The Greatest Heist In History

Whitney Tilson published this piece in January, when Tim Geithner’s bank bailout plan was first under discussion. The plan has now largely become a reality.  Private investors will fund a tiny portion of the wealth-transfer.  Bank debt holders, needless to say, are not losing a dime.


There’s currently an idea to fix the financial system that’s getting quite a bit of traction: an RTC-type program whereby the government would buy $1 trillion of troubled assets from struggling U.S. banks, with the goal of restoring them to health so they can begin lending again, leading to an economic recovery.

The problem with this idea (let’s call it “New RTC”) is that either the government will pay market prices for the toxic assets – in which case, it will simply accelerate the collapse of our financial system – or pay above-market prices, in which case taxpayers will likely suffer big losses.

There is another option, however, which involves debt holders taking a share of the losses.  If steps are not taken to ensure that this happens, the greatest heist in history will have occurred: at least $1 trillion will be transferred from taxpayers to debt holders of failed financial institutions.  This must not be allowed to happen.

Mark-to-Market vs. Real Losses

To understand the government’s dilemma, one must realise that the great majority of the not-yet-recognised losses in our financial system are not short-term, mark-to-market losses that will someday be reversed, but permanent losses.  This is a huge misunderstanding that many people, especially those in Washington , seem to be suffering from.

To understand why the losses are real, consider this simple example: imagine a bank that lent someone $750,000 via an Option ARM mortgage to buy a McMansion in California at the peak of the bubble less than two years ago.  Virtually all homeowners with this type of loan will default, thanks to declining home prices, the structure of the loan, and the fact that 70-80% of Option ARMs were liar’s loans.  If we assume the house is only worth $400,000 today, then there’s been an actual loss of $350,000.  That money will never be recovered.  If one considers the millions of toxic loans made during the bubble – subprime, Alt-A, Option ARM and second mortgages, home equity lines of credit, commercial real estate, leveraged loans, credit cards, etc. – it easily adds up to at least $1 trillion in additional, unrecognised very real losses.

Imagine that New RTC buys this loan for $400,000.  In this case, it might not lose money, but then the bank (or the structured finance pool) holding the loan has to immediately realise the loss of $350,000 – and it is certain that the U.S. (and world) financial system has not even come close to marking these assets to what they’re really worth, which explains why they won’t lend, even when given new money.  Thus, if New RTC buys these assets at fair value, then the financial institutions suffer the losses – but this would bankrupt many of them.  Yet if New RTC pays the inflated prices they’re marked at today, then it (and taxpayers) will suffer huge losses.

Who Should Bear the Losses?

To save our financial system, somebody’s going to have bear these losses – the only question is, who?  Some fraction of this will certainly have to be taxpayer money, but all of it needn’t be if the government would stop bailing out all of the debt holders.

Government policy has been all over the map.  Among the large financial institutions that have run into trouble (in chronological order, Bear Stearns, IndyMac, Fannie & Freddie, Lehman, AIG, WaMu, Citigroup and Bank of America), in some cases the equity was somewhat protected, while in others was wiped out, and likewise with the debt.  Most likely due to the chaos that ensued after Lehman filed for bankruptcy, the current policy, as reflected in the most recent cases of Citi and BofA, is to at least partially protect the shareholders and, incredibly, 100% protect all debt holders, even junior/unsecured/subordinated debt holders.

The result is at least a $1 trillion transfer of wealth from taxpayers to debt holders.  This makes no sense from a financial, fairness or moral hazard perspective.  While there’s an argument that the government should protect senior debt holders to preserve confidence in the system (even though they knowingly took risk – after all, they could have bought Treasuries), the junior debt holders got paid even higher interest in exchange for knowingly taking even more risk by being subordinate in the capital structure (of course, equity and preferred equity holders are the most junior).  These investors made bad decisions, buying junior positions in highly leveraged companies that made bad decisions, so why should they be protected?

Moreover, the reckless behaviour of debt investors was a major contributor to the bubble.  It was low-cost debt with virtually no strings attached that allowed borrowers, especially the world’s major financial institutions, to become massively overleveraged, fueling the greatest asset bubble in history.  This was not an equity bubble – unlike the internet bubble, for example, stock market valuations never got crazy – it was a debt bubble, so it would be particularly perverse and ironic if government bailouts allowed equity holders to take a beating, yet fully protected debt holders.

Case Study: Bank of America

Let’s look at Bank of America, which effectively went bankrupt last week (disclosure: we are short the stock).  The cost to taxpayers of avoiding this outcome wasn’t the headline $20 billion, but far more – the government is going to take a bath on the $120 billion that it guaranteed – and it’s likely that this is just the beginning of the losses.

Consider this: as of the end of 2008, BofA had $1.82 trillion in assets ($1.72 trillion excluding goodwill and intangibles), supported by a mere $86.6 billion in tangible equity – 5.0% of tangible assets or 20:1 leverage – and $48.9 billion of tangible common equity – 2.8% of tangible assets or 35:1 leverage (common equity excludes the TARP injection of capital in the form of preferred stock, which has characteristics of both debt and equity).  (All data from BofA’s earnings release on 1/16/09,; note that these figures include Countrywide, but not Merrill Lynch)

At such leverage levels, it only takes tiny losses to plunge a company into insolvency.  It’s impossible to know with precision what BofA’s ultimate losses will be, but among the company’s loans are many in areas of great stress including $342.8 billion of commercial loans ($6.5 billion of which is nonperforming, up from $2.2 billion a year earlier), $253.5 billion of residential mortgages ($7.0 billion of which is nonperforming, up from $2.0 billion a year earlier), $152.5 billion of home equity loans (HELOCs; about $33 billion of which were Countrywide’s), and $18.2 billion of Option ARMs (on top of the $253.5 billion of residential mortgages; all of which were from Countrywide, which reported that as of June 30, 2008, 72% were negatively amortizing and 83% had been underwritten with low or no doc).

