Strategic Defaults: Walking Away from Debt

From New Zealand, but applicable

Jingle Bells – walking away from debt

Published by lprent on December 24, 2009 at 1:30 pm in law.
Tags: , .. 3 Comments.

In the US it is easier than NZ for home-owners to walk away using the jingle mail options in the US. However in NZ it is far too easy for businesses to do the same.

Slate Magazines article “Everyone’s Defaulting, Why Don’t You?” by Daniel Gross points out the absurdity of expecting home owners hit by the dropping house prices and recession from doing a strategic default when business people seem to feel little compunction about doing the same.

Strategic defaults—the phenomenon of people who could continue to make payments on the mortgages on their homes deciding to walk away from their obligations—are rising. According to the Wall Street Journal, strategic defaults are likely to exceed 1 million in 2009. This is making some worry about the very future of capitalism.

Daniel then lays into the critics because as he points out the double standard that is being applied.

Um, do any of these people read the Wall Street Journal? Strategic defaults are the American way, and I’m not talking about strapped middle-class borrowers who prefer spending money on vacations to staying current on their payments. Deep-pocketed companies, billionaires, and institutions that can afford to stay current on payments strategically default all the time.

Morgan Stanley, for example, is a gigantic corporation. As of the second quarter, it boasted total capital of $213.2 billion. It certainly has the ability to make good on obligations incurred by its many operating units. But earlier this month Morgan Stanley said it would turn over five San Francisco office buildings to lenders rather than pay the debt on them. Why? Morgan Stanley foolishly paid top dollar for the buildings in 2007, when prices were really high. The values have plummeted, and tenants are hard to come by. “This isn’t a default or foreclosure situation,” spokeswoman Alyson Barnes told Bloomberg News. “We are going to give them the properties to get out of the loan obligation.” Smells like a strategic default to me.

It’s not just happening in real estate. According to Standard & Poor’s, through Dec. 18, 262 corporations had defaulted on bonds they had sold to the public, twice the total of 2008 and “the highest default count since our series began in 1981.” Like mortgages, corporate bonds are legal arrangements in which parties—in this case companies, or partnerships, or limited liability corporations—agree to pay money back.

Daniel continues with a number of other representative strategic defaults and then points out

Sometimes, investors and managers take heroic, self-abnegating efforts to stave off bankruptcy and make their debt payments. Frequently, however, they don’t. They don’t want to throw good money after bad. They realize that some investments were so poorly conceived that there’s no prospect of them working out in the long term. And the system doesn’t hold it against them.

There’s no doubt that homeowners are defaulting strategically. And the surprise may be that, given market conditions, there aren’t more strategic defaults. A paper by University of Arizona law professor Brent White suggests that bourgeois values are actually keeping people from walking away from bad home loans. Most people underwater on their mortgages stay current “as a result of two emotional forces: 1) the desire to avoid the shame and guilt of foreclosure; and 2) exaggerated anxiety over foreclosure’s perceived consequences.” In addition, he notes, societal norms push individuals “to ignore market and legal norms under which strategic default might not only be a viable option, but also the wisest financial decision.”

In New Zealand there are similar examples of directors and managers walking away from their obligations, notably in the finance company sector. These were investments being sold to the public as being solid risk-free investments. Most weren’t. The freezes on being able to withdraw money from them has caused considerable problems for their largely retired investors. For instance this comment in one of our posts by Kathy

I thought you may be interested to know that a large majority of the people that I know of, who invested in the Canterbury Mortgage Trust fund, were elderly people who had no knowledge of investments, apart from a term deposit in a Bank. However, at the encouragement of their ‘legal advisors’ (Solicitors), the CMT was put forward as a safe place for their money. Older people are from the generation where they trusted their Solicitor! These elderly folk are the ones in rest homes – some with dementia, alzheimer’s, etc. who were relying on their funds to pay for their retirement needs and care. My mother was one of these elderly people – she died the day after CMT froze their funds (24/07/2009) and they refused to release her funeral funds. I have no doubt there have been many other ‘codgers’ who have been equally and worse affected by the CMT mess. These are the voices we cannot hear.

This entire area of our economy should be much more tightly regulated, and if the NACT government takes up some of the recent recommendations, it may even happen. Of course the NACTs aren’t known for being tough on their contributors. They prefer easier targets amongst beneficeries.

NZ has much tougher regulations about walking away from mortgage debt than the US has. Now it is time to impose similar levels of regulation and obligation on the cowboys in the non-stock market companies.

4 Responses

  1. Anyone know of lawyers in Australia or New Zealand that get it. Much appreciated
    Kind Regards Robert

  2. I live in a non-judicial state, am behind on payments, and fear that foreclosure is near. I would have to file a lawsuit pro se. Is there any guidance about court procedures and the process I would use to be successful?

  3. How is it that the ratings agencies are not living 24/7 in court these days? sheesh!
    ALL of them are guilty of …well just [ pick a financial crime ].
    and WHO exactly needs or WANTS a rating [ or prostitution ] agency that is born or bought in the back room of the company who’s stock they are hyping to the public…is this absurd or what?

  4. Massive defaults are inevitable because there is
    not enough money in the world to pay back the principal on all these fraudulent loans, much less
    the interest.
    The only solution is a moratorium on interest and reschedule the principal. There is no way to stop
    deflation so we need to manage it so it does not’
    destroy the whole economy. We are on the downside
    leg of the roller coaster and we need to go with the
    flow. Foreclosing on everyone is not the answer, it only
    makes the situation worse. When will our leaders ever
    figure this out? probably never, which is why we need
    new leaders who are able to think outside the box,
    not more of the same. A managed deflation is the only
    answer.

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