Treasury Official Speaks Out About Excessive Risk Taking

At long last, someone in Washington is speaking out about the dangerous precedent set by the government bailouts of major banks. As discussed in this article on the financial regulations website FinReg21, Treasury secretary Michael Barr testified before the House Judiciary subcommittee that the government must enact meaningful reforms to combat the “classic moral hazard problem” that stems from the perception that some banks are too big to fail.

Moral hazard defines the concept that an actor who is insulated in some way from risk will often behave in a riskier or more aggressive manner as a result of that insulation. The classic example is that drivers wearing seat belts and bikers wearing helmets tend to drive and bike more aggressively than they would have if unprotected, thereby leading to more accidents than before. Applied to the banking industry, Barr’s reference to moral hazard suggests that banks (and their creditors) that are perceived as “too big to fail” (i.e., the government will bail them out rather than letting them fail) will be incentivized to engage in greater risk-taking behavior than they would have if there had been a credible fear of failure.
Examples abound of this type of perverse incentive system within the financial services industry. One need look no further than the examples of Freddie Mac and Fannie Mae, which continued to receive support for their risky mortgage-backed securities purchases from investors because it was thought that the government would guarantee the debts of these GSEs. Similarly, the performance of executives of financial institutions is scrutinized on a quarter-by-quarter basis, meaning that these executives must show constant short-term profits to retain their jobs. They are then rewarded for these short-term profits with huge bonuses. On the flipside, unless criminal or grossly negligent behavior can be shown, these executives are rarely liable for any losses the firm experiences because of their choices. Though they may lose their jobs, these executives generally retain the bonuses they’ve received, thus incentivizing highly risky behavior during their tenures.
The incentives for both executives and the institutions they direct must be restructured so that long-term profit and steady, sustainable growth is most richly rewarded, while wild volatility is discouraged. This must begin with erasing the notion that any institution is “too big to fail.” Beyond the moral hazard problem, the fact than any institution would be so critical to our economy that its failure would wreak havoc must be considered extremely dangerous. If the American economy is viewed as a portfolio of investments, then there must be sufficient diversification between industries and within industries such that the failure of one may be balanced against the others. Having our economy hinge on the success or failure of any one institution, let alone a highly leveraged institution such as a bank, is as bad a strategy as it would be for an individual to have his entire retirement account consist of holdings of Google stock.
So, what does this mean? If a bank or any other institution takes risks that don’t pan out, it must suffer the consequences. If it cannot overcome the losses from its risk-taking behavior, it must be allowed to fail. As Barr points out, this “failure” must consist of an orderly unwinding of assets, rather than a sudden collapse, as was the case with Lehman. But, it also cannot be a bailout. Investors must lose a portion of their investment, so that they will be incentivized to direct their resources towards companies that engage in prudent behavior. Upstart institutions must be allowed to sprout in the void left by the failed institution, replacing some of the lost jobs and services and encouraging a return to a survival-of-the-fittest brand of capitalism.
Consistently applying this approach over time will naturally lead to more conservative investments and decisions, but also to more realistic valuations. We all saw how unchecked risk-taking in mortgage lending led to highly inflated home prices that could not be supported and eventually came crashing down.
Now, I recognize that many will point to the failure of Lehman Brothers as an indication of why we should not let big financial institutions fail. Obviously, the failure of Lehman touched off a wave of financial disasters that pushed our economy into recession. The resolution authority proposed by Barr may be part of the answer to this objection. Yet, who can say that this recession was not an inevitable result of too many dollars chasing too little actual value? Would this recession really have been avoided if Lehman were propped up by the taxpayers instead of forced into bankruptcy? I think that to blame the financial crash on the fall of Lehman is to mistake a symptom for a cause. It is like saying that the Great Depression was caused by the stock market crash of 1927.
Further, reforming the bankruptcy process for major financial institutions is only part of the solution. A complete solution must involve a drastic reformation of executive compensation structures to reflect an emphasis on long-term value. Instead of basing executive bonuses on quarterly or yearly performance, have executive bonuses “vest” over a five-year period, provided that the executive remains employed with the company, and that the company (or the executive’s department or division) has shown a net profit over that period. This would incentivize both long-term planning and company loyalty.
While I applaud Barr for admitting the dangers of government bailouts, his proposed solution does not go far enough. Further, as I’ve discussed in the past, allowing the Fed to retain the authority to decide when this resolution authority is applied and withheld gives too much power to a private corporation with a vested interest in preserving certain large banks. There must be a better way.
Posted in bailout, executive compensation, Fannie Mae, Federal Reserve, Freddie Mac, Government bailout, incentives, Judiciary Committee, Lehman Brothers, Michael Barr, moral hazard, too big to fail, Treasury | Leave a comment

