Deutsch and Goldman Lose Bid to Dismiss FHFA Lawsuit for Fraud

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Administrative Process May Provide a Lift to Borrowers

Editor’s Comment: Following on the heals of a similar ruling against JPMorgan Chase, Judge Denise Cote, denied the motion to dismiss the lawsuit of the Federal Housing Finance Agency that overseas Fannie and Freddie.

Simply put the agency is charging the investment banks with intentionally misrepresenting the underwriting standards that were in use during the mortgage meltdown. To put it more simply, the fraud we know that occurred at ground zero (the “closing” table) is being traced up the line to the banks that were pulling the strings and causing the fraud.

The allegations of course are insufficient in and of themselves to use as proof of anything. They are unproven allegations in a civil court suit in Federal Court in Manhattan. BUT there is an interesting argument to be made here that should not be ignored. I did a lot of work in administrative law when I was practicing full-time.

The procedure that any agency follows in filing such a lawsuit is something that should be pointed out when you are making arguments about fraud in the origination or assignments of loans.

In order for an agency to file suit, there must be a “finding” that the facts alleged in the complaint are true. In order for that to happen there must be an investigation and it must be brought before a committee or board for a finding of probable cause.

Normally the finding of probable cause would result in an administrative action brought before a hearing officer that would result in either acquittal of the offending suspect (respondent) or fines, penalties or even revocation of their right to do business with the agency or under the auspices of the agency.

Here the action is brought in civil court which must mean that the findings were strong enough to go beyond probable cause to establish in the findings of the agency that these violations did occur beyond a reasonable doubt. Hence, it could be argued, given the structure and process of administrative actions, that the investment banks have already been found by administrative agencies to be fraudulent.

Then you go to the facts alleged and see what those facts were (see article on JPMorgan denial of dismissal for copy of the complaint). Where there are similarities, you can allege the same thing and apply it to the origination of the loan and the so-called assignments and claims of securitization. AND you can say that there has already been an administrative finding that the fraud occurred, which is persuasive authority at a minimum.

In these cases the investment banks are accused of intentionally lying about the underwriting standards used in origination of the loans — something we have been saying here for  years.

That means it was no mistake that they failed to put the name of the real payee on the note and mortgage and it was no mistake that they failed to reference the REMIC or the pooling and servicing agreement which set the terms of repayment, sometimes in direct contradiction to the terms expressed in the note that they induced the borrower to sign. The information was intentionally withheld from the borrower and promptly used with Fannie and Freddie knowing ti was false, as to verifications of value, income viability etc. (see previous post).

In essence the FHFA is saying the same thing that the investors are saying, which is the same thing that the borrowers are saying — these origination documents are worthless scraps of paper replete with deficiencies, lies and misrepresentations, unsupported by consideration and unenforceable.

The defense of the investment banks is that they HAVE been enforcing the notes and mortgages (Deeds of trust). They are saying that since the courts have let most of the cases go to foreclosure, the documents must be valid and enforceable. If improper underwriting standards had been used, or more properly stated, if underwriting standards were ignored, then the borrower would have had a right to rescission, which the courts have largely rejected. It is circular reasoning but it works, for the most part when it is a single homeowner against a big bank.

But when it is institution against institution its not so easy to pull the wool over the judge’s eyes. AND unlike the borrowers, the FHFA is not plagued with guilt over whether they were stupid to begin with and therefore deserve the punishment of taking the largest loss of their lives.

The answer to that is that the banks were only able to “enforce” as a result of the ignorance of the judges, lawyers and borrowers as to the truth behind the facts of each loan origination, assignment etc.

By Jonathan Stempel, Reuters

A U.S. judge rejected bids by Goldman Sachs Group Inc (GS.N) and Deutsche Bank AG (DBKGn.DE) to dismiss a federal regulator’s lawsuits accusing them of misleading Fannie Mae (FNMA.OB) and Freddie Mac (FMCC.OB) into buying billions of dollars of risky mortgage debt.

In separate decisions on Monday, U.S. District Judge Denise Cote in Manhattan said the Federal Housing Finance Agency may pursue fraud claims over some of the banks’ representations in offering materials regarding mortgage underwriting standards.

The FHFA had sued over certificates that Fannie Mae and Freddie Mac, known as government-sponsored enterprises, had bought between September 2005 and October 2007.

Goldman underwrote about $11.1 billion of the certificates, and Deutsche Bank roughly $14.2 billion, the regulator has said.

Michael DuVally, a Goldman spokesman, declined to comment, as did Deutsche Bank spokeswoman Renee Calabro. Trials in both cases are scheduled to begin in September 2014.

Last year, the FHFA filed 18 lawsuits against banks and finance companies over mortgage losses suffered by Fannie Mae and Freddie Mac on roughly $200 billion of securities.

Cote handles 16 of the lawsuits, and previously refused to dismiss its cases against Bank of America Corp’s (BAC.N) Merrill Lynch unit, JPMorgan Chase & Co (JPM.N) and UBS AG (UBSN.VX).

In her Deutsche Bank ruling, the judge said that while the offering materials said representations were “preliminary” and “subject to change,” their use suggested that the German bank “fully intended the GSEs to rely on” them.

Meanwhile, Cote rejected what she called Goldman’s “legally dubious” claim not to be liable over prospectus supplements it did not write, saying “it is difficult to square with the fact that the bank’s name is prominently displayed on each.”

She dismissed some claims over representations concerning owner-occupied homes and loan values.

The FHFA became the conservator of Fannie Mae and Freddie Mac after federal regulators seized the mortgage financiers on September 7, 2008.

In May, Deutsche Bank agreed to pay $202.3 million in a separate federal probe, in which its MortgageIT unit admitted it had lied to the U.S. government over whether its loans were eligible for federal mortgage insurance.

Cote said it is too soon to decide liability over MortgageIT activity that predated its 2007 takeover by Deutsche Bank.

The cases are Federal Housing Finance Agency v. Deutsche Bank AG et al, U.S. District Court, Southern District of New York, No. 11-06192; and Federal Housing Finance Agency v. Goldman Sachs & Co et al in the same court, No. 11-06198.

(Reporting By Jonathan Stempel in New York; Editing by John Wallace, Tim Dobbyn and M.D. Golan)

Current Bank Plan Is Same as $10 million Interest Free Loan for Every American

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“I wonder how many audience members know that Bair’s plan is more or less exactly the revenue model for all of America’s biggest banks. You go to the Fed, get a buttload of free money, lend it out at interest (perversely enough, including loans right back to the U.S. government), then pocket the profit.” Matt Taibbi

From Rolling Stone’s Matt Taibbi on Sheila Bair’s Sarcastic Piece

I hope everyone saw ex-Federal Deposit Insurance Corporation chief Sheila Bair’s editorial in the Washington Post, entitled, “Fix Income Inequality with $10 million Loans for Everyone!” The piece might have set a world record for public bitter sarcasm by a former top regulatory official.

In it, Bair points out that since we’ve been giving zero-interest loans to all of the big banks, why don’t we do the same thing for actual people, to solve the income inequality program? If the Fed handed out $10 million to every person, and then got each of those people to invest, say, in foreign debt, we could all be back on our feet in no time:

Under my plan, each American household could borrow $10 million from the Fed at zero interest. The more conservative among us can take that money and buy 10-year Treasury bonds. At the current 2 percent annual interest rate, we can pocket a nice $200,000 a year to live on. The more adventuresome can buy 10-year Greek debt at 21 percent, for an annual income of $2.1 million. Or if Greece is a little too risky for you, go with Portugal, at about 12 percent, or $1.2 million dollars a year. (No sense in getting greedy.)

Every time I watch a Republican debate, and hear these supposedly anti-welfare crowds booing the idea of stiffer regulation of Wall Street, I wonder how many audience members know that Bair’s plan is more or less exactly the revenue model for all of America’s biggest banks. You go to the Fed, get a buttload of free money, lend it out at interest (perversely enough, including loans right back to the U.S. government), then pocket the profit.

Considering that we now know that the Fed gave out something like $16 trillion in secret emergency loans to big banks on top of the bailouts we actually knew about, you might ask yourself: How are these guys in financial trouble? How can they not be making mountains of money, risk-free? But they are in financial trouble:

• We’re about to see yet another big blow to all of the usual suspects – Goldman, Citi, Bank of America, and especially Morgan Stanley, all of whom face potential downgrades by Moody’s in the near future.

We’ve known this was coming for some time, but the news this week is that the giant money-managing firm BlackRock is talking about moving its business elsewhere. Laurence Fink, BlackRock’s CEO, told the New York Times: “If Moody’s does indeed downgrade these institutions, we may have a need to move some business around to higher-rated institutions.”

It’s one thing when Zero Hedge, William Black, myself, or some rogue Fed officers in Dallas decide to point fingers at the big banks. But when big money players stop trading with those firms, that’s when the death spirals begin.

Morgan Stanley in particular should be sweating. They’re apparently going to be downgraded three notches, where they’ll be joining Citi and Bank of America at a level just above junk. But no worries: Bank CFO Ruth Porat announced that a three-level downgrade was “manageable” and that only losers rely totally on agencies like Moody’s to judge creditworthiness. “A lot of clients are doing their own credit work,” she said.

• Meanwhile, Bank of America reported its first-quarter results yesterday. Despite that massive ongoing support from the Fed, it earned just $653 million in the first quarter, but astonishingly the results were hailed by most of the financial media as good news. Its home-turf paper, the San Francisco Chronicle, crowed that BOA “Posts Higher Profits As Trading Results Rebound.” Bloomberg, meanwhile, summed up results this way: “Bank of America Beats Analyst Estimates As Trading Jumps.”

But the New York Times noted that BOA’s first-quarter profit of $653 million was down from $2 billion a year ago, and paled compared to results of more successful banks like Chase and Wells Fargo.

Zero Hedge, meanwhile, posted an amusing commentary on BOA’s results, pointing out that the bank quietly reclassified nearly two billion dollars’ worth of real estate loans. This is from BOA’s report:

During 1Q12, the bank regulatory agencies jointly issued interagency supervisory guidance on nonaccrual policies for junior-lien consumer real estate loans. In accordance with this new guidance, beginning in 1Q12, we classify junior-lien home equity loans as nonperforming when the first-lien loan becomes 90 days past due even if the junior-lien loan is performing. As a result of this change, we reclassified $1.85B of performing home equity loans to nonperforming.

In other words, Bank of America described nearly two billion dollars of crap on their books as performing loans, until the government this year forced them to admit it was crap.

ZH and others also noted that BOA wildly underestimated its exposure to litigation, but that’s nothing new. Anyway, despite the inconsistencies in its report, and despite the fact that it’s about to be downgraded – again – Bank of America’s shares are up again, pushing $9 today.

Fitch cuts Ratings on Goldman, Deutsche, five other large banks

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EDITOR’S COMMENT: Why would regulatory challenges be a threat to the financial viability of the Banks? answer: because the challenges they are talking about drive a stake though the heart of lies perpetuated by those Banks. the result is that they could be required to tell the truth. If they tell the truth, then they have a double whammy — (1) they don’t actually have the assets they report on their balance sheet which would immediately put them in violation of reserve requirements causing the immediate takeover and dissolution of those Banks and (2) they have a huge liability which is also not properly reflected on their balance sheet for damages and buybacks and potentially punitive damages for lying to investors and borrowers. Overstated assets and understated liabilities would place the Banks in negative net worth position and that would cause them to collapse.

This would actually be more of a change in our political system than in our financial system, notwithstanding the scare tactics of TBTF (too big to fail), which is nothing more than a living lie. Dissolution of the mega banks would shift Market power back to the more than 7,000 OTHER banks, and cut the amount of Bank money in politics by about 95% thus breaking the Bank oligopoly. A more decentralised Banking system would result in more intelligent loans being available to credit worthy start-ups and expansion of small businesses, who account for more than 70% of all U. S. Employment. Employment would rise because new jobs would be created. As more people went back to work, more taxes would be paid, thus giving Federal, State and local governments desperately needed tax revenue.

So overall the rating agencies are in agreement: the Mega Banks may be in for hard times. The only reason it isn’t a certainty is they don’t know if the public has the political will to kick the incumbents out of office and restore “order” to our political and economic system.

