Archive for the 'Partners in the News' Category

Next in Line-The $14 Trillion Municipal Bond Market

Tuesday, November 6th, 2007
Mortgage Mess Mangles Ambac

http://www.thestreet.com/s/mortgage-mess-mangles-ambac/markets/market-angle/10388447.html?puc=_tscs

By Liz Rappaport
Markets Columnist
11/6/2007 5:59 AM EST
Click here for more stories by Liz Rappaport

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The sound of credit crunching is getting louder every day.In just the past week, Citigroup (C - Cramer’s Take - Stockpickr - Rating) and Merrill Lynch (MER - Cramer’s Take - Stockpickr - Rating) have said they’ll need to take nearly $20 billion in losses on risky mortgage-related paper.

Speculation about further writedowns has since spread to Goldman Sachs (GS - Cramer’s Take - Stockpickr - Rating) and Morgan Stanley ( MS - Cramer’s Take - Stockpickr - Rating), among others.

But so far, contrary to the hopes of stock-market bulls, the massive losses at Citi and Merrill haven’t cleared the way for a fall recovery in financial stocks.

Instead, as credit ratings agencies such as Fitch, Moody’s and Standard & Poor’s issue warnings and downgrades on asset-backed securities and derivative collateralized debt obligations, the pain from the collapse of the subprime mortgage sector continues to spread.

Fitch Ratings on Monday called into question the capital reserves at financial guarantors such as Ambac (ABK - Cramer’s Take - Stockpickr - Rating), MBIA ( MBI - Cramer’s Take - Stockpickr - Rating) and Security Capital Assurance (SCA - Cramer’s Take - Stockpickr - Rating), along with closely held Financial Guaranty Insurance and CIFG Guaranty.

Fitch’s review is due to take four to six weeks. If it cascades into full blown ratings downgrades, it could create another wave of forced selling in the credit markets — this time in the $14 trillion municipal bond market.

“It’s starting to feel a lot like summer,” says Sid Bakst, senior portfolio manager at Weiss Peck & Greer Investments, and he’s not referring to the weather.

Did Current Bankruptcy Reform Increase Financial Distress

Monday, November 5th, 2007

Michelle J. White of Media for Freedmon has written a very interesting article on how the creditor-frindly Bankruptcy Reform Act of 2005 contributed to the current financial distrees by making it harder to file and therefore easier for creditors to lend more money, even to consumers with bad credit.  How did this happen?  Read on.

Did Bankruptcy Reform Increase Financial Distress?Michelle J. White

“The number of personal bankruptcy filings in the United States increased more than fivefold between 1980 and 2004. By then, more Americans were filing for bankruptcy than were graduating from college or getting divorced.”

The number of personal bankruptcy filings in the United States increased more than fivefold between 1980 and 2004. By then, more Americans were filing for bankruptcy than were graduating from college or getting divorced. When Congress reformed bankruptcy laws two years ago, its aim was to crack down on those who were using bankruptcy as an easy way to escape their debts. The reform made filing for bankruptcy more difficult by requiring debtors with higher incomes to repay more, by making it much more complicated and expensive for all debtors to file, and by increasing the number of debtors who are ineligible for bankruptcy.

These reforms caused the number of filings to drop dramatically - from 2 million in 2005 to 600,000 in 2006.

But the reforms had an unintended effect, contends Michelle J. White in Bankruptcy Reform and Credit Cards! (NBER Working Paper No. 13265).

While bankruptcy filings dropped, financial distress increased. How did this happen?

The answer is that by making it harder for consumers to escape their debts, the new law dramatically reduced lenders’ losses from default and bankruptcy. As a result, they started lending more, even to consumers with bad credit. Credit card debt increased more quickly during the past two years than at any time during the previous five years.

Consumers should have responded to the new harsher bankruptcy law by borrowing less, which would have lowered their risk of getting into financial distress. But not all consumers behaved in this rational way.

Instead, many behaved shortsightedly and took advantage of the greater availability of credit to borrow more than they could easily handle — ignoring the risk of! financial distress. (Economists refer to this shortsighted b! ehavior as “hyperbolic discounting” - consumers who are hyperbolic discounters intend to start paying off their debts immediately, but each month they consume too much and end up postponing repayment until the following month. So their debts steadily increase.) The new bankruptcy law exacerbated the problem of shortsighted consumers borrowing too much, because it prevented many of them from using bankruptcy to limit their financial distress. Many consumers in financial distress are unable to file for bankruptcy under the new law, because they cannot afford the costs of filing, cannot meet the new paperwork requirements, or are ineligible. This means that their debts will not be discharged and they will remain vulnerable to creditors’ collection calls and to wage garnishment that may take funds they need for basic necessities. Because of the new bankruptcy law, consumers can end up in deeper financial distress than would have been pos! sible before 2005.

