BlackRock Shifts: Principal Reduction OK in Bankruptcy

April 16, 2010
Editorial NY Times

Fighting Foreclosures

From the start, the central concern about President Obama’s antiforeclosure effort has been that it would postpone foreclosures but ultimately not prevent enough to ease the economic strain from mass defaults. That concern seems increasingly justified.

In the first quarter of 2010, there were 930,000 foreclosure filings — an increase of 7 percent from the previous quarter and 16 percent from the first three months of 2009, according to recent data from RealtyTrac, an online marketer of foreclosed properties. The surge seems to indicate that homes that were in the foreclosure pipeline are now being lost for good.

The administration’s figures are not encouraging either. The Treasury reported recently that as of March, nearly 228,000 troubled loans qualified under the Obama plan for long-term payment reductions; another 108,000 long-term modifications were pending. That’s up from February, but still far behind the need. Currently, some six million borrowers are more than 60 days delinquent.

Three oversight groups have issued reports in the past month criticizing the administration’s effort and predicting that it would fall far short of its goal of helping four million borrowers by the end of 2012.

And on Tuesday, officials from JPMorgan Chase and Wells Fargo told a Congressional panel that they were not inclined to fully embrace the administration’s latest foreclosure-prevention plan. Announced in late March, it calls for lenders to modify troubled mortgages by cutting the loan principal, which restores some equity to borrowers while lowering the payment. The bankers were unpersuasive. They generally objected to large-scale principal reductions, even though the administration’s plan applies relatively narrowly to borrowers who are deeply indebted and meet various other criteria.

The testimony was more proof that relying on lenders to voluntarily rework troubled loans is not working.

The hearing investigated a specific obstacle to widespread modifications: Investors, including pension funds and mutual funds, often hold the first mortgages. Banks often hold home-equity loans and other second mortgages. Investors reasonably believe that second liens should be reduced before the primary mortgage is modified, but banks balk at that because it would prompt write-offs they don’t want.

Some investors, notably the powerhouse group BlackRock, have called for a special bankruptcy process to resolve the standoff. The court would seek to reduce bankrupt borrowers’ total debt to affordable levels, starting with unsecured debt like credit cards, then undersecured debt, like second mortgages, and then, if necessary, the primary mortgage debt.

We have long called for using bankruptcy court to help resolve the foreclosure crisis. A big advantage of bankruptcy over government-subsidized modifications is that bankruptcy is a difficult process that does not entice anyone to purposely default in order to get better repayment terms.

Banks have argued for the status quo, in which bankruptcy judges are not allowed to modify the terms of primary mortgages, and they have prevailed in Congress and, apparently, within the administration. The result is an ongoing foreclosure crisis. It is time to revive the fight to open the courthouse door to bankrupt homeowners.

8 Responses

  1. Blackrock’s involvement just means Blackrock purchased many of the loans at distressed prices – purchased from the security underwriter for the security trust that some attorney claims your mortgage loan is in.

    Blackrock is US government agent to remove distressed assets from the too big too fail banks that defrauded homeowners from the onset.

  2. Unfortunately the USBC will not, at this point, allow an owner-occupied home to be subjec to cramdown in typical circumstances (aside from the Bradshaw cramdown case). To get around this, try the following: move the family to a rental, then rent the primary, and then file for BK, and now your home is subject to cramdown because it is a rental Property used for investment.

    Another approach is to transfer the home and other such assets to a Trust, which you have created and to whom you pay a modest rental, and then have the trustee of the new Trust file the trust into a new bankruptcy, and then let the creditors go chase that trust. If the trust is an offshore trust e.g. in another country then if you lose in the US then under the WTO Rules you can re-litigate the matter in Brussels for fairness.

  3. […] is the original post: BlackRock Shifts: Principal Reduction OK in Bankruptcy … Posted in Mod, Modification, Uncategorized, bank, bankruptcy, for, foreclosure, help, in, of, on, […]

  4. New York Federal Reserve had launched the first Maiden Lane vehicle to take on the worst of the lot in assets in order to assist JPMorgan Chase’s (JPM) takeover of Bear Stearns; it later launched two more Maiden Lane vehicles to assist AIG.

