REPLY IN SUPPORT OF MOTION OF THE OFFICIAL COMMITTEE OF EQUITY SECURITY HOLDERS IN SUPPORT OF ORDER DIRECTING APPOINTMENT OF AN EXAMINER UNDER 11 U.S.C. § l104(C)
The United States Trustee's Response in Support of the Motion of the Official Committee of Equity Security Holders for the Appointment of an Examiner Pursuant to Section 1104(c) of the Bankruptcy Code [Docket No. 3579]
07/26/2010 5142 Motion to Approve Application of the United States Trustee for Order Approving Appointment of Examiner Filed by United States Trustee. (Attachments: # 1 Exhibit A -- Hochberg Declaration# 2 Proposed Form of Order) (McMahon Jr., Joseph) (Entered: 07/26/2010) Application of the United States Trustee for Order Approving Appointment of Examiner
The declaration can be found in 103-4.pdf at http://www.mediafire.com/?sharekey=3b830df9f3d0e6fce7c82ed4b8f0c380aff12395630f22f3ce018c8114394287 Quoting: 12. Based on my review to date, there is no indication that the OTS performed a solvency analysis consistent with the test for insolvency specified in the Bankruptcy Code. There is no indication that the OTS assessed the fair sale-able value of the assets of WMB (or WMI). Nor is there an indication that OTS compared the fair sale-able value of the assets of WMB (or WMI) to the total amount of either company’s respective liabilities. There is no indication that the OTS performed a comprehensive cash flow analysis of WMB (or WMI). Instead, the OTS found that “WMB met the well-capitalized standards through the date of receivership.”8 Thus, without a thorough analysis of the assets, liabilities and capital of WMI and WMB, it is not possible to come to a reliable conclusion concerning the financial solvency of either entity, whether on a consolidated or stand-alone basis.
Here is another document that says as of August 14, 2008: "We propose to decapitalize WMBfsb by returning $20 billion of capital to its parent. The $20 billion will include the master note of approximately $7 billion, proceeds from $3.5 billion of Discount Notes and cash generated through additional wholesale deposits and advances from FHLB Seattle. We propose the payment of at least $10 billion by September 30, 2008 and the remaining $10 billion through December 2009."
"The net balance sheet of WMBfsb will be approximately $34 billion to $36 billion after Project Fillmore. The leverage ratio will decrease to 25% from 62%. A well-capitalized institution requires an 8% or higher leverage ratio."
Enclosed is a link to the affidavit of Doreen Logan who is the Controller/ Assistant Treasurer of Wamu who states that there was no liquidity problems;
Debtors seek the Rule 2004 examination of the following Knowledgeable Parties: (Pg. 443 onward shows internal emails of JPM talking about wiping out Wamu shareholders many months before the seizure)
"The Regulators" FDIC - The Federal Deposit Insurance Corporation, in its capacity as receiver for WMB and in its corporate capacity, OTS - Office of Thrift Supervision OCC - Office of the Comptroller of the Currency Federal Reserve - Board of Governors of the Federal Reserve System Treasury Department - U.S. Department of the Treasury SEC - U.S. Securities and Exchange Commission Paulson - former U.S. Treasury Secretary Henry M. Paulson, Jr
"The Rating Agencies" Moody's - Moody's Investors Service S&P - Standard and Poor's Corporation ("S&P")
"The WaMu Suitors" Banco Santander - Banco Santander, S.A. Toronto-Dominion - Toronto-Dominion Bank TD Bank - TD Bank, N.A. Wells Fargo - Wells Fargo, N.A.
"The Banks" FHLB-SF - Federal Home Loan Bank-San Francisco FHLB- Seattle - Federal Home Loan Bank-Seattle Goldman Sachs - The Goldman Sachs Group, Inc.
"The JPMC Professionals" PWC - PricewaterhouseCoopers Equale - Equale & Associates Holt - Richard F. Holt Horne - David Horne, LLC
Please read this descriptive complaint that was submitted to the SEC from Apex Venture Advisors Mike Stathis Managing Principal on October 7, 2008 in regards to the manipulation that occurred on Wamu's stock;
"The record shows that the swap was the only reason for this suit. It also shows that the FDIC knew that it had no factual or legal basis for its claims, and that its cases here and in Washington were shams."
