COURT DECISION SAYS REMIC HAS NO RECOURSE AGAINST COLALTERAL: ARE REMICs UNSECURED????

For further information please call 954-495-9867 or 520-405-1688

================================

see Article by Lane Powell PC Scott M. Edwards and Daniel A. Kittle

I hate to be petty but if you look back to my articles in 2007-2008 you will see that I predicted that ultimately, the way this was done in practice (as opposed to the way the Trusts were created in writing — as opposed to the way the trusts were conceived and codified under the Internal Revenue Code) — neither the beneficiaries nor the Trust have a secured interest in the property.

That means they have no interest in the mortgage and that means that neither the beneficiaries nor the Trust can foreclose because they have no right to foreclose on any mortgage or deed of trust. But the problem is that the beneficiaries are the people who are owed the money — unfortunately payable in a manner that differs in amount and method substantially different than the payment described in the note.

The court noted that its HomeStreet decision identified five statutory requirements for the deduction: (1) the taxpayer must be a “banking, loan, security, or other financial business;” (2) the amount deducted must be “derived from interest” received; (3) the amount deducted was received because of loan or investment; (4) “primarily secured” by a first mortgage or deed of trust; and (5) on “nontransient residential real property.” According to the court, there was no dispute that four of the five requirements were satisfied; the only issue was whether REMICs are “primarily secured” by the underlying mortgages.

On this issue, the court held that to satisfy the “primarily secured” by a mortgage or deed of trust requirement, the bank claiming the deduction must have “some recourse” against the collateral.  The court found that a REMIC investor has “no direct or indirect legal recourse” against the underlying mortgages.

I have no time to elaborate at the moment. But the argument raised by legal beagle Ron Ryan, Esq. in Tucson, Arizona turns out to be correct — 7 years later. The note and mortgage were fatally split; and the note itself was destroyed physically because its terms became irrelevant to the obligation owed to the real creditor. Hence it is impossible to be a holder in due course or a party entitled to enforce (HDC or PETE) on a mortgage loan that was either originated or “transferred” (always without consideration) within the context of a securitization scheme.

Insurance, Credit Default Swaps, Guarantees: Third Party Payments Mitigate Damages to “Lender”

If you are seeking legal representation or other services call our Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.
The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Editor’s Analysis: The topic of conversation (argument) in court is changing to an inquiry of what is the real transaction, who were the parties and did they pay anything that gives them the right to claim they suffered financial damages as a result of the “breach” by the borrower. And the corollary to that is what constitutes mitigation of those damages.

If the mortgage bond derives its value solely from underlying mortgage loans, then the risk of loss derives solely from those same underlying mortgages. And if those losses are mitigated through third party payments, then the benefit should flow to both the investors who were the source of funds and the borrowers balance must be correspondingly and proportionately adjusted. Otherwise the creditor ends up in a position better than if the debtor had paid off the debt.

If your Aunt Sally pays off your mortgage loan and the bank sues you anyway  claiming they didn’t get any payment from YOU, the case will be a loser for the bank and a clear winner for you because of the defense of PAYMENT. The rules regarding damages and mitigation of damages boil down to this — the alleged injured party should not be placed in a position where he/she/it is better off than if the contract (promissory) note had been fully performed.

If the “creditor” is the investor lender, and the only way the borrower received the money was through intermediaries, then those intermediaries are not entitled to claim part of the money that the investor advanced, nor part of the money that was intended for the “creditor” to offset a financial loss. Those intermediaries are agents. And the transaction,  while involving numerous intermediaries and their affiliates, is a single contemporaneous transaction between the investor lender and the homeowner borrower.

This is the essence of the “Single transaction doctrine” and the “step transaction doctrine.” What the banks have been successful at doing, thus far, is to focus the court’s attention on the individual steps of the transaction in which a borrower eventually received money or value in exchange for his promise to pay (promissory note) and the collateral he used to guarantee payment (mortgage or deed of trust). This is evasive logic. As soon as you have penetrated the fog with the single transaction rule where the investor lenders are identified as the creditor and the homeowner borrower is identified as the debtor, the argument of the would-be forecloser collapses under its own weight.

