Full text of Wall Street and the Financial Crisis: Anatomy of a Financial Collapse : Majority and Minority Staff Report, Permanent Subcommittee on Investigations, Committee on Homeland Security and Governmental Affairs, United States Senate, April 13, 2011

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United States Senate

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
Committee on Homeland Security and Governmental Affairs
Carl Levin, Chairman
Tom Coburn, Ranking Minority Member

WALL STREET AND
THE FINANCIAL CRISIS:
Anatomy of a Financial Collapse
MAJORITY AND MINORITY
STAFF REPORT
PERMANENT SUBCOMMITTEE
ON INVESTIGATIONS
UNITED STATES SENATE

April 13, 2011

SENATOR CARL LEVIN
Chairman
SENATOR TOM COBURN, M.D.
Ranking Minority Member
PERMANENT SUBCOMMITTEE ON INVESTIGATIONS
ELISE J. BEAN
Staff Director and Chief Counsel
ROBERT L. ROACH
Counsel and Chief Investigator
LAURA E. STUBER
Counsel
ZACHARY I. SCHRAM
Counsel
DANIEL J. GOSHORN
Counsel
DAVID H. KATZ
Counsel
ALLISON F. MURPHY
Counsel
ADAM C. HENDERSON
Professional Staff Member
PAULINE E. CALANDE
Detailee

MICHAEL J. MARTINEAU
Detailee

CHRISTOPHER J. BARKLEY
Staff Director to the Minority
ANTHONY G. COTTO
Counsel to the Minority
KEITH B. ASHDOWN
Chief Investigator to the Minority
JUSTIN J. ROOD
Senior Investigator to the Minority
VANESSA CAREIRO
Law Clerk
BRITTANY CLEMENT
Law Clerk
DAVID DeBARROS
Law Clerk
ERIN HELLING
Law Clerk

HELENA MAN
Law Clerk
JOSHUA NIMMO
Intern
ROBERT PECKERMAN
Intern
TANVI ZAVERI
Law Clerk

MARY D. ROBERTSON
Chief Clerk

5/10/11

Permanent Subcommittee on Investigations
199 Russell Senate Office Building – W ashington, D.C. 20510
Main Number: 202/224-9505
W eb Address: www.hsgac.senate.gov [Follow Link to “Subcommittees,” to “Investigations”]

WALL STREET AND THE FINANCIAL CRISIS:
Anatomy of a Financial Collapse
TABLE OF CONTENTS
I.

EXECUTIVE SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Subcommittee Investigation . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Overview . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(1) High Risk Lending: Case Study of Washington Mutual Bank. . . . . . . . . . . . . . . . . . 2
(2) Regulatory Failure: Case Study of the Office of Thrift Supervision. . . . . . . . . . . . . . 4
(3) Inflated Credit Ratings: Case Study of Moody’s and Standard & Poor’s. . . . . . . . . . 5
(4) Investment Bank Abuses: Case Study of Goldman Sachs and Deutsche Bank.. . . . . 7
C. Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

II.

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Rise of Too-Big-To-Fail U.S. Financial Institutions. . . . . . . . . . . . . . . . . . . . . . . . . . .
B. High Risk Mortgage Lending. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Credit Ratings and Structured Finance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Investment Banks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. Market Oversight. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F. Government Sponsored Enterprises. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
G. Administrative and Legislative Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
H. Financial Crisis Timeline. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15
15
17
26
32
36
41
43
45

III. HIGH RISK LENDING:
CASE STUDY OF WASHINGTON MUTUAL BANK. . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Subcommittee Investigation and Findings of Fact.. . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Major Business Lines and Key Personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) Loan Origination Channels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Long Beach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Securitization.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Overview of WaMu’s Rise and Fall. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. High Risk Lending Strategy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Strategic Direction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) Approval of Strategy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Definition of High Risk Lending.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Gain on Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Acknowledging Unsustainable Housing Price Increases.. . . . . . . . . . . . . . . . . . . . . .
(6) Execution of the High Risk Lending Strategy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Shoddy Lending Practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Long Beach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