BofA is acknowledging a significant increase in losses, but its reserving has actually become more aggressive over the past year.  From the end of 2007 to the end of 2008, nonperforming assets more than tripled from $5.9 billion to $18.2 billion, yet the allowance for credit losses didn’t even double, from $12.1 billion to $23.5 billion.  As a result, the allowance for loan and lease losses as a percentage of total nonperforming loans and leases declined from 207% to 141%.

 So BofA had big problems on its own and then made two very ill-advised acquisitions, the result of which effectively wiped out the company, causing the government to come in and bail it out, at a huge cost to taxpayers.  So what price is being paid?  NONE!  The architect of this debacle, Ken Lewis, is still in place, as is the board that approved everything he did.  Ditto with Citi.  These banks are just getting do-overs, with the management, boards and debt holders not being touched – the only losers are the common shareholders (to some extent) and taxpayers (to a huge extent).

Since big losses from Merrill Lynch triggered last week’s bailout of BofA, why are all of its debt holders ($5.3 billion of junior subordinated notes, $31.2 billion of short-term debt and $206.6 billion of long-term debt) being protected 100%, while taxpayers are taking a bath eating Merrill’s losses from its reckless, greedy behaviour?!  This is madness.

A Better Solution

So what’s a better solution?  I’m not arguing that BofA (or Citi or WaMu or Fannie or Freddie or AIG or Bear) should have been allowed to go bankrupt – we all saw the chaos that ensued when Lehman went bankrupt.  Rather, if a company blows up (and can’t find a buyer), the following things should happen:

1) The government seizes it and puts it into conservatorship (as Fannie, Freddie, IndyMac and AIG effectively were, to one degree or another);

2) Equity is wiped out (again, as with Fannie, Freddie, IndyMac and AIG);

3) However, unlike Fannie, Freddie, IndyMac and AIG (and certainly Citi and BofA), everything in the capital structure except maybe the senior debt is at risk and absorbs losses as they are realised; the government would only provide a backstop above a certain level.  This is what happened in the RTC bailout;

4) Over time, in conservatorship, while the businesses continue to operate (no mass layoffs, distressed sales, etc.), the government disposes of the companies in a variety of ways (just as the RTC did via runoff, selling the entire company or piece-by-piece, etc.), depending on the circumstances (as it’s doing with AIG and IndyMac, for example – these are good examples, except that the debt holders were protected).


One counter-argument to my proposal is that we don’t want the government to nationalize banks.  I don’t like it either, but the alternative – inject hundreds of billions of dollars of taxpayer money and not take control – is even less palatable.  There should certainly be urgency in disposing of the companies, but also the recognition that it could take years, as with the RTC.

Another counter-argument is Lehman: nobody wants a repeat of the chaos that ensued when the company went under and debt holders were wiped out.  But the mistake here wasn’t the failure to protect the debt, but rather allowing the company to go bankrupt, which not only impacted Lehman’s equity and debt holders, but also stiffed Lehman’s countless clients and counterparties.  It’s the latter that caused the true chaos.  Lehman should have been seized and put into conservatorship, so that all of Lehman’s clients and counterparties could have relied on Lehman (as was done with AIG) – but debt holders would have taken losses as they were realised (which is not being done with AIG).

A final argument for protecting the debt is the fear of contagion effects: for example, other financial institutions who own the debt might become insolvent (this was probably why Fannie and Freddie subdebt was saved).  Also, debt markets might freeze up such that even currently healthy banks might not be able to access debt and collapse.

Regarding the former, the debt is owned by a wide range of institutions all over the world: sovereign wealth funds, pension funds, endowments, insurance companies and, to be sure, other banks.  Some of them would no doubt be hurt if they take losses on the debt they hold in troubled financial institutions – but that’s no reason to protect all of them 100% with taxpayer money.

As for the latter concern that debt markets might freeze up, causing even healthy banks to collapse, it’s important to understand that right now there is no junior debt available to any financial institution with even a hint of weakness – there’s very high cost equity and government-guaranteed debt.  Neither of these will be affected if legacy debt holders are forced to bear some of the cost of the failure of certain institutions.


The new Obama administration needs to understand that greatest heist in history is underway – at least $1 trillion is being transferred from taxpayers to debt holders of failed financial institutions – and take steps to stop it before taxpayers suffer further unnecessary losses.

Whitney Tilson is a portfolio manager at Tilson Funds.  He writes on value investing for the Financial TimesKiplinger’s, has written for the Motley Fool and, was one of the authors of Poor Charlie’s Almanack, the definitive book on Berkshire Hathaway Vice Chairman Charlie Munger, and teaches financial statement analysis and business valuation for the Dickie Group.  He was featured on 60 Minutes last December, was one of five investors included in SmartMoney’s Power 30, was named by Institutional Investor as one of 20 Rising Stars, has appeared dozens times on CNBC, Bloomberg TV, Fox Business Network, Lou Dobbs Moneyline and Wall $treet Week, was on the cover of the July 2007 Kiplinger’s, has been profiled by the Wall Street Journal and the Washington Post, and has spoken widely on value investing and behavioural finance.

Business Insider Emails & Alerts

Site highlights each day to your inbox.

Follow Business Insider Australia on Facebook, Twitter, LinkedIn, and Instagram.