Incredible “Hustle”: JPM Moves Exec Who Defrauded Fannie and Freddie to Defrauding Borrowers Again

What’s the Next Step? Consult with Neil Garfield

For assistance with presenting a case for wrongful foreclosure, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of Florida, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).

Victims can receive up to $125,000 in cash or, in some cases, get their homes back. But the review has already been marred by evidence that the banks themselves play a major role in identifying the victims of their own abuses, raising the question of whether the review is compromised by a central conflict of interest.”

Editor’s Comment and Analysis: The rules and laws are in place and the banks are flagrantly violated them — again. While the infrastructure is in place to compensate victims of wrongful foreclosure and to stop wrongful foreclosures, the programs are routinely corrupted and ignored.

JPMorgan and the other mega banks actually had a name for the game: the “Hustle.” “Rebecca Mairone, worked at Countrywide and Bank of America from 2006 until earlier this year, when she left for JPMorgan Chase, according to her LinkedIn profile.” (see article below).

Mairone stands accused of a two year “scam” of foisting bad loans onto Fannie and Freddie on behalf of Bank of America. Now she is at JPM supervising the compensation program for wrongful foreclosure victims. Do you think there might be a conflict of interest or two in that structure?

So now she is the head of the “independent Foreclosure Review” process. “The review “never seemed designed to place first the interests of those who were supposed to be helped — victimized homeowners,” said Neil Barofsky, the former federal prosecutor who served as the special inspector general for the Troubled Asset Relief Program, better known as the bank bailout.”

The DOJ lawsuit says “”Countrywide knowingly churned out loans with escalating levels of fraud and other serious material defects and sold them to” Fannie and Freddie.”

Countrywide had a name for its policy of abandoning underwriting standards, lying to borrowers, brokers and closing agents: “The new modus operandi was called the “High Speed Swim Lane”; its motto was “Loans Move Forward, Never Backward,” according to the suit. The company allegedly paid bonuses to its employees based on the number of loans they pushed through, not on whether the loans were sound.

AND THIS is why I am telling you that if you push the banks into a corner by denying all the essential allegations they make about your loan and then demand discovery on the money trail starting with the first dollars that went in or out of a REMIC or that went in or out of the loan you thought you were getting, you will prove your case and the bank will retreat.

The fact is that in most cases the REMIC played no part in the lending process but the investors, who were advancing money THOUGHT they were investing in a REMIC, were actually lending money to the investment bank who took control as if the loans belonged to the banks. Then they traded, insured and contracted as though they were the owners. They claimed losses on federal bailouts when they had no losses.

The lies told to investors were identical to the lies told to borrowers as to the underwriting, the appraisal values, the ability of borrowers to pay on loans where the payments would skyrocket above any known income the borrower ever had, and so many severe defects in the origination of the loans that the investors themselves have come to the conclusion that there is nothing enforceable about those loans –— not the obligation, the note (as evidence of the obligation) nor the mortgage which secured a defective note containing both the wrong payee and the wrong terms of repayment.

As I have repeatedly stated, the investors should join with borrowers in a tactical pincer action, but they don’t. And I can only conclude that the reason they don’t is that the fund managers who bought these bonds knew more than they say they knew and went ahead because of the some benefit they received by buying the bogus mortgage bonds. Things don’t happen on this scale without lots of people knowing.

Red-faced bureaucrats who take their information from banks are going to be explaining for years to come why they gave money to the banks when it was the investors and homeowners who were the ones losing money while the banks were raking in the money on the way up and on the way down the greatest bubble in history.

Exec Who Allegedly Enabled Fraud Runs Chase’s Effort to Compensate Foreclosure Victims

by Paul Kiel
ProPublica,

An executive who the Justice Department says facilitated a scheme to defraud Fannie Mae and Freddie Mac is now spearheading JPMorgan Chase’s role in the government’s program to compensate victims of the big banks’ abusive foreclosure practices.

The executive, Rebecca Mairone, worked at Countrywide and Bank of America from 2006 until earlier this year, when she left for JPMorgan Chase, according to her LinkedIn profile.

In a lawsuit filed last month in federal court in New York, Justice Department attorneys allege that Countrywide, which was bought by Bank of America in 2008, perpetrated a two-year scam to foist shoddy home loans on Fannie and Freddie. Neither Mairone nor any other individuals are named as defendants in the civil suit, and no criminal charges have been filed against her or anyone else in connection with the alleged misconduct. But Mairone is one of two bank officials cited in the suit as having repeatedly ignored warnings about the “Hustle,” as the alleged scheme was called inside the company, and she prohibited employees from circulating some of those warnings outside their division.

