Wall Street Law Blog

Bear Stearns Planned to Dance Like Former Citi CEO Chuck Prince.

The plan? Milk as much profit as possible for as long as possible from the mortgage securitization business.

The Method? Keep finding borrowers for home mortgages as long as there were suckers willing to buy ABS CDOs. 

 

 

 

A sucker born every minute...

 

INTRODUCTION

On May 25, 2005, Wall Street trade paper "Asset Securitization Report"  published an article called CDO machine? Managers, mortgage companies, happy to keep fuel coming.  

 The article, written by reporter Allison Pyburn, describes a very interesting (and disturbing) panel discussion at the 2005 Bear Stearns Global Credit Conference. The panel talked about CDOs and the mortgage market.

Panelists were, at the time, all senior executives from Bear's mortgage securitization and trading businesses.  According to the article, they included: (a) Scott Eichel from the Bear Stearns Collateralized Mortgage-Backed Securities group; (b) Tim Kolterman from the Bear Stearns Credit derivatives group (c) Jeff Zavaterro from Bear's CDO group. 

Please note that no one from Wall Street Law Blog was at the 2005 conference.  Nor have we managed to obtain a transcript of this particular panel discussion.  

Based solely on our reading of the article, we believe that panelists were surprisingly candid about Wall Street's plans to squeeze profits from the CDO machine, regardless of consequences, until demand from investors evaporated.

Indeed, per our reading, the Bear mortgage guys were saying stuff that sounded a lot like Citi's former CEO Chuck Prince.  Speaking about the risks of the CDO market, Prince infamously said his company would keep dancing until the music stopped.  

 

Keeping the The CDO Machine Humming

In 2005, Scott Eichel was a senior managing director at Bear Stearns and one of Bear's top mortgage traders.  Ms. Pyburn reported these comments from Eichel in her article:

There is a machine going...

There is a lot of brain power [working] to keep this going...

 

Pushing the Envelope

 

 Ms. Pyburn's article attributes the following quotes to Tim Koltermann, then a managing director/principal in the Bear Stearns credit derivatives group: 

Until there are credit issues, we're going to continue to push the envelope... 

There is so much demand for real estate CDOs, I don't think we'd pull back [production] at all...

 

And then, according to the article, there was this comment from panelist Jeff Zavattero, then a senior managing director in Bear's CDO group:

 

As long as there are investors willing to purchase the product, the market will continue to grow more and more levered...   And demand right now is very high.

 

Like Chuck

 

Wall Street Law Blog's interpretation?

Sounds an awful lot like Bear Stearns CDO experts were, in essence, saying the same thing as Chuck Prince:  The music is still playing and we are still dancing.

 

WE INVITE ANY READER WITH FIRST-HAND KNOWLEDGE OF THE PANEL DISCUSSION TO COMMENT ABOUT OUR INTERPRETATION - IF WE ARE RIGHT, LET US KNOW.  IF WE ARE WRONG, SET US STRAIGHT.

By Brett Sherman, The Sherman Law Firm

Bear Stearns, Merrill Lynch Expected Housing Disaster (our all-time most viewed post; first published Oct. 2010)

"These aren't simply the comments of some junior level analysts" Lee Sherman, securities litigation consultant

the question of foreseeability asks at what point in time senior management at these investment banks should have foreseen the possibility of the disasters that eventually befell them.

the significance of these reports is that they conclusively establish the views of top economic analysts at Merrill Lynch and Bear Stearns. Whether plaintiffs' attorneys prove that senior management at the two investment banks actually read the reports ought to be immaterial.

UPDATE: Because Bear Stearns Execs' FCIC testimony largely focused on allegedly unforeseeable, "unprecedented" market forces to defend their lack of competent management, Wall Street Law Blog decided to re-post one of our favorites. 

Long before their respective employers ceased to exist as independent companies, former Merrill Lynch Top North American Economist David A. Rosenberg and former Bear Stearns Chief Equities Investment Strategist Francois Trahan published research reports with explicit warnings about asset and credit bubbles in the U.S. housing and mortgage markets.