Fitch cuts Goldman, Deutsche, five other large banks
http://www.reuters.com/article/2011/12/16/us-banks-ratings-fitch-idUSTRE7BE2AO20111216?rpc=71&feedType=RSS&feedName=topNews <http://www.reuters.com/article/2011/12/16/us-banks-ratings-fitch-idUSTRE7BE2AO20111216?rpc=71&feedType=RSS&feedName=topNews>

USA NAME CHANGE: UNITED BANKS OF AMERICA

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TOO BIG TO FAIL AND TOO BIG TO FIGHT OR REGULATE

SEE 74051381-Judge-Rakoff-s-Ruling-in-S-E-C-v-Citigroup-Global-Markets

SEE JUDGE BLOCKS CITI SETTLEMENT WITH SEC

SEE LONE JUDGE EXPRESSES FURY AT BANKS AND REGULATORS

SEE NEITHER REASONABLE, NOR FAIR, NOR ADEQUATE, NOR IN THE PUBLIC INTEREST

EDITORIAL COMMENT: Investors lost $700 million in one deal while Citi made $160 million. The loss to investors was intentional, knowing with full appreciation of the consequences. They weren’t acting as an intermediary bank or broker, they were just acting as a common grifter. The proposed settlement was $285 million with no admission of any of the facts supporting the case and no restitution — i.e., giving back the money they stole. Now multiply that deal 25,000 times and you get the full scale of the securitization scam that is ripping apart the economies of this nation and most nations of the world. The amount exceeds the gross national product of several countries combined including our own.

There is no greater threat to our national security than the power wielded by the Banks and what they are willing to do with that power. For many Americans the damage is already done — their lives destroyed by the exact same tactics deployed against “smarter” people who manage institutional investment funds. For the rest, the next waves are coming and those who thought they were immune from the crisis or affected only slightly are in for a rude awakening. The risk rises every day of an unruly explosion of anger unemployed and underemployed population that can’t afford to put a roof over their heads, eat decent food, and get proper medical care.

The answer from the SEC is that the Banks are too big to fight against. The Banks have greater resources. We have a trillion dollar military budget allegedly for national security but we have no money to assure domestic security and tranquility? The answer from the federal reserve is non-interest loans of $7 trillion to the same crooks that started the whole mess and stole the money, property and futures of every American and future generations. The answer from the U.S. Treasury has been direct infusion of money into the same institutions who cheated, lied, and stole money from the taxpayers, investors and homeowners.

In any ordinary case of fraud, restitution is the norm. Then come the penalties, civil and criminal. Let anyone of you do anything remotely similar to what the Banks did and you will end up in jail with most of your assets seized to make good on restitution. Look at Madoff and other cases where receivers and trustees were appointed to decide on how to divide the restitution payments and how to collect up the assets.

Changing the rules as a result of the size of the fraud is the rule of men, not the rule of law. If we are not a nation of laws then we are nothing more than a banana republic with dictators running the country. If the SEC is stating the policy of this country that it won’t enforce the laws against the Banks because they lack the resources to prosecute then the country has surrendered its sovereignty to the Banks. UBA, not USA.

Judge Rakoff is the lone voice in the wilderness of chicken-hearted Judges and lawyers who won’t go for the jugular to save their own country from banksters who have siphoned off the life-blood of the country and are now using our weakened condition against us. Look to history. This can only end up one way — a general strike or uprising of people who force change when they can’t eat anymore and can’t find a place to live. This isn’t a revisit to the Great Depression, it is a coup engineered by the Banks who have taken control of the country, its policies, and its direction.

President Obama needs to come out of his ivory tower and engage the Banks in a fight to the death, with or without the direct help of congress. There are enough laws, rules and regulations to enforce that will take care of the situation. The people know it, understand it and want it. If Obama won’t give the people what they want then he can kiss his second term good-bye.

FROM JUDGE RAKOFF’S ORDER:

“According to the S.E.C.’s Complaint, after Citigroup realized in early 2007 that the market for mortgage backed securities was beginning to weaken,    tigroup created a billion-dollar Fund (known as “Class v Funding IIIU) that allowed it to dump some dubious assets on misinformed investors. This was accomplished by Citigroup’s misrepresenting that the Fund’s assets were attractive investments rigorously selected by an independent investment adviser, whereas in fact    tigroup had arranged to include in the portfolio a substantial percentage of negative    projected assets and had then taken a short position in those very assets it had helped select….

“…Citigroup knew in advance that it would be difficult to sell the Fund if Citigroup disclosed its intention to use it as a vehicle to unload
hand-picked set of negatively projected assets, see Stoker Complaint…

“…this would appear to be tantamount to an allegation of knowing and fraudulent intent (“scienter,” in the lingo of securities law)…

“Finally, in any case like this that touches on the transparency of financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interest in knowing the truth. In much of the world, propaganda reigns, and truth is confined to secretive, fearful whispers. Even in our nation, apologists for suppressing or obscuring the truth may always be found. But the S.E.C., of all agencies, has a duty, inherent in its statutory mission, to see that the truth emerges; and if    fails to do so, this Court must not, in the name of deference or convenience, grant judicial enforcement to the agency’s contrivances.”

Editor’s Note: One more thing (although there are many others that could be added here): Why is it so hard for America to accept that the investors were defrauded in the same scheme that sold bogus financial products to homeowners who are now evicted out of their homes. Why are we picking up one end of the stick and not the other. Why are we blaming the victims on one end of the stick and blaming the banks on the other? Where is the case for fraud in the execution, fraud in the inducement, damages and restitution for homeowners?

It is a fair bet that virtually 100% of those who signed mortgage papers had no inkling that they were issuers of paper that would be used as securities, valued as securities and treated as securities and that therefore they would be liable not only as Payors under the so-called notes, but as issuers in a fraudulent securities issuance scheme about which they had neither knowledge nor even access to knowledge.

If you track the 51 cases so far in which the SEC found this type of fraud, you see the same pattern over and over again. By what standard of conduct that will guide us in the future as to our behavior, will we be able to look into the face of homeowners who were tricked into signing papers in loan derivatives that burgeoned from a selection of 4-5 in 1974 to 450 possible loan products in 2003? How can we justify blaming them and expect anything other than chaos in the marketplace as a result?

In a world where victims are “deadbeats” (if they are individuals) and thieves are the center piece in the halls of power, there are no standards that we can depend upon — just the expectation that some small group of people might tell us that what we had we don’t have anymore because they said so. Nothing could undermine confidence in the commercial markets than that — and yet the media, the government and big business and Banks are pursuing exactly that policy with an obvious end result undermining the very structure of our government, our society and our morality. Money has now made its own morality and is the alter at which we now worship above all else. Do we submit?

THINGS KEEP GETTING WORSE FOR GOLDMAN: MORE SUBPOENAS IS A GOOD THING

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THE WORSE THINGS GET FOR GOLDMAN THE BETTER PROSPECTS ARE FOR THE COUNTRY

EDITOR’S NOTE: Looks like the divine right of banks is being challenged. See THE DIVINE RIGHT OF BANKS We have a tendency to look at things the way way they are rather than the way they might be in the future. We formulate plans and beliefs around the reality of the moment, instead of viewing it as a process. This process is an evolving judicial and administrative process in which the banks have tried to insert themselves by going to legislators who are less and less willing to get themselves portrayed as in bed with bankers. Goldman looked like it was above the law, unreachable by anyone, and now it is being brought to justice.

If the economy is ever going to be restored to anything resembling its former luster, and if the debt and currency of the United States is going to survive as the envy of the world, we need to start dealing with the truth. Moody’s is getting ready to downgrade, U.S. debt, the consequences of which at this time could be tragic. Of course that is the same Moody’s that gave AAA ratings to mortgage bonds with nothing in them, let alone mortgages.

And the truth is that the mortgage bonds were empty and so were the mortgages. There is no actual asset in the pools or trusts, and there never was, nor was any such asset planned, because the real asset was diverted from the investors as the true creditors and owner of the asset to the benefit of the entities and people involved in the illusion of securitization. The result was a feeding frenzy where the reported revenues and profits of Wall Street trading the same paper back and forth multiple times is now reported as half of our GDP. It’s a lie, and everyone knows it. The onyl reson it is perpetuated is because everyone is afraid of what will happen if we all agree it’s a lie and start using real facts  and figures.

Our acceptance of the lie is only the obvious thing that we can do, and it is the only thing we can do. As to the worry warts who believe the sky will fall of we admit that our GDP is horrifically misstated, my answer is that by restoring the wealth that Wall Street took to the core population of America, the correction downward will be more than offset by the anticipated returns for forward looking earnings, new business, innovation and new employment. The sooner the better. So the worse things look for Goldman and the other megabanks, the better our prospects look for the future.

 

 

Goldman Said to Get Subpoena Over Its Role in Crisis

By ANDREW ROSS SORKIN and SUSANNE CRAIG
District Attorney Cyrus Vance Jr. of Manhattan is said to be investigating Goldman Sachs.Stan Honda/Agence France-Presse — Getty ImagesCyrus Vance Jr., the district attorney of Manhattan, is said to be investigating Goldman Sachs.

9:21 p.m. | Updated

The bad news just keeps coming for Goldman Sachs.

The Wall Street investment bank has received a subpoena from the office of the Manhattan district attorney, which is investigating Goldman’s role in the financial crisis, said one person familiar with the subpoena.

It comes amid increased enforcement scrutiny of the company, which has faced blistering criticism that it shorted — or bet against — the mortgage market before it collapsed and that it knowingly sold bundles of bad mortgages to its clients. Goldman denies these accusations.

The inquiry stems from a 650-page Senate report from the Permanent Subcommittee on Investigations that indicated Goldman had misled clients and Congress about its practices related to mortgage-linked securities.

Senator Carl Levin, Democrat of Michigan, who led the Congressional inquiry, had sent his findings to the Justice Department to figure out whether executives broke the law. The agency said it was reviewing the report.

The subpoena means several government agencies may be running parallel, and possibly competing, investigations. The subpoena arrived Friday and is limited to ground covered in the Senate report, said the person familiar with it, who was not authorized to speak on the record. Subpoenas are requests for information and do not necessarily mean charges against Goldman or individuals at the company are inevitable.

Still, the development of a subpoena from the Manhattan district attorney, Cyrus R. Vance Jr., did not seem to surprise investors.

“This news is not unexpected,” Christopher Maimone, an analyst at Standard & Poor’s Equity Research, wrote in a note to clients, explaining that Senator Levin’s referral had made continued investigations a near certainty.

Still, shares of Goldman fell $1.79, or 1.3 percent, to close at $134.38, though earlier in the day, before investors digested the news, its shares fell as much as 3.5 percent. Goldman shares traded above $170 at the beginning of the year.

Goldman’s chief executive, Lloyd C. Blankfein, who has run the company since 2006, has privately told people recently that he has no plans to leave the company and wants to see it through this difficult period. Still, the recent subpoenas are sure to resurrect calls for a change at the top.

“You would have to think that the more these types of headlines persist, the greater pressure there will be for change,” said William Tanona, an analyst at the investment bank UBS. He has previously worked at Goldman Sachs.

Whatever the outcome of the investigations, investors do not expect Goldman itself to be indicted. No firm has ever survived such a blow. E. F. Hutton & Company and Drexel Burnham Lambert collapsed after being indicted in the 1980s before the cases even went to trial.

Brad Hintz, an analyst at Sanford C. Bernstein & Company, said in a note to investors on Tuesday that he believed that the government might seek to reach a settlement with Goldman.

“In a worst case environment, we would expect a ‘too big to fail’ bank such as Goldman to be offered a deferred-prosecution agreement, pay a significant fine and submit to a federal monitor in lieu of a criminal charge,” he wrote.

The subpoena came almost two weeks after lawyers for Goldman Sachs met with the office of the attorney general of New York for an “exploratory” meeting about the Senate report, the people said.

In a statement, Goldman Sachs said: “We don’t comment on specific regulatory or legal issues, but subpoenas are a normal part of the information request process and, of course, when we receive them we cooperate fully.”

Goldman was one of the survivors of the financial crisis. But it has come under fire from the public and Washington since then. It was first attacked for its outsize pay packages, which came at a time when most of America was still reeling from the crisis. Then, in April 2010, the Securities and Exchange Commission filed a civil fraud suit against the company. Goldman was accused of creating a mortgage product that was intended to fail. The company settled with the S.E.C., agreeing to pay $550 million without admitting or denying guilt.