As usual, Judge Hughes is acerbic in his opinion regarding the FDIC's conduct, noting in particular that FDIC officials "lied about it all under oath" and they "discarded the mantle of the American Republic for the cloak of a secret society of extortionists."
"It's hard to find a word that captures the essence of the FDIC's bringing this action. Irresponsible is close. Arbitrary, dishonest, exploitative, extortionate, and abusive all fit."
Judge Hughes concluded that Hurwitz and Maxxam "will recover their costs because the record reveals corrupt individuals within a corrupt agency with corrupt influences on it, bringing this litigation."
And now the connection between JPM and the FDIC........
3/26/09 Joe’s hired (from JPM) by the FDIC 3/26/09 as “Senior Advisor” to Sheila…to provide “policy and legal advice relating to complex financial transactions, bid structures, and capital markets.” I'm sure it was out of the goodness of his heart, service before self, duty to country? ummmmmmm, yeah~
8/04/10 By now, Joe’s getting tired, Job Done…."Joe has given the FDIC invaluable service during a challenging time in the FDIC's history. His input on marketing and resolution strategies and substantive expertise on capital markets has contributed to the FDIC's ability to address many complex and difficult failed bank resolutions," http://www.fdic.gov/news/news/press/2010/pr10177.html
He left his multi-million dollar salary behind at JPM to take a $250,000 position with the FDIC (FOR ONE YEAR) to clean up that "banking mess", and help them unload some banks to the likes of TPG/BONDERMAN?
Mr Examiner/EC members…I always wondered, why was TPG so eager/willing to convert their Preferreds to Commons? Perhaps make it easier and smoother to transition this big old ugly WAMU thing into the hands of the JPM?
On September 25, 2008, JPMorgan Chase acquired the banking operations of Washington Mutual. This transaction was accounted for under the purchase method of accounting for business combinations. The adjusted net asset value of the banking operations after purchase accounting adjustments was higher than the consideration paid by JPMorgan Chase, resulting in an extraordinary gain. The preliminary gain recognized in 2008 was $1.9 billion. In the third quarter of 2009, the Firm recognized a $76 million increase in the extraordinary gain associated with the final purchase accounting adjustments for the acquisition. For a further discussion of the Washington Mutual transaction, see Note 2 on pages 151–156 of this Annual Report
NET INCOME page16 Net income included an extraordinary gain of $76 million and $1.9 billion related to the Washington Mutual transaction for 2009 and 2008, respectively
Page 20 Net revenue was $32.7 billion, an increase of $9.2 billion, or 39%, from the prior year. Net interest income was $20.5 billion, up by $6.3 billion, or 45%, reflecting the impact of the Washington Mutual transaction, and wider loan and deposit spreads. Noninterest revenue was $12.2 billion, up by $2.8 billion, or 30%, driven by the impact of the Washington Mutual transaction
Page 21 Total net revenue was $23.5 billion, an increase of $6.2 billion, or 36%, from the prior year. Net interest income was $14.2 billion, up $3.6 billion, or 35%, benefiting from the Washington Mutual transaction, wider loan and deposit spreads, and higher loan and deposit balances. Noninterest revenue was $9.4 billion, up $2.6 billion, or 38%, as positive MSR risk management results, the impact of the Washington Mutual transaction, higher mortgage origination volume and higher deposit-related fees were partially offset by an increase in losses related to the repurchase of previously sold loans and markdowns on the mortgage warehouse.
Page22 Retail Banking reported net income of $3.9 billion, up by $921 million, or 31%, from the prior year. Total net revenue was $18.0 billion, up by $5.3 billion, or 42%, from the prior year. The increase reflected the impact of the Washington Mutual transaction, wider deposit spreads, higher average deposit balances and higher debit card income. The provision for credit losses was $1.1 billion, compared with $449 million in the prior year, reflecting higher estimated losses in the Business Banking portfolio. Noninterest expense was $10.4 billion, up by $3.1 billion, or 43%. The increase reflected the impact of the Washington Mutual transaction, higher FDIC insurance premiums and higher headcount-related expense.
page26 End-of-period managed loans were $163.4 billion, a decrease of $26.9 billion, or 14%, from the prior year, reflecting lower charge volume and a higher level of charge-offs. Average managed loans were $172.4 billion, an increase of $9.5 billion, or 6%, from the prior year, primarily due to the impact of the Washington Mutual transaction. Excluding the impact of the Washington Mutual transaction, end-of-period and average managed loans for 2009 were $143.8 billion and $148.8 billion, respectively.
