Oct 20, 2010
COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

“setting the stage for a huge battle between mortgage holders like the government, hedge funds and other institutional investors on one side and the big banks on the other.”

Editor’s Note: The plot thickens. Even as the Fed and investors talk about wanting their money back on mortgage backed securities, they refer to themselves through the media as “mortgage holders.” What are they? If the Fed and the Investors are mortgage holders then none of the foreclosures are valid because none of them name the Fed or the Investors as the creditor. To quote from the Fordham Law review that can be found on this blog “Will the real party in interest please stand up?”

The real problem is that the buyers (FED and Investors) don’t really know what they bought. It’s embarrassing. Trillions of dollars were advanced but none of them know what they own or what rights they have. They only know they were sold based on a pack of lies. So while we don’t know whether the Fed’s demand is based upon some contractual right or simply fraud in misrepresenting the status, quality or warranty of ownership, we DO know that the Fed thinks they own these securities and that they think they are the mortgage holders. Same for the investors.

Considering the standard waiver that was contained in most synthetic instruments based upon the so-called mortgage bonds, it is likely that contractually nobody has a right to demand the buy-back. So they are sitting with some paper of dubious quality and dubious authenticity based upon representations that they took at face value from the same banks that were lying all along to everyone. And they have a tort action for damages because of the fraud.

The relevance to borrowers, besides the obviously obscured ownership situation, is that the MONEY was handled in a way that probably decouples the obligation from any note that was signed — an additional wrinkle to the decoupling of the note from the mortgage and the decoupling of the obligation from the mortgage. It looks like when the dust clears the only action against homeowners it going to be unjust enrichment, because under any reasonable application of black letter law, there is no mortgage, the note is all messed up so it can’t be used as evidence even if they come up with the original, and the obligation has been paid in full to the party or parties of record who pretend to be the beneficiaries of an encumbrance (mortgage) on the home, but are not owed any money.

This additional cloud on the title of tens of millions of homes, both foreclosed (and sold) or not, will require an act of God to correct, because the legislatures are all going to get conflicting signals from the mlutiple securitization parties each of whom has an interest adverse to anyone else.

There IS a solution to all of this that will save face for everyone who either has egg on their face or an omelet en route. The ONLY solution is to give up on the blame game and go for amnesty for everyone and then fix the problems in a practical way. But to get to a place where a solution is possible we have to accept first the fact that there are no mortgages, there are no notes and the obligations are hopelessly obscured. THEN using the reality of fair market values and the losses incurred by the innocents (investors, taxpayers, government agencies deprived of revenue and homeowners) develop a program that allocates the real pie into real pieces instead of illusory claims to a pie that doesn’t exist.

Financial innovation was the hallmark of Wall Street that got us into this mess because the umpires went on sabbatical. Financial innovation, with the umpires returned to the field, will get us out of this. Stop blaming borrowers and investors for getting fooled, and stop blaming Wall Street for being greedy salesman. We knew the consumer was ignorant of everything in closing documents before this mess and we knew that Wall Street was all about greed before all this started.  It doesn’t matter anymore. What matters is that we fix it and maybe, heaven forbid, learn from it.

October 19, 2010

Fed Wants Banks to Buy Back Some Bad Mortgages

By NELSON D. SCHWARTZ

To the long list of those picking fights with banks over bad mortgages, add the Federal Reserve.

Two years after the Fed bought billions of dollars in mortgage securities as part of the financial bailout, its New York arm is questioning the paperwork — and pressing banks to buy some of the investments back.

The Federal Reserve Bank of New York and several giant investment companies, including Pimco and BlackRock, have singled out Bank of America, which assembled more than $2 trillion of mortgage securities from 2004 to 2008.

Bank of America is already dealing with the fallout from the fight over whether foreclosures were handled properly. It insists that no foreclosures have been initiated in error, and on Monday announced it would resume the foreclosure process in 23 states where court approval is required to go ahead.

But while the human toll of the foreclosure crisis has grabbed the headlines, the fight over how these loans were created in the first place could last longer and ultimately cost the banks much, much more. And it is setting the stage for a huge battle between mortgage holders like the government, hedge funds and other institutional investors on one side and the big banks on the other.

“It’s very serious,” said Glenn Schorr, an analyst with Nomura Securities. “The numbers are all over the map.”

If the Fed and the investors succeed, it could cost Bank of America billions of dollars. On Wall Street and in bank boardrooms, the question of whether investors can force banks to buy back, or “put-back,” the bad mortgages to the banks that sold them is dominating the debate and worrying analysts, money managers and banking executives.