Mairone was chief operating officer of the Countrywide lending division that allegedly carried out the “Hustle.” She took the helm of JPMorgan Chase’s involvement in the Independent Foreclosure Review this summer, according to a former Chase employee.

The review, overseen by federal banking regulators, requires the nation’s biggest banks to compensate victims for harm they inflicted on borrowers. Victims can receive up to $125,000 in cash or, in some cases, get their homes back. But the review has already been marred by evidence that the banks themselves play a major role in identifying the victims of their own abuses, raising the question of whether the review is compromised by a central conflict of interest.

Mairone’s role raises additional questions about the Independent Foreclosure Review.

The review “never seemed designed to place first the interests of those who were supposed to be helped — victimized homeowners,” said Neil Barofsky, the former federal prosecutor who served as the special inspector general for the Troubled Asset Relief Program, better known as the bank bailout.

“Finding out that the person running it for JPMorgan Chase is a person whose conduct in the run-up to financial crisis was allegedly so egregious that she somehow managed to be one of the only people actually named in a case brought by the Department of Justice goes beyond irony,” he continued. “It speaks volumes to the banks’ true intent and lack of concern for homeowners when addressing the harm that they caused during the foreclosure crisis.”

In response to ProPublica’s questions about Mairone’s role in the foreclosure review and the suit’s allegations, Chase issued a brief statement confirming that Mairone is a managing director who is “working on the Independent Foreclosure Review process.” The statement added, “It would not be appropriate for us to discuss another firm’s litigation.”

Chase declined to make Mairone available for comment, and she did not return a message left at her home number.

The Suit’s Allegations

Countrywide was the industry leader in subprime loans, which are typically given to borrowers with a troubled credit history. In 2007, the subprime market began to collapse as more and more of those borrowers defaulted on their loans. Countrywide grew desperate to find ways to keep profiting from issuing mortgages.

Fannie and Freddie guarantee home loans, relieving banks of the risk that borrowers will default. So in 2007, the government’s suit alleges, Countrywide began the Hustle to pass a huge number of risky loans, many with phony incomes attributed to the borrowers, on to Fannie and Freddie.

At that time, the two mortgage giants were restricting their underwriting guidelines, making it harder for lenders like Countrywide to find borrowers who qualified for Fannie and Freddie backed loans.

The suit alleges that Countrywide deliberately gutted its system for detecting unqualified borrowers, leading to a flood of flawed and outright fraudulent loans backed by Fannie and Freddie.

The new modus operandi was called the “High Speed Swim Lane”; its motto was “Loans Move Forward, Never Backward,” according to the suit. The company allegedly paid bonuses to its employees based on the number of loans they pushed through, not on whether the loans were sound. According to the suit, the new system created a torrent of loans that often featured inflated borrower incomes, accelerated by employees who had every incentive to fabricate numbers to get the loans into the “High Speed Swim Lane.”

The suit says a number of employees within Countrywide raised alarms about the Hustle before it launched, but that Mairone and the division’s president “ignored” those warnings.

Once the new system was up and running, one concerned executive had underwriters run checks on the loans. Mairone allowed the checks, but said they should be run in parallel to the loan funding process so, according to the suit, they didn’t “‘slow the swim lane down.'”

The tests found a “staggering rate of defects,” the suit says, but Mairone did not “alter or abandon the Hustle model.” Instead, the suit alleges, she “prohibited” underwriters from circulating the results outside of the lending division. “As warnings about the Hustle went unheeded,” the complaint alleges, “Countrywide knowingly churned out loans with escalating levels of fraud and other serious material defects and sold them to” Fannie and Freddie.

The Hustle continued “through 2009,” the Justice Department alleges, well after Bank of America acquired Countrywide. The scheme led to more than $1 billion in losses at Fannie and Freddie as borrowers defaulted, according to the suit.

The government took over Fannie and Freddie in 2008, and since then taxpayers have pumped in $187.5 billion to keep them afloat.

The federal suit was first brought under seal as a qui tam suit under the False Claims Act by a former Countrywide and Bank of America executive, Edward O’Donnell, who says he tried to stop the Hustle. A qui tam suit allows a private citizen to sue on behalf of the government and receive a portion of the settlement or judgment if the suit is successful. The Justice Department joined O’Donnell’s suit in October in Southern District of New York, filing its own complaint and trumpeting it in a press release.

