan as that makes its way 

into the secondary and debt capital market so that no matter what 

type of securities structure—it could be a whole loan sale, it could 

be a mortgage-backed securitization, it could be another type of instrument down the road—investors and other parties would be able 

to identify the specific loans underlying that instrument and coupled with the other data, standardization enhancements through 

Project Restart, be able to perform analytics at a very deep level 

of detail, providing investors and other market participants with a 

much better window into the performance characteristics and risk 

profiles of those loans and, thus, the securities that they are a part 

of. 

Chairman REED. Thank you. One final area of questioning, and 

that is, many of these securitizations depend on REMIC, the real 

estate conduit tax treatment. And there has been some discussion 

that because of the structure of these vehicles, it is very difficult 

to modify mortgages held in them because in some cases it requires 

unanimous consent, which is hard to get if you are at the lowest 
28 

tranche. And I am wondering as we go forward, should we consider 

conditioning this favorable treatment on an agreement to modify 

loans that are financially appropriate? I mean, you know, not subsidized loans, but if the modification will have a value more than 

a foreclosure, then that should be done? Professor McCoy, and then 

anyone else who wants to comment. 

Ms. MCCOY. Yes, I think this is essential. There seem to be three 

impediments right now. One is that perhaps the REMIC rules 

themselves discourage workouts, although the IRS has been trying 

to soften that. 

The second problem is servicer compensation often is more lucrative if you go to foreclosure. That is a separate problem that needs 

to be fixed. 

But, last, servicers do have some justifiable fear that they will 

be sued by one set of tranche holders if they benefit another in the 

process of doing a good-faith workout. And I think we can use the 

REMIC rules to say the trust will not receive Federal tax favored 

treatment unless these problems are solved, so that when workouts 

are cost effective, that they go forward, and the servicer has the incentive to do it and is not worried about lawsuits. 

If I could work in one other thing? 

Chairman REED. Yes, please. 

Ms. MCCOY. Which is with respect to assignee liability, again 

and again we hear this claim that investors will not come to the 

table if there is carefully crafted assignee liability that does not expect investors to do the impossible. In fact, in States that had carefully crafted standards, investors did fund those loans. 

What drove them away was the failure of securitization. So it is 

ironic to talk about assignee liability driving them away when 

securitization was able to do that just fine on its own. 

Chairman REED. Any other comments, particularly on this 

REMIC question? Mr. Miller. 

Mr. MILLER. Yes, I do not think that the REMIC regulations are 

themselves an impediment at all to loan modifications that are otherwise contractually permitted. I think it is really quite well established that under the REMIC regulations, if a mortgage loan is in 

default or that default is reasonably foreseeable, which covers, I 

think, a lot of territory, that a loan modification can be pursued— 

again, subject to any contractual requirements in the securitization 

itself. 

Having said that, I do not believe that it would be advisable public policy to condition REMIC qualification or continuing REMIC 

qualification on requirements to perform modifications or to do that 

in a certain way. Again, I think that would threaten the tax treatment that is provided through the REMIC regulations in a way 

that would, again, chill or inhibit participation and create distortions in the marketplace. 

To the extent that there are solutions or improvements to the 

loan modification process, I think we should address those frontally 

and head on. Part of Project Restart looking forward prospectively 

is to support changes and develop standardized provisions governing loan modifications and loss mitigation for future 

securitization transactions to address uncertainties or ambiguities 

in the way that that language is currently constructed in those 
29 

transactions. So I think the better way would be to address it directly and not indirectly through the Tax Code. 

Chairman REED. Just a follow-up question. The point that Professor McCoy makes about the incentives for services financially, in 

some cases—not all, obviously—that foreclosure provides them 

more income than a modification, which takes time, et cetera, and 

that seems to be a classic case of the obvious benefit to one person 

but socially a cost to all of us because as more and more mortgages 

go into default and foreclosure, it is hurting the economy grievously. 

So is that something that we can correct or should correct? 

Mr. MILLER. Well, I think the answer that I would give to that 

is, regardless of incentives of any of the parties who are involved 

in that circumstance, again, at least in the securitization context, 

the duties and obligations and responsibilities of servicers are laid 

out in the contracts, they are and should be held to those standards 

by investors and others. So regardless of any potential incentive 

that they may have—and I personally think that some of the arguments about servicing incentives to foreclose as opposed to, you 

know, taking reasonable workout strategies, especially where that 

can yield a greater net present value, I think some of those statements are overstated or exaggerated. But, again, you know, I think 

that really is something that is determined and dictated by contract and the parties should be held to their contractual obligations. 

Chairman REED. Just a final point. You are talking about prospectively fixing this system. But currently we are looking at estimates range from 4 million to 6 million foreclosures next year, 

which is a huge drag on the economy and which may, in fact, be 

sufficient drag to cutoff or at least to deflect the growth and the 

prosperity we are all hoping for. 

So I think we are confronting—I applaud your efforts to go forward prospectively, but we have a huge problem with what we 

have to deal with right now. 

Anyone else who has a comment on this topic? 

[No response.] 

Chairman REED. If not, let me thank you all again for excellent 

testimony. I think Senator Gregg said it very well: great insights 

together with very specific suggestions and done in a very concise 

and understandable way. So thank you all for your wonderful testimony. 

The hearing is adjourned. 

[Whereupon, at 4:11 p.m., the hearing was adjourned.] 

[Prepared statements and additional material supplied for the 

record follow:] 
30 

1 I use the term ‘‘nonprime’’ to refer to subprime loans plus other nontraditional mortgages. 

Subprime mortgages carry higher interest rates and fees and are designed for borrowers with 

impaired credit. Nontraditional mortgages encompass a variety of risky mortgage products, including option payment ARMs, interest-only mortgages, and reduced documentation loans. 

Originally, these nontraditional products were offered primarily in the ‘‘Alt-A’’ market to people 

with near-prime credit scores but intermittent or undocumented income sources. Eventually, interest-only ARMs and reduced documentation loans penetrated the subprime market as well. 

PREPARED STATEMENT OF CHAIRMAN JACK REED 

I want to welcome everyone and thank our witnesses for appearing today. 

This hearing will examine a key activity within our financial markets—the 

securitization of mortgages and other assets—and will build on previous hearings 

this Subcommittee has held to address various aspects of regulatory modernization, 

including hedge funds, derivatives, corporate governance, SEC enforcement, and 

risk management at large financial institutions. 

Securitization is the packaging of individual loans or other debt instruments into 

marketable securities to be purchased by investors. At its core, this process helps 

free lenders to make more loans available for families to purchase items like homes 

and cars and for small businesses to thrive. 

But we have learned from the financial crisis that securitization, or how it is conducted, can also be extremely harmful to financial markets and families without appropriate diligence and oversight. Arguably, many of the basic requirements needed 

for effective securitization were not met. Today’s panel will discuss how in recent 

years the securitization process created incentives throughout the chain of participants to emphasize loan volume over loan quality, contributing to the build-up and 

collapse of the subprime mortgage market and the broader economy. 

Today we find ourselves in the opposite position from a few years back, with hardly any issuances in key markets that could help return lending to responsible levels. 

So this afternoon’s hearing is about how to strengthen the securitization markets 

and enact any needed changes to ensure that securitization can be used in ways 

that expand credit without harming consumers and the capital markets. 

I have asked today’s witnesses to address a number of key issues, including the 

role securitization played in the financial crisis, the current conditions of these markets, and what changes may be needed to Federal oversight of the securitization 

process. 

Unfortunately, a number of the banks who issue these securities could not find 

anyone in their workforce who was willing to testify today. 

I welcome you all and look forward to your testimony. 

PREPARED STATEMENT OF PATRICIA A. MCCOY 

GEORGE J. AND HELEN M. ENGLAND PROFESSOR OF LAW, AND DIRECTOR, INSURANCE

LAW CENTER, UNIVERSITY OF CONNECTICUT SCHOOL OF LAW

OCTOBER 7, 2009 

During the housing bubble, private-label securitization financed the majority of 

subprime and nontraditional mortgages. 1 This system proceeded on the assumption 

that housing prices would keep going up. When housing prices fell and people could 

not refinance out of unaffordable loans, investors lost confidence in private-label 

mortgage securitization and the system collapsed in August 2007. 

This statement begins with a thumbnail sketch of securitization. Then I describe 

the role played by securitization in the financial crisis. Following that, I analyze the 

inherent flaws in private-label mortgage securitization. The statement goes on to describe current conditions in that market. I close by describing needed reforms. 

I. An Introduction to Securitization 

Back in the 1970s, banks had to hold home mortgages in portfolio until those 

loans were paid off. This destabilized banks that made mortgages because they got 

their financing from demand deposits, but invested those deposits in illiquid mortgages. This ‘‘term mismatch’’ between assets and liabilities was a direct cause of the 

1980s savings and loan crisis. 

Starting in the late 1970s, securitization burst on the scene and eliminated the 

need for lenders to hold their mortgages in portfolio. The idea behind securitization 

is ingenious: bundle a lender’s loans, sell them to a bankruptcy-remote trust, repackage the monthly loan payments into bonds rated by rating agencies, back the 

bonds with the underlying mortgages as collateral, and sell those bonds to investors. 
31 

Investment banks ‘‘structured’’ these securitization deals by dividing the bonds 

into ‘‘tranches’’ (French for ‘‘slice’’). The best tranche, with the lowest expected default rate, carried an AAA rating, was paid off first, and offered the lowest rate of 

return. The lower tranches were rated AA, A, etc., on down to the junior-most 

tranche, known as the equity tranche. The equity tranche was paid off last and was 

the first to absorb any losses from the loans. 

Securitization was prized for accomplishing four things. First, lenders were able 

to get their mortgages off their books. Second, securitization appeared to manage 

the risks of mortgages by slicing and dicing those risks and spreading them among 

millions of investors with assorted tolerances for risk. Third, securitization opened 

up huge new pools of capital to finance home mortgages. Finally, securitization freed 

lenders from relying principally on insured deposits in order to make loans. Instead, 

in a continuous cycle, lenders could make loans, sell those loans through 

securitization, and then plow the proceeds into a new batch of loans, which in turn 

would be securitized. This paved the way for a new breed of nonbank subprime 

lenders, who had little in the way of capital reserves, were free from Federal banking regulation, and were inured to the reputational constraints of banks and thrifts. 

At first, securitization was limited to prime loans, which were mostly securitized 

through the two Government-sponsored entities (GSEs) Fannie Mae and Freddie 

Mac. Once the market gained confidence about its ability to price subprime mortgages, securitization expanded to the subprime market in the early 1990s. Although 

the GSEs made limited forays into the subprime market and later expanded those 

forays around 2005, most subprime securitizations did not take place through the 

GSEs, but rather through the ‘‘private-label’’ securitization market. The privatelabel market lacked the same degree of public accountability that was expected of 

Fannie Mae and Freddie Mac as GSEs. By 2006, two-thirds or more of subprime 

mortgages were being securitized through the private-label market. 

II. The Role of Securitization in the Financial Crisis 

A. How Private-Label Securitization Increased the Risk of Mortgage Lending 

Before securitization, lenders usually did it all: they solicited loan applicants, 

underwrote and funded the loans, serviced the loans, and held the loans in portfolio. 

Lenders earned profits on loans from interest payments as well as from upfront fees. 

If the loans went into default, the lenders bore the losses. Default was such a serious financial event that lenders took care when underwriting loans. 

All that changed with private-label securitization. Securitization allowed lenders 

to offload most of the default risk associated with nonprime loans. Under the ‘‘originate-to-distribute’’ model, lenders could make loans intending to sell them to investors, knowing that investors would bear the financial brunt if the loans went bellyup. Similarly, securitization altered the compensation structure of nonprime lenders. 

Lenders made their money on upfront fees collected from borrowers and the cash 

proceeds from securitization offerings, not on the interest payments on loans. 

Lenders liked the security of being paid in advance, instead of having to wait for 

uncertain monthly payments over the life of loans. And, because they could pass the 

lion’s share of the default risk onto faceless investors, lenders had less reason to 
32 

2The top four ratings issued by a rating agency are ‘‘investment grade’’ ratings. For Standard 

& Poor’s, these are ratings of AAA, AA, A, and BBB; for Moody’s, Aaa, Aa, A, and Baa. Any 

rating below investment grade is considered junk bond status. 

care about how well their loans performed. In my examinations of internal records 

of major nonprime lenders, including Federal thrift institutions and national banks, 

too often I found two sets of underwriting standards: high standards for the loans 

they kept on their books and lax standards for the loans that they securitized. 

At their peak, investment grade, 2 nonprime residential mortgage-backed securities (RMBS) were considered excellent investments because they supposedly posed 

minimal default risk while offering high returns. Investors clamored for these 

bonds, creating demand for ever-riskier loans. 

Lenders were not the only players in the chain between borrowers and investors. 

Investment banks played significant roles as underwriters of nonprime 

securitizations. Lehman Brothers, Bear Stearns, Merrill Lynch, JPMorgan, Morgan 

Stanley, Citigroup, and Goldman Sachs underwrote numerous private-label 

nonprime securitizations. From 2000 through 2002, when IPO offerings dried up 

during the 3-year bear market, RMBS and CDO deals stepped into the breach and 

became one of the hottest profit centers for investment banks. 

Investment banks profited from nonprime underwriting by collecting a percentage 

of the sales proceeds, either in the form of discounts, concessions, or commissions. 

Once an offering was fully distributed, the underwriter collected its fee in full. This 

compensation system for the underwriters of subprime offerings caused Donna 

Tanoue, the former Chairman of the Federal Deposit Insurance Corporation, to 

warn: ‘‘[T]he underwriter’s motivation appears to be to receive the highest price . . . 

on behalf of the issuer—not to help curb predatory loans.’’ 

Tanoue’s warning proved prophetic. In February 2008, Fitch Ratings projected 

that fully 48 percent of the subprime loans securitized by Wall Street in 2006 would 

go into default. Despite that dismal performance, 2006 produced record net earnings 

for Goldman Sachs, Morgan Stanley, Merrill Lynch, Lehman Brothers, and Bear 

Stearns. That year, manager pay reflected the bottom-line importance that investment banks placed on private-label RMBS, with managing directors in the mortgage 

divisions of investment banks earning more on average in 2006 than their counterparts in other divisions. 

B. How Securitization Fueled Contagion 

Ultimately, private-label mortgage securitization turned out to be an edifice built 

on a rotting foundation. Once that foundation gave way, rising nonprime delinquencies mushroomed into international contagion for a number of reasons. For example, the same loan often served as collateral for multiple bonds, including an 

RMBS, a CDO, and a CDO of CDOs. If the loan went into default, it would jeopardize repayment for all three bonds. In addition, if defaults led to downgrades on 

those bonds, those assets were highly correlated. If rating agencies downgraded one 

issue, other issues came into question as well. 

Collateral is another reason why nonprime loans infected other markets. Many 

large institutional investors bought nonprime bonds that they later pledged as security for other types of loans. Banks, for instance, pledged their nonprime bonds as 

security for short-term loans from other banks on the market for interbank credit. 

Major corporations borrowed money from other corporations on the short-term commercial paper market by issuing paper backed by nonprime bonds. As the value of 

nonprime bonds fell, lenders began calling loans and ultimately the interbank lending and asset-backed commercial paper markets slowed to a crawl. 

Banks also reinfected themselves with subprime risks by buying private-label 

RMBS and CDOs and effectively taking those risks back on their books. When they 

sustained major losses on those bonds, they reined in their lending, adding fuel to 

the recession. 

General investor panic is the final reason for contagion. Even in transactions involving no nonprime collateral, concerns about the nonprime crisis had a ripple effect, making it hard for companies and cities across-the-board to secure financing. 

Banks did not want to lend to other banks out of fear that undisclosed nonprime 

losses might be lurking on their books. Investors did not want to buy other types 

of securitized bonds, such as those backed by student loans or car loans, because 

they lost faith in ratings and could not assess the quality of the underlying collateral. Stocks in commercial banks, insurance companies, and Wall Street firms took 

a beating because investors did not know where nonprime assets were hidden and 

feared more nonprime write-downs. Because they did not know exactly who was 

tainted by nonprime, investors stopped trusting practically everyone. 
33 

3 Rick Brooks and Ruth Simon, ‘‘Subprime Debacle Traps Even Very Creditworthy’’, Wall St. 

J., Dec. 3, 2007, at A1. 

III. Inherent Flaws in Private-Label Mortgage Securitization 

A. The Lemons Problem 

In hindsight, private-label mortgage securitization turned out to resemble the 

used car business in one respect. Both businesses have motivations to sell ‘‘lemons.’’ 

In other words, they have structural incentives to sell products carrying hidden defects and a heightened risk of failure. 

There are two main reasons for this lemons problem. First, securitization resulted 

in a misalignment of compensation and risk. Each company in the securitization 

process was able to collect upfront fees, while shifting default risk to downstream 

purchasers. Although investors tried to protect themselves through recourse clauses 

and structures making lenders retain the equity tranches, those contractual safeguards often broke down. Lenders were able to hedge their equity tranches or shed 

them by resecuritizing them as CDOs. Similarly, too many originators lacked the 

capital to honor their recourse obligations in full. 

Second, securitization fueled a relentless demand for volume and volume-based 

commissions. In the process, the quest for volume pushed lending standards steadily 

downward in order to maintain market share. This became a challenge in 2003, 

when interest rates began rising again, ending the refinancing boom. Securitizers 

needed another source of mortgages in order to increase the rate of securitization 

and the fees it generated. The ‘‘solution’’ was to expand the market through nontraditional mortgages, especially interest-only loans and option payment ARMs offering negative amortization. Lenders also relaxed their underwriting standards on 

traditional products to qualify more borrowers. This expansion of credit swept a 

larger portion of the population into the potential homeowner pool, driving up housing demand and prices, and consumer indebtedness. Many big investment banks, including Lehman Brothers and Bear Stearns, went so far as to buy subprime lenders 

in order to have an assured pipeline of mortgages to securitize. 

In short, the incentive structure of securitization caused the lemons problem to 

grow worse over time. Not only did private-label securitization sell lemons, those 

lemons grew more rotten as the housing bubble grew. In the process, securitization 

actors played the ends against the middle, injuring borrowers and investors alike. 

B. Harm to Borrowers 

Private-label securitization hurt numerous borrowers. First, investor appetite for 

high-yield RMBS caused originators to peddle risky mortgages, to the exclusion of 

safer loans. Second, compensation methods such as yield spread premiums saddled 

many borrowers with costlier mortgages than they qualified for. Third, borrowers 

whose loans were securitized lost important legal rights without their consent. 

On the first point: As mentioned above, in order to maintain volume while satisfying investor demand for high-yield bonds, investment banks and lenders had to 

continually tap new groups of borrowers with lower credit scores and less disposable 

income. For many of these cash-strapped borrowers, low monthly payments were a 

primary consideration. In order to offer the lure of lower initial payments, lenders 

concocted bafflingly complex loans combining a host of risky features, including adjustable-rate terms, teaser rates, high margins, stiff prepayment penalties, and no 

amortization or even negative amortization. Evidence is now coming to light that 

investment banks or large investors in many cases dictated those underwriting 

guidelines to originators. 

The front-end payments of these hazardous mortgages were attractive to 

unsuspecting borrowers and usually lower than the payments on a plain vanilla 

fixed-rate mortgage. But the back-end risks of those mortgages were daunting, yet 

difficult or impossible for borrowers to discern. Worse yet, to qualify individual borrowers, lenders often threw full income verification out the window. 

There was a second way in which investor demand for higher yield hurt many 

borrowers. Because investors paid more for higher yields, lenders offered mortgage 

brokers higher compensation in the form of yield spread premiums to convince borrowers who probably qualified for cheaper loans to unwittingly pay higher interest 

rates. The Wall Street Journal estimated that by year-end 2006, 61 percent of 

subprime mortgages went to borrowers with high enough credit scores to qualify for 

cheaper prime loans. 3 Yield spread premiums artificially inflated the interest rates 

that borrowers had to pay, substantially increasing the likelihood that nonprime 

loans would default and go into foreclosure. Economists have estimated the size of 
34 

this risk. For every 1 percent increase in the initial interest rate of a home mortgage, the chance that a household will lose its home rises by 16 percent a year. 

Finally, under the Uniform Commercial Code in many States, borrowers whose 

loans are securitized lose valuable legal rights without their consent or financial 

compensation. This doctrine, known as the ‘‘holder-in-due-course rule,’’ prohibits 

borrowers whose loans are securitized from raising common types of fraud or other 

misconduct in the making of their loans against all subsequent purchasers of their 

loan notes. In many case, this shields investment banks, rating agencies, and investors from borrower suits for fraud. Although borrowers can still raise fraud as a 

claim or defense against their mortgage brokers and lenders, many of those entities 

are bankrupt today and thus judgment-proof. More importantly, once a loan is 

securitized, any suit for foreclosure will be brought by the investor or securitized 

trust, not the mortgage broker or lender. In those cases, the holder-in-due course 

rule prevents borrowers who were defrauded from even raising the fraud as a defense to foreclosure. 

C. Harm to Investors 

The lack of transparency in securitization also hurt investors. The securities disclosures for private-label RMBS lacked crucial information to investors. In addition, 

product complexity made it difficult or impossible for investors to grasp the risks 

associated with many offerings. Finally, both problems caused investors to place 

undue reliance on credit ratings, which proved to be badly inflated. 