Survey evidence presented by White supports the idea that most debtors get into financial distress because of shortsighted behavior, rather than because they behave rationally but experience adverse events. In one survey of bankruptcy filers, 43 percent pointed to “high debt/misuse of credit cards” as their primary or secondary reason for filing.

Another survey in 2006 found that two-thirds of those who sought credit counseling before filing for bankruptcy cited “poor money management/excessive spending” as the reason for their predicament, compared to only 31 percent who pointed to loss of income or medical bills.

White argues that lowering the costs of filing for bankruptcy would help debtors who are in the worst financial distress by making it easier for them to file. But changes in bankruptcy law cannot solve the basic problem of shortsighted consumers bo! rrowing too much, since these consumers generally ignore the p! rovision s of bankruptcy law until after they are in financial distress. Instead, White argues that changes in credit market and truth-in-lending regulation are more likely to work because they motivate lenders to lend less to the most vulnerable consumers.

Source:NBER Working Paper No. 13265

www.mediaforfreedom.com

Banks Hit with Tsunami of Red Ink!

Monday, November 5th, 2007

What’s the damage?

Why banks are only starting touncover their subprime losses       

By Gillian Tett and Paul J DaviesPublished: November 4 2007 18:08 | Last updated: November 4 2007 18:08The Financial Times 

When Merrill Lynch, the US bank, announced 10 days ago that it was taking $8bn-worth oflosses on mortgage-related securities, bankers and regulators around the world reeled in shock.For the writedown was twice the size of the losses that Merrill had forecast just a two and a halfweeks earlier – a “staggering” multi-billion dollar gap, as Standard and Poor’s, the US creditrating agency, observed. 

But last week, investors received an even more staggering set of numbers. As financialanalysts perused Merrill’s results, some came to the conclusion that the
US bank could beforced to make $4bn more write-offs in the coming months. 

These calculations were not limited to Merrill: after UBS unveiled $3.4bn (􀀁2.3bn, £1.6bn) ofthird-quarter mortgage-related losses last week, Merrill Lynch analysts warned that the Swissbank would need to take up to $8bn more losses in the fourth quarter of this year. Meanwhile,Citigroup’s share price slumped on rumours that it may need to acknowledge another $10bn oflosses. 

Such a tsunami of red ink would undoubtedly be shocking at any time. But right now, this newsis proving particularly unsettling for investors for two particular reasons. First, the numbers offeran unpleasant reminder that the pain from this summer’s credit turmoil is still far from over –contrary to what some bullish American bankers and policymakers were trying to claim a fewweeks ago. “To judge from secondary market prices, losses on mortgage inventory are likely tobe larger in the fourth quarter than the third quarter,” warns Tim Bond, analyst at BarclaysCapital, the UK bank. 

Second, the write-downs have reminded investors just how little is known about where thebodies from this summer’s credit turmoil might lie. Perhaps the most shocking thing about recentannouncements is that while big banks might have now written down their mortgage holdings bymore than $20bn, this does not appear to capture all the potential losses. 

Last week, for example, a US congressional committee warned that over the next year mortgagelenders could foreclose on 2m American homes, destroying $100bn of housing value. And someprivate sector economists think the total loss from mortgage problems could reach $200bn ormore. “What everyone keeps asking is where are those losses sitting – where is the rest of that$100bn?” admitted one senior international policymaker late last month. “The worrying thing isthat there still is just so much uncertainty around.” 

To an extent, this uncertainty reflects the fact that the tangible scale of defaults in the
USmortgage arena is still unclear, particularly in that sector of the mortgage market known as“subprime” – loans extended to borrowers with poor credit histories. In the past year, the paceof defaults on subprime loans has risen sharply in America, particularly on mortgages made in2006 and 2007. However, it is unclear what scale of losses this will eventually produce forbanks, since it typically takes several months for lenders to foreclose on loans and then sell aproperty. 

Moreover, it is also very unclear how the pattern of mortgage defaults will develop. While someeconomists fear that the default ratios could rise sharply in the coming year, others suspectthat the US government will force lenders to be lenient towards borrowers. Thus estimates ofpotential mortgage losses in the subprime sector range from $100bn (according to governmentfigures) to several times that. 

However, when it comes to working out the impact on banks, the task becomes even harder. Forin recent years, banks have not simply been acquiring subprime loans, they have beenrepackaging them into complex “asset-backed securities” (ABS) that can be difficult to value.The Bank of England, for example, suggests that on the basis of industry data some$700bn-worth of bonds backed by subprime loans are now in circulation in the world’s financialsystem, with another $600bn of bonds backed by so-called “Alt A” loans, or those with slightlybetter credit quality. 