48
50
51
51
52
54
55
56
58
60
60
62
64
65
68
75
75

i

(2) WaMu Retail Lending. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
(a) Inadequate Systems and Weak Oversight. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
(b) Risk Layering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
(c) Loan Fraud. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
(d) Steering Borrowers to High Risk Option ARMs. . . . . . . . . . . . . . . . . . . . . . . . . 104
(e) Marginalization of WaMu Risk Managers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
E. Polluting the Financial System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
(1) WaMu and Long Beach Securitizations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
(2) Deficient Securitization Practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
(3) Securitizing Delinquency-Prone Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
(4) WaMu Loan Sales to Fannie Mae and Freddie Mac. . . . . . . . . . . . . . . . . . . . . . . . . . 136
F. Destructive Compensation Practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
(1) Sales Culture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
(2) Paying for Speed and Volume. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
(a) Long Beach Account Executives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
(b) WaMu Loan Consultants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
(c) Loan Processors and Quality Assurance Controllers. . . . . . . . . . . . . . . . . . . . . . 151
(3) WaMu Executive Compensation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
G. Preventing High Risk Lending. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
(1) New Developments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
(2) Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
1. Ensure “Qualified Mortgages” Are Low Risk. . . . . . . . . . . . . . . . . . . . . . . . . . . 160
2. Require Meaningful Risk Retention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
3. Safeguard Against High Risk Products. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
4. Require Greater Reserves for Negative Amortization Loans.. . . . . . . . . . . . . . . 160
5. Safeguard Bank Investment Portfolios.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
IV. REGULATORY FAILURE:
CASE STUDY OF THE OFFICE OF THRIFT SUPERVISION. . . . . . . . . . . . . . . . . . . 161
A. Subcommittee Investigation and Findings of Fact.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
B. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
(1) Office of Thrift Supervision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
(2) Federal Deposit Insurance Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
(3) Examination Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
C. Washington Mutual Examination History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
(1) Regulatory Challenges Related to Washington Mutual.. . . . . . . . . . . . . . . . . . . . . . . 169
(2) Overview of Washington Mutual’s Ratings History and Closure. . . . . . . . . . . . . . . . 173
(3) OTS Identification of WaMu Deficiencies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
(a) Deficiencies in Lending Standards.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
(b) Deficiencies in Risk Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
(c) Deficiencies in Home Appraisals.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
(d) Deficiencies Related to Long Beach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
(e) Over 500 Deficiencies in 5 Years. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
(4) OTS Turf War Against the FDIC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
ii

D. Regulatory Failures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
(1) OTS’ Failed Oversight of WaMu. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
(a) Deference to Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
(b) Demoralized Examiners.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
(c) Narrow Regulatory Focus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
(d) Inflated CAMELS Ratings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
(e) Fee Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
(2) Other Regulatory Failures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
(a) Countrywide.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
(b) IndyMac. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
(c) New Century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
(d) Fremont. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
E. Preventing Regulatory Failures.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
(1) New Developments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
(2) Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
1. Complete OTS Dismantling.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
2. Strengthen Enforcement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
3. Strengthen CAMELS Ratings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
4. Evaluate Impacts of High Risk Lending. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
V.

INFLATED CREDIT RATINGS:
CASE STUDY OF MOODY’S AND STANDARD & POOR’S. . . . . . . . . . . . . . . . . . . . . 243
A. Subcommittee Investigation and Findings of Fact.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
B. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
(1) Credit Ratings Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
(2) The Rating Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
(3) Record Revenues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
C. Mass Credit Rating Downgrades.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
(1) Increasing High Risk Loans and Unaffordable Housing. . . . . . . . . . . . . . . . . . . . . . . 259
(2) Mass Downgrades. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
D. Ratings Deficiencies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
(1) Awareness of Increasing Credit Risks.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
(2) CRA Conflicts of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
(a) Drive for Market Share. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
(b) Investment Bank Pressure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
(3) Inaccurate Models. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
(a) Inadequate Data. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
(b) Unclear and Subjective Ratings Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
(4) Failure to Retest After Model Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
(5) Inadequate Resources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
(6) Mortgage Fraud. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
E. Preventing Inflated Credit Ratings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
(1) Past Credit Rating Agency Oversight. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
iii

(2) New Developments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
(3) Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
1. Rank Credit Rating Agencies by Accuracy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
2. Help Investors Hold CRAs Accountable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
3. Strengthen CRA Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
4. Ensure CRAs Recognize Risk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
5. Strengthen Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
6. Reduce Ratings Reliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
VI. INVESTMENT BANK ABUSES:
CASE STUDY OF GOLDMAN SACHS AND DEUTSCHE BANK.. . . . . . . . . . . . . . . . 318
A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
(1) Investment Banks In General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
(2) Roles and Duties of an Investment Bank: Market Maker, Underwriter,
Placement Agent, Broker-Dealer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
(3) Structured Finance Products. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325
B. Running the CDO Machine: Case Study of Deutsche Bank. . . . . . . . . . . . . . . . . . . . 330
(1) Subcommittee Investigation and Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . 333
(2) Deutsche Bank Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
(3) Deutsche Bank’s $5 Billion Short . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
(a) Lippmann’s Negative Views of Mortgage Related Assets. . . . . . . . . . . . . . . . . 337
(b) Building and Cashing in the $5 Billion Short. . . . . . . . . . . . . . . . . . . . . . . . . . . 341
(4) The “CDO Machine” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
(5) Gemstone.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
(a) Background on Gemstone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
(b) Gemstone Asset Selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
(c) Gemstone Risks and Poor Quality Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
(d) Gemstone Sales Effort. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
(e) Gemstone Losses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
(6) Other Deutsche Bank CDOs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
(7) Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
C. Failing to Manage Conflicts of Interest: Case Study of Goldman Sachs. . . . . . . . . . 376
(1) Subcommittee Investigation and Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . 376
(2) Goldman Sachs Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
(3) Overview of Goldman Sachs Case Study. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382
(a) Overview of How Goldman Shorted the Subprime Mortgage Market. . . . . . . . 382
(b) Overview of Goldman’s CDO Activities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
(4) How Goldman Shorted the Subprime Mortgage Market.. . . . . . . . . . . . . . . . . . . . . . 398
(a) Starting $6 Billion Net Long. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
(b) Going Past Home: Goldman’s First Net Short. . . . . . . . . . . . . . . . . . . . . . . . . . 404
(c) Attempted Short Squeeze.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
(d) Building the Big Short. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
(e) “Get Down Now”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440
iv