Countrywide Files Motion to Dismiss in Greenwich Financial Case

With Greenwich Financial v. Countrywide having been remanded to New York state Supreme Court, Countrywide has now filed a Motion to Dismiss, arguing that Greenwich Financial’s Complaint is barred by the operative securitization agreements. As discussed in several prior posts, Greenwich brought this suit to force Countrywide to pay for the loans it has agreed to modify pursuant to its settlement with dozens of state Attorneys General. Countrywide’s full memorandum of points and authorities in support of its Motion to Dismiss may be found here.

Countrywide’s Motion asserts that the terms of the Pooling and Servicing Agreements (PSAs)between investors and Countrywide, including the “No-Action” provisions, expressly prevent Greenwich from suing to force Countrywide to repurchase the loans it modifies. Interestingly, while Countrywide cites the Housing and Economic Recovery Act and Helping Families Save Their Homes Act to show that such modifications are within “standard servicing practice,” Countrywide does not argue that Greenwich’s suit is barred by the Servicer Safe Harbor. Instead, Countrywide asserts that while it will brief such matters in future filings, “[b]ecause the immunity question requires consideration of additional documentation…Countrywide does not raise the immunity defense in this motion.” I’m curious what documentation Countrywide will have to review to brief this issue, as the Servicer Safe Harbor seems to have been designed specifically to relieve servicers such as Countrywide from liability based on contractual provisions like the ones in the PSAs.

As I discuss in an article that was recently published in the Daily Journal (an online version of which is available here), if Countrywide is successful when (not if) it eventually argues for dismissal based on the Servicer Safe Harbor, the decision could expose the Servicer Safe Harbor to a constitutional challenge pursuant to the Fifth Amendment’s Taking’s clause (see prior discussion here). If Greenwich Financial is thereby forced to bear losses that it expressly contracted against, it may constitute unconstitutional loss-shifting from one private party to another for a public purpose, in which case the government would be required to provide investors with just compensation.

Nevertheless, it will be interesting to see how Greenwich responds to the instant motion to dismissed based on the language of the PSAs. From my prior analysis of these contracts, it appeared that their language strongly favored holding Countrywide liable for the costs of such modifications.

Greenwich v. Countrywide had been stayed over the summer while the federal court to which Countrywide had removed the case deliberated over whether Greenwich’s case raised a federal question, or otherwise was subject to federal jurisdiction based on its securities class action claims. On August 14, Judge Richard Holwell issued an opinion remanding the case to state court. Judge Holwell found that there was no federal question jurisdiction because the issues of the Servicer Safe Harbor and other federal statutes relied upon by Countrywide would be asserted merely as defenses, and were not essential to Greenwich’s claims. The court further found that the case fell into one of the exceptions to mandatory federal jurisdiction under the Class Actions Fairness Act, and while the issues raised in the case were timely and novel, this was not enough to mandate federal jurisdiction. The full order is available here.

While Countrywide states that it intends to appeal Judge Holwell’s order of remand, it appears that Countrywide will move forward with its defenses on the merits in state court. Check back for further updates on this fascinating case.