Moreover, these bonds have then been used to create even more complex securities backed bydiversified pools of debt, known as collateralised debt obligations (CDOs). According to theBank’s calculations, for example, some $390bn of CDOs containing a proportion of mortgagedebt were issued last year – though the precise level of the subprime component varies.The multi-layered nature of these complex financial flows means it is hard to assess howdefaults by homeowners will affect the value of related securities. 

In recent weeks, some credit rating agencies have indeed started to downgrade their ratings ofdebt: Moody’s and S&P, for example, downgraded about $100bn of mortgage-related securitieslast month. But most analysts think that this “downgrade” process is still at a very early stage –and in tangible terms, that means that subprime defaults have not yet delivered tangible lossesfor many security investors. “Most CDOs have yet to see many downgrades and there havebeen almost no actual defaults of the ABS bonds within the CDO portfolios,” points out MattKing, analyst at Citigroup. “[But] all that is about to change.” 

The other big problem that makes it hard to calculate the “real” scale of mortgage-linked lossesat banks is that it is often fiendishly hard to get an accurate value for mortgage-linked assets –and thus determine how much prices have fallen so far. In other arenas of finance, such asequities, banks typically value their assets by looking at external markets: the share price of aBritish company, say, can be calculated within seconds, by glancing at the stock exchange.Mortgage-related securities have not been widely traded in recent years, and in the past coupleof months activity has dried up almost completely – meaning there is no market, and thus nomarket value. 

Some banks have tried to get around this problem in the past by developing computer models towork out what the securities “should” be worth. However, these can be very unreliable and varywildly between different banks. Recent calculations by the Bank of England, for example, showthat if tiny changes are made to the type of model typically used by banks to valuemortgage-linked debt, the implied price of supposedly “safe” assets can suddenly change by asmuch as 35 per cent. 

As a result, some analysts are now using another technique to work out their mortgage-linkedlosses, namely, extrapolating from prices based on derivatives indices such as the so-calledABX. For although mortgage bonds have not traded much in recent weeks, derivatives havebeen bought and sold – meaning that the ABX can offer a trading price.  In recent weeks, this trading price has fallen sharply (see chart), which has increased the pressure on banks to mark their books down. However, the banks have not yet made write-offs as large as the ABX might imply. Merrill Lynch analysts, for example, calculate that mid-quality ABX debt is on average now trading at 40 cents in the dollar. But these analysts say that Merrill Lynch itself has only written this type of debt down to 63 cents in the dollar – and UBS is still assuming this debt is worth 90 cents. “Simple math would imply that UBS needs an additional $8bn write-down [on its $15.4bn holdings] if the ABX pricing is correct,” Merrill says. 

But the problem is that no one really knows whether these numbers represent the “true” guide to tangible mortgage losses either; some analysts claim, for example, that the ABX is an unreliable guide to price.Moreover, most banks have not actually sold their troubled securities yet in an open market. And while there are reports that some banks have tried to arrange quasi-sales between institutions, on “sweetheart” terms in recent months, the
US regulators now appear to be scrutinising these practices too – not least because this could potentially manipulate prices as well. But if these problems make it hard to calculate the scale of banks’ subprime losses, the guesswork becomes even wilder when it comes to other financial groups. As the subprime credit chain has grown in recent years, it has left banks exposed not simply to these assets but to a host of other investment institutions as well, including insurance companies, pension funds and hedge funds. These institutions sometimes use different approaches to reporting their subprime exposures from those adopted by bulge-bracket banks – and these differences are further magnified by the fact that they are operating under different national accounting regimes. 

In some corners of the global financial system, institutions are already trying to come clean about the pain. It is relatively easy, for example, to calculate the losses at so-called structured investment vehicles (SIVs) – a breed of specialist fund – because they are required to publish regular “net asset value” numbers. According to the rating agencies, for example, the average value of assets in SIV vehicles has fallen by a third since the start of the summer. Some investors with holdings of SIVs have recently come clean about their losses. TPG-Axon, the US hedge fund, is understood to have written off the value of all the junior notes issued by its SIV. 

A number of Taiwanese banks – which have been among the biggest buyers of such paper – have also been surprisingly frank. For example, Bank SinoPac said it would take a third-quarter hit of $43m on its $350m of SIV holdings.  However, for every example of transparency there is a case – or several – of an institution reluctant to reveal losses. In jurisdictions such as Japan, for example, it is widely accepted that institutions need not mark all their assets to market, since they often hold these to maturity.  Similarly, uncertainty dogs large parts of the asset management world in continental Europe. Meanwhile, the insurance industry is generating particular anxiety among some investors. In recent days, for example, the share price of the largest US monoline insurance groups, such as MBIA and Ambac, have collapsed in spectacular fashion due to concerns about potential exposure to mortgage-linked CDOs. The two companies say that they do not have any serious problems – and point out that the proportion of mortgage-related assets in their business is tiny. But the challenge that dogs these “monoline” groups is that their balance sheet accounting is poorly understood by most investors. 

