Selected writings by David Fiderer
|Investors won’t finance underwater mortgages. Just look at the 122 residential mortgage-backed securitizations referenced in the lawsuit filed by the Federal Housing Finance Agency against JPMorgan. Every one of those deals was sold with the claim that the pool had zero mortgages with a loan-to-value in excess of 100%. But the opposite was true. At the time of closing, all 122 deals held a material number of mortgages that exceeded the value of the property.
The uniformity is striking, as can be seen on Table 8 in the J.P. Morgan complaint (page 130), or Table 7 of the Goldman Sachs complaint (page 52), or Table 9 of the Merrill Lynch complaint ( page 63), or Table 7 in the Royal Bank of Scotland complaint (page 52), or tables in a dozen other lawsuits filed by FHFA on behalf of Fannie Mae and Freddie Mac.
That’s not the half of it. FHFA also presented an abundance of evidence that the underwriting banks seriously overstated the percentages of owner occupancy in each mortgage pool. And, the plaintiffs allege, there was an abundance of other evidence that banks simply disregarded their stated credit standards.
To test the veracity of the banks’ statements, the FHFA had reviews conducted for 1,000 files in each loan group. So, for instance, the JPMorgan complaint involved reviews of about 122,000 loan files. No easy, or inexpensive, task. The total review, of hundreds of thousands of different loan files, may be the most comprehensive study of RMBS collateral anywhere. FHFA’s lawyers should donate their work product to the National Archives.
In addition to evaluating the documentation, the reviewers scanned tax records and lien filings to confirm whether the borrower actually resided at the mortgaged property as he claimed. And with each file, the reviewer compared the lien loan amount with the values shown by a well-recognized automated valuation model, or AVM. As CoreLogic states, retrospective AVMs tend to be more accurate than original AVMs.
The specifics of these complaints are important, because they dispel the false media narrative being pushed by certain lawyers and commentators. These cases are not about the government sponsored enterprises and their knowledge of mortgage risk. These cases are about lying. Moreover, these lies were not made to Fannie and Freddie, but to anyone who bought in to those deals.
The lies began with the origination of mortgages, which were not adequately vetted by the bond underwriters, who, under the Securities Act of 1933, are legally liable for the accuracy and completeness of public filings. All sophisticated investors know that the 1933 Act holds the underwriters accountable for the accuracy of the information. Which is why any argument insinuating that the GSEs “knew what they were buying” is spurious.
Bloomberg BNA estimates that GSEs could recover up to $28 billion in settlements for bond purchases that totaled $200 billion. But this is the tip of the iceberg.
Because the GSEs almost always purchased the most senior triple-A tranche in a deal, they were supposed to recover all principal before subordinate tranches recovered a nickel. So, to the extent that a GSE suffered a loss on any deal, the subordinate tranches got wiped out.
Consider J.P. Morgan Mortgage Acquisition Corp. 2006-CH1, a $600 million deal comprised entirely of 1st lien loans. At the time of closing, about 17% of the Group 1 mortgages had an LTV higher than 100%. Moody’s estimates that the entire deal will suffer $191 million in losses. But the GSE investment, a $150 million triple-A tranche, will be paid back in full.
So why didn’t Allstate and the other aggrieved investors try to piggyback on to the FHFA lawsuits, in various class actions? Because the Housing and Economic Recovery Act of 2008 allowed Fannie and Freddie to overcome the barriers that limit the ability of ordinary investors to seek redress under Federal securities laws.
Well before the government takeover in September 2008, the GSEs, like many other investors, sought access to the loan file data in these various deals. Fannie and Freddie wanted to find out if investors’ rights–for loan putbacks and other remedies–were being adequately enforced by servicers and trustees. These efforts to access information went nowhere.
So finally, in July 2010, the FHFA started issuing subpoenas, as authorized by the 2008 Act . Other investors, who were subjected to the same stonewalling, had no comparable subpoena power. Also, the FHFA had more time to develop the cases. Under the 2008 Act, the three-year statute of limitations for Fannie and Freddie began running on September 8, 2008, the day of the government takeover. For most everyone else, the statute of limitations began running on the dates that the bonds were issued in 2005 through 2007. Almost all of the FHFA lawsuits were filed just under the wire, on September 2, 2011.
Nonetheless, buyers of subordinate tranches of private label RMBS owe Fannie and Freddie a debt of gratitude. Because someone went to the trouble to fully document the basis for their legal damages, ordinary investors have some certainty as to what they would have recovered, but for the barriers that limit enforcement of their legal protections. You have to wonder if major banks would have remained solvent if the rule of law were applied equally to everyone