A Bank of America spokesman disputed allegations in the suit that it had refused to repurchase the faulty “Hustle” loans from Fannie Mae after they defaulted in large numbers. “Bank of America has stepped up and acted responsibly to resolve legacy mortgage matters,” said spokesman Lawrence Grayson. “At some point, Bank of America can’t be expected to compensate every entity that claims losses that actually were caused by the economic downturn.”

A Career Spans the Crisis

Mairone’s career has spanned the entire life cycle of the foreclosure crisis.

After working for Countrywide and Bank of America’s lending divisions, Mairone moved to the bank’s servicing division in 2009. There, at the height of the crisis, she was in charge of deciding how to deal with homeowners who could not pay their mortgages and wanted to modify the terms of their loans.

It didn’t go well. The big banks all signed up for the government’s main foreclosure prevention program and agreed to provide modifications for qualified borrowers. But as we’ve reported over the years (we even interviewed Mairone herself in early 2011), the biggest banks often botched loan modifications and regularly subjected customers to errors and abuses, some resulting in mistaken foreclosures. The big banks in general did a poor job, but analyses have shown that Bank of America performed the worst of all. Homeowners had less of a chance of getting a modification from Bank of America than any other major mortgage servicer, studies show.

Such failings eventually led to government efforts to compensate homeowners for the banks’ errors and abuses. The Federal Reserve and the Office of the Comptroller of the Currency launched the Independent Foreclosure Review in late 2011. About 4.4 million homeowners are eligible for the review, and those who are determined to have been harmed can receive up to $125,000 in cash compensation.

Regulators required each of the banks to hire an outside consultant to independently conduct the review, but as ProPublica has reported, there is abundant evidence that the banks themselves are playing a large role. The program has also been marked by low participation by borrowers and a lack of transparency.

Regulators have said the banks are only playing a supporting role in the review, and that the consultants are entirely responsible for deciding how borrowers are compensated.

Mairone’s current employment at Chase was first reported by The Street, an online news service that covers finance, but the story did not say Mairone was working on the bank’s Independent Foreclosure Review. She oversees hundreds of Chase employees who gather documents for the reviews, according to the former Chase employee. Chase declined to say how many employees Mairone oversees or detail her job responsibilities.

Chase’s main regulator, the Office of the Comptroller of the Currency, said its policy is not to comment on specific individuals or ongoing litigation. “The OCC and the Federal Reserve are monitoring the conduct of the Independent Foreclosure Review to ensure reviews are conducted fairly and thoroughly,” said spokesman Bryan Hubbard.

Jonathan Gandal, a spokesman for Deloitte, the consultant Chase hired for the review, said, “We are conducting an independent review of the files and it is our review and analysis alone that will drive our recommendations. Beyond that, we are not at liberty to discuss matters pertaining to our services.”

 

Libor vs Mortgage Scandals: Amount of Money Appears to be the Only Difference

COME TO THE ANAHEIM 1/2 SEMINAR WEDNESDAY MORNING

It appears as though LIBOR is being thrown under the bus as a distraction from the much larger mortgage securitization scam. Both cases relied upon trust that was breached, money that was invented, figures that were fabricated, lying, cheating and inside trading to the detriment of the institutions that participated in one form or another. In both cases the ultimate victims on both sides of the transactions is the consumer.

Yet with LIBOR “suits are mounting,” (Wall Street Journal) investigations proliferating and a handy group of scapegoats far from the top of the scam may well be prosecuted.

The only difference seems to be that the size of the LIBOR scandal in terms of consequences to the institutions and consumers appears to be far less than the monumental scam foisted upon taxpayers all over the industrialized world, especially in the U.S.

To be certain the manipulation of the LIBOR rates was clearly an intentional act, but so was the insertion of the bankers naked nominees when residential loans were originated. In most cases, securitization was different in the commercial setting because it was more likely that more questions would be asked by higher priced, more sophisticated lawyers for the borrower.

The manipulation of LIBOR rates resulted in the wrong calculation of adjustable rate mortgages all over the world, making the notices of default, demand for payment and perhaps even the sales illegal. That is more in the nature of legal argument. The insertion of nominees controlled by the investment banks as payees, nominees, trustees, beneficiaries and mortgagees in lieu of the institutions that were actually providing the money and hiding the compensation that TILA requires to be disclosed, the steady practice of table funded loans which are deemed “predatory per se” under regulation Z, allowed intermediaries to pretend to be the lenders, the owners of the loans so they could trade with impunity. If they lost money, they threw the loss over the fence at the taxpayers and investment funds that bought bogus mortgage bonds. If they made money, they kept it.