    Treasury Secretary Timothy Geithner, who ran the New York Federal Reserve, which oversees the Maiden Lane vehicles, had told Congress that the cash assets in the Fed’s Bear bailout consisted of “investment grade securities,” disclosing information that showed these assets could veer toward junk (“i.e. securities rated BBB- or higher by at least one of the three principal credit rating agencies and no lower than that by the others”).

    The Federal Reserve did not return repeated calls for comment.

    The Fed is betting that its hired gun overseeing these assets, BlackRock, under its guidance, will properly price-tag and sell these assets for taxpayers.

    BlackRock reportedly stands to earn tens of millions on its multi-year contract as asset manager of the Maiden Lane vehicles.

    Not disclosed is how exactly BlackRock values these assets, whether and how losses are being papered over in the Maiden Lane vehicles, whether it is simply tossing a fresh coat of paint on the assets, and how the Federal Reserve’s extraordinary intervention into the markets to defrost the market’s iced over financial plumbing will impact the value of these assets.

    “Based on what I see, the Fed will have tough questions to answer on its management of the” these assets in light of these new disclosures, says Zervos, the global fixed-income strategist at Jefferies & Co. in New York.

    Here’s an extended list of bond and derivative assets picked up in the Federal Reserve’s rescue of Bear Stearns and AIG:

    Read more:

  5. Bank of America is as bad or worse. It is amazing how Banks will work commercial loans down but not homeowner loans. We need some people with big huevos to light a fire under these people and make them do the right thing.

    Any good class action Lawsuits out there everyone can join in?

  6. This all sounds good however we have been down this road before, Does the Obama Adm, have the vote ? last time didn’t make it in bankruptcy court, who thinks its going to make it now, not the Banks,good luck.