As early as August 2004, Mr. Rosenberg, Chief Economist at Merrill Lynch for North America, published a detailed analysis regarding the precarious state of the American housing market. Rosenberg warned that there could serious problems ahead in an Economic Commentary entitled: "Housing: If not a Bubble Then an Oversized Sud."

Former Bear Stearns Chief Equities Investment Strategist Francois Trahan first published a report that raised serious questions about housing and real estate investments in a May 2005 report called "REIT all About it." Trahan and his team at Bear Stearns followed their 2005 report with publications in 2006 that explicitly warned about the difficult future facing the U.S. housing market and even raised the possibility of a global credit crisis. The 2006 Bear Stearns reports definitively described the housing market as an unsustainable "bubble" and further cautioned that the term bubble was not one the Bear team used lightly.

It was not until 2008 that overcommitments to mortgage-backed securities (a byproduct of the housing boom), CDO's and related products tied to residential and commercial mortgages caused Merrill Lynch and Bear Stearns to suffer backbreaking losses so severe that Merrill sold itself to Bank of America and Bear Stearns narrowly avoided bankruptcy with a Fed-assisted fire sale to JP Morgan.

--Background

Along with a number of other Wall Street firms, Merrill Lynch and Bear Stearns lost tens of billions of dollars because of their firms' respective commitments to securities backed by mortgages in the "subprime" and "Alt-A" categories. Subprime and Alt-A residential mortgages are considered risky loans because they carry higher default rates than "conforming" mortgages (also called prime mortgages, or agency-quality mortgages). Typical subprime or Alt-A borrowers cannot qualify for a conforming mortgage due to factors that include, but are not limited to, bad credit histories, personal bankruptcies, insufficient income, and the inability to make sufficiently large down-payments.

--Significance of the Merrill Lynch and Bear Stearns reports

While the ultimate import of the reports remains to be seen, The Sherman Law Firm says there is no doubt that the documents are crucial to the touchstone litigation element of foreseeability. "In a litigation sense," said Managing Attorney Brett Sherman, "the question of foreseeability asks at what point in time senior management at these investment banks should have foreseen the possibility of the disasters that eventually befell them."

According to The Sherman Law Firm, the reports at issue may show that senior management at Merrill Lynch and Bear Stearns should have foreseen the liklihood of a looming financial crisis with ample time to permit business model shifts that may have prevented crippling losses and, ultimately, the end of these former pillars of Wall Street as independent companies.

--Likely Defenses and Response

When confronted with documents like the reports at issue, senior managers may respond that they cannot be expected to read the huge volumes of research produced by their companies. The view of Brett Sherman, securities fraud lawyer and Managing Attorney of The Sherman Law Firm is that "the significance of these reports is that they conclusively establish the views of top economic analysts at Merrill Lynch and Bear Stearns. Whether plaintiffs' attorneys prove that senior management at the two investment banks actually read the reports ought to be immaterial."

Litigation strategist and recently retired attorney Lee Sherman - a frequent consultant to The Sherman Law Firm, former municipal court judge, and founding partner of a top Philadelphia area firm - concurred. "These aren't simply the comments of some junior level analysts," Sherman said. "I mean, we're talking about the Senior North American Economist of Merrill Lynch and the Chief Equities Strategist at Bear Stearns. Any claims by their CEOs and the other senior decision makers at these banks to the effect that they should not have been well-aware of the opinions and outlooks of the top economic and market experts at their companies are simply not credible." 

Lee Sherman continued: "Remember, from mid-2004 until the subprime crisis had clearly arrived, the Fed steadily raised interest rates. For lesser quality borrowers, most of whom had adjustable rate mortgages, higher interest rates meant higher default rates. To say the least, there was great uncertainty as rates were rising about where we were headed. Then, the housing market slowed. I'm talking about 2005 now, before home values really fell off the table. It strikes me as incredible that the kinds of warnings in these reports were out there for years, yet seem to have gone unheeded."

