Apologies for the length of this post.
Since 2008, the term “derivative” with regard to the finance industry has become much maligned and has been regularly used, both in the press (which loves a simple story) and among politicians (who love to see someone else blamed for problems) as the all purpose villain in the story of our economic collapse of that year. And this notion of “derivatives” as somehow to blame for our troubles has largely been absorbed by a public that in fact knows next to nothing about what a derivative actually is, much less the part they might have played in fueling the crisis which came in 2008. So perhaps an explanation of what derivatives are and the role they play might serve to dispel some of the misinformation that our politicians and the press are happy to leave lingering in the public mind.
First of all, the term “derivative” is a generic term that refers to any product or contract the value of which is based upon, or derived from, the value of another product. What does this mean? Well, consider perhaps the easiest to explain, a simple commodity derivative, or what is more commonly know as a commodity swap. The current price of a barrel of oil is about $85, but we have no idea what the price will be in 6 months. Imagine a contract between you and I in which I agree to pay you $85 a barrel for 100 barrels of oil in 6 months, and you agree to pay me whatever the actual price is in that day, also for 100 barrels. Now since we are each buying and selling the same number of barrels of oil to each other, there is no actual exchange of oil. All that will be exchanged, or “swapped”, in 6 months is a cash flow. I pay you $8,500 (85 times 100) and you pay me X times 100 where X equals the price in 6 months. The value of our contract is derived from the price of oil, even though neither of us is actually buying oil. Hence, it is a derivative.
How, you might be wondering, could such a contract have precipitated the demise of the housing market in 2008? It couldn’t. And didn’t. In fact there are all kinds of different derivative markets…fixed income derivatives, equity derivatives, credit derivatives, commodity derivatives, etc. These are all very distinct markets, and most of them had nothing whatsoever to do with the collapse in the market in 2008.
There was one financial innovation in particular which did contribute to the problems in 2008, the CDO, or collateralized debt obligation. These were groups of mortgages packaged together as a single security and sold to investors. How did this contribute to the problems of 2008? The demand for CDO’s greatly increased the amount of money available to mortgage borrowers, resulting in easy borrowing and thus helped fuel the buildup of the housing bubble. The thing is, CDO’s are not derivatives. They are securities.
Now, there are, derivatives on CDOs, called synthetic CDOs, and as you might have guessed, are contracts that derive their value from underlying packages of mortgages. They are essentially a form of credit derivative, wherein one party buys protection from the other contracting party regarding some underlying credit event. In a typical credit derivative, the underlying credit event is usually the default of a given company on a given piece of debt. The buyer of protection will pay a monthly or quarterly premium to the seller, and the seller agrees to pay the difference between par and value of the referenced debt in the event of default. In a synthetic CDO, the referenced credit event is the default on a package of referenced mortgages.
It was these synthetic CDOs that were the subject of the infamous congressional inquiries which featured testimony from several Goldman Sachs employees, including Lloyd Blankfein. Now, there are definitely some interesting ethical issues involved in creating these synthetic CDOs, because if the buyer of protection does not actually own the referenced credit risks, his purchase is little more than a bet that the referenced credits will default, and the sooner the defaults occur, the bigger the payoff for the buyer. So in a synthetic CDO, the buyer has an incentive to include the riskiest possible mortgages. The seller, of course, wants the safest ones. Generally speaking, this wouldn’t be a problem, as both sides have to do their own analysis of the mortgages involved, and they both must agree for a deal to get done. But what if the seller is relying on the advice of the arranger, Goldman Sachs, and GS fails to advise them that the buyer does not actually own the underlying credit risks, and is therefore selecting the underlying credits based on the likelihood of default? This was the nub of the criticism aimed at GS during it’s congressional testimony.
But whatever you think of the ethical issues involved, these types of derivatives did not really contribute to the underlying conditions that led to the collapse of 2008. Remember that, as derivatives, they weren’t actually adding money to the mortgage market, as regular CDOs did. They were nothing more than either hedges as protection against the default of mortgages that were already owned, or they were bets against the performance of already written loans. And there is even a reasonable argument to be made that, had more people been willing to buy naked protection sooner (ie bet against the performance of mortgages), it would have been a signal that the real estate market was over heating and may have burst the bubble sooner.
The one way in which derivatives can be said to have contributed to events is that they compounded the liquidity issues faced by financial institutions in the fall of 2008. Most derivative contracts between market participants are collateralized, which means that, as the value of the contract changes, collateral must be posted on a daily basis to cover that value. As markets became tumultuous in 2008, a lot of these contracts required larger and larger postings of collateral, at exactly the time that it was becoming more and more expensive, and in some cases impossible, to borrow short term money. This is precisely what happened to AIG. It couldn’t borrow the money to meet its increasing margin and collateral obligations.