It was one of the darkest chapters in the company’s 142-year history, and it catapulted Goldman into the public spotlight, a place the secretive company was unaccustomed to. Rolling Stone magazine, hardly a first read on Wall Street, began writing regularly about the firm, calling it a “vampire squid.”

GOLDMAN SACHS HIT WITH MORE SUBPOENAS ON ABACUS DEALS

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Investigations Launched on Wrongdoing Despite “Settlements”

EDITOR’S ANALYSIS: Maybe there actually is some understanding starting to surface at U.S. regulator’s offices. Certainly the activity in EURO-land shows that our friends across the pond don’t buy the excuses or spin that Goldman and others have been spitting out through their control of key government figures and the media. It is unusual for a case to get “settled” and then still be the subject of investigations. It indicates that regulators are coming into information from whistle-blowers and old-style investigation work that indicates that Goldman’s wrongdoing was not just a civil matter.

Anyone who can get a copy of these subpoenas should send them in to this blog as it will assist everyone in discovery and analysis of their own situation.

The inevitable conclusion here is that the moment pen was put to paper, and the moment that investors transferred funds to the investment bank for purchase of bogus mortgage bonds both the investment and the “loan” were absolutely intended to fail — it was the only way they could make the ungodly amounts of money that were drained out of the U.S. economy.

By process of elimination and recruiting whistle-blowers, the agencies are recognizing the signs of an intentional act, where the loan was intentionally created in defective and deceptive ways, and where the investor’s money was lost the moment he parted with it. The real parties in interest here are the investor-lenders and the homeowner-borrowers. They ALL lost money while the intermediary investment banks mysteriously made tons of money while claiming losses from bad mortgages.

Simple logic tells us that Wall Street’s story can’t be true. If the investment banks lost money from holding toxic assets then there was no securitization — i.e.., the loans were never actually sold, which is what we have been saying here. If that is true, then the investment banks were the lenders, which is exactly opposite from the truth, since we know the money came from investors. If the money came from investors then the investment banks were not the lenders and therefore could not have suffered any loss from unpaid mortgages.

The problem is compounded by the fact that the pools were never filled with assets because transfers were never made. And the transfers were never made because the paper was bad to begin with — the original loans documents described a loan transaction that never took place. And the original loan transaction that DID take place was undocumented in which the borrower was shown one set of documents while the lender was shown a completely different set of documents, neither of which actually described the relationship between the investor-lender and the homeowner-borrower.

As this unravels, Goldman, BOA, Citi, JPM, Chase et al are going to face some tough, unanswerable questions. Where’s the beef?

Goldman Discloses More Subpoenas

By SUSANNE CRAIG

7:02 p.m. | Updated

Goldman Sachs’s mortgage problems are far from over.

The Wall Street investment bank paid $550 million last year to settle a civil fraud suit brought by the Securities and Exchange Commission, which accused Goldman Sachs of creating a mortgage product that was intended to fail.

On Tuesday, the firm disclosed in a regulatory filing that it had received more subpoenas related to that mortgage product, Abacus 2007-AC1, and other collateralized debt obligations that it made during the housing boom.

Goldman has previously revealed that the Financial Industry Regulatory Authority and the Financial Services Authority in Britain are looking into Abacus. The firm said on Tuesday that it had received subpoenas from other unnamed regulators in connection to Abacus and other C.D.O.’s. In a filing in late March, the firm disclosed only that it had received requests for information from unnamed regulators. A subpoena is a more serious step.

The Abacus matter is one of the darkest chapters in Goldman’s 142-year history — the first time that the firm has been accused of fraud. Last July, the bank settled the S.E.C. charges without admitting or denying guilt.

News of the subpoena came in a quarterly filing in which Goldman cut its estimated losses from legal claims by 21 percent. The bank said its “reasonably possible” losses from lawsuits were $2.7 billion at the end of March, down from $3.4 billion at the end of 2010.

This number declined after a handful of major settlements. In one such case, Goldman was among several underwriters of securities offerings by Washington Mutual that were sued in 2008, accused of failing to accurately describe the bank’s exposure to the mortgage market.

Federal regulators seized Washington Mutual in September 2008, making it the biggest bank failure in American history.

Goldman also disclosed on Tuesday that the Commodity Futures Trading Commission was investigating the firm’s role as clearing broker for an unnamed S.E.C.-registered broker-dealer. The firm said it had been “orally advised” that regulators intended to “recommend that the C.F.T.C. bring aiding and abetting, civil fraud and supervision-related charges” against the Goldman unit related to its provision of clearing services to this broker-dealer.

According to the filing, the commission said Goldman knew or should have known that the client’s subaccounts maintained at the firm’s unit “were actually accounts belonging to customers of the broker-dealer client and not the client’s proprietary accounts.”

Neither Goldman nor the Commodity Futures Trading Commission would comment on the case.

Wall Street clearing businesses often find themselves in the sights of regulators. The firms handle billions of dollars in trades and sometimes the clients turn out to be swindlers. Defrauded investors often demand that firms that clear trades for these companies be held accountable. The Wall Street banks assert that their job is simply to clear trades, not police the clients.

In its regulatory filing, Goldman also disclosed that it lost money on just one trading day in the first quarter. And the firm had 32 days when it posted trading revenue of more than $100 million, the filing shows. It is not known on which day Goldman lost money, but the loss was $25 million to $50 million.

After difficult markets took a bite out of profit in the fourth quarter, the first quarter was one of Goldman’s best for trading in a while.

In terms of trading days, it was the best since the first quarter of 2010, when there were no days where Goldman posted a negative trading day. In the period a year earlier, Goldman recorded 35 days when trading revenue exceeded $100 million and it had no day when trading revenue dipped below $25 million.

FACEBOOK HYPE: SAME GAME WE HAVE SEEN BEFORE

 

 

EDITOR’S NOTE: I GUESS IF YOU HAVE A WINNING STRATEGY, AND IT CONTINUES TO WORK EVEN THOUGH IT INVOLVES MISREPRESENTATION, DECEIT AND FAILURE TO DISCLOSE, YOU JUST KEEP GOING WITH IT.

“With all these winners, who will the losers be? The average investor, of course, who will get left holding the bag when, someday, Wall Street realizes the firm’s financial performance doesn’t live up to its hyped valuation.”

January 4, 2011, 9:00 pm

Friends With Benefits

By WILLIAM D. COHAN

 

William D. CohanWilliam D. Cohan on Wall Street and Main Street

 

Can Goldman Sachs, the profit-seeking missile of high finance, really make money by investing $450 million in Facebook, at a vertigo-inducing price that values the social-networking company at $50 billion?

On first blush, the answer would appear to be no. After all, in May 2009, the company was valued at $10 billion. Last August, Facebook was valued at $27 billion and now it’s $50 billion — for a company with a reported $2 billion in revenue and negligible profits. If General Electric, with 2010 revenue of around $150 billion, traded at a similar multiple of revenue, it would be worth $3.75 trillion instead of $200 billion. Facebook is now considered to be worth more than Time Warner, DuPont and Goldman’s rival Morgan Stanley.

Just last week, Facebook’s shares were said to be trading on a private-market exchange at a valuation of $42.4 billion. Thanks to Goldman’s imprimatur, Facebook’s value increased 20 percent virtually overnight. Can Goldman really expect to squeeze more water from this stone?

Sadly, yes.

To understand why, we have to go to the heart of the many problems in the way the Wall Street cartel does business, despite the promised reforms of the Dodd-Frank law. With Goldman’s investment in Facebook, we have a front-row seat to the process by which Wall Street creates and inflates financial bubbles.

This bout of hysteria involves not only Facebook but other Internet companies including Twitter, the gaming site Zynga, the social buying site Groupon and LinkedIn, another social networking site. The valuation of these companies has soared in the past two years, leading some to worry that the American people bailed out Wall Street so that we could relive the Internet Bubble of 1999.

Despite the high price of its investment, Goldman sees in Facebook a business bonanza, a nearly perfect nugget of investment-banking opportunities. First, Goldman’s cost of capital is close to zero — as a bank holding company, it can borrow from the Federal Reserve at negligible interest rates — so any capital gain it makes on its venture in Facebook will be sheer profit. Second, Goldman has almost certainly locked up the role of lead manager of the inevitable Facebook initial public offering.

Fees for underwriting public offerings are generally about 7 percent of the value of the stock sold. Facebook could easily sell $2 billion of stock or more, generating fees to Goldman and the other underwriters of at least $140 million. The other benefit for Goldman in leading the public offering — aside from major bragging rights — is that it can use its marketing, sales and distribution muscle to make sure the value of Facebook at the time of the offering exceeds the $50 billion valuation at which Goldman invested.

Goldman has also won from Facebook the right to offer an additional $1.5 billion of the company’s stock to its private-wealth clients. According to The Times, Goldman will be creating a “special purpose vehicle” to sell the stock to its wealthy clients and then will charge them a 4 percent initial fee plus 5 percent of any profits. While on paper it seems that these high rollers would be foolish to invest in Facebook at such a lofty valuation, they will still most certainly feel increased loyalty to Goldman for making such an exclusive opportunity available to them. On top of it all, there is the increased likelihood that Goldman will get to manage a good portion of the $12 billion fortune belonging to Mark Zuckerberg, Facebook’s founder, for yet more fees.

If Goldman does take all these roles at once — investor, salesman, money manager, I.P.O. underwriter — it would certainly raise the ugly specter of conflicts of interest. But probably not to Goldman executives, who have always prided themselves on being able to “manage” through such situations. (In fairness, there’s likely no investment-banking firm on the planet that would not eagerly take Goldman’s place in this scheme, if offered the chance.)

Even though Facebook is reported to have little need for Goldman’s money, having Goldman validate Facebook’s exponential increase in value gives Mr. Zuckerberg the ultimate Silicon Valley street cred, far more than he got from having Hollywood make a movie about him or from becoming the youngest billionaire on the planet.

With all these winners, who will the losers be? The average investor, of course, who will get left holding the bag when, someday, Wall Street realizes the firm’s financial performance doesn’t live up to its hyped valuation.

SECRET BANKING ELITE: WHERE THE REAL DECISIONS ARE MADE

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

Notable Quotes:

“The men share a common goal: to protect the interests of big banks in the vast market for derivatives, one of the most profitable — and controversial — fields in finance. They also share a common secret: The details of their meetings, even their identities, have been strictly confidential.”

“big banks influence the rules governing derivatives through a variety of industry groups. The banks’ latest point of influence are clearinghouses like ICE Trust, which holds the monthly meetings with the nine bankers in New York.”

“The banks also required ICE to provide market data exclusively to Markit, a little-known company that plays a pivotal role in derivatives. Backed by Goldman, JPMorgan and several other banks, Markit provides crucial information about derivatives, like prices.”

“None of the three clearinghouses would divulge the members of their risk committees when asked by a reporter. But two people with direct knowledge of ICE’s committee said the bank members are:

  • Thomas J. Benison of JPMorgan Chase & Company;
  • James J. Hill of Morgan Stanley;
  • Athanassios Diplas of Deutsche Bank;
  • Paul Hamill of UBS;
  • Paul Mitrokostas of Barclays;
  • Andy Hubbard of Credit Suisse;
  • Oliver Frankel of Goldman Sachs;
  • Ali Balali of Bank of America; and
  • Biswarup Chatterjee of Citigroup.”

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EDITOR’S ANALYSIS: For those of us tracking the strategies employed in courtrooms across the country and various foreclosure tactics, it has been obvious that there has been a single governing hand that is controlling the action. Hidden under the rubric of a risk control committee, this group actually makes all key decisions that affect the largest segment of the marketplace and thus the rest of the markets. These banks are operating for themselves, not in the interests of performing the service that Wall Street was always intended to do — create increasingly fluid access to the capital markets for businesses to innovate, start, grow, finance and merge.

They operate without any regulation. Quite the contrary. The decisions from this group actually effect both legislation that is proposed and passed and the rules and regulations of agencies that are supposed to be acting as referees to make sure the players don’t run amok. They dictate to government rather than the other way around and they create the strategies affect every individual in this country and many other countries. They are in essence a single virtual bank acting as though they are separate, each with profit centers that are strictly controlled by this elite group.

The upcoming WikiLeaks disclosures may have some references to this group which is comprised of the largest banks in the world and which exclude other large banks from membership, like Bank of New York/Mellon. Together they control the direction of the recession and how power is exercised by governments and central bankers around the world. That is because together they control nominal wealth many times the total currency in the world and “market value” that is roughly equal, at a minimum, to 2/3 of the GDP of the entire world.