Optimists within the financial world point out that such uncertainty is not unique to the 2007credit squeeze: 15 years ago, for example, the financial world was presented with a similar fog,when it tried to untangle the losses that hit the Lloyd’s insurance syndicate. “There are a lot ofparallels today,” says Adam Ridley, a senior
London financier who was heavily involved in theLloyd’s affair. 

However, the challenge for policymakers today is that the 2007 credit storm – unlike the Lloyd’sdebacle – is not a contained affair: on the contrary, the opaque subprime chain has createdunexpected linkages between an extraordinarily wide range of investors and institutions aroundthe world. The longer investors continue to fear that this chain could produce unexpectedly largefuture losses, the greater the danger of a downward spiral in investor confidence – and thus thehigher the risk of a knock-on impact on the “real” economy. 

Charles Prince out and Robert Rubin in as Subprime Fallout Hits Citibank

Monday, November 5th, 2007

Robert Rubin to Serve as Chairman of the Board of Citi, Sir Win Bischoff to Serve as Acting Chief Executive Officer, Charles Prince Elects to Retire from Citi

NEW YORK–(BUSINESS WIRE)–The Board of Directors of Citigroup Inc. (NYSE: C) today announced that Robert E. Rubin, Chairman of the Executive Committee of Citi and a member of the Board of Directors, will serve as Chairman of the Board.

In addition, Sir Win Bischoff, Chairman of Citi Europe and a member of Citi’s Business Heads, Operating and Management Committees, will serve as acting Chief Executive Officer. The Board also announced that Charles Prince, Chairman and Chief Executive Officer, has elected to retire from Citi. The Board has designated a special committee consisting of Mr. Rubin, Alain J.P. Belda, Richard D. Parsons, and Franklin A. Thomas to conduct the search for a new CEO.

Mr. Prince commented, “We have made strong progress in our strategy for building for the future, evidenced in the momentum we have achieved in most of our businesses. Nevertheless, it is my judgment that given the size of the recent losses in our mortgage- backed securities business, the only honorable course for me to take as Chief Executive Officer is to step down. This is what I advised the Board.

Cement Life Jackets for Homeowners in Trouble

Monday, November 5th, 2007

The article printed below was written by Jay Macdonald for Bankrate.com.  It is a very good summary of the danagers of dealing with these so-called “home rescue” operatons. 

You see the signs everywhere these days: We buy houses! Cash for your home! Fast refi now!

Chances are, you mentally filed these come-ons under good old-fashioned American entrepreneurship in action. Maybe you even think kindly toward companies that would offer a hand to debt-ridden homeowners on the brink of foreclosure.

Fat chance. The majority of these so-called foreclosure “rescuers” are predators, says Harvard Law School professor and bankruptcy expert Elizabeth Warren. She calls what they offer “the cement life jacket.”

Before you’re even aware of it, these scam artists will have acquired your home for a fraction of what it would have brought at sale. Or, in an even worse scenario, they will have transferred your title into a trust that enables them to rent or “resell” your property to equally hoodwinked buyers while, to your surprise, you remain legally obligated to make the mortgage payments.

Foreclosure “rescue” scams are nothing new.

“In 1929, you could borrow money to buy stock, and then use that stock to buy more stock. At that point, the stock market became overinflated and it crashed,” she says.

“Much of the same thing is going on now; only instead of stocks, it’s home equity.”

Take a closer look at these foreclosure “rescuers” and you’ll soon see those come-ons for what they really are — the hangover after the real estate party.

Like sharks and blood, scam artists always smell money. And in America, we have been pouring our money into our homes since the tech-stock collapse gave us a renewed awareness of our risk tolerance. Homes were safe. Homes were real. And, partly fueled by this renewed demand, real estate suddenly became the investment of choice for stock-weary working folks, making them vulnerable to scams.

Financial institutions capitalized on this by loosening credit. And they offered an unprecedented number of ways to strip that equity through lines of credit, home-equity loans and cash-out refinances.

The Fed cooperated by keeping interest rates at historic lows.

Our homes suddenly started to look like, well, stocks — with one big catch.

“All you’re doing when you take out a second mortgage on your house is borrowing more money,” says Warren. “If you take out equity, it isn’t like selling off part of your stock portfolio. You can’t sell off two of your bedrooms. You can’t say, ‘Boy, this market is at its peak; let’s sell the backyard.’ ”

Welcome to what Warren likes to call “the middle-class squeeze.” The rising costs of health care, housing and education, combined with increased job uncertainty, income volatility and eroding salary levels, have placed America’s piggy banks — its homes — at financial risk like never before.