  7. there’s more but to much to post

    This Amended and Restated Investment Management Agreement (“Agreement”) is entered into
    as of the 17th day of April, 2009, between the Federal Reserve Bank of New York (“FRB-NY”) and
    BlackRock Financial Management, Inc. (“Manager”), with reference to the following facts:
    WHEREAS, the Federal Open Market Committee (“FOMC”) has approved the purchase by the
    System Open Market Account (“SOMA”) of Federal National Mortgage Association (“Fannie Mae”),
    Federal Home Loan Mortgage Corporation (“Freddie Mac”), and Government National Mortgage
    Association (“Ginnie Mae”) agency fixed rate pass-through mortgage backed securities (“Agency MBS”)
    as part of its domestic policy directive provided for the avoidance of doubt, that Agency MBS shall not
    include any CMOs, Interest Only or Principal Only Strips Trusts or REMICS that are backed by Agency
    MBS, or MBS derivatives;
    WHEREAS, the FRB-NY is the Reserve Bank authorized by the FOMC to carry out the
    domestic policy objective through its management of the SOMA;
    WHEREAS, the FRB-NY, after consultation and approval by the FOMC, determined that the
    purchase and management of the SOMA Agency MBS would be done through the use of one or more
    investment managers;
    WHEREAS, as a result of a competitive bidding process Manager has been selected as one of
    several investment managers to support the FRB-NY in its implementation of the FOMC’s directive;
    WHEREAS, the parties wish to further clarify the provisions of the Investment Management
    Agreement dated December 30, 2008 relating to conflicts of interests and the program parameters;
    NOW, THEREFORE, it is agreed as follows:
    Appointment as Manager
    The FRB-NY hereby appoints the Manager to manage, supervise and direct the investment of a
    portion of the SOMA account as specified by the FRB-NY (“Account”) under the terms and conditions
    set forth herein. By execution of this Agreement, the Manager hereby accepts said appointment, agrees
    to manage, supervise and direct the investment of the Account pursuant to the provisions of this
    Management of Assets
    Commencing on the date hereof and continuing until the date upon which this Agreement is
    terminated as provided in Section 14, the Manager shall have delegated authority to manage, supervise
    and direct the investment and reinvestment of assets in the Account and any additions thereto, subject to
    the specific limitations made part of this Agreement, including the investment objectives and guidelines
    attached to the Agreement as Exhibit A. Subject to this Agreement, including its Exhibit A, the
    Manager is hereby appointed as the FRB-NY’s agent in fact and shall have full power and authority to
    act on behalf of the Account with respect to the purchase, sale, exchange, conversion or other
    transactions in any and all stocks, bonds, other securities, or cash held for investment subject to the
    The Manager further shall have authority to instruct the custodian bank duly appointed by the
    FRB-NY (“Custodian”) to: (i) pay cash for securities and other property delivered to the Custodian for
    the Account, (ii) deliver or accept delivery of, upon receipt of payment or payment upon receipt of,
    securities and other property purchased or sold in the Account, and (iii) deposit margin or collateral
    which shall include the transfer of money, securities or other property to the extent necessary to meet the
    obligations of the Account with respect to any investments made pursuant to the investment policies and
    guidelines attached hereto as Exhibit A. The Manager shall not act as custodian of the assets held in the
    Account. No cash or securities due to or held for the Account shall be paid or delivered to the Manager.
    Except as expressly provided in this Agreement, the investment authority granted to the Manager
    shall include the sole authority to exercise whatever powers the FRB-NY may possess with respect to any
    of the assets held in the Account, including, but not limited to, the right to vote proxies, the power to
    exercise rights, options, warrants, conversion privileges, and redemption privileges, and to tender securities
    pursuant to a tender offer. The Manager shall not incur any liability to FRB..NY by reason of exercising or
    failing to exercise the powers set out in this paragraph in the absence of its gross negligence, willful
    misconduct or bad faith. The Manager shall review, evaluate and make a determination with respect to
    such actions, in good faith, as they arise. When exercising this authority, the Manager will be guided by this
    FRB-NY shall execute such documents, including without limitation the powers of attorney
    attached hereto as Exhibit B confirming the appointment of Manager as investment manager, as may be
    required to evidence the powers, duties and responsibilities delegated hereby. In no event shall Exhibit B
    be read to confer any greater authority on Manager than is set forth in the Agreement and any amendments
    hereto. For the avoidance of doubt, unless otherwise agreed, the Manager shall not execute officer
    certificates on behalf of the FRB-NY.
    3. Servicing and Administration of Assets Under Management.
    The Manager and its affiliates, meaning other entities under the control of BlackRock, Inc. within
    the meaning of either Section 15 of the Securities Act of 1933, as amended, or Section 20 of the
    Securities Exchange Act of 1934, as amended (“Affiliates”) shall in no event be responsible in any way
    for the mechanics of payment or collection of principal, interest, dividends or other amounts due on any
    assets included in the Account. The Manager is not responsible for the servicing or administration of