Having established a straight line between the investor lenders and the homeowner borrowers, and identified all the other parties as intermediary agents of the the real parties in interest, the case for  damages become much clearer. The intermediary agents cannot foreclose or enforce the debt except for the benefit of an identified creditor which we know is the group of investor lenders whose money was used to fund the tier 2 yield spread premium, other dubious fees and profits, and then applied to funding loans by wire transfer to closing agents.

The intermediaries cannot claim the house because they are not part of that transaction as a real party in interest. They may have duties to each other as it relates to handling of the money as it passes through various conduits, but their principal duty is to make sure the transaction between the creditor and debtor is completed.

The intermediaries who supported the sale of fake mortgage bonds from an empty REMIC trust cannot claim the benefits of insurance, guarantees or the proceeds of hedge contracts like credit default swaps. For the first time since the mess began, judges are starting to ask whether the payments from the third parties has relevance to the debt of the borrower. To use the example above, are the third parties who made the payments the equivalent of Aunt Sally or are they somehow going to be allowed to claim those proceeds themselves?

The difference is huge. If the third parties who made those payments are the equivalent of Aunt Sally, then the mortgage is paid off to the extent that actual cash payments were received by the intermediary agents. Aunt Sally might have a claim against the borrower or it might have been a gift, but in all events the original basis for the transaction has been reduced or eliminated by the receipt of those payments.

If Aunt Sally sues the borrower, it would  be for contribution or restitution, unsecured, unless Aunt sally actually bought the loan and received an assignment along with a receipt for her funds. If there was another basis on which Aunt Sally made the payment besides a gift, then the money should still be credited to the benefit of the investor lenders who have received what they thought was a bond payable but in reality was still the note payable.

In no event are the intermediary agents to receive those loss mitigation payments when they had no loss. And to the extent that payments were received, they should be used to reduce the receivable of the investor lender and of course that would reduce the payable owed from the homeowner borrower to the investor lender. To do otherwise would be to allow the “creditor” to end up in a much better position than if the homeowner had simply paid off the loan as per the promissory note or faked mortgage bond.

None of this takes away from the fact that the REMIC trust was not source the funds used to pay for the mortgage origination or transfer. That goes to the issue of the perfection of the mortgage lien and not to the issue of how much is owed.

Now Judges are starting to ask the right question: what authority exists for application of the third party payments to mitigate damages? If such authority exists and the would-be foreclosures used a false formula to determine the principal balance due, and the interest payable on that false balance then the notice of delinquency, notice of default, and foreclosure proceedings, including the sale and redemption period would all be incorrect and probably void because they demanded too much from the borrower after having received the third party payments.

If such authority does not exist, then the windfall to the banks will continue unabated — they get the fees and tier 2 yield spread premium profits upfront, they get the payment servicing fees, they get to sell the loan multiple times without any credit to the investor lender, but most of all they get the loss mitigation payments from insurance, hedge, guarantee and bailouts for a third party loss — the investor lenders. This is highly inequitable. The party with the loss gets nothing while a party who already has made a profit on the transaction, makes more profit.

If we start with the proposition that the creditor should not be better off than if the contract had been performed, and we recognize that the intermediary investment bank, master servicer, trustee of the empty REMIC trust, subservicer, aggregator, and others did in fact receive money to mitigate the loss on those certificates and thus on the loans supposedly backing the mortgage bonds, then the only equitable and sensible conclusion would be to credit or allocate those payments to the investor lender up to the amount they advanced.

With the creditor satisfied or partially satisfied the mortgage loan, regardless of whether it is secured or not, is also satisfied or partially satisfied.

So the question is whether mitigation payments are part of the transaction between the investor lender and the homeowners borrower. While this specific application of insurance payments etc has never been addressed we find plenty of support in the case law, statutes and even the notes and bonds themselves that show that such third party mitigation payments are part of the transaction and the expectancy of the investor lender and therefore will affect the borrower’s balance owed on the debt, regardless of whether it is secured or unsecured.

Starting with the DUTY TO MITIGATE DAMAGES, we can assume that if there is such a duty, and there is, then successfully doing so must be applicable to the loan or contract and is so treated in awarding damages without abridgement. Keep in mind that the third party contract for mitigation payments actually refer to the borrowers. Those contracts expressly waive any right of the payor of the mitigation loss coverage to go after the homeowner borrower.