Steve Tripoli saw the storm on the horizon. As a former consumer fraud investigator for the National Consumer Law Center in Boston, Tripoli interviewed numerous state attorneys general and legal aid staffers for the NCLC’s June 2005 report, “Dreams Foreclosed: The Rampant Theft of Americans’ Homes through Equity-Stripping Foreclosure ‘Rescue’ Scams.”

Tripoli found that foreclosure “rescue” scams fall into three main categories:

Phantom help: The “rescuer” charges outrageous fees for light-duty phone calls or paperwork that the homeowner could easily do, none of which results in saving the home. This predatory scam gives homeowners a false sense of hope and prevents them from seeking qualified help.

The bailout: In this scam, the homeowner is deceived into signing over the title with the belief that he will be able to remain in the house as a renter and eventually buy it back over time.

The terms of these scams are so onerous that the buy-back becomes impossible, the homeowner loses possession, and the “rescuer” walks off with most or all of the equity.

The bait-and-switch: In this scam, the homeowners think they are signing documents to bring the mortgage current but instead surrender their ownership. They usually don’t even know they have been scammed until they’re evicted.

http://www.orlandosentinel.com/features/home/orl-mortgage0407nov04,0,7517266.story

Trading Dead Horses for Dead Cows

Saturday, November 3rd, 2007

One thing regulators discovered during the S&L investigations was that rogue S&L operators were selling their bad loans to each other, magically making them good again because, well, there was a buyer on the other side of the transaction. These crooked thrift chiefs called the practice, “Trading dead horses for dead cows.” On Friday, we learned from published reports, that Merrill Lynch - the Wall Street poster child for this crisis - did something that may not have passed the smell test. According to The Wall Street Journal: “In one deal, a hedge fund bought $1 billion in commercial paper issued by a Merrill-related entity containing mortgages, a person close to the situation said. In exchange, the hedge fund had the right to sell back the commercial paper to Merrill itself after one year for a guaranteed minimum return.” This transaction allowed Merrill to book a profit on paper and temporarily off-load a major liability. Andy Fastow would be proud of these guys!

O. Max Gardner III

Max Gardner’s Bankruptcy Boot Camps

Next Open Boot Camp: Dec. 7 to 10 (Spaces Open) www.maxbankruptcybootcamp.com PO Box 1000 Shelby NC 28151-1000704.487.0616 (v)

704.418.2628 (c)

888.870.1647 (f)

Check out Boot Camp Photos at:

http://picasaweb.google.com/O.Max.Gardner

Option One May be Out of Options!

Saturday, November 3rd, 2007

Option One’s credit lines reducedBy GENE MEYERThe Kansas City Star

H&R Block Inc. on Friday said lenders had reduced two credit lines to its Option One subprime mortgage unit and terminated two others because of fewer loans by the subsidiary.

The cuts followed similar reductions four weeks ago and were part of adjustments made to align Option One’s borrowing lines with its reduced mortgage production, said Nick Iammartino, a Block spokesman.

The credit lines involved warehouse loans- money that lenders such as Option One borrow for short periods to maintain and store mortgages before repackaging and selling them to investors. The latest reductions trimmed Block’s warehouse credit lines to $1.58 billion, from $4.4 billion.

Block said in a Securities and Exchange Commission filing that one credit line, from Bank of America, had been cut to $750 million from

$2.25 billion and extended through June 12. It said that another, from a group led by Citigroup, had been cut to $75 million from $150 million and extended through Nov. 15.

Two other credit lines from groups led by units of UBS and Deutsche Trust, totaling $1.25 billion, were terminated, according to the filing.

A third credit line, for $750 million from Greenwich Capital, remained unchanged.

The Kansas City tax preparation and financial services firm reached an agreement in April to sell Option One to Cerberus Capital Management LP.

Cerberus is a huge global investment fund with a penchant for buying and overhauling distressed properties.

Under the original terms, Cerberus agreed to buy the unit at a $300 million discount from what originally were estimated to be $1.27 billion in assets if Option One continued to hit a specified loan volume. Both Cerberus and Option One have been caught in a morass of deteriorating mortgages since then, and deadlines for the sale were extended, most recently until Dec. 31.

Privately held Cerberus owns a 51 percent stake in General Motors Acceptance Corp., whose heavily subprime $63 billion mortgage portfolio hasn’t shown a profit in two years. Aegis Mortgage, another subprime lender in the fund’s portfolio, filed for bankruptcy in August.

Option One lending has dropped significantly in the subprime market meltdown, and Block announced in August that the unit was ending new loans to borrowers who had poor credit or who wanted large loans. Block said over the summer that it was discussing a renegotiation of its sales agreement and that the transaction ultimately might involve only Option One’s mortgage servicing operations.

