CUNA Comment Letter

April 3, 2000

Ms. Becky Baker
Secretary to the Board
National Credit Union Administration
1775 Duke Street
Alexandria, VA 22314

Dear Ms. Baker:

The Credit Union National Association appreciates the opportunity to comment on the agency's proposed rule to ensure that property transferred by a federally- insured credit union as part of a securitization or participation will not be reclaimed by the NCUA Board, when acting as a conservator or liquidating agent. The proposed rule will also ensure that the NCUA Board, when acting as conservator or liquidating agent, will not avoid a security interest in collateral for public funds deposited in federally-insured credit unions solely because the collateral was not acquired contemporaneously with the execution of the security agreement or because the collateral was changed. CUNA represents over 90% of the nation's more than 10,600 state and federal credit unions. CUNA supports the proposal.

Under generally accepted accounting principles (GAAP), a transfer of financial assets is accounted for as a sale if the transferor surrenders control over the assets. One of the conditions for determining whether control has been surrendered is whether the asset is placed beyond the reach of the transferor, its creditors, or a receiver.

When appointed conservator or liquidating agent, the NCUA Board has authority under the Federal Credit Union Act (FCUA) to repudiate contracts. The FCUA also provides that agreements that diminish the NCUA Board's interest in an asset are generally not enforceable unless certain requirements are met. One of these requirements is that the agreement must be executed contemporaneously with the acquisition of the asset by the credit union, which is referred to as the "contemporaneous" requirement.

These provisions of the FCUA raise the issue as to whether a financial asset transferred in connection with a securitization or in the form of a participation would be put beyond the reach of the NCUA Board and would, therefore, be considered a sale under GAAP. These provisions also affect the enforceability of security interests in collateral for public funds deposited in federally-insured credit unions.

Under the proposed rule, property transferred by a federally-insured credit union as part of a securitization or participation will generally not be reclaimed by the NCUA Board, when acting as a conservator or liquidating agent. This will ensure that the relevant provisions of the FCUA described above do not conflict with the GAAP requirement that assets be placed beyond the reach of the transferor, its creditors, or a receiver.

Although the repudiation of a securitization or participation by the NCUA Board will not affect transferred financial assets, the repudiation will excuse the Board from performing any continuing obligations that may arise. However, the NCUA Board will not seek to avoid a securitization or participation agreement solely because the agreement does not meet the "contemporaneous" requirement under the FCUA. The transfer must also meet all of the other conditions that GAAP requires in order for such transfers to be considered a sale.

The changes NCUA is proposing are consistent with the approach proposed by the Federal Deposit Insurance Corporation in September 1999 and CUNA agrees with this approach.

Thank you again for the opportunity to comment.

Sincerely,

Jeffrey Bloch
Assistant General Counsel