—– Original Message —– From: Bair, Sheila C. To: Reich, John M Cc: Murton, Arthur J. ; Polakoff, Scott M Sent: Wed Aug Subject: W
Dear John,
I’d like to further discuss contingency planning for W during the calion Friday. Art talked with Scott about making some discrete inquiries to determine whether there are institutions which would be willing to acquire it on a whole bank basis if we had to do an emergency closing, and on what terms. I understand you have strong objections to our doing so, so I’d like to talk this through. My interest is in assuring that IF we have to market it on an emergency basis, there is multiple bidder interest. In any event, both the FDIC and the FRB agree that there needs to be a contingency plan in place, so let’s talk this through on Friday. I’d really like to develop a plan everyone is comfortable with.
Sheila
—–Original Message—– From: Reich, John M To: Bair, Sheila C. Sent: Wed Aug 06 17:32:482008 Subject: Re: W
Dear Sheila, You really know how to stir up a colleague’s vacation.
I do not under any circumstances want to discuss this on Friday’s conference call, in which I mayor may not be able to participate, depending on cell phone service availability on the cruise ship location.
Instead, I want to have a one on one meeting with Ben Bernanke prior to any such discussion – as early next week as possible following my return to the office. Also, I mayor may not choose to have a similar meeting with Secretary Paulson.
I should not have to remind you the FDIC has no role until the PFR (i.e. the OTS) rules on solvency and the PFR utilizes PCA.
You personally, and the FDIC as an agency, would likely create added instability if you pursue what I strongly believe would be a precipitous and unprecedented action. And ifit occurs without my consent, I will not sit quietly by and observe – there would be a public reaction. Put yourself in the PFR’s shoes in this situation. We have our responsibilities, including the right of primary supervisory determination of this institution’s condition, and until Congress changes the statutes under which we operate, our responsibilities as the PFR are not to be simply tendered to the FDIC in a down economic cycle.
It seems as though the FDIC is behaving as some sort of super-regulator – which you and it are not. I also believe there could be a high potential for FDIC actions of the type you are contemplating to calIse irreparable harm to Wamu if, at any point in the near future, Wamu wishes to actualy seek a buyer. The potential harm could stem from the fact that any such potential buyer may have been allready been contacted by the FDIC. If in fact any meetings or discussions have already taken place by the FDIC with either JPMC, Wells Fargo, or any other entity, in any capacity in which WaMu was even mentioned, I would like to see a copy of the signed confidentiality agreement signed by the bank – required in any resolution scenario before an institution is told the name of the failing bank.
This is an OTS regulated institution, not an FDIC regulated institution. We make any decision on solvency, not the FDIC, and I have staff equally as competent as staff at the FDIC, whom I know well.
The FDIC can do whatever internal contingency planning it wishes, but should in no way go outside the FDIC. This is a 3-rated institution. Are you also trying to find buyers for Citi, Wachovia, Nat City and others?
Finally, ifWamu were to learn ofthe FDIC’s actions, there may well be a question as to whether these actions may constitute a disclosable event. That, in and of itself, is a reason not to proceed with this approach for a publicly traded institution. The government should not be in the business of arranging mergers – particularly before they are necessary, and we are not at that point in WaMu’s situation.
I will attempt to be on the Friday conference call, and I am going to assume this notion is not going to be raised.
John
This excerpt is from John Reich's (OTS) email to Sheila Bair (FDIC) on 8/6/2008 (p264-265) says it all "The government should not be in the business of arranging mergers - particularly before they are necessary, and we are not at that point in WaMu's situation.”
This excerpt from John Reich's (OTS) email to Sheila Bair (FDIC) on 8/8/2008 (p260). "In my view rating WaMu a 4 would be a big error in judging the facts in this situation. It would appear to be a rating resulting from fear and not a rating based on the condition of the institution. WaMu has both the capital and the liquidity to justify a 3 rating."
This excerpt is from John Reich's (OTS) email to Sheila Bair (FDIC) Sent: Wed Aug 06 17:32:482008
"If in fact any meetings or discussions have already taken place by the FDIC with either JPMC, Wells Fargo, or any other entity, in any capacity in which WaMu was even mentioned, I would like to see a copy of the signed confidentiality agreement signed by the bank – required in any resolution scenario before an institution is told the name of the failing bank."
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