WASHINGTON (Reuters) - The year of the Ponzi scheme will be followed by heightened regulation and more aggressive prosecutions, experts say, as U.S. officials respond to past failures.
Bernard Madoff's massive $65-billion fraud grabbed most of the headlines in 2009, but other schemes that paid early investors with money from new victims came to light as the recession dried up new money and Madoff-inspired vigilance boosted awareness.
As 2010 approaches, regulators and prosecutors are scrambling to uncover and pursue more fraudsters, while lawmakers seek to close regulatory gaps through legislation and give enforcement officials more resources.
John Coffee, a law professor at Columbia University, said the Securities and Exchange Commission became a significantly tougher enforcement agency in 2009 and will probably issue lots more criminal referrals next year.
"The brief era of light-touch regulation... is gone, apparently," he said.
Big-time Ponzi cases brought by the SEC in 2009 included one against Texas financier Allen Stanford, who was accused of masterminding a $7-billion Ponzi scheme through his offshore bank on the Caribbean island of Antigua. He was also indicted on criminal charges and has pleaded not guilty.
Former SEC Chairman Harvey Pitt, who headed the agency from 2001 to 2003, said the scams underscored the failure of the regulatory system to provide the checks and balances needed to deter financial misconduct and to detect it early.
"I think this has been an incredibly difficult year," he told Reuters Television. "We've seen a lot of financial scandals, a great deal of misconduct, an economic meltdown and a concerted push now for meaningful regulatory reform."
Coffee said civil and criminal cases in the pipeline will result in monetary penalties in 2010 but probably will involve "people lower in the food chain."
While the SEC filed 664 civil complaints in the past fiscal year -- and has pledged to maintain an aggressive enforcement regime in 2010 -- few major criminal actions related to the financial meltdown were brought by the Justice Department -- and some it did bring fizzled out.
In November, a jury acquitted two former Bear Stearns hedge fund managers of fraud in the first major prosecution arising from the collapse of mortgage-backed securities.
And just a few weeks later, a U.S. judge tossed out criminal and civil charges against Broadcom Corp's co-founder Henry Nicholas III and former Chief Financial Officer William Ruehle in a stock options backdating case.
The failed prosecutions do not bode well for other high-level prosecutions or civil settlements, Coffee said.
"I'm fairly dubious we're going to see any CEOs. I don't think the evidence has been developed."
For William Black, a white-collar criminologist at the University of Missouri-Kansas City and a senior financial regulator during the savings and loan crisis two decades ago, the real scandal of 2009 was "the failure to even have an indictment, much less a conviction, of any of the major senior insiders at the nonprime lending specialists."
"And the second biggest scandal... would be the regulators that didn't bark," he said. "You can't get effective criminal prosecutions on any large scale against sophisticated frauds of this nature without very effective regulators."
In a bid to restore investor confidence, President Obama in May signed the Fraud Enforcement and Recovery Act, aimed at cracking down on the kinds of mortgage fraud and predatory lending that triggered the financial crisis.
Congress is expected to pass additional legislation early in 2010 to overhaul the financial regulatory system and give the SEC and other watchdog agencies more resources and authority to police shadowy corners of the financial markets.
To read the entire article click here
Monday, January 4, 2010
Monday, December 7, 2009
Three Strikes on Ben Bernanke: AIG, Goldman Sachs & BAC/TARP
On Saturday, joined by hundreds of friends, family and colleagues on a snowy December day in Yonkers, NY, we celebrated the life of Mark Pittman. Readers of The IRA who wish to express their thanks to Mark and show support for his family may make contributions to the Pittman Children’s College Fund, c/o Dr. William Karesh, 30B Pondview Road, Rye, NY 10580.
Bob Ivry from Bloomberg News gave a remembrance of Mark, including reading the letter that his daughter Maggie Pittman posted on zerohedge to dispel rumors that her dad might have been murdered. Some members of the zerohedge family thought that Mark was killed by the banksters for his diligent pursuit of the disclosure of the Fed’s many bailout loans to Wall Street firms.
Ivry also told a great story of how, when asked by a younger reporter why she should give Pittman her scoops instead of giving them to CNBC’s Charlie Gasparino, Mark replied: “I’m taller than Charlie and can see above the bullshit.” We miss Mark a lot.
Coming together with the friends of Mark Pittman ended a grim week. Many of us in the financial community were wading hip-deep through barnyard debris as we watched Federal Reserve Chairman Bernanke dodge and weave in front of the television cameras during his Senate confirmation hearing. We have to believe that Mark would have been pleased as Senators on both sides of the aisle asked questions that came directly from some of his reporting — and a few of our own suggestions.
To us, the confirmation hearings last week before the Senate Banking Committee only reaffirm in our minds that Benjamin Shalom Bernanke does not deserve a second term as Chairman of the Board of Governors of the Federal Reserve System. Including our comments on Bank of America (BAC) featured by Alan Abelson this week in Barron’s, we have three reasons for this view:
First is the law. The bailout of American International Group (AIG) was clearly a violation of the Federal Reserve Act, both in terms of the “loans” made to the insolvent insurer and the hideous process whereby the loans were approved, after the fact, by Chairman Bernanke and the Fed Board. The loans were not adequately collateralized. This is publicly evidenced by the fact that the Fed of New York (FRBNY) exchanged debt claims on AIG itself for equity stakes in two insolvent insurance underwriting units. What more need be said?
As we’ve noted in The IRA previously, we think the AIG insurance operations are more problematic than the infamous financial products unit where the credit default swaps pyramid scheme resided. And we doubt that any diligence was performed by Geither and/or the FRBNY staff on AIG prior to the decision taken by Tim Geithner to make the loan. We’ll be talking further about AIG in a future comment.
Of interest, members of the Senate Banking Committee who want more background on the AIG fiasco, particularly who did what and when, need to read the paper by Phillip Swagel, “The Financial Crisis: An Inside View,” Brookings Papers on Economic Activity, Spring 2009, The Brookings Institution.
We hear in the channel that Fed officials were furious when Swagel, who served at the US Treasury with former Secretary Hank Paulson, published his all-to-detailed apology. We understand that several prominent members of the trial bar also are interested in the Swagel document.
Last week the Senate Banking Committee spent a lot of time talking with Chairman Bernanke about why payouts were made to AIG counterparties like Goldman Sachs (GS) and Deutsche Bank (DB), but the real issue is why Tim Geithner and the GS-controlled board of directors of the FRBNY were permitted to make the supposed “loans” to AIG in the first place. The primary legal duty of the Fed Board is to supervise the activities of the Reserve Banks. In this case, Chairman Bernanke and the rest of the Board seemingly got rolled by Tim Geithner and GS, to the detriment of the Fed’s reputation, the financial interests of all taxpayers and due process of law.
Martin Mayer reminded us last week that the Fed is meant to be “independent” from the White House, not the Congress from which its legal authority comes by way of the Constitution. Nor does Fed independence mean that the officers of the Federal Reserve Banks or the Board are allowed to make laws. None of the officials of the Fed are officers of the United States. No Fed official has any power to make commitments on behalf of the Treasury, unless and except when directed by the Secretary. Given the losses to the Treasury due to the Fed’s own losses, this is an important point that members of the Senate need to investigate further.
The FRBNY not only used but abused the Fed’s power’s under Section 13(3) of the Federal Reserve Act. In AIG, the FRBNY under Tim Geithner invoked the “unusual and exigent” clause again and again, but there is a serious legal question whether the then-FRBNY President and the FRBNY’s board had the right to commit trillions without any due diligence process or deliberate, prior approval of the Fed Board in Washington, as required by law. The financial commitments to GS and other dealers regarding AIG were made always on a weekend with Geithner “negotiating” alone in New York, while Chairman Bernanke, Vice Chairman Donald Kohn and the rest of the BOG were sitting in DC without any real financial understanding of the substance of the transactions or the relationships between the people involved in the negotiations.
Was Tim Geithner technically qualified or legally empowered to “make deals’ without the prior consent of the Fed Board? We don’t think so. Shouldn’t there have been financial fairness opinions re: the transactions? Yes.
We understand that the first order of business in any Fed audit sought by members of the Senate opposed to Chairman Bernanke’s re-appointment is to review the internal Fed legal memoranda and FRBNY board minutes supporting the AIG bailout. These documents, if they exist at all, should be provided to the Senate before a vote on the Bernanke nomination. Indeed, if the panel established to review the AIG bailout and related events investigates the issue of how and when certain commitments were made by the FRBNY, we wouldn’t be surprised if they find that Geithner acted illegally and that Bernanke and the Fed Board were negligent in not stopping this looting of the national patrimony by Geithjner, acting as de facto agent for the largest dealer banks in New York and London.