We are at a crossroad whether we want to admit it or not. Either we simply give up and let bankers rule the world, or we stop them, disassemble them and bring them down to a size where they can be and are in fact regulated. But the choice is not up to government which now is owned by them as well. The choice is entirely up to the people — all the people — who ultimately, for the moment, have the power to dismiss the exercise of this kind of ultra vires power and bring things back to normal. Whatever we do, we are headed for turbulent times. The only real question is whether those turbulent times will be leading us down a path of abandoning our nation of laws or whether it will be as Teddy Roosevelt did, devoted to taking back the power for the people, by the people.

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A Secretive Banking Elite Rules Trading in Derivatives

By LOUISE STORY

On the third Wednesday of every month, the nine members of an elite Wall Street society gather in Midtown Manhattan.

The men share a common goal: to protect the interests of big banks in the vast market for derivatives, one of the most profitable — and controversial — fields in finance. They also share a common secret: The details of their meetings, even their identities, have been strictly confidential.

Drawn from giants like JPMorgan Chase, Goldman Sachs and Morgan Stanley, the bankers form a powerful committee that helps oversee trading in derivatives, instruments which, like insurance, are used to hedge risk.

In theory, this group exists to safeguard the integrity of the multitrillion-dollar market. In practice, it also defends the dominance of the big banks.

The banks in this group, which is affiliated with a new derivatives clearinghouse, have fought to block other banks from entering the market, and they are also trying to thwart efforts to make full information on prices and fees freely available.

Banks’ influence over this market, and over clearinghouses like the one this select group advises, has costly implications for businesses large and small, like Dan Singer’s home heating-oil company in Westchester County, north of New York City.

This fall, many of Mr. Singer’s customers purchased fixed-rate plans to lock in winter heating oil at around $3 a gallon. While that price was above the prevailing $2.80 a gallon then, the contracts will protect homeowners if bitterly cold weather pushes the price higher.

But Mr. Singer wonders if his company, Robison Oil, should be getting a better deal. He uses derivatives like swaps and options to create his fixed plans. But he has no idea how much lower his prices — and his customers’ prices — could be, he says, because banks don’t disclose fees associated with the derivatives.

“At the end of the day, I don’t know if I got a fair price, or what they’re charging me,” Mr. Singer said.

Derivatives shift risk from one party to another, and they offer many benefits, like enabling Mr. Singer to sell his fixed plans without having to bear all the risk that oil prices could suddenly rise. Derivatives are also big business on Wall Street. Banks collect many billions of dollars annually in undisclosed fees associated with these instruments — an amount that almost certainly would be lower if there were more competition and transparent prices.

Just how much derivatives trading costs ordinary Americans is uncertain. The size and reach of this market has grown rapidly over the past two decades. Pension funds today use derivatives to hedge investments. States and cities use them to try to hold down borrowing costs. Airlines use them to secure steady fuel prices. Food companies use them to lock in prices of commodities like wheat or beef.

The marketplace as it functions now “adds up to higher costs to all Americans,” said Gary Gensler, the chairman of the Commodity Futures Trading Commission, which regulates most derivatives. More oversight of the banks in this market is needed, he said.

But big banks influence the rules governing derivatives through a variety of industry groups. The banks’ latest point of influence are clearinghouses like ICE Trust, which holds the monthly meetings with the nine bankers in New York.

Under the Dodd-Frank financial overhaul, many derivatives will be traded via such clearinghouses. Mr. Gensler wants to lessen banks’ control over these new institutions. But Republican lawmakers, many of whom received large campaign contributions from bankers who want to influence how the derivatives rules are written, say they plan to push back against much of the coming reform. On Thursday, the commission canceled a vote over a proposal to make prices more transparent, raising speculation that Mr. Gensler did not have enough support from his fellow commissioners.

The Department of Justice is looking into derivatives, too. The department’s antitrust unit is actively investigating “the possibility of anticompetitive practices in the credit derivatives clearing, trading and information services industries,” according to a department spokeswoman.

Indeed, the derivatives market today reminds some experts of the Nasdaq stock market in the 1990s. Back then, the Justice Department discovered that Nasdaq market makers were secretly colluding to protect their own profits. Following that scandal, reforms and electronic trading systems cut Nasdaq stock trading costs to 1/20th of their former level — an enormous savings for investors.

“When you limit participation in the governance of an entity to a few like-minded institutions or individuals who have an interest in keeping competitors out, you have the potential for bad things to happen. It’s antitrust 101,” said Robert E. Litan, who helped oversee the Justice Department’s Nasdaq investigation as deputy assistant attorney general and is now a fellow at the Kauffman Foundation. “The history of derivatives trading is it has grown up as a very concentrated industry, and old habits are hard to break.”

Representatives from the nine banks that dominate the market declined to comment on the Department of Justice investigation.

Clearing involves keeping track of trades and providing a central repository for money backing those wagers. A spokeswoman for Deutsche Bank, which is among the most influential of the group, said this system will reduce the risks in the market. She said that Deutsche is focused on ensuring this process is put in place without disrupting the marketplace.

The Deutsche spokeswoman also said the banks’ role in this process has been a success, saying in a statement that the effort “is one of the best examples of public-private partnerships.”

Established, But Can’t Get In

The Bank of New York Mellon’s origins go back to 1784, when it was founded by Alexander Hamilton. Today, it provides administrative services on more than $23 trillion of institutional money.

Recently, the bank has been seeking to enter the inner circle of the derivatives market, but so far, it has been rebuffed.

Bank of New York officials say they have been thwarted by competitors who control important committees at the new clearinghouses, which were set up in the wake of the financial crisis.

Bank of New York Mellon has been trying to become a so-called clearing member since early this year. But three of the four main clearinghouses told the bank that its derivatives operation has too little capital, and thus potentially poses too much risk to the overall market.

The bank dismisses that explanation as absurd. “We are not a nobody,” said Sanjay Kannambadi, chief executive of BNY Mellon Clearing, a subsidiary created to get into the business. “But we don’t qualify. We certainly think that’s kind of crazy.”

The real reason the bank is being shut out, he said, is that rivals want to preserve their profit margins, and they are the ones who helped write the membership rules.

Mr. Kannambadi said Bank of New York’s clients asked it to enter the derivatives business because they believe they are being charged too much by big banks. Its entry could lower fees. Others that have yet to gain full entry to the derivatives trading club are the State Street Corporation, and small brokerage firms like MF Global and Newedge.

The criteria seem arbitrary, said Marcus Katz, a senior vice president at Newedge, which is owned by two big French banks.

“It appears that the membership criteria were set so that a certain group of market participants could meet that, and everyone else would have to jump through hoops,” Mr. Katz said.

The one new derivatives clearinghouse that has welcomed Newedge, Bank of New York and the others — Nasdaq — has been avoided by the big derivatives banks.

Only the Insiders Know

How did big banks come to have such influence that they can decide who can compete with them?

Ironically, this development grew in part out of worries during the height of the financial crisis in 2008. A major concern during the meltdown was that no one — not even government regulators — fully understood the size and interconnections of the derivatives market, especially the market in credit default swaps, which insure against defaults of companies or mortgages bonds. The panic led to the need to bail out the American International Group, for instance, which had C.D.S. contracts with many large banks.

In the midst of the turmoil, regulators ordered banks to speed up plans — long in the making — to set up a clearinghouse to handle derivatives trading. The intent was to reduce risk and increase stability in the market.

Two established exchanges that trade commodities and futures, the InterContinentalExchange, or ICE, and the Chicago Mercantile Exchange, set up clearinghouses, and, so did Nasdaq.

Each of these new clearinghouses had to persuade big banks to join their efforts, and they doled out membership on their risk committees, which is where trading rules are written, as an incentive.

None of the three clearinghouses would divulge the members of their risk committees when asked by a reporter. But two people with direct knowledge of ICE’s committee said the bank members are: Thomas J. Benison of JPMorgan Chase & Company; James J. Hill of Morgan Stanley; Athanassios Diplas of Deutsche Bank; Paul Hamill of UBS; Paul Mitrokostas of Barclays; Andy Hubbard of Credit Suisse; Oliver Frankel of Goldman Sachs; Ali Balali of Bank of America; and Biswarup Chatterjee of Citigroup.

Through representatives, these bankers declined to discuss the committee or the derivatives market. Some of the spokesmen noted that the bankers have expertise that helps the clearinghouse.

Many of these same people hold influential positions at other clearinghouses, or on committees at the powerful International Swaps and Derivatives Association, which helps govern the market.

Critics have called these banks the “derivatives dealers club,” and they warn that the club is unlikely to give up ground easily.

“The revenue these dealers make on derivatives is very large and so the incentive they have to protect those revenues is extremely large,” said Darrell Duffie, a professor at the Graduate School of Business at Stanford University, who studied the derivatives market earlier this year with Federal Reserve researchers. “It will be hard for the dealers to keep their market share if everybody who can prove their creditworthiness is allowed into the clearinghouses. So they are making arguments that others shouldn’t be allowed in.”

Perhaps no business in finance is as profitable today as derivatives. Not making loans. Not offering credit cards. Not advising on mergers and acquisitions. Not managing money for the wealthy.

The precise amount that banks make trading derivatives isn’t known, but there is anecdotal evidence of their profitability. Former bank traders who spoke on condition of anonymity because of confidentiality agreements with their former employers said their banks typically earned $25,000 for providing $25 million of insurance against the risk that a corporation might default on its debt via the swaps market. These traders turn over millions of dollars in these trades every day, and credit default swaps are just one of many kinds of derivatives.

The secrecy surrounding derivatives trading is a key factor enabling banks to make such large profits.

If an investor trades shares of Google or Coca-Cola or any other company on a stock exchange, the price — and the commission, or fee — are known. Electronic trading has made this information available to anyone with a computer, while also increasing competition — and sharply lowering the cost of trading. Even corporate bonds have become more transparent recently. Trading costs dropped there almost immediately after prices became more visible in 2002.

Not so with derivatives. For many, there is no central exchange, like the New York Stock Exchange or Nasdaq, where the prices of derivatives are listed. Instead, when a company or an investor wants to buy a derivative contract for, say, oil or wheat or securitized mortgages, an order is placed with a trader at a bank. The trader matches that order with someone selling the same type of derivative.

Banks explain that many derivatives trades have to work this way because they are often customized, unlike shares of stock. One share of Google is the same as any other. But the terms of an oil derivatives contract can vary greatly.

And the profits on most derivatives are masked. In most cases, buyers are told only what they have to pay for the derivative contract, say $25 million. That amount is more than the seller gets, but how much more — $5,000, $25,000 or $50,000 more — is unknown. That’s because the seller also is told only the amount he will receive. The difference between the two is the bank’s fee and profit. So, the bigger the difference, the better for the bank — and the worse for the customers.

It would be like a real estate agent selling a house, but the buyer knowing only what he paid and the seller knowing only what he received. The agent would pocket the difference as his fee, rather than disclose it. Moreover, only the real estate agent — and neither buyer nor seller — would have easy access to the prices paid recently for other homes on the same block.

An Electronic Exchange?

Two years ago, Kenneth C. Griffin, owner of the giant hedge fund Citadel Group, which is based in Chicago, proposed open pricing for commonly traded derivatives, by quoting their prices electronically. Citadel oversees $11 billion in assets, so saving even a few percentage points in costs on each trade could add up to tens or even hundreds of millions of dollars a year.

But Mr. Griffin’s proposal for an electronic exchange quickly ran into opposition, and what happened is a window into how banks have fiercely fought competition and open pricing. To get a transparent exchange going, Citadel offered the use of its technological prowess for a joint venture with the Chicago Mercantile Exchange, which is best-known as a trading outpost for contracts on commodities like coffee and cotton. The goal was to set up a clearinghouse as well as an electronic trading system that would display prices for credit default swaps.

Big banks that handle most derivatives trades, including Citadel’s, didn’t like Citadel’s idea. Electronic trading might connect customers directly with each other, cutting out the banks as middlemen.