    any assets included in the Account.
    Upon request, the Manager shall provide advice to the FRB-NY with respect to residential loan
    modification and servicing policies and, if requested, will assist the FRB-NY in its efforts to influence
    the residential loan modification and servicing policies of the servicers of the residential mortgage loans
    backing the Agency MBS in connection with managing the Account. FRB-NY acknowledges the
    foregoing provision shall not require Manager to allocate personnel beyond those identified on Exhibit
    Page 2
    Use of Affiliates and Third Parties
    Except as provided in the Manager’s policy with respect to management of the Account, which
    policy is attached hereto as Exhibit G (the “FRB-NY Policy”), the Manager may not delegate portfolio
    management or administrative duties, including back office operations or proxy voting services, to its
    Affiliates or any third party agent without the express written consent of the FRB-NY which consent
    may be withheld for any reason. In addition to the requirements in Section 16, if the FRB-NY consents
    to the use of an Affiliate or third party agent, the Manager shall remain liable as if such services were
    provided directly. Moreover, no additional fees shall be imposed for such services.
    Investment Guidelines
    The investment guidelines established by FRB-NY as of the date of this Agreement are set forth
    on Exhibit A, as such exhibit may be amended from time to time in accordance with Section 28 (the
    “Investment Guidelines”). The Manager is authorized on behalf of the Account to (i) enter into
    agreements and execute any documents required or deemed advisable to make investments or
    dispositions pursuant to the Investment Guidelines, which shall include any market and/or industry
    standard documentation and the standard representations contained therein; and (ii) acknowledge the
    receipt of brokers’ risk disclosure statements, electronic trading disclosure statements and similar
    The Manager shall be entitled to rely upon oral and written clarifications, supplements guidance
    and modifications to the Investment Guidelines from persons designated as representatives of the FR13-
    NY in Exhibit E attached hereto and make reasonable interpretations thereof. The FRB-NY understands
    and agrees that the Manager does not guarantee or represent that any investment objectives will be
    The Manager shall not engage in securities lending transactions on behalf of the Account. If the
    Custodian enters into securities lending transactions on behalf of the FRB-NY, the FRB-NY or the
    Custodian shall be responsible for ensuring that the securities or other assets in the Account are available
    for sale at all times. The Manager shall not be liable for any loss resulting from the sale by the Manager
    of a security that is not available in the Account for settlement as a result of such securities lending
    The FRB-NY will establish a policy for managing counterparty credit exposure arising from the
    forward settlement of Agency MBS trades undertaken for the Account, and will communicate such
    policy to the Manager and the other managers providing investment management services to the FRBNY
    in respect of Agency MBS. The Manager will be responsible for adhering to the policy, as amended
    from time to time by the FRB-NY, in respect of the forward settlements that it undertakes on behalf of
    the Account. The FRB-NY shall direct the Manager as to actions to undertake in the event of a
    counterparty failure. The FRB-NY may direct the Manager to obtain collateral on behalf of the Account
    as margin for forward exposure from time to time, and, if the FRB-NY so directs the Manager, the FRBNY
    shall specify the form of documentation and procedures for such exercise.
    Title and Use of Custodian Bank
    Page 3
    Title to all investments shall be held in the name of the SOMA, provided that for convenience in
    buying, selling and exchanging securities (stocks, bonds, commercial paper, etc.), title to such securities
    may be held in the name of the Custodian, or its nominee. All cash and the indicia of ownership of all
    other investments shall be held by the Custodian. Sole responsibility for physical possession and
    safekeeping of the assets in the Account shall rest with the Custodian. The Manager shall not be liable
    for any act or omission of the Custodian.
    The Manager shall deliver to the Custodian such information, authorizations and documentation
    as the Custodian shall reasonably request in order to discharge the Custodian’s duties with respect to the
    Account. The FRB-NY shall instruct the Custodian to (a) provide the Manager with periodic information
    concerning the status of the Account as reasonably requested by the Manager; (h) carry out all
    investment transactions as may be directed by the Manager; and (e) confirm all completed transactions,
    in writing, to the Manager. Absent the consent of the FRB-NY, to the extent that it is within the control
    of the Manager, the Manager shall communicate trade instructions to the Custodian in a commercially
    reasonable and secure manner to the extent otherwise used by the Manager in its business. Use of
    Tradeweb, SWIFT, or Bloomberg are acceptable means of communicating trade instructions.
    Use of Broker
    The Manager shall only trade with brokers or dealers who are listed on Exhibit C, which may be
    amended from time to time by the FRB-NY. The Manager shall not be liable for any act or omission of
    any brokerage firm or firms listed on Exhibit C (in effect at the time the Manager initiates a trade or
    other transaction with such brokerage firm or firms).
