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The Looting of America: How Wall Street’s Game of Fantasy Finance Destroyed Our Jobs, Pensions, and Prosperity, and What We Can Do About It

One of the things I try to do when I’m paddling around here at the Lake, is to try to translate Lawyer Speak into English, so that anyone who is reading will be able to understand the terms they hear flung around by pundits. In Les Leopold I seem to have found a kindred spirit.

His easy to read, and sometimes even fun, book "The Looting of America" takes you through the supposedly "exotic and complex" world of securitized mortgage obligations, credit default swaps, and synthetic credit default swaps and explains and defines these terms in clear, easy to understand language using analogies from everyday life.

Every member of Congress interested in NOT sounding like a boob during hearings on the financial crisis should read this book. 

One of the funnier analogies he uses is to compare Synthetic Credit Default Swaps to fantasy baseball.

The reselling of mortgages on the secondary market is not some new phenomenon; it has been around for decades and allows banks to free up money to re-lend to new customers. However, this combination is new: (1) taking a pool of mortgages of differing quality, and purporting to slice them up into different"tranches" along with (2) the bottom tier suffering the consequence of every default in the entire pool up the limit of the size of the tranche, and (3) the upper tranches enjoying the benefit of all correctly performing mortgages until the default rate become high enough to bleed into their tier.

Let’s say we had a pool of 30 mortgages and we split them into 3 tranches of 10 mortgages each. The top tier has the highest rating from Moody’s and the bottom tier has the lowest. And in the first year of the security, only 2 mortgages default. All risk of loss from those 2 defaulting mortgages is born by the investors in the bottom tranche. It is not until we have more than 10 mortgages defaulting that loss is felt in the middle -or mezzanine- tranche.  And it is not until we have more than 20 mortgages defaulting that loss is felt in the top tranche.

Now, to minimize risk, and boost the rating that Moody’s (or some other rating agency) will give to the securities of any tranche, the creator of the security could purchase a Credit Default Swap, which is a kind of insurance policy. The cost of the insurance premium reduces the payout from the mortgaged backed security, but it also reduces the risk.

A Synthetic Credit Default Swap occurs when people who have no connection whatsoever to the mortgage backed security, nonetheless take out insurance based on it. Imagine if you had taken out homeowner’s insurance on your next door neighbor’s house, same idea.

Or, as Mr. Leopold puts it, Synthetic Credit Default Swaps are to Mortgage Backed Securities as fantasy leagues are to Major League Baseball. Both base their performance on the working of something else that is happening in the real world; but neither is able to exert influence on how those events will turn out.

One of the (many, many, many) problems with tranched Mortgage Backed Securities, is that it becomes impossible to know who owns a particular mortgage.  Remember the example above with the 30 mortgages in 3 tranches? Well, let’s number those mortgages 1-30. Who owns mortgage #6?  Assume each tranche is purchased by a different investor. In year one, mortgage #6 performs as it should, so it might belong to any one of the 3 tranches. In year two, mortgage #6 defaults. Also in year two, defaults exceeded 10 mortgages and loss bled upwards to the middle tranche. Consequently, in year two, mortgage #6 MIGHT belong to the investor in the bottom tranche or it might belong to the investor in the middle tranche. All we know for sure is that the investor in the top tranche cannot be the owner since defaults have not yet bled into the top tier.

For all we know, mortgage #6 might have started out in the top tier and been migrated out when it defaulted. Who knows who owns what; which explains why beleaguered homeowners are having so much trouble renegotiating their loans. Nobody is really sure who owns what loan.

One of the things I find fascinating is that Wall Street types keep insisting that these financial transaction exist in some unregulated no man’s land. I’m not sure I’m convinced of that.

You see, fantasy baseball was specifically carved out of the Unlawful Internet Gambling Enforcement Act of 2006, by Senator Jon Kyl. You know what else was carved out? Securities transactions, over-the-counter derivative instruments, indemnity or guarantee contracts, and insurance contracts.  However, that does not mean that they may not be regulated by some other laws, like state law. Many of the most famous names in the current financial fiasco do business right here in the Empire State. NY State regulates, ahem, mortgage insurance rather heavily. The statue defines "mortgage insurance" thusly:

Mortgage  guaranty  insurance"  means insurance against financial  loss by reason of nonpayment of any sum required to be  paid  under  the  terms  of  any  instrument  of  indebtedness  secured  by a lien on real  estate.

Sounds like a Credit Default Swap fits that description, maybe even a Synthetic Credit Default swap as well.

Further, Section 9.1 of the NYS Constitution provides in pertinent part

no lottery or the sale of lottery  tickets, pool-selling, book-making, or any other kind of gambling, except lotteries operated by  the state and the sale of lottery tickets in connection therewith as may be authorized and prescribed by the legislature, the net proceeds of which shall be applied exclusively to or in aid  or support of education in  this state as the legislature may prescribe, and except pari-mutuel betting on horse races as may be prescribed by the legislature and from which the state shall   derive a reasonable revenue for the support of government, shall hereafter be authorized or allowed within this state; and the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.

[emphasis added]

Do mortgaged backed securities sound like "Pool Selling" to you? -they didn’t mean swimming pools.

The Second Circuit Court of Appeals defined pool selling as:

consist[ing] of the receiving from several persons of wagers on the same event……. A pool, as that term is used in the statute, involves the selling or distribution of shares, chances or wagers in a wagering enterprise on the outcome of an event,…  .

Could such an event be whether or not a mortgage performed or went into default? Remember, these mortgages seem to float from one tranche to another depending on their performance status with no real indicia of actual "ownership".

Cause if those tranches are actually gambling pools, Title 18 USC 1955 makes it a federal crime to violate a state gambling law.

I can’t wait to hear/read what Mr. Leopold thinks of this.

Related posts:

  1. FDL Book Salon Welcomes Jonathan Tasini, “The Audacity of Greed: Free Markets, Corporate Thieves and the Looting of America”
  2. FDL Book Salon Welcomes Senator Byron Dorgan, Reckless!: How Debt, Deregulation and Black Money Nearly Bankrupted America
  3. Who Benefits from Financial Innovation? Not You, Silly Taxpayer
  4. FDL Book Salon Welcomes Paul Starobin, After America: Narratives for the Next Global Age
  5. FDL Book Salon Welcomes Chris Mooney, Unscientific America