SPAIN Law and Practice Contributed by: Jaime de la Torre and Jaime Juan Rodríguez, Cuatrecasas
Synthetic Securitisation Regulation and Struc- ture .
with all material information regarding a secu - ritisation transaction. 4.9 Banks Securitising Financial Assets In Spain, the applicable legal provisions for securitising banks are to be found primarily in the Securitisation Regulation, the CRR and Law 5/2015. In addition, the following Spanish legal requirements must be considered. Mortgage Loans The applicable legislation establishes that the credit rights arising from mortgage loans can be assigned by means of transferrable securities called mortgage participations (MPs) ( partici - paciones hipotecarias ). In order to transfer said credit right through an MP, the following general conditions must be met: • the mortgage loan shall be secured with a first-rank mortgage; • the LTV does not exceed 60% or 80% regarding commercial or residential proper - ties, respectively; • the mortgaged property is insured against damages; and • the assets do not qualify as excluded assets (eg, mortgage loans granted over a right of usufruct, surface rights or administrative concessions). If any of these requirements are not met, the credit rights may be transferred through different transferrable securities, called mortgage transfer certificates (MTCs) ( certificados de transmission de hipoteca ). However, MTCs can only be held by qualified investors (as defined in 2.6 Inves- tors ). Consumer Loans The applicable Spanish legal framework does not establish particularities in relation to the sale
4.8 Investor Protection Spanish Supervisory Body
Securitisation in Spain is a regulated activity under Law 5/2015, supervised by the CNMV. For public SPEs, prior authorisation is required from the CNMV, which is the supervisory body responsible for approving and registering the rel - evant prospectuses. For private securitisations that do not require a prospectus to be published, the CNMV performs an ex-post control, as the deed of incorporation of the SPE must be reg - istered in the CNMV’s records. In this regard, note that securitisations can only be carried out in Spain through securitisation funds, as further discussed in 4.10 SPEs or Other Entities and 4.11 Activities Avoided by SPEs or Other Secu- ritisation Entities . The Meeting of Creditors Law 5/2015 (Article 37) contains the possibility of setting up a “meeting of creditors” ( Junta de Acreedores ), which is a creditors’ committee in the context of a particular securitisation transac - tion and constitutes an additional protection for investors. Setting up this meeting of creditors has certain implications that should be studied carefully. European Regulations In any case, European regulation is the main legal framework that provides protection for investors by virtue of: • the Securitisation Regulation, which contains, among others, the disclosure requirements and the compulsory periodic reporting obliga - tions; and • when applicable, the Prospectus Regulation, which ensures that investors will be provided
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