1. Inadequate Securities Disclosures—For most of the housing bubble, the Securities and Exchange Commission (SEC) had no rule requiring disclosures specifically 

tailored to RMBS or CDOs. The SEC adopted Regulation AB in an attempt to redress that gap, but the rule did not go into effect until January 1, 2006, too late 

to cover earlier private-label offerings. 

Once the rule went into effect, it was riddled with holes. First, Reg AB only applies to public offerings of asset-backed securities. An investment bank could simply 

bypass Reg AB by structuring the offering as a private offering limited to big institutional investors. In private offerings, SEC disclosures are lighter or left to private 

negotiation, based on the idea that institutional investors have clout to demand the 

information they need. Wall Street took full advantage of this loophole, meaning 

that CDOs were almost always sold through private offerings with seriously deficient disclosures. 

Even when Reg AB did apply—i.e., in public offerings of asset-backed securities— 

the disclosures were too skimpy to be of use. The SEC modeled many of Reg AB’s 

disclosures on the reporting requirements for corporate issuers. Corporations usually have track records to speak of, so securities disclosures for those issuers focus 

on recent past performance. But past performance was irrelevant for most offerings 

of RMBS and CDOs, which involved relatively new mortgages. In essence, Reg AB 

puts the wrong information under the microscope. 

Instead, investors in nonprime bonds needed standardized information on the risk 

characteristics of the individual loans in the loan pool. But Reg AB does not require 

that level of detail. While the rule encouraged investment banks to make tapes with 

loan level data available to investors online, it did not force them to do so. Instead, 

Reg AB simply mandates a summary of the aggregate characteristics of the loan 

pool. That made it difficult to discern whether the riskiest loans were going to the 

strongest borrowers or to the worst borrowers in the loan pool. 

Similarly, too many prospectuses and offering memoranda for private-label offerings stated that the lenders reserved the right to make exceptions to their underwriting standards in individual cases. In 2006 and 2007, there were offerings in 

which the exceptions—in other words, loans that flunked the lender’s underwriting 

standards—outweighed the number of loans that conformed to the lender’s stated 

standards. The exact (and often high) percentage of exceptions was not disclosed to 

investors. 

Nor does Reg AB make investment banks disclose the due diligence reports they 

commissioned from outside firms, even when those reports contained evidence of deteriorating lending standards. Too often, investment banks withheld those reports 

from investors and ratings agencies. 

Reg AB is also deficient regarding the performance of individual loans. While Reg 

AB requires some reporting on loan performance, it is only for the first year following the offering, not for the life of the loans. 

All told, there was a dearth of useful publicly available information on the loan 

pools underlying private-label RMBS and CDOs. The SEC disclosure scheme for 

nonprime RMBS and CDOs was so misbegotten and riddled with exceptions that 

those securities operated in a fact-free zone. Investors and analysts who wanted to 

do serious due diligence could not get the facts they needed to figure out the true 
35 

4 Ingo Fender and Janet Mitchell, ‘‘The Future of Securitization: How To Align Incentives?’’, 

Bis. Quarterly Review 27, 30, 32 (Sept. 2009). 5 In large part, and in contrast with corporate bonds, this is because downgrades of a tranched 

RMBS tend to make downgrades of other RMBS tranches more likely. Fender and Mitchell, 

supra note 4, at 33. 

risk presented by the loans. Without those facts, investors often overpaid for those 

securities. Furthermore, the dearth of key public information also impeded the development of a healthy resale market in those bonds, which became a big problem 

later on when banks tried to unload toxic subprime assets off their books. 

2. Complex Products—Many private-label RMBS and CDOs were so complex that 

due diligence was too costly or impossible for investors. CDOs are a good example. 

Typically, a CDO consisted of junior tranches of RMBS from different offerings, 

sometimes paired with other types of asset-backed securities involving receivables 

from things like credit cards or auto loans. At best, the investor received data on 

the quality of the underlying bonds. But it was impossible for the investor to x-ray 

the offering in order to analyze the underlying home mortgages, credit card borrowers, or auto loans themselves. That was even more impossible when the CDO 

was a ‘‘synthetic CDO’’ made up of credit default swaps on RMBS and asset-backed 

securities. 

Even in regular RMBS, complexity was a big problem. One issue was the sheer 

number of tranches. Another was the fact that many private-label RMBS offerings 

featured complex credit enhancement rules about who would receive cash flows from 

the mortgages in what amounts, depending on changes in the amount of subordination or overcollateralization. This meant that investors could not just stop with estimating expected losses from the mortgages. They also had to analyze who would get 

what cash flows when, based on a changing kaleidoscope of scenarios. 4 In addition, 

too many offerings were made on a ‘‘to be announced’’ or ‘‘TBA’’ basis, which meant 

that investors could not scrutinize the underlying loans because the loans had not 

yet been put in the loan pool. Finally, many securitization deals involved custom 

features that undermined standardization. 

Of course, this discussion begs the question whether investors would have done 

adequate investigation in any case when the housing bubble was at its height and 

euphoria prevailed. But back then, even investors who wanted to do serious due diligence would have met insuperable obstacles. More recently, lack of transparency 

and complexity have blocked the formation of an active, liquid resale market that 

would enable banks to remove impaired RMBS and CDOs from their books. 

3. Overreliance on Credit Ratings—Poor disclosures and overly complex deals 

caused investors to over rely on credit ratings. Meanwhile, the rating agencies had 

financial incentives to understate the risks of nonprime RMBS and CDOs. The investment banks that underwrote nonprime securitizations paid the rating agencies 

to provide them with investment-grade ratings. The rating agencies touted the toprated nonprime bonds—ranging from AAA down to A—as hardly ever defaulting. 

Under banking and insurance laws, banks and insurance companies can only invest in types of bonds permitted by law. Private-label RMBS and CDOs carrying investment grade ratings are on the permissible list, so long as those ratings are rendered by rating agencies designated Nationally Recognized Statistical Rating Organizations (NRSROs) by the SEC. These regulatory rules encouraged institutional investors in search of higher yields to buy the top-rated nonprime RMBS and CDOs. 

During the housing bubble, rating fees on private-label RMBS and CDOs were the 

fastest-growing sector of the rating agency business. Issuers paid the rating agencies handsome fees from these deals, spurring the rating agencies to rate offerings 

for which there was scant historical default data. Similarly, the rating agencies used 

flawed models which assumed never-ending housing price appreciation and were not 

updated with new default data. Nor did most investors realize that an AAA rating 

for an RMBS offering was different than, and inferior to, an AAA rating for a corporate bond. 5

D. Impediments to Loan Modifications 

Deal provisions in private-label securitizations have also paralyzed constructive 

workouts of many distressed home loans. Today, securitized trusts, not lenders, hold 

the vast majority of those loans. The complexity of the securitized deals often pits 

servicers against investors and investors against each other. Too often, the servicers 

opt for foreclosing on property, instead of arranging workouts that would allow 

homeowners to stay in their homes. The irony of this approach is that, in many 

cases, workouts in the form of loan forbearance or loan modifications would result 

in a higher recovery. 
36 

6 I use the term ‘‘agency’’ to refer to GNMA, Fannie Mae and Freddie Mac mortgage-backed 

securities and collateralized mortgage obligations. The term ‘‘private-label’’ includes RMBS and 

CMOs. 

There are several explanations for this seemingly irrational behavior, including 

inadequate staffing levels and compensation clauses that cause servicers to earn 

more money from foreclosures than workouts. But the main reason why more workouts do not occur is that many pooling and servicing agreements place constraints 

on servicers’ ability to negotiate loan workouts. Some limit the percent of the loan 

pool that can be modified. Others have vague prohibitions allowing modifications 

only to the extent they are in the best interests of the investors. Even when those 

agreements give servicers latitude to modify loans, servicers are reluctant to modify 

loans because they fear lawsuits by warring trancheholders for breach of fiduciary 

duty. 

This hold-up problem has stymied Federal regulators’ attempts to speed up loan 

modifications and halt the vicious cycle of falling home prices. With no Federal legislation to force modifications, regulators have only had limited success. Meanwhile, 

loan workouts are crawling at a snail’s pace, leading foreclosed homes to be dumped 

on the market in record numbers and pushing home prices further down in the process. 

IV. Current Conditions in the Private-Label Securitization Markets 

Due to the problems just described, the markets for private-label RMBS and 

CDOs are essentially dead. The securitization markets for auto loans, credit cards, 

and student loans are open, but their volume has dropped sharply due to general 

concerns about the soundness of the securitization process. 

For all intents and purposes, the Federal Government has become the financier 

of first resort for residential mortgages. In 2008, agency mortgage-backed securities—in other words, RMBS issued by Fannie Mae, Freddie Mac, and Ginnie Mae 

(FHA loans)—accounted for over 96 percent of the U.S. RMBS market. Private-label 

mortgage-backed securitization accounted for less than 4 percent of the market that 

year. 

This disparity widened in the first 6 months of 2009, when the relative market 

shares of agency and private-label mortgage-backed securitization were 99 percent 

and 1 percent. 6 In second quarter 2009, moreover, 38.4 percent of private-label 

RMBS transactions were re-REMICs of old loans that were repackaged into 

tranches of good and bad loans. According to the Securities Industry and Financial 

Markets Association (SIFMA), the ‘‘private label market remains dormant due to re-
37 

7Securities Industry and Financial Markets Association, Research Report 2009 Q2 (August 

2009), at 2, 9. 8 Id. at 9. 

duced lending, lack of investor demand, low liquidity,’’ and rising delinquencies and 

foreclosures. 7

As these numbers suggest, private investors are largely shunning the privatelabel mortgage securitization market in favor of other investments, including agency 

RMBS. In the meantime, the Federal Reserve has become a major investor in agency RMBS, having begun purchases in this market in December 2008. The Fed has 

pledged to buying up to $1.25 trillion in agency RMBS before the end of this year, 

in an effort to help lower home mortgage interest rates. 

Other securitization markets associated by investors with mortgages are also dormant. SIFMA reports that the private-label commercial MBS primary market ‘‘remains closed.’’ 8 Similarly, global issuance of CDOs has essentially come to a halt. 

Outside of the mortgage sector, auto loan, credit card, and student loan 

securitizations have fallen by over half since 2007. All three sectors became paralyzed in mid-2008, prompting the Federal Reserve to revive these markets with the 

Term Asset-Backed Securities Lending Facility (TALF). Spreads soared in 2008 and 

have since fallen, although have not completely recovered. This suggests that investor concerns about the general integrity of the securitization process spilled over to 

other sectors. 
38 

9Financial Regulatory Reform Proposal, Title IX, §951, www.treas.gov/initiatives/ 

regulatoryreform/. 10The implementing agencies would also have to adopt provisions allocating the risk retention 

obligation between the securitizer and the originator. 11Fender and Mitchell, supra note 4, at 41. 12See, e.g., Office of Inspector General, Department of the Treasury, ‘‘Safety and Soundness: 

Material Loss Review of NetBank, FSB’’ (OIG-08-032, April 23, 2008), www.ustreas.gov/inspector-general/audit-reports/2008/OIG08032.pdf. 

Although TALF has helped to revive these markets, particularly in the auto and 

credit card areas, delinquencies and charge-offs continue to climb. 

V. Needed Reforms 

Private-label mortgage securitization will undoubtedly return in one form or another. And just as certainly, investors will eventually forget the lessons from this 

crisis. To avoid repeating the mistakes of the past, it is essential to put private-label 

mortgage securitization on sound footing going forward. 

A. Proposals To Realign Incentives 

Discussions about reforming private-label securitization often revolve around proposals to realign the incentives of originators and investment banks. The idea is to 

give them sufficient ‘‘skin in the game’’ to care about soundly underwritten loans. 

Thus, the Obama Administration has proposed 9 requiring securitizers to retain at 

least 5 percent of the credit risk on each asset in the asset-backed securities that 

they issue. 10 Securitizers would also be barred from resecuritizing or hedging that 

retained risk. Section 213 of the Mortgage Reform and Anti-Predatory Lending Act, 

H.R. 1728, passed by the House of Representatives on May 7, 2009, contains a similar proposal. 

There are other incentive-based proposals to improve loan underwriting. One involves increased capital: in other words, requiring commercial and investment banks 

—especially too-big-to-fail banks—to hold more capital, both against the tranches 

they retain and against other aspects of securitization that could come back to 

haunt them, such as recourse clauses and structured investment vehicles. 

Another proposal is to realign originators’ compensation with loan performance. 

Accounting standards could be changed to eliminate immediate recognition of gain 

on sale by originators at the time of securitization. And there are two promising proposals to curb reckless originations by independent mortgage brokers. One would 

prohibit pay incentives such as yield spread premiums for steering customers to 

costlier or riskier loans. H.R. 1728, §103. Another proposal would make full payout 

of compensation to mortgage brokers contingent on good performance of the loan. 

A final idea along these lines is to require lenders and securitizers to make 

stronger representations and warranties to investors, accompanied by stiffer recourse provisions for loans that violate those reps and warranties. The American 

Securitization Forum has advanced this reform. 

All of these proposals are good ideas. However, they are not enough, together or 

alone, to ensure sound underwriting. Take the risk retention requirement, for example. It is doubtful whether the ban on hedging is even enforceable, since ‘‘sometimes 

firms pool their risk and set hedges against several positions at once.’’ 11 More importantly, requiring risk retention does not solve the fact that banks, once they got 

loans off of their books through securitization, assumed that risk again by investing 

in toxic subprime RMBS and CDOs. 

As for capital requirements, more capital is essential for depository institutions 

and investment banks. But capital is no panacea. Banks have proven adept at evading minimum capital requirements. Furthermore, the credit crisis raised serious 

concerns about the newly adopted Basel II capital standards, which were designed 

to lower capital and allow large internationally active banks—i.e., too-big-to-fail 

banks—to set their own minimum capital. 

Stronger reps and warranties, backed by stiffer recourse, are likewise advisable. 

But the crisis has shown that recourse provisions are only as good as a lender’s solvency. Since the credit crisis began, most nonbank subprime lenders have gone out 

of business. In addition, 126 banks and thrifts have failed since 2007. Some institutions failed precisely due to their inability to meet investor demands for recourse. 12

Even when recourse can be had, negotiations can be long and drawn-out. Moreover, if a recourse provision is not ironclad, a solvent lender may be able to escape 

it. For example, any provisions that would condition recourse on the lender’s knowledge that the reps and warranties were violated—creating a Sergeant Schultz ‘‘I 

know nothing’’ defense—usually would be meaningless if the misconduct in question 

was committed by an independent mortgage broker. That would include situations 
39 

13 Center for Community Capital, State Anti-Predatory Lending Laws (October 5, 2009), 

http://www.ccc.unc.edu/news/AGlstudylreleasel5[2].10.2009.pdf. 14Federal Reserve System, Truth in Lending: Final rule; official staff commentary, 73 FED. 

REG. 44522, 44536 (July 30, 2008). The Board intended to cover the subprime market, but not 

the prime market. See, id. at 44536-37. 

where the lender failed to adequately supervise the broker, which often was the 

case. 

For all of these reasons, having ‘‘skin in the game’’ is not enough to ensure sound 

loan underwriting. As discussed below, more is needed in the form of minimum underwriting standards. 

B. Improved Due Diligence by Investors 

Meanwhile, investors need the ability to do better due diligence. Three major reforms are needed to provide investors with the information that they need to make 

sound investment decisions about private-label mortgage-related bonds. First is improved transparency, second is product simplification and standardization, and third 

is rating agency reform. 

Transparency—The SEC should require securitizers to provide investors with all 

of the loan-level data they need to assess the risks involved. See Obama Administration Proposal, Title IX, §952. In addition, the SEC should require securitizers and 

servicers to provide loan-level information on a monthly basis on the performance 

of each loan and the incidence of loan modifications and recourse. These disclosures 

should be made in public offerings and private placements alike. In addition, TBA 

offerings should be prohibited because it is impossible for investors to do due diligence on those loan pools. 

Product Simplification and Standardization—The Government should encourage 

simpler, standardized securitization products, whether through the REMIC tax 

rules or rules governing permissible investments by insured banks and thrifts. Similarly, the Government should explore ways to build a liquid secondary trading market in private-label RMBS and other bonds. 

Rating Agency Reform—The most critical rating agency reform is banning the 

‘‘issuer pays’’ system, in which issuers pay for ratings. That would help ensure that 

rating agencies serve the interests of investors, not issuers. In addition, it is necessary to require the rating agencies to create a new, different ratings scale for 

mortgage structured finance to distinguish it from the ratings for corporate bonds. 

Finally, NRSRO designations need to be abolished. 

The Obama Administration’s proposal takes a different approach. The proposal 

would subject NRSROs to enhanced SEC oversight, including expanded public disclosures. In addition, the Administration would require rating agencies to have systems to ‘‘manage, and disclose’’ their conflicts of interest. Title IX, subtitle C. 

While better investor due diligence is necessary to improve private-label mortgage 

securitization, it is not enough. At the height of every business cycle, memories grow 

dim and euphoria takes hold. During bubbles, when default rates are low, investors 

are apt to cast aside basic due diligence precautions to grab the chance of a highyield investment. This temptation is particularly great for institutional money managers, who have cash they need to put to work and face pressure to report the same 

high returns as their competitors. For all of these reasons, minimum Federal underwriting standards are a needed supplement to investor due diligence. 

C. Protecting Borrowers and the Financial System 

We cannot assume that investors will monitor adequately or that standardization 

will be achieved. Furthermore, none of the measures outlined above addresses the 

obstacles to loan modifications. Two additional measures are needed to protect borrowers and the larger economic system from reckless loans and unnecessary foreclosures. 

1. Uniform Minimum Underwriting Standards Enforceable by Borrowers—The 

downward spiral in underwriting standards drove home the need for uniform consumer protection standards that apply to all financial services providers. In fact, a 

new study by the Center for Community Capital at the University of North Carolina 

(Chapel Hill) finds that States that mandated strong loan underwriting standards 

had lower foreclosure rates than States without those laws. 13

The Federal Reserve’s 2008 rule for higher-cost loans accomplished part of this 

goal, 14 but all loans need protection, not just subprime loans. The Obama Administration proposal, H.R. 1728, and H.R. 3126 would solve this problem by creating one 

set of uniform Federal laws that apply to all financial services providers across the 

country, regardless of entity, charter, or geographic location. To prevent a race to 

the bottom in which regulators compete to relax lending standards, the Administra-
40 

15 Raphael Bostic, Kathleen C. Engel, Patricia A. McCoy, Anthony Pennington-Cross, and 

Susan Wachter, ‘‘The Impact of Predatory Lending Laws: Policy Implications and Insights’’, In 

Borrowing To Live: Consumer and Mortgage Credit Revisited 138 (Nicolas P. Retsinas and Eric 

S. Belsky eds., Joint Center for Housing Studies of Harvard University and Brookings Institution Press, 2008), working paper version at http://www.jchs.harvard.edu/publications/finance/ 

understandinglconsumerlcredit/papers/ucc08-9lbosticletlal.pdf. 16See, Michael S. Barr and James A. Feldman, Issue Brief: Overcoming Legal Barriers to the 

Bulk Sale of At-Risk Mortgages (Center for American Progress April 2008). 

tion proposal and H.R. 3126 would consolidate the authority to administer those 

laws in a new Consumer Financial Protection Agency. Under both, the standards 

would constitute a floor, in which weaker State laws are federally preempted. States 

would remain free to enact stricter consumer protections so long as those protections 

were consistent with Federal law. 

These Federal standards do three things. First, the standards would ensure proper loan underwriting based on the consumer’s ability to repay. Second, the standards would prohibit unfair or deceptive practices in consumer credit products and 

transactions. Finally, the standards would promote transparency through improved 

consumer disclosures. Bottom-line, the proposed standards would help make it possible for consumers to engage in meaningful comparison shopping, with no hidden 

surprises. 

In the event these standards are violated, injured borrowers need an affirmative 

claim for relief as well as a defense to foreclosure. Both the claim and the defense 

should be available against loan originators. Limiting relief to loan originators does 

not help borrowers with securitized loans, however, if their loans later go into foreclosure or their originators become judgment-proof. When a securitized loan is foreclosed on, for example, the lender is not the plaintiff; rather, foreclosure is instituted 

by the servicer, the owner of the loan, or its designee (generally the Mortgage Electronic Registration Systems or MERS). Consequently, fairness requires allowing injured borrowers to raise violations as a defense to foreclosure against those entities. 

Similarly, giving borrowers an affirmative claim against assignees for violations of 

Federal lending standards by originators will spur investors and investment banks 

to insist on proper underwriting of loans and afford injured borrowers relief when 

their originators are judgment-proof or a securitized trust sues for foreclosure. The 

Administration’s proposal and H.R. 1728, §204, both contain assignee liability provisions designed to accomplish these objectives. 

Some fear that a borrower right of action against securitized trusts and investment banks would reduce access to credit. A 2008 study by Dr. Raphael Bostic et 

al. examined that question by looking at the effect of assignee liability provisions 

in nine State antipredatory lending laws on the availability of subprime credit. The 

study found ‘‘no definitive effect of assignee liability on the likelihood of subprime 

originations, even when the [assignee] liability provisions are in their strongest 

form.’’ Subprime originations rose in six of the nine States studied that had assignee 

liability, relative to the control State. Results were mixed in the other three States, 

depending on how subprime lending was defined. No State reported a consistent 

drop in subprime originations. 15

In short, assignee liability is not likely to impede access to credit. To the contrary, 

borrower relief will provide needed incentives for originators, Wall Street, and investors to only securitize loans that borrowers can repay. Providing that relief would 

go a long way toward avoiding the biggest threat to access to credit, which is a repeat collapse of private-label securitization. 

