Wall Street Law Blog

The Subprime Con Game - a brief history of audacious greed.

Subprime's fate was sealed from the start. 

 By Brett D. Sherman 

What made subprime lending work on a mass scale was the easy credit that Wall Street (and the federal government) wanted and the Fed delivered. Unconscionably low interest rates.

The true bubble of this decade wasn't in home prices, and it wasn't in home mortgages. The bubble was a credit bubble. The Fed dropped its benchmark rate to historic low levels and held rates there for longer than ever before.  Financial institutions were up to their necks in cheap money.  So much cheap credit was available for so long that, among other effects, (a) competition among financial institutions for cusdrove interest rates down for all types of loans (everything from credit cards to commercial and residential mortgages), and (b) .  

interest rates on all types of yields on  and eager to lend.

Excess availability of cheap money meant banks had lots of money to lend.  So much cheap credit was available that , in fact, that it was hard to find profitable uses The subprime explosion happened because subprime lending with money so plentiful fit perfectly into Wall Street's securitization model. By expanding from prime loans to subprime, Wall Street had all of the mortgages it could handle (for a few years anyway), and the mortgage-backed securities machines were humming all over Manhattan. 

From the beginning it was clear that the dramatic increase in subprime lending had to end badly. Now, we know what you're thinking. You were about to say that we are engaging in a fraud by hindsight analysis. No way. The subprime boom was a big part of the lend to securitize model. In " lend to securitize," loan quality was virtually irrelevant. Loan volume became all-important. When volume is king and quality a peasant, and lenders are giving adjustable rate mortgages to people with bad credit histories (people who almost by definition have had serious problems paying bills in the past), there absolutely, positively must come a day when interest rates rise, where home inflation slows, when the whole flawed system implodes. 

This is no hindsight argument. This is common sense. Believe us, Wall Street understood the limited shelf-life of subprime from the very start. The subprime model helped investment banks make a fortune while interest rates remained at or near historic lows and home prices were rising at an unprecedented pace. But this is a dynamic economy.  Interest rates could not stay low forever. They never do. And when the Fed did raise rates in 2004, it took about a year to a year and a half before the brakes really started to slow down the housing market. Once prices leveled off, and then started to fall, the subprime market was done. 

 It was always just a matter of time.

Testing the "Tsunami" Defense (Wall Street saw the wave coming); encore post

THE PERFECT STORM / TSUNAMI DEFENSE TO SUBPRIME-BASED CLAIMS CANNOT WITHSTAND SCRUTINY...

• Former Wall Street Executive Jones:  "It was just the perfect storm. A financial Tsunami if you will. Everything went wrong at the same time. I feel terrible for our former employees and shareholders." 

• Former Bear Stearns CEO Alan Schwartz:  "I can't think of anything we could have done differently (paraphrasing the sworn testimony on Capital Hill).  

I.  RULE NUMBER ONE - EXPECT THE UNEXPECTED     

Good risk management prevents the consequences of being horribly wrong about any investment, business strategy, business model, or other business decision from producing losses that cripple or kill a company.  Put another way, a company with strong risk management should withstand any economic shock.  

Put another way, risks must be controlled. No event (or series of events) - regardless of how unexpected, unanticipated, unforeseen, or unprecedented the event(s) might be - should be capable of producing a negative outcome of such magnitude that the event(s) brings the walls of your company crashing down.  

By any event, we mean any event - including a "perfect financial storm" or "insurmountable tsunami" that former and current Wall Street CEO's like to proffer as an excuse for the damage they caused to their companies through their own irresponsibility, incompetence, and fraud. 

If you are wondering how to avoid a disastrous outcome even if the direct cause is entirely unforeseeable, you miss the point.  It is, by definition, impossible to avoid an unforeseen event if and when it crosses your path.  If you bet heavily on the Ruble, and Russia decides to default on its debt (as if that could ever happen), then Russia will default on its debt even if you were "positive" a Russian default was impossible.  Similarly, if an earthquake destroys your office building and wipes out your company's computer servers, there aint much you can do about it (except evacuate quickly).  

II.  YOU CAN NEVER PREDICT THE FUTURE WITH ANY DEGREE OF CERTAINTY

The future is impossible to predict (except, I hope, for Madame Sozuka - the psychic who read my palm at a bat mitzvah last year and assured me that I will win the lottery in 2010).  There are too many variables for any expected outcome to ever be certain.  

Wars, weather, famine, traffic accidents, food poisoning, bad orange crops, good orange crops, devaluation of the ruble, oil surpluses, oil shortages, terrorism, an unprecedented housing boom, a nationwide housing bust..., the number of unforeseen, unprecedented, unexpected, unanticipated factors that influence future outcomes is always infinite.   