(f) Profiting from the Big Short: Making “Serious Money”. . . . . . . . . . . . . . . . . . . 444
(g) Goldman’s Records Confirm Large Short Position. . . . . . . . . . . . . . . . . . . . . . . 445
(i) Top Sheets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
(ii) Risk Reports.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
(h) Profiting From the Big Short. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466
(5) How Goldman Created and Failed to Manage Conflicts of Interest in its
Securitization Activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474
(a) Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477
(i) Goldman’s Securitization Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477
(ii) Goldman’s Negative Market View. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
(iii) Goldman’s Securitization Sell Off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481
AA. RMBS Sell Off.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481
BB. CDO Sell Off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492
CC. CDO Marks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
DD. Customer Losses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507
(b) Goldman’s Conflicts of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(i) Conflicts of Interest Involving RMBS Securities. . . . . . . . . . . . . . . . . . . . 513
(ii) Conflicts of Interest Involving Sales of CDO Securities. . . . . . . . . . . . . . 516
AA. Hudson Mezzanine Funding 2006-1. . . . . . . . . . . . . . . . . . . . . . . . . 517
BB. Anderson Mezzanine Funding 2007-1.. . . . . . . . . . . . . . . . . . . . . . . 532
CC. Timberwolf I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
DD. Abacus 2007-AC1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560
(iii) Additional CDO Conflicts of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 574
AA. Liquidation Agent in Hudson 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 574
BB. Collateral Put Provider in Timberwolf. . . . . . . . . . . . . . . . . . . . . . . 588
(6) Analysis of Goldman’s Conflicts of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(a) Securities Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603
(b) Analysis .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(i) Claiming Market Maker Status.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(ii) Soliciting Clients and Recommending Investments. . . . . . . . . . . . . . . . . . 613
(iii) Failing to Disclose Material Adverse Information. . . . . . . . . . . . . . . . . . . 615
(iv) Making Unsuitable Investment Recommendations. . . . . . . . . . . . . . . . . . 619
(7) Goldman’s Proprietary Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 624
D. Preventing Investment Bank Abuses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636
(1) New Developments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636
(2) Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 638
1. Review Structured Finance Transactions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 639
2. Narrow Proprietary Trading Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 639
3. Design Strong Conflict of Interest Prohibitions.. . . . . . . . . . . . . . . . . . . . . . . . . 639
4. Study Bank Use of Structured Finance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 639
# # #

v

Wall Street and The Financial Crisis:
Anatomy of a Financial Collapse
April 13, 2011

In the fall of 2008, America suffered a devastating economic collapse. Once valuable
securities lost most or all of their value, debt markets froze, stock markets plunged, and storied
financial firms went under. Millions of Americans lost their jobs; millions of families lost their
homes; and good businesses shut down. These events cast the United States into an economic
recession so deep that the country has yet to fully recover.
This Report is the product of a two-year bipartisan investigation by the U.S. Senate
Permanent Subcommittee on Investigations into the origins of the 2008 financial crisis. The
goals of this investigation were to construct a public record of the facts in order to deepen the
understanding of what happened; identify some of the root causes of the crisis; and provide a
factual foundation for the ongoing effort to fortify the country against the recurrence of a similar
crisis in the future.
Using internal documents, communications, and interviews, the Report attempts to
provide the clearest picture yet of what took place inside the walls of some of the financial
institutions and regulatory agencies that contributed to the crisis. The investigation found that
the crisis was not a natural disaster, but the result of high risk, complex financial products;
undisclosed conflicts of interest; and the failure of regulators, the credit rating agencies, and the
market itself to rein in the excesses of Wall Street.
While this Report does not attempt to examine every key moment, or analyze every
important cause of the crisis, it provides new, detailed, and compelling evidence of what
happened. In so doing, we hope the Report leads to solutions that prevent it from happening
again.