So the banks responded in the fall of 2008 by pairing with ICE, one of the Chicago Mercantile Exchange’s rivals, which was setting up its own clearinghouse. The banks attached a number of conditions on that partnership, which came in the form of a merger between ICE’s clearinghouse and a nascent clearinghouse that the banks were establishing. These conditions gave the banks significant power at ICE’s clearinghouse, according to two people with knowledge of the deal. For instance, the banks insisted that ICE install the chief executive of their effort as the head of the joint effort. That executive, Dirk Pruis, left after about a year and now works at Goldman Sachs. Through a spokesman, he declined to comment.

The banks also refused to allow the deal with ICE to close until the clearinghouse’s rulebook was established, with provisions in the banks’ favor. Key among those were the membership rules, which required members to hold large amounts of capital in derivatives units, a condition that was prohibitive even for some large banks like the Bank of New York.

The banks also required ICE to provide market data exclusively to Markit, a little-known company that plays a pivotal role in derivatives. Backed by Goldman, JPMorgan and several other banks, Markit provides crucial information about derivatives, like prices.

Kevin Gould, who is the president of Markit and was involved in the clearinghouse merger, said the banks were simply being prudent and wanted rules that protected the market and themselves.

“The one thing I know the banks are concerned about is their risk capital,” he said. “You really are going to get some comfort that the way the entity operates isn’t going to put you at undue risk.”

Even though the banks were working with ICE, Citadel and the C.M.E. continued to move forward with their exchange. They, too, needed to work with Markit, because it owns the rights to certain derivatives indexes. But Markit put them in a tough spot by basically insisting that every trade involve at least one bank, since the banks are the main parties that have licenses with Markit.

This demand from Markit effectively secured a permanent role for the big derivatives banks since Citadel and the C.M.E. could not move forward without Markit’s agreement. And so, essentially boxed in, they agreed to the terms, according to the two people with knowledge of the matter. (A spokesman for C.M.E. said last week that the exchange did not cave to Markit’s terms.)

Still, even after that deal was complete, the Chicago Mercantile Exchange soon had second thoughts about working with Citadel and about introducing electronic screens at all. The C.M.E. backed out of the deal in mid-2009, ending Mr. Griffin’s dream of a new, electronic trading system.

With Citadel out of the picture, the banks agreed to join the Chicago Mercantile Exchange’s clearinghouse effort. The exchange set up a risk committee that, like ICE’s committee, was mainly populated by bankers.

It remains unclear why the C.M.E. ended its electronic trading initiative. Two people with knowledge of the Chicago Mercantile Exchange’s clearinghouse said the banks refused to get involved unless the exchange dropped Citadel and the entire plan for electronic trading.

Kim Taylor, the president of Chicago Mercantile Exchange’s clearing division, said “the market” simply wasn’t interested in Mr. Griffin’s idea.

Critics now say the banks have an edge because they have had early control of the new clearinghouses’ risk committees. Ms. Taylor at the Chicago Mercantile Exchange said the people on those committees are supposed to look out for the interest of the broad market, rather than their own narrow interests. She likened the banks’ role to that of Washington lawmakers who look out for the interests of the nation, not just their constituencies.

“It’s not like the sort of representation where if I’m elected to be the representative from the state of Illinois, I go there to represent the state of Illinois,” Ms. Taylor said in an interview.

Officials at ICE, meantime, said they solicit views from customers through a committee that is separate from the bank-dominated risk committee.

“We spent and we still continue to spend a lot of time on thinking about governance,” said Peter Barsoom, the chief operating officer of ICE Trust. “We want to be sure that we have all the right stakeholders appropriately represented.”

Mr. Griffin said last week that customers have so far paid the price for not yet having electronic trading. He puts the toll, by a rough estimate, in the tens of billions of dollars, saying that electronic trading would remove much of this “economic rent the dealers enjoy from a market that is so opaque.”

“It’s a stunning amount of money,” Mr. Griffin said. “The key players today in the derivatives market are very apprehensive about whether or not they will be winners or losers as we move towards more transparent, fairer markets, and since they’re not sure if they’ll be winners or losers, their basic instinct is to resist change.”

In, Out and Around Henhouse

The result of the maneuvering of the past couple years is that big banks dominate the risk committees of not one, but two of the most prominent new clearinghouses in the United States.

That puts them in a pivotal position to determine how derivatives are traded.

Under the Dodd-Frank bill, the clearinghouses were given broad authority. The risk committees there will help decide what prices will be charged for clearing trades, on top of fees banks collect for matching buyers and sellers, and how much money customers must put up as collateral to cover potential losses.

Perhaps more important, the risk committees will recommend which derivatives should be handled through clearinghouses, and which should be exempt.

Regulators will have the final say. But banks, which lobbied heavily to limit derivatives regulation in the Dodd-Frank bill, are likely to argue that few types of derivatives should have to go through clearinghouses. Critics contend that the bankers will try to keep many types of derivatives away from the clearinghouses, since clearinghouses represent a step towards broad electronic trading that could decimate profits.

The banks already have a head start. Even a newly proposed rule to limit the banks’ influence over clearing allows them to retain majorities on risk committees. It remains unclear whether regulators creating the new rules — on topics like transparency and possible electronic trading — will drastically change derivatives trading, or leave the bankers with great control.

One former regulator warned against deferring to the banks. Theo Lubke, who until this fall oversaw the derivatives reforms at the Federal Reserve Bank of New York, said banks do not always think of the market as a whole as they help write rules.

“Fundamentally, the banks are not good at self-regulation,” Mr. Lubke said in a panel last March at Columbia University. “That’s not their expertise, that’s not their primary interest.”

Shareholders Sue Goldman, Blankfein Confirming Trusts Do NOT Own the Loans

Leo II
bgitt47@verizon.net

Editor’s Note: I believe Leo is right. These suits allege that the SPV do not own the loan portfolios. They also allege directly that the Trust Assets included insurance — payments from credit default swaps.

Two revealing lawsuits filed against Goldman-Sachs that I believe further support arguments that most, if not all Subprime securitized Notes that went into default should be considered as satisfied by virtue of default and the ensuing payment to holders of the Credit Default Swaps (Puts) created for each such Note.

And then there’s the issue of TARP funds, ($10 billion of which went to Goldman-Sachs alone), which, along with the CDO payments should have been utilized to compensate the investors who purchased the Notes

All of which, taken as a whole, lends support to the assertion that the Notes are Satisfied..

All that remans is for the Courts to order firms like Goldman-Sachs to distribute the money to the investors, declare satisfaction of the underlying Notes and Order the quiting of the titles securing said Notes.

Agree? Disagree?

http://solari.com/blog/articles/2010/Goldman-Rosinek_v_Blankfein.pdf

http://solari.com/blog/articles/2010/Goldman-Spiegel_v_Blankfein.pdf

Goldman Sachs – Wells Fargo SEC Filings –DISCOVERY REQUESTS

GSAMP 8K INCLUDES SEVERAL SCHEDS AND SWAP INFO

FORM 10-D ASSET-BACKED ISSUER GSAMP DISTRIBUTION REPORT for January 29 2008

FORM 10-D ASSET-BACKED ISSUER DISTRIBUTION REPORT for January 29 2008

SEC INDEX OF FILING GSAMP

Wells Fargo-Thornburg reconstituted Pooling and Service Agreement

Notwithstanding anything herein to the contrary, the Custodian has made no determination and makes no representations as to whether (i)
any endorsement is sufficient to transfer all right, title and interest of the party so endorsing, as Certificateholder or assignee thereof, in and
to that Mortgage Note or (ii) any assignment is in recordable form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.

Exhibit 1 Underwriting Agreement, dated as of April 17, 2007, by and
between GS Mortgage Securities Corp., as depositor and
Goldman, Sachs & Co., as underwriter.
Exhibit 4 Pooling and Servicing Agreement, dated as of March 1, 2007, by
and among GS Mortgage Securities Corp., as depositor, Avelo
Mortgage, L.L.C., as servicer, Wells Fargo Bank, N.A., as
securities administrator and as master servicer, U.S. Bank
National Association, as a custodian, Deutsche Bank National
Trust Company, as a custodian and LaSalle Bank National
Association, as trustee.
Exhibit 10.1 Representations and Warranties Agreement, dated as of April
20, 2007, by and between Goldman Sachs Mortgage Company and GS
Mortgage Securities Corp. (included as Exhibit S to Exhibit
4).
Exhibit 10.2 ISDA Master Agreement, dated as of April 20, 2007, by and
between Goldman Sachs Mitsui Marine Derivatives Products,
L.P., as swap provider and as cap provider, and Wells Fargo
Bank, N.A., as securities administrator (included as part of
Exhibit X to Exhibit 4).
Exhibit 10.3 Schedule to the Master Agreement, dated as of April 20, 2007,
by and between Goldman Sachs Mitsui Marine Derivatives
Products, L.P., as swap provider and as cap provider, and
Wells Fargo Bank, N.A., as securities administrator (included
as part of Exhibit X to Exhibit 4).
Exhibit 10.4 Confirmation, dated March 30, 2007, by and among Goldman Sachs
Capital Markets, L.P., Goldman Sachs Mitsui Marine Derivatives
Products, L.P., as swap provider, Goldman Sachs Mortgage
Company, L.P. and Wells Fargo Bank, N.A., as securities
administrator (included as part of Exhibit X to Exhibit 4).
Exhibit 10.5 Confirmation, dated March 30, 2007, by and among Goldman Sachs
Capital Markets, L.P., Goldman Sachs Mitsui Marine Derivatives
Products, L.P., as cap provider, Goldman Sachs Mortgage
Company, L.P. and Wells Fargo Bank, N.A., as securities
administrator (included as part of Exhibit X to Exhibit 4).
GSAMP Trust 2007-HE2 (Form: 8-K, Received: 05/24/2007 06:01:20) Page 3 of 274
http://

Liability of Participants in Securitization Chain

The reason for this requirement of transparency and the cutting edge of claiming or clawing back the illicit profits is simple: in a true fair and free market, the lender would know his risk and the borrower would understand the terms. Both would be on alert if unusual fees, profits and kickbacks were known to be present and would seek other arrangements. So TILA is really meant to protect both the borrower (primarily) and any would be investor advancing the real money.Here is a project for someone out there and a rich topic for forensic analysis for those who are not timid about securitization. I know Brad is planning to address this in the forensic workshop along with other speakers (including me). Research the AIG liabilities, who is making claims and who is getting paid. As I have stated numerous times on these pages, the hapless investors advanced money under the mistaken notion that their risk was insured. They were not mistaken about the presence of insurance and hedge products, but they were easily misled as to who received the benefit of the insurance — middlemen (investment bankers included) who sold them the mortgage backed securities. And they were easily misled into thinking that their money was being used to fund mortgages. Much of the money investors advanced went to pay fees, profits and premiums for insurance that paid off handsomely to the investment banker or some other party in the securitization chain.

You might ask “what difference does this make to the homeowner/ borrower?” The answer lies in TILA and other lending laws, rules and regulations. Long ago laws were enacted to protect homeowners from unseen unscrupulous and unregulated lenders posing through sham relationships with shell corporations or through financial institutions that would be paid a fee to pose as the lender. The transactions were called “table-funded” because of the image of an unknown lender reaching around the “lender” at closing and putting the money on the table for the homeowner to borrow.

Reg Z and other interpretations of TILA have made it clear that any pattern of conduct involving table-funded loans is by definition presumed to be predatory. And to stop this practice of hiding undisclosed parties and undisclosed fees, the law provides for payment to the borrower of all such undisclosed fees, profits, kickbacks etc. that were associated with the loan transaction but not revealed to the borrower. And there are provisions for receiving treble damages, interest, and attorney fees.

So now we get to the point. The payment of proceeds to any party in the securitization chain on contracts or policies paid for from the proceeds of the loan transaction would therefore be due to the borrower.

If another party gets and tries to keep the money (or title or property) they are, in the eyes of the law, usually held to be holding such money in constructive trust for the beneficiary (the homeowner borrower). Obviously the amount of that payment must be calculated by some professional with the information at hand as to the amount paid to participants in the securitization chain where your loan was used as the basis (along with many others) for the entire transaction.

But never lose sight of the fact that the basic transaction was simply a loan from the investor to the homeowner. None of the investment bankers, servicers, aggregators, trustees etc were parties in interest to your transaction with the investor. Thus none of them has the right or power to retain any proceeds, property, title, fees, profits, kickbacks or anything else unless it was disclosed to you and you agreed to it.

