The World's Largest Banks Are Now Trapped

by Gary North
by Gary North

The subprime mortgage crisis constitutes the worst banking error in my lifetime. Nothing else comes close.

It has visibly begun to unravel. The European Central Bank on Tuesday, December 18, opened a line of credit of $500 billion to commercial banks.

The Federal Reserve System under Greenspan was the prime instigator. It forced down short-term interest rates by supplying the overnight bank-to-bank loan market with sufficient liquidity to drop the rate to 1%. This encouraged banks to make loans at low rates.

These loans were short-term loans. The borrowers then went out and bought long-term assets: bonds and mortgages. This is known as the carry trade. The pioneering central bank in the carry trade was the Bank of Japan. It lowered short-term rates from about 7% in 1990 to just above zero in 1999, where it stayed until mid-2006. But the yen is not the world's reserve currency. The U.S. dollar is.

Through a complex combination of government-licensed monopoly (Federal Reserve System), implied government safety nets for mortgage investors (Fannie Mae and Freddy Mac), creative finance (asset-backed securities), and credit-rating services that were either stunningly naïve or compensated in ways not beneficial to objective analysis, brokers marketed a series of high-commission, fast-sale investment packages that sold like hotcakes until August, 2007. Then, without warning, they stopped selling.

These packages had sold all over the world. European banks got in on the action, marketing these investment packages to their clients.

Americans have seen all this before: the savings and loan crisis of the 1980's. The S&L's were borrowed short (depositors) and lent long (home buyers). Then the rules changed. The government in 1980 abolished Regulation Q, which had limited the rate of interest that banks and S&L's could pay to depositors. A rate war began.

The government had little choice. Money market funds, which had been invented around 1975, were not under the banking system. They were not bound by Regulation Q. They were paying high rates on short-term money. Depositors were pulling funds out of banks and buying money-market funds. The banks were hemorrhaging.

As soon as the banks could compete with money market funds, the S&L's were doomed. Their money was tied up for 30 years. Depositors (legally, owners) were cashing in. It was It's a Wonderful Life without the honeymoon money.

Then Congress stepped in with its own honeymoon money: about half a trillion dollars, if you count interest on the national debt.

That was the test of the mortgage carry trade. The system failed. We are now in the midst of another similar test. It is much larger. It is worldwide. It is affecting capital markets that were once far-removed from mortgages.

MAKING HAY WHILE THE SUN SHINED

You have heard of NINJA loans: no income, no job or assets. These were loans made by local mortgage brokers to first-time home buyers. Poor people were offered loans at rates far lower than conventional loans. The brokers told the prospective debtors that they could re-finance later to get long-term loans. This was not put in writing, and so it cannot be proven. But everyone in the industry knew it was being done. Therein lies the trap for America's largest banks. "Everyone knew."

If lawyers can persuade juries that everyone knew, America's largest banks are on the hook for more money in reparations than they have as capital. Why? Fraud. They sold investors, including European banks, investments known to be fraudulent.

Here it is, folks: what we have dreamed about. The money-grubbing lawyers are about to wipe out the money-grubbing bankers. There is only one hitch: the world's economy could crash. Darn!

In the December 9 issue of the San Francisco Chronicle ran a great headline:

MORTGAGE MELTDOWN

It had even better subheads:

Interest rate 'freeze' – the real story is fraud

Bankers pay lip service to families while scurrying to avert suits, prison

The author, Sean Olender, is a lawyer. He explained what he thinks the Secretary of the Treasury Henry Paulson and the banks are really up to. It's not about helping poor homeowners. (You probably suspected this.)

The present bailout proposal was not the first one. He describes earlier ones.

First the Treasury Department urged the creation of a new fund that would buy risky mortgage bonds as a tactic to hide what those bonds were really worth. (Not much.) Then the idea was to use Fannie Mae and Freddie Mac to buy the risky loans, even if it was clear that U.S. taxpayers would eventually be stuck with the bill. But that plan went south after Fannie suffered a new accounting scandal, and Freddie's existing loan losses shot up more than expected.

The first was the old standby: a government-funded bailout. This was the now-familiar S&L solution. It did not pass muster. It may a year from now. The second was a bailout by two of the perps. But their capital is tied up in mortgages. The flow of investors' new funds is faltering. These two agencies need honeymoon money. They are in no position to provide it.

Now, just unveiled Thursday, comes the "freeze," the brainchild of Treasury Secretary Henry Paulson. It sounds good: For five years, mortgage lenders will freeze interest rates on a limited number of "teaser" subprime loans. Other homeowners facing foreclosure will be offered assistance from the Federal Housing Administration.

Mr. Olender is not persuaded by the sincerity of the offer. He perceives this as a judicial move, not an economic move. He sees it as the government's attempt to place a legal moat around the banks' castles.

The sole goal of the freeze is to prevent owners of mortgage-backed securities, many of them foreigners, from suing U.S. banks and forcing them to buy back worthless mortgage securities at face value – right now almost 10 times their market worth.

Not being a lawyer, I am willing to ascribe economic motives as well. If whole neighborhoods face eviction, they are likely to decline very rapidly into residences of illegal drug salesmen and crackheads. These houses are not in upscale parts of town. Once in decline, borderline neighborhoods are almost impossible to restore. The value of the lenders' capital is at risk. Keeping homeowners in their homes does make economic sense. The flow of mortgage payments remains. The houses are maintained. But I digress.