The Sherman Law Firm represents investors in securities fraud / investment loss claims of all types, including claims against investment banks for losses related to mismanagement and other misconduct during the housing and credit bubbles.

Brett Sherman, The Sherman Law Firm

Investment Banks in Moving Business? Not quite.

Securities fraud, 10b-5: 

Material Misrepresentation, 

a textbook example.

• WALL STREET BANKERS SAID THEIR COMPANIES WERE IN 'THE MOVING BUSINESS, NOT THE STORAGE BUSINESS.'  NOT QUITE.

Translation?  For so many years, investment banks thrived by transferring risky assets off their balance sheets as fast as they could.  During the housing and credit bubbles, Bear Stearns, Lehman Brothers, Merrill Lynch, Morgan Stanley and others entered the storage business in a big way.  Then, one by one, the investment banks died.

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• Intermediary Role Abandoned

For the majority of its successful run, the Wall Street investment banking model was based on a simple rule. Investment banks were NOT investors. They were intermediaries. They brought sellers and buyers together. This means that investment banks did not hold risky securities on their balance sheets any longer than was absolutely necessary. In "Wall Street-speak," i-banks liked to say they were in the moving business, NOT the storage business. 

During the credit / housing bubble, most of the former investment banks got into the storage business in a big way. They drank their own cool aide, buying high risk mortgage-backed securities, cdos, and related instruments for their own proprietary trading accounts. The investment banks stopped acting as intermediaries, and started acting as buyers and sellers. This was one of two major reasons why Bear Stearns, to cite one example, wound up with a balance sheet clogged with illiquid toxic waste. 

The other reason Bear Stearns ended up with a huge volume of mortgage-backed securities and related products was greed. Bear Stearns was so determined to milk every penny of profit from the bubble that it built up a massive inventory of mortgages to feed into its securitization machine. When the market froze, Bear Stearns was stuck with tons of loans. Bear Stearns also had a huge portfolio of mortgages it securitized but could not sell before demand for mortgage-backed securities completely disappeared. In short, Bear Stearns was left holding the bag. 

The principle of risk transference required the former investment banks to get rid of virtually all securities (except securities that are considered "cash equivalents") as rapidly as possible. Once the investment banks got rid of the mortgage-backed securities they produced - and collected fat fees - they no longer had to worry about default. The risk of default would be fully transferred to investors. On Wall Street, this is how it was supposed to work. At some point, the enormous fees from acting as an intermediary were insufficient to satisfy Wall Street executives. If Wall Street had stayed in the moving business, the meltdown of the investment banks would have been far less severe. Instead, investment banks violated their cardinal rule. They got into the storage business in a big way, and we all are paying the price.

SEC Shocker? Purpose of securities laws is to prevent fraud. (encore post)

Current and former Wall Street execs continue to trot out lots of euphemisms and jargon-filled explanations (we really like "unprecedented dislocation") for their actions (and inaction) during the great credit bubble of the last decade.  The idea is to swirl enough smoke to cover enough secrets and lies to escape real responsibility (like prison and paying $$$$$ to their victims) for unlawful conduct that caused the global financial / credit crisis.  

Wall Street Law Blog has been on a quest for clarity.  So we paid a visit to the SEC website to see if we could at least explain the motives of Congress for enacting the main Federal securities laws way back in the 1930's.  We wanted to understand why the 1933 and 1934 Acts were passed.  

We wondered - Could there possibly be a simple explanation in words commonly used and understood by speakers of the English language?  If so, could such an explanation be used to blow the smoke away?  Is there a way to use the securities laws themselves to judge Wall Street's conduct by a standard all of us can understand? 

Lo and behold... the answer is yes.  As it happens, public companies cannot make material misrepresentations (they can't lie about important stuff).  The idea is that companies commit securities fraud when they deprive investors of the kind of information needed to make informed investment decisions.

