The "Nothingburger" Defense Gets Destroyed
Courtesy of Karl Denninger, The Market Ticker
Janet Tavakoli: This is the biggest fraud in the history of the capital markets. And it’s not something that happened last week. It happened when these loans were originated, in some cases years ago. Loans have representations and warranties that have to be met. In the past, you had a certain period of time, 60 to 90 days, where you sort through these loans and, if they’re bad, you kick them back. If the documentation wasn’t correct, you’d kick it back. If you found the incomes of the buyers had been overstated, or the houses had been appraised at twice their worth, you’d kick it back. But that didn’t happen here. And it turned out there were loan files that were missing required documentation. Part of putting the deal together is that the securitization professional, and in this case that’s banks like Goldman Sachs and JP Morgan, has to watch for this stuff. It’s called perfecting the security interest, and it’s not optional.
Now you getting it folks?
This is NOT a "minor clerical error."
It is NOT correctable at this point in time.
These securities are FATALLY DEFECTIVE. The parties with the legal duty to check these facts did not do so.
It gets worse.
Most people don’t understand that these securities were (and are) typically "sold forward."
That is, the bank doesn’t take its own money, loan it to homebuyers, and then take the notes and securitize them, selling the pieces to recover its money.
No, what happened then (and still does today) is that these MBS are sold first and filled after!
That is, a pension fund calls up Vampire Squid Bank and says "I need $100 million of MBS that pay a 5% coupon."
Vampire Squid Bank takes the $100 million dollars and then proceeds to securitize loans.
But in doing so it took the $100 million on a prospective pooling and servicing agreement in which they agreed to provide loans of a certain credit quality and specification to the buyer.
So it’s much worse than "we didn’t know." It’s "we took the money, then we build the security and didn’t look, even though we told you we would."
There’s no fix for this without something like an RTC structure. You have to put these loans back on the securitizers, and let them (if they can) stick them back on the originators.
If this blows up the big banks (and it will) then use Dodd-Frank’s "Resolution Authority" and take them into receivership and resolve them.
I’ve been pounding the table on this for three years. Everyone wants to make this sound "complex." It’s not, as Janet described. It’s actually quite simple – the investors were swindled. Period.
Just like they were in the 1990s by the exact same scam, but in a different sector.