The idea of risk management is to accept that unexpected events and outcomes - regardless of what causes them - happen all the time.  Sometimes an event is totally unforeseeable (the 9/11 terror attacks), and sometimes an event can be unexpected to some people, but by no means unforeseeable (the housing crash).  Regarding 9/11 - I am a very fortunate survivor from the South Tower of the WTC, 65th floor - I am only suggesting that the attacks were unforeseeable to businesses.  Whether the government should have foreseen the tragedy is another matter.  

Of course, no CEO could have prevented 9/11, or protected those who were injured or killed that day. But any company with effective risk management would have assured that the company itself would survive.  How?  One way was to be certain that vital data, like confidential client information, was backed up on a computer server hundreds or thousands of miles from ground zero to prevent the loss of crucial information for any reason. Similarly, countless risks (such as loss of property) could have been, and in most cases were, insured.  Insurance is one of the most important forms of risk management. 

  

III.  CONVENTIONAL WISDOM IS NO DEFENSE    

The CEO of any financial institution who would stake the company's future on "conventional wisdom" that a national crash in the housing market can't happen is worse than a bad risk manager.  The words incompetent comes to mind.  

Conventional wisdom is no basis on which to bet the ranch. Even if there had not previously been a national housing slump (a point of some debate), all that would mean is that there hadn't been one yet.  Remember, there also had never before been housing growth that even approached the explosion in home demand, appreciation and ownership that occurred between 1996 and 2005.  Historic booms are often followed by historic busts.  Ask the former paper millionaires in Silicon Valley who had to move back in with their parents after 2000.  

IV.  ON STATISTICS AND  APPLES v. ORANGES         

A few more thoughts  about the bad logic of "we thought we were ok because the national housing market never falls" argument -

1) According to our information, mortgages that backed CDO's were not representative of the entire housing market.  By 2006, California contributed up to a third of the mortgages behind most CDOs. 

There have been many housing bubbles and busts in California - including a major bubble in the early 1990s. Florida was another major source of bad mortgages.  Like California, Florida has seen its share of booms and busts.  The point is this - crashes in home values in just a few core housing markets where busts are far from unprecedented would have caused mass defaults of subprime mortgages even if the rest of the country was fine.

 2) What goes up must come down.  

           a) There had never before been anything resembling the pace of annual home appreciation or  jumps in home ownership before the housing bubble.  

           b) Before the boom computer models that based projections on historical data would have laughed at you (and it is hard to get a computer to laugh) if you input the real data that followed.   ***Here is a challenge - anyone who produces a pre-2001 projection that shows the housing market growing even half as much as it did will receive honorable mention in a future post and we will also wash your car(s).  

           c)  Before the bubble, home loans were extended solely to creditworthy people.   Even pre-bubble subprime loans required extensive documentation - paystubs, banks accounts, proof of net worth, etc. - to satisfy a lender that a subprime borrower was a reasonable credit risk (i.e., MANY applicants were rejected by subprime lenders before the bubble).  During the bubble, the paradigm shifted.  The old "loan quality" model - which worked pretty well for hundreds of years - was abandoned.  The new "lend to securitize" model evolved to the point where loan quantity was the only real concern. 

SO WHAT?  So the mortgage market changed so dramatically that there had to be a massive impact on the housing market (and there was).  The pre-bubble mortgage industry model required applicants to prove to lenders that the loan would be repaid.   By the peak of the bubble, there was zero real assessment of credit risk.  

Because there indisputably were seismic changes in the mortgage and housing markets during the bubble years, pre-bubble statistics for mortgage default rates, home ownership rates, and real estate appreciation rates were useless.  Pre-bubble historical data - like stats that supposedly proved the national home mortgage market never falls - was as relevant to measuring risk during the bubble as the temperature in Alaska is to a blogger planning a trip to Hawaii.  In sum, we're talking about comparing apples to oranges.

V.  ABOUT THOSE NINJA LOANS and FRAUD - PLEASE EXPLAIN  

A simply cannot guard against default risk and extend credit to subprime borrowers without obtaining a shred of paper from which to analyze default risk confirm when they have no historic data on mortgage defaults was an improper basis for computing projections of default rates on low documentation and no documentation loans.  

Is there any way to explain liar loans or NINJA  loans other than that those find more borrowers for the securitzation machines at firms like Merrill Lynch, Bear Stearns and Lehman brothers.  We can't think of one.  Unless there is another plausible explanation, we find it impossible to conclude that subprime mortgage lenders gave home loans to countless families that were almost certain to default.  This is fraud by the lenders and fraud by the investment banks that turned junk mortgages into MBS and CDO's.  

And did we mention that Bear Stearns and Merrill (and maybe Lehman) actually owned some of the largest subprime lenders that placed people in these fraudulent loans?  Did we mention that Wall Street provided the money for almost all other major subprime lenders (New Century is a name everyone should remember).  Wall Street investment banks are responsible for a whole lot, no matter what "pundits" may say.  

By Brett Sherman

THANKS FOR READING - AS ALWAYS, WE WELCOME ALL COMMENTS - POSITIVE AND NEGATIVE