The only difference is that the the amount of money involved in the non-existent securitization scheme that was so well “documented” was that it resulted in siphoning out the life blood of multiple nations and sending the world into a recession not seen in most of your lifetimes. AND the policy makers in Washington either were or are in bed with the perpetrators on this scheme, whereas the LIBOR scandal is being couched in terms where the traders were conspiring but the banks were unaware of their transgressions.

Let’s face it, if suddenly you have a trading department that is reporting profits geometrically and even exponentially higher than any other time in history, as CEO you would want to know why. Those trading profits did exactly that in both LIBOR and the mortgage securitization myth. One must ask why thousands of advertisements costing billions of dollars were on TV, radio, newspapers and magazines for loans at 5%. Put pencil to paper. If normal underwriting standards were used, and normal fees were applied to intermediaries who made the loan possible, there would be no room in the budget for such extravagance, much less the pornographic profits and bonuses reported on Wall Street. Why were armies of salesmen, including 10,000 convicted felons in Florida alone pushed into the market place as mortgage brokers or mortgage originators?

The intentional reporting of the wrong rates has an effect on all loans, past, present and future, but it requires yet more education of an already overloaded judiciary. So throwing a few traders under the bus and calling it a day is pretty much what is going to happen.

As it turns out though, the Banks have painted themselves into a corner on the securitization scam. What they securitized was paper, not money. The monetary transactions were left untouched by the documents, leaving the people who loaned the money through the scam vehicle known as a REMIC trust with no security for a bad loan.

Hence neither the documentation of an on-existent transaction between the parties named on the instrument, nor the manipulation of terms that were presented in one set to the investor-lenders and an entirely different set of terms presented to the borrower created valid contracts, much less perfected liens. But that didn’t matter to the intermediaries who were supposed to be acting as intermediaries — in the same way a check clears the bank — with no claim to the subject matter of the transaction.

They too manipulated rates by creating second tier yield spread premiums, and thus created spreads upon which they could withdraw money, pay for insurance, credit default swaps and other bets that the bad loans they wanted and received would fail, leaving the market in free-fall.

Predicting the market to to fall is like pushing a person off a cliff. You pretty much know that once the balance is lost the person is doomed. Doctoring up the applications with false income and false property appraisals did exactly that. It was a bet on a sure thing. Wall Street could rest comfortably in the knowledge that housing would ultimately fall to normal levels simply because there was nobody who could or would pay the premium they invested on the mortgage scam.

Now Wall Street is creating entities that will buy up “distressed”properties — a product of their own wrongdoing, using the money of the same people who owned the homes that were foreclosed — i.e., their pension and 401k retirement money. So they used your own money to fund a bad loan to you that they knew they could foreclose, and in between the time they originated the loan documents and the time of foreclosure they engaged in trading on your mortgage even though they had no part in funding or purchasing the loan.

My question to you is where is your outrage? When are you going to fight the bank control of Washington, the bank manipulation of judiciary by fabricating false, forged documentation that “looks right?” You can do it by voting against hose  most closely tied to the Wall Street community, by fighting with the party claiming to be your mortgage lender/servicer, or both. If you don’t you are handing the Country over to the banks and leaving it to your children and grandchildren to suffer the consequences.

Mortgage Banking Meltdown AND Foreclosure Defense: Who Are the Victims?

When was the last time you heard of a crowd of debt-ridden consumers cornering the finance market and playing with the economy at their leisure?

THE WALL STREET GENIUSES HAD CREATED THIS MONSTER AND THE ONE ENTITY THAT WAS SUPPOSED TO HAVE THE VANTAGE POINT OF SEEING THE BIG PICTURE AND THE NEED TO REIN IN SOME PRACTICES WHILE ENCOURAGING OTHERS WAS GOVERNMENT. INSTEAD CONGRESS PASSED THE REMIC STATUTE, REGULATORS TURNED A BLIND EYE AND GREENSPAN AT THE FEDERAL RESERVE GAVE HIS STAMP OF APPROVAL ON THE WORST GROUP OF FINANCIAL PRACTICES TO HIT THE MARKET IN OVER ONE HUNDRED YEARS. 

In the smug circles of regulators and big finance, a myth is being propogated that the mortgage mess, the credit crisis and the bank failures together with 100 year old investment firms is all or mostly the fault of either speculators who got what they deserved or greedy home buyers who should have known better. Actually that is not true. Everyone is victim here and only a handful of people are really responsible.