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THE SEC ACTUALLY CALLS THE CONCEPT SIMPLE AND STRAIGHTFORWARD!  SO, WITHOUT FURTHER DELAY, HERE IS THE SEC DESCRIPTION:

  

"The laws and rules that govern the securities industry in the United States derive from a simple and straightforward concept: all investors, whether large institutions or private individuals, should have access to certain basic facts about an investment prior to buying it, and so long as they hold it. "

* * *

"To achieve this, the SEC requires public companies to disclose meaningful financial and other information to the public. This provides a common pool of knowledge for all investors to use to judge for themselves whether to buy, sell, or hold a particular security. Only through the steady flow of timely, comprehensive, and accurate information can people make sound investment decisions."

* * *

To meet the SEC's requirements for disclosure, publicly traded companies "must tell the public the truth about their businesses... and the risks involved in investing."

http://www.sec.gov/about/whatwedo.shtml

Brett Sherman; The Sherman Law Firm

Black Swans*, Fraud by hindsight, and Mortgage-Backed Securities. (greatest hits collection)

Events are not unforeseeable merely because they are unprecedented... 

One of the primary arguments upon which Wall Street firms rely to defend themselves from securities fraud allegations is something like this -

We could not foresee the collapse of the housing market, and therefore any allegations of fraud are merely impermissible claims of "fraud by hindsight." 

The fraud by hindsight defense is pretty much automatic in securities fraud cases.  The meaning of the defense is, as it sounds, that there is no fraud if the alleged deceit can only be discerned after the fact. Hindsight is, after all, 20/20.  The legal issue is foreseeability.  

In financial crisis litigation, Wall Streeters insist that their actions (like marketing CDOs stuffed with subprime mortgages as ultra-safe investments) are not fraudulent because banks that sold toxic waste allegedly could not reasonably foresee the housing and credit bubbles or the consequences that would rain down when the bubble inevitably ruptured.

Further, Wall Street execs insist that mass defaults of subprime mortgages were not foreseeable simply because (they contend) the U.S. has never experienced a nationwide housing slump.  Presumably, these same Wall Street executives would argue that they cannot foresee the possibility that they will one day die because they haven't yet been dead.*     

OK, Wall Street:  From 1895 through 1996 home price appreciation very closely corresponded to the rate of inflation (roughly 3% per year).  From 1995 through 2006 alone - even after adjusting for inflation - housing prices rose by more than 70%.  That type of housing growth certainly is unprecedented.  Why shouldn't such an unprecedented "up-cycle" in the housing market end in an unprecedented way?  The answer is that there is no reason.  

In fact, the housing boom was so far out of line with any previous housing cycle that one could easily argue that a reasonable economist, real estate professional, or CEO of an investment bank should have anticipated that a the story of housing's record-smashing growth would eventually come to a very ugly ending.   

The fact is that a huge number of respected experts from private industry and academia publicly warned of a huge housing bubble that could only end badly.  Certainly, many others kept quiet, wary of rocking the boat while the profits poured in, even though they too foresaw the end of the housing bubble and predicted its devastating impact on mortgage-backed securities.  

The fact is that, once the MBS industry became dependent on subprime mortgages, an eventual disaster was unavoidable.  Until the bubble popped, however, Wall Street was raking in far too much money to worry about the ramifications of the immense risks banks were taking.  

Fraud by hindsight is inapplicable in most financial crisis litigation.  Why?  Because choosing to ignore the apocalypse is far different from failing to foresee it.

      

*Inspired in part by the writings of Nassim Nicholas Taleb.

By Brett Sherman, The Sherman Law Firm

Financial Disaster, Foreseeability, and Frankenstein (greatest hits)

Mortgage securities rise and fall, a Story Mary Shelley would love...

Confluence is a great word.  It means, in essence, a "coming together."  Most often, the term confluence is used in connection with rivers.  Probably the most famous confluence of rivers is in Pittsburgh, where three major American rivers eventually merge somewhere around the Steel City's semi-famous (at least to geography buffs) golden triangle.  