The reason for this requirement of transparency and the cutting edge of claiming or clawing back the illicit profits is simple: in a true fair and free market, the lender would know his risk and the borrower would understand the terms. Both would be on alert if unusual fees, profits and kickbacks were known to be present and would seek other arrangements. So TILA is really meant to protect both the borrower (primarily) and any would be investor advancing the real money. The glitch here is that I think the investors have claims against the same money paid to Goldman et al and that a court determination needs to be made as to how to allocate those proceeds. One thing is sure — the answer must not and cannot be that it is the intermediaries who never had any risk in the game and who were getting paid every time the money or “asset” was presumed to move, whether that was actual or just an illusion.

February 27, 2010

A.I.G. Posts Loss of $11 Billion on Higher Claims

The American International Group said on Friday that it lost about $11 billion last year, surprising analysts and showing the long-term risks inherent in the types of large, complex insurance coverage that the company once pioneered.

To increase its reserves to pay future claims, the company set aside $2.7 billion on a pretax basis, accounting for a big portion of its loss. This indicates that A.I.G. is experiencing significantly larger claims than it expected when it sold the insurance, most of it more than seven years ago, long before its government rescue in late 2008.

Fitch Ratings responded by putting the company’s property and casualty subsidiaries on a negative watch for their financial strength ratings. Financial strength ratings are indicators of an insurer’s ability to pay claims, and are separate from credit ratings.

Shares of A.I.G. fell nearly 10 percent Friday, or $2.74, to close at $24.77.

Officials of A.I.G. said claims were growing faster than reserves in just two lines of insurance and emphasized that it still had ample resources over all to pay claims.

A.I.G.’s chief executive, Robert H. Benmosche, said in a statement that despite the losses, “Our team has made great progress during the year in executing our strategic restructuring plan.” The plan involves shrinking the sprawling company to a more manageable size, and generating money to repay the federal government.

As a bright spot, Mr. Benmosche cited a rebound in the annuities sold by its life insurance companies.

The insurer’s 2009 result was just a small fraction of the record-breaking loss of $100 billion that it reported for 2008, when its large derivatives portfolio nearly toppled the company, leading to the government bailout.

Much of last year’s loss came from a fourth-quarter charge taken to reflect a restructuring of its bailout — a one-time charge that A.I.G. has been warning about for months. As part of a debt-for-equity swap with the Federal Reserve Bank of New York, the company removed part of its Fed loan as an asset on its balance sheet, producing a pretax charge of $5.2 billion. That charge was not connected with the company’s core insurance operations.

But the increase in reserves shifts attention to the insurance business. When insurance companies find that the reserves that they have set aside to pay future claims are inadequate, they take money from earnings to add to their reserves.

A.I.G. said it was advised to do so by its own actuaries and outside consultants after a thorough year-end review. The step seemed to vindicate, at least in part, a study last November by the Sanford C. Bernstein & Company research firm, which found a big shortfall in A.I.G.’s reserves for its property and casualty businesses.

Those businesses have been renamed Chartis and are expected to be the backbone of the company after its revamping. The company said the additional reserves were all for Chartis.

The Bernstein analyst, Todd R. Bault, had predicted that A.I.G. would have to “take some kind of a reserve charge” before it could offer shares of Chartis to investors, as it has said it would do to help raise money to pay back the government. He said the shortfall appeared to be in lines of insurance where claims develop slowly, over many years, like workers’ compensation.

Two lines of business accounted for about 90 percent of the addition to reserves, according to Robert S. Schimek, Chartis’s chief financial officer. They are excess workers’ compensation and excess casualty insurance.

When a company writes excess insurance, it offers to stand behind a primary insurer, and pay claims if something so serious happens that the primary insurance is exhausted. Such events are notoriously hard to predict, and Mr. Schimek called it “among the most complex lines of business to reserve for.”

Mr. Schimek said that the company significantly reduced selling excess workers’ compensation in the early 2000s. But the claims from business already on its books will take years to reveal their true cost, he said.

The company’s best estimate of the reserves needed for all property and casualty business is now about $63 billion, he said.

The addition to the reserves and the restructuring of its federal rescue package caused A.I.G.’s fourth-quarter results to be well off those earlier in the year, when the company had even swung to quarterly profits. For the fourth quarter, A.I.G. lost $8.87 billion, or $65.71 a share. That compared with a loss of $61.66 billion, or $459 a share, in the period a year earlier. Analysts surveyed by Thomson Reuters had forecast a loss of just under $4 a share.

In his statement, Mr. Benmosche said his team was “increasingly confident” over the long term and the sale of its other businesses was still on track.

A.I.G. plans to sell shares in its biggest international life insurance company, the American International Assurance Company, on the Hong Kong stock exchange this year. It has also been negotiating the sale of another international life insurance company, known as Alico, to MetLife. The talks have proceeded slowly because of questions about a possible tax liability and who would pay it, according to people briefed on the negotiations.

The first $25 billion in proceeds from those sales will be directed to repay the New York Fed.

Goldman-AIG Conflict Reveals Inside Story on Housing Scheme

See NY Times Morgenstern Article on Goldman/AIG COnflict

See GRAPHICAL TIMELINE OF GOLDMAN\’S STRATEGIC \”DEFAULTS\”

Understandably this is a lot to take in so I invite you to pick up a copy of the New York Times, or go to the links above and study this article. First, I have excerpted what I think is important. second you have the whole article.

“Negotiating with Goldman to void the A.I.G. insurance was especially difficult, Federal Reserve Board documents show, because the firm did not own the underlying bonds. As a result, Goldman had little incentive to compromise.”THE MAIN POINT TO KEEP IN MIND, AS IT IS EXPRESSLY STATED IN THE ARTICLE, IS THAT THE INVESTMENT BANKS did not own THE mortgage bonds, THE OBLIGATIONS FROM HOMEOWNERS, THE NOTES SIGNED BY HOMEOWNERS OR THE MORTGAGE DEEDS OR DEEDS OF TRUST. THEY OWNED NOTHING BUT THEY WERE “TRADING” ANYWAY, SCREWING BOTH THE INVESTORS WHO ACTUALLY ADVANCED THE FUNDS FOR THIS SCHEME AND THE HOOMEOWNER WHO ADVANCED THE COLALTERAL OF THEIR HOMES.

This is important because it was the investment banks that initiated the securitization chains. The scheme started with them and was launched with the use of investor money unwittingly advanced into a pool of capital that would be used mostly to fund fees, profits, insurance proceeds, insurance premiums all for the benefit and paid to the investment banks and not the investors.

These were Fees and Relationships that were never disclosed to the homeowner despite very clear laws (Truth in Lending, Deceptive Lending) requiring full Transparency and Disclosure. It is quite clear that undisclosed fees, profits, kickbacks etc. are due back to the homeowner who signed the “loan” papers. I believe there are competing or complimentary claims from both the investors and the borowers against all that bailout and insurance money.

DEFAULT WAS UNNECESSARY: “if mortgage bonds were downgraded, if they were deemed to have lost value, or if A.I.G.’s own credit rating was downgraded. If all of those things happened, A.I.G. would have to make even larger payments.”The principal points you should come away with doubles down on prior comments (including yesterday’s post) about the manipulation or world finance and thus world politics. Until the financial oligopoly is broken apart like it was 100 years ago, we will continue to see nothing but worsening conditions in housing and the economy in general.

The actions of Goldman Sachs clearly show their intent and knowledge that they could cause a collapse and a government bailout. They did it because they could and they are still doing it.

We are now supposed to be lulled by the crisis in the Euro, which is chasing people in the U.S. dollar. Just browse the internet and you will bind blogs like www.baselinescenario.com and hundreds of others that will tell you and show you that this continues to be a banker’s dream scenario. Everytime there is a crisis or a boom the bankers make money on the movement of huge sums of capital. And now, they are controlling the crises and the booms. what could be better?

While the flood of money into the dollar is good for those who worry about inflation, it also guarantees that the housing market will, in real dollars, be down another 10-15% over the next year.

EXCERPTS:

Well before the federal government bailed out A.I.G. in September 2008, Goldman’s demands for billions of dollars from the insurer helped put it in a precarious financial position by bleeding much-needed cash. That ultimately provoked the government to step in.

The S.E.C. wants to know whether any of the demands improperly distressed the mortgage market, according to people briefed on the matter who requested anonymity because the inquiry was intended to be confidential.

$11 billion in taxpayer money that went to Société Générale, a French bank that traded with A.I.G., was subsequently transferred to Goldman under a deal the two banks had struck.

February 7, 2010

Testy Conflict With Goldman Helped Push A.I.G. to Edge

Billions of dollars were at stake when 21 executives of Goldman Sachs and the American International Group convened a conference call on Jan. 28, 2008, to try to resolve a rancorous dispute that had been escalating for months.

A.I.G. had long insured complex mortgage securities owned by Goldman and other firms against possible defaults. With the housing crisis deepening, A.I.G., once the world’s biggest insurer, had already paid Goldman $2 billion to cover losses the bank said it might suffer.

A.I.G. executives wanted some of its money back, insisting that Goldman — like a homeowner overestimating the damages in a storm to get a bigger insurance payment — had inflated the potential losses. Goldman countered that it was owed even more, while also resisting consulting with third parties to help estimate a value for the securities.

After more than an hour of debate, the two sides on the call signed off with nothing settled, according to internal A.I.G. documents and an audio recording reviewed by The New York Times.

Behind-the-scenes disputes over huge sums are common in banking, but the standoff between A.I.G. and Goldman would become one of the most momentous in Wall Street history. Well before the federal government bailed out A.I.G. in September 2008, Goldman’s demands for billions of dollars from the insurer helped put it in a precarious financial position by bleeding much-needed cash. That ultimately provoked the government to step in.

With taxpayer assistance to A.I.G. currently totaling $180 billion, regulatory and Congressional scrutiny of Goldman’s role in the insurer’s downfall is increasing. The Securities and Exchange Commission is examining the payment demands that a number of firms — most prominently Goldman — made during 2007 and 2008 as the mortgage market imploded.

The S.E.C. wants to know whether any of the demands improperly distressed the mortgage market, according to people briefed on the matter who requested anonymity because the inquiry was intended to be confidential.

In just the year before the A.I.G. bailout, Goldman collected more than $7 billion from A.I.G. And Goldman received billions more after the rescue. Though other banks also benefited, Goldman received more taxpayer money, $12.9 billion, than any other firm.

In addition, according to two people with knowledge of the positions, a portion of the $11 billion in taxpayer money that went to Société Générale, a French bank that traded with A.I.G., was subsequently transferred to Goldman under a deal the two banks had struck.

Goldman stood to gain from the housing market’s implosion because in late 2006, the firm had begun to make huge trades that would pay off if the mortgage market soured. The further mortgage securities’ prices fell, the greater were Goldman’s profits.

In its dispute with A.I.G., Goldman invariably argued that the securities in dispute were worth less than A.I.G. estimated — and in many cases, less than the prices at which other dealers valued the securities.

The pricing dispute, and Goldman’s bets that the housing market would decline, has left some questioning whether Goldman had other reasons for lowballing the value of the securities that A.I.G. had insured, said Bill Brown, a law professor at Duke University who is a former employee of both Goldman and A.I.G.

The dispute between the two companies, he said, “was the tip of the iceberg of this whole crisis.”

“It’s not just who was right and who was wrong,” Mr. Brown said. “I also want to know their motivations. There could have been an incentive for Goldman to say, ‘A.I.G., you owe me more money.’ ”

Goldman is proud of its reputation for aggressively protecting itself and its shareholders from losses as it did in the dispute with A.I.G.

In March 2009, David A. Viniar, Goldman’s chief financial officer, discussed his firm’s dispute with A.I.G. in a conference call with reporters. “We believed that the value of these positions was lower than they believed,” he said.

Asked by a reporter whether his bank’s persistent payment demands had contributed to A.I.G.’s woes, Mr. Viniar said that Goldman had done nothing wrong and that the firm was merely seeking to enforce its insurance policy with A.I.G. “I don’t think there is any guilt whatsoever,” he concluded.

Lucas van Praag, a Goldman spokesman, reiterated that position. “We requested the collateral we were entitled to under the terms of our agreements,” he said in a written statement, “and the idea that A.I.G. collapsed because of our marks is ridiculous.”