The ticking time bomb in the U.S. banking system is not resetting subprime mortgage rates. The real problem is the contractual ability of investors in mortgage bonds to require banks to buy back the loans at face value if there was fraud in the origination process.
And, to be sure, fraud is everywhere. It's in the loan application documents, and it's in the appraisals. There are e-mails and memos floating around showing that many people in banks, investment banks and appraisal companies – all the way up to senior management – knew about it.

That is the supposed key to the prosecution: "Everyone knew." If everyone knew, then defrauded investors have a legal case. Anyway, they would have a case if they were not trying to collect from the real masters of America, the multinational banks.

There are lots of people who would like to muzzle subpoena-happy New York Attorney General Andrew Cuomo to buy time and make this all go away. Cuomo is just inches from getting what he needs to start putting a lot of people in prison. I bet some people are trying right now to make him an offer "he can't refuse."

Here we have an attorney general who understands how his immediate predecessor became the Governor of New York: handing out lots of subpoenas to big business CEO's. Cuomo has a severe case of subpoena envy.

Mr. Olender then gets to the heart of the matter: the bottom line. What is the bottom line? The bottom line.

The catastrophic consequences of bond investors forcing originators to buy back loans at face value are beyond the current media discussion. The loans at issue dwarf the capital available at the largest U.S. banks combined, and investor lawsuits would raise stunning liability sufficient to cause even the largest U.S. banks to fail, resulting in massive taxpayer-funded bailouts of Fannie and Freddie, and even FDIC.

I see what he is getting at. There appears to have been fraud at every level. But this, it seems to my judicially untrained eye, is the very loophole the banks need. If everyone knew, as seems likely, and nobody blew the whistle, which is clear in retrospect, then these practices were common. If they were common, then they were not criminal. The government knew, and the government did nothing. Ditto for the Federal Reserve, the Comptroller of the Currency, and every other regulatory agency – Federal, state, and local.

When a criminal conspiracy acts in a criminal fashion, it can be prosecuted. But when a criminal conspiracy has been licensed by the government, and has de facto run the government of every major nation for a century, it will be difficult to get a conviction. None dare call it criminal.

Mr. Olender is correct in his observation regarding the magnitude of this economic liability.

The problem isn't just subprime loans. It is the entire mortgage market. As home prices fall, defaults will rise sharply – period. And so will the patience of mortgage bondholders. Different classes of mortgage bonds from various risk pools are owned by different central banks, funds, pensions and investors all over the world. Even your pension or 401(k) might have some of these bonds in it.

This is the domino effect. The subprime mess cannot be contained. It is like an untreated cancer cell. It will spread.

Mr. Olender means well, but he suffers from an affliction that is almost universal where the banking system is involved: terminal naïveté.

Perhaps some U.S. government department can make veiled threats to foreign countries to suggest they will suffer unpleasant consequences if their largest holders (central banks and investment funds) don't go along with the plan, but how could it be possible to strong-arm everyone?

How? The same way the Bank of England and Parliament have been strong-arming the British since 1694. If you were to identify the longest-running, most successful example of political strong-arming in modern history, you could do no better than to study the Bank of England's relationship with Parliament.

This example is today universal. Every nation on earth has a central bank except Andorra and Monaco. Monaco has a casino instead. Andorra has sheep, but at least only the sheep get sheared. It is different for the rest of us.

What would be prudent and logical is for the banks that sold this toxic waste to buy it back and for a lot of people to go to prison. If they knew about the fraud, they should have to buy the bonds back. The time to look into this is before the shredders have worked their magic – not five years from now.

What would be even more prudent and even more logical would be to abolish central banking. But the world is neither prudent nor logical when it comes to fractional reserve banking and the bubbles it creates.

Yet this bubble is like no other in my lifetime. It is tied to housing, and the entire Western world has been affected. The home-owning masses feel rich because their homes have risen in price. Why has this happened? Because buyers of houses just one price range down have sold and want to move up. Houses are rising because suckers at the bottom were lured into preposterous loans. I don't mean the home buyers, who got in with no money down. I mean the suckers who lent them the money.

Here is why the government is getting in. If the government bails out the new homeowners, it baptizes the entire procedure retroactively.

The goal of the freeze may be to delay bond investors from suing by putting off the big foreclosure wave for several years. But it may also be to stop bond investors from suing. If the investors agreed to loan modifications with the "real" wage and asset information from refinancing borrowers, mortgage originators and bundlers would have an excuse once the foreclosure occurred. They could say, "Fraud? What fraud?! You knew the borrower's real income and asset information later when he refinanced!"

This is what the freeze bill is all about. It is going to sail through Congress. The President will sign it. As soon as it's law, the banks are far safer than before. There may be lawsuits, but judges will know where their bread is buttered.

Mr. Olender goes on to name names and identify culprits. Here, I have decided not to follow his lead.

CONCLUSION

The economic losses are gigantic and will grow. The trickle of bad news is going to become a flood over the next year. It will wear down the resistance of perma-bulls, who believe that the Federal Reserve can save the day and save the stock market. All over the world, the repercussions of bad loans, carry-trade leverage, and relatively tight money are going to be felt.

This has been a huge pool of investment errors. This has sucked in the best and the brightest people on earth, those who allocate capital. They trusted Alan Greenspan. They trusted artificially low interest rates. They trusted fiat money. That trust has been betrayed, as always. But this time, it has been betrayed on a scale that puts the world's banking system at risk.

The bailouts have only just begun.

December 19, 2007

Gary North [send him mail] is the author of Mises on Money. Visit http://www.garynorth.com. He is also the author of a free 20-volume series, An Economic Commentary on the Bible.

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