The second strike against Chairman Bernanke is leadership. In an exchange with SBC Chairman Christopher Dodd (D-CT), Bernanke said that he could not force the counterparties of AIG to take a haircuts on their CDS positions because he had “no leverage.” Again, this goes back to the issue of why the loan to AIG was made at all.
Having made the first error,Bernanke and other Fed officials seek to use it as justification for further acts of idiocy. Chairman Dodd look incredulous and replied “you are the Chairman of the Federal Reserve,” to which Bernanke replied that he did not want to abuse his “supervisory powers.” Dodd replied “apparently not” in seeming disgust.
We have been privileged to know Fed chairmen going back to Arthur Burns. Regardless of their politics or views on economic policies, Fed Chairmen like Burns, Paul Volcker and even Alan Greenspan all knew that the Fed’s power is as much about moral suasion as explicit legal authority. After all, the Chairman of the Fed is essentially the Treasury’s investment banker. In the financial markets, there are times when Fed Chairmen have to exercise leadership and, yes, occasionally raise their voices and intimidate bank executives in the name of the greater public good. AIG was such as test and Chairman Bernanke failed, in our view.
Chairman Bernanke does not seem to understand that leadership is a basic part of the Fed Chairman’s job description and the wellspring from which independence comes. The handling of AIG by Chairman Bernanke and the Fed Board seems to us proof, again, that Washington needs to stop populating the Fed’s board with academic economists who have no real world leadership skills, nor operational or financial experience. Just as we need to end the de facto political control of the banksters over America’s central bank, we need also to end the institutional tyranny of the academic economists at the Federal Reserve Board...
To read the entire article click here.
Bob Ivry from Bloomberg News gave a remembrance of Mark, including reading the letter that his daughter Maggie Pittman posted on zerohedge to dispel rumors that her dad might have been murdered. Some members of the zerohedge family thought that Mark was killed by the banksters for his diligent pursuit of the disclosure of the Fed’s many bailout loans to Wall Street firms.
Ivry also told a great story of how, when asked by a younger reporter why she should give Pittman her scoops instead of giving them to CNBC’s Charlie Gasparino, Mark replied: “I’m taller than Charlie and can see above the bullshit.” We miss Mark a lot.
Coming together with the friends of Mark Pittman ended a grim week. Many of us in the financial community were wading hip-deep through barnyard debris as we watched Federal Reserve Chairman Bernanke dodge and weave in front of the television cameras during his Senate confirmation hearing. We have to believe that Mark would have been pleased as Senators on both sides of the aisle asked questions that came directly from some of his reporting — and a few of our own suggestions.
To us, the confirmation hearings last week before the Senate Banking Committee only reaffirm in our minds that Benjamin Shalom Bernanke does not deserve a second term as Chairman of the Board of Governors of the Federal Reserve System. Including our comments on Bank of America (BAC) featured by Alan Abelson this week in Barron’s, we have three reasons for this view:
First is the law. The bailout of American International Group (AIG) was clearly a violation of the Federal Reserve Act, both in terms of the “loans” made to the insolvent insurer and the hideous process whereby the loans were approved, after the fact, by Chairman Bernanke and the Fed Board. The loans were not adequately collateralized. This is publicly evidenced by the fact that the Fed of New York (FRBNY) exchanged debt claims on AIG itself for equity stakes in two insolvent insurance underwriting units. What more need be said?
As we’ve noted in The IRA previously, we think the AIG insurance operations are more problematic than the infamous financial products unit where the credit default swaps pyramid scheme resided. And we doubt that any diligence was performed by Geither and/or the FRBNY staff on AIG prior to the decision taken by Tim Geithner to make the loan. We’ll be talking further about AIG in a future comment.
Of interest, members of the Senate Banking Committee who want more background on the AIG fiasco, particularly who did what and when, need to read the paper by Phillip Swagel, “The Financial Crisis: An Inside View,” Brookings Papers on Economic Activity, Spring 2009, The Brookings Institution.
We hear in the channel that Fed officials were furious when Swagel, who served at the US Treasury with former Secretary Hank Paulson, published his all-to-detailed apology. We understand that several prominent members of the trial bar also are interested in the Swagel document.
Last week the Senate Banking Committee spent a lot of time talking with Chairman Bernanke about why payouts were made to AIG counterparties like Goldman Sachs (GS) and Deutsche Bank (DB), but the real issue is why Tim Geithner and the GS-controlled board of directors of the FRBNY were permitted to make the supposed “loans” to AIG in the first place. The primary legal duty of the Fed Board is to supervise the activities of the Reserve Banks. In this case, Chairman Bernanke and the rest of the Board seemingly got rolled by Tim Geithner and GS, to the detriment of the Fed’s reputation, the financial interests of all taxpayers and due process of law.
Martin Mayer reminded us last week that the Fed is meant to be “independent” from the White House, not the Congress from which its legal authority comes by way of the Constitution. Nor does Fed independence mean that the officers of the Federal Reserve Banks or the Board are allowed to make laws. None of the officials of the Fed are officers of the United States. No Fed official has any power to make commitments on behalf of the Treasury, unless and except when directed by the Secretary. Given the losses to the Treasury due to the Fed’s own losses, this is an important point that members of the Senate need to investigate further.
The FRBNY not only used but abused the Fed’s power’s under Section 13(3) of the Federal Reserve Act. In AIG, the FRBNY under Tim Geithner invoked the “unusual and exigent” clause again and again, but there is a serious legal question whether the then-FRBNY President and the FRBNY’s board had the right to commit trillions without any due diligence process or deliberate, prior approval of the Fed Board in Washington, as required by law. The financial commitments to GS and other dealers regarding AIG were made always on a weekend with Geithner “negotiating” alone in New York, while Chairman Bernanke, Vice Chairman Donald Kohn and the rest of the BOG were sitting in DC without any real financial understanding of the substance of the transactions or the relationships between the people involved in the negotiations.
Was Tim Geithner technically qualified or legally empowered to “make deals’ without the prior consent of the Fed Board? We don’t think so. Shouldn’t there have been financial fairness opinions re: the transactions? Yes.
We understand that the first order of business in any Fed audit sought by members of the Senate opposed to Chairman Bernanke’s re-appointment is to review the internal Fed legal memoranda and FRBNY board minutes supporting the AIG bailout. These documents, if they exist at all, should be provided to the Senate before a vote on the Bernanke nomination. Indeed, if the panel established to review the AIG bailout and related events investigates the issue of how and when certain commitments were made by the FRBNY, we wouldn’t be surprised if they find that Geithner acted illegally and that Bernanke and the Fed Board were negligent in not stopping this looting of the national patrimony by Geithjner, acting as de facto agent for the largest dealer banks in New York and London.
The second strike against Chairman Bernanke is leadership. In an exchange with SBC Chairman Christopher Dodd (D-CT), Bernanke said that he could not force the counterparties of AIG to take a haircuts on their CDS positions because he had “no leverage.” Again, this goes back to the issue of why the loan to AIG was made at all.
Having made the first error,Bernanke and other Fed officials seek to use it as justification for further acts of idiocy. Chairman Dodd look incredulous and replied “you are the Chairman of the Federal Reserve,” to which Bernanke replied that he did not want to abuse his “supervisory powers.” Dodd replied “apparently not” in seeming disgust.
We have been privileged to know Fed chairmen going back to Arthur Burns. Regardless of their politics or views on economic policies, Fed Chairmen like Burns, Paul Volcker and even Alan Greenspan all knew that the Fed’s power is as much about moral suasion as explicit legal authority. After all, the Chairman of the Fed is essentially the Treasury’s investment banker. In the financial markets, there are times when Fed Chairmen have to exercise leadership and, yes, occasionally raise their voices and intimidate bank executives in the name of the greater public good. AIG was such as test and Chairman Bernanke failed, in our view.
Chairman Bernanke does not seem to understand that leadership is a basic part of the Fed Chairman’s job description and the wellspring from which independence comes. The handling of AIG by Chairman Bernanke and the Fed Board seems to us proof, again, that Washington needs to stop populating the Fed’s board with academic economists who have no real world leadership skills, nor operational or financial experience. Just as we need to end the de facto political control of the banksters over America’s central bank, we need also to end the institutional tyranny of the academic economists at the Federal Reserve Board...
To read the entire article click here.
Friday, December 4, 2009
Junk mortgages: It just gets worse
In 2007 we dissected one toxic issue. The horror story continues, but can we still learn from our mistakes?