Still, documents show there were unusual aspects to the deals with Goldman. The bank resisted, for example, letting third parties value the securities as its contracts with A.I.G. required. And Goldman based some payment demands on lower-rated bonds that A.I.G.’s insurance did not even cover.

A November 2008 analysis by BlackRock, a leading asset management firm, noted that Goldman’s valuations of the securities that A.I.G. insured were “consistently lower than third-party prices.”

To be sure, many now agree that A.I.G. was reckless during the mortgage mania. The firm, once the world’s largest insurer, had written far more insurance than it could have possibly paid if a national mortgage debacle occurred — as, in fact, it did.

Perhaps the most intriguing aspect of the relationship between Goldman and A.I.G. was that without the insurer to provide credit insurance, the investment bank could not have generated some of its enormous profits betting against the mortgage market. And when that market went south, A.I.G. became its biggest casualty — and Goldman became one of the biggest beneficiaries.

Longstanding Ties

For decades, A.I.G. and Goldman had a deep and mutually beneficial relationship, and at one point in the 1990s, they even considered merging. At around the same time, in 1998, A.I.G. entered a lucrative new business: insuring the least risky portions of corporate loans or other assets that were bundled into securities.

A.I.G.’s financial products unit, led by Joseph J. Cassano, was behind the expansion. To reduce its own risks in the transactions, the company structured deals so that it would not have to make early payments to clients when securities began to sour. That changed around 2003, however, when A.I.G. began insuring portions of subprime mortgage deals. A lawyer for Mr. Cassano said his client would not comment for this article. A.I.G. also declined to comment.

Alan Frost, a managing director in Mr. Cassano’s unit, negotiated scores of mortgage deals around Wall Street that included a complicated sequence of events for when an insurance payment on a distressed asset came due.

The terms, described by several A.I.G. trading partners, stated that A.I.G. would post payments under two or three circumstances: if mortgage bonds were downgraded, if they were deemed to have lost value, or if A.I.G.’s own credit rating was downgraded. If all of those things happened, A.I.G. would have to make even larger payments.

Mr. Frost referred questions to his lawyer, who declined to comment.

Traders loved Mr. Frost’s deals because they would pay out quickly if anything went wrong. Mr. Frost cut many of his deals with two Goldman traders, Jonathan Egol and Ram Sundaram, who had negative views of the housing market. They had made A.I.G. a central part of some of their trading strategies.

Mr. Egol structured a group of deals — known as Abacus — so that Goldman could benefit from a housing collapse. Many of them were actually packages of A.I.G. insurance written against mortgage bonds, indicating that Mr. Egol and Goldman believed that A.I.G. would have to make large payments if the housing market ran aground. About $5.5 billion of Mr. Egol’s deals still sat on A.I.G.’s books when the insurer was bailed out.

“Al probably did not know it, but he was working with the bears of Goldman,” a former Goldman salesman, who requested anonymity so he would not jeopardize his business relationships, said of Mr. Frost. “He was signing A.I.G. up to insure trades made by people with really very negative views” of the housing market.

Mr. Sundaram’s trades represented another large part of Goldman’s business with A.I.G. According to five former Goldman employees, Mr. Sundaram used financing from other banks like Société Générale and Calyon to purchase less risky mortgage securities from competitors like Merrill Lynch and then insure the assets with A.I.G. — helping fatten the mortgage pipeline that would prove so harmful to Wall Street, investors and taxpayers. In October 2008, just after A.I.G. collapsed, Goldman made Mr. Sundaram a partner.

Through Société Générale, Goldman was also able to buy more insurance on mortgage securities from A.I.G., according to a former A.I.G. executive with direct knowledge of the deals. A spokesman for Société Générale declined to comment.

It is unclear how much Goldman bought through the French bank, but A.I.G. documents show that Goldman was involved in pricing half of Société Générale’s $18.6 billion in trades with A.I.G. and that the insurer’s executives believed that Goldman pressed Société Générale to also demand payments.

Goldman’s Tough Terms

In addition to insuring Mr. Sundaram’s and Mr. Egol’s trades with A.I.G., Goldman also negotiated aggressively with A.I.G. — often requiring the insurer to make payments when the value of mortgage bonds fell by just 4 percent. Most other banks dealing with A.I.G. did not receive payments until losses exceeded 8 percent, the insurer’s records show.

Several former Goldman partners said it was not surprising that Goldman sought such tough terms, given the firm’s longstanding focus on risk management.

By July 2007, when Goldman demanded its first payment from A.I.G. — $1.8 billion — the investment bank had already taken trading positions that would pay out if the mortgage market weakened, according to seven former Goldman employees.

Still, Goldman’s initial call surprised A.I.G. officials, according to three A.I.G. employees with direct knowledge of the situation. The insurer put up $450 million on Aug. 10, 2007, to appease Goldman, but A.I.G. remained resistant in the following months and, according to internal messages, was convinced that Goldman was also pushing other trading partners to ask A.I.G. for payments.

On Nov. 1, 2007, for example, an e-mail message from Mr. Cassano, the head of A.I.G. Financial Products, to Elias Habayeb, an A.I.G. accounting executive, said that a payment demand from Société Générale had been “spurred by GS calling them.”

Mr. Habayeb, who testified before Congress last month that the payment demands were a major contributor to A.I.G.’s downfall, declined to be interviewed and referred questions to A.I.G. The insurer also declined to comment for this article. Mr. van Praag, the Goldman spokesman, said Goldman did not push other firms to demand payments from A.I.G.

Later that month, Mr. Cassano noted in another e-mail message that Goldman’s demands for payment were becoming problematic. “The overhang of the margin call from the perceived righteous Goldman Sachs has impacted everyone’s judgment,” he wrote to five employees in his division.

By the end of November 2007, Goldman was holding $2 billion in cash from A.I.G. when the insurer notified Goldman that it was disputing the firm’s calculations and seeking a return of $1.56 billion. Goldman refused, the documents show.

In many of these deals, Goldman was trading for other parties and taking a fee. As the mortgage market declined, Goldman paid some of these parties while waiting for A.I.G. to meet its demands, the Goldman spokesman said. But one reason those parties were owed money on the deals was that Goldman had marked down the securities.

Adding to the pressure on A.I.G., Mr. Viniar, Goldman’s chief financial officer, advised the insurer in the fall of 2007 that because the two companies shared the same auditor, PricewaterhouseCoopers, A.I.G. should accept Goldman’s valuations, according to a person with knowledge of the discussions. Goldman declined to comment on this exchange.

Pricewaterhouse had supported A.I.G.’s approach to valuing the securities throughout 2007, documents show. But at the end of 2007, the auditor began demanding that A.I.G. provide greater disclosure on the risks in the credit insurance it had written. Pricewaterhouse was expressing concern about the dispute.

The insurer disclosed in year-end regulatory filings that its auditor had found a “material weakness” in financial reporting related to valuations of the insurance, a troubling sign for investors.

A spokesman for Pricewaterhouse said the company would not comment on client matters.

Insiders at A.I.G. bridled at Goldman’s insistence that they accept the investment bank’s valuations. “Would we call bond issuers and ask them what the valuation of their bonds was and take that?” asked Robert Lewis, A.I.G.’s chief risk officer, in a message in January 2008. “What am I missing here, so I don’t waste everybody’s time?”

When A.I.G. asked Goldman to submit the dispute to a panel of independent firms, Goldman resisted, internal e-mail messages show. In a March 7, 2008, phone call, Mr. Cassano discussed surveying other dealers to gauge prices with Michael Sherwood, Goldman’s vice chairman. At that time, Goldman calculated that A.I.G. owed it $4.6 billion, on top of the $2 billion already paid. A.I.G. contended it only owed an additional $1.2 billion.

Mr. Sherwood said he did not want to ask other firms to value the securities because “it would be ‘embarrassing’ if we brought the market into our disagreement,” according to an e-mail message from Mr. Cassano that described the call.

The Goldman spokesman disputed this account, saying instead that Goldman was willing to consult third parties but could not agree with A.I.G. on the methodology.

Trouble Grows at A.I.G.

By the spring of 2008, A.I.G.’s dispute with Goldman was just one of its many woes. Mr. Cassano was pushed out in March and the company’s defenses against the growing demand for payments faltered. By the end of August 2008, A.I.G. had posted $19.7 billion in cash to its trading partners, including Goldman, according to financial filings.

Over that summer, A.I.G. had tried, unsuccessfully, to cancel its insurance contracts with the trading partners. But Goldman, according to interviews with former A.I.G. executives, would allow that only if it also got to keep the $7 billion it had already received from A.I.G. Goldman wanted to keep the initial insurance payouts and the securities in order to profit from any future rebound.

In addition to offering to cancel its own contracts, Goldman offered to buy all of the insurance A.I.G. had written for several other banks at severely distressed prices, according to three people briefed on the discussions.

Negotiating with Goldman to void the A.I.G. insurance was especially difficult, Federal Reserve Board documents show, because the firm did not own the underlying bonds. As a result, Goldman had little incentive to compromise.

On Aug. 18, 2008, Goldman’s equity research department published an in-depth report on A.I.G. The analysts advised the firm’s clients to avoid the stock because of a “downward spiral which is likely to ensue as more actual cash losses emanate” from the insurer’s financial products unit.

On the matter of whether A.I.G. could unwind its troublesome insurance on mortgage securities at a discount, the Goldman report noted that if a trading partner “is not in a position of weakness, why would it accept anything less than the full amount of protection for which it had paid?”

A.I.G. shares fell 6 percent the day the report was published. Three weeks later, the United States government agreed to pour billions of dollars in taxpayer money into the insurer to keep it from collapsing.

The government would soon settle the yearlong dispute between Goldman and A.I.G., with Goldman receiving full value for its bets. The federal bailout locked in the paper losses of those deals for A.I.G. The prices on many of those securities have since rebounded.

Alan Feuer contributed reporting.

Self Dealing Part II: Investigations Started

NY Times: “When you buy protection against an event that you have a hand in causing, you are buying fire insurance on someone else’s house and then committing arson.”

Mr. Lippmann made his pitch to select hedge fund clients, arguing they should short the mortgage market. He sometimes distributed a T-shirt that read “I’m Short Your House!!!” in black and red letters.

While the investigations are in the early phases, authorities appear to be looking at whether securities laws or rules of fair dealing were violated by firms that created and sold these mortgage-linked debt instruments and then bet against the clients who purchased them,

Editor’s Note: It would be wise to pay careful attention to news reports and press releases from investigating agencies and to track the discovery in class action and other cases filed. A lot of your work might already be done, right down to the same lender you are  dealing with.

December 24, 2009

Banks Bundled Bad Debt, Bet Against It and Won

In late October 2007, as the financial markets were starting to come unglued, a Goldman Sachs trader, Jonathan M. Egol, received very good news. At 37, he was named a managing director at the firm.

Mr. Egol, a Princeton graduate, had risen to prominence inside the bank by creating mortgage-related securities, named Abacus, that were at first intended to protect Goldman from investment losses if the housing market collapsed. As the market soured, Goldman created even more of these securities, enabling it to pocket huge profits.

Goldman’s own clients who bought them, however, were less fortunate.

Pension funds and insurance companies lost billions of dollars on securities that they believed were solid investments, according to former Goldman employees with direct knowledge of the deals who asked not to be identified because they have confidentiality agreements with the firm.

Goldman was not the only firm that peddled these complex securities — known as synthetic collateralized debt obligations, or C.D.O.’s — and then made financial bets against them, called selling short in Wall Street parlance. Others that created similar securities and then bet they would fail, according to Wall Street traders, include Deutsche Bank and Morgan Stanley, as well as smaller firms like Tricadia Inc., an investment company whose parent firm was overseen by Lewis A. Sachs, who this year became a special counselor to Treasury Secretary Timothy F. Geithner.

How these disastrously performing securities were devised is now the subject of scrutiny by investigators in Congress, at the Securities and Exchange Commission and at the Financial Industry Regulatory Authority, Wall Street’s self-regulatory organization, according to people briefed on the investigations. Those involved with the inquiries declined to comment.

While the investigations are in the early phases, authorities appear to be looking at whether securities laws or rules of fair dealing were violated by firms that created and sold these mortgage-linked debt instruments and then bet against the clients who purchased them, people briefed on the matter say.

One focus of the inquiry is whether the firms creating the securities purposely helped to select especially risky mortgage-linked assets that would be most likely to crater, setting their clients up to lose billions of dollars if the housing market imploded.