One gold star goes to the first person who can name the big three rivers.  Comments are open below.  But we digress.

The confluence discussed in this post has to do with financial disaster, not rivers. This piece is about a very rare confluence of economic conditions, electrified by almost unbelievable opportunism and greed by investment banks and others, that pushed the world into the most serious financial crisis since the Great Depression.

Wall Street executives frequently blame the financial crisis on events that were impossible to foresee during the years they pocketed multi-million dollar paychecks and, at the same time, laid a foundation for disaster.  Former CEOs invoke terms like hundred year storm, or perfect storm, or act of god when they deny responsibility for jeopardizing the entire world economy.

Wall Street money is behind the low documentation, low quality subprime loans that defaulted en masse when interest rates rose and home prices stopped their race to the moon.  Wall Street leveraged itself to the hilt to enhance return on equity and, by extension, executive compensation.  The subprime crisis, RMBS crisis, and - ultimately - the credit crisis were foreseeable events.   They were, in fact, actually predicted by more than a few folks.  

If there was a hundred year storm, it was the confluence of unique economic conditions that Wall Street investment banks exploited to fuel the housing bubble.   

    *** 

Consider what happened to open the door that, in the end, was kicked in by Wall Street Greed (and where have you gone Gordon Gecko?) -

• First, the end of the internet stock bubble followed by the humongous shock to U.S. economy from the September 11 terror attacks resulted in the Fed taking interest rates to historic lows, and holding rates there longer than ever before;  

• Second, low interest rates meant Treasury yields were so low that pension funds and other major institutional funds needed investment grade instruments with significantly higher returns than United States bonds in order to avoid invading their funds’ corpus (principal) to make required payouts (expansion on this topic requires its own blog post).  For purposes of this post, it is only necessary to understand that fixed-income fund managers restricted by law or charter to investment grade securities were desperate for yield.  This situation, if not unprecedented (I am a lawyer, not an economist) is extremely unusual.  

 

• Third, Again thanks to low rates, money was so easy and cheap to borrow - especially for banks - that it was practically free.

 

• Fourth, Cheap money (low interest rates) almost always is manna for the housing industry. Easy credit and low interest rates (and a host of similar factors too long to spell out here) allowed people to afford monthly mortgage payments on homes they never thought they would be able to afford. Housing went through the roof, and people accumulated amazing amounts of home equity (sometimes called found money) due to the increasing value of their homes. In short, most individuals could tap into the wealth produced by their homes to avoid possible mortgage delinquencies (and to put in pools, surround sound, etc.).

• Fifth (and you thought the confluence of three rivers in Pittsburgh was impressive), broker-dealers like Bear Stearns and Lehman Brothers were very experienced with a set of financial products that they believed they could market and sell to “greater fools” – especially all of those fund managers desperate for yield.  These products – perhaps you’ve heard of them - have names like mortgage-backed securities (MBS) and collateralized debt obligations (CDOs).

• Sixth, If Wall Street excels at anything, it is spotting an opportunity to exploit others for profit. In this case, subprime borrowers, many of whom would eventually face disaster, and institutional fund managers two classes of "fools."  As long as Wall Street banks could get investment grade ratings with securities made from pools of less than investment grade quality mortgages. Enter the quants (actually, they had been working on this stuff for a while already). With complex mathematical computer programs, and a lot of money in "fees," investment banks were able to bribe, err, "collaborate with" the credit ratings agencies to obtain the much needed "investment grade" stamp of approval.  

Now, all the pieces were in place and the money train pulled onto Wall Street.  It arrived regularly for about five years.  And then Frankenstein's Monster came along.  Read about that in part II.

By The Sherman Law Firm, Contact us

 

Smoking Gun? Mortgage Meltdown Predicted by Bear Stearns in 2005-06.

Updated 9/14/09

THE INTERVIEW THAT FOLLOWS IS SCRIPTED (part of our forthcoming screenplay, or not). NEVERTHELESS, THE UNDERLYING FACTS AND CONCLUSIONS ARE 100% GENUINE. 