    FRB-NY hereby delegates to the Manager sole and exclusive authority to determine through
    which broker dealers on Exhibit C transactions for the Account will be made. The Manager will
    determine the rate or rates, if any, to be paid for execution services. The Manager agrees that it will seek
    to buy and sell assets through such intermediaries as, in the Manager’s judgment, shall offer the best
    execution of the brokers or dealers on Exhibit C. The Manager, in seeking to obtain best execution of
    Account transactions, may consider the quality and reliability of execution services, as well as research
    and investment information provided by brokers or dealers. Accordingly, the Manager’s selection of a
    broker or dealer for transactions may take into account all relevant factors, including (i) price, (ii) the
    broker’s or dealer’s facilities, reliability and financial responsibility, (iii) the broker’s or dealer’s ability
    to maintain confidentiality and avoid disruption of the marketplace, (iv) the broker’s or dealer’s ability
    and willingness to commit capital and handle large transactions, (y) the level of compensation charged
    by the broker or dealer, (vi) the broker’s or dealer’s recordkeeping capabilities and (vii) the research
    related to the Account provided by such broker or dealer to the Manager (collectively, “Research”),
    notwithstanding that the Account may not be the exclusive beneficiary of such Research.
    Access to Records and Documents
    Books and Records The Manager shall maintain appropriate books of account and records
    relating to services performed hereunder including appropriate documentation of issues arising under the
    Manager’s conflict of interest policies. The Manager shall either retain such records for as long as it is
    performing services under this Agreement or provide the records (Or copies of such records) to the FRB
    NY prior to destruction of the records under the Manager’s normal record retention policy.
    Page 4
    Audit Rights The FRB-NY shall have the right, at any time during the term of this Agreement, to
    audit the Manager’s performance to determine whether the Manager is acting in compliance with all of
    the requirements of this Agreement as well as its valuation methodology (as set forth in the Manager’s
    valuation policies). Upon five business days’ prior written notice to the Manager, the Manager shall
    grant access to its premises to FRB-NY’s internal auditors or the auditors selected by the FRB-NY to
    conduct such audit. Audits will be conducted during the Manager’s normal business hours at the FRBNY’s
    sole expense. The Manager will cooperate fully in making its premises and all relevant
    information related to its performance pursuant to this Agreement and personnel available to such
    auditors as is reasonably requested and does not interfere with the Manager’s performance of its
    obligations under this Agreement and the conduct of its other business in the ordinary course, FRBNY’s
    board of directors or its audit committee may share audit reports with whomever it deems
    Audit and Review Rights of Others In addition to the FRB-NY’s right to audit the Manager, the
    Manager agrees that, with prior notice from the FRB-NY, the FOMC, or the Board of Governors of the
    Federal Reserve System, may conduct audits and ad-hoc reviews of the services provided by the
    Manager under this Agreement, provided that the FRB-NY will use its best efforts to ensure that such
    audits and ad-hoc reviews are made on a similar basis to the audits described in the preceding paragraph.
    E[feciive Internal Controls The Manager shall provide its relevant SAS-70 reports to the FRBNY
    no less than annually. In addition, if requested by the FRB-NY, the Manager will provide
    additional documentary evidence to the FRB-NY to support the assertion that the Manager maintains
    effective internal controls over financial reporting; the nature of such documentation to be agreed to by
    the parties at the time of the request.
    9. Reports
    At such intervals as shall be mutually agreed upon between the Manager and FRB-NY, but not less
    than monthly, the Manager shall furnish the FRB-NY with a written report with respect to the Account.
    The first determination date for any such report shall be January 3 i, 2009. Each report shall be sent not
    later than 15 business days following the relevant determination date, and shall set forth (so long as the
    Manager has received or been given access in a timely mariner to any required information from the
    Custodian): (i) all Agency MBS purchased or sold since the date of the previous report with the cost or net
    proceeds of such purchases and sales; (ii) a maturity distribution by product and total holdings as of the
    determination date; (iii) (a) a per CUSIP estimated market value for each Agency MBS as of the
    determination date, and (b) aggregated cash flows for the Agency MBS as of the determination date. The
    Manager shall inform the FRB-NY as soon as practicable if the Manager is not able to obtain the timely
    information from the Custodian.
    The Manager shall also provide weekly market updates and trade overviews in a form agreed to by
    the Manager and FRB-NY.
    The Manager will provide additional reports as reasonably requested by the FRB-NY, The
    Manager shall also provide additional reporting as reasonably requested to satisfy FRB-NY’s internal and
    external auditors. Notwithstanding the foregoing, the FRB-NY acknowledges and agrees that (i) the
    Manager shall not be deemed to be the pricing or valuation agent for the Account, (ii) none of the
    Page 5
    information which the Manager provides the FRB-NY hereunder shall be deemed to be the official
