Read attorney Bryan Knight’s “Lennar-Rialto Incentive Analysis”
below this FDIC Bank Closure Victim overview written by Chuck Cushman.
The FDIC is closing an average of two banks a week. In the process they are damaging thousands of landowners and small businesses.
The FDIC bank closure loan resolution partnership with Lennar. Rialto and other Wall Street hedge funds is forcing the closure of thousands of businesses and destroying hundreds of thousands of jobs as well as preventing the creation of hundreds of thousands of new jobs to help the US through the economic recovery.
The FDIC designed incentives for Lennar, Rialto and other FDIC partners are all wrong.
Below is a document written by attorney Bryan Knight who has had numerous cases dealing with Lennar and Rialto. It looks at why the incentives created by the FDIC to get its partners to help resolve the loans involved in the bank-closing crisis are actually working against the economic recovery and destroying jobs. Lennar and Rialto and other FDIC partners are destroying thousands of businesses costing the country many thousands of jobs while being unwilling to work with borrower-victims of Banks closed by the FDIC.
This document will help the reader understand the poorly designed incentives created by FDIC to deal with their closing an average of two banks a week over the past two years. This bank closure process is continuing now. The FDIC created process is undermining the economic recovery and destroying thousands of jobs.
This is why Lennar and Rialto and other FDIC partners are forcing borrowers into foreclosure and going after their homes and other personal assets.
This process, in which the Obama FDIC is an active 60% partner, is working against the stated plan of President Obama to create jobs. It is destroying businessmen who, after losing their personal assets, cannot come back and hire people in the future to help the economy recovery. The overall FDIC bank closure loan resolution process is undermining the economic recovery, not helping it.
Chuck Cushman, American Land Rights Association
(360) 687-3087 – [email protected]
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Lennar-Rialto Incentive Analysis
By Bryan Knight
Here’s a synopsis of my thoughts on Lennar/Rialto’s role in the FDIC take over of banks:
In this country right now the biggest waste of government spending and most damaging program to the American public is the FDIC’s partnership with various Private-Public Investment Programs (“PPIP’s”), such as Lennar/Rialto. Through the FDIC’s compensation structure to Rialto, the sole motivation for the PPIPs is money rather than helping Americans through this country’s worst financial crisis.
The FDIC and companies like Rialto seek to flush out all troubled assets of failed banks by immediately filing suit, refusing to work out the loan and refusing to agree to a payment plan that benefits all parties. This uncompromising and litigious strategy is implemented by Rialto because it produces the most money for them, which I explain more fully.
There is an inherent conflict of interest between Lennar/Rialto and their duties to collect on loans of failed banks. First, Lennar/Rialto are paid asset management fees based on the amount of assets under management, which provides incentive for them to either do nothing or sue, rather than work out a settlement with the borrower. If a settlement if achieved, Lennar/Rialto do not get paid management fees.
Second, Rialto was given a $600 Million interest free non recourse loan by the Federal Government to purchase assets of failed banks. Therefore, Rialto has no risk in collecting on assets because no interest is accruing and Rialto is not liable to pay back the loan since the loan is a non-recourse. This gives Rialto even more incentive to refuse loan workouts and to collect asset management fees. It is not rocket science, a bank that has risk of taking a loss is more likely work with a borrower. Here Rialto has no risk.
Typically when a bank fails the FDIC allows other banks to bid on the assets. The winning bank then enters into a Loss-Share Agreement where the FDIC agrees to pay 85% of any losses the bank takes on the assets.
This structure gives the bank incentive to work out a loan and entertain settlement because they have the potential for a 15% loss. This is how the first of the failed banks were handled by the FDIC. The PPIP program stemmed from the onslaught of bank failures. Unlike the loss-share agreements, PPIPs like Rialto have no risk of a loss due to the interest free non-recourse loan, giving them no incentive to compromise.
Third, Rialto is paid at least 60% of its attorneys’ fees and sometimes 100%. Given the fact that Rialto will incur little to no attorneys’ fees motivates Rialto to sue first and ask questions later because instituting litigation keeps the assets under management for years. Even if Rialto is required to pay a portion of their attorneys’ fees, it is paid by the Federal Government’s $680 Million dollar interest free, non-recourse loan.