To allow all these undisclosed parties to receive compensation arising out of the initial loan transaction and not owe it to someone is absurd. TILA says they owe all the money they made to the borrower. Contract law says the payments should first be applied to the investor lender and then as a natural consequence, the amount owed to the lender is reduced and so is the amount due from the homeowner borrower.

See the following:

Pricing and Mitigation of Counterparty Credit Exposures, Agostino Capponi. Purdue University – School of Industrial Engineering. January 31, 2013. Handbook of Systemic Risk, edited by J.-P. Fouque and J.Langsam. Cambridge University Press, 2012

  • “We analyze the market price of counterparty risk and develop an arbitrage-free pricing valuation framework, inclusive of collateral mitigation. We show that the adjustment is given by the sum of option payoff terms, depending on the netted exposure, i.e. the difference between the on-default exposure and the pre-default collateral account. We specialize our analysis to Interest Rates Swaps (IRS) and Credit Default Swaps (CDS) as underlying portfolio, and perform a numerical study to illustrate the impact of default correlation, collateral margining frequency, and collateral re-hypothecation on the resulting adjustment. We also discuss problems of current research interest in the counterparty risk community.” pdf4article631

Whether this language  makes sense to you or not, it is English and it does say something clearly — it is all about risk. And the risk of the investor lender was to have protected by Triple A rating, insurance, and credit default swaps, as well as guarantees and provisions of the pooling and servicing agreement, for the REMIC trust. Now here is the tricky part — the banks must not be allowed to say on the one hand that the securitization documents are real even if there was no money trail or consideration to support them on the one hand then say that they are not real for purposes of receiving loss mitigation payments, which they want to keep even if it leaves the real creditor with a net loss.

To put it simply — either the parties to the underwriting of the bond to investors and the loan to homeowners were part of the the transaction (loan from investor to homeowner) or they were not. I fail to see any logic or support that they were not.

And the simple rule of measure of how these parties fit together is found under the single transaction doctrine. If the step transaction under scrutiny would not have occurred but for the principal transaction alleged, then it is a single transaction.

The banks would argue they were trading in credit default swaps and other exotic securities regardless of what lender fit with which borrower. But that is defeated by the fact that it was the banks who sold to mortgage bonds, it was the banks who set up the Master Servicer, it was the banks who purchased the insurance and credit default swaps and it was the underwriting investment bank that promised that insurance and credit default swaps would be used to counter the risk. And it is inescapable that the only risk applicable to the principal transaction between investor lender and homeowner borrower was the risk of non payment by the borrower. These third party payments represent the proceeds of protection from that risk.

Would the insurers have entered into the contract without the underlying loans? No. Would the counterparties have entered into the contract without the underlying loans? No.

So the answer, Judge is that it is an inescapable conclusion that third party loss mitigation payments must be applied, by definition, to the loss. The loss was suffered not by the banks but by the investors whose money they took. The loss mitigation payments must then be applied against the risk of loss on the money advanced by those investors. And the benefit of that payment or allocation is that the real creditor is satisfied and the real borrower receives some benefit from those payments in the way of a reduction of the his payable to the investor.

It is either as I have outlined above or the money — all of it — goes to the borrower, to the exclusion of the investor under the requirements of TILA and RESPA. While the shadow banking system is said to be over $1.2 quadrillion,  we must apply the same standards to ourselves and our cases as we do to the opposing side. Only actual payments received by the participants in the overall obscured investor lender transaction with the homeowner borrower.

Hence discovery must include those third parties and review of their contracts for the court to determine the applicability of third party payments that were actually received in relation to either the subject loan, the subject mortgage bond, or the subject REMIC pool claiming ownership of the subject loan.

The inequality between the rich and not-so-rich comes not from policy but bad arithmetic.

As the subprime mortgage market fell apart in late 2007 and early 2008, many financial products, particularly mortgage-backed securities, were downgraded.  The price of credit default swaps on these products increased.  Pursuant to their collateral agreements, many protection buyers were able to insist on additional collateral protection.  In some cases, the collateral demanded represented a significant portion of the counterparty’s assets.  Unsurprisingly, counterparties have carefully evaluated, and in some cases challenged, protection buyers’ right to such additional collateral amounts.  This tension has generated several recent lawsuits:

• CDO Plus Master Fund Ltd. v. Wachovia Bank, N.A., 07-11078 (S.D.N.Y. Dec. 7, 2007) (dispute over demand     for collateral on $10,000,000 protection on collateralized debt obligations).