2. Remove Artificial Barriers to Cost-Effective Loan Modifications—Right now, too 

many distressed loans are needlessly going to foreclosure despite the availability of 

cost-effective loan modifications. Not only do these foreclosures oust homeowners 

from their homes, they needlessly depress home values for everyone else. It is time 

to cut this Gordian knot. 

Most securitized loan pools are created as ‘‘Real Estate Mortgage Investment Conduits,’’ or REMICs, under the Federal tax code. Any securitization vehicle that 

qualifies for REMIC treatment is exempt from Federal income taxes. Congress or 

the Internal Revenue Service should amend the REMIC rules to disqualify future 

mortgage pools from favored REMIC tax treatment unless pooling and servicing 

agreements and related deal documents are drafted to give servicers ironclad incentives to participate in large-scale loan modifications when specific triggers are hit. 16
41 

1For more information on ASF, please visit our Web site: http:// 

www.americansecuritization.com. For more information on the Securities Industry and Financial 

Markets Association, please see: http://www.sifma.org. 2SIFMA, ‘‘Asset-Backed Securities Outstanding’’, http://www.sifma.org/uploadedFiles/Research/Statistics/SIFMAlUSABSOutstanding.pdf . 3 U.S. Department of the Treasury, ‘‘Monthly Statement of the Public Debt of the United 

States: August 31, 2009’’, (August 2009). http://www.treasurydirect.gov/govt/reports/pd/mspd/ 

2009/opds082009.pdf. 4 National Economic Research Associates, Inc. (NERA), ‘‘Study of the Impact of Securitization 

on Consumers, Investors, Financial Institutions and the Capital Markets’’, p. 16 (June 2009). 

http://www.americansecuritization.com/uploadedFiles/ASFlNERAlReport.pdf . 5SIFMA, ‘‘U.S. ABS Issuance’’, http://www.sifma.org/uploadedFiles/Research/Statistics/ 

SIFMAlUSABSIssuance.pdf. 6 Citigroup, ‘‘Does the World Need Securitization?’’ pp. 10–11 (Dec. 2008).http:// 

www.americansecuritization.com/uploadedFiles/Citi121208lrestartlsecuritization.pdf. 

PREPARED STATEMENT OF GEORGE P. MILLER 

EXECUTIVE DIRECTOR, AMERICAN SECURITIZATION FORUM

OCTOBER 7, 2009 

On behalf of the American Securitization Forum, I appreciate the opportunity to 

testify before this Subcommittee as it explores problems and solutions associated 

with the securitization process. 

The American Securitization Forum (ASF) is a broad-based professional forum 

through which participants in the U.S. securitization market advocate their common 

interests on important legal, regulatory and market practice issues. ASF members 

include over 350 firms, including investors, mortgage and consumer credit lenders 

and securitization issuers, financial intermediaries, legal and accounting firms, and 

other professional organizations involved in the securitization markets. The ASF 

also provides information, education, and training on a range of securitization market issues and topics through industry conferences, seminars and similar initiatives. 

ASF is an affiliate of the Securities Industry and Financial Markets Association. 1

My testimony today will address the following topics: 

1. The role and importance of securitization to the financial system and U.S. 

economy; 

2. Current conditions in the securitization market; 

3. Limitations and deficiencies in securitization revealed by the recent financial 

market crisis; and 

4. Views on certain securitization policy and market reform initiatives now underway or under consideration. 

I. The Role and Importance of Securitization to the Financial System and 

U.S. Economy 

Securitization—generally speaking, the process of pooling and financing consumer 

and business assets in the capital markets by issuing securities, the payment on 

which depends primarily on the performance of those underlying assets—plays an 

essential role in the financial system and the broader U.S. economy. Over the past 

25 years, securitization has grown from a relatively small and unknown segment 

of the financial markets to a mainstream source of credit and financing for individuals and businesses alike. 

In recent years, the role that securitization has assumed in providing both consumers and businesses with credit is striking: currently, there is over $12 trillion 

of outstanding securitized assets, 2 including mortgage-backed securities (MBS), 

asset-backed securities (ABS), and asset-backed commercial paper. This represents 

a market nearly double the size of all outstanding marketable U.S. Treasury securities—bonds, bills, notes, and TIPS combined. 3 Between 1990 and 2006, issuance of 

mortgage-backed securities grew at an annually compounded rate of 13 percent, 

from $259 billion to $2 trillion a year. 4 In the same time period, issuance of assetbacked securities secured by auto loans, credit cards, home equity loans, equipment 

loans, student loans and other assets, grew from $43 billion to $753 billion. 5 In 

2006, just before the downturn, nearly $2.9 trillion in mortgage- and asset-backed 

securities were issued. As these data demonstrate, securitization is clearly an important sector of today’s financial markets. 

The importance of securitization becomes more evident by observing the significant proportion of consumer credit it has financed in the U.S. It is estimated that 

securitization has funded between 30 and 75 percent of lending in various markets, 

including an estimated 59 percent of outstanding home mortgages. 6 Securitization 
42 

7 Ibid., p. 10. 8 Ibid., p. 10. 9Federal Reserve Board of Governors, ‘‘G19: Consumer Credit’’, (September 2009). http:// 

www.federalreserve.gov/releases/g19/current/g19.htm. 10SIFMA, ‘‘U.S. ABS Issuance’’, http://www.sifma.org/uploadedFiles/Research/Statistics/ 

SIFMAlUSABSIssuance.pdf. 

11 National Economic Research Associates, Inc. (NERA), ‘‘Study of the Impact of Securitization 

on Consumers, Investors, Financial Institutions and the Capital Markets’’, (June 2009), p. 16. 

http://www.americansecuritization.com/uploadedFiles/ASFlNERAlReport.pdf. 12The vast majority of investors in the securitization market are institutional investors, including banks, insurance companies, mutual funds, money market funds, pension funds, hedge 

funds and other large pools of capital. Although these direct market participants are institutions, many of them—pension funds, mutual funds and insurance companies, in particular—invest on behalf of individuals, in addition to other account holders. 13G-7 Finance Ministers and Central Bank Governors Plan of Action (Oct. 10, 2008). http:// 

www.treas.gov/press/releases/hp1195.htm. 

plays a critical role in nonmortgage consumer credit as well. Historically, most 

banks have securitized 50–60 percent of their credit card assets. 7 Meanwhile, in the 

auto industry, a substantial portion of automobile sales are financed through auto 

ABS. 8 Overall, recent data collected by the Federal Reserve Board show that 

securitization has provided over 25 percent of outstanding U.S. consumer credit. 9

In the first half of 2009 alone, securitization financed over $9.5 billion in student 

loans. 10 Securitization also provides an important source of commercial mortgage 

loan financing throughout the U.S., through the issuance of commercial mortgagebacked securities. 

Over the years, securitization has grown in large measure because of the benefits 

and value it delivers to transaction participants and to the financial system. Among 

these benefits and value are the following: 

1. Efficiency and Cost of Financing. By linking financing terms to the performance of a discrete asset or pool of assets, rather than to the future profitability 

or claims-paying potential of an operating company, securitization often provides a cheaper and more efficient form of financing than other types of equity 

or debt financing. 

2. Incremental Credit Creation. By enabling capital to be recycled via 

securitization, lenders can obtain additional funding from the capital markets 

that can be used to support incremental credit creation. In contrast, loans that 

are made and held in a financial institution’s portfolio occupy that capital until 

the loans are repaid. 

3. Credit Cost Reduction. The economic efficiencies and increased liquidity available from securitization can serve to lower the cost of credit to consumers. Several academic studies have demonstrated this result. A recent study by National Economic Research Associates, Inc., concluded that securitization lowers 

the cost of consumer credit, reducing yield spreads across a range of products 

including residential mortgages, credit card receivables and automobile 

loans. 11

4. Liquidity Creation. Securitization often offers issuers an alternative and cheaper form of financing than is available from traditional bank lending, or debt 

or equity financing. As a result, securitization serves as an alternative and 

complementary form of liquidity creation within the capital markets and primary lending markets. 

5. Risk Transfer. Securitization allows entities that originate credit risk to transfer that risk to other parties throughout the financial markets, thereby allocating that risk to parties willing to assume it. 

6. Customized Financing and Investment Products. Securitization technology allows for precise and customized creation of financing and investment products 

tailored to the specific needs of issuers and investors. For example, issuers can 

tailor securitization structures to meet their capital needs and preferences and 

diversify their sources of financing and liquidity. Investors can tailor 

securitized products to meet their specific credit, duration, diversification and 

other investment objectives. 12

Recognizing these and other benefits, policymakers globally have taken steps to 

help encourage and facilitate the recovery of securitization activity. The G-7 finance 

ministers, representing the world’s largest economies, declared that ‘‘the current situation calls for urgent and exceptional action . . . to restart the secondary markets 

for mortgages and other securitized assets.’’ 13 The Department of the Treasury stated in March that ‘‘while the intricacies of secondary markets and securitization . . . 
43 

14 U.S. Department of the Treasury, ‘‘Road to Stability: Consumer & Business Lending Initiative’’, (March 2009). http://www.financialstability.gov/roadtostability/lendinginitiative.html. 15 Bernanke, Ben S., ‘‘Speech at the UC Berkeley/UCLA Symposium: The Mortgage Meltdown, 

the Economy, and Public Policy, Berkeley, California’’, Board of Governors of the Federal Reserve System (Oct. 2008). http://www.federalreserve.gov/newsevents/speech/ 

bernanke20081031a.htm. 16Duke, Elizabeth A., ‘‘Speech at the AICPA National Conference on Banks and Savings Institutions, Washington, DC’’, Board of Governors of the Federal Reserve System (Sept. 2009). 

http://www.federalreserve.gov/newsevents/speech/duke20090914a.htm. 17 International Monetary Fund, ‘‘Restarting Securitization Markets: Policy Proposals and Pitfalls’’, Global Financial Stability Report: Navigating the Financial Challenges Ahead (Oct. 2009), 

p. 33. http://www.imf.org/external/pubs/ft/gfsr/2009/02/pdf/text.pdf. 18 International Monetary Fund, ‘‘The Road to Recovery’’, Global Financial Stability Report: 

Navigating the Financial Challenges Ahead (Oct. 2009), p. 29. http://www.imf.org/external/ 

pubs/ft/gfsr/2009/02/pdf/text.pdf. 

may be complex, these loans account for almost half of the credit going to Main 

Street,’’ 14 underscoring the critical nature of securitization in today’s economy. The 

Chairman of the Federal Reserve Board recently noted that securitization ‘‘provides 

originators much wider sources of funding than they could obtain through conventional sources, such as retail deposits’’ and also that ‘‘it substantially reduces the 

originator’s exposure to interest rate, credit, prepayment, and other risks.’’ 15 Echoing that statement, Federal Reserve Board Governor Elizabeth Duke recently stated 

that the ‘‘financial system has become dependent upon securitization as an important intermediation tool,’’ 16 and last week the International Monetary Fund (IMF) 

noted in its Global Financial Stability Report that ‘‘restarting private-label 

securitization markets, especially in the United States, is critical to limiting the fallout from the credit crisis and to the withdrawal of central bank and Government 

interventions.’’ 17 There is clear recognition in the official sector of the importance 

of the securitization process and the access to financing that it provides lenders, and 

of its importance to the availability of credit that ultimately flows to consumers, 

businesses and the real economy. 

Restoration of function and confidence to the securitization markets is a particularly urgent need, in light of capital and liquidity constraints currently confronting 

financial institutions and markets globally. As mentioned above, at present nearly 

$12 trillion in U.S. assets are funded via securitization. With the process of bank 

de-leveraging and balance sheet reduction still underway, and with increased bank 

capital requirements on the horizon, the funding capacity provided by securitization 

cannot be replaced with deposit-based financing alone in the current or foreseeable 

economic environment. Just last week, the IMF estimated that a financing ‘‘gap’’ of 

$440 billion will exist between total U.S. credit capacity available for the nonfinancial sector and U.S. total credit demand from that sector for the year 2009. 18

Moreover, nonbank finance companies, who have played an important role in providing financing to consumers and small businesses, are particularly reliant on 

securitization to fund their lending activities, since they do not have access to deposit-based funding. Small businesses, who employ approximately 50 percent of the 

Nation’s workforce, depend on securitization to supply credit that is used to pay employees, finance inventory and investment, and other business purposes. Furthermore, many jobs are made possible by securitization. For example, a lack of financing for mortgages hampers the housing industry; likewise, constriction of trade receivable financing can adversely affect employment opportunities in the manufacturing sector. To jump start the engine of growth and jobs, securitization is needed 

to help restore credit availability. 

Simply put, the absence of a properly functioning securitization market, and the 

funding and liquidity this market has historically provided, adversely impacts consumers, businesses, financial markets, and the broader economy. The recovery and 

restoration of confidence in securitization is therefore a necessary ingredient for economic growth to resume, and for that growth to continue on a sustained basis into 

the future. 

II. Current Conditions in the Securitization Market 

The U.S. securitization markets experienced substantial dislocation during the recent financial market turmoil, with a virtual collapse of both supply and demand 

in the new-issue market, very substantial reductions in liquidity, widespread declines in securities prices and valuations, and increases in risk premiums throughout the secondary market. While there have been signs of recovery in certain parts 

of the securitization market throughout the first three calendar quarters of 2009, 

some market segments—most notably, private-label residential mortgage backed securities—remain dormant, with other securitization asset classes and market sectors remaining significantly challenged. 
44 

19SIFMA, ‘‘U.S. ABS Issuance’’, http://www.sifma.org/uploadedFiles/Research/Statistics/ 

SIFMAlUSABSIssuance.pdf. 20SIFMA, ‘‘U.S. Mortgage-Related Issuance’’, http://www.sifma.org/uploadedFiles/Research/ 

Statistics/SIFMAlUSMortgageRelatedIssuance.pdf. 21Obama, Barack, ‘‘Remarks of President Barack Obama—Address to Joint Session of Congress’’, (Feb. 24, 2009). http://www.whitehouse.gov/thelpressloffice/remarks-of-PresidentBarack-Obama-address-to-joint-session-of-congress. 22SIFMA, ‘‘TALF’’, http://www.sifma.org/research/research.aspx?ID=10256#TALF. 23 Allison, Herbert M., ‘‘Written Testimony: Senate Committee on Banking, Housing and 

Urban Affairs’’, (Sept. 2009). http://www.ustreas.gov/press/releases/tg298.htm. 24 JPMorgan Securitized Products Weekly, September 18, 2009, pp. 22–23. 25See, for example: ‘‘AmeriCredit’s $725 Million Auto ABS transaction’’, (July 2009) http:// 

www.reuters.com/article/pressRelease/idUS140529+31-Aug-2009+BW20090831; JPMorgan’s 

$2.53 billion credit card ABS deal, (Sept. 2009) http://online.wsj.com/article/ 

SB125311472402316179.html. 

In the asset-backed securities market, total issuance volume remains at a relatively low level, with 2009 issuance projected to reach $130 billion, roughly in line 

with the $140 billion issued in 2008 but sharply down from the $750 billion issued 

in 2006. 19 Although issuance rates in nearly all major asset classes, including credit 

cards, auto and equipment loans, and student loans, picked up in the second quarter 

of 2009, a recent ASF survey showed that market participants expect securitization 

issuance rates to return to only half of their predownturn levels over the next 2 to 

3 years. For residential mortgage-backed securities, 2009 to date has seen over $1.2 

trillion in issuance, compared with a yearlong total of $1.3 trillion in 2008 and $2.1 

trillion in 2006. However, in 2009, less than 1 percent of this has been issued without a Government or GSE guarantee (i.e., private-label MBS); this is compared with 

private-label MBS comprising over 23 percent of all issuance during the time period 

from 1996 to 2006. 20 Furthermore, private-label MBS transactions that have occurred in 2009 involved pools of seasoned, conforming loans—no major private-label 

residential mortgage-backed securities deal of which we are aware has directly financed new mortgage loan origination this year. 

Part of the reason for this involves a broad retreat from risk by many investors. 

The events of 2007 and 2008, especially in the RMBS markets, resulted in significant losses for many investors. While it seems unlikely that some types of investors, 

such as those who purchased securitized instruments issued by structured investment vehicles (SIVs) or certain types of collateralized debt obligations (CDOs), will 

play a significant role in the future MBS and ABS markets, the number of traditional securitization investors has also diminished, and along with it, the liquidity 

they have provided to both senior and subordinate parts of the market. Replacing 

at least a portion of this investor base is a significant challenge faced by participants in today’s market. 

Certain programs sponsored by the Federal Government—in particular, the TALF 

program—have been successful in stimulating parts of the new-issue securitization 

market. President Obama described TALF as the Government’s ‘‘largest effort ever 

to help provide auto loans, college loans, and small business loans to the consumers 

and entrepreneurs who keep this economy running,’’ 21 and in many ways, TALF is 

among the most successful of the Government’s efforts to bolster the consumer economy. As of September 2009, TALF has directly financed $46 billion 22 of ABS 

issuances out of the approximately $80 billion of ABS eligible for TALF that has 

been issued since March. 23 Due in significant measure to TALF, credit costs on consumer ABS have, across the board, returned to levels more in line with their historical trends than the extremely high levels that were seen in late 2008 and early 

2009. For example, 3-year AAA credit card spreads to benchmark rates had 

ballooned to more than 500 basis points, or 5 percent, above LIBOR by January 

2009, but have retracted to a level less than 1 percent above LIBOR. 24 While this 

is not quite back to the spread levels seen over the years leading up to the crisis, 

it represents a more stable and economical level for issuers that translates into 

more affordable rates for borrowers. In recent months a number of issuers have 

been able to sell, at economical levels, transactions without the support of TALF. 25

Clearly there are other factors at play in this recovery, including a generally more 

benign credit market, but one cannot dismiss the considerable and positive impact 

of TALF. 

TALF has helped somewhat to bring investors back to the parts of consumer ABS 

markets that are not directly eligible for the program, although the markets for debt 

rated lower than AAA are still struggling. For example, 5-year single-A rated credit 

card ABS, which are not TALF eligible, saw an even more severe spread widening 

than that of AAA during the height of the disruption in late 2008. By January 2009 

spreads had ballooned to more than 15 percent above LIBOR, but have since come 
45 

26 ‘‘JPMorgan Securitized Products Weekly’’, September 18, 2009, pp. 22–23. 

back in to lower levels. 26 The subordinate ABS markets are still relatively dormant, 

and unless banks are able to finance a greater portion of the capital structure, credit origination via securitization cannot be fully restored. 

Notwithstanding the success of the TALF program and the restoration of a modest 

degree of securitization financing and liquidity in some market segments, significant 

challenges remain, including establishing a stable, sustainable, and broad-based 

platform for future securitization market issuance and investment activity that is 

less reliant on direct Government support. 

III. Limitations and Deficiencies in Securitization Revealed by the Recent 

Financial Market Crisis 

The recent financial market crisis revealed several limitations and weaknesses in 

securitization market activity. Among the multiple (and, in many cases, interrelated) deficiencies revealed were the following: 

1. Risk management failures, including the excessive or imprudent use of leverage 

and mismanagement of liquidity risk. Many market participants—including financial intermediaries, investors, and others—established large, leveraged risk 

positions in securitized instruments. A significant number of these market positions were, in effect, highly levered triggers which, when tripped by an adverse rating action or downward price movement, caused widespread 

deleveraging and further price reductions. At the same time, large parts of the 

securitization market became reliant on cheap, short term liquidity to finance 

long-term assets. When this liquidity disappeared and financing was either repriced or withdrawn completely, a more systematic deleveraging and 

unwinding process ensued. 

2. Credit ratings methodologies and assessments that proved to be overly optimistic, and excessive reliance on credit ratings. Especially in parts of the residential mortgage market, a favorable economic environment and persistent increase in housing prices masked gaps in credit rating agency models and methodologies that did not sufficiently factor in the risk of nationwide housing price 

declines and a high correlation in the performance of the assets underlying certain mortgage and asset-backed securities. At the same time, market participants became overly reliant on credit ratings, and many failed to perform or 

to act upon their own assessment of the risks created by certain securitized 

transaction structures. 

3. Deteriorating underwriting standards and loan quality. Underwriting standards declined precipitously throughout various segments of the credit markets, 

including but not limited to subprime mortgages, with housing prices rising 

steeply and credit and liquidity in plentiful supply. As loan demand and competition among lending institutions intensified, asset quality declined, leaving 

securitized instruments vulnerable to credit-related performance impairments. 

4. Gaps in data integrity, reliability and standardization. Especially in parts of 

the residential mortgage market, a combination of explosive lending growth, 

operational weaknesses, the absence of standardized and comparable loan-level 

data, an increasing prevalence of fraud and other factors caused investors 

broadly to question the accuracy and integrity of performance data relating to 

the assets underlying securitizations. This led to a massive loss of confidence 

and widespread aversion to securitized risk, including asset classes and transaction structures that were far removed from the direct source of these concerns. 

5. A breakdown in checks and balances and lack of shared responsibility for the 

system as a whole. While many within the securitization industry were aware 

of the general deterioration in credit underwriting standards and the other factors outlined above, no single party or group of market participants enforced 

sufficient discipline across all parts of the interdependent securitization value 

chain. Weaknesses and deficiencies in one part of the chain thus impaired the 

function of the chain in its entirety. 