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"[H]ousing activity is only just beginning to cool, and... there is no end in sight for a year or two."

-Francois Trahan (Former) Chief Investment Strategist, Bear Stearns

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Q:  OK, I can't stand the suspense.  So who sounded alarm bells about the end of the housing bubble, credit bubble, the world economy and so on?

A:  What if I told you it was Francois Trahan, Kurt D. Walters, Caroline S. Portney.

Q:  I'd ask you who those people are. [Pauses, gets no response, continues...]  OK, Who are Trahan, Walters, and Portney?

A:  Senior Wall Street Research Analysts.  In fact, Trahan, at the time, was a highly regarded Chief Investment Strategist for a major investment bank.

Q:  [Yawn].  You've told us about your "smoking gun" research reports before.  Deutche Bank.  HSBC.  Even Merill Lynch. 

A: Ah, but this time is different.  This time I've seen the evidence.

Q: OK, ok - enlighten us.

A: BEAR STEARNS.

Q:  Come Again?    

A:  Bear Stearns.  In a September 13, 2006 issue of the Bear Stearns "Investment Strategy" research report called -

"RAMIFICATIONS OF A U.S. HOUSING SLOWDOWN FOR EQUITIES," 

Chief Strategist Trahan and his colleagues emphasized that they had identified a housing bubble in 2005.  That report was called "REIT ALL ABOUT IT."  

Trahan described the growth of the housing bubble in detail, and concluded with conviction that the bubble was deflating.  Finally, Trahan and company predicted possible dire consequences for the global economy.

Q:  And this is important, why?

A:  Because these are BEAR STEARNS RESEARCH REPORTS.  Because they are from 2005 and 2006, when Bear continued to report record profits from selling junk mortgage-backed securities while its own senior people were (no pun intended) very bearish on the housing and mortgage markets.  The 2006 report says, among many other things-

"[H]ousing activity is only just beginning to cool, and... there is no end in sight for a year or two."

That's on page 6, by the way. The report also warns that

(a) rising interest rates have long been an indicator of a coming down-cycle for housing, and 

(b) the expected deflation of the housing bubble would drag down the mortgage market, restrict liquidity, and have serious negative impact on the U.S. economy and the global economy. 

THE BEAR RESEARCH REPORTS ARE FLASHING NEON LIGHTS.  THEY SIGNAL THAT BEAR KNEW IT WAS APPROACHING THE END OF THE LINE FOR ITS MORTGAGE-DRIVEN BUSINESSES. I REPEAT, THE REPORTS PROVE THAT FAILURE OF BEAR'S BUSINESS MODEL WAS FORESEEN BY BEAR STEARNS. 

Q:  OK, I get it.  But aren't the opinions of a few Bear employees just that?  You don't expect the CEO to read every research report, do you?

A:  Not sure.  Maybe.  Maybe not.  But I certainly believe that the senior officers and the Board of Bear Stearns had the obligation to, at the very least, be familiar with the opinions of Bear's Chief Equities Investment Strategist regarding current state of the world economy, and the Chief Strategist's views about the immediate future.  

Q:  That sounds good.  You have me 95% convinced.  But you're missing the one thing that would lock it up for me.

A:  Really?  What's that?

Q:  If you could only show me on the report some sort of adoption and approval by Bear Stearns itself, that would do it.  I mean, that would tell me that the report is the opinion of Bear Stearns and not just Francois Trahan and his team.  You know what I mean?

A:  Sure. I understand.  

The best I can do is here, on page 14, where the report states that it "has been adopted and approved for distribution within the United States by Bear, Stearns & Co. Inc. for its and its affiliates customers."

 ***

By Brett Sherman 

FOR A COPY OF "RAMIFICATIONS OF A US HOUSING SLOWDOWN...", CLICK HERE AND LEAVE YOUR NAME AND A FAX Number OR EMAIL Address, or call The Sherman Law Firm.