• VCG Special Opportunities Master Fund Ltd. v. Citibank, N.A., 08 1563 (S.D.N.Y. Feb. 14, 2008) (same).

• UBS AG v. Paramax Capital Int’l, No. 07604233 (N.Y. Sup. Ct. Dec. 26, 2007) (dispute over demand for $33 million additional capital from hedge fund for protection on collateralized debt obligations).

Given that the collateral disputes erupting in the courts so far likely represent only a small fraction of the stressed counterparties, and given recent developments, an increase in counterparty bankruptcy appears probable.

http://www.capdale.com/credit-default-swaps-the-bankrupt-counterparty-entering-the-undiscovered-country

How Wall Street Perverted the 4 Cs of Mortgage Underwriting

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary CLICK HERE TO GET COMBO TITLE AND SECURITIZATION REPORT

CUSTOMER SERVICE 520-405-1688

Editor’s Comment: 

For thousands of years since the dawn of money credit has been an integral part of the equation.  Anytime a person, company or institution takes your money or valuables in exchange for a promise that it will return your money or property or pay it to someone else (like in a check) credit is involved.  Most bank customers do not realize that they are creditors of the bank in which they deposit their money.  But all of them recognize that on some level they need to know or believe that the bank will be able to make good on its promise to honor the check or pay the money as instructed. 

Most people who use banks to hold their money do so in the belief that the bank has a history of being financially stable and always honoring withdrawals.  Some depositors may look a little further to see what the balance sheet of the bank looks like.   Of course the first thing they look at is the amount of cash shown on the balance sheet so that a perspective depositor can make an intelligent decision about the liquidity or availability of the funds they deposit. 

So the depositor is in essence lending money to the bank upon the assumption of repayment based upon the operating history of the bank, the cash in the bank and any other collateral (like FDIC guarantees).

As it turns out these are the 4 Cs of loan underwriting which has been followed since the first person was given money to hold and issued a paper certificate in exchange. The paper certificate was intended to be used as either a negotiable instrument for payment in a far away land or for withdrawal when directly presented to the person who took the money and issued the promise on paper to return it.

Eventually some people developed good reputations for safe keeping the money.  Those that developed good reputations were allowed by the depositors to keep the money for longer and longer periods.  After a while, the persons holding the money (now called banks) realized that in addition to charging a fee to the depositor they could use the depositor’s money to lend out to other people.  The good banks correctly calculated the probable amount of time for the original depositor to ask for his money back and adjusted loan terms to third parties that would be due before the depositor demanded his money.

The banks adopted the exact same strategy as the depositors.  The 4 Cs of underwriting a loan—Capacity, Credit, Cash and Collateral—are the keystones of conventional loan underwriting. 

The capacity of a borrower is determined by their ability to repay the debt without reference to any other source or collateral.  For the most part, banks successfully followed this model until the late 1990s when they discovered that losing money could be more profitable than making money.  In order to lose money they obviously had to invert the ratios they used to determine the capacity of the borrower to repay the money.  To accomplish this, they needed to trick or deceive the borrower into believing that he was getting a loan that he could repay, when in fact the bank knew that he could not repay it.  To create maximum confusion for borrowers the number of home loan products grew from a total of 5 different types of loans in 1974 to a total of 456 types of loans in 2006.  Thus the bank was assured that a loss could be claimed on the loan and that the borrower would be too confused to understand how the loss had occurred.  As it turned out the regulators had the same problem as the borrowers and completely missed the obscure way in which the banks sought to declare losses on residential loans.

Like the depositor who is trusting the bank based upon its operating history, the bank normally places its trust in the borrower to repay the loan based upon the borrowers operating history which is commonly referred to as their credit worthiness, credit score or credit history.  Like the capacity of the borrower this model was used effectively until the late 1990s when it too was inverted.  The banks discovered that a higher risk of non-payment was directly related to the “reasonableness” of charging a much higher interest rate than prevailing rates.  This created profits, fees and premiums of previously unimaginable proportions.  The bank’s depositors were expecting a very low rate of interest in exchange for what appeared as a very low risk of nonpayment from the bank.  By lending the depositor’s money to high risk borrowers whose interest rate was often expressed in multiples of the rate paid to depositors, the banks realized they could loan much less in principal than the amount given to them by the depositor leaving an enormous profit for the bank.  The only way the bank could lose money under this scenario would be if the loan was actually repaid.  Since some loans would be repaid, the banks instituted a power in the master servicer to declare a pool of loans to be in default even if many of the individual loans were not in default.  This declaration of default was passed along to investors (depositors) and borrowers alike where eventually both would in many, if not most cases, perceive the investment as a total loss without any knowledge that the banks had succeeded in grabbing “profits” that were illegal and improper regardless if one referred to common law or statutory law.