It is important to note that the weaknesses outlined above are not inherent in 

securitization per se. Instead, they relate to the manner in which securitization was 

used in some settings by some market participants. In general, the amount of risk 

inherent in a securitization is equal to the risk that is embedded in the securitized 

assets themselves. However, in retrospect it is clear that securitization technology 

can be used in ways that can reduce and distribute risk (i.e., can be beneficial to 

the financial system), or that increase and concentrate that risk (i.e., can be detri-
46 

27The exact language used by the IMF in its Global Financial Stability Report states: ‘‘While 

most of the current proposals are unambiguously positive for securitization markets and financial stability, some proposals—such as those designed to improve the alignment of securitizer 

and investor interests and accounting changes that will result in more securitized assets remaining on balance sheets—may be combined in ways that could halt, not restart, 

securitization, by inadvertently making it too costly for securitizers.’’ See, ‘‘The Road to Recovery’’, (Oct. 2009), p. 29. http://www.imf.org/external/pubs/ft/gfsr/2009/02/pdf/text.pdf. 

mental to the financial system). Ancillary practices and strategies employed in some 

securitization transactions by some market participants—for example, the use of additional leverage; reliance on short-term funding for long-term liabilities; or the absence of effective risk management controls—can amplify and concentrate those 

risks. This is especially true when such practices and strategies relate to large dollar volumes of transactions and risk positions held by multiple participants throughout the financial system. 

It is also important to recognize that many of the deficiencies outlined above were 

prevalent, or at least more heavily concentrated, in certain securitization market 

products and sectors, rather than characterizing conditions or practices in the 

securitization market as a whole. In fact, the most consequential deficiencies were 

concentrated in portions of the residential mortgage market—and the subprime 

mortgage market, in particular—and in certain types of CDOs, SIVs and similar securities arbitrage structures. These transactions—many of which relied on high degrees of leverage—generated significant incremental demand for underlying 

securitization products. However, much of that demand was ‘‘artificial,’’ in the sense 

that production of underlying securitization products (e.g., subordinated risk 

tranches of subprime RMBS) was driven by demand from CDOs and SIVs, rather 

than by the financing needs of lenders or borrowing needs of consumers. In other 

parts of the securitization market, including prime RMBS, credit card, auto and student loan ABS, and asset-backed commercial paper conduits, among others, 

securitization activity largely remained focused on its historical role of financing the 

credit extension activities of lenders, and the credit needs of their consumer and 

business customers. 

IV. Views on Securitization Policy and Market Reform Initiatives 

Numerous policy and market reforms aimed at the securitization market have 

been advanced in response to the broader financial market crisis. Global policymaking bodies have proposed a series of securitization reforms as part of their 

broader response to financial market turmoil, and in the United States, both legislative and regulatory responses are under active consideration. At the same time, industry participants and their representative organizations are moving forward with 

important reforms to securitization market practices and to retool key parts of the 

market’s operational infrastructure. 

Overall, we believe that a targeted combination of thoughtful policy reforms, coupled with industry initiatives to improve the securitization market infrastructure, 

will help to establish a more stable and lasting platform for future securitization 

market activity. In general, we believe that these policy and industry reform measures should facilitate the ability to originate and fund of a wide range of consumer 

and business credit via securitization. However, this activity must be supported by 

improved data and transparency that enables securitized risk to be evaluated and 

priced efficiently by market participants, and by enhanced operational controls (including but not limited to asset origination practices, due diligence and quality review practices, standardized and more effective representations and warranties, 

standardization of key documentation provisions and rating agency methodologies, 

among others) that provide necessary assurances to investors and other market participants regarding the accuracy, integrity and reliability of securitization data and 

transaction structures. At the same time, we believe that it is important, as a recent 

IMF report noted, to consider the individual and combined effects of various reform 

measures under consideration, to ensure that they do not inadvertently stifle otherwise sound and desirable securitization activity. 27

In the United States, a primary policy focus is on legislative proposals advanced 

by the Obama Administration, which in turn reflect many of the reform themes and 

initiatives under consideration globally. Together with other reforms being pursued 

by Federal regulatory agencies and accounting standards setters, these 

securitization reform initiatives may be broadly categorized as follows: 

1. Increased Data Transparency, Disclosure, and Standardization; and Improvements to the Securitization Infrastructure. Initiatives designed to increase the 

type and amount of information and data (including loan-level data) that is 

captured and disclosed with respect to securitized instruments, and to improve 
47 

and standardize that information and data as well as key documentation provisions, market practices and procedures employed in securitization transactions. 

2. Required Risk Retention and Other Incentive Alignment Mechanisms. Mandated requirements for asset originators and/or securitizers to retain an economic interest in securitization transactions, and other mechanisms designed 

to produce a closer alignment of economic risks and incentives of originators, 

securitizers, and end investors. 

3. Increased Regulatory Capital Requirements and Limitations on Off-Balance 

Sheet Accounting. Increases in regulatory capital required to be held against 

securitized exposures by regulated financial institutions, as a means of creating an additional safety and soundness buffer against potential losses associated with those exposures, and revisions to generally accepted accounting 

standards that restrict off-balance sheet accounting for securitized transactions 

and produce more widespread accounting consolidation of the assets and liabilities of securitization special purpose entities. 

4. Credit Rating Agency Reforms. Various reforms intended to eliminate or minimize conflicts of interest, and to promote the accuracy, integrity and transparency of methodologies and processes that credit rating agencies apply to 

securitization transactions. 

A summary of ASF’s views on each of these reform directions and initiatives are 

set forth below. 

A. Increased Transparency, Disclosure, Standardization; and Improvements to the 

Securitization Market Infrastructure 

ASF supports increased transparency and standardization in the securitization 

markets, and related improvements to the securitization market infrastructure. We 

believe that such efforts should be focused on those areas and products where preexisting practices have been determined to be deficient, and where improvements 

can help to restore confidence and function to the related market segment(s). 

Our principal focus in this area is ASF’s Project on Residential Securitization 

Transparency and Reporting (Project RESTART), which is initially directed at addressing transparency and standardization deficiencies in the residential mortgagebacked securities (RMBS) market. Prior studies and market surveys conducted by 

ASF have clearly identified the RMBS market as most in need of these types of reform. 

Overall, Project RESTART seeks to address transparency and standardization 

needs in the RMBS market via the substantial injection of new disclosures and reporting by issuers and servicers on new transactions as well as on the trillions of 

dollars of outstanding private-label RMBS. Project RESTART would create a uniform set of data standards for such disclosure and reporting, including at the loan 

level. This will create a more level playing field where issuers provide the same information at the initiation of a securitization transaction and on an ongoing basis 

throughout the life of that transaction. With these standards in place, information 

provided by different issuers will be more comparable and capable of meaningful 

evaluation by investors and other market participants. In addition to supporting investment analysis, these data and standardization improvements will also support 

more robust and reliable rating agency, due diligence, quality review and valuation 

processes, and other downstream applications that will benefit from more robust, reliable and comparable underlying data. 

Project RESTART for RMBS transactions consists of the following phases: (i) the 

Disclosure Package, which will provide substantially more loan-level data than is 

currently available to investors, rating agencies and other parties, and standardize 

the presentation of transaction-level and loan-level data to allow for a more ready 

comparison of transactions and loans across issuers; (ii) the Reporting Package, 

which will provide for monthly updating of critical loan-level information that will 

enable improvements in the ability of investors, rating agencies and other market 

participants to analyze the performance of outstanding securities; (iii) Model RMBS 

Representations and Warranties, which will provide assurances to investors in 

RMBS transactions regarding the allocation and assumption of risk associated with 

loan origination and underwriting practices; (iv) Model Repurchase Procedures, 

which will be used to enforce the Model Representations and Warranties and to 

clearly delineate the roles and responsibilities of transaction parties in the repurchase process; (v) Model Pre-Securitization Due Diligence Standards, which will buttress due diligence and quality review practices relating to mortgage underwriting 

and origination practices and the data supplied to market participants through the 

Disclosure Package; and (vi) Model Servicing Provisions for Pooling and Servicing 

Agreements, which will create more standardized documentation provisions and 
48 

work rules in key areas, such as loss mitigation procedures that servicers may employ in dealing with delinquent or defaulting loans. 

Final versions of the Disclosure and Reporting Packages were released by ASF in 

July 2009, with industry implementation beginning in 2010. Work continues on the 

other Project RESTART workstreams identified above, with an immediate focus on 

the development of Model RMBS Representations and Warranties, which are used 

to act as a ‘‘return policy’’ to guard against the risk of defective mortgage loans 

being sold into a securitization trust. Much like a defective product is returned to 

the store from which it was sold, a defective mortgage loan will be ‘‘returned’’ to 

the issuer through its removal from a securitization trust for cash. A mortgage loan 

is ‘‘defective’’ if it materially breaches one of the representations and warranties. Examples of defects range from a general fraud in a loan’s origination to a failure to 

properly verify a borrower’s income or employ an independent appraiser. The ASF 

supports 100 percent risk retention for defective loans that result from an originator’s failure to meet specified underwriting criteria. 

Although Project RESTART has initially been focused on the RMBS market, 

members of the ASF have begun development of the ASF Credit Card ABS Disclosure Package, which seeks to provide increased transparency and standardization 

to the Credit Card ABS market. 

Finally, ASF believes that every mortgage loan should be assigned a unique identification number at origination, which would facilitate the identification and tracking of individual loans as they are sold or financed in the secondary market, including via RMBS securitization. ASF recently selected a vendor who will work with us 

to provide this unique Loan ID, which is called the ASF LINCTM. Implementation 

of the ASF LINC will enable market participants to access Project RESTART’s valuable loan-level information without violating privacy laws by removing personal 

nonpublic information and other protected information from the process. 

B. Required Risk Retention 

ASF supports initiatives to align the economic interests of asset originators and 

securitization sponsors with investors. As suggested above, we believe that the principal goal of these efforts should be to establish and reinforce commercial incentives 

for originators and sponsors to create and fund assets that conform to stated underwriting standards and securitization eligibility criteria, thereby making those parties economically responsible for the stated attributes and underwriting quality of 

securitized loans. The creation and maintenance of effective mechanisms of this type 

will facilitate responsible lending, as well as a more disciplined and efficient funding 

of consumer assets via securitization (i.e., where the varying credit and performance 

risks presented by different types of securitized assets can be properly evaluated 

and priced in the capital markets). 

Securitization risk retention proposals currently under consideration, including 

legislation advanced by the Obama Administration, call for securitization sponsors 

and/or asset originators to retain an economic interest in a material portion of the 

credit risk that the sponsor and/or asset originator conveys to a third party via a 

securitization transaction. 

As noted above, we support the concept of requiring retention of a meaningful economic interest in securitized loans as a means of creating a better alignment of incentives among transaction participants. Many securitizations already embed this 

concept through various structuring mechanisms, including via the retention of subordinated or equity risk in the securitization, holding portfolio assets bearing credit 

exposure that is similar or identical to that of securitized assets, and representations and warranties that require originators or sponsors to repurchase assets that 

fail to meet stated securitization eligibility requirements, among others. However, 

we do not believe that mandated retention of specific portions of credit risk—one 

such form of economic interest—necessarily constitutes the sole or most effective 

means of achieving this alignment in all cases. 

There are numerous valid and competing policy goals that stand in opposition to 

requiring the retention of credit risk in securitized assets and exposures. Among 

others, these include the proper isolation of transferred assets (i.e., meeting legal 

criteria necessary to effect a ‘‘true sale’’); reduction and management of risk on financial institutions’ balance sheets; balance sheet management; and the redeployment of capital to enable financial institutions to originate more credit than their 

limited capital resources would otherwise allow. Balancing these competing and 

worthwhile policy goals suggests that retention and incentive alignment mechanisms other than universal credit risk retention requirements should be considered. 

This viewpoint was echoed by the IMF last week in its Global Financial Stability 

Report, which expressed strong concerns about the potential unintended negative 

consequences of implementing suggested credit risk retention requirements and in-
49 

28 International Monetary Fund, ‘‘Restarting Securitization Markets: Policy Proposals and Pitfalls.’’ Global Financial Stability Report: Navigating the Financial Challenges Ahead (Oct. 2009), 

p. 31. http://www.imf.org/external/pubs/ft/gfsr/2009/02/pdf/text.pdf. 29One such approach was adopted by the European Parliament in May 2009. Article 122a 

to the Capital Requirements Directive prohibits EU banks from investing in securitizations unless the originator retains on an ongoing basis at least 5 percent of the material net economic 

interest of the securities securitized. The article proposes four ways the 5 percent retention requirement may be applied. The article’s requirement is scheduled to go into effect on December 

31, 2010, for new issues, and December 31, 2014, for existing securitizations where new underlying exposures are added or subtracted after that date. For more information, see: http:// 

www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009- 

0367&language=EN&ring=A6-2009-0139#BKMD-35. 

stead indicated that regulatory authorities ‘‘should consider other mechanisms that 

incentivize due diligence and may be able to produce results comparable to a retention requirement, including, perhaps, representations and warranties.’’ 28

We believe that the risk or ‘‘skin in the game’’ traditionally retained by originators of RMBS is embodied in the representations and warranties that issuers provide with respect to the mortgage loans sold into the securitization trust. These representations and warranties are designed to ensure that the loans are free from undisclosed origination risks, leaving the investor primarily with normal risks of loan 

ownership, such as the deterioration of the borrower’s credit due to loss of employment, disability or other ‘‘life events.’’ However, many market participants have indicated that the traditional representations and warranties and their related remedy provisions have not sufficiently provided a means to return defective loans to 

the originator. Because of this, the ASF has sought to enhance and standardize 

these items through the previously discussed Project RESTART Model RMBS Representations and Warranties and Model Repurchase Provisions. 

We therefore believe that to the extent legislation is adopted to require risk retention, regulators should have flexibility to develop and apply alternative retention 

mechanisms. This flexibility should include the ability for regulators to specify permissible forms and amounts of retention, how retention requirements may be calculated and measured, the duration of retention requirements, whether and to what 

extent hedging or risk management of retained positions is permissible, and other 

implementation details. 

Finally, we believe that it is imperative to achieve global harmonization and consistency of policy approaches to securitization risk retention. Different approaches 

are being considered and/or have been adopted in different jurisdictions. 29 Given 

the global nature of securitization activity and the mobility of global capital among 

jurisdictions, significant competitive disparities and inefficiencies may be produced 

by introducing substantively different retention standards throughout the world’s financial markets. We believe that is essential for policymakers to coordinate their 

approaches in this area. 

C. Increased Regulatory Capital and Limitations on Off-Balance Sheet Financing 

The Obama Administration has advocated that risk-based regulatory capital requirements should appropriately reflect the risk of structured credit products, including the concentrated risk of senior tranches and resecuritizations and the risk 

of exposures held in highly leveraged off-balance sheet vehicles. Global policymakers 

have also advocated for minimizing opportunities for financial institutions to use 

securitization to reduce their regulatory capital requirements without a commensurate reduction in risk. 

Consistent with the above views, the Basel Committee on Banking Supervision 

has amended the Basel II risk-based capital framework to require additional regulatory capital to be held against certain resecuritizations (such as CDOs), on the 

basis that previous rules underestimated the risks inherent in such structures. In 

the U.S., the combined bank regulatory agencies recently issued proposals that 

would continue to link risk-based capital requirements to whether an accounting 

sale has occurred under U.S. GAAP. Given that recent accounting changes (which 

will generally take effect in January 2010) will make it very difficult to achieve 

GAAP sales in many securitizations, including both term asset-backed securities 

and asset-backed commercial paper vehicles, these proposed rules will likely materially increase the capital that financial institutions will be required to hold in 

against securitizations, since many securitized assets will remain on or return to 

those institutions’ balance sheets. 

ASF supports efforts to addresses weaknesses in the risk-based capital framework 

that have been revealed in certain securitization products by the recent financial 

market dislocation, and agrees that regulatory capital levels should adequately reflect the risks of different types of securitization transactions. Furthermore, ASF 
50 

30For more detail on ASF’s views on these and other credit rating agency reform proposals, 

see the series of letters submitted to the SEC by ASF between May and September of 2008. 

These letters may be found at: http://www.americansecuritization.com/uploadedFiles/ 

ASFpercent20CRA percent20-percent20ratings percent20scale.pdf (May 2008); http:// 

www.americansecuritization.com/uploadedFiles/Releasel34- 

57967lASFlCommentlLetterl.pdf (July 2008); and http://www.americansecuritization.com/ 

uploadedFiles/ASFlFinallSEClCRA—Letterl9l5l08.pdf (Sept. 2008). 

supports efforts to reduce or eliminate opportunities for regulatory capital arbitrage 

that are unrelated to differences in the risk profiles of securitization instruments. 

We therefore believe that increases in regulatory capital requirements for certain 

securitizations may be appropriate, based on the conclusion that they present more 

risk than had been previously understood (for example, because of their use of leverage or where underlying risk positions are more highly correlated than they were 

assumed to be, as in the case of certain CDOs and SIVs). However, a broader increase in capital requirements for securitization across the board, that is not tied 

to the differing risk profiles of different transactions, may produce very negative 

consequences for the economic viability of securitization. In turn, this outcome could 

unduly constrain the ability of financial institutions to originate and fund consumer 

and business credit demand, particularly as the broader economy begins to recover. 

ASF is particularly concerned that linking risk-based capital requirements to accounting outcomes—particularly when those outcomes are produced by the application of accounting standards that are not themselves risk-based—is an inappropriate policy response. We believe that the resulting increase in regulatory capital 

required to be held against securitized assets held on financial institutions’ balance 

sheets will grossly misrepresent the actual, incremental risk inherent in those assets. We believe that a more targeted approach to revising the securitization riskbased capital framework is warranted. Last week ASF asked the U.S. bank regulatory agencies for a 6-month moratorium relating to any changes in bank regulatory capital requirements resulting from the implementation of FASB’s Statements 166 and 167. We believe that this action is necessary to avoid a potentially 

severe capital and credit shock to the financial system as of January 1st, when the 

new accounting rules generally take effect. We will be providing detailed input and 

recommendations to bank regulatory agencies and other policymakers on this important topic by the October 15th deadline. 

D. Rating Agency Reforms 

ASF supports credit rating reform in the securitization markets, focusing on steps 

designed to increase the quality, accuracy and integrity of credit ratings and the 

transparency of the ratings process. Credit ratings have occupied a central role in 

the securitization markets, providing investors and other market participants with 

expert views on the credit performance and risks associated with a wide range of 

securitization products. As an outgrowth of the financial market crisis, confidence 

in rating agencies and the ratings process for securitization have been significantly 

impaired. We believe that a restoration of such confidence is a necessary step in restoring broader confidence and function to the securitization markets. 

Various credit rating reform measures targeting the securitization markets have 

been advanced by policymakers, and a number of proposals have been adopted or 

remain under consideration by the Securities Exchange Commission. Our views on 

some of the more significant proposals affecting the securitization market are summarized below: 30

1. Conflicts of Interest. We support measures aimed at developing and enhancing 

strong conflict of interest policies and rules governing the operations of credit 

rating agencies. We believe that effective management and disclosure of actual 

and potential conflicts is a necessary component for ensuring transparency and 

integrity in the rating process. 

2. Differentiation of Structured Finance Ratings. ASF supports full and transparent disclosure of the basis for structured finance ratings, so that the risk 

of securitizations can be understood and differentiated from risks presented by 

other types of credit instruments. However, we strongly oppose proposals advocating that a special ratings designation or modifier be required for structured 

finance ratings. We believe that such a designation or modifier would not convey any meaningful information about the rating, and would require significant 

revisions to private investment guidelines that incorporate ratings requirements. 

3. Ratings Performance Disclosure. We support the publication in a format reasonably accessible to investors of a record of all ratings actions for 
51 

1Portions of this statement are derived from ‘‘Securitization: After the Fall’’, Anthony Sanders 

and Andrew Davidson, forthcoming. 2See, Andrew Davidson, Anthony Sanders, Lan-Ling Wolff, and Anne Ching, ‘‘Securitization’’, 

2003, for a detailed discussion of securitization and valuation of securitized products. 

securitization instruments for which ratings are published. We believe that 

publication of these data will enable investors and other market participants 

to evaluate and compare the performance, stability, and quality of ratings judgments over time. 

4. Disclosure of Ratings Methods and Processes. ASF strongly supports enhanced 

disclosure of securitization ratings methods and processes, including information relating to the use of ratings models and key assumptions utilized by 

those models. 

5. Reliance on Ratings. We believe that investors and other market participants, 

including regulators, should not place an undue reliance on credit ratings, and 

should employ other mechanisms for performing an independent credit analysis. However, ASF believes that credit ratings are an important part of existing regulatory regimes, and that steps aimed at reducing or eliminating the 

use of ratings in regulation should be considered carefully, to avoid undue disruption to market function and efficiency. 

Conclusion 

The securitization market is an essential mechanism for supporting credit creation and capital formation throughout the consumer and business economy. Its role 

is even more important today, when other sources of credit and financing are limited, due to balance sheet, capital, and liquidity constraints facing financial institutions. Securitization activity was significantly impaired as a consequence of the financial market crisis. While portions of the securitization market have recovered to 

some extent throughout 2009, other market segments remain significantly challenged. 

