Wall Street Law Blog

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

On Housing, Highly Leveraged Assets, and Interest Rate Changes (Greatest Hits Volume 2)

A brief bit of common sense.

Warning. We are not about to offer any earth shattering insights in this short post.  However, when the world of finance reaches levels of complexity and duplicity capable of causing the most significant financial crisis since the Depression, simplicity and common sense are often relegated to the far back burner. So, we decided to pour ourselves a bowl of simple facts about housing.

Specifically:

The housing market is hyper-sensitive to interest rate changes.

For a substantial majority of homeowners, houses are their most leveraged assets.  In other words, most people actually own very little of their houses.  For the most part, the bank or investor that owns our mortgage also owns most of our home.

Interest rate changes so significantly impact housing because interest rate level often determines what type of home a family can afford.  Falling rates lead to refinancings and even downward resets of adjustable rate mortgages.  Most significantly, there is higher demand for homes and, eventually, higher prices.  When credit is cheap and easy to get, homes are more affordable (at least in the short run).  Thus, low interest rates generally equals more homeowners and, by the way, low rates of default and foreclosure.

When rates go up, however, refinancings plummet, home sales (and, eventually, prices) decline because the higher cost of borrowing lowers buyer demand.  Adjustable rate mortgages reset upward.  The segment of the home-owning public that chose adjustable rate mortgages to stretch for houses that may have been unaffordable with traditional fixed rate mortgages can find themselves unable to make their new, higher monthly mortgage payments.  Thus, when interest rates increase, defaults and foreclosures follow suit.

As we said, nothing new here.  All common sense.  Which begs the question - who in their right minds would base an entire industry (subprime lending and, by extension, mortgage backed securities) on the premise that there would not be high default rates on ultra-low interest adjustable rate mortgages to people with poor credit histories succeed after the cycle turned and interest rates climbed back toward historical averages (i.e., when rates started to trend toward the mean)?  Who would make this bet?  Was anyone be surprised that bad credit borrowers would default in droves once their low initial monthly payments increased by hundreds of dollars a month?

These are not hard questions now, and they weren't hard questions in 2002 or 2003 or 2004, 05, 06, or 07 either. Wall Streetdrove the subprime lending explosion. Wall Street understood interest rate cycles. Wall Street knew rates would rise.  Wall Street knew defaults and foreclosures would spike. Wall Street didn't care - the money was rolling in.  The fact that Wall Street itself got so badly burned was the product of greed and knowingly reckless risk-taking.

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.