Introduction: The Commercial Mortgage Backed Securities Industry

GUILDERLAND – Tucked into the $ 3.5 trillion commercial and multi-family real estate finance industry, part of the larger US $ 16 trillion commercial real estate market, is the mortgage-backed securities industry commercial.

Commercial Mortgage Backed Securities (CMBS) began to take shape following the savings and lending crisis of the late 1980s, at a time when hundreds of traditional savings institutions and credit unions, or savings banks, were closed.

In short, the deregulation of a Depression-era program allowed a certain type of bank that was originally created to handle little more than mortgages for working-class homebuyers, among others, speculating in commercial real estate and using federal insurance dollars to make risky loans – which led to the banks giving out more than they accepted, then hiding the fact that they were insolvent.

In response to the savings and loan crisis, the federal government took over $ 113 billion in insolvent bank assets. Congress then created the Resolution Trust Corporation (RTC) to manage mortgage loans held by insolvent banks. The RTC, in turn, took the loans, bundled them and sold them as real estate titles, valued at an estimated $ 18 billion at the time.

The private sector, noting how its jaw-dropping billion dollar shoddy work could make big money for private lenders amid the savings and lending crisis, created the modern CMBS market in the late 1990s – just waiting a decade for the entire CMBS industry to crater during the Great Recession.

In a commercial mortgage backed security (CMBS), securitization involves taking an illiquid asset, something that cannot be sold quickly or easily – a mall, for example – and turning it into a financial instrument easily. bought and sold as a share or link.

A lender creates a commercial mortgage-backed security by taking a group of income-producing commercial real estate loans (for example, mortgages held on hotels, warehouses, apartments, and commercial buildings such as a shopping center), bundling and selling them as tranches – different “classes of certificates”, each with its own rate of return – securitized bonds.

“The typical CMBS [commercial mortgage-backed security] The loan is a 10-year non-recourse fixed rate loan, ”according to the Federal Reserve.

This means that the typical CMBS loan is short term in that the borrower only has a 10 year loan term; however, the monthly payments made by the borrower are set as if they were repaying a standard loan over 30 years.

So, for example, with a 10-year loan amortized, spread evenly over 30 years, a borrower does little more than cover the interest on the loan and not reduce the principal, leaving the borrower with a lump sum payment. important on the capital which matures after 10 years.

Non-recourse means that if a borrower defaults on a loan, his lender cannot try to take the property as security for the loss.

If a loan in a commercial mortgage-backed securities trust becomes “past due [an] applicable grace period, “according to the Wharton School at the University of Pennsylvania, where the borrower has” defaulted [on] mortgage loans or [has] according to the Practicing Law Institute, “the loan service will be transferred to the special service”.

In the CMBS industry, a special manager takes responsibility for a loan from their original administrator, known as the senior manager. And the special services have a certain degree of autonomy after a delinquent or defaulted loan has been transferred to them – the special service can decide whether or not to foreclose the loan, negotiate with the borrower, or modify the loan.

But the inherent nature of commercial mortgage-backed securities – “limited flexibility,” according to the Federal Reserve – can be problematic when a loan needs to be amended.

CMBSs are structured as Real Estate Investment Conduits (REMICs), which are set up to avoid attracting corporate-level taxes. But the same rules that allow favorable tax treatment of REMICs “also require a rigid structure,” according to Cornell University, meaning that adding new loans to REMIC is “generally prohibited.”

And so, according to Cornell, “Before the distress, there was little wiggle room for loan modification because what constitutes a ‘new’ loan is loosely defined. It is only when the loan is declared “in difficulty” that it can be amended and restructured. Such bureaucracy and rigidity make lending operations incredibly difficult and often not optimal for the parties involved. “

Further, having a CMBS loan in default or being “nominated” for a special manager means that, unlike a traditional lender-borrower relationship, the concern of special managers is not with the borrower – the borrower. manager acts on behalf of bondholders.

In effect, the Special Manager “may take actions which maximize the position” of investors with whom the Manager has aligned financially in order to “secure timely cash flow payments to investors. [that investor]. “

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