Posted in consitutionality, Countrywide, Greenwich Financial Services, Helping Families Save Homes, HERA, loan modifications, motions to dismiss, remand, Servicer Safe Harbor, subprime, Takings Clause | Leave a comment

Judge Dismisses UG’s Tort and Statutory Claims Against Countrywide

Round one in the Battle of the Titans has gone to Countrywide. On October 6, 2009, the Central District of California handed down its decision on Countrywide’s (now part of Bank of America) Motion to Dismiss in the case of United Guaranty Mortgage Indemnity Co. v. Countrywide Financial, et al., holding that United Guaranty’s (a subsidiary of A.I.G.) tort and statutory claims would be dismissed, and only UG’s claims based on breach of contract and breach of the implied covenant of good faith and fair dealing would survive. The full order is embedded below.
Each of Countrywide, the nation’s former number one lender, and A.I.G., the nation’s largest insurer, have filed lawsuits against one another in the Central District of California (UG filed a third case in federal court in North Carolina, citing forum selection clauses) All eyes are on these cases as a bellweather for future decisions in subprime mortgage litigation, especially litigation related to mortgage insurance. This Order is one of the first to tackle head-on some of the thornier issues surrounding who will bear the losses associated with the mortgage meltdown.
Judge Mariana Pfaelzer’s opinion takes the time to walk through the securitization and mortgage insurance acquisition process, and determines that both UG and Countrywide were sophistocated parties that had substantial experience in securitizations and mortgage insurance policies, despite UG’s arguments that it had “limited experience in the subprime market.” In doing so, the Court showed a willingness to take judicial notice of language in the Policy regarding the parties’ assessment and allocation of risk that it found to contradict UG’s allegations. While ordinarily, for the purposes of a motion to dismiss, a court must accept as true all properly pled allegations of material fact, the Court cited the recent Supreme Court case of Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009) for the proposition that the court need not accept as true “unreasonable inferences” when the complaint is read together with the underlying documents (i.e., the insurance policy and commitment agreements).
In my initial analysis of these cases, I noted the dichotomy between UG’s assertions that it was relatively inexperienced in subprime mortgage insurance and Countrywide’s assertions that UG was a sophisticated market actor in this area. It appears this battle has been decidedly won by Countrywide, with the Court finding that UG negotiated a sophisticated contract that contained remedies for fraud and negligence, and that UG had the means and the knowledge to conduct due diligence on Countrywide’s loans prior to insuring them. These findings seemed to be important factors in the court finding that UG’s claims for fraud and negligence must be dismissed, and that it must pursue contract remedies for any such findings.
The opinion also discusses the concept of delegated underwriting, standard in the mortgage insurance industry, in which the insurer delegates the responsibility for properly underwriting the loans it insures to the lender, which represents and warrants the loans were underwritten properly. In return, the insurance company retains the right to audit the loan files to determine whether they were indeed properly underwritten. This structure is often necessary due to the lender’s superior access to information and the short turnaround time available after the loan is closed but before it is sold into securitization.
Judge Pfaelzer noted that this “delegated model makes sense when engaging in bulk mortgage insurance transactions: the applicant represents material information about the mortgage, then the insurer prices and issues the policy based on that information.” However, her Order goes on to find that, “any reasonable mortgage insurer that (1) was doing multibillion-dollar bulk transactions and (2) had an express right to audit or sample the underlying loan files before the transactions closed, would engage in some degree of auditing or sampling of the underlying loan files to be insured.” Thus, the Court found that UG could not have reasonably relied upon any misrepresentations Countrywide may have made to induce UG to provide insurance.
The Court also discredited UG’s “global rescission” argument – that these misrepresentations as to some loans entitled it to rescind coverage as to all loans in a pool. Thus, to succeed in its case, UG will have to go forward on its contract claims and demonstrate, on a loan-by-loan basis, that Countrywide breached the terms of the policy or commitment agreements for each.

AIG-Countrywide Court Order re Motion to Dismiss

Posted in Uncategorized | Leave a comment

U.S. Regulators Chastise Banks on Loan Modifications; Political Tide May Be Turning on Home Loan Servicers

Servicers of home loans have thus far enjoyed preferential treatment by regulators in the shakeout from the recent financial crisis, but that may all be changing.