    books and records of the Account for tax, accounting or any other purpose; and (iii) the FRB-NY will
    not publish, reproduce (except for internal or archival purposes) or disseminate any pricing information
    provided by the Manager without the Manager’s consent. The FRB-NY or the FRB-NY’s pricing or
    valuation agent, not the Manager, shall be responsible for ultimately determining the value of specific
    securities in the Account.
    For the purposes of all reports made by the Manager to the FRB-NY, assets will be valued at fair
    value as determined in good faith by the Manager; provided that the valuation methods used by the
    Manager shall be described in writing to the FRB-NY, The Manager and FRB-NY agree to cooperate, in
    good faith, to reach resolution to the extent that the FRB-NY has concerns about the Manager’s pricing
    Each of the above referenced reports will be delivered to the FRB-NY via messenger, registered
    mail or FedEx or other overnight delivery service until such time as FRB-NY and the Manager agree on
    an electronic means of delivery that satisfies the information security policies of FRB-NY.
    Reconciliation The Manager shall reconcile transactions and cash flows daily and calculation of
    net asset value monthly (so long as, in each case, the Manager has received or been given access in a
    timely manner to any required information from the Custodian) with the Custodian and shall communicate
    with and seek to resolve any significant discrepancies with the Custodian.
    Attendance at Meetings
    The Manager shall initially meet at least weekly with the FRB-NY and the other investment
    managers participating in this FOMC initiative to discuss strategy. Absent agreement from the FRBNY,
    these meetings should be attended only by individuals at the Manager who are behind the ethical
    The Manager will meet at least monthly with the FRB-NY to review the Account, current market
    conditions and investment strategy. Upon reasonable notice, at the request of the FRB-NY, the Manager
    shall also meet with one or more members of FRB-NY’s board of directors or the SOMA manager at a
    time mutually agreeable.
    The FRB-NY may also request a meeting with the Manager to discuss matters relating to
    possible modifications to the guidelines set forth in Exhibit A or to request an adhoc update on the
    portfolio strategy review.
    The Manager may attend any of the foregoing meetings telephonically. Meetings to discuss
    strategy or execution issues conducted by telephone shall be conducted on recorded lines. The FRB-NY
    shall disclose the fact that the meeting is being recorded to the Managers. The use of periodic beeps on
    the recorded line shall satisfy this disclosure obligation of the FRB-NY,
    Page 6
    For the services specified in this Agreement, the FRB-NY agrees to pay fees as set forth in
    Exhibit D for each calendar quarter during the term hereof commencing on the date of execution of this
    Agreement, and continuing thereafter for each such calendar quarter. The FRB-NY agrees to remit
    payment promptly following the end of each calendar quarter. If Manager shall serve for less than the
    whole of any quarterly period, its compensation determined as provided in Exhibit D shall be calculated
    and shall be payable on a pro rata basis for the period of the calendar quarter for which it has served as
    Manager under the Agreement. The FRB-NY shall not pay any penalty or unaccrued fees in the event
    this Agreement is terminated by FRB-NY or the Manager.
    For the avoidance of doubt, the FRB-NY shall not pay any unapproved out of pocket or other
    expenses incurred by the Manager in connection with its provision of services under this Agreement
    except that the FRB-NY shall pay investment execution expenses in connection with investments made
    on behalf of the Account, including third party commissions and other expenses incurred by, or in the
    name of, the FRB-NY. The Manager is not authorized to obligate the FRB-NY to pay for or incur any
    other expenses, including but not limited to hiring lawyers, accountants or other experts, or the use of
    third party pricing and valuation services without the express written consent of the FRB-NY.
    Di.sputes If FRB.-NY disputes all or a portion of any invoice, FRB-NY will pay the undisputed
    amount. The FRB-NY will notif’ the Manager in writing of the specific reason and amount of any
    dispute. The Manager and the FRB-NY will work together, in good faith, to resolve any disputes as
    soon as reasonably practicable, and FRB-NY will pay the amount, if any, agreed to by the parties based
    on the resolution.
    Additional Co,npensation The Manager shall not agree to accept compensation from any entity
    other than the FRB-NY in connection with the services provided by the Manager to the Account under
    this Agreement.
    In accordance with Sections 205(a)(2) and 205(a)(3) of the Investment Advisers Act of 1940, no
    assignment (as defined under such Act) of this Agreement shall be made by the Manager without the
    consent of the FRB-NY.
    Any written notice required by or pertaining to this Agreement shall be personally delivered to
    the party for whom it is intended, at the address stated below, or shall be sent to such party by
    messenger, overnight mail, or e-mail (and more specifically secure e-mai! if the notice pertains to the
    assets in the Account, or the Portfolio or trading strategy). Any notices shall be deemed given only upon
    actual receipt.
    If to the FRB-NY:
    Federal Reserve Bank of New York
    33 Liberty Street
    New York, NY 10045-0001

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