The financial market crisis revealed weaknesses in several key areas of 

securitization market activity. Targeted reforms are needed, and a number are 

being pursued through both public- and private-sector responses. In pursuing market reforms and redressing these weaknesses, care should be taken to avoid imposing undue impediments to the restoration of securitization activity that could adversely impact credit availability and retard economic recovery and growth. 

Thank you for the opportunity to share these views, and I look forward to answering any questions that Members of the Subcommittee may have. 

PREPARED STATEMENT OF ANDREW DAVIDSON 

PRESIDENT, ANDREW DAVIDSON AND COMPANY

OCTOBER 7, 2009 

Mr. Chairman and Members of the Subcommittee, I appreciate the opportunity 

to testify before you today about securitization. My expertise is primarily in the 

securitization of residential mortgages and my comments will be primarily directed 

toward those markets. 

Securitization has been a force for both good and bad in our economy. A well functioning securitization market expands the availability of credit for economic activity 

and home ownership. It allows banks and other financial institutions to access capital and reduces risk. On the other hand a poorly functioning securitization market 

may lead to misallocation of capital and exacerbate risk. 1

Before delving into a discussion of the current crisis, I would like to distinguish 

three types of capital markets activities that are often discussed together: 

Securitization, Structuring, and Derivatives. 2

Securitization is the process of converting individual loans into securities that can 

be freely transferred. Securitization serves to separate origination and investment 

functions. 

Without securitization investors would need to go through a very complex process 

of transferring the ownership of individual loans. The agency mortgage-backed securities (MBS) from Ginnie Mae, Fannie Mae, and Freddie Mac are one of the most 

successful financial innovations. However, as the last years have taught us, the socalled, ‘‘originate to sell’’ model, especially as reflected in private-label (nonagency) 

MBS, has serious shortcomings. 

Structuring is the process of segmenting the cash flows of one set of financial instruments into several bonds which are often called tranches. The collateralized 
52 

mortgage obligation or CMO is a classic example of structuring. The CMO transforms mortgage cash flows into a variety of bonds that appeal to investors from 

short-term stable bonds, to long-term investments. Private label MBS use a second 

form of structuring to allocate credit risk. A typical structure uses subordination, 

or over-collateralization, to create bonds with different degrees of credit risk. The 

collateralized debt obligation or CDO is a third form of structuring. In this case, 

bonds, rather than loans, are the underlying collateral for the CDO bonds which are 

segmented by credit risk. Structuring allows for the expansion of the investor base 

for mortgage cash flows, by tailoring the bonds characteristics to investor requirements. Unfortunately, structuring has also been used to design bonds that obfuscate 

risk and return. 

Derivatives, or indexed contracts, are used to transfer risk from one party to another. Derivatives are a zero sum game in that one investor’s gain is another’s loss. 

While typically people think of swaps markets and futures markets when they mention derivatives, the TBA (to be announced) market for agency pass-through mortgages is a large successful derivative market. The TBA market allows for trading 

in pass-through MBS without the need to specify which pool of mortgages will be 

delivered. More recently a large market in mortgage credit risk has developed. The 

instruments in this market are credit default swaps (CDS) and ABX, an over-thecounter index based on subprime mortgage CDS. Derivatives allow for risk transfer 

and can be powerful vehicles for risk management. On the other hand, derivatives 

may lead to the creation of more risk in the economy as derivate volume may exceed 

the underlying asset by substantial orders of magnitude. 

For any of these products to be economically useful they should address one or 

more of the underlying investment risks of mortgages: funding, interest rate risk, 

prepayment risk, credit risk, and liquidity. More than anything else mortgages represent the funding of home purchases. The twelve trillion of mortgages represents 

funding for the residential real estate of the country. Interest rate risk arises due 

to the fixed coupon on mortgages. For adjustable rate mortgages it arises from the 

caps, floors and other coupon limitations present in residential mortgage products. 

Interest rate risk is compounded by prepayment risk. Prepayment risk reflects both 

a systematic component that arises from the option to refinance (creating the option 

features of MBS) as well as the additional uncertainty created by the difficulty in 

accurately forecasting the behavior of borrowers. Credit risk represents the possibility that borrowers will be unable or unwilling to make their contractual payments. Credit risk reflects the borrower’s financial situation, the terms of the loan 

and the value of the home. Credit risk has systematic components related to the 

performance of the economy, idiosyncratic risks related to individual borrowers and 

operational risks related to underwriting and monitoring. Finally, liquidity represents the ability to transfer the funding obligation and/or the risks of the mortgages. 

In addition to the financial characteristics of these financial tools, they all have 

tax, regulatory and accounting features that affect their viability. In some cases tax, 

regulatory and accounting outcomes rather than financial benefit are the primary 

purpose of a transaction. In developing policy alternatives each of these activities: 

securitization, structuring and derivatives, pose distinct but interrelated challenges. 

Role of Securitization in the Current Financial Crisis 

The current economic crisis represents a combination of many factors and blame 

can be laid far and wide. Additional analysis may be required to truly assess the 

causes of the crisis. Nevertheless I believe that securitization contributed to the crisis in two important ways. It contributed to the excessive rise in home prices and 

it created instability once the crisis began. 

First, the process of securitization as implemented during the period leading up 

to the crisis allowed a decline in underwriting standards and excessive leverage in 

home ownership. The excess lending likely contributed to the rapid rise in home 

prices leading up to the crisis. In addition to the well documented growth in 

subprime and Alt-A lending, we find that the quality of loans declined during the 

period from 2003 to 2005, even after adjusting for loan to value ratios, FICO scores, 

documentation type, home prices and other factors reflected in data available to investors. The results of our analysis are shown in Figure 1. It shows that the rate 

of delinquency for loans originated in 2006 is more than 50 percent higher than 

loans originated in 2003. The implication is that the quality of underwriting declined significantly during this period, and this decline was not reflected in the data 

provided to investors. As such it could reflect fraud, misrepresentations and lower 

standard for verifying borrower and collateral data. The net impact of this is that 

borrowers were granted credit at greater leverage and at lower cost than in prior 

years. 
53 

In concrete terms, the securitization market during 2005 and 2006 was pricing 

mortgage loans to an expected lifetime loss of about 5 percent. Our view is that even 

if home prices had remained stable, these losses would have been 10 percent or 

more. Given the structure of many of these loans, with a 2-year initial coupon and 

an expected payoff by the borrower at reset, the rate on the loans should have been 

200 or 300 basis points higher. That is, initial coupons should have been over 10 

percent rather than near 8 percent. 

Our analysis further indicates that this lower cost of credit inflated home prices. 

The combination of relaxed underwriting standards and affordability products, such 

as option-arms, effectively lowered the required payment on mortgages. The lower 

payment served to increase the price of homes that borrowers could afford. Figure 

2 shows the rapid rise in the perceived price that borrowers could afford in the Los 

Angeles area due to these reduced payment requirements. Actual home prices then 

followed this pattern. Generally we find that securitization of subprime loans and 

other affordability products such as option arms were more prevalent in the areas 

with high amounts of home price appreciation during 2003 to 2006. To be clear, not 

all of the affordability loans were driven by securitization, as many of the option 

arms remained on the balance sheet of lending institutions. 
54 

3See, http://www.ad-co.com/newsletters/2009/Jun2009/ValuationlJun09.pdf for more details. 

Figure 3 provides an indication of the magnitude of home price increases that 

may have resulted from these products on a national basis. Based on our home price 

model, we estimate that home prices may have risen by 15 percent at the national 

level due to lower effective interest rates. In the chart, the gap between the solid 

blue line and the dashed blue line reflects the impact of easy credit on home prices. 

On the flip side, we believe that the shutting down of these markets and the reduced availability of mortgage credit contributed to the sharp decline in home prices 

we have seen since 2006 as shown in Figure 4. Without an increase in effective 

mortgage rates, home prices might have sustained their inflated values as shown 

by the dashed blue line. 3

Thus the reduced focus on underwriting quality lead to an unsustainable level of 

excess leverage and reduced borrowing costs which helped to inflate home prices. 
55 

4 Adapted from ‘‘Six Degrees of Separation’’, August 2007, by Andrew Davidson http:// 

www.securitization.net/pdf/content/ADClSixDegreesl1Aug07.pdf. 

When these ‘‘affordability’’ products were no longer sustainable in the market, they 

contributed to the deflation of the housing bubble. 

The way securitization was implemented during this period fostered high home 

prices through poor underwriting, and the end of that era may have led to the sharp 

decline in home prices and the sharp decline in home prices helped to spread the 

financial crisis beyond the subprime market. 

The second way that securitization contributed to the current economic crisis is 

through the obfuscation of risk. For many structures in the securitization market: 

especially collateralized debt obligations, structured investment vehicles and other 

resecuritizations, there is and was insufficient information for investors to formulate 

an independent judgment of the risks and value of the investment. As markets 

began to decline in late 2007, investors in all of these instruments and investors 

in the institutions that held or issued these instruments were unable to assess the 

level of risk they bore. 

This lack of information quickly became a lack of confidence and led to a massive 

deleveraging of our financial system. This deleveraging further depressed the value 

of these complex securities and led to real declines in economic value as the economy entered a severe recession. In addition, regulators lacked the ability to assess 

the level of risk in regulated entities, perhaps delaying corrective action or other 

steps that could have reduced risk levels earlier. 

Limitations of Securitization Revealed 

To understand how the current market structure could lead to undisciplined lending and obfuscation of risk it is useful to look at a simplified schematic of the market. 4

In the simplest terms, what went wrong in the subprime mortgage in particular 

and the securitization market in general is that the people responsible for making 

loans had too little financial interest in the performance of those loans and the people with financial interest in the loans had too little involvement in the how the 

loans were made. 

The secondary market for nonagency mortgages, including subprime mortgages, 

has many participants and a great separation of the origination process from the 

investment process. Each participant has a specialized role. Specialization serves 

the market well, as it allows each function to be performed efficiently. Specialization, however also means that risk creation and risk taking are separated. 

In simplified form the process can be described as involving: 
56 

• A borrower—who wants a loan for home purchase or refinance 

• A broker—who works with the borrower and lenders to arrange a loan 

• A mortgage banker—who funds the loan and then sells the loan 

• An aggregator—(often a broker-dealer) who buys loans and then packages the 

loans into a securitization, whose bonds are sold to investors. 

• A CDO manager—who buys a portfolio of mortgage-backed securities and issues 

debt 

• An investor—who buys the CDO debt 

Two additional participants are also involved: 

• A servicer—who keeps the loan documents and collects the payments from the 

borrower 

• A rating agency—that places a rating on the mortgage securities and on the 

CDO debt 

This chart is obviously a simplification of a more complex process. For example, 

CDOs were not the only purchasers of risk in the subprime market. They were however a dominant player, with some estimating that they bought about 70 percent 

of the lower rated classes of subprime mortgage securitizations. What is clear even 

from this simplified process is that contact between the provider of risk capital and 

the borrower was very attenuated. 

A central problem with the securitization market, especially for subprime loans 

was that no one was the gate keeper, shutting the door on uneconomic loans. The 

ultimate CDO bond investor placed his trust in the first loss investor, the rating 

agencies, and the CDO manager, and in each case that trust was misplaced. 

Ideally mortgage transactions are generally structured so that someone close to 

the origination process would take the first slice of credit risk and thus insure that 

loans were originated properly. In the subprime market, however it was possible to 

originate loans and sell them at such a high price, that even if the mortgage banker 

or aggregator retained a first loss piece (or residual) the transaction could be profitable even if the loans did not perform well. Furthermore, the terms of the residuals 

were set so that the owner of the residual might receive a substantial portion of 

their cash flows before the full extent of losses were known. 

Rating agencies set criteria to establish credit enhancement levels that ultimately 

led to ratings on bonds. The rating agencies generally rely on historical statistical 

analysis to set ratings. The rating agencies also depend on numeric descriptions of 

loans like loan-to-value ratios and debt-to-income ratios to make their determinations. Rating agencies usually do not review loans files or ‘‘re-underwrite’’ loans. 

Rating agencies also do not share in the economic costs of loan defaults. The rating 

agencies methodology allowed for the inclusion of loans of dubious quality into 

subprime and Alt-A mortgage pools, including low documentation loans for borrowers with poor payment histories, without the offsetting requirement of high 

down payments. 

To help assure investors of the reliability of information about the risks of purchased loans, the mortgage market has developed the practice of requiring ‘‘representations and warranties’’ on purchased loans. These reps and warrants as they 

are called, are designed to insure that the loans sold meet the guidelines of the purchasers. This is because mortgage market participants have long recognized that 

there is substantial risk in acquiring loans originated by someone else. An essential 

component in having valuable reps and warrants is that the provider of those promises has sufficient capital to back up their obligations to repurchase loans subsequently determined to be inconsistent with the reps and warrants. A financial guarantee from an insolvent provider has no value. 

Representations and warranties are the glue that holds the process together; if 

the glue is weak the system can collapse. 

The rating agencies also established criteria for Collateralized Debt Obligations 

that allowed CDO managers to produce very highly leveraged portfolios of subprime 

mortgage securities. The basic mechanism for this was a model that predicted the 

performance of subprime mortgage pools were not likely to be highly correlated. 

That is defaults in one pool were not likely to occur at the same time as defaults 

in another pool. This assumption was at best optimistic and most likely just wrong. 

In the CDO market the rating agencies have a unique position. In most of their 

other ratings business, a company or a transaction exists or is likely to occur and 

the rating agency reviews that company or transaction and establishes ratings. In 

the CDO market, the criteria of the rating agency determine whether or not the 

transaction will occur. A CDO is like a financial institution. It buys assets and 

issues debt. If the rating agency establishes criteria that allow the institution to bor-
57 

row money at a low enough rate or at high enough leverage, then the CDO can purchase assets more competitively than other financial institutions. If the CDO has 

a higher cost of debt or lower leverage, then it will be at a disadvantage to other 

buyers and will not be brought into existence. If the CDO is created, the rating 

agency is compensated for its ratings. If the CDO is not created, there is no compensation. My view is that there are very few institutions that can remain objective 

given such a compensation scheme. 

CDO bond investors also relied upon the CDO manager to guide them in the dangerous waters of mortgage investing. Here again investors were not well served by 

the compensation scheme. In many cases CDO managers receive fees that are independent of the performance of the deals they manage. While CDO managers sometimes keep an equity interest in the transactions they manage, the deals are often 

structured in such a way that that the deal can return the initial equity investment 

even if some of the bonds have losses. Moreover, many of the CDOs were managed 

by start-up firms with little or no capital. 

Nevertheless, much of the responsibility should rest with the investors. CDO bond 

investors were not blind to the additional risks posed by CDO investing. CDOs generally provided higher yields than similarly rated bonds, and it is an extremely 

naive, and to my mind, rare, investor who thinks they get higher returns without 

incremental risk. It is not unusual, however, for investors not to realize the magnitude of additional risk they bear for a modest incremental return. Ultimately it 

is investors who will bear the losses, and investors must bear the bulk of the burden 

in evaluating their investments. There were clear warning signs for several years 

as to the problems and risk of investing in subprime mortgages. Nevertheless, investors continued to participate in this sector as the risks grew and reward decreased. 

As expressed herein, the primary problem facing securitization is a failure of industrial organization. The key risk allocators in the market, the CDO managers, 

were too far from the origination process and, at best, they believed the originators 

and the rating agencies were responsible for limiting risk. At the origination end, 

without the discipline of a skeptical buyer, abuses grew. The buyer was not sufficiently concerned with the process of loan origination and the broker was not subject 

to sufficient constraints. 

Current Conditions of the Mortgage-backed Securities Market 

More than 2 years after the announcement of the collapse of the Bear Stearns 

High Grade Structured Credit Enhanced Leverage Fund the mortgage market remains in a distressed state. Little of the mortgage market is functioning without 

the direct involvement of the U.S. Government, and access to financing for mortgage 

originators and investors is still limited. 

Fortunately there are the beginning signs of stabilization of home prices, but rising unemployment threatens the recovery. In the secondary market for mortgagebacked securities there has been considerable recovery in price in some sectors, but 

overall demand is being propped up by large purchases of MBS by the Federal Reserve Bank. 

In addition, we find that many of our clients are primarily focused on accounting 

and regulatory concerns related to legacy positions, and less effort is focused on the 

economic analysis of current and future opportunities. That situation may be changing as over the past few months we have seen some firms begin to focus on longer 

term goals. 

The Effectiveness of Government Action 

I have not performed an independent analysis of the effectiveness of Government 

actions, so by comments are limited to my impressions. 

Government involvement has been beneficial in a number of significant respects. 

Without Government involvement in Fannie Mae, Freddie Mac, and FHA lending 

programs, virtually all mortgage lending could have stalled. What lending would 

have existed would have been for only the absolute highest quality borrowers and 

at restrictive rates. In addition Government programs to provide liquidity have also 

been beneficial to the market as private lending was reduced to extremely low levels. Government and Federal Reserve purchases of MBS have kept mortgage rates 

low. This has probably helped to bolster home prices. 

On the other hand the start/stop nature of the buying programs under TARP and 

PPIP has probably been a net negative for the market. Market participants have 

held back on investments in anticipation of Government programs that either did 

not materialize or were substantially smaller in scope than expected. 

Furthermore Government efforts to influence loan modifications, while beneficial 

for some home owners, and possibly even investors, have created confusion and distrust. Investors are more reluctant to commit capital when the rules are uncertain. 
58 

5http://www.financialstability.gov/docs/regs/FinalReportlweb.pdf pp. 44–46. 

In my opinion there has been excessive focus on loan modifications as a solution to 

the current crisis. Loan modifications make sense for a certain portion of borrowers 

whose income has been temporarily disrupted or have sufficient income to support 

a modestly reduce loan amount and the willingness to make those payments. However for many borrowers, loan modifications cannot produce sustainable outcomes. 

In addition, loan modifications must deal with the complexities of multiple liens and 

complex ownership structures of mortgage loans. Short sales, short payoffs, and relocation assistance for borrowers are other alternatives that should be given greater 

weight in policy development. 

The extensive Government involvement in the mortgage market has likely produced significant positive benefits to the economy. However unwinding the Government role will be quite complex and could be disruptive to the recovery. Government 

programs need to be reduced and legislative and regulatory uncertainties need to 

be addressed to attract private capital back into these markets. 

Legislative and Regulatory Recommendations 

I believe that the problems in the securitization market were essentially due to 

a failure of industrial organization. Solutions should address these industrial organization failures. While some may seek to limit the risks in the economy, I believe 

a better solution is to make sure the risks are borne by parties who have the capacity to manage the risks or the capital to bear those risks. In practical terms, this 

means that ultimately bond investors, as the creators of leverage, must be responsible for limiting leverage to economically sustainable levels that do not create excessive risk to their stakeholders. Moreover, lenders should not allow equity investors to have tremendous upside with little exposure to downside risk. Equity investors who have sufficient capital at risk are more likely to act prudently. Consequently, all the information needed to assess and manage risks must be adequately disclosed and investors should have assurances that the information they 

rely upon is accurate and timely. Likewise when the Government acts as a guarantor, whether explicitly or implicitly, it must insure that it is not encouraging excessive risk taking and must have access to critical information on the risks borne 

by regulated entities. 

In this light, I would like to comment on the Administration proposals on 

Securitization in the white paper: ‘‘Financial Regulatory Reform: A New Foundation.’’ 5 Recommendations 1 and 2 cover similar ground: 

1. Federal banking agencies should promulgate regulations that require 

originators or sponsors to retain an economic interest in a material portion 

of the credit risk of securitized credit exposures. 

The Federal banking agencies should promulgate regulations that require 

loan originators or sponsors to retain 5 percent of the credit risk of 

securitized exposures. 

2. Regulators should promulgate additional regulations to align compensation of market participants with longer term performance of the underlying 

loans. 

Sponsors of securitizations should be required to provide assurances to investors, in the form of strong, standardized representations and warranties, 

regarding the risk associated with the origination and underwriting practices for the securitized loans underlying ABS. 

Clearly excessive leverage and lack of economic discipline was at the heart of the 

problems with securitization. As described above the market failed to adequately 

protect investors from weakened underwriting standards. Additional capital requirements certainly should be part of the solution. However, such requirements need to 

be constructed carefully. Too little capital and it will not have any effect; too much 

and it will inhibit lending and lead to higher mortgage costs. The current recommendation for retention of 5 percent of the credit risk does not seem to strike 

that balance appropriately. 

When a loan is originated there are several kinds of credit related risks that are 

created. In addition to systematic risks related to future events such as changes in 

home prices and idiosyncratic risks such as changes in the income of the borrower, 

there are also operational risks related to the quality of the underwriting and servicing. An example of an underwriting risk is whether or not the borrower’s income 

and current value of their home were verified appropriately. Originators are well 

positioned to reduce the operational risks associated with underwriting and fight 

fraud, but they may be less well positioned to bear the long term systematic and 
59 

6http://www.ad-co.com/newsletters/2008/Feb2008/CreditlFeb08.pdf and ‘‘Securitization: 

After the Fall’’, Anthony Sanders and Andrew Davidson, forthcoming. 7The IMF has produced a similar analysis and reached similar conclusions. http:// 

www.imf.org/external/pubs/ft/gfsr/2009/02/pdf/chap2.pdf. 

idiosyncratic risks associated with mortgage lending. Investors are well positioned 

to bear systemic risks and diversify idiosyncratic risks, but are not able to assess 

the risks of poor underwriting and servicing. The securitization process should ensure that there is sufficient motivation and capital for originators to manage and 

bear the risks of underwriting and sufficient information made available to investors to assess the risks they take on. 

