“A day of reckoning may soon be coming.” Yves Smith

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Editor’s Comment:  

Yes it is a mouthful. But it boils down to this — Barclay’s Bank in cooperation with others manipulated the actual LIBOR rates which in turn effects other rates around the world. If you take this information and apply it to any loan that supposedly was reset on the basis of interest rates, you come up with the inevitable conclusion that the resets during the period of the manipulation were probably wrong.

So if a mortgage rate went from 3% to 4% on the basis of a change in interest rates tied to the note, then the proper rate charged to the homeowner was either higher or lower than what was actually charged. If the rate changed was directly  tied to LIBOR that is the end of the argument. If the reset was based upon some other index you will find that those rates were influenced by LIBOR rates. 

In a nutshell what this means is that most notices of default and foreclosures were based upon the wrong figures. In many cases the borrower was being charged too much and the loan balance was being overstated. This effects not only the notice of default but the amount required from the borrower for redemption and the amount of the credit bid allowed (presuming that the bidder was indeed the creditor which it seems is never the case in this country). 

The bottom line is that even if all the other defects in the origination of the loan, the foreclosure of the loan, and the auction of the loan are accepted as true, the remaining defect deals with the real thing — money. Procedurally I have an issue with those who file these defensive positions in a motion to dismiss. I think a simple denial of the foreclosers allegations or implied allegations coupled with affirmative defenses is the proper thing to do, even though it puts the burden of proof as to LIBOR and other rates on the borrower. But the truth be told, the Judges are putting the burden of persuasion on the borrowers anyway. 

Yves Smith has hit on something of huge importance. 

Yes, Virginia, the Real Action in the Libor Scandal Was in the Derivatives

As the Libor scandal has given an outlet for long-simmering anger against wanker bankers in the UK, there have been some efforts in the media to puzzle out who might have won or lost from the manipulations, as well as arguments that they were as “victimless” or helped people (as in reporting an artificially low Libor during the crisis led to lower interest rate resets on adjustable rate loans pegged to Libor; what’s not to like about that?)

What we have so far is a lot of drunk under the streetlight behavior: people trying to relate the scandal to the part that is most visible and easy to understand, meaning the loan market that keys off Libor. As much as that’s a really big number ($10 trillion), it is trivial compared to the relevant derivatives. From the FSA letter to Barclays:

The Eurodollar futures contract traded on the CME in Chicago (which is the largest interest rate futures contract by volume in the world) has US dollar LIBOR as its reference rate. The value of volume of that contract traded in 2011 was over 564 trillion US dollars.

This is only one blooming exchange contract, albeit a monster of a contract. There are loads of OTC contracts in addition to that:

Interest rate derivative contracts typically contain payment terms that refer to benchmark rates. LIBOR and EURIBOR are by far the most prevalent benchmark rates used in euro, US dollar and sterling OTC interest rate derivatives contracts and exchange traded interest rate contracts.

Devil’s advocates have also argued that while Barclays submitted improper Libor rates, there’s no evidence they influenced the rates. I read the FSA document quite differently.

Recall that (so far) we have two phases of activity: one from 2005 to 2007, in which derivatives traders at Barclays would lean on the Submitters on a regular basis to place bids that would help improve the profits of positions they had on, and a later phase, during the crisis, where Barclays felt its peers were submitting lowball figures to the daily fixings and it was getting bad press for being an outlier, and it went to posting what it though were competitive, as in artificially low, data.

The earlier period looks to be far more damaging, and the regulators may have gotten only the tip of the iceberg. Readers have told me this sort of manipulation dates from at least 2001; the Economist quotes an insider saying it goes back 15 years. And with so few banks in the end influencing the rate, it isn’t hard to imagine the gaming worked. If you have 16 banks on the panel, as you did in late 2008, the top and bottom 25% of the bids are eliminated and the ones left are averaged. So it’s the average of 8 that remained that would determine the rate.

First, the FSA document suggests that it has only partial information, and it quotes e-mails and some isolated instant messages. A lot, presumably most, of the communication was verbal. But even with what the FSA presented, the traders were often and aggressively working with the submitters to influence their bids, and the FSA found in the overwhelming majority of the time the submitters cooperated. The directions were often quite specific, to hit a certain number, even to submit a figure that would be so high or so low as to get Barclays’ data point excluded from the daily calculation. The enthusiasm and frequency with which the traders were pushing the submitters, as well as the reaction in the market, suggests these efforts were having an impact:

Other individuals with no apparent vested interest in the strategy commented on the EURIBOR rates on 19 March 2007. Trader D stated in an instant message to an external trader “look at the games in EURIBOR today […] I am sure a few names made a killing”. A trader at a hedge fund communicated with Trader E, also on 19 March 2007, stating “it’s becoming dangerous to trade in 3m imms […], especially when Barclays sets the 3m very low […] it does draw attention to you guys. It doesn’t look very professional”

But how could this be? Barclays was only one of a number of banks putting in daily Libor prices.