Most of the loans were refi’s, so the argument that retail home buyers had eyes bigger than their pocket books, is simply not supported by the numbers. But as I have said in past blogs on public policy — the longer we wait to address the fundamentals of this situation the worse it is going to get. Everyday, a little more news shows that the numbers are growing. 

Very few of the loans were to speculators, but of these so-called “speculators” were 95% the victim of boiler room identify theft operations that gave the victim the idea he/she was a real estate investor when in fact, they had just sold their identities.

THE REAL FRAUD HERE IS INFLATION OF VALUE ABOUT WHICH NEITHER THE BUYER OF REAL ESTATE NOR THE BUYER OF ASSET BACKED SECURITIES HAD ANY KNOWLEDGE OR EXPERIENCE. THE METHOD WAS THE SAME ON BOTH ENDS — A GROUP OF SHARKS ON THE HOME BUYER SIDE PROVIDING “APPRAISALS” AND OFFICIAL LOOKING DOCUMENTS LEAVING THE BUYER WITH AN INVESTMENT THAT WAS NOT WORTH 75% WHAT HE/SHE PAID.

AND ON THE OTHER SIDE A GROUP OF SHARKS ON THE INVESTMENT SIDE, ) MONEY MANAGERS LOOKING OVER THE MONEY OF PEOPLE ON PENSIONS OR INVESTED IN MUTUAL FUNDS, OR CITY GOVERNMENTS AND CORPORATIONS PRUDENTLY EARNING INTEREST ON CASH THEY DID NOT YET NEED), PROVIDING “APPRAISALS’ (RATINGS) AND OFFICIAL LOOKING DOCUMENTS LEAVING THE BUYER AND ALL THE MILLIONS PEOPLE AFFECTED BY THE BUYER’S INVESTMENT DECISION WITH AN INVESTMENT THAT WAS NOT WORTH, IN SOME CASES, EVEN 1% OF WHAT HE/SHE PAID.

CONTROL OVER THE ENTIRE SCHEME WAS EXERCISED FROM THE BOARD ROOMS OF WALL STREET WHERE FINANCIAL INCENTIVES AND COERCION (DO IT OUR WAY OR YOU CAN’T BE PART OF THE “TEAM”) WHO UNDERSTOOD PERFECTLY WELL THAT THE HOMES WERE OVER-APPRAISED, THAT THE BORROWER’S ABILITY TO PAY WAS NEAR ZERO IN MANY CASES, AND THAT UNDERWRITING STANDARDS LIKE INCOME VERIFICATION, AND SERVICING STANDARDS LIKE PAYMENT OF TAXES AND INSURANCE, WERE COMPLETELY ELIMINATED.

THEY DIDN’T CARE BECAUSE THEY HAD “PARSED” THE RISK OUT TO A MULTITUDE OF UNRELATED PEOPLE WHO WERE VERY UNLIKELY TO GET TOGETHER AND ALL SUE AT ONCE. AND WITHOUT ALL OF THEM, THERE WOULD, IN LEGAL PARLANCE, BE AN ABSNECE OF NECESSARY AND INDISPENSAABLE PARTIES, THUS CREATING A BARRIER TO ACCESS TO THE COURTS FOR EVEN WELL-FUNDED PLAINTIFFS, LET ALONE BORROWERS FOR HOME MORTGAGES THAT HAD BEEN TAPPED OUT AND MAXED OUT ON CREDIT.  

In the shadows of the real world of finance, away from the public eye are numerous securities exchanges, currency exchanges, and entities acting like banks and agents of banks that are completely unregulated, off the radar, and serve as the loci of virtually all the manipulation that screws consumers and insures dominance and power to a select few.  

Look up ICE for example and you will find that it is something more than cold water that cools your drinks. It is the place where oil prices are manipulated by as much as 50% — that’s right double — where currency and money supply is generated at the price of downgrading the money in our pockets, and where schemes are hatched that take on the illusion of legal, ethical business while they bend, break, change laws to provide immunity for past acts or legitimacy for future acts that ANYONE would know are wrong in that those acts are against the interests of our society. 

When was the last time you heard of a crowd of debt-ridden consumers cornering the finance market and playing with the economy at their leisure?

Or is it more likely that the couple in Maryland was duped by high pressure, slick sales tactics into purging their entire life savings of $400,000 (including $150,000 from the medical trust fund for the ill son) and getting a mortgage that they could not possibly afford, but which was explained to them in a way that made it seem plausible.

Or maybe it is more likely that a retired community college administrator who bought and paid for his house in San Diego in 1972, added improvements, maintained it immaculately, and was making out just fine in retirement, was fooled into multimillion dollar refi’s to purchase rental property $1500 miles away, which he lost and is now faced with loss of a home with equity enough to secure what would have been his retirement?

Maybe it is more likely that Wall Street found a new toy in complex finance instruments that even the creators didn’t totally understand, increased money liquidity by a factor of 1,000 and was awash in money that needed to be placed somewhere or else they would be charged with fraud for taking investments when they had nothing. So maybe these Wall Street people had too much “inventory” (money) and put maximum pressure and illegal incentives to people downline — “lenders”, appraisers, mortgage brokers, real estate brokers, and title agents to get deals closed no matter what they had to do or say. 

Sure there were some people who were gaming the system. Not on the scale that the Wall Street tycoons were gaming the system, but nonetheless some people were “playing.”

THE WALL STREET GENIUSES HAD CREATED THIS MONSTER AND THE ONE ENTITY THAT WAS SUPPOSED TO HAVE THE VANTAGE POINT OF SEEING THE BIG PICTURE AND THE NEED TO REIN IN SOME PRACTICES WHILE ENCOURAGING OTHERS WAS GOVERNMENT. INSTEAD CONGRESS PASSED THE REMIC STATUTE, REGULATORS TURNED A BLIND EYE AND GREENSPAN AT THE FEDERAL RESERVE GAVE HIS STAMP OF APPROVAL ON THE WORST GROUP OF FINANCIAL PRACTICES TO HIT THE MARKET IN OVER ONE HUNDRED YEARS. 

Look up amnesty in the search box and you’ll see we predicted all this and we proposed a solution. Nobody is interested because the bankers are covering their behinds, the Wall Street people are trying to stay out of jail, and the appraisers are hiding under rocks along withe rating agencies who were paid off to give inappropriate ratings to asset-backed securities.

We maintain here now as we did before that this crisis is far greater that the numbers released thus far. Derivative securities are approaching $600 trillion which is more than 10 times all the money in the world. Instead of arresting people and suing people and arguing political ideology, we should be fixing the problem. And that starts with using all the resources and channels we have including the people who started this mess. I favor amnesty for EVERYONE in the process conditioned on their cooperation on putting the market right-side up.

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Brokers threatened by run on shadow bank system

Regulators eye $10 trillion market that boomed outside traditional banking

By Alistair Barr, MarketWatch
Last update: 6:29 p.m. EDT June 19, 2008
SAN FRANCISCO (MarketWatch) — A network of lenders, brokers and opaque financing vehicles outside traditional banking that ballooned during the bull market now is under siege as regulators threaten a crackdown on the so-called shadow banking system.
Big brokerage firms like Goldman Sachs (GS Lehman Brothers (LEH ) Merrill Lynch (MER , which some say are the biggest players in this non-bank financial network, may have the most to lose from stricter regulation.
The shadow banking system grew rapidly during the past decade, accumulating more than $10 trillion in assets by early 2007. That made it roughly the same size as the traditional banking system, according to the Federal Reserve.
While this system became a huge and vital source of money to fuel the U.S. economy, the subprime mortgage crisis and ensuing credit crunch exposed a major flaw. Unlike regulated banks, which can borrow directly from the government and have federally insured customer deposits, the shadow system didn’t have reliable access to short-term borrowing during times of stress.
Unless radical changes are made to bring this shadow network under an updated regulatory umbrella, the current crisis may be just a gust compared to the storm that would follow a collapse of the global financial system, experts warn.
Such vulnerability helped transform what may have been an uncomfortable correction in credit markets into the worst global credit crunch in more than a decade as monetary policymakers and regulators struggled to contain the damage.
Unless radical changes are made to bring this shadow network under an updated regulatory umbrella, the current crisis may be just a gust compared to the storm that would follow a collapse of the global financial system, experts warn.
“The shadow banking system model as practiced in recent years has been discredited,” Ramin Toloui, executive vice president at bond investment giant Pimco, said.
Toloui expects greater regulation of big brokerage firms which may face stricter capital requirements and requirements to hold more liquid, or easily sellable, assets.
‘Clarion call’
“The bright new financial system — for all its talented participants, for all its rich rewards — has failed the test of the market place,” Paul Volcker, former chairman of the Federal Reserve, said during a speech in April. “It all adds up to a clarion call for an effective response.”
Two months later, Timothy Geithner, president of the Federal Reserve Bank of New York, and others have begun to answer that call.
“The structure of the financial system changed fundamentally during the boom, with dramatic growth in the share of assets outside the traditional banking system,” he warned in a speech last week. That “made the crisis more difficult to manage.”
On Thursday, Treasury Secretary and former Goldman Chief Executive Henry Paulson said the Fed should be given the authority to collect information from large complex financial institutions and intervene if necessary to stabilize future crises. Regulators should also have a clear way of taking over and closing a failed brokerage firm, he added. See full story.
Banking bedrock
The bedrock of traditional banking is borrowing money over the short term from customers who deposit savings in accounts and then lending it back out as mortgages and other higher-yielding loans over longer periods.
The owners of banks are required by regulators to invest some of their own money and reinvest some of the profit to keep an extra level of money in reserve in case the business suffers losses on some of its loans. That ensures that there’s still enough money to repay all depositors after such losses.
In recent decades, lots of new businesses and investment vehicles have evolved that do the same thing, but outside the purview of traditional banking regulation.
Instead of getting money from depositors, these financial intermediaries often borrow by selling commercial paper, which is a type of short-term loan that has to be re-financed over and over again. And rather than offering home loans, these entities buy mortgage-backed securities and other more complex securities.
A $10 trillion shadow
By early 2007, conduits, structured investment vehicles and similar entities that borrowed in the commercial paper market and bought longer-term asset-backed securities, held roughly $2.2 trillion in assets, according to the Fed’s Geithner.
Another $2.5 trillion in assets were financed overnight in the so-called repo market, Geithner said.
Geithner also highlighted big brokerage firms, saying that their combined balance sheets held $4 trillion in assets in early 2007.
Hedge funds held another $1.8 trillion, bringing the total value of asset in the “non-bank” financial system to $10.5 trillion, he added.
That dwarfed the total assets of the five largest banks in the U.S., which held just over $6 trillion at the time, Geithner noted. The traditional banking system as a whole held about $10 trillion, he said.
“These things act like banks, but they’re not.”
— James Hamilton,
Economics professor
While acting like banks, these shadow banking entities weren’t subject to the same supervision, so they didn’t hold as much capital to cushion against potential losses. When subprime mortgage losses started last year, their sources of short-term financing dried up.
“These things act like banks, but they’re not,” James Hamilton, professor of economics at the University of California, San Diego, said. “The fundamental inadequacy of their own capital caused these problems.”
Big brokers targeted
Geithner said the most fundamental reform that’s needed is to regulate big brokerage firms and global banks under a unified system with stronger supervision and “appropriate” requirements for capital and liquidity.
Financial institutions should be persuaded to keep strong capital cushions and more liquid assets during periods of calm in the market, he explained, noting that’s the best way to limit the damage during a crisis.
At a minimum, major investment banks and brokerage firms should adhere to similar rules on capital, liquidity and risk management as commercial banks, Sheila Bair, chairman of the Federal Deposit Insurance Corp., said on Wednesday.
“It makes sense to extend some form of greater prudential regulation to investment banks,” she said.
Separation dwindled
After the stock market crash of 1929, the U.S. Congress passed laws that separated commercial banks from investment banks.
The Fed, the Office of the Comptroller of the Currency and state regulators oversaw commercial banks, which took in customer deposits and lent that money out. The Securities and Exchange Commission regulated brokerage firms, which underwrote offerings of stocks and corporate bonds.
This separation dwindled during the 1980s and 1990s as commercial banks tried to push into investment banking — following their large corporate clients which were selling more bonds, rather than borrowing directly from banks.
By 1999, the Gramm-Leach-Bliley Act rolled back Depression-era restrictions, allowing banks, brokerage firms and insurers to merge into financial holding companies that would be regulated by the Fed.
Commercial banks like Citigroup Inc. (C, Bank of America (BACand J.P. Morgan Chase (JPMsigned up and developed large investment banking businesses.
However, big brokerage firms like Goldman, Morgan Stanley and Lehman didn’t become financial holding companies and stayed out of commercial banking partly to avoid increased regulation by the Fed.
Run on a shadow bank
The Fed’s bailout of Bear Stearns in March will probably change all that, experts said this week.
Bear, a leading underwriter of mortgage securities, almost collapsed after customers and counterparties deserted the firm.
It was like a run on a bank. But Bear wasn’t a bank. It financed a lot of its activity by borrowing short term in repo and commercial paper markets and couldn’t borrow from the Fed if things got really bad.
Bear’s low capital levels left it with highly leveraged exposures to risky mortgage-related securities, which triggered initial doubts among customers and trading partners.
The Fed quickly helped J.P. Morgan Chase, one of the largest commercial banks, acquire Bear. To prevent further damage to the financial system, the Fed also started lending directly to brokerage firms for the first time since the Depression.
“They stepped in because Bear was facing a traditional bank run — customers were pulling short-term assets and the firm couldn’t sell its long-term assets quickly enough,” Hamilton said. “Rules should apply here: You should have enough of your own capital available to pay back customers to avoid a run like that.”
Bear necessity
A more worrying question from the Bear Stearns debacle is why customers and investors were willing to lend money to the firm in the absence of an adequate capital cushion, Hamilton said.
“The creditors thought that Bear was too big to fail and that the government would step in to prevent creditors losing their money,” he explained. “They were right because that’s exactly what happened.”
“This is a system in which institutions like Bear Stearns are taking far too much risk and a lot of that risk is being borne by the government, not these firms or the market,” he added.
The Fed has lent between $8 billion and more than $30 billion each week directly to brokerage firms since it set up its new program in March. Most experts say this source of emergency funding is unlikely to disappear, even though it’s scheduled to end in September.
“It’s almost impossible to go back,” FDIC’s Bair said on Wednesday.
With taxpayer money permanently on the line to save big brokers, these firms should now be more strictly regulated to keep future bailouts to a minimum, Bair and others said.
“By definition, if they’re going to give the investment banks access to the window, I for one do believe they have the right for oversight,” Richard Fuld, chief executive of Lehman, told analysts during a conference call this week. “What that means, though, particularly as far as capital levels or asset requirements, it’s way too early to tell.”
Super Fed
Next year, Congress likely will pass legislation forcing big brokerage firms to be regulated fully by the Fed as financial holding companies, Brad Hintz, a securities analyst at Bernstein Research and former chief financial officer of Lehman, said.
Legislators will probably also call for tighter limits on the leverage and trading risk taken on by large brokers, while demanding more conservative funding and liquidity policies, he added.
Restrictions on these firms’ forays into venture capital, private equity, real estate, commodities and potentially hedge funds may also follow too, Hintz warned.
This may undermine the source of much of the surging profit generated by big brokerage firms in recent years.
A newly empowered “super Fed” will likely encourage these firms to arrange longer-term, more secure sources of borrowing and even promote the development of deposit bases, just like commercial and retail banks, the analyst explained.
This will make borrowing more expensive for brokerage firms, undermining the profitability of businesses that require a lot of capital, such as fixed income, institutional equities, commodities and prime brokerage, Hintz said.
Such regulatory changes will cut big brokers’ return on equity — a closely watched measure of profitability — to roughly 15.5% from 19%, Hintz estimated in a note to investors this week.
Lehman and Goldman will be most affected by this — seeing return on equity drop by about four percentage points over the business cycle — because they have larger trading books and greater exposure to revenue from sales and trading. Goldman also has a major merchant banking business that may also be constrained, Hintz added.
Morgan Stanley and Merrill Lynch (MER

will see declines of 3.2 percentage points and 2.2 percentage points in their return on equity, the analyst forecast.

If you can’t beat them…
Facing lower returns and more stringent bank-like regulation, some big brokerage firms may decide they’re better off as part of a large commercial bank, some experts said.
“If you’re being regulated like a bank and your leverage ratio looks something like a bank’s, can you really earn the returns you were making as a broker dealer? Probably not,” Margaret Cannella, global head of credit research at J.P. Morgan, said.
Regulatory changes will be unpopular with some brokerage CEOs and could result in a shakeup of the industry and more consolidation, she added.
Hintz said the business models of some brokerage firms may evolve into something similar to Bankers Trust and the old J.P. Morgan.
In the mid 1990s, Bankers Trust and J.P. Morgan relied more on deposits and less on the repo market to finance their assets. They also operated with leverage ratios of roughly 20 times capital. That’s lower than today’s brokerage firms, which were levered roughly 30 times during the peak of the credit bubble last year, according to Hintz.
However, both firms soon ended up in the arms of more regulated commercial banks. Bankers Trust was acquired by Deutsche Bank (DBin 1998. Chase Manhattan Bank bought J.P. Morgan in 2000. End of Story
Alistair Barr is a reporter for MarketWatch in San Francisco.
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