The current form of representations and warranties is flawed in that it does not 

provide a direct obligation from the originator to the investor. Instead representations and warranties pass through a chain of ownership and are often limited by 

‘‘knowledge’’ and capital. In addition current remedies are tied to damages and in 

a rising home price market calculated damages may be limited. Thus a period of 

rising home prices can mask declining credit quality and rising violations of representations and warranties. 

Therefore, incentives and penalties should be established to limit unacceptable behavior such as fraud, misrepresentations, predatory lending. If the goal is to prevent 

fraud, abuse and misrepresentations rather than to limit risk transfer then there 

needs to be a better system to enforce the rights of borrowers and investors than 

simply requiring a originators to retain a set percentage of credit risk. 

I have proposed 6 a ‘‘securitization certificate’’ which would travel with the loan 

and would be accompanied by appropriate assurances of financial responsibility. The 

certificate would replace representations and warranties, which travel through the 

chain of buyers and sellers and are often unenforced or weakened by the successive 

loan transfers. The certificate could also serve to protect borrowers from fraudulent 

origination practices in the place of assignee liability. Furthermore the certificate 

should be structured so that there are penalties for violations regardless of whether 

or not the investor or the borrower has experienced financial loss. The record of violations of these origination responsibilities should publically available. 

I have constructed a simple model of monitoring fraudulent loans. 7 Some preliminary results are shown in Table 1. These simulations show the impact of increasing 

the required capital for a seller and of instituting a fine for fraudulent loans beyond 

the losses incurred. These results show that under the model assumptions, without 

a fine for fraud, sellers benefit from originating fraudulent loans. The best results 

are obtained when the seller faces fines for fraud and has sufficient capital to pay 

those fines. The table below shows the profitability of the seller and buyer for various levels of fraudulent loans. In the example below, the profits of the seller increase from .75 with no fraudulent loans to .77 with 10 percent fraudulent loans, 

even when the originator retains 5 percent capital against 5 percent of the credit 

risk. On the other hand, the sellers profit falls from .75 to .44 with 10 percent fraudulent loans even though the retained capital is only 1 percent, but there is a penalty 

for fraudulent loans. Thus the use of appropriate incentives can reduce capital costs, 

while increasing loan quality. 
60 

Under this analysis the Treasury proposals would not have a direct effect on 

fraud. In fact, there is substantial risk the recommended approach of requiring minimum capital requirements for originators to bear credit risk would lead to either 

higher mortgage rates or increased risk taking. A better solution is to create new 

mechanisms to monitor and enforce the representations and warranties of originators. With adequate disclosure of risks and a workable mechanism for enforcing 

quality controls the securitization market can more effectively price and manage 

risk. 

Recommendation 3 addresses the information available to investors: 

3. The SEC should continue its efforts to increase the transparency and 

standardization of securitization markets and be given clear authority to require robust reporting by issuers of asset backed securities (ABS). 

Increased transparency and standardization of securitization markets would likely 

to better functioning markets. In this area, Treasury charges the SEC and ‘‘industry’’ with these goals. I believe there needs to be consideration of a variety of institutional structures to achieve these goals. Standardization of the market can come 

from many sources. Possible candidates include the SEC, the American 

Securitization Forum, the Rating Agencies and the GSEs, Fannie Mae and Freddie 

Mac. 

I believe the best institutions to standardize a market are those which have an 

economic interest in standardization and disclosure. Of all of these entities the 

GSEs have the best record of standardizing the market; this was especially true before their retained portfolios grew to dominate their income. (As I will discuss below, 

reform of the GSEs is essential for restoring securitization.) I believe a revived 

Fannie Mae and Freddie Mac, limited primarily to securitization, structured as 

member-owned cooperatives, could be an important force for standardization and 

disclosure. 
61 

While the other candidates could achieve this goal they each face significant obstacles. 

The SEC operates primarily through regulation and therefore may not be able to 

adapt to changing markets. While the ASF has made substantial strides in this direction, the ASF lacks enforcement power for its recommendations and has conflicting constituencies. The rating agencies have not shown the will or the power to 

force standardization, and such a role may be incompatible with their stated independence. 

Recommendations 4 and 5 address the role of rating agencies in securitization. 

4. The SEC should continue its efforts to strengthen the regulation of credit 

rating agencies, including measures to require that firms have robust policies and procedures that manage and disclose conflicts of interest, differentiate between structured and other products, and otherwise promote the integrity of the ratings process. 

5. Regulators should reduce their use of credit ratings in regulations and 

supervisory practices, wherever possible. 

In general I believe that the conflicts of interest facing rating agencies and their 

rating criteria were well known and easily discovered prior to the financial crisis. 

Thus I do not believe that greater regulatory authority over rating agencies will 

offer substantial benefits. In fact, increasing competition in ratings or altering the 

compensation structure of rating agencies may not serve to increase the accuracy 

of ratings, since most users of ratings issuers as well as investors are generally motivated to seek higher ratings. (Only if the regulatory reliance on rating agencies 

is reduced will these structural changes be effective.) To the extent there is reliance 

on rating agencies in the determination of the capital requirement for financial institutions, a safety and soundness regulators for financial institutions, such the 

FFIEC or its successor, should have regulatory authority over the rating agencies. 

Rather than focus on better regulation, I support the second aspect of Treasury’s 

recommendations on rating agencies (recommendation 5) and believe it would be 

better for safety and soundness regulators to reduce their reliance on ratings and 

allow the rating agencies to continue their role of providing credit opinions that can 

be used to supplement credit analysis performed by investors. To reduce reliance on 

ratings, regulators, and others will need alternative measures of credit and other 

risks. I believe that the appropriate alternative to ratings is analytical measures of 

risk. Analytical measures can be adopted, refined, and reviewed by regulators. In 

addition regulators should insist that regulated entities have sufficient internal capacity to assess the credit and other risks of their investments. In this way regulators would have greater focus on model assumptions and model validation and reduced dependence on the judgment of rating agencies. The use of quantitative risk 

measures also requires that investors and regulators have access to sufficient information about investments to perform the necessary computations. Opaque investments that depend entirely upon rating agency opinions would be clearly identified. 

Quantitative measures can also be used to address the concerns raised in the report 

about concentrations of risk and differentiate structured products and direct corporate obligations. 

I recently filed a letter with the National Association of Insurance Commissioners 

on the American Council of Life Insurers’ proposal to use an expected loss measure 

as an alternative to ratings for nonagency MBS in determining risk based capital. 

Here I would like to present some of the key points in that letter: 

An analytical measure may be defined as a number, or a value, that is computed based on characteristics of a specific bond, its collateral and a variety 

of economic factors both historical and prospective. One such analytical 

measure is the probability of default and another measure is the expected 

loss of that bond. While an analytical measure is a numeric value that is 

the result of computations, it should be noted that there may still be some 

judgmental factors that go into its production. In contrast, a rating is a letter grade, or other scale, assigned to a bond by a rating agency. While ratings have various attributes, generally having both objective and subjective 

inputs, there is not a particular mathematical definition of a rating. 

Analytical measures may be useful for use by regulators because they have several characteristics not present in ratings. 

1. An analytical measure can be designed for a specific purpose. Specific analytical measures can be designed with particular policy or risk management goals 

in mind. Ratings may reflect a variety of considerations. For example, there 
62 

is some uncertainty as to whether ratings represent the first dollar of loss or 

the expected loss, or how expected loss is reflected in ratings. 

2. Analytical measures can be updated at any frequency. Ratings are updated 

only when the rating agencies believe there has been sufficient change to justify an upgrade, downgrade or watch. Analytical measures can be computed 

any time new information is available and will show the drift in credit quality 

even if a bond remains within the same rating range. 

3. Analytical measures can take into account price or other investor specific information. Ratings are computed for a bond and generally reflect the risk of nonpayment of contractual cash flows. However, the risk to a particular investor 

of owning a bond will at least partially depend on the price that the bond is 

carried in the portfolio or the composition of the portfolio. 

4. Regulators may contract directly with vendors to produce analytical results 

and may choose the timing of the calculations. On the other hand, ratings are 

generally purchased by the issuer at the time of issuance. Not only may this 

introduce conflicts of interest, but it also creates a greater focus on initial ratings than on surveillance and updating of ratings. In addition, once a regulator 

allows the use of a particular rating agency it has no further involvement in 

the ratings process. 

5. Analytical measures based on fundamental data may also be advantageous 

over purely market-based measures. As market conditions evolve values of 

bonds may change. These changes reflect economic fundamentals, but may also 

reflect supply/demand dynamics, liquidity and risk preferences. Measures fully 

dependent on market prices may create excessive volatility in regulatory measures, especially for companies with the ability to hold bonds to maturity. 

Even if regulators use analytical measures of risk, ratings from rating agencies 

as independent opinions would still be valuable to investors and regulators due to 

the multifaceted nature of ratings and rating agency analysis can be used to validate the approaches and assumptions used to compute particular analytical measures. 

Additional measures beyond the credit risk of individual securities such as stress 

tests, market value sensitivity and measures of illiquidity may also be appropriate 

in the regulatory structure. The use of analytical measures rather than ratings does 

not eliminate the potential for mistakes. In general, any rigid system can be gamed 

as financial innovation can often stay ahead of regulation. To reduce this problem 

regulation should be based on principles and evolve with the market. Regulators 

should always seek to build an a margin of safety as there is always a risk that 

the theory underlying the regulatory regime falls short and that some participants 

will find mechanisms to take advantage of the regulatory structure. 

Finally, as discussed by the Administration in the white paper, the future of 

securitization for mortgages requires the resolution of the status of Fannie/Freddie 

and role of FHA/GNMA. As stated above, I believe that continuation of Fannie Mae 

and Freddie Mac as member owned cooperatives would serve to establish standards, 

and provide a vehicle for the delivery of Government guarantees if so desired. The 

TBA, or to be announced, market has been an important component in the success 

of the fixed rate mortgage market in the United States. Careful consideration 

should be given to the desirability of fixed rate mortgages and the mechanisms for 

maintaining that market in discussions of the future of the GSEs. 

PREPARED STATEMENT OF J. CHRISTOPHER HOEFFEL 

EXECUTIVE COMMITTEE MEMBER, COMMERCIAL MORTGAGE SECURITIES ASSOCIATION

OCTOBER 7, 2009 

The Commercial Mortgage Securities Association (CMSA) is grateful to Chairman 

Reed, Ranking Member Bunning, and the Members of the Subcommittee for giving 

CMSA the opportunity to share its perspective concerning the securitized credit 

markets for commercial real estate. In responding to the specific questions the Subcommittee has asked witnesses to address, we will focus on securitization in the 

commercial real estate (CRE) mortgage context and address the following issues: (1) 

the challenges facing the $3.5 trillion market for commercial real estate finance; (2) 

the unique structure of the commercial market and the need to customize regulatory 

reforms accordingly to support, and not undermine, our Nation’s economic recovery; 

and, (3) efforts to restore the availability of credit by promoting and enhancing the 

viability of commercial mortgage-backed securities (CMBS). 
63 

CMSA and the Current State of the Market 

CMSA represents the full range of CMBS market participants, including investment and commercial banks; rating agencies; accounting firms, servicers; other service providers; and investors such as insurance companies, pension funds, and money 

managers. CMSA is a leader in the development of standardized practices and in 

ensuring transparency in the commercial real estate capital market finance industry. 

Because our membership consists of all constituencies across the entire market, 

CMSA has been able to develop comprehensive responses to policy questions to promote increased market efficiency and investor confidence. For example, our members continue to work closely with policymakers in Congress, the Administration, 

and financial regulators, providing practical advice on measures designed to restore 

liquidity and facilitate lending in the commercial mortgage market (such as the 

Term Asset-Backed Securities Loan Facility (TALF) and the Public–Private Investment Program (PPIP)). CMSA also actively participates in the public policy debates 

that impact the commercial real estate capital markets. 

The CMBS market is a responsible and key contributor to the overall economy 

that historically has provided a tremendous source of capital and liquidity to meet 

the needs of commercial real estate borrowers. CMBS helps support the commercial 

real estate markets that fuel our country’s economic growth. The loans that are financed through those markets help provide jobs and services to local communities, 

as well as housing for millions of Americans in multifamily dwellings. 

Unfortunately, the recent turmoil in the financial markets coupled with the overall downturn in the U.S. economy have brought the CMBS market to a standstill 

and created many pressing challenges, specifically: 

• No liquidity or lending—While the CMBS market provided approximately $240 

billion in commercial real estate financing in 2007 (nearly 50 percent of all commercial lending), CMBS issuance fell to $12 billion in 2008, despite strong credit performance and high borrower demand. There has been no new private label 

CMBS issuance year-to-date in 2009, as the lending markets remain frozen; 

• Significant loan maturities through 2010—At the same time, there are significant commercial real estate loan maturities this year and next—amounting to 

hundreds of billions of dollars—but the capital necessary to refinance these 

loans remains largely unavailable and loan extensions are difficult to achieve; 

and 

• The U.S. economic downturn persists—The U.S. recession continues to negatively affect both consumer and business confidence, which impacts commercial 

and multifamily occupancy rates and rental income, as well as business performance and property values. 

Significantly, it is important to note that the difficulties faced by the overall CRE 

market are not attributable solely to the current trouble in the CMBS market, but 

also stem from problems with unsecured CRE debt, such as construction loans. As 

described by Richard Parkus, an independent research analyst with Deutsche Bank 

who has testified before both the Joint Economic Committee and the TARP Oversight Panel, while the overall CRE market will experience serious strain (driven by 

poor consumer confidence and business performance, high unemployment and property depreciation), it is the nonsecuritized debt on the books of small and regional 

banks that will be most problematic, as the projected default rates for such 

unsecuritized commercial debt have been, and are expected to continue to be, significantly higher than CMBS loan default rates. 

As recently as early this year, default rates in the CMBS market, which have historically been low (less than .50 percent for several years) still hovered around a 

mere 1.25 percent. Unfortunately, the economic recession that began as a crisis of 

liquidity in some sectors transformed into a crisis in confidence that affected all sectors, and it was only a matter of time before CMBS was affected. No matter the 

strength of our fundamentals and loan performance, once investors lost confidence 

and began to shy away from mortgaged-backed securities, CMBS could not avoid the 

contagion. 

This unfortunate combination of circumstances leaves the broader CRE sector and 

the CMBS market with several overarching problems: (1) a liquidity gap, i.e., the 

difference between borrowers’ demand for credit and the nearly nonexistent supply 

of credit; (2) an equity gap (the difference between the current market value of commercial properties and what is owed on them, which will be extremely difficult to 

refinance as current loans mature); and (3) the fact that potential CMBS sponsors 

are very reluctant to take the risk of trying to aggregate loans for securitization, 
64 

since there is no assurance that private sector investors will buy the securities, all 

of which serves to simply perpetuate the cycle of frozen credit markets. 

Unique Characteristics of the CMBS Market 

There are a number of important distinctions between CMBS and other assetbacked securities (ABS) markets, and those distinctions should be considered in 

fashioning any broad securitization-related regulatory reforms. These differences relate not only to the structure of securities, but also to the underlying collateral, the 

type and sophistication of the borrowers, as well as to the level of transparency in 

CMBS deals. 

Commercial Borrowers 

Commercial borrowers are highly sophisticated businesses with cash flows based 

on business operations and/or tenants under leases. This characteristic stands in 

stark contrast to the residential market where, for example, loans were underwritten in the subprime category for borrowers who may not have been able to document their income, or who may not have understood the effects of factors like floating interest rates and balloon payments on their mortgage’s affordability. 

Additionally, securitized commercial mortgages have different terms (generally 5– 

10 year ‘‘balloon’’ loans), and they are, in the vast majority of cases, nonrecourse 

loans. This means that if the borrower defaults, the lender can seize the collateral, 

although it may not pursue a claim against the borrower for any deficiency in recovery. This dramatically decreases the cost of default because the loan work-out recoveries in the CMBS context tend to be significantly more efficient than, for example, 

the residential loan foreclosure process. 

Structure of CMBS 

There are multiple levels of review and diligence concerning the collateral underlying CMBS, which help ensure that investors have a well informed, thorough understanding of the risks involved. Specifically, in-depth property-level disclosure and 

review are done by credit rating agencies as part of the process of rating CMBS 

bonds. 

Moreover, nonstatistical analysis is performed on CMBS pools. This review is possible given that there are only 100–300 commercial loans in a pool that support a 

bond, as opposed, for example, to tens of thousands of loans in residential mortgagebacked securities pools. This limited number of loans allows market participants (investors, rating agencies, etc.) to gather detailed information about income producing 

properties and the integrity of their cash flows, the credit quality of tenants, and 

the experience and integrity of the borrower and its sponsors, and thus conduct 

independent and extensive due diligence on the underlying collateral supporting 

their CMBS investments. 

First-Loss Investor (‘‘B-Piece Buyer’’) Re-Underwrites Risk 

CMBS bond issuances include a first-loss, noninvestment grade bond component. 

The third-party investors that purchase these lowest-rated securities (referred to as 

‘‘B-piece’’ or ‘‘first-loss’’ investors) conduct their own extensive due diligence (usually 

including, for example, site visits to every property that collateralizes a loan in the 

loan pool) and essentially re-underwrite all of the loans in the proposed pool. Because of this, the B-piece buyers often negotiate the removal of any loans they consider to be unsatisfactory from a credit perspective, and specifically negotiate with 

bond sponsors or originators to purchase this noninvestment-grade risk component 

of the bond offering. This third-party investor due diligence and negotiation occurs 

on every deal before the investment-grade bonds are issued. 

Greater Transparency 

A wealth of transparency currently is provided to CMBS market participants via 

the CMSA Investor Reporting Package® (CMSA IRP®). The CMSA IRP provides access to loan, property and bond-level information at issuance and while securities 

are outstanding, including updated bond balances, amount of interest and principal 

received, and bond ratings, as well as loan-level and property-level information on 

an ongoing basis. The ‘‘CMSA IRP’’ has been so successful in the commercial space 

that it is now serving as a model for the residential mortgage-backed securities market. 

Current Efforts To Restore Liquidity 

Private investors are absolutely critical to restoring credit availability in the capital finance markets. Accordingly, Government initiatives and reforms must work to 

encourage private investors—who bring their own capital to the table—to come back 

to the capital markets. 
65 

1 International Monetary Fund, ‘‘Restarting Securitization Markets: Policy Proposals and Pitfalls’’, Ch. 2, Global Financial Stability Report: Navigating the Financial Challenges Ahead (October 2009), at 33 (‘‘Conclusions and Policy Recommendations’’ section) available at http:// 

www.imf.org/external/pubs/ft/gfsr/2009/02/pdf/text.pdf. 

Treasury Secretary Geithner emphasized this need when he stressed during the 

introduction of the Administration’s Financial Stability Plan that ‘‘[b]ecause this 

vital source of lending has frozen up, no financial recovery plan will be successful 

unless it helps restart securitization markets for sound loans made to consumers 

and businesses—large and small.’’ The importance of restoring the securitization 

markets is recognized globally as well, with the International Monetary Fund noting 

in its most recent Global Financial Stability Report that ‘‘restarting private-label 

securitization markets, especially in the United States, is critical to limiting the fallout from the credit crisis and to the withdrawal of central bank and Government 

interventions.’’ 1

As a centerpiece of the Financial Stability Plan, policymakers hope to restart the 

CMBS and other securitization markets through innovative initiatives (such TALF 

and the PPIP), and CMSA welcomes efforts to utilize private investors to help fuel 

private lending. In this regard, the TALF program for new CMBS issuance has been 

particularly helpful in our space, as evidenced in triple-A CMBS cash spreads tightening almost immediately after the program was announced, as one example. 

To this end, CMSA continues to engage in an ongoing dialogue with many members of the relevant Congressional committees, as well as with key policymakers at 

the Treasury Department, Federal Reserve and other agencies, and with participants in various sectors of the commercial real estate market. The focus of our efforts has been on creative solutions to help bring liquidity back to the commercial 

real estate finance markets. We appreciate policymakers’ recognition, as evidenced 

by programs like TALF and PPIP, that a major part of the solution will be to bring 

private investors back to the market through securitization. We also appreciate the 

willingness of Congress and other policymakers to listen to our recommendations on 

how to make these programs as effective as possible. 

However, there is still a long way to go toward recovery in the CRE market, despite the early success of the TALF program. The market faces the overarching 

problems of the liquidity and equity gaps. This is driven in part by the absence of 

any aggregation mechanism—securitizers are unwilling to bear all of the noncredit 

risks (like interest rate changes) they must currently take on between the time a 

loan is made and when it can be securitized (a process that takes months across 

a pool of loans). This is especially true now when there still is uncertainty as to 

whether there will be willing investors at the end of the process. 

CMSA also is committed to working on additional long-term solutions to ensure 

the market is able to meet ongoing commercial borrowing demands. For example, 

CMSA supports efforts to facilitate a U.S. commercial covered bond market in order 

to provide an additional source of liquidity through new and diverse funding 

sources. We will continue to work with Congress on the introduction of comprehensive legislation that would include high quality commercial mortgage loans and 

CMBS as eligible collateral in the emerging covered bond marketplace. 