First, the FSA account notes that Barclays was sometimes working with other banks. It would seem likely that this was more frequent than the paper trail thus far would suggest. Someone working with other banks to rig rates would probably be a bit more circumspect than in internal communications. The fact that the traders would sometimes try to have a rate put in that was intended to be knocked out of the final calculation suggests a collusive strategy.

Second, the derivative traders weren’t working just with the submitters. The report indicates that on at least on occasion, they got the cash desk to cooperate with the manipulation. And again, if the derivative traders sometimes worked with traders in other banks, they might have gotten those cash desks to play along with their scheme.

Third, their objectives for rate moving were to achieve single or a few basis points. Some examples:

Trader B explained “I really need a very very low 3m fixing on Monday – preferably we get kicked out. We have about 80 yards [billion] fixing for the desk and each 0.1 [one basis point] lower in the fix is a huge help for us.

..the Submitter responded positively on 10 November 2006, “of course we will put in a low fixing” and on 13 November indicated they would make a submission lower than the Brokers thought EURIBOR would set that day, “no problem. I had not forgotten. The brokers are going for 3.372, we will put in 36 for our contribution”

As the Economist points out:

The sums involved might have been huge. Barclays was a leading trader of these sorts of derivatives, and even relatively small moves in the final value of LIBOR could have resulted in daily profits or losses worth millions of dollars. In 2007, for instance, the loss (or gain) that Barclays stood to make from normal moves in interest rates over any given day was £20m ($40m at the time). In settlements with the Financial Services Authority (FSA) in Britain and America’s Department of Justice, Barclays accepted that its traders had manipulated rates on hundreds of occasions.

And the idea that one party’s loss from the manipulation was another’s gain is irrelevant to those on the losing side:

….banks will be sued only by those who have lost, and will be unable to claim back the unjust gains made by some of their other customers. Lawyers acting for corporations or other banks say their clients are also considering whether they can walk away from contracts with banks such as long-term derivatives priced off LIBOR.

I expect the firms involved to face a locust swarm of litigation. Lawyers may accomplish what regulators and politicians refused to do: strip the banks of ill gotten gains and bring their preening CEOs and “producers” down a few notches. A day of reckoning may finally be coming.





Screw the Pooch!!??

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Editor’s Comment:

Do some research, think about what you know and what you need to know. Come to my seminar or any seminar on securitization and you will understand the significance. Naked short-selling is the same as selling forward. In both cases you sell to an “investor” something where you have no asset and no money to back it up. You take the money from the investor and use it pretty much any way you like and account for it as “trading profits.” Then you take what is left and you create the illusion of transactions when in fact the documents refer to a virtual transaction in which the parties were different than those described on the closing documents and the terms of repayment of the loan are different than the terms disclosed to either the  investor or the borrower.

This sort of thing is unfathomable to most people, except those who spent a lot of time on Wall Street or doing Wall Street-type things, which is an adequate description of my background. If you sold a car to someone when you didn’t have the car or the money to buy it and then you took the money and put part of it in your pocket as your fee and then went out and bought a junker, you might be charged with civil or criminal fraud. Don’t you think? But on Wall Street these behaviors are permitted in the name of increasing liquidity.

What a country!

Joe Floren Screws the Pooch

by Patrick Byrne

The first time I heard Joe Floren speak I was standing behind him in an elevator in his law firm’s San Francisco office tower  as another lawyer informed him that the subpoena Joe Floren had served the previous day on a colleague of mine had reached her in the hospital, after a difficult delivery of her first child, while she was breastfeeding for the first time.

“Really? That’s beautiful. I love it!” He replied with glee.

Joseph E. Floren, Esq., is a lawyer at Morgan Lewis, the white shoe law firm defending Goldman Sachs against Overstock’s prime broker litigation, and tonight I celebrate the mistake Joe Floren made yesterday.  In filing Goldman’s response to Overstock’s motion to vacate the trial court judge’s decision to stay his own decision to unseal various documents related to this litigation (in more straightforward English: the trial court judge decided to unseal some documents while also deciding to delay acting on his decision, but we objected to this delay, and Goldman responded to our objections), Joe Floren screwed the pooch. He filed something containing an attachment he forgot to redact. That attachment is a previous filing of Overstock’s, a filing which contains but a sample of the shenanigans at Goldman and Merrill that has turned up over the course of five years and millions of pages of discovery, but which filing we had redacted when we made it (as good litigants do).

Fortunately for the cause of all that is good and right about America, Joe Floren’s goof came to the attention of a diligent 1st amendment attorney in California named Karl Olson, who represents the Economist, Bloomberg, the New York Times and Wener Publications (owners of Rolling Stone magazine) in their efforts to obtain the documents.  Karl Olson provided Joe Floren’s sloppy filing to his clients. Tonight these stories appeared:

Rolling Stone: Accidentally Released – and Incredibly Embarrassing – Documents Show How Goldman et al Engaged in ‘Naked Short Selling’

Bloomberg: Goldman, Merrill E-Mails Show Naked Shorting, Filing Says

Economist: An enlightening mistake

Really, Joe Floren?  That’s beautiful.  I love it.





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