Some securities packaged by Goldman and Tricadia ended up being so vulnerable that they soured within months of being created.

Goldman and other Wall Street firms maintain there is nothing improper about synthetic C.D.O.’s, saying that they typically employ many trading techniques to hedge investments and protect against losses. They add that many prudent investors often do the same. Goldman used these securities initially to offset any potential losses stemming from its positive bets on mortgage securities.

But Goldman and other firms eventually used the C.D.O.’s to place unusually large negative bets that were not mainly for hedging purposes, and investors and industry experts say that put the firms at odds with their own clients’ interests.

“The simultaneous selling of securities to customers and shorting them because they believed they were going to default is the most cynical use of credit information that I have ever seen,” said Sylvain R. Raynes, an expert in structured finance at R & R Consulting in New York. “When you buy protection against an event that you have a hand in causing, you are buying fire insurance on someone else’s house and then committing arson.”

Investment banks were not alone in reaping rich rewards by placing trades against synthetic C.D.O.’s. Some hedge funds also benefited, including Paulson & Company, according to former Goldman workers and people at other banks familiar with that firm’s trading.

Michael DuVally, a Goldman Sachs spokesman, declined to make Mr. Egol available for comment. But Mr. DuVally said many of the C.D.O.’s created by Wall Street were made to satisfy client demand for such products, which the clients thought would produce profits because they had an optimistic view of the housing market. In addition, he said that clients knew Goldman might be betting against mortgages linked to the securities, and that the buyers of synthetic mortgage C.D.O.’s were large, sophisticated investors, he said.

The creation and sale of synthetic C.D.O.’s helped make the financial crisis worse than it might otherwise have been, effectively multiplying losses by providing more securities to bet against. Some $8 billion in these securities remain on the books at American International Group, the giant insurer rescued by the government in September 2008.

From 2005 through 2007, at least $108 billion in these securities was issued, according to Dealogic, a financial data firm. And the actual volume was much higher because synthetic C.D.O.’s and other customized trades are unregulated and often not reported to any financial exchange or market.

Goldman Saw It Coming

Before the financial crisis, many investors — large American and European banks, pension funds, insurance companies and even some hedge funds — failed to recognize that overextended borrowers would default on their mortgages, and they kept increasing their investments in mortgage-related securities. As the mortgage market collapsed, they suffered steep losses.

A handful of investors and Wall Street traders, however, anticipated the crisis. In 2006, Wall Street had introduced a new index, called the ABX, that became a way to invest in the direction of mortgage securities. The index allowed traders to bet on or against pools of mortgages with different risk characteristics, just as stock indexes enable traders to bet on whether the overall stock market, or technology stocks or bank stocks, will go up or down.

Goldman, among others on Wall Street, has said since the collapse that it made big money by using the ABX to bet against the housing market. Worried about a housing bubble, top Goldman executives decided in December 2006 to change the firm’s overall stance on the mortgage market, from positive to negative, though it did not disclose that publicly.

Even before then, however, pockets of the investment bank had also started using C.D.O.’s to place bets against mortgage securities, in some cases to hedge the firm’s mortgage investments, as protection against a fall in housing prices and an increase in defaults.

Mr. Egol was a prime mover behind these securities. Beginning in 2004, with housing prices soaring and the mortgage mania in full swing, Mr. Egol began creating the deals known as Abacus. From 2004 to 2008, Goldman issued 25 Abacus deals, according to Bloomberg, with a total value of $10.9 billion.

Abacus allowed investors to bet for or against the mortgage securities that were linked to the deal. The C.D.O.’s didn’t contain actual mortgages. Instead, they consisted of credit-default swaps, a type of insurance that pays out when a borrower defaults. These swaps made it much easier to place large bets on mortgage failures.

Rather than persuading his customers to make negative bets on Abacus, Mr. Egol kept most of these wagers for his firm, said five former Goldman employees who spoke on the condition of anonymity. On occasion, he allowed some hedge funds to take some of the short trades.

Mr. Egol and Fabrice Tourre, a French trader at Goldman, were aggressive from the start in trying to make the assets in Abacus deals look better than they were, according to notes taken by a Wall Street investor during a phone call with Mr. Tourre and another Goldman employee in May 2005.

On the call, the two traders noted that they were trying to persuade analysts at Moody’s Investors Service, a credit rating agency, to assign a higher rating to one part of an Abacus C.D.O. but were having trouble, according to the investor’s notes, which were provided by a colleague who asked for anonymity because he was not authorized to release them. Goldman declined to discuss the selection of the assets in the C.D.O.’s, but a spokesman said investors could have rejected the C.D.O. if they did not like the assets.

Goldman’s bets against the performances of the Abacus C.D.O.’s were not worth much in 2005 and 2006, but they soared in value in 2007 and 2008 when the mortgage market collapsed. The trades gave Mr. Egol a higher profile at the bank, and he was among a group promoted to managing director on Oct. 24, 2007.

“Egol and Fabrice were way ahead of their time,” said one of the former Goldman workers. “They saw the writing on the wall in this market as early as 2005.” By creating the Abacus C.D.O.’s, they helped protect Goldman against losses that others would suffer.

As early as the summer of 2006, Goldman’s sales desk began marketing short bets using the ABX index to hedge funds like Paulson & Company, Magnetar and Soros Fund Management, which invests for the billionaire George Soros. John Paulson, the founder of Paulson & Company, also would later take some of the shorts from the Abacus deals, helping him profit when mortgage bonds collapsed. He declined to comment.

A Deal Gone Bad, for Some

The woeful performance of some C.D.O.’s issued by Goldman made them ideal for betting against. As of September 2007, for example, just five months after Goldman had sold a new Abacus C.D.O., the ratings on 84 percent of the mortgages underlying it had been downgraded, indicating growing concerns about borrowers’ ability to repay the loans, according to research from UBS, the big Swiss bank. Of more than 500 C.D.O.’s analyzed by UBS, only two were worse than the Abacus deal.

Goldman created other mortgage-linked C.D.O.’s that performed poorly, too. One, in October 2006, was a $800 million C.D.O. known as Hudson Mezzanine. It included credit insurance on mortgage and subprime mortgage bonds that were in the ABX index; Hudson buyers would make money if the housing market stayed healthy — but lose money if it collapsed. Goldman kept a significant amount of the financial bets against securities in Hudson, so it would profit if they failed, according to three of the former Goldman employees.

A Goldman salesman involved in Hudson said the deal was one of the earliest in which outside investors raised questions about Goldman’s incentives. “Here we are selling this, but we think the market is going the other way,” he said.

A hedge fund investor in Hudson, who spoke on the condition of anonymity, said that because Goldman was betting against the deal, he wondered whether the bank built Hudson with “bonds they really think are going to get into trouble.”

Indeed, Hudson investors suffered large losses. In March 2008, just 18 months after Goldman created that C.D.O., so many borrowers had defaulted that holders of the security paid out about $310 million to Goldman and others who had bet against it, according to correspondence sent to Hudson investors.

The Goldman salesman said that C.D.O. buyers were not misled because they were advised that Goldman was placing large bets against the securities. “We were very open with all the risks that we thought we sold. When you’re facing a tidal wave of people who want to invest, it’s hard to stop them,” he said. The salesman added that investors could have placed bets against Abacus and similar C.D.O.’s if they had wanted to.

A Goldman spokesman said the firm’s negative bets didn’t keep it from suffering losses on its mortgage assets, taking $1.7 billion in write-downs on them in 2008; but he would not say how much the bank had since earned on its short positions, which former Goldman workers say will be far more lucrative over time. For instance, Goldman profited to the tune of $1.5 billion from one series of mortgage-related trades by Mr. Egol with Wall Street rival Morgan Stanley, which had to book a steep loss, according to people at both firms.

Tetsuya Ishikawa, a salesman on several Abacus and Hudson deals, left Goldman and later published a novel, “How I Caused the Credit Crunch.” In it, he wrote that bankers deserted their clients who had bought mortgage bonds when that market collapsed: “We had moved on to hurting others in our quest for self-preservation.” Mr. Ishikawa, who now works for another financial firm in London, declined to comment on his work at Goldman.

Profits From a Collapse

Just as synthetic C.D.O.’s began growing rapidly, some Wall Street banks pushed for technical modifications governing how they worked in ways that made it possible for C.D.O.’s to expand even faster, and also tilted the playing field in favor of banks and hedge funds that bet against C.D.O.’s, according to investors.

In early 2005, a group of prominent traders met at Deutsche Bank’s office in New York and drew up a new system, called Pay as You Go. This meant the insurance for those betting against mortgages would pay out more quickly. The traders then went to the International Swaps and Derivatives Association, the group that governs trading in derivatives like C.D.O.’s. The new system was presented as a fait accompli, and adopted.

Other changes also increased the likelihood that investors would suffer losses if the mortgage market tanked. Previously, investors took losses only in certain dire “credit events,” as when the mortgages associated with the C.D.O. defaulted or their issuers went bankrupt.

But the new rules meant that C.D.O. holders would have to make payments to short sellers under less onerous outcomes, or “triggers,” like a ratings downgrade on a bond. This meant that anyone who bet against a C.D.O. could collect on the bet more easily.

“In the early deals you see none of these triggers,” said one investor who asked for anonymity to preserve relationships. “These things were built in to provide the dealers with a big payoff when something bad happened.”

Banks also set up ever more complex deals that favored those betting against C.D.O.’s. Morgan Stanley established a series of C.D.O.’s named after United States presidents (Buchanan and Jackson) with an unusual feature: short-sellers could lock in very cheap bets against mortgages, even beyond the life of the mortgage bonds. It was akin to allowing someone paying a low insurance premium for coverage on one automobile to pay the same on another one even if premiums over all had increased because of high accident rates.

At Goldman, Mr. Egol structured some Abacus deals in a way that enabled those betting on a mortgage-market collapse to multiply the value of their bets, to as much as six or seven times the face value of those C.D.O.’s. When the mortgage market tumbled, this meant bigger profits for Goldman and other short sellers — and bigger losses for other investors.

Selling Bad Debt

Other Wall Street firms also created risky mortgage-related securities that they bet against.

At Deutsche Bank, the point man on betting against the mortgage market was Greg Lippmann, a trader. Mr. Lippmann made his pitch to select hedge fund clients, arguing they should short the mortgage market. He sometimes distributed a T-shirt that read “I’m Short Your House!!!” in black and red letters.

Deutsche, which declined to comment, at the same time was selling synthetic C.D.O.’s to its clients, and those deals created more short-selling opportunities for traders like Mr. Lippmann.

Among the most aggressive C.D.O. creators was Tricadia, a management company that was a unit of Mariner Investment Group. Until he became a senior adviser to the Treasury secretary early this year, Lewis Sachs was Mariner’s vice chairman. Mr. Sachs oversaw about 20 portfolios there, including Tricadia, and its documents also show that Mr. Sachs sat atop the firm’s C.D.O. management committee.

From 2003 to 2007, Tricadia issued 14 mortgage-linked C.D.O.’s, which it called TABS. Even when the market was starting to implode, Tricadia continued to create TABS deals in early 2007 to sell to investors. The deal documents referring to conflicts of interest stated that affiliates and clients of Tricadia might place bets against the types of securities in the TABS deal.

Even so, the sales material also boasted that the mortgages linked to C.D.O.’s had historically low default rates, citing a “recently completed” study by Standard & Poor’s ratings agency — though fine print indicated that the date of the study was September 2002, almost five years earlier.

At a financial symposium in New York in September 2006, Michael Barnes, the co-head of Tricadia, described how a hedge fund could put on a negative mortgage bet by shorting assets to C.D.O. investors, according to his presentation, which was reviewed by The New York Times.

Mr. Barnes declined to comment. James E. McKee, general counsel at Tricadia, said, “Tricadia has never shorted assets into the TABS deals, and Tricadia has always acted in the best interests of its clients and investors.”

Mr. Sachs, through a spokesman at the Treasury Department, declined to comment.

Like investors in some of Goldman’s Abacus deals, buyers of some TABS experienced heavy losses. By the end of 2007, UBS research showed that two TABS deals were the eighth- and ninth-worst performing C.D.O.’s. Both had been downgraded on at least 75 percent of their associated assets within a year of being issued.

Tricadia’s hedge fund did far better, earning roughly a 50 percent return in 2007 and similar profits in 2008, in part from the short bets.

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