Financial Regulatory Reform and Commercial Real Estate 

The Administration has proposed new and unprecedented financial regulatory reform proposals that will change the nature of the securitized credit markets which 

are at the heart of recovery efforts. The securitization reform proposals appear to 

be prompted by some of the practices that were typical in the subprime and residential securitization markets. At the outset, we must note that CMSA does not oppose 

efforts to address such issues, as we have long been an advocate within the industry 

for enhanced transparency and sound practices. 

As a general matter, however, policymakers must ensure that any regulatory reforms are tailored to address the specific needs of each securitization asset class. 

As discussed above, the structure of the CMBS market has incorporated safeguards 

that minimize the risky securitization practices that policymakers hope to address. 

Thus, the securitization reform initiatives should be tailored to take these differences into account. In doing so, policymakers can protect the viability of the markets that already are functioning in a way that does not pose a threat to overall 

economic stability, and ensure that such markets can continue to be a vital component of the economic recovery solution. 

CMSA and its members are concerned that certain aspects of the Administration’s 

securitization reform proposals could undermine rather than support the Administration’s many innovative efforts to restart the securitization markets, effectively 

stalling recovery efforts by making lenders less willing or able to extend loans and 
66 

investors less willing or able to buy CMBS bonds—two critical components to the 

flow of credit in the commercial market. 

The two aspects of the securitization reform proposal that are of utmost concern 

to CMSA are a plan to require bond issuers or underwriters (referred to as 

‘‘securitizers’’ in the Administration’s draft securitization reform bill) to retain at 

least 5 percent of the credit risk in any securitized asset they sell, and an associated 

restriction on the ability of issuers to hedge the 5 percent retained risk. Again, 

CMSA does not oppose these measures per se, but emphasizes that they should be 

tailored to reflect key differences between the different asset-backed securities markets. 

Significantly, we are not alone in advocating a tailored approach. The IMF, which 

recently expressed concern that U.S. and European retained risk proposals may be 

too simplistic, warned that ‘‘[p]roposals for retention requirements should not be imposed uniformly across the board, but tailored to the type of securitization and underlying assets to ensure that those forms of securitization that already benefit from 

skin in the game and operate well are not weakened. The effects induced by interaction with other regulations will require careful consideration.’’ 

Five Percent Risk Retention for Securitizers 

The retention of risk is an important component regardless of who ultimately retains it: the originator, the issuer, or the first-loss buyer. As explained above, the 

CMBS structure has always had a third-party in the first-loss position that specifically negotiates to purchase this risk. Most significantly, these third-party investors 

are able to, and do, protect their own interests in the long-term performance of the 

bonds rather than relying merely on the underwriting and representations of 

securitizers or originators. First-loss buyers conduct their own extensive credit analysis on the loans, examining detailed information concerning every property—before 

buying the highest risk bonds in a CMBS securitization. In many cases, the holder 

of the first-loss bonds is also related to the special servicer who is responsible on 

behalf of all bondholders as a collective group for managing and resolving defaulted 

loans through workouts or foreclosure. 

Thus, the policy rationale for imposing a risk retention requirement on issuers or 

underwriters as ‘‘securitizers’’ that could preclude them from transferring the firstloss position to third parties is unnecessary in this context, because, although the 

risk is transferred, it is transferred to a party that is acting as a ‘‘securitizer’’ and 

that is fully cognizant, through its own diligence, of the scope and magnitude of the 

risk it is taking on. In effect, when it comes to risk, the first-loss buyer is aware 

of everything the issuer or underwriter is aware of. 

Because the CMBS market is structured differently than other securitization markets, policymakers’ focus in this market should be on the proper transfer of risk 

(e.g., sufficient collateral disclosure, adequate due diligence and/or risk assessment 

procedures on the part of the risk purchaser), analogous to what takes place in 

CMBS transactions. Therefore, CMBS securitizers should be permitted to transfer 

risk to B-piece buyers who—in the CMBS context at least—act as ‘‘securitizers.’’ To 

require otherwise would hamper the ability of CMBS lenders to originate new bond 

issuances, by needlessly tying up their capital and resources in the retained risk, 

which in turn, would squelch the flow of credit at a time when our economy desperately needs it. 

CMSA therefore suggests that securitization legislation include a broader definition of ‘‘securitizer’’ than is presently in the Administration’s draft bill, to include 

third parties akin to the CMBS first-loss investors. Such an approach will provide 

explicit recognition of the ability to transfer retained risk to third parties under circumstances in which the third party agrees to retain the risk and is capable of adequately protecting its own interests. 

Prohibition on Hedging of Retained Risk 

In conjunction with the retained risk requirement, there also is a proposal to prohibit ‘‘securitizers’’ from hedging that risk. Rather than adopting an outright ban 

on hedging the retained risk, however, the measure needs to be designed to strike 

a balance between fulfilling the legislation’s objective of ensuring that securitizers 

maintain an appropriate stake in the risks they underwrite. Such tailoring is necessary to avoid imposing undue constraints on ‘‘protective’’ mechanisms that are legitimately used by securitizers to maintain their financial stability. 

Several risks inherent in any mortgage or security exposure arise not from imprudent loan origination and underwriting practices, but from outside factors such as 

changes in interest rates, a sharp downturn in economic activity, or regional/geographic events such as a terrorist attack or weather-related disaster. Securitizers 

attempt to hedge against these market-oriented factors in keeping with current safe-
67 

2More specifically, these two standards provide accounting guidance on when a sale of a financial instrument has occurred and how to account for the sale, and guidance on when a securities issuer, B-piece buyer or servicer needs to consolidate the securities and liabilities on its 

balance sheet. The current rules facilitate securitization by allowing issuers to receive ‘‘sales 

treatment’’ for the assets they securitize, such that these assets are reflected on the balance 

sheet of the investors that purchase the bonds, rather than the issuers’ balance sheet. Moreover, 

under present rules, investors reflect only the fraction of the securitization deal that they actually own on their balance sheet. 

ty and soundness practices, and some examples in this category of hedges are interest rate hedges using Treasury securities, relative spread hedges (using generic interest-rate swaps), and macroeconomic hedges (that, for example, are correlated 

with changes in GDP or other macroeconomic factors). The hallmark of this category 

is that these hedges seek protection from factors the securitizer does not control, 

and the hedging has neither the purpose nor the effect of shielding the originators 

or sponsors from credit exposures on individual loans. 

As such, hedges relate to generally uncontrollable market forces that cannot be 

controlled independently. There is no way to ensure that any such hedge protects 

100 percent of an investment from loss—particularly as it pertains to a CMBS 

transaction that, for example, is secured by a diverse pool of loans with exposure 

to different geographic locations, industries and property types. Therefore, loan 

securitizers that must satisfy a retention requirement continue to carry significant 

credit risk exposure that reinforces the economic tie between the securitizer and the 

issued CMBS even in the absence of any hedging constraints. 

For these reasons, securitization reform legislation should not seek to prohibit 

securitizers from using market-oriented hedging vehicles. Instead, if a limitation is 

to be placed on the ability to hedge, it should be targeted to prohibit hedging any 

individual credit risks within the pool of risks underlying the securitization. Because these types of vehicles effectively allow the originator or issuer to completely 

shift the risk of default with respect to a particular loan or security, their use could 

provide a disincentive to engage in prudent underwriting practices—the specific 

type of disincentive policymakers want to address. 

Retroactive Changes to Securitization Accounting 

Beyond the specific securitization reform proposals that have been circulated by 

the Administration in draft legislation, there are two other policy initiatives that 

greatly concern CMSA because of the adverse effect these initiatives can have on 

the securitization market: retroactive changes to the rules for securitization accounting, and differentiated credit rating symbols for structured finance products. 

Retroactive changes to securitization accounting rules known as FAS 166 and 167, 

which were recently adopted by the Financial Accounting Standards Board (FASB), 

throw into question the future of securitized credit markets. 2 The new rules eliminate Qualified Special Purposes Entities (QSPEs), which are the primary 

securitization accounting vehicle for all asset-backed securities including CMBS, as 

well as change the criteria for the sales treatment and consolidation of financial assets. These accounting standards are important to issuers and investors, and for the 

liquidity of capital markets as a whole, because they free up balance sheet capacity 

to enable issuers to make more loans and do more securitizations, and they enable 

investors to invest more of their capital into the market. Under the new rules, however, issuers may not receive sales accounting treatment, while investors may be 

forced to consolidate an entire pool of loans on their balance sheet, despite owning 

only a small fraction of the loans pool. 

The implementation date of FAS 166 and 167 is January 1, 2010, and it will be 

applied retroactively. The elimination of QSPEs therefore will impact trillions of dollars of outstanding asset-backed securities, including investors in these assets. 

These significant and retroactive changes will pose a serious threat to unlocking the 

frozen credit markets and another impediment to the Administration’s wide-ranging 

efforts to restart the securitized credit markets. CMSA and a diverse coalition of 15 

trade groups have raised concerns about the timing and scope of FAS 166 and 167 

given the impact these rule changes could have on credit availability. These concerns have been echoed by the Federal Reserve and other banking regulators, which 

wrote to FASB in December 2008 to highlight the adverse impact these rule changes 

could have on the credit markets. 

More recently, Federal Reserve Board Member Elizabeth Duke capsulized the concerns shared by the industry when she cautioned that: 

[i]f the risk retention requirements, combined with accounting standards 

governing the treatment of off-balance-sheet entities, make it impossible for 

firms to reduce the balance sheet through securitization and if, at the same 
68 

3 ‘‘Regulatory Perspectives on the Changing Accounting Landscape’’, Speech by Governor Elizabeth A. Duke at the AICPA National Conference on Banks and Savings Institutions, Washington, DC, September 14, 2009, available at http://www.federalreserve.gov/newsevents/speech/ 

duke20090914a.htm. 4 In early 2008, the CRAs sought feedback on various differentiation proposals, which elicited 

overwhelming opposition from investors. For example, see the results of Moody’s Request for 

Comment: ‘‘Should Moody’s Consider Differentiating Structured Finance and Corporate Ratings?’’ (May 2008). Moody’s received more than 200 responses, including ones from investors 

that together held in excess of $9 trillion in fixed income securities. 

time, leverage ratios limit balance sheet growth, we could be faced with 

substantially less credit availability. I’m not arguing with the accounting 

standards or the regulatory direction. I am just saying they must be coordinated to avoid potentially limiting the free flow of credit . . . . As policymakers and others work to create a new framework for securitization, we 

need to be mindful of falling into the trap of letting either the accounting 

or regulatory capital drive us to the wrong model. This may mean we have 

to revisit the accounting or regulatory capital in order to achieve our objectives for a viable securitization market. 3

Policymakers and standard setters, including FASB and the SEC, need to proceed 

cautiously and deliberately in this regard, so that accounting rule changes do not 

hamper the recovery of the securitization markets. 

Credit Rating Agency Reform 

One aspect of the reforms currently being considered for credit rating agencies is 

a previously rejected proposal to require credit ratings to be differentiated for certain types of structured financial products (requiring the use of ‘‘symbology,’’ such 

as ‘‘AAA.SF’’). Generally speaking, ‘‘differentiation’’ is an overly simplistic and broad 

proposal that provides little value or information about credit ratings. Thus, CMSA’s 

members, and specifically the investors the symbology is geared to inform, continue 

to have serious concerns about differentiation, although we are strong supporters of 

more effective means of strengthening the credit ratings system in order to provide 

investors with the information they need to make sound investment decisions. 

In fact, a broad coalition of market participants—including issuers, investors, and 

borrowers seeking access to credit—remain overwhelming opposed to differentiation 

because it will serve only to increase confusion and implementation costs, while decreasing confidence and certainty regarding ratings. Such effects would, in turn, create market volatility and undermine investor confidence and liquidity, which could 

exacerbate the current constraints on borrowers’ access to capital, at a time when 

other policymakers are employing every reasonable means to get credit flowing 

again. 

In this regard, it is worth noting that the concept of differentiation has been examined extensively and rejected in recent years by the House Committee on Financial Services, as well as by the SEC and the ratings agencies themselves, 4 for most 

(if not all) of the foregoing reasons. Nothing has changed in the interim. 

Accordingly, Congress should not include a differentiation requirement as part of 

any credit rating agency reform bill, but instead should include language consistent 

with that already passed last year by the House Committee on Financial Services 

in the Municipal Bond Fairness Act. That legislation would require CRAs to use ratings symbols that are consistent for all types of securities, recognizing the fact that 

a single and consistent ratings structure is critical to bond investors who want the 

ability to compare a multitude of investment options across asset classes. Ultimately, investors (who are critical to the Nation’s economic recovery) expect and demand a common rating structure to provide a meaningful foundation for our markets and ratings system. Such consistency will promote certainty and confidence 

among investors and all market participants. 

In terms of credit ratings performance CMSA devoted significant resources over 

the last few years to affirmatively enhance transparency in credit ratings. Such enhancements will be far more effective in providing investors with the information 

they need to make the most informed decisions than a differentiated ratings structure. Instead of differentiated ratings, what CMBS investors have consistently 

sought is new, targeted transparency and disclosures about the ratings of structured 

products, to build on the already robust information CRAs provide in their published methodology, presale reports, and surveillance press releases. 

In comments filed with the SEC in July 2008, CMSA listed a number of recommendations for enhancements that would serve the investor community, such as 

publication of more specific information regarding NRSRO policies and procedures 

related to CMBS valuations; adoption of a standard presale report template with 
69 

1Fidelity Investments is one of the world’s largest providers of financial services, with assets under Administration of $3.0 trillion, including assets under management of more than $1.4 trillion as of August 31, 2009. Fidelity offers investment management, retirement planning, brokerage, and human resources and benefits outsourcing services to over 20 million individuals and 

institutions as well as through 5,000 financial intermediary firms. The firm is the largest mutual fund company in the United States, the number one provider of workplace retirement savings plans, the largest mutual fund supermarket and a leading online brokerage firm. For more 

information about Fidelity Investments, visit Fidelity.com. 

specified information regarding methodology and underwriting assumptions; and 

adoption of a standard surveillance press release with specified information regarding the ratings. Such information would allow investors to better understand the 

rating methodology and make their own investment determinations. 

Fundamentally, CMSA believes that one of the keys to long term viability is market transparency. As previously mentioned transparency is one of the hallmarks of 

our market, as exemplified by the unqualified success of our Investor Reporting 

Package. As we endeavor to continually update our reporting package and provide 

additional standardized information to market participants, one of our most important proactive initiatives is the ongoing process of creating model offering documents and providing additional disclosure fields with regard to additional subordinate debt that may exist outside the CMBS trust. To this end, CMSA is working 

with the Federal Reserve Board to ensure the expanded disclosure meets their information needs under TALF. 

Conclusion 

There are enormous challenges facing the commercial real estate sector. While 

regulatory reforms are important and warranted, these proposals should not detract 

from or undermine efforts to get credit flowing, which is critical to economic recovery. Moreover, any policies that make debt or equity interests in commercial real 

estate less liquid will have a further negative effect on property values and the cost 

of capital. Accordingly, we urge Congress to ensure that regulatory reform measures 

are tailored to account for key differences in the various securitization markets. 

PREPARED STATEMENT OF WILLIAM W. IRVING 

PORTFOLIO MANAGER, FIDELITY INVESTMENTS

OCTOBER 7, 2009 

Good afternoon Chairman Reed, Ranking Member Bunning, and Members of the 

Subcommittee. I am Bill Irving, an employee of Fidelity Investments, 1 where I manage a number of fixed-income portfolios and play a leading role in our investment 

process in residential mortgage-backed securities (RMBS). This experience has certainly shaped my perspective on the role of securitization in the financial crisis, the 

condition of the securitization markets today, and policy changes needed going forward. I thank you for the opportunity to share that perspective with you in this 

hearing. At the outset, I want to emphasize that the views I will be expressing are 

my own, and do not necessarily represent the views of my employer, Fidelity Investments. 

Summary 

I will make three main points. First, the securitized markets provide an important mechanism for bringing together investors and borrowers to provide credit to 

the American people for the financing of residential property, automobiles, and retail purchases. Securitization also provides a major source of funding for American 

businesses for commercial property, agricultural equipment, and small-business investment. My second point is that the rapid growth of the markets led to some poor 

securitization practices. For example, loan underwriting standards got too loose as 

the interests of issuers and investors became misaligned. Furthermore, liquidity was 

hindered by a proliferation of securities that were excessively complex and customized. My third and final point is that in spite of these demonstrated problems, 

the concept of asset securitization is not inherently flawed; with proper reforms to 

prevent weak practices, we can harness the full potential of the securitization markets to benefit the U.S. economy. 

Brief Review of the Financial Crisis 

To set context, I will begin with a brief review of the financial crisis. This view 

is necessarily retrospective; I do not mean to imply that investors, financial institutions or regulators understood all these dynamics at the time. In the middle of 2007, 

the end of the U.S. housing boom revealed serious deficiencies in the underwriting 
70 

2 At Fidelity, we consider the opinions of the rating agencies, but we also do independent credit research on each issuer or security we purchase. 3Source: SNL Financial, and company financials. 

4 Elul, Ronel, ‘‘Working Paper No. 09-21 Securitization and Mortgage Default: Reputation vs. 

Adverse Selection’’, Federal Reserve Bank of Philadelphia. September 22, 2009. 

of many recently originated mortgages, including subprime loans, limited-documentation loans, and loans with exotic features like negative amortization. Many of 

these loans had been packaged into complex and opaque mortgage-backed securities 

(MBS) that were distributed around the world to investors, some of whom relied 

heavily on the opinion of the rating agencies and did not sufficiently appreciate the 

risks to which they were exposed. 2

The problems of poorly understood risks in these complex securities were amplified by the leverage in the financial system. For example, in 2007, large U.S. investment banks had about $16 of net assets for each dollar of capital. 3 Thus, a seemingly innocuous hiccup in the mortgage market in August 2007 had ripple effects 

that quickly led to a radical reassessment of what is an acceptable amount of leverage. What investors once deemed safe levels of capital and liquidity were suddenly 

considered far too thin. As a result, assets had to be sold to reduce leverage. This 

selling shrank the supply of new credit and raised borrowing costs. In fact, the selling of complex securities was more than the market could bear, resulting in joint 

problems of liquidity and solvency. Suddenly, a problem that had started on Wall 

Street spread to Main Street. Companies that were shut off from credit had to cancel investments, lay off employees and/or hoard cash. Many individuals who were 

delinquent on their mortgage could no longer sell their property at a gain or refinance; instead, they had to seek loan modifications or default. 

This de-leveraging process created a vicious cycle. Inability to borrow created 

more defaults, which led to lower asset values, which caused more insolvency, which 

caused more de-leveraging, and so forth. Home foreclosures and credit-card delinquencies rose, and job layoffs increased, helping to create the worst recession since 

the Great Depression. 

Role Played by Asset Securitization in the Crisis 

Without a doubt, securitization played a role in this crisis. Most importantly, the 

‘‘originate-to-distribute’’ model of credit provision seemed to spiral out of control. 

Under this model, intermediaries found a way to lend money profitably without worrying if the loans were paid back. The loan originator, the warehouse facilitator, the 

security designer, the credit rater, and the marketing and product-placement professionals all received a fee for their part in helping to create and distribute the securities. These fees were generally linked to the size of the transaction and most of 

them were paid up front. So long as there were willing buyers, this situation created 

enormous incentive to originate mortgage loans solely for the purpose of realizing 

that up-front intermediation profit. 

Common sense would suggest that securitized assets will perform better when 

originators, such as mortgage brokers and bankers, have an incentive to undertake 

careful underwriting. A recent study by the Federal Reserve Bank of Philadelphia 

supports this conjecture. 4 The study found evidence that for prime mortgages, private-label securitized loans have worse credit performance than loans retained in 

bank portfolios. Specifically, the study found that for loans originated in 2006, the 

2-year default rate on the securitized loans was on average 15 percent higher than 

on loans retained in bank portfolios. This observation does not necessarily mean 

that issuers should be required to retain a portion of their securities, but in some 

fashion, the interests of the issuers and the investors have to be kept aligned. 

Flawed security design also played a role in the crisis. In its simplest form, 

securitization involves two basic steps. First, many individual loans are bundled together into a reference pool. Second, the pool is cut up into a collection of securities, 

each having a distinct bundle of risks, including interest-rate risk, prepayment risk, 

and credit risk. For example, in a simple sequential structure, the most senior bond 

receives all available principal payments until it is retired; only then does the second most senior bond begin to receive principal; and so on. In the early days of 

securitization, the process was kept simple, and there were fewer problems. But 

over time, cash-flow rules grew increasingly complex and additional structuring was 

employed. For example, the securities from many simple structures were rebundled 

into a new reference pool, which could then be cut into a new set of securities. In 

theory, there is no limit to the amount of customization that is possible. The result 

was excessive complexity and customization. The complexity increased the challenge 

of determining relative value among securities, and the nonuniformity hurt liquidity 

when the financial system was stressed. 
71 

5Source: Federal Reserve, www.federalreserve.gov/releases/g19/current/g19.htm. 6Source: Federal Reserve, www.federalreserve.gov/releases/g19/current/g19.htm. 7Source: Bloomberg. 

8Federal Reserve, www.federalreserve.gov/releases/g19/hist/cclhistltc.html. 

One example of poor RMBS design is the proliferation of securities with complex 

rules on the allocation of principal between the senior and subordinate bonds. Such 

rules can lead to counter-intuitive outcomes in which senior bonds take write-downs 

while certain subordinate bonds are paid off in full. A second example of poor design 

is borrower ability to take out a second-lien mortgage without notifying the firstlien holder. This ability leads to a variety of thorny issues, one of which is simply 

the credit analysis of the borrower. If a corporation levered further, the senior unsecured debt holder would surely be notified, but that is not so in RMBS. 