On August 13, U.S regulators issued a joint statement to residential mortgage servicers warning them that “[a] servicer’s decision to modify the first lien mortgage should not be influenced by the potential impact of the modification on the subordinate loan and vice versa.” The statement was issued by the Federal Financial Institutions Council, an interagency group that includes the Fed, the FDIC and the Office of the Comptroller of the Currency, among others. The regulators further noted that entities servicing both first and second loans on the same property “may be faced with potential conflicts of interest when making loan modification decisions,” and that the failure to modify loans in cases that would produce a greater anticipated recovery for owners and investors, “may be a breach of the servicers‘ obligation to those owners/investors.”
Until recently, it appeared that residential mortgage servicers–often the very same banks that had issued the loans that borrowers are now unable to afford–were the favored sons of this nation’s regulators. First, Bank of America/Countrywide was allowed by state Attorneys General to saddle investors with the lion’s share of an $8.4 billion settlement stemming from its irresponsible lending practices. Then, servicers were given a Safe Harbor and cash incentives to clean up their problematic loans when Congress passed the Helping Families Save Their Homes Act back in May of this year.
However, a letter issued by congressmen Christopher Dodd and Barney Frank on July 10 signaled a shift in the way regulators viewed home loan servicers. This letter, which was sent to the Fed, the FDIC and the Office of the Comptroller of the Currency, among others, was the first acknowledgment from Congress that servicers may have been resisting performing the loan workouts needed to stem the foreclosure crisis because they were the foxes guarding the henhouse. Though industry experts and commentators have recognized servicers‘ conflict of interest stemming from their own holdings for months, this letter may have been the first to alert the Federal Financial Institutions Council that servicers were acting in their own interests, not those of the borrowers or bondholders servicers were contractually obligated to further.
Also contributing to this shift in momentum was the release by the Treasury Department of its first monthly progress report on its plan to aid homeowners through loan modifications. This report found that just 9% of eligible homeowners have received trial modifications. The Treasury also released a breakdown on modifications by home loan servicers, which showed that none of the Big Four servicers (Wells Fargo, Citibank, BofA and Chase) had modified more than 20% of the loans eligible.
Officials from the Obama administration already met with mortgage servicers last month to encourage these companies to double the number of borrowers receiving aid. However, as this was before the Treasury released its numbers, I expect the frequency and intensity of such meetings to increase over the coming weeks. As those who have followed this blog are aware, I believe it is high time to acknowledge the role that banks (and now servicers) have played in fomenting the current financial crisis, and force those entities to pay their fair share to help clean up this mess.
Posted in banks, Barney Frank (D-MA), Christopher Dodd (D-CT), conflicts of interest, Federal Reserve, Helping Families Save Homes, junior liens, loan modifications, regulation, Treasury | 5 Comments

Article on William Frey, Countrywide and the Servicer Safe Harbor Published in Lombard Street E-Journal

I am excited to report that FinReg21, a leading website on financial services regulation, has published a feature-length article by me, entitled Why Should Servicers Get a Safe Harbor? How One Investor’s Lawsuit Forced Bank of America to Seek Shelter in Washington, in its Lombard Street e-journal. Lombard Street is billed as “the first e-journal focused exclusively on financial services regulation in the 21st century.”

The article tells the story of William Frey and Greenwich Financial Services’ (“GFS”) legal challenge to Countrywide’s settlement with the Attorneys General, and how this lawsuit spurred the passage of the Helping Families Save Their Homes Act by Congress. The article pulls together many of the facets of this story that we have followed on The Subprime Shakeout, from the cycle of securitization that led to the subprime mortgage meltdown, to Washington’s push for loan modifications that led to Countrywide’s $8.4 billion settlement with Attorneys General from over 30 states, to the litigation and legislation that followed.
The last two sections of the piece go further, however. In the second-to-last section, I provide a legal analysis of how the Servicer Safe Harbor could run afoul of the Fifth Amendment’s Takings Clause if it operates to deprive GFS and other investors of their claims against Countrywide and other loan servicers. In the final section, I offer an alternative solution to the mortgage foreclosure crisis that would be more efficient and equitable than the blunt strokes that Washington has taken thus far.
I look forward to hearing any feedback that readers may have on this proposal or any other aspect of the article. Thanks to Doug Winthrop, Christine Camp, and Michael Ginsborg at Howard Rice for providing skillful editing and insightful feedback, and to Charley Spektor, and Marilyn Cohodas at FinReg21 for supporting critical, non-partisan analysis on this and other issues affecting the regulation of financial services.
Posted in consitutionality, Countrywide, FinReg 21, Greenwich Financial Services, Helping Families Save Homes, legislation, litigation, loan modifications, Servicer Safe Harbor, William Frey | Leave a comment