I. EXECUTIVE SUMMARY
A. Subcommittee Investigation
In November 2008, the Permanent Subcommittee on Investigations initiated its
investigation into some of the key causes of the financial crisis. Since then, the Subcommittee
has engaged in a wide-ranging inquiry, issuing subpoenas, conducting over 150 interviews and
depositions, and consulting with dozens of government, academic, and private sector experts.
The Subcommittee has accumulated and reviewed tens of millions of pages of documents,
including court pleadings, filings with the Securities and Exchange Commission, trustee reports,
prospectuses for public and private offerings, corporate board and committee minutes, mortgage
transactions and analyses, memoranda, marketing materials, correspondence, and emails. The
Subcommittee has also reviewed documents prepared by or sent to or from banking and

2
securities regulators, including bank examination reports, reviews of securities firms,
enforcement actions, analyses, memoranda, correspondence, and emails.
In April 2010, the Subcommittee held four hearings examining four root causes of the
financial crisis. Using case studies detailed in thousands of pages of documents released at the
hearings, the Subcommittee presented and examined evidence showing how high risk lending by
U.S. financial institutions; regulatory failures; inflated credit ratings; and high risk, poor quality
financial products designed and sold by some investment banks, contributed to the financial
crisis. This Report expands on those hearings and the case studies they featured. The case
studies are Washington Mutual Bank, the largest bank failure in U.S. history; the federal Office
of Thrift Supervision which oversaw Washington Mutual’s demise; Moody’s and Standard &
Poor’s, the country’s two largest credit rating agencies; and Goldman Sachs and Deutsche Bank,
two leaders in the design, marketing, and sale of mortgage related securities. This Report
devotes a chapter to how each of the four causative factors, as illustrated by the case studies,
fueled the 2008 financial crisis, providing findings of fact, analysis of the issues, and
recommendations for next steps.

B. Overview
(1)

High Risk Lending:
Case Study of Washington Mutual Bank

The first chapter focuses on how high risk mortgage lending contributed to the financial
crisis, using as a case study Washington Mutual Bank (WaMu). At the time of its failure, WaMu
was the nation’s largest thrift and sixth largest bank, with $300 billion in assets, $188 billion in
deposits, 2,300 branches in 15 states, and over 43,000 employees. Beginning in 2004, it
embarked upon a lending strategy to pursue higher profits by emphasizing high risk loans. By
2006, WaMu’s high risk loans began incurring high rates of delinquency and default, and in
2007, its mortgage backed securities began incurring ratings downgrades and losses. Also in
2007, the bank itself began incurring losses due to a portfolio that contained poor quality and
fraudulent loans and securities. Its stock price dropped as shareholders lost confidence, and
depositors began withdrawing funds, eventually causing a liquidity crisis at the bank. On
September 25, 2008, WaMu was seized by its regulator, the Office of Thrift Supervision, placed
in receivership with the Federal Deposit Insurance Corporation (FDIC), and sold to JPMorgan
Chase for $1.9 billion. Had the sale not gone through, WaMu’s failure might have exhausted the
entire $45 billion Deposit Insurance Fund.
This case study focuses on how one bank’s search for increased growth and profit led to
the origination and securitization of hundreds of billions of dollars in high risk, poor quality
mortgages that ultimately plummeted in value, hurting investors, the bank, and the U.S. financial
system. WaMu had held itself out as a prudent lender, but in reality, the bank turned
increasingly to higher risk loans. Over a four-year period, those higher risk loans grew from
19% of WaMu’s loan originations in 2003, to 55% in 2006, while its lower risk, fixed rate loans
fell from 64% to 25% of its originations. At the same time, WaMu increased its securitization of

3
subprime loans sixfold, primarily through its subprime lender, Long Beach Mortgage
Corporation, increasing such loans from nearly $4.5 billion in 2003, to $29 billion in 2006.
From 2000 to 2007, WaMu and Long Beach together securitized at least $77 billion in subprime
loans.
WaMu also originated an increasing number of its flagship product, Option Adjustable
Rate Mortgages (Option ARMs), which created high risk, negatively amortizing mortgages and,
from 2003 to 2007, represented as much as half of all of WaMu’s loan originations. In 2006
alone, Washington Mutual originated more than $42.6 billion in Option ARM loans and sold or
securitized at least $115 billion to investors, including sales to the Federal National Mortgage
Association (Fannie Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac). In
addition, WaMu greatly increased its origination and securitization of high risk home equity loan
products. By 2007, home equity loans made up $63.5 billion or 27% of its home loan portfolio,
a 130% increase from 2