It also makes for some strange bedfellows. After all, it was the government that bailed out Bank of America — twice — during the financial crisis, the same government that includes the Fed.

And it is going to be a fight. On Tuesday, after watching its shares get pummeled again, Bank of America went on the offensive, vowing to “defend the interests of Bank of America shareholders,” and hire more lawyers.

“It’s loan by loan, and we have the resources to deploy in that kind of review,” said Brian T. Moynihan, Bank of America’s chief executive, on a conference call to discuss the bank’s results for the third quarter.

Although the bank turned in better results than expected, much of the call was given over to the put-back issue. “We have thousands of people who are willing to stand and look at these loans,” Mr. Moynihan told analysts. “We’d love never to talk about this again and put it behind us, but the right answer is to fight for it.”

The legal battle turns on the question of whether the banks properly represented the loans they put together into mortgage-backed securities when they sold them to investors. If the banks ignored evidence that the underlying mortgages did not conform to underwriting standards or they lacked the proper paperwork, the banks could be obligated to buy the troubled mortgages back.

The Federal Reserve Bank of New York and the other large investors are pressing Bank of America to buy back a portion of the $47 billion in mortgages it originated, most of which were assembled by Countrywide Financial just before the real estate boom turned to bust in 2005, 2006 and 2007.

Countrywide, which specialized in subprime mortgages, was acquired by Bank of America in July 2008.

“People did not think bondholders would be able to organize themselves, but they can,” said Kathy Patrick, a Houston lawyer who is leading the effort. “It’s a large amount of money but the principle is simple. When you promise to do something in an agreement, you should do it.” A letter from Ms. Patrick detailing the claims was obtained by The New York Times.

The danger posed by angry — or opportunistic — investors ‘putting-back’ mortgages to the banks is hardly limited to Bank of America. Other giants like Citigroup and JPMorgan Chase face similar claims, and last week JPMorgan set aside $1.3 billion just for legal costs, including put-backs.

JPMorgan has said it expects repurchases of mortgages to run at about $1 billion a year, but that expense should be covered by $3 billion it has earmarked specifically for put-backs.

At Bank of America, repurchases have been running at about half a billion dollars a quarter. The bank estimates total put-back claims stand at $12.9 billion, as of Sept. 30. In the third-quarter, Bank of America recorded an $872 million expense for put-backs.

Besides the major institutions, hedge funds like York Capital and Moore Capital have been jumping into the game recently, buying up bad debt in the hopes it will eventually be bought back, according to traders and money managers. Both funds declined to comment.

And smaller ones are sniffing around, hoping to ride the depressed securities higher as the fight over put-backs gathers steam.

“Any hedge fund with a distressed desk is contemplating this trade,” said one analyst who insisted on anonymity. “The idea of bottom-fishing vulture funds buying this stuff up for a nickel on the dollar so they can sue the banks to get 100 cents must be pretty odious for the Treasury, which bailed out the banks in the first place.”

Indeed, the group that includes the Fed is one of two coalitions that is gearing up for a fight with the banks.

Bill Frey, chief executive of Greenwich Financial Services, leads a group of investors that holds just under $600 billion worth of mortgage-backed securities.

But it is the recent controversy over foreclosures that has jump-started interest by pension funds, hedge funds and other players. “In the last two weeks, there has been a flood of new investors,” Mr. Frey said. “We haven’t even had a chance to do the arithmetic, that’s how fast they’re coming in.”

Besides all the lawyers that billions can buy, the banks have other weapons in their arsenal. Some hedge funds and other investors are nervous about challenging the banks too forcefully, because they trade with them daily.

There is risk too for the government, despite the Federal Reserve claims. If the banks are indeed forced to spend tens of billions to buy back securities, they could turn once again to the federal government for help.

Given the legal resources available to the banks, though, that is unlikely to happen quickly. And for now, broader conditions in the financial services are improving. On Wednesday, Bank of America reported that operating earnings in the third quarter hit $3.1 billion, in contrast to a loss a year ago.

A substantial portion of the profit gain came from the expectation of lower losses among credit card and mortgage borrowers, rather than new business, but the bank was able to recapture money it had earlier set aside. It released $1.8 billion from reserves, compared with a release of $1.45 billion in the second quarter.

On a noncash basis for the quarter, the bank reported a loss of $7.3 billion because of a $10.4 billion write-down in the value of its credit card unit, attributed to federal regulations that limit debit fees and other charges.