Block shares closed Friday at $20.59, down 57 cents on the New York Stock Exchange.

Who is O. Max Gardner III?

Saturday, November 3rd, 2007

O. Max Gardner III

November 1, 2007

Mr. Gardner received his undergraduate degree from the University of North Carolina at
Chapel Hill in 1969 and graduated with high honors from the UNC School of Law in 1974. Among others, he was a member of the Law Review, President of the Student Bar Foundation and elected to the Order of the Coif. Following graduation, he served as the Senior Law Clerk to the Hon. William H. Bobbitt, the late Chief Justice of the North Carolina Supreme Court, and as Senior Law Clerk to the Hon. William Copeland, an Associate Justice of that Court.  

Gardner worked for three years with the Smith Moore law firm in Greensboro following his Clerkships.  His primary working partner at Smith Moore was the legendry McNeill Smith.  Gardner later served as Treasurer in Smith’s campaign for the United States Senate. 

Gardner served the Democratic Party of North Carolina as General Counsel from 1986 to 1992, during which time he worked closely with two different Governors.  During this time, he also managed his law practice in Shelby, which he opened in 1977 after leaving Smith Moore.  Gardner was also “Of Counsel” to the Washington, D.C., law firm of Sims Walker & Steinfeld from 1992 to 1996.  

He currently limits his practice to consumer bankruptcy cases and all consumer claims arising with respect to those cases.   Gardner has been widely recognized as the leading consumer attorney in America on “predatory mortgage servicing” in Chapter 13 bankruptcy cases. He has also taken the lead in pursuing the attempts of many creditors to collect debts notwithstanding the fact that the debts have been legally discharged in a bankruptcy case. 

Gardner has been the lead attorney of record in many landmark cases but some of his most significant were: 

Myrtle Marshall v Spindale Savings & Loan.  This was the first case under the Bankruptcy Act of 1978 where a debtor was able to avoid and cancel a completed pre-filing foreclosure sale of her home by arguing that the Savings & Loan did not pay “reasonable value” for the home at the public sale.  Gardner used Section 548 of the Bankruptcy Code to characterize this sale as a “fraudulent conveyance.”  Before this case, almost everyone thought that once a foreclosure was completed under state law a debtor could never use a bankruptcy case to avoid the completed sale.  The case sent shock waves throughout the mortgage and title insurance industries.  Congress later amended the law to preclude this specific remedy. 

Gerald Stark v Crestar Mortgage.  In this case of first impression, the Bankruptcy Court held that the imposition of a monthly property inspection fee by a mortgage servicer on a Chapter 13 homeowner was a violation of the automatic stay and was nothing more than a “bankruptcy monitoring fee.”  The Court also held that such a practice was unlawful under the mortgage note and deed of trust.  Stark has been widely followed and cited and sent shock-waves through the mortgage servicing industry.  

Shelby Yarn Company.  This was the first reported case where a group of former employees (5 to be exact) filed an “involuntary” bankruptcy petition against their former employer.  Gardner represented all of the former employees who filed the involuntary petition.  One of his clients was the former Vice President of Shelby Yarn, Paul Petroff.  After the filing, Gardner was appointed by the Court to represent the Committee of all 656 former employees.  Gardner was also appointed as Special Counsel to the Trustee in a bankruptcy in the prosecution of a civil action against the former officers, directors and owners of Shelby Yarn. This civil action was settled for approximately $2.2 million.  The case was widely reported by the media and was featured as the cover story on the September 2000 edition of Business North Carolina. 

Marjorie White v Duke Medical Center.  The debtor in this case had to file for Chapter 13 relief because Duke Medical Center had secured a judgment against her for less than $2,000 for unpaid medical bills.  Duke was threatening to foreclose her home to collect the judgment.  After the filing, the debtor filed an action against Duke and Dr. Bernard Bressler for medical negligence arising out of alleged sexual acts between Bressler and the debtor that were all instigated by Bressler, who was her psychiatrist.  The case was settled for more than $1,000,000 and was widely reported nationally at the time.  Myra McPherson, a Pulitzer Award Winning Reporter, wrote a lengthy series of articles in the Washington Post on the case entitled “O. Max Gardner III vs The City of Medicine (“the City of Medicine” being the moniker for Durham, NC, home of Duke). 

Smith vs The Money Store.  In this case of first impression, Gardner filed a Class Action against The Money Store for adding the sum of $125.00 to every proof of claim filed in a consumer bankruptcy case.  The fee allegedly related to “lawyer services” in preparing the claims. Gardner established by uncontradicted evidence that an attorney played little to no role in the claims preparation process.  Based on this evidence, the Court disallowed these fees as improper and held that a creditor violated the automatic stay by seeking to include attorney fees in a proof of claim. If a creditor wanted an award of any attorney fee, the court held the creditor would have to file a fee application and notice it for hearing, thereby giving the debtor the right to object and be heard.  The court also held that for purposes of the vast majority of mortgages in consumer cases a fee for preparation of the proof of claim would never be appropriate.  This case has been widely reported and certainly raised the level of awareness of this unlawful practice. 