In any event, the point here is basically that the demonization of derivatives is much too overblown. While there are certainly legitimate questions to be raised regarding the structuring of certain kinds of derivatives, most derivatives played virtually no role in the collapse of the economy in 2008, and certainly were not responsible for the wider economic conditions in the nation, the consequences of which we are are still living with today.
Filed under: Uncategorized |
Thanks Scott, I understand the term derivative better, but I'm not sure I've heard or read anyone actually condemning all types of derivatives. The banks were essentially over-leveraged and when the bottom fell out of the housing market they were caught with their pants down and the taxpayers, via the Federal government, had to go in and bail them out. That's what has people mad I think. And the fact that they then began to cover their asses by trying to slip fraudulent paper work past an unsuspecting and perhaps uninformed public hasn't really helped their image. Generally, most people won't understand the terms the financial world uses but they know when they've been ripped off and when the odds are stacked against them.Do you think there was or wasn't a fraudulent component to mortgage backed derivatives?
LikeLike
lms:Do you think there was or wasn't a fraudulent component to mortgage backed derivatives? If you are talking about synthetic CDO's, or credit derivatives, then no. As I mentioned, it is possible that some of the arrangers were not as upfront as they might have been with some of the writers of protection about what was motivating the buyer and hence the types of assets included in the packages. But fraud is too strong a word I think. And, in any event, these had nothing to do with actual individual borrowers, which I think is who you are talking about being defrauded. BTW, what specifically are you talking about when you speak of banks "covering their asses by trying to slip fraudulent paperwork past an unsuspecting and perhaps uninformed pulbic"?
LikeLike
The banks foreclosing on the properties.
LikeLike
I confess that I am not that well-versed in this foreclosure issue. So what were they trying to cover for? And what was the fraudulent paperwork?
LikeLike
I'm on the run this morning but I'll get back to you on the details. Quickly though, this is the issue the state Attorneys General have been working on. The titles were not recorded properly on many of these mortgages and then the banks in order to foreclose covered their tracks by robo-signing the documents. In many cases it has been difficult to track the owner of record during foreclosure proceedings. The cost of this to the banks could be enough to bring some of them down, particularly BofA, although I doubt that will ever happen. Most of us see another bailout in the works on this front.I'll try to dig up some links later. I had a late night with my volunteer job and have to play catch up around here today.
LikeLike
lms:The question I have is whether people who are actually still making their mortgage payments have been foreclosed upon, or if (as my admittedly less than fully informed sense tells me) the people being foreclosed upon have indeed defaulted on their loans but the paperwork documenting who actually owns the note and is therefore in a position to foreclose is not in order. If the former, then that truly is an unjust situation for which the banks should be punished. If the latter, then the person who defaulted should indeed be foreclosed upon, and just who it is that is the victim here is not entirely clear to me.
LikeLike
It is even worse than titles not being recorded properly. Due to the volume, people have been foreclosed on that owned their home outright, but it still went through because there was no checking, due to volume.http://www.southcoastaccidentattorney.com/blog/wrongful-foreclosure-lockout-and-trashout-case-settled.cfmThere was an entire article in the printed Reader's Digest, but damned if I can find in their online presence.
LikeLike
In the Reader's Digest article, yes, there was an instance where the people outright owned their house, no mortgage, but because an address was incorrectly noted on the papers, they were foreclosed on. They fought it and won, but it was expensive.
LikeLike
I've heard of that one story, but it's the only one I've heard of involving a foreclosure filed against someone without a basis for foreclosure. Not to excuse that, but to put it in a little perspective, I've represented a company for years that has had thousands of lawsuits filed against it simply by people who never used its product, because their lawyers simply couldn't be bothered to identify which products they actually used and instead just sued everyone in the market. It's hard to quantify, but this has undoubtedly cost this client millions of dollars. I defended a bank once in a class action filed by a guy whose "claim" was that, because his lender had gone insolvent and his mortgage sold to another bank by RTC, he could no longer be charged interest. Utterly frivolous, but it cost the client a lot of money to get it dismissed. These things happen in the legal world, sometimes more through malice than carelessness.99.9% of the people who've been subject to foreclosure indeed defaulted. They are making a complaint about paperwork and how their cases were filed, but it has nothing to do with the merits of the foreclosure. The foreclosure boom is a tragic result of the economy, but they aren't are result of fraud or "robo-signing."
LikeLike
QB- I had a similarly malicious action by a company and attorney who attempted, with some success, to prevent the sale of my client's property by claiming a completely frivolous lien. They created this completely fraudulent and manufactured line of title to the property and then objected when we went to sell it. It was cheaper to just pay them a few grand to go away rather than put off the deal and spend the attorney fees necessary to get rid of the fraudulent claim.
LikeLike