Other Factors Contributing to the Crisis 

Securitization of assets played a role in the crisis, but there were several additional drivers. Low interest rates and a bubble mentality in the real estate market 

also contributed to the problem. Furthermore, in the case of securitized assets, there 

were plenty of willing buyers, many of them highly levered. In hindsight, this high 

demand put investors in the position of competing with each other, making it difficult for any of them to demand better underwriting, more disclosure, simpler product structures, or other favorable terms. Under-estimation of risk is always a possibility in capital markets, as the history of the stock market amply demonstrates. 

That possibility does not mean that capital markets, or asset securitization, should 

be discarded. 

Benefits of Asset Securitization 

When executed properly, there are many potential benefits of allowing financial 

intermediaries to sell the loans they originate into the broader capital markets via 

the securitization process. For one, this process provides loan originators much 

wider sources of funding than they could obtain through conventional sources like 

retail deposits. For example, I manage the Fidelity Ginnie Mae Fund, which has 

doubled in size in the past year to over $7 billion in assets; the MBS market effectively brings together shareholders in this Ginnie Mae Fund with individuals all 

over the country who want to purchase a home or refinance a mortgage. In this 

manner, securitization breaks down geographic barriers between lenders and borrowers, thereby improving the availability and cost of credit across regions. 

A second benefit of securitization is it generally provides term financing which 

matches assets against liabilities; this stands in contrast to the bank model, a substantial mismatch can exist between short-term retail deposits and long-term loans. 

Third, it expands the availability of credit across the country’s socio-economic spectrum, and provides a mechanism through which higher credit risks can be mitigated 

with structural enhancements. Finally, it fosters competition among capital providers to ensure more efficient pricing of credit to borrowers. 

Current Conditions of Consumer ABS and Residential MBS Markets 

At present, the RMBS and ABS markets are sharply bifurcated. On one side are 

the sectors that have received Government support, including consumer ABS and 

Agency MBS (i.e., MBS guaranteed by Fannie Mae, Freddie Mac, and Ginnie Mae); 

these sectors are, for the most part, functioning well. On the other side are the sectors that have received little or no such support, such as the new-issue private-label 

RMBS market, which remains stressed, resulting in a lack of fresh mortgage capital 

for a large segment of the housing market. 

Consumer ABS 

The overall size of the consumer debt market is approximately $2.5 trillion; 5 this 

total includes both revolving debt (i.e., credit-card loans) and nonrevolving debt (e.g., 

auto and student loans). Approximately 75 percent takes the form of loans on balance sheets of financial institutions, while the other 25 percent has been 

securitized. 6

From 2005 through the third quarter of 2008, auto and credit card ABS issuance 

ranged between $160 billion and $180 billion per year. 7 However, after the collapse 

of Lehman Brothers in September 2008, new issuance came to a virtual halt. With 

the ABS market effectively shut down, lenders tightened credit standards to where 

only the most credit worthy borrowers had access to credit. As a result, the average 

interest rate on new-car loans provided by finance companies increased from 3.28 

percent at end of July 2008 to 8.42 percent by the end of 2008. 8

Issuance did not resume until March 2009 when the Term Asset-Backed Securities Loan Facility (TALF) program began. Thanks to TALF, between March and 
72 

9Source: Bloomberg. 

10Source: Federal Reserve, www.federalreserve.gov/econresdata/releases/mortoutstand/current.htm. 11Source: eMBS, www.embs.com. 12Source: Loan Performance. 13Source: JPMorgan, ‘‘Fact Sheet: Federal Reserve Agency Mortgage-Backed Securities Purchase Program’’. 14 As of 2009, for the contiguous States, the District of Columbia and Puerto Rico, the general 

conforming limit is $417,000; for high-cost areas, it can be as high as $729,500. 15Source: HSH Associates, Financial Publishers. 16Source: Loan Performance. 17Source: Loan Performance. 18Source: HSH Associates, Financial Publishers. 

September of this year, there has been $91 billion of card and auto ABS issuance. 9

Coincident with the resumption of a functioning auto ABS market, the new-car financing rate fell back into the 3 percent range and consumer access to auto credit 

has improved, although credit conditions are still more restrictive than prior to the 

crisis. While TALF successfully encouraged the funding of substantial volumes of 

credit card receivables in the ABS market, it is worth noting that credit card ABS 

issuance has recently been suspended due to market uncertainty regarding the future regulatory treatment of the sector. 

While interest rates on top tier New Issue ABS are no longer attractive for investors to utilize the TALF program, TALF is still serving a constructive role by allowing more difficult asset types to be financed through securitization. Examples include auto dealer floorplans, equipment loans to small businesses, retail credit 

cards, nonprime auto loans, and so forth. 

Residential MBS 

The overall size of the residential mortgage market is approximately $10.5 trillion, which can be decomposed into three main categories: 

1. Loans on bank balance sheets: 10 $3.5 trillion. 

2. Agency MBS: 11 $5.2 trillion. 

a. Fannie Mae: $2.7 trillion. 

b. Freddie Mac: $1.8 trillion. 

c. Ginnie Mae: $0.7 trillion. 

3. Private-Label MBS: 12 $1.9 trillion. 

a. Prime: $0.6 trillion. 

b. Alt-A: $0.8 trillion. 

c. Subprime: $0.5 trillion. 

Thanks to the extraordinary Government intervention over the past year, the 

Agency MBS market is performing very well. This intervention had two crucial components. First, on September 7, 2008, the director of the Federal Housing Finance 

Agency (FHFA) placed Fannie Mae and Freddie Mac into conservatorship. This action helped reassure tens of thousands of investors in Agency unsecured debt and 

mortgage-backed securities that their investments were supported by the Federal 

Government, in spite of the sharp declines in home prices across the country. The 

second component of the Government intervention was the Federal Reserve’s pledge 

to purchase $1.25 trillion of Agency MBS by the end of 2009. 

Year to date, as of the end of September 2009, the Fed had purchased $905 billion 

Agency MBS, while net supply was only $448 billion. 13 Thus, the Fed has purchased roughly 200 percent of the year-to-date net supply. Naturally, this purchase 

program has reduced the spread between the yields on Agency MBS and Treasuries; 

we estimate the reduction to be roughly 50 basis points. As of this week, the conforming-balance 14 30-year fixed mortgage rate is approximately 4.85 percent, which 

is very close to a generational low. 15

In contrast, the new-issue private-label MBS market has received no Government 

support and is effectively shut down. From 2001 to 2006, issuance in this market 

had increased almost four-fold from $269 billion to $1,206 billion. 16 But when the 

financial crisis hit, the issuance quickly fell to zero. Issuance in 2007, 2008 and 

2009 has been $759 billion, $44 billion and $0, respectively. 17 Virtually the only 

source of financing for mortgage above the conforming-loan limit (so-called ‘‘Jumbo 

loans’’) is a bank loan. As a result, for borrowers with high-credit quality, the Jumbo 

mortgage rate is about 1 percentage point higher than its conforming counterpart. 18

At first glance, the higher cost of Jumbo financing may not seem to be an issue 

that should concern policymakers, but what is bad for this part of the mortgage 
73 

19Fannie Mae, Freddie Mac, and Ginnie Mae issued their first MBS in 1981, 1971, and 1970, 

respectively. Source: ‘‘Fannie Mae and Freddie Mac: Analysis of Options for Revising the Housing Enterprises Long-term Structures’’, GAO Report to Congressional Committees, September, 

2009. 

market may have implications for other sectors. If the cost of Jumbo financing puts 

downward pressure on the price of homes costing (say) $800,000, then quite likely 

there will be downward pressure on the price of homes costing $700,000, and so 

forth. Pretty soon, there is downward pressure on homes priced below the conforming limit. In my opinion, at the same time that policymakers deliberate the future of the Fannie Mae and Freddie Mac, they should consider the future of the 

mortgage financing in all price and credit-quality tiers. 

Recommended Legislative and Regulatory Changes 

The breakdown in the securitization process can be traced to four root causes: aggressive underwriting, overly complex securities, excessive leverage, and an over-reliance on the rating agencies by some investors. Such flaws in the process have contributed to the current financial crisis. However, when executed properly, 

securitization can be a very effective mechanism to channel capital into our economy 

to benefit the consumer and commercial sectors. Keep in mind that securitization 

began with the agency mortgage market, which has successfully provided affordable 

mortgage financing to millions of U.S. citizens for over 35 years. 19 To ensure that 

the lapses of the recent past are not repeated, I recommend that regulatory and legislative efforts be concentrated in four key areas. 

First, promote improved disclosure to investors at the initial marketing of transactions as well as during the life of the deal. For example, originators should provide detailed disclosure on the collateral characteristics and on exceptions to stated 

underwriting procedures. Furthermore, there should be ample time before a deal is 

priced for investors to review and analyze a full prospectus, not just a term sheet. 

Second, strong credit underwriting standards are needed in the origination process. One way to support this goal is to discourage the up-front realization of issuers’ 

profits. Instead, issuers’ compensation should be aligned with the performance of 

the security over its full life. This issue is complex, and will likely require specialized rules, tailored to each market sector. 

Third, facilitate greater transparency of the methodology and assumptions used 

by the rating agencies to determine credit ratings. In particular, there should be 

public disclosure of the main assumptions behind rating methodologies and models. 

Furthermore, when those models change or errors are discovered, the market should 

be notified. 

Fourth, support simpler, more uniform capital structures in securitization deals. 

This goal may not readily be amenable to legislative action, but should be a focus 

of industry best practices. 

Taking such steps to correct the defects of recent securitization practices will restore much-needed confidence to this critical part of our capital markets, thereby 

providing improved liquidity and capital to foster continued growth in the U.S. economy. 
74 

1The Mortgage Bankers Association (MBA) is the national association representing the real 

estate finance industry, an industry that employs more than 280,000 people in virtually every 

community in the country. Headquartered in Washington, DC, the association works to ensure 

the continued strength of the Nation’s residential and commercial real estate markets; to expand 

homeownership and extend access to affordable housing to all Americans. MBA promotes fair 

and ethical lending practices and fosters professional excellence among real estate finance employees through a wide range of educational programs and a variety of publications. Its membership of over 2,400 companies includes all elements of real estate finance: mortgage companies, 

mortgage brokers, commercial banks, thrifts, Wall Street conduits, life insurance companies and 

others in the mortgage lending field. For additional information, visit MBA’s Web site: 

www.mortgagebankers.org. 

ADDITIONAL MATERIAL SUPPLIED FOR THE RECORD

Prepared Statement of the Mortgage Bankers Association 

The Mortgage Bankers Association (MBA) 1 appreciates the opportunity to provide 

this statement for the record of the Senate Banking Securities, Insurance, and Investment Subcommittee hearing on the securitization of assets. 

Asset-backed securities are a fundamental component of the financial services system because they enable consumers and businesses to access funding, organize capital for new investment opportunities, and protect and hedge against risks. As policymakers evaluate securitization’s role in the recent housing finance system’s disruptions, MBA believes it is important to keep in mind the benefits associated with 

securitization when it is used prudently by market participants. 

Securitization describes the process in which relatively illiquid assets are packaged in a way that removes them from the institution’s balance sheet and sold as 

more liquid securities. Securities backed by residential or commercial mortgages are 

an example of asset securitization. 

Securitization is an effective means of risk management for many institutions. For 

example, the accumulation of many loans in a single asset sector creates concentration risk on a financial institution’s balance sheet. If that sector becomes distressed, 

these large concentrations could place the solvency of the financial institution at 

risk. However, securitization provides a remedy to avoid concentration risk by disbursing the exposure more widely across the portfolios of many investors. In this 

way, the exposure of any one investor is minimized. As demonstrated by the current 

business cycle however, if the entire system is hit by a significant systemic shock, 

all investors will face losses from these exposures, as diversification does not protect 

investors from systemic events. 

Securitization also enables various market sectors to create synergies by combining their particular areas of expertise. For example, community-based financial 

institutions are known for their proficiency in originating loans because of their relationships with local businesses and consumers, and their knowledge of local economic conditions. Securitization links these financial institutions to others that may 

be more adept at matching asset risks with investor appetites. 

As the last 2 or 3 years have demonstrated, when it is not understood, or poorly 

underwritten, securitization can cause meaningful harm to investors, lenders, borrowers and other segments of the financial services system. Since the economic and 

housing finance crisis began, investors have shunned securitization products, including mortgage-backed securities (MBS), particularly those issued by private entities. 

As a result, central banks and governments have taken up the slack with various 

programs to support securitization markets. MBA believes this has been an important, yet ultimately unsustainable, course of action. 

One key to the process is to create an environment where investors can accurately 

evaluate the risks in the various investment opportunities available to them, and 

have confidence that their analysis of the risk is consistent with what the underlying risk will turn out to be. No investments are risk-free. But reliable instruments 

allow responsible investors to evaluate whether the instrument’s risk profile is within the boundaries of an investor’s risk tolerance. 

When considering how to reestablish a safe and sound environment for 

securitization of real estate-related assets, MBA believes the following components 

must be addressed: 

• Risk Assessment: Risk assessment is an imperfect science, but it is crucial for 

securitization to enable accurate, effective, and stable risk assessment. Equally 

important, third-party assessments of risk must be highly credible to be widely 

used or adopted. 

• Aligning Risks, Rewards, and Penalties: A key consideration for the market 

going forward will be ensuring the alignment of risks with rewards and pen-
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2 ‘‘MERS’’ is formally known as MERSCORP, Inc., and is the owner and operator of the 

MERS® System. MBA, along with Fannie Mae, Freddie Mac, and other industry participants, 

is a shareholder in MERS. 

alties. Loan attributes, such as whether a loan is adjustable-rate or fixed rate, 

or does or does not have a prepayment restriction, shift risks between the borrower and the investors. If investors or other market participants are not accountable for the risks they take on, they are prone to act irresponsibly by taking on greater risks than they otherwise would. 

• Aligning Rewards With Long-Term Performance: Given the long-term nature of 

a mortgage contract, as well as the imperfect state of risk assessment, some 

risks inherent in a mortgage asset may not appear for some time after the asset 

has changed hands. It is important to consider the degree to which participants 

in the mortgage process can be held accountable for the long-term performance 

of an asset. 

• Ensuring Capital Adequacy of Participants: Participants throughout the market 

need adequate levels of capital to protect against losses. Capital adequacy is 

keenly dependent on the assessment of risks outlined above. The greater the 

risks, as assessed, the greater the capital needed. In times of rapid market deterioration, when model and risk assumptions change dramatically, capital needs 

may change dramatically as well. If market participants that have taken on certain risks become undercapitalized, they may not be able to absorb those risks 

when necessary—forcing others to take on unanticipated risks and losses. 

• Controlling Fraud Between Parties in the System: A key consideration for effective securitization is the degree to which fraud can be minimized. Key considerations include the ability to identify and prosecute fraud, and the degree to 

which fraud is deterred. 

• Transparency: In order to attract investors, another key consideration for 

securitization is transparency. The less transparent a market is, the more poorly understood it will be by investors, and the higher will be the yield those investors demand to compensate for the uncertainty. 

The task of improving transparency and accountability involves both policy and 

operational issues. Public debate typically focuses on the policy issues—what general types of information should be disclosed, and who should share and receive this 

information. However, the operational issues are equally important to establishing 

and implementing a functional system that promotes and supports the goals of 

transparency and accountability. We are submitting testimony today to stress the 

importance to market transparency and investor confidence of better loan tracking 

and more accessible, complete, and reliable loan and security data across the primary and secondary mortgage markets. 

Loan and Security Tracking 

Improving transparency in the real estate finance system is considered essential 

to restoring investor confidence in the securitization market. Because the real estate 

finance system embraces multiple parties—loan originators, loan aggregators 

(servicers) and securitizers—we need transparency solutions that flow from and 

span the complete mortgage value chain. 

The goal, we think, is relatively easy to state: key information about mortgages, 

the securities built upon those mortgages, and the people and companies that create 

them, should all be linked and tracked over time, so our financial system is more 

transparent and the strengths and risks of various products can be properly assessed and appreciated. Loans need to be tracked, for example, to help identify 

fraud and distinguish the performance of various mortgage products and securities 

types. 

Just as the vehicle identification number, or ‘‘VIN,’’ has evolved from a simple serial number into a valuable tool for consumers, enabling a potential purchaser to 

research the history of any car or truck, a comprehensive mortgage/security numbering system would be the key to tracking MBS history and performance. 

Achieving such a goal is very doable because the essential components are already 

in place. With relatively minor modifications these existing systems can evolve into 

the tools necessary to meet the challenge of transparency and accountability. 

On the mortgage end of the value chain there is MERS. 2 This national loan registry is already used by virtually all mortgage originators, aggregators, and 

securitizers to track individual mortgages by means of a unique, 18-digit Mortgage 

Identification Number, or ‘‘MIN.’’ For each registered mortgage, the MIN and the 

MERS database tracks information regarding the originator, the borrower, the prop-
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3MISMO is a wholly owned subsidiary of the Mortgage Bankers Association. 

erty, the loan servicer, the investors, and any changes of ownership for the life of 

the loan. MERS currently tracks more than 60 million loans and is embedded in 

every major loan origination system, servicing system, and delivery system in the 

United States, so total adoption would be swift and inexpensive. 

On the securitization end of the value chain, the American Bankers Association 

has a product called CUSIP that generates a 9-digit identification number for most 

types of securities, including MBS. The CUSIP number uniquely identifies the company or issuer and the type of security instrument. 

Together, these two identifiers solve the loan and security tracking problem, with 

the MIN tracking millions of individual mortgage loans and the CUSIP tracking 

thousands of unique financial instruments created each year in the United States. 

Loan-level information for every mortgage and mortgage-backed security would be 

available at the touch of a button, for example, the credit rating agencies would 

have needed information to assess more accurately the risk of a given security and 

track its performance relative to other securities over time. 

As the Congress looks to reform the capital markets, it should require that these 

two complementary identification systems be linked and that they be expanded in 

scope to track the decisions of all market participants—originators, aggregators and 

securitizers. In this way, throughout the value chain, participants that contributed 

to the creation of high-risk mortgages and selling of high-risk securities may be 

identified and held accountable. 

With a system like this in place, the Congress, regulators and the market as a 

whole would have a means of distinguishing with much more precision the quality 

of financial products and could enforce the discipline that has not been previously 

possible. 

Data Standards 

The Mortgage Industry Standards Maintenance Organization, Inc. (‘‘MISMO®’’) 3

has been engaged for the past 8 years in developing electronic data standards for 

the commercial and residential real estate finance industries. These standards, 

which have been developed through a structured consensus-building process, are 

grounded in the following principles that we believe characterize a robust, transparent system of data reporting: 

• First, there must be concrete definitions of the data elements that are going to 

be collected, and these definitions must be common across all the related products in the market. Different products (such as conforming and nonconforming 

loans) may require different data elements, but any data elements that are required for both products should have the same definitions. 

• Second, there should be a standardized electronic reporting format by which 

these data elements are shared across the mortgage and security value chain 

and with investors. The standards should be designed so that information can 

freely flow across operating systems and programs with a minimum of reformatting or rekeying of data to facilitate desired analytics. Rekeying results in 

errors, undermining the reliability of data. MISMO’s standards are written in 

the XML (Web based) computer language. This is the language used in the relaunch earlier this week of the Federal Register’s Web site. As reported in The 

Washington Post on October 5, 2009, this Web site has been received with great 

praise for allowing researchers and other users to extract information readily 

from the Register for further analysis and reuse without rekeying. Mortgage 

and securities data transmitted using MISMO’s data standards can similarly be 

extracted and used by investors and regulators for customized analytics. XML 

is also related to and compatible with the XBRL web language that the Securities and Exchange Commission (SEC) is implementing for financial reporting. 

• Third, the definitions and the standards should be nonproprietary and available 

on a royalty-free basis, so that third-parties can easily access and incorporate 

those standards into their work, whether it be in the form of a new loan origination software package or an improved analytical tool for assessing loan and 

security performance or fraud detection. 

• Fourth, to the extent that the data includes nonpublic personal information, the 

system must maintain the highest degree of confidentiality and protect the privacy of that information. 

True transparency requires that information is not only available, but also understandable and usable. The incorporation of these four principles into any new data 
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reporting regime will help ensure that the goal of transparency and accountability 

is realized. 

We believe that the standards of MISMO and MERS satisfy these elements for 

the conforming mortgage market. Their relative positions in the real estate finance 

process provide them with unique insight and an objective perspective that we believe could be very useful to improving transparency and accountability in the nonconforming market. 

Increasing the quality and transparency of loan-level mortgage and MBS-related 

data is an essential step so that investor confidence may be restored and the risk 

of a similar securitization crisis of the kind we are experiencing in the future can 

be minimized. This objective is paramount to all market participants, and as such 

all participants have an interest in achieving a solution. However, because it is so 

critical, the ultimate solution must also be able to withstand the scrutiny of investors, Government regulators, and academics. It must be widely perceived as a fair, 

appropriate, and comprehensive response to the challenges at hand. 

In conclusion, MBA reiterates its request for Congress and other policymakers to 

be mindful of the important role of securitization to housing finance and the entire 

financial services system. As the Congress looks to reform the capital markets, we 

look forward to working with you to developing a framework with a solid foundation 

based on the key considerations outlined above.