Gardner was named the Outstanding Consumer Lawyer of 2004 by the National Association of Consumer Bankruptcy Lawyers at their Annual Meeting in
Philadelphia.  He has been elected three times as a member of the “Legal Elite” of
North Carolina lawyers by his fellow attorneys in a state-wide poll conducted by Business North Carolina.  He has twice been named as a North Carolina “Super Lawyer in Consumer Bankruptcy Law” by Law & Politics and the Charlotte Magazine.   His renowned “Bankruptcy Boot Camps” have been featured in the NY Times, The Wall Street Journal, The Washington Post, the Chicago Tribune, Business Week and on a one hour segment of “Your Money” on CNN.  Max has also been quoted many times by all of the major print and electronic media in America.  According to Robert Berner of Business Week, “Max is the go to guy on all consumer bankruptcy cases!” 

Gardner is the grandson of O. Max Gardner, who was a former North Carolina Governor and United States Ambassador to Great Britain. Governor Gardner also served as Lt. Governor of North Carolina and as the Undersecretary for the United States Treasury under President Harry Truman.  Gardner’s great uncle, Clyde R. Hoey, was also Governor of North Carolina and a distinguished member of the United States Senate.  Governor Hoey is the only North Carolinian to have served in the State House, the State Senate, the United States House of Representatives and the United States Senate.    

In January of 2007, Gardner was named as the Chief Executive Officer and Vice President of Litigation for Gardner & Botes, PLLC.  Gardner & Botes is a new national law firm that Gardner has formed to prosecute violations of the Discharge in Bankruptcy by creditors and debt-buyers.  Gardner has been quoted as saying these violations are “at historic levels with no end in sight.”  Gardner & Botes will do business as the National
Consumer Bankruptcy Litigation Center.  Its primary office will be in Shelby, North Carolina, and its technology and development center will be in Chicago, Illinois.  Brad Botes, the Vice President of the firm, is from Alabama and was the former Executive Director of the National Association of Consumer Bankruptcy Attorneys. Erik Clark of
Los Angeles is the President of NCBLC. 

Gardner is a long-time member of NACBA and NACA and a frequent national speaker on bankruptcy law and consumer representation.  
Gardner is the father of three children, Max IV, Webb and Sarah.  His son Max IV was killed in a tragic accident involving a drunk driver in April of 2005.  Max and his wife, Victoria, live at Lizemere Farm, located deep in the heart of the South Mountains of
North Carolina, where they breed and show their beloved Cavalier King Charles Spaniels. 

Investment Banks Facing New Writedowns

Saturday, November 3rd, 2007

It seems that with every new day we get more bad news from Wall Street.  The most recent bad news came on Friday when the SEC announced that it had opened an investigation of the fabled Merrill Lynch, on of our leading investment banks.   According to a story in the Wall Street Journal,  Merrill Lynch struck deals with several Hedge Funds to take certain positions that did not transfer the risk of the loss to Merrill, but merely delayed when Merrill Lnych would ahve to discloses its exposure on the risk.  That pracitce, the paper reported, is what is now under investigation by the Securities and Exchange Commission. 

The AP story that ran Saturday is reprinted below:

Investment Banks Facing New Writedowns

November 3, 2007
NEW YORK (AP) — Wall Street turned on itself Friday, as one widely watched analyst said investment banks face $100 billion or more in writedowns this quarter from bad mortgage debt, and another downgraded much of the banking sector on similar fears.Shares of Merrill Lynch fell almost 8 percent, touching their lowest point since early 2005. Other investment banks fell substantially as well.The downgrades and the commentary renewed fears of a repeat of August, when stocks sank, credit markets locked up and banks slashed the value of their investment portfolios. Standard & Poor’s equity analysts suggested even the banks with the best risk controls will still struggle through the current market.Deutsche Bank analyst Mike Mayo predicted late Thursday night that the investment banks will need to take another $10 billion in writedowns in the fourth quarter, with hits of $4 billion each at Citigroup and Merrill Lynch and a total of $2 billion at places like Wachovia and Bank of America.But after a Wall Street Journal article Friday morning suggested Merrill Lynch could be under investigation over its handling of mortgage debt, Mayo issued a new note, downgrading Merrill to “Hold” from “Buy” and saying it could face another $10 billion in writedowns on its own.Meanwhile, S&P equity analyst Matthew Albrecht also cut his rating on Merrill Lynch, dropping the company to “Hold” from “Buy.” S&P downgraded Wachovia Corp. and Goldman Sachs Group Inc. to a “Buy” from a “Strong Buy” and Citigroup to “Hold” from “Strong Buy” as well.Even Goldman Sachs, which has the “strongest risk management controls and is best positioned to weather the current storm,” will still face struggles and potential writedowns because of the tightening of credit markets, Albrecht said.The problem at the banks stems from their exposure to complex instruments known as collateralized debt obligations. So-called CDOs combine slices of different kind of risk; many include pieces of bonds backed by subprime mortgages. As those mortgages have gone into default at rising rates, the bonds have lost value and the CDOs have as well.That trend has shown no signs of abating, which has meant fresh rounds of charges by banks to recognize the decreased value. Writedowns related to declining mortgage debt values have already exceeded $25 billion this year, and any more could cause serious damage, Mayo said.“If there are much higher CDO writedowns, Merrill may have additional credit rating downgrades and may need to find a partner to give it new credibility and financial strength,” Mayo wrote in a research note Friday.The trigger for Mayo’s pessimism was the Journal story. The Journal reported Merrill Lynch struck deals with hedge funds to take certain positions that did not transfer risk, but merely delayed when Merrill Lynch would have to disclose its exposure to that risk. That practice, the paper reported, is under investigation by the Securities and Exchange Commission.Merrill Lynch said in a statement that it has “no reason to believe that any such inappropriate transactions occurred,” adding they would violate the company’s policy.”Merrill’s marks reflect all of its exposure to CDOs, regardless of how they are financed, on- or off- balance sheet,” Merrill Lynch spokeswoman Jessica Oppenheim said in a later statement.SEC spokesman John Nester in
Washington declined to comment, and would neither confirm nor deny that the agency was investigating Merrill Lynch.Merrill Lynch was hit the hardest in the third quarter by the deteriorating subprime mortgage market. The investment bank took $7.9 billion in writedowns — less than three weeks after it told investors that its mortgage losses would only amount to $4.5 billion.Stan O’Neal, Merrill Lynch’s chief executive, was forced to retire because of the fallout over the writedowns. Mayo said the new chief executive at Merrill Lynch will likely take a more conservative route when valuing CDOs and other subprime-backed securities.O’Neal’s ouster has put other CEOs on notice that they must right the ship sooner rather than later. Citigroup’s Charles Prince and Bear Stearns’ James Cayne both came under fire after reporting multibillion dollar writedowns related to bad bets in the subprime mortgage market.Merrill Lynch shares fell $4.91, or 7.9 percent, to $57.28. The stock traded as low as $54, its lowest point since roughly mid-2005. Shares in Bear Stearns fell $5.78, or 5.4 percent, to $102.16. Shares in Morgan Stanley fell $3.52, or 5.6 percent, to $58.90. Shares in Goldman Sachs fell $10.61, or 4.4 percent, to $229.60.AP Business Writers Dan Seymour and Joe Bel Bruno in New York and Marcy Gordon in
Washington contributed to this report.
 

Max Gardner Secures Statement from the United States Trustee to Enforce Bankurptcy Laws Against Creditors

Saturday, November 3rd, 2007

Since I worked with Mark Redmiles on a Panel at the annual Hudson Valley New York Bankruptcy Seminar, I have requested him to provide me with a written statement confirming that his office has been and will be taking actions to enforce the Bankruptcy Code against Abusive Creditor Practices.  The abuses of mortgage servicers in consumer bankruptcy cases is currently running at epidemic levels.  Well, Mark, who is the Deputy Director of the U.S. Trustee Program, finally came through with an email this week.  I have posted the email on all of the major consumer listservs.  The substance of the statement is reprinted below: 

The U.S. Trustee will protect consumer debtors from abusive creditor practices, according to a statement issued by Mark A. Redmiles, Deputy Director of the Executive Office of the United States Trustee.

“The United States Trustee Program (Program) is responsible for protecting the integrity of the bankruptcy system,” he said. This responsibility includes a duty to protect consumer debtors from and to redress violations by, creditors; particularly when the abuse is systemic or multi-jurisdictional. In many cases, misconduct by creditors is best addressed by the private case trustees who review and object to claims, or by debtors’ lawyers who engage in two party disputes. However, where the integrity of the system is at stake, and where the U.S. Trustee is in the best position to protect debtors against abusive practices, we will investigate and we will take appropriate enforcement action.”

Redmiles said, “the Program has recently focused enforcement efforts, and has engaged in litigation, to redress identified practices among mortgage servicing creditors and their attorneys in chapter 13 cases. This includes enforcement activity to redress the filing of false or inaccurate claims, the assessment of unreasonable post-petition charges, and the failure to properly account for post-petition mortgage payments.”