NEW YORK (Fortune) -- Back two years ago when the mortgage meltdown was heating up, we wrote an article called "Junk Mortgages Under the Microscope" dissecting a particularly wretched mortgage-backed securities issue peddled by Goldman Sachs.
We wanted to show how these complex securities really worked and how Moody's and S&P, the rating agencies, aided and abetted the process by giving two-thirds of an issue backed by ultra-risky second mortgages the same safety rating they gave to U.S. Treasury securities.
We thought this was a cautionary tale -- but it's turned into a horror story. All the tranches of this issue, GSAMP-2006 S3, that were originally rated below AAA have defaulted. Two of the three original AAA -rated tranches (French for "slices") are facing losses of about 90%, and even the "super senior," safer-than-mere-AAA slice is facing losses of 25%. How could this happen? And what lessons can we take away from it?
Let's revisit the way this security was put together, and how and why it fell apart. And for the first time, we can even estimate the value -- low -- of the mortgages backing it, thanks to a new service called ABSNet Loan HomeVal.
Our tale begins in April 2006, when Goldman Sachs (GS, Fortune 500) sold $494 million of securities to institutional investors seeking yields somewhat above those that were available on U.S. Treasuries or high-rated corporate bonds.
It was an especially hinky offering, because it was backed by second mortgages rather than by traditional first mortgages. A first mortgage rarely becomes completely worthless, because a house is usually worth something.
But often all it takes is a decline of 20% in a home's value to wipe out a second mortgage, which is typically piled on top of an 80% first mortgage. In our case, borrowers' stated equity in their homes averaged less than 1% -- 0.71%, to be precise. Even that was doubtless overstated because a majority of the mortgages were low-documentation and no-documentation.
Despite these problems, the formulas used by Moody's and S&P allowed Goldman to market the top three slices of the security -- cleverly called A-1, A-2 and A- 3 -- as AAA rated. That meant they were supposedly as safe as U.S. Treasury securities.
But of course they weren't. More than a third of the loans were on homes in California, then a superhot market, now a frigid one. Defaults and rating downgrades began almost immediately. In July 2008, the last piece of the issue originally rated below AAA defaulted -- it stopped making interest payments. Now every month's report by the issue's trustee, Deutsche Bank, shows that the old AAAs -- now rated D by S&P and Ca by Moody's -- continue to rot out.
As of Oct. 26, date of the most recent available trustee's report, only $79.6 million of mortgages were left, supporting $159.9 million of bonds. In other words, each dollar of bonds had a claim on less than 50¢ of mortgages.
But even worse, those mortgages aren't worth anything like their $79.6 million of face value, according to ABSNet Loan HomeVal. ABSNet, unveiled in October, combines a database from Lewtan Technologies of Waltham, Mass., that has a list of every mortgage underlying every mortgage-backed issue, with data from Collateral Analytics of Honolulu, which tracks individual home values. It gives you a snapshot of the value of the collateral backing a mortgage security.
As of Sept. 26 -- a slightly different date from what we're using above -- ABSNet valued the remaining mortgages in our issue at a tad above 20% their face value. Now, watch this math. If the mortgages are worth 20% of their face value and each dollar of mortgages supports more than $2 of bonds, it means that the remaining bonds are worth maybe 10% of face value.
If all the originally AAA -rated bonds were the same, they'd all be facing losses of 90% or so in value. However, they weren't the same. The A-1 "super senior" tranche was entitled to get all the principal payments from all the borrowers until it was paid off in full. Then A-2 and A-3 would share the repayments, then repayments would move down to the lower-rated issues.
But under the security's rules, once the M-1 tranche -- the highest-rated piece of the issue other than the A tranches -- defaulted in July 2008, all the A's began sharing in the repayments. The result is that only about 28% of the original A-1 "super seniors" are outstanding, compared with more than 98% of A-2 and A-3. If you apply a 90% haircut, the losses work out to about 25% for the "super seniors," and about 90% for A-2 and A-3.
This was an especially bad issue, which we picked (on advice of some bond mavens who aren't competitors of Goldman Sachs) precisely because it was so awful. According to Bloomberg LP, recent trades in the A's were at less than 7% of face value. So the market is saying the losses are even greater than our estimates.
Goldman and Moody's declined to discuss this security. S&P told us that it had toughened its standards in 2005 and had discontinued rating second-mortgage securities in 2008. "Had we anticipated fully the severity of the declines in these markets at the time we issued our original ratings, many of those ratings would have been different," a spokesman said.
Now to the investment lessons: The first is, Don't put your faith in rating agencies, even though some branches of the federal government, including the Federal Reserve, use ratings to determine whether certain securities qualify as collateral under federal loan programs to financial institutions.
To read the entire article click here
NEW YORK (Fortune) -- Back two years ago when the mortgage meltdown was heating up, we wrote an article called "Junk Mortgages Under the Microscope" dissecting a particularly wretched mortgage-backed securities issue peddled by Goldman Sachs.
We wanted to show how these complex securities really worked and how Moody's and S&P, the rating agencies, aided and abetted the process by giving two-thirds of an issue backed by ultra-risky second mortgages the same safety rating they gave to U.S. Treasury securities.
We thought this was a cautionary tale -- but it's turned into a horror story. All the tranches of this issue, GSAMP-2006 S3, that were originally rated below AAA have defaulted. Two of the three original AAA -rated tranches (French for "slices") are facing losses of about 90%, and even the "super senior," safer-than-mere-AAA slice is facing losses of 25%. How could this happen? And what lessons can we take away from it?
Let's revisit the way this security was put together, and how and why it fell apart. And for the first time, we can even estimate the value -- low -- of the mortgages backing it, thanks to a new service called ABSNet Loan HomeVal.
Our tale begins in April 2006, when Goldman Sachs (GS, Fortune 500) sold $494 million of securities to institutional investors seeking yields somewhat above those that were available on U.S. Treasuries or high-rated corporate bonds.
It was an especially hinky offering, because it was backed by second mortgages rather than by traditional first mortgages. A first mortgage rarely becomes completely worthless, because a house is usually worth something.
But often all it takes is a decline of 20% in a home's value to wipe out a second mortgage, which is typically piled on top of an 80% first mortgage. In our case, borrowers' stated equity in their homes averaged less than 1% -- 0.71%, to be precise. Even that was doubtless overstated because a majority of the mortgages were low-documentation and no-documentation.
Despite these problems, the formulas used by Moody's and S&P allowed Goldman to market the top three slices of the security -- cleverly called A-1, A-2 and A- 3 -- as AAA rated. That meant they were supposedly as safe as U.S. Treasury securities.
But of course they weren't. More than a third of the loans were on homes in California, then a superhot market, now a frigid one. Defaults and rating downgrades began almost immediately. In July 2008, the last piece of the issue originally rated below AAA defaulted -- it stopped making interest payments. Now every month's report by the issue's trustee, Deutsche Bank, shows that the old AAAs -- now rated D by S&P and Ca by Moody's -- continue to rot out.
As of Oct. 26, date of the most recent available trustee's report, only $79.6 million of mortgages were left, supporting $159.9 million of bonds. In other words, each dollar of bonds had a claim on less than 50¢ of mortgages.
But even worse, those mortgages aren't worth anything like their $79.6 million of face value, according to ABSNet Loan HomeVal. ABSNet, unveiled in October, combines a database from Lewtan Technologies of Waltham, Mass., that has a list of every mortgage underlying every mortgage-backed issue, with data from Collateral Analytics of Honolulu, which tracks individual home values. It gives you a snapshot of the value of the collateral backing a mortgage security.
As of Sept. 26 -- a slightly different date from what we're using above -- ABSNet valued the remaining mortgages in our issue at a tad above 20% their face value. Now, watch this math. If the mortgages are worth 20% of their face value and each dollar of mortgages supports more than $2 of bonds, it means that the remaining bonds are worth maybe 10% of face value.
If all the originally AAA -rated bonds were the same, they'd all be facing losses of 90% or so in value. However, they weren't the same. The A-1 "super senior" tranche was entitled to get all the principal payments from all the borrowers until it was paid off in full. Then A-2 and A-3 would share the repayments, then repayments would move down to the lower-rated issues.
But under the security's rules, once the M-1 tranche -- the highest-rated piece of the issue other than the A tranches -- defaulted in July 2008, all the A's began sharing in the repayments. The result is that only about 28% of the original A-1 "super seniors" are outstanding, compared with more than 98% of A-2 and A-3. If you apply a 90% haircut, the losses work out to about 25% for the "super seniors," and about 90% for A-2 and A-3.
This was an especially bad issue, which we picked (on advice of some bond mavens who aren't competitors of Goldman Sachs) precisely because it was so awful. According to Bloomberg LP, recent trades in the A's were at less than 7% of face value. So the market is saying the losses are even greater than our estimates.
Goldman and Moody's declined to discuss this security. S&P told us that it had toughened its standards in 2005 and had discontinued rating second-mortgage securities in 2008. "Had we anticipated fully the severity of the declines in these markets at the time we issued our original ratings, many of those ratings would have been different," a spokesman said.
Now to the investment lessons: The first is, Don't put your faith in rating agencies, even though some branches of the federal government, including the Federal Reserve, use ratings to determine whether certain securities qualify as collateral under federal loan programs to financial institutions.
To read the entire article click here
Thursday, December 3, 2009
Not much help for desperate short sellers in new rules
Homeowners struggling to stave off foreclosure too often encounter stonewalling from banks and other lenders when trying to do short sales.
It ranks as one of the most tragic elements of the current foreclosure crisis.
I’ve heard my share of stories on this blog from homeowners who complain they have been strung along for months or longer, unable to get an answer back from their bank in time to close a proposed short sale.
Even more maddening, the banks are likely to take a bigger hit in the end foreclosing on the home or condo and then letting it fall into disrepair as it sits empty on the market.
Enter the Obama Administration, which has issued new rules it contends will help speed along short sales and help prevent needless foreclosures.
There are clearly some helpful elements in the Treasury Department’s proposal. Overall, it attempts to bring some order to what too often appears to be a nebulous process, establishing timetables and formal documents.
But there are some troubling aspects as well that leave me wondering whether this is a real effort to help or just an industry approved public relations gimmick. (For a different take on the new rules, check out this afternoon's post by real estate attorney Richard D. Vetstein.)
Frankly, I’m skeptical
For starters, there appears to be a reliance on trying to use little bribes to get mortgage companies to comply, rather than the big stick of regulation.
Mortgage companies can get $1,000 for administrative costs, which seems strikingly similar to the Obama Administration’s efforts to use modest cash incentives to prod lenders to head off foreclosures by modifying loans.
Of course, that $75 billion initiative has been a dismal failure. Just check the foreclosure rates – they are soaring.
The new program is also voluntary for lenders who hold a second mortgage on a home - half of all homeowners in default fall into this category.
These lenders can stand to make up to $3,000 for agreeing to bow out – not much incentive for the holder of a $100,000 to $200,000 loan.
Of course, there's a small carrot for homeowners here as well - they get $1,500 to pay for moving expenses.
Thanks Uncle Sam.
But the icing on the cake? The new rules won’t kick in until April 5th.
I am sure that’s just what the banking and mortgage industry lobbyists ordered up.
No need to rush things here, let’s just take our sweet old time.
But that’s not much help for homeowners on the edge of losing it all.
To read the original article click here
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It ranks as one of the most tragic elements of the current foreclosure crisis.
I’ve heard my share of stories on this blog from homeowners who complain they have been strung along for months or longer, unable to get an answer back from their bank in time to close a proposed short sale.
Even more maddening, the banks are likely to take a bigger hit in the end foreclosing on the home or condo and then letting it fall into disrepair as it sits empty on the market.
Enter the Obama Administration, which has issued new rules it contends will help speed along short sales and help prevent needless foreclosures.
There are clearly some helpful elements in the Treasury Department’s proposal. Overall, it attempts to bring some order to what too often appears to be a nebulous process, establishing timetables and formal documents.
But there are some troubling aspects as well that leave me wondering whether this is a real effort to help or just an industry approved public relations gimmick. (For a different take on the new rules, check out this afternoon's post by real estate attorney Richard D. Vetstein.)
Frankly, I’m skeptical
For starters, there appears to be a reliance on trying to use little bribes to get mortgage companies to comply, rather than the big stick of regulation.
Mortgage companies can get $1,000 for administrative costs, which seems strikingly similar to the Obama Administration’s efforts to use modest cash incentives to prod lenders to head off foreclosures by modifying loans.
Of course, that $75 billion initiative has been a dismal failure. Just check the foreclosure rates – they are soaring.
The new program is also voluntary for lenders who hold a second mortgage on a home - half of all homeowners in default fall into this category.
These lenders can stand to make up to $3,000 for agreeing to bow out – not much incentive for the holder of a $100,000 to $200,000 loan.
Of course, there's a small carrot for homeowners here as well - they get $1,500 to pay for moving expenses.
Thanks Uncle Sam.
But the icing on the cake? The new rules won’t kick in until April 5th.
I am sure that’s just what the banking and mortgage industry lobbyists ordered up.
No need to rush things here, let’s just take our sweet old time.
But that’s not much help for homeowners on the edge of losing it all.
To read the original article click here
Other articles of interest...
Injunction Ordering Web Site To Remove Improperly Leaked Document
This raises pretty serious First Amendment questions, as well as other questions.
Democrats Threaten to Bypass Republican Changes on Health Bill
Senate Democrats threatened to bypass Republican amendments to hasten debate over U.S. health-care legislation as delays jeopardized the goal of passage this year.
World markets buoyed by Bank of America move
World markets buoyed by Bank of America move ahead of European Central Bank policy decision
FHA wants more "skin in the game' on mortgages
The Federal Housing Administration is about to beef up the borrowing requirements for home buyers, a move that could dampen the fragile housing market's recovery.
Wednesday, December 2, 2009
Anatomy of a Government-Abetted Fraud: Why Indymac/OneWest Always Forecloses
Several times per week, I get phone calls from attorneys. These calls all start out the same. “I am unable to get loan modifications done through a lender. What can I do?” The first question I ask is if the lender is Indymac/One West. Invariably, it is.
I also field the same type of calls from homeowners and from loan modification companies. Everyone is having the problem of Indymac not cooperating with regard to doing loan modifications. Furthermore, if I google the issue or check out loan modification forums, the same is true on the internet.
What is going on with Indymac/One West? Why aren’t they doing loan modifications? This article will try and bring together the known facts for a better understanding of the situation, and discuss what the Indymac situation means for foreclosures in general — and the government’s response to the crisis. First, to understand the situation today, one must have an understanding of the recent history of Indymac.
History
Indymac was a national bank in the U.S. It was insured by the FDIC. On July 11, 2008, Indymac failed and was taken over by the FDIC.
Indymac offered mortgage loans to homeowners. A large number of these loans were Option ARM mortgages using stated income programs. The loans were offered by Indymac retail, and also through Mortgage Bankers would fund the loans and then Indymac would buy them and reimburse the Mortgage Banker. Mortgage Brokers were also invited to the party to sell these loans.
During the height of the Housing Boom, Indymac gave these loans out like a homeowner gives out candy at Halloween. The loans were sold to homeowners by brokers who desired the large rebates that Indymac offered for the loans. The rebates were usually about three points. What is not commonly known is that when the Option ARM was sold to Wall Street, the lender would realize from four to six points, and the three point rebate to the broker was paid from these proceeds. So the lender “pocketed” three points themselves for each loan.
When the loans were sold to Wall Street, they were securitized through a Pooling and Servicing Agreement. This Agreement covered what could happen with the loans, and detailed how all parts of the loan process occurred.
Even though Indymac sold off most loans, they still held a large number of Option ARMs and other loans in their portfolio. As the Housing Crisis developed and deepened, the number of these loans going into default or being foreclosed upon increased dramatically. This reduced cash and reserves available to Indymac for operations.
In July, 2008, the FDIC came in and took over Indymac. The FDIC looked for someone to buy Indymac and after negotiations, sold Indymac to One West Bank.
OneWest Bank and its Sweetheart Deal
OneWest Bank was created on Mar 19, 2009 from the assets of Indymac Bank. It was created solely for the purpose of absorbing Indymac Bank. The principle owners of OneWest Bank include Michael Dell and George Soros. (George was a major supporter of Barack Obama and is also notorious for knocking the UK out of the Euro Exchange Rate Mechanism in 1992 by shorting the Pound).
When OneWest took over Indymac, the FDIC and OneWest executed a “Shared-Loss Agreement” covering the sale. This Agreement covered the terms of what the FDIC would reimburse OneWest for any losses from foreclosure on a property. It is at this point that the details get very confusing, so I shall try to simplify the terms. Some of the major details are:
OneWest would purchase all first mortgages at 70% of the current balance
OneWest would purchase Line of Equity Loans at 58% of the current balance.
In the event of foreclosure, the FDIC would cover from 80%-95% of losses, using the original loan amount, and not the current balance.
How does this translate to the “Real World”? Let us take a hypothetical situation. A homeowner has just lost his home in default. OneWest sells the property. Here are the details of the transaction:
The original loan amount was $500,000. Missed payments and other foreclosure costs bring the amount up to $550,000. At 70%, OneWest bought the loan for $385,000
The home is located in Stockton, CA, so its current value is likely about $185,000 and OneWest sells the home for that amount. Total loss for OneWest is $200,000. But this is not how FDIC determines the loss.
‘FDIC takes the $500,000 and subtracts the $185,000 Purchase Price. Total loss according to the FDIC is $315,000. If the FDIC is covering “ONLY” 80% of the loss, then the FDIC would reimburse OneWest to the tune of $252,000.
Add the $252,000 to the Purchase Price of $185,000, and you have One West recovering $437,000 for an “investment” of $385,000. Therefore, OneWest makes $52,000 in additional income above the actual Purchase Price loan amount after the FDIC reimbursement.
At this point, it becomes readily apparent why OneWest Bank has no intention of conducting loan modifications. Any modification means that OneWest would lose out on all this additional profit.
Note: It is not readily apparent as to whether this agreement applies to loans that IndyMac made and Securitized but still Services today. However, I believe that the Agreement does apply to Securitized loans. In that event, OneWest would make even more money through foreclosure because OneWest would keep the “excess” and not pay it to the investor!
Pooling And Servicing Agreement
When OneWest has been asked about why loan modifications are not being done, they are responding that their Pooling and Servicing Agreements do not allow for loan modifications. Sheila Bair, head of the FDIC has also stated the same. This sounds like a plausible explanation, since few people understand the Pooling and Servicing Agreement. But…
Parties Involved
Here is the”dirty little secret” regarding Indymac and the Pooling and Servicing Agreement. The parties involved in the Agreement are:
The Sponsor for the Trust was…………Indymac
The Seller for the Trust was……………Indymac
The Depositor for the Trust was………..you guessed it………….Indymac
The Issuing Entity for the Trust was……………….(drumroll)……………….Indymac
The Master Servicer for the Trust was……..once again………Indymac
In other words, Indymac was the only party involved in the Pooling and Servicing Agreement other than the Ratings Agency who rated these loans as `AAA’ products.
To make matters worse, Indymac wrote the Agreement in order to protect itself from liability for these garbage loans. By creating separate Indymac Corporations — which the Depositor, Sponsor, and other entities were — Indymac created a bankruptcy-remote vehicle that could not come back to them in terms of liability. However, they did not count on certain MBS securities and portfolio loans coming back to bite them and force them under.
Now, the questions become:
If Indymac was responsible for Securitization at every step in the Process, and was responsible for writing the Pooling and Servicing Agreement, can they be held accountable for the loans that they are foreclosing on?
Since Indymac was the Issuing Entity, can they actually modify loans, but refuse to do so because they can make money for OneWest Bank by refusing to do so?
Does Indymac have to “buy back” the loan from the Indymac Trust in order to do a loan modification?
These are questions that I have no answer for. All I know is that at every step of the way, Indymac was involved in the process, and have taken steps to protect themselves from liability for loans that should never have been made.
Loan Modifications
As referred to earlier, the Agreement covers all aspects of the Securitization Process. With respect to Loan Modifications, the Agreement for Indymac INDA Mortgage Loan Trust 2007 – AR5, states on Page S-67:
Certain Modifications and Refinancings
The Servicer may modify any Mortgage Loan at the request of the related mortgagor, provided that the Servicer purchases the Mortgage Loan from the issuing entity immediately preceding the modification.
Page S-12 states the same “policy”:
The servicer is permitted to modify any mortgage loan in lieu of refinancing at the request of the related mortgagor, provided that the servicer purchases the mortgage loan from the issuing entity immediately preceding the modification. In addition, under limited circumstances, the servicer will repurchase certain mortgage loans that experience an early payment default (default in the first three months following origination). See “Servicing of the Mortgage Loans—Certain Modifications and Refinancings” and “Risk Factors—Risks Related To Newly Originated Mortgage Loans and Servicer’s Repurchase Obligation Related to Early Payment Default” in this prospectus supplement.
These sections would appear to suggest that the only way that OneWest could modify the loan would be as a result of buying the loan back from the Issuing Trust. However, there may be an out. Page S-12 also states:
Required Repurchases, Substitutions or Purchases of Mortgage Loans
The seller will make certain representations and warranties relating to the mortgage loans pursuant to the pooling and servicing agreement. If with respect to any mortgage loan any of the representations and warranties are breached in any material respect as of the date made, or an uncured material document defect exists, the seller will be obligated to repurchase or substitute for the mortgage loan as further described in this prospectus supplement under “Description of the Certificates—Representations and Warranties Relating to Mortgage Loans” and “—Delivery of Mortgage Loan Documents .”
The above section may be the key for litigating attorneys to fight Indymac. If fraud or other issues can be raised that will show a violation of the Representations and Warranties, then this could potentially force Indymac to modify the loan.
HAMP
At this point, it becomes important to note that Indymac/OneWest signed aboard with the HAMP program in August 2009. Even though they became a part of the program, they are still refusing to do most loan modifications. Instead, they persist in foreclosing on almost all properties. And even when they say that they are attempting to do loan modifications, they are fulfilling all necessary requirements so that they can foreclose the second that they “decide” the homeowner does not meet HAMP requirements, — which, since they can make more money by foreclosing on the property, meets the HAMP requirements for doing what is in the best interests of the “investor”.
Why did Indymac even sign up for HAMP, if they have no intention of executing loan modifications? Clearly, just for appearances.
One Final Question
It now becomes incumbent upon me to ask one final question. The Shared-Loss Agreement states the following:
2.1 Shared-Loss Arrangement.
(a) Loss Mitigation and Consideration of Alternatives. For each Shared-Loss Loan in default or for which a default is reasonably foreseeable, the Purchaser shall undertake, or shall use reasonable best efforts to cause third-party servicers to undertake, reasonable and customary loss mitigation efforts in compliance with the Guidelines and Customary Servicing Procedures. The Purchaser shall document its consideration of foreclosure, loan restructuring (if available), charge-off and short-sale (if a short-sale is a viable option and is proposed to the Purchaser) alternatives and shall select the alternative that is reasonably estimated by the Purchaser to result in the least Loss. The Purchaser shall retain all analyses of the considered alternatives and servicing records and allow the Receiver to inspect them upon reasonable notice.
Such agreements are usually considered to be interpreted to the benefit of the homeowner, as with HAMP and other programs. In legalese, it is called “Intent”.
What was the “Intent” of the Shared-Loss Agreement? Was the intent to provide OneWest Bank solely with a profitable incentive to take over Indymac Bank? If so, then OneWest has been truly successful in every manner.
Or was the intent to offer to OneWest Bank a way to be compensated for losses for foreclosures, but with the primary goal to assist homeowners in trouble? If this was the intent, then OneWest has failed miserably in its actions. And if so, could OneWest be actionable by the Federal Government for fraud?
In fact the true “Intent” was to limit losses to the Treasury Department. Each and every loan modification done would save the Treasury, and the tax payer, from 80-95 cents on every dollar.
Since, technically, One West would get 5-20 cents of any savings, it should have been an incentive to use foreclosure alternatives. But the reality is that the quick turnaround on foreclosure seems to give OneWest a better return. As a result, OneWest appears to simply ignore the intent and just foreclose (as far as I can tell).
So, OneWest’s failure to modify loans may actually amount to fraud on the Treasury and US taxpayers.
Conclusion
I have presented the story of Indymac/OneWest and what is happening today. But the story does not end with OneWest. There are over 50 different lenders and servicers who have Shared-Loss Agreements executed with the FDIC. Each Agreement offers essentially the same terms. Though other Lenders do not appear to be acting as flagrantly as OneWest, they are all still engaging in the same actions.
What is the solution for this problem? ...
To read the entire article click here
I also field the same type of calls from homeowners and from loan modification companies. Everyone is having the problem of Indymac not cooperating with regard to doing loan modifications. Furthermore, if I google the issue or check out loan modification forums, the same is true on the internet.
What is going on with Indymac/One West? Why aren’t they doing loan modifications? This article will try and bring together the known facts for a better understanding of the situation, and discuss what the Indymac situation means for foreclosures in general — and the government’s response to the crisis. First, to understand the situation today, one must have an understanding of the recent history of Indymac.
History
Indymac was a national bank in the U.S. It was insured by the FDIC. On July 11, 2008, Indymac failed and was taken over by the FDIC.
Indymac offered mortgage loans to homeowners. A large number of these loans were Option ARM mortgages using stated income programs. The loans were offered by Indymac retail, and also through Mortgage Bankers would fund the loans and then Indymac would buy them and reimburse the Mortgage Banker. Mortgage Brokers were also invited to the party to sell these loans.
During the height of the Housing Boom, Indymac gave these loans out like a homeowner gives out candy at Halloween. The loans were sold to homeowners by brokers who desired the large rebates that Indymac offered for the loans. The rebates were usually about three points. What is not commonly known is that when the Option ARM was sold to Wall Street, the lender would realize from four to six points, and the three point rebate to the broker was paid from these proceeds. So the lender “pocketed” three points themselves for each loan.
When the loans were sold to Wall Street, they were securitized through a Pooling and Servicing Agreement. This Agreement covered what could happen with the loans, and detailed how all parts of the loan process occurred.
Even though Indymac sold off most loans, they still held a large number of Option ARMs and other loans in their portfolio. As the Housing Crisis developed and deepened, the number of these loans going into default or being foreclosed upon increased dramatically. This reduced cash and reserves available to Indymac for operations.
In July, 2008, the FDIC came in and took over Indymac. The FDIC looked for someone to buy Indymac and after negotiations, sold Indymac to One West Bank.
OneWest Bank and its Sweetheart Deal
OneWest Bank was created on Mar 19, 2009 from the assets of Indymac Bank. It was created solely for the purpose of absorbing Indymac Bank. The principle owners of OneWest Bank include Michael Dell and George Soros. (George was a major supporter of Barack Obama and is also notorious for knocking the UK out of the Euro Exchange Rate Mechanism in 1992 by shorting the Pound).
When OneWest took over Indymac, the FDIC and OneWest executed a “Shared-Loss Agreement” covering the sale. This Agreement covered the terms of what the FDIC would reimburse OneWest for any losses from foreclosure on a property. It is at this point that the details get very confusing, so I shall try to simplify the terms. Some of the major details are:
OneWest would purchase all first mortgages at 70% of the current balance
OneWest would purchase Line of Equity Loans at 58% of the current balance.
In the event of foreclosure, the FDIC would cover from 80%-95% of losses, using the original loan amount, and not the current balance.
How does this translate to the “Real World”? Let us take a hypothetical situation. A homeowner has just lost his home in default. OneWest sells the property. Here are the details of the transaction:
The original loan amount was $500,000. Missed payments and other foreclosure costs bring the amount up to $550,000. At 70%, OneWest bought the loan for $385,000
The home is located in Stockton, CA, so its current value is likely about $185,000 and OneWest sells the home for that amount. Total loss for OneWest is $200,000. But this is not how FDIC determines the loss.
‘FDIC takes the $500,000 and subtracts the $185,000 Purchase Price. Total loss according to the FDIC is $315,000. If the FDIC is covering “ONLY” 80% of the loss, then the FDIC would reimburse OneWest to the tune of $252,000.
Add the $252,000 to the Purchase Price of $185,000, and you have One West recovering $437,000 for an “investment” of $385,000. Therefore, OneWest makes $52,000 in additional income above the actual Purchase Price loan amount after the FDIC reimbursement.
At this point, it becomes readily apparent why OneWest Bank has no intention of conducting loan modifications. Any modification means that OneWest would lose out on all this additional profit.
Note: It is not readily apparent as to whether this agreement applies to loans that IndyMac made and Securitized but still Services today. However, I believe that the Agreement does apply to Securitized loans. In that event, OneWest would make even more money through foreclosure because OneWest would keep the “excess” and not pay it to the investor!
Pooling And Servicing Agreement
When OneWest has been asked about why loan modifications are not being done, they are responding that their Pooling and Servicing Agreements do not allow for loan modifications. Sheila Bair, head of the FDIC has also stated the same. This sounds like a plausible explanation, since few people understand the Pooling and Servicing Agreement. But…
Parties Involved
Here is the”dirty little secret” regarding Indymac and the Pooling and Servicing Agreement. The parties involved in the Agreement are:
The Sponsor for the Trust was…………Indymac
The Seller for the Trust was……………Indymac
The Depositor for the Trust was………..you guessed it………….Indymac
The Issuing Entity for the Trust was……………….(drumroll)……………….Indymac
The Master Servicer for the Trust was……..once again………Indymac
In other words, Indymac was the only party involved in the Pooling and Servicing Agreement other than the Ratings Agency who rated these loans as `AAA’ products.
To make matters worse, Indymac wrote the Agreement in order to protect itself from liability for these garbage loans. By creating separate Indymac Corporations — which the Depositor, Sponsor, and other entities were — Indymac created a bankruptcy-remote vehicle that could not come back to them in terms of liability. However, they did not count on certain MBS securities and portfolio loans coming back to bite them and force them under.
Now, the questions become:
If Indymac was responsible for Securitization at every step in the Process, and was responsible for writing the Pooling and Servicing Agreement, can they be held accountable for the loans that they are foreclosing on?
Since Indymac was the Issuing Entity, can they actually modify loans, but refuse to do so because they can make money for OneWest Bank by refusing to do so?
Does Indymac have to “buy back” the loan from the Indymac Trust in order to do a loan modification?
These are questions that I have no answer for. All I know is that at every step of the way, Indymac was involved in the process, and have taken steps to protect themselves from liability for loans that should never have been made.
Loan Modifications
As referred to earlier, the Agreement covers all aspects of the Securitization Process. With respect to Loan Modifications, the Agreement for Indymac INDA Mortgage Loan Trust 2007 – AR5, states on Page S-67:
Certain Modifications and Refinancings
The Servicer may modify any Mortgage Loan at the request of the related mortgagor, provided that the Servicer purchases the Mortgage Loan from the issuing entity immediately preceding the modification.
Page S-12 states the same “policy”:
The servicer is permitted to modify any mortgage loan in lieu of refinancing at the request of the related mortgagor, provided that the servicer purchases the mortgage loan from the issuing entity immediately preceding the modification. In addition, under limited circumstances, the servicer will repurchase certain mortgage loans that experience an early payment default (default in the first three months following origination). See “Servicing of the Mortgage Loans—Certain Modifications and Refinancings” and “Risk Factors—Risks Related To Newly Originated Mortgage Loans and Servicer’s Repurchase Obligation Related to Early Payment Default” in this prospectus supplement.
These sections would appear to suggest that the only way that OneWest could modify the loan would be as a result of buying the loan back from the Issuing Trust. However, there may be an out. Page S-12 also states:
Required Repurchases, Substitutions or Purchases of Mortgage Loans
The seller will make certain representations and warranties relating to the mortgage loans pursuant to the pooling and servicing agreement. If with respect to any mortgage loan any of the representations and warranties are breached in any material respect as of the date made, or an uncured material document defect exists, the seller will be obligated to repurchase or substitute for the mortgage loan as further described in this prospectus supplement under “Description of the Certificates—Representations and Warranties Relating to Mortgage Loans” and “—Delivery of Mortgage Loan Documents .”
The above section may be the key for litigating attorneys to fight Indymac. If fraud or other issues can be raised that will show a violation of the Representations and Warranties, then this could potentially force Indymac to modify the loan.
HAMP
At this point, it becomes important to note that Indymac/OneWest signed aboard with the HAMP program in August 2009. Even though they became a part of the program, they are still refusing to do most loan modifications. Instead, they persist in foreclosing on almost all properties. And even when they say that they are attempting to do loan modifications, they are fulfilling all necessary requirements so that they can foreclose the second that they “decide” the homeowner does not meet HAMP requirements, — which, since they can make more money by foreclosing on the property, meets the HAMP requirements for doing what is in the best interests of the “investor”.
Why did Indymac even sign up for HAMP, if they have no intention of executing loan modifications? Clearly, just for appearances.
One Final Question
It now becomes incumbent upon me to ask one final question. The Shared-Loss Agreement states the following:
2.1 Shared-Loss Arrangement.
(a) Loss Mitigation and Consideration of Alternatives. For each Shared-Loss Loan in default or for which a default is reasonably foreseeable, the Purchaser shall undertake, or shall use reasonable best efforts to cause third-party servicers to undertake, reasonable and customary loss mitigation efforts in compliance with the Guidelines and Customary Servicing Procedures. The Purchaser shall document its consideration of foreclosure, loan restructuring (if available), charge-off and short-sale (if a short-sale is a viable option and is proposed to the Purchaser) alternatives and shall select the alternative that is reasonably estimated by the Purchaser to result in the least Loss. The Purchaser shall retain all analyses of the considered alternatives and servicing records and allow the Receiver to inspect them upon reasonable notice.
Such agreements are usually considered to be interpreted to the benefit of the homeowner, as with HAMP and other programs. In legalese, it is called “Intent”.
What was the “Intent” of the Shared-Loss Agreement? Was the intent to provide OneWest Bank solely with a profitable incentive to take over Indymac Bank? If so, then OneWest has been truly successful in every manner.
Or was the intent to offer to OneWest Bank a way to be compensated for losses for foreclosures, but with the primary goal to assist homeowners in trouble? If this was the intent, then OneWest has failed miserably in its actions. And if so, could OneWest be actionable by the Federal Government for fraud?
In fact the true “Intent” was to limit losses to the Treasury Department. Each and every loan modification done would save the Treasury, and the tax payer, from 80-95 cents on every dollar.
Since, technically, One West would get 5-20 cents of any savings, it should have been an incentive to use foreclosure alternatives. But the reality is that the quick turnaround on foreclosure seems to give OneWest a better return. As a result, OneWest appears to simply ignore the intent and just foreclose (as far as I can tell).
So, OneWest’s failure to modify loans may actually amount to fraud on the Treasury and US taxpayers.
Conclusion
I have presented the story of Indymac/OneWest and what is happening today. But the story does not end with OneWest. There are over 50 different lenders and servicers who have Shared-Loss Agreements executed with the FDIC. Each Agreement offers essentially the same terms. Though other Lenders do not appear to be acting as flagrantly as OneWest, they are all still engaging in the same actions.
What is the solution for this problem? ...
To read the entire article click here
Tuesday, December 1, 2009
Housing Rescue Operations a Boon to Mortgage Fraudsters
It is really a shame to see what has happened to the FHA. Prior to the subprime bubble, the FHA has a good record with providing low down payment loans to borrowers. Before readers scoff, it had a simple secret: it screened borrowers. And the old-fashioned process was sufficiently time-consuming that the prospective homeowners also had to grapple with whether they could make the payments.
The FHA’s experience of yore is not unique. Not for profits that provide loans to low income borrowers also have shown default rates in line with prime borrowers. It is possible to make sound loans to homebuyers who look risky on paper…provided you do real due diligence.
But now the FHA has been assigned a role in the “save the housing market” game plan, which means notions of prudence get compromised. A story in Washington Monthly details some of the side effects. And the troubling bit is that while this activity isn’t wide scale, the Treasury proposals to streamline the short sale process will play right into this particular type of fraud.
From Washington Monthly:
Interthinx, which analyzes mortgage fraud nationally….found a continuing shift to schemes involving bank-owned foreclosed homes, and short sales…The firm also reported that real estate agents and other professionals increasingly are involved in the schemes, which are growing in popularity due to the abundant supply of foreclosures, and the fact that appraisals frequently aren’t required in order to sell distressed properties.
As fraud picks up, a typical scheme increasingly works like this: A homeowner underwater on a mortgage, owing more than the home is worth, arranges a short sale ….The home then gets deeded back or gifted to the troubled borrower shortly after the sale. Or, the bank unwittingly accepts a lowball short sale offer, allowing the new owner to quickly flip the property to a buyer already on standby, willing to pay a higher price. Such schemes amount to fraud because buyers and sellers lie to the bank about the true nature of the transactions…
Flipping foreclosures and short sales is taking off as the latest real estate craze, with numerous web sites popping up to market advice on turning quick profits on distressed properties. And short sales also are expected to only increase as loan modification efforts continue to falter, and borrowers facing foreclosure have few other options. Interthinx expects fraud involving a “straw” borrower – a deceptive stand-in used as cover for a questionable transaction – to also become more frequent as a result….
increasingly, people involved in fraud schemes are finding ways to finance them through taxpayer-backed Federal Housing Administration loans, an agency already dealing with delinquency problems and and mortgage fraud, said Robert Simpson, president of Investors Mortgage Asset Recovery Co. in Irvine, Calf., a firm that analyzes mortgage fraud. The FHA’s loan volume has quadrupled since 2006, and FHA-backed loans have been beset by rising defaults…
“Anytime there’s money out there, someone will begin trying to figure out a way to get to it,” Simpson said. “Right now, the fraud gets shipped over to the FHA. We’ve got to hope they are being very diligent, because if they are not, the damage will be irreversible.”…
Short sales at first seem an unlikely target for fraud, because they can be a lengthy and difficult process, with banks often taking months to approve sales, if they do at all. For that reason, Cecala said, he believes short sales – at least for now – comprise only a small piece of the mortgage fraud picture. But the Treasury Department is expected to issue guidelines soon on streamlining short sales and offering financial incentives to borrowers and lenders. The push for more short sales, combined with a backlog of foreclosed homes, distressed homeowners, and banks anxious to get foreclosures off their books, will likely make short sale and REO flipping fraud more prevalent.
To read the original article click here
Other articles of interest...
The Truth! The Truth? Bankers Can't Handle the Truth!!!
If you thought things looked bad last year or this spring, they are getting worse
The world’s largest guilt trip
Brent White shows that underwater homeowners across America are signally failing to take my advice (or that of Mark Gimein) and walk away from their homes:
Bank of America Has "Good Excuse" for Not Offering Mortgage Modifications; HAMP a Spectacular Failure
The Obama Administration is pressing for more home modifications, so why the high failure rate, especially at Bank of America?
WaMu Is Gone, but the Parent Is Fighting On
Washington Mutual sank more than a year ago in the biggest bank failure in U.S. history. A fight still is raging over the carcass of its parent company.
The FHA’s experience of yore is not unique. Not for profits that provide loans to low income borrowers also have shown default rates in line with prime borrowers. It is possible to make sound loans to homebuyers who look risky on paper…provided you do real due diligence.
But now the FHA has been assigned a role in the “save the housing market” game plan, which means notions of prudence get compromised. A story in Washington Monthly details some of the side effects. And the troubling bit is that while this activity isn’t wide scale, the Treasury proposals to streamline the short sale process will play right into this particular type of fraud.
From Washington Monthly:
Interthinx, which analyzes mortgage fraud nationally….found a continuing shift to schemes involving bank-owned foreclosed homes, and short sales…The firm also reported that real estate agents and other professionals increasingly are involved in the schemes, which are growing in popularity due to the abundant supply of foreclosures, and the fact that appraisals frequently aren’t required in order to sell distressed properties.
As fraud picks up, a typical scheme increasingly works like this: A homeowner underwater on a mortgage, owing more than the home is worth, arranges a short sale ….The home then gets deeded back or gifted to the troubled borrower shortly after the sale. Or, the bank unwittingly accepts a lowball short sale offer, allowing the new owner to quickly flip the property to a buyer already on standby, willing to pay a higher price. Such schemes amount to fraud because buyers and sellers lie to the bank about the true nature of the transactions…
Flipping foreclosures and short sales is taking off as the latest real estate craze, with numerous web sites popping up to market advice on turning quick profits on distressed properties. And short sales also are expected to only increase as loan modification efforts continue to falter, and borrowers facing foreclosure have few other options. Interthinx expects fraud involving a “straw” borrower – a deceptive stand-in used as cover for a questionable transaction – to also become more frequent as a result….
increasingly, people involved in fraud schemes are finding ways to finance them through taxpayer-backed Federal Housing Administration loans, an agency already dealing with delinquency problems and and mortgage fraud, said Robert Simpson, president of Investors Mortgage Asset Recovery Co. in Irvine, Calf., a firm that analyzes mortgage fraud. The FHA’s loan volume has quadrupled since 2006, and FHA-backed loans have been beset by rising defaults…
“Anytime there’s money out there, someone will begin trying to figure out a way to get to it,” Simpson said. “Right now, the fraud gets shipped over to the FHA. We’ve got to hope they are being very diligent, because if they are not, the damage will be irreversible.”…
Short sales at first seem an unlikely target for fraud, because they can be a lengthy and difficult process, with banks often taking months to approve sales, if they do at all. For that reason, Cecala said, he believes short sales – at least for now – comprise only a small piece of the mortgage fraud picture. But the Treasury Department is expected to issue guidelines soon on streamlining short sales and offering financial incentives to borrowers and lenders. The push for more short sales, combined with a backlog of foreclosed homes, distressed homeowners, and banks anxious to get foreclosures off their books, will likely make short sale and REO flipping fraud more prevalent.
To read the original article click here
Other articles of interest...
The Truth! The Truth? Bankers Can't Handle the Truth!!!
If you thought things looked bad last year or this spring, they are getting worse
The world’s largest guilt trip
Brent White shows that underwater homeowners across America are signally failing to take my advice (or that of Mark Gimein) and walk away from their homes:
Bank of America Has "Good Excuse" for Not Offering Mortgage Modifications; HAMP a Spectacular Failure
The Obama Administration is pressing for more home modifications, so why the high failure rate, especially at Bank of America?
WaMu Is Gone, but the Parent Is Fighting On
Washington Mutual sank more than a year ago in the biggest bank failure in U.S. history. A fight still is raging over the carcass of its parent company.
Monday, November 30, 2009
Audit the Fed: Bernanke and the Bankers Are Running Scared
Ben Bernanke, Federal Reserve mob boss, is running scared. He is deathly afraid an audit of his criminal organization.
“These measures are very much out of step with the global consensus on the appropriate role of central banks, and they would seriously impair the prospects for economic and financial stability in the United States,” Bernanke wrote in the CIA’s favorite newspaper, The Washington Post.
Maybe Bernanke is worried he will be obliged to wear an orange jumpsuit in the wake of an audit.
Bernanke penned his tribute to central banking and globalism prior to his scheduled testimony before a Senate panel on his renomination to serve a second four-year term as Fed mob boss.
Bankster tool Barney Frank, chairman of the House Financial Services Committee, tried to derail an effort to audit the Fed but failed. A proposal to audit the Fed’s monetary policy deliberations won a committee vote recently over Frank’s objections.
In his Mockingbird media editorial, Bernanke “conceded the Fed had missed some of the riskiest behavior in the lead up to the crisis. But he said the Fed had helped avoid an even more damaging economic meltdown and has stepped up its policing of the financial system.”
In fact, the Fed was specifically designed to create financial crises. It was all plotted in 1910 when minions of J.P. Morgan, John D. Rockefeller, the Rothschilds and Warburgs met on Jekyll Island off the coast of Georgia. In 1913, the U.S. Federal Reserve Bank was created as a direct result of that secret meeting. Said Congressman Charles Lindbergh on the midnight passage of the Federal Reserve Act: “From now on, depressions will be scientifically created.”
In order to scientifically create an economic depression, the Fed prompted irresponsible speculation by expanding the money supply sixty-two percent between 1923 and 1929. The so-called Great Depression followed. This depression “was not accidental. It was a carefully contrived occurrence,” declared Congressman Louis McFadden, Chairman of the House Banking Committee. “The international bankers sought to bring about a condition of despair here so that they might emerge as rulers of us all.”
In March of 1929, Paul Warburg issued a tip that the scientifically created crash was coming. Before it did, John D. Rockefeller, Bernard Baruch, Joseph P. Kennedy, and other banksters got out of the market.
A few years later, the banksters and their minions met in Bretton Woods, New Hampshire, and plotted the creation of the International Monetary Fund and the World Bank. The purpose of these two criminal organizations was to set-up a global Federal Reserve system and wage economic warfare on billions of people. The weapon they used was debt and the loss of sovereignty that follows.
In 1971, then president Nixon fit one of the last pieces into the puzzle — he signed an executive order declaring that the United States no longer had to redeem its paper dollars for gold. It was a great day for the banksters and the global elite. The gold standard ensured predictability and regularity in the economy and the banksters wanted to put an end to that. For the bankers, order and control is realized out of chaos and misery.
Fast-forward to the present day. Bernanke’s Fed has meticulously sabotaged the economy in order to create a crisis in classic Hegelian fashion. The corporate media tells us the crisis is the result of ineptitude and mismanagement at the Federal Reserve. Au contraire. Like the Great Depression, the even Greater Depression now on the horizon was scientifically created.
The Fed is the primary instrument the bankers are now using to destroy the middle class, hand over all public assets and resources to them, implement a crushing austerity, usher in a new era of global corporatist feudalism and build a sprawling planet-wide slave plantation based on China’s totalitarian model.
It is the ultimate dream of the banking cartel. It will be used as the foundation to build world government. Destroying the dollar as the world’s reserve currency is only the beginning.
Bernanke knows Ron Paul and the audit the Fed movement are extremely dangerous. That’s why he is pushing this facile “oops” theory. In order to fix things, the Fed will use its “knowledge of complex financial institutions” in order to supervise them, he writes in his Mockingbird editorial. Allowing audits of Federal Reserve monetary policy would increase the perceived influence of Congress on interest rate decisions, he says.
To read the entire article click here
Other articles of interest...
law school professor advises underwater homeowners to walk away from mortgages
The LA Times is reporting Brent T. White, a University of Arizona law school professor, says that it's in the homeowners' best financial interest to stiff their lenders and that it's not immoral to do so. I commented on this story twice before but it's worth another recap
'I Stopped Denying People': Ex-Bank Of America CSR Tells All
“These measures are very much out of step with the global consensus on the appropriate role of central banks, and they would seriously impair the prospects for economic and financial stability in the United States,” Bernanke wrote in the CIA’s favorite newspaper, The Washington Post.
Maybe Bernanke is worried he will be obliged to wear an orange jumpsuit in the wake of an audit.
Bernanke penned his tribute to central banking and globalism prior to his scheduled testimony before a Senate panel on his renomination to serve a second four-year term as Fed mob boss.
Bankster tool Barney Frank, chairman of the House Financial Services Committee, tried to derail an effort to audit the Fed but failed. A proposal to audit the Fed’s monetary policy deliberations won a committee vote recently over Frank’s objections.
In his Mockingbird media editorial, Bernanke “conceded the Fed had missed some of the riskiest behavior in the lead up to the crisis. But he said the Fed had helped avoid an even more damaging economic meltdown and has stepped up its policing of the financial system.”
In fact, the Fed was specifically designed to create financial crises. It was all plotted in 1910 when minions of J.P. Morgan, John D. Rockefeller, the Rothschilds and Warburgs met on Jekyll Island off the coast of Georgia. In 1913, the U.S. Federal Reserve Bank was created as a direct result of that secret meeting. Said Congressman Charles Lindbergh on the midnight passage of the Federal Reserve Act: “From now on, depressions will be scientifically created.”
In order to scientifically create an economic depression, the Fed prompted irresponsible speculation by expanding the money supply sixty-two percent between 1923 and 1929. The so-called Great Depression followed. This depression “was not accidental. It was a carefully contrived occurrence,” declared Congressman Louis McFadden, Chairman of the House Banking Committee. “The international bankers sought to bring about a condition of despair here so that they might emerge as rulers of us all.”
In March of 1929, Paul Warburg issued a tip that the scientifically created crash was coming. Before it did, John D. Rockefeller, Bernard Baruch, Joseph P. Kennedy, and other banksters got out of the market.
A few years later, the banksters and their minions met in Bretton Woods, New Hampshire, and plotted the creation of the International Monetary Fund and the World Bank. The purpose of these two criminal organizations was to set-up a global Federal Reserve system and wage economic warfare on billions of people. The weapon they used was debt and the loss of sovereignty that follows.
In 1971, then president Nixon fit one of the last pieces into the puzzle — he signed an executive order declaring that the United States no longer had to redeem its paper dollars for gold. It was a great day for the banksters and the global elite. The gold standard ensured predictability and regularity in the economy and the banksters wanted to put an end to that. For the bankers, order and control is realized out of chaos and misery.
Fast-forward to the present day. Bernanke’s Fed has meticulously sabotaged the economy in order to create a crisis in classic Hegelian fashion. The corporate media tells us the crisis is the result of ineptitude and mismanagement at the Federal Reserve. Au contraire. Like the Great Depression, the even Greater Depression now on the horizon was scientifically created.
The Fed is the primary instrument the bankers are now using to destroy the middle class, hand over all public assets and resources to them, implement a crushing austerity, usher in a new era of global corporatist feudalism and build a sprawling planet-wide slave plantation based on China’s totalitarian model.
It is the ultimate dream of the banking cartel. It will be used as the foundation to build world government. Destroying the dollar as the world’s reserve currency is only the beginning.
Bernanke knows Ron Paul and the audit the Fed movement are extremely dangerous. That’s why he is pushing this facile “oops” theory. In order to fix things, the Fed will use its “knowledge of complex financial institutions” in order to supervise them, he writes in his Mockingbird editorial. Allowing audits of Federal Reserve monetary policy would increase the perceived influence of Congress on interest rate decisions, he says.
To read the entire article click here
Other articles of interest...
law school professor advises underwater homeowners to walk away from mortgages
The LA Times is reporting Brent T. White, a University of Arizona law school professor, says that it's in the homeowners' best financial interest to stiff their lenders and that it's not immoral to do so. I commented on this story twice before but it's worth another recap
'I Stopped Denying People': Ex-Bank Of America CSR Tells All
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