Inequitable federal laws provide the FDIC and Rialto with additional leverage against borrowers because almost all defenses and counterclaims are precluded by D’Oench Duhme Doctrine and the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIERREA”). The D’Oench Duhme doctrine stems from D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 459 (1942), which is a product of the Great Depression and the creation of the FDIC.
This case sought to invalidate secret agreements between borrowers and a failed bank.
The purpose of the D’Oench Duhme doctrine is to provide the FDIC with notice of any loan modifications or variances from loan documents. D’Oench Duhme prohibits any claim or defense against a predecessor bank or the FDIC unless it is: (1) in writing, (2) executed by the bank, (3) approved by the board of directors of the bank and (4) the writing was maintained as an official record of the bank. Porras v. Petroplex Sav. Ass’n, 903 F.2d 379 (5th Cir.
This doctrine precludes all claims and defenses against the bank or FDIC that don’t meet all four elements, which include verbal loan extensions, modifications and payment modifications, fraudulent representations by the bank and negligent lending practices.
For instance, if a bank tells a borrower that their loan will be extended, modified or that lesser payments will be allowable and then the bank is taken over by the FDIC, the borrower cannot enforce these representations.
An even more egregious example is if a bank induces a borrower to enter into an acquisition and development loan with the promise that the bank will provide a construction loan and later refuses, the borrower is stuck with the loan and cannot claim damages resulting from the fraudulent representation.
During the Savings and Loan crisis of the 1980′s Congress passed FIERREA to provide powers and procedures for the FDIC to follow, See 12 U.S.C. 1821.
One procedural hurdle, codified by 12 USC 1821(d), requires a borrower to file any claim against a predecessor bank or the FDIC within 90 days of the FDIC taking over the predecessor bank, even though the FDIC does not have to give notice of this requirement. See FDIC v. Vernon Real Estate Invs., Ltd,
798 F. Supp. 1009, 1017 (S.D.N.Y. 1992); McCarthy v. FDIC, 348 F.3d 1075 (2003).
If the borrower fails to make a claim with the FDIC within 90 days of take over, all claims are waived. Here, there are due process concerns since the FDIC does not even have to give notice of this procedure.
Most citizens are not aware of FIERREA and almost always waive their claims.
D’Oench Duhme solely affects those borrowers that have trusted relations with their banks, such that would not require written modifications or documentation for payment adjustments. Most banks that have been taken over by the FDIC are small community banks that tend to have this precise relationship with their clients.
FIERREA wipes out a borrowers ability to make any kind of claim even if it is in writing sufficient to pass D’Oench Duhme. Everyday citizens cannot be expected to know about this 90 day deadline. The FDIC at the very leaset should be responsible for sending notice of the claims deadline.
These two legal doctrines have in essence invalided hundreds of years of legal precedent concerning contract and tort law, which gives Lennar/Rialto tremendous leverage against borrowers, because borrowers are stripped of any defense or counterclaim and left to the mercy of Lennar/Rialto who take full advantage of this power.
The big picture is that no one could have foreseen the real estate crash or this financial crisis, which is why the federal government bailed out the big banks that were too big to fail. However, the everyday citizen has received no semblance of help, but instead has been forced to bare the brunt of these negligent lending practices.
Rather than give Rialto $600 Million in interest free loans and millions in asset management fees, the federal government should put that money into programs to help workout these loans to keep citizens from finical ruin and businesses from closing, similar to Obama’s mortgage laws.
Bryan M. Knight, Esq.
KNIGHT JOHNSON, LLC
Promenade Two |19th Floor
1230 Peachtree Street
Atlanta, Georgia 30309
P: (404) 228-4822
F: (404) 228-4821
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—–Please forward this message as widely as possible. Especially to Congressional staff. The more people who get this document the better chance you have to get the House Financial Services Committee and the Senate Banking Committee to change the law and save thousands of FDIC Bank Closure Victims.
Lennar, Rialto and other FDIC partners must be stopped from going after the personal homes and assets of FDIC bank closure victims. If Lennar, Rialto and other FDIC partners continue their scorched earth policy, tens of thousands of small businesses and their owners will be destroyed and prevented from created jobs and helping with the economic recovery.
Thank you in advance for your support.
American Land Rights Association