02 February 2010

Equal Protection (From the Zombie Banks)

"...the AIG bailout, a hideous political contrivance that ranks with the great acts of political corruption and thievery in the history of the United States."

Remarkable that in light of the massive failure of the Executive and Legislative Branches of the United States Corporatocracy to protect and defend the public from the outrages being committed by the FIRE sector, the Judicial Branch is providing a haven for the rights of the people under the Constitution.

Can this be due to the fact that federal judges do not require huge campaign contributions, which Wall Street doles out like a foreign power to the craven denizens of Foggy Bottom?

Indeed. The clauses that designate the Credit Default Swaps as super senior to nearly everything else (Some animals are more equal than others clauses) are being struck down by bankruptcy courts. The banks do not take precedent in the hearts and minds of everyone, despite assertions by Timmy and Hank to the contrary.

This is an old financiers trick in the equity world of venture capital, the Sand Hill Road clause, long used to strip the holders of common shares of their slice of the pie in the evolution of startups. The CDS and CDO variation took the gambit a step too far, stepping on the rights of the bond holders, and the courts are nullifying it. Good for them.

Wall Street does not always come first, when honest public servants uphold their oaths to protect and defend the Constitution against those confiscating the wealth of the people.

Do what thou wilt shall be the whole of the Law is the guide of those doing their darker god's work. In the short term it makes them strong, because they deny themselves nothing: no trick or falsehood, no claim or deceit, no act of betrayal or sympathetic ploy. They simply have no shame.

But there is also no honour among thieves, only greed and fear. The best part of honour is the love of something greater than ourselves. And so the bonds of their coalition are weak. Greed and self-interest will be unable to sustain the partnership of government and the Banks when the tide turns-- in the end only the fear remains.

And will Timmy whimper when the zombies turn on him?

Institutional Risk Analyst
Zombie Update: Loan Repurchases and REO Anyone?

February 2, 2010

...Our friends at HousingWire report that a federal bankruptcy judge in New York sitting on the Lehman Brothers bankruptcy, has voided the seniority claims of holders of various qualified investment contracts, ruling that their ipso facto clauses which subordinated other claims to their own were "null and void in bankruptcy." This is an important victory for fans of equal protection and due process, and a big setback for the OTC derivative dealer banks which exert considerable influence at the Fed and OCC.

We have always held the view that the attempts by the large dealer banks, ISDA and regulators to carve out a special, privileged place in the law for OTC derivatives contracts in the event of default is inherently unfair and is doomed to failure, or at least would be challenged, on Constitutional grounds. This case and others make that challenge and review process a reality and also leaves much of the world of complex structured finance in a shambles when it comes to the legal reality of counterparty risk.

Indeed, the same legal art that gave the swap counterparties in this latest case the impression that they were senior to the other creditors of the bankruptcy estate was used by former Treasury Secretary Hank Paulson and his successor, Timothy Geithner, to justify the rescue of American International Group. The very same type of investment contracts that Secretary Paulson and Secretary Geithner swore under oath, over and over again, just had to be paid at par in the case if AIG were just set aside by New York Bankruptcy Judge James Peck.

And notice that the world has not ended when the holders of OTC contracts are treated like everyone else. Indeed, Judge Peck has made a number of rulings over the past two years re-leveling the playing field between holders of OTC contracts and other claims against the Lehman bankruptcy estate. As we have noted before, the admirable conduct of the Lehman Brothers bankruptcy case by Judge Peck and US Bankruptcy Trustee Harvey Miller is the starkest condemnation possible of the AIG bailout, a hideous political contrivance that ranks with the great acts of political corruption and thievery in the history of the United States.

The question of the enforceability of the documentation in a complex structured securitization involving OTC swaps is not just a matter of debate in the AIG case. Across the US and around the world, investors and trustees are grappling with this same issue. The result is litigation by bond trustees against bond issuers as well as claims by guarantors such as MBIA (MBI) and the housing GSEs, including the Federal Home Loan Banks, against sponsor banks. Many of these claims regarding derivatives are being made in the context of claims for the repurchase of defaulted residential and commercial loans.

The wave of loan repurchase demands on securitization sponsors is the next area of fun in the zombie dance party, namely the part where different zombies start to eat one another. The GSE's are going to tear 50-100bp easy out of the flesh of the banking industry in the form of loan returns on trillions of dollars in exposure, this as charge-offs on the several trillion in residential exposure covered by the GSEs heads north of 5%. The damage here is in the hundreds of billions and lands in particular on the larger zombie banks, especially Bank of America (BAC) and Wells Fargo (WFC).

To put the growing combat in the loan repurchase channel into perspective, keen analysts will already know that a new item has appeared in the disclosure for non-interest income by many larger banks that have been active in the securitization markets. In the case of WFC in Q4 2009, gross income of $1.2 billion in mortgage loan originations was net of $316 million in loss reserves for loan repurchases. Imagine if we add a zero to the loss allocation, then another, and you get to the worst-case exposure on OBS loan repurchases.

Watch this heretofore obscure part of the mortgage banking business become downright material in coming quarters as a race of sorts develops between banks that want to restart the securitization markets and those that are being dragged under water by the weight of legacy liabilities. Notice, for instance, that in the MBI litigation against Countrywide Financial et al, MBIA Insurance Corporation v. Countrywide Home Loans, Inc. et al. that now includes BAC explicitly.

The action "arises out of the alleged fraudulent acts and breaches of contract of Countrywide in connection with fifteen securitizations of pools of residential second-lien mortgages" Take particular care to savor the fact that these are second lien pools and that, where defaults have occurred on the primary mortgage, loss severities on the seconds will tend to be 100%. Or the cost could be more than par if you count the cost of remediation and recovery efforts.

With private issuers trying to find a workable formulation for new securitizations, the mounting litigation in the secondary market for structured deals comes at a bad time for efforts to revive the patient and confirms our worry that there is a lot of tough work ahead in the loss mitigation channel. More, we worry that the level of claims and defaults now visible in the US markets is just a taste of the high tide we could see in 2010-2011, especially as and when interest rates start to rise even modestly. Did somebody say "interest rates?"