Capacity and credit are usually intertwined with the actual or stated income of the borrower.  Most borrowers and unfortunately most attorneys are under the mistaken belief that an inflated income shown on the application for the loan, subjects the borrower to potential liability for fraud.  In fact, the reverse is true.  Because of the complexity of real estate transactions, a history of common law dating back hundreds of years together with modern statutory law, requires the lender to perform due diligence in verifying the ability of the borrower to repay the loan and in assessing the viability of the loan.  Some loans had a teaser rate of a few hundred dollars per month.  The bank had full knowledge that the amount of the monthly payment would change to an amount exceeding the gross income of the borrower.   In actuality the loan had a lifespan that could only be computed by reference to the date of closing and the date that payments reset.  The illusion of a 30-year loan along with empty promises of refinancing in a market that would always increase in value, led borrowers to accept prices that were at times a multiple of the value of the property or the value of the loan.  Banks have at their fingertips numerous websites in which they can confirm the likelihood of a perspective borrower to repay the loan simply by knowing the borrower’s occupation and geographical location.  Instead, they allowed mortgage brokers to insert absurd income amounts in occupations which never generate those levels of income.  In fact, we have seen acceptance and funding of loans based upon projected income from investments that had not yet occurred where the perspective investment was part of a scam in which the mortgage broker was intimately involved.  See Merendon Mining scandal.

The Cash component of the 4 Cs.  Either you have cash or you don’t have cash.  If you don’t have cash, it’s highly unlikely that anyone would consider a substantial loan much less a deposit into a bank that was obviously about to go out of business.   This rule again was followed for centuries until the 1990s when the banks replaced the requirement of cash from the borrower with a second loan or even a third loan in order to “seal the deal”.  In short, the cash requirement was similarily inverted from past practices.  The parties involved at the closing table were all strawmen performing fees for service.  The borrower believed that a loan underwriting was taking place wherein a party was named on the note as the lender and also named in the security instrument as the secured party. The borrower believed that the closing could never have occurred but for the finding by the “underwriting lender” that the loan was proper and viable.  The people at the closing table other than the borrower, all knew that the loan was neither proper nor viable.  In many cases the borrower had just enough cash to move into a new house and perhaps purchase some window treatments.  Since the same credit game was being played at furniture stores and on credit cards, more money was given to the borrower to create fictitious transactions in which furniture, appliances, and home improvements were made at the encouragement of retailers and loan brokers.  Hence the cash requirement was also inverted from a positive to a negative with full knowledge by the alleged bank who didn’t bother to pass this knowledge on to its “depositors” (actually, investors in bogus mortgage bonds). 

Collateral is the last of the 4 Cs in conventional loan underwriting.  Collateral is used in the event that the party responsible for repayment fails to make the repayment and is unable to cure it or work out the difference with the bank.  In the case of depositors, the collateral is often viewed as the full faith and credit of the United States government as expressed by the bank’s membership in the Federal Deposit Insurance Corporation (FDIC).  For borrowers collateral refers to property which they pledge can be used or sold to satisfy obligation to repay the loan.  Normally banks send one or even two or three appraisers to visit real estate which is intended to be used as collateral.  The standard practice lenders used was to apply the lower appraisals as the basis for the maximum amount that they would lend.  The banks understood that the higher appraisals represented a higher risk that they would lose money in the event that the borrower failed to repay the loan and property values declined.  This principal was also used for hundreds of years until the 1990s when the banks, operating under the new business model described above, started to run out of people who could serve as borrowers.  Since the deposits (purchases of mortgage bonds) were pouring in, the banks either had to return the deposits or use a portion of the deposits to fund mortgages regardless of the quality of the mortgage, the cash, the collateral, the capacity or any other indicator that a normal reasonable business person would use.  The solution was to inflate the appraisals of the real estate by presenting appraisers with “an offer they couldn’t refuse”.  Either the appraiser came in with an appraisal of the real property at least $20,000 above the price being used in the contract or the appraiser would never work again.  By inflating the appraisals the banks were able to move more money and of course “earn” more fees and profits. 

The appraisals were the weakest link in the false scheme of securitization launched by the banks and still barely understood by regulators.  As the number of potential borrowers dwindled and even with the help of developers raising their prices by as much as 20% per month the appearance of a rising market collapsed in the absence of any more buyers.

Since all the banks involved were holding an Ace High Straight Flush, they were able to place bets using insurance, credit default swaps and other credit enhancements wherein a movement of as little as 8% in the value of a pool would result in the collapse of the entire pool.  This created the appearance of losses to the banks which they falsely presented to the U.S. government as a threat to the financial system and the financial security of the United States.  Having succeeded in terrorizing the executive and legislative branches and the Federal Reserve system, the banks realized that they still had a new revenue generator.  By manufacturing additional losses the government or the Federal Reserve would fund those losses under the mistaken belief that the losses were real and that the country’s future was at stake.  In fact, the country’s future is now at stake because of the perversion of the basic rules of commerce and lending stated above.  The assumption that the economy or the housing market can recover without undoing the fraud perpetrated by the banks is dangerous and false.  It is dangerous because more than 17 trillion dollars in “relief” to the banks has been provided to cover mortgage defaults which are at most estimated at 2.6 trillion.  The advantage given to the megabanks who accepted this surplus “aid” has made it difficult for community banks and credit unions to operate or compete.   The assumption is false because there is literally not enough money in the world to accomplish the dual objectives of allowing the banks to keep their ill gotten gains and providing the necessary stimulus and rebuilding of our physical and educational infrastructure.  

The simple solution that is growing more and more complex is the only way that the U.S. can recover.  With the same effort that it took in 1941 to convert an isolationist largely unarmed United States to the most formidable military power on the planet, the banks who perpetrated this fraud should be treated as terrorists with nothing less than unconditional surrender as the outcome.  The remaining 7,000 community banks and credit unions together with the existing infrastructure for electronic funds transfer will easily allow the rest of the banking community to resume normal activity and provide the capital needed for a starving economy. 

See article:  www.kcmblog.com/2012/04/05/the-4-cs-of-mortgage-underwriting-2

CONTAMINATED COLLATERAL: THE ACHILLES HEEL FOR BANKERS

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

WAIT FOR ARMAGEDDON OR PREVENT IT?

“Thus a decision awaits us which is more a matter of timing than substance. The system is going to collapse in its current form because it is and always was a pyramid scheme. They all fail every time. The question is when. So the only question that remains is whether we will assert ourselves now and start building from within, or pass the opportunity and try to arise from the rubble of what remains when this pyramid collapses under its own weight. Or, put another way, do we want to be the Phoenix that rises out of its own ashes, or the falcon that does what is practical to stay alive and bring home dinner? It seems that the Occupyers have that answer — do it now!” NEIL F GARFIELD, LIVINGLIES.ME

THE BIGGER THE LIE, THE HARDER THE FALL

EDITOR’S NOTE: The simple fact is that they don’t have any collateral in most instances and their assets are accordingly grossly overstated on their balance sheet. And the fact remains, no matter how they try to spin it, that Wall Street simply dipped into the pockets of people’s savings, pensions and taxes, pretended the money was their own, and then convinced people to borrow their own retirement money in ways that could never be paid.Now they claim to be creditors to whom the debt is owed even though the money came from the very person they claiming owes them still more money. And they are getting paid very well to assume this position while the average person of even substantial means is being ordered to “assume the position” to take it again.
With credit card interest at 20%-30%, private student loans going to 18%, and home equity being an irresistible target for Wall Street game players, people are now left without any meaningful amount of savings, a decrease in the amount of their pension plans, and a nearly permanent block to ever getting out of debt. And Wall Street is still successfully positioning itself as the injured party to whom the debt is owed. According to them, the Occupyers just lack the sophistication to understand why the Banks are not at fault for anything.
In truth our reliance on self-governance by Wall Street was misplaced the moment we allowed them to go public and transfer the risk to the public. In the end the people always get the shaft no matter which way they turn and no matter which “class”they think they are in. Each person is getting shafted by the Banks under the current infrastructure regardless of whether they think of themselves as an investor, a consumer, a creditor or a debtor.
The collateral claimed by banks is irretrievably broken by their own intervention in the chain of title. But the really pernicious quality of this mess is that people are under the gun by virtue of debt that was forced upon them using their own money. The cost of servicing that debt that steadily increased just as wages stagnated. But by “giving” people the money to buy things, the banks created the appearance of real commerce. In reality most of the commerce was built on debt — but the other side of the equation is never mentioned. The debt arose not just because someone borrowed money but also because someone loaned the money. And the parties who loaned the money were and remain the people themselves who, as a class of taxpayers, savers and pensioners, are the same on BOTH SIDES OF EVERY TRANSACTION.
If you ask the average 401k person whether he would have taken money out to purchase something, their answer is almost always negative. Yet placed in the hands of money managers who were institutional investors, these same people in fact did borrow the money indirectly without any knowledge of what place they held in the securitization hierarchy. They were dead last. As the source of the funds, they had a sure loss coming eventually whether it was a mortgage, credit card, or student loan debt. Then, encouraged by promises of never-ending replacement loans, they accepted loan products that were unworkable. The result is that they have no money to pay their debt because their own money was used to create the debt and now of course that money is gone — into the pockets of Bankers as fees and profits — they are guaranteed to have diminished capacity to pay off the debt.
Bankers always resist regulation. And “free market” believers are drawn into the narrative by ideology and the mistaken factual belief that the lenders, as a class and the borrowers, as a class, are not one and the same. Ask one of these bankers or “free market” enthusiasts whether Wall Street should be allowed unlimited access into the pension funds and taxpayer funds to lend people their own money, raking off absurd profits, and they would probably not be able to sustain any argument against regulation. To be sure, in the interest of financial liquidity, the function of Wall Street has a value and they should be paid for their services — a real amount based upon real service.  
The problem arose when through deregulation the goal of liquidity became the only goal. That is why, in the absence of regulation, courtesy of legislation passed in 1998, Wall Street was the only one at the table who could  pursue self-interest. Everyone else had to go through their gate if they wanted to do anything. And so they were allowed to issue private currency in a very public way, drawing upon funds from hardworking people who had earned the pensions that awaited them and then, in pursing their interests for ever increasing profits and fees, produced a stupid amount of liquidity that exceeded real money issued by all the governments around the world. They didn’t just exceed it. They issued 12 times the amount of real money in the world.
Now in order to make the profits they intended, they are demanding that taxpayer money be used to cover the profits and fees they think they earned. Every time we do that the taxpayer is paying another dollar toward pornographic profits, salaries and bonuses on Wall Street, while our lives, our infrastructure and our prospects crumble under the weight of a financial infrastructure that must collapse at some point because there literally is not enough money in the world to cover the paper issued by Wall Street.
Thus a decision awaits us which is more a matter of timing than substance. The system is going to collapse in its current form because it is and always was a pyramid scheme. They all fail every time. The question is when. So the only question that remains is whether we will assert ourselves now and start building from within, or pass the opportunity and try to arise from the rubble of what remains when this pyramid collapses under its own weight. Or, put another way, do we want to be the Phoenix that rises out of its own ashes, or the falcon that does what is practical to stay alive and bring home dinner? It seems that the Occupyers have that answer — do it now!

Behold the dangers of contaminated collateral [updated]

Posted by John McDermotton Oct 10 22:06.

Yale University’s Gary Gorton and Guillermo Ordoñez have a new working paper out on the role of collateral in financial crises. This may not pass for exciting news in some places but FT Alphaville is not like other places. Gorton is renowned for his work on shadow banking and wrote an excellent short primer on the recent crisis.

(Update: He’s also, as our commenters point out, the man behind some of the AIG’s risk-management models. Take that as you will, we still think there are some interesting insights in the paper.)

The paper, “Collateral Crises”, uses complicated mathematics we don’t understand want to discuss at this point. But don’t let that put you off: it has some important insights for those interested in the role of information and collateral in the financial system.

First, a very important caveat: the below refers to a model. The empirical evidence presented in the paper is labelled “Very Preliminary and Incomplete” so consider the ideas below as educated musings rather than empirical statements.

The hypothesis is a neat one and although the authors readily admit it’s just one way of looking at recent troubles, it’s an interesting way of thinking about how the crisis hit when it hit.

The argument runs something like this: short-term private funding markets such as money markets or interbank markets work by dealing in “information-insensitive debt”. In other words, there’s buying and selling without anyone worried about adverse selection. Collateral is put down and — assuming it’s AAA — no questions are asked. These ideas have been suggested before (such as here) but this paper is the first to look at its macroeconomic implications.

In particular, it uses this micro model to explain how small shocks can translate into big events. To understand the professors’ logic it’s useful to grasp their version of financial crisis events (our emphasis):

Financial crises are hard to explain without resorting to large shocks. But, the recent crisis, for example, was not the result of a large shock. The Financial Crisis Inquiry Commission (FCIC) Report (2011) noted that with respect to subprime mortgages: ”Overall, for 2005 to 2007 vintage tranches of mortgage-backed securities originally rated triple-A, despite the mass downgrades, only about 10% of Alt-A and 4% of subprime securities had been ’materially impaired’-meaning that losses were imminent or had already been suffered-by the end of 2009” (p. 228-29). Park (2011) calculates the realized principal losses on the $1.9 trillion of AAA/Aaa-rated subprime bonds issued between 2004 and 2007 to be 17 basis points as of February 2011.  The subprime shock was not large. But, the crisis was large…

The authors hypothesise that when these types of collateral markets exist, no useful information is created because it’s too costly (at least for market participants in the short-term) to do so. Thus there’s no information that can help one distinguish between good and bad collateral — between Scandinavian government bonds, say, and AAA-rated sub-prime mortgage bonds.

Indeed, there’s more consumption and lending when there are no questions asked. The longer the boom continues, the more ignorance percolates and bad collateral gets into the system.

When information is not produced and the perceived quality of collateral is high enough, firms with good collateral can borrow, but in addition some firms with bad collateral can borrow. In fact, consumption is highest if there is never information production, because then all firms can borrow, regardless of their true collateral quality. The credit boom increases consumption because more and more firms receive 3financing and produce output. In our setting opacity can dominate transparency and the economy can enjoy a blissful ignorance.

Here’s the problem. The bigger the lie, the harder the fall:

In this setting we introduce aggregate shocks that may decrease the perceived value of collateral in the economy. It is not the leverage per se that allows a small negative shock to have a large effect. The problem is that after a credit boom, in which more and more firms borrow with debt backed by collateral of unknown type (but with high perceived quality), a negative aggregate shock affects more collateral than the same aggregate shock would affect when the credit boom was shorter or if the value of collateral was known. Hence, the size of the downturn depends on how long debt has been information-insensitive in the past.

Gorton and Ordoñez are not rubbishing the importance of leverage — indeed they’re sort of talking about leveraged opacity. But their original argument is that the sub-prime shock was not large and not in itself the cause of the subsequent fall-out. It was the overall reduction in perceived quality of collateral.

A negative aggregate shock reduces the perceived quality of all collateral. This may or may not trigger information production. If, given the shock, households have an incentive to learn the true quality of the collateral, firms may prefer to cut back on the amount borrowed to avoid costly information production, a credit constraint. Alternatively, information may be produced, in which case only firms with good collateral can borrow. In either case, output declines because the short-term debt is not as effective as before the shock in providing funds to firms.

There’s a fair bit to critique here and not just to state the obvious point that credit rating agencies are supposed to provide the sort of information found useful by market participants. Leverage also probably does matter “per se”: it affects the pace in which margin calls come in and funding crises hit. Moreover any notion of intent is missing here — opacity serves some interests more than others.

Still, there are some interesting ideas here and we’ll be cockahoop to see some empirical evidence about the importance of not being able to separate good and bad collateral.

The big sort, rather than the big short.

Update II: Not for the first time, the comments section on an FT Alphaville post are more enlightening than the main text. Scroll down for more, and do contact rob2.7 if you can speak complex mathematics.

Related links:
Shadow banking – from Giffen goods to Triffin troubles – FT Alphaville
Regulating the shadow banking system – Marginal Revolution
Interview with Gary Gorton – Minneapolis Fed
Gary Gorton on Financial Crises – The Browser” href=”http://thebrowser.com/interviews/gary-gorton-on-financial-crises” target=”_blank”>Gary Gorton on Financial Crises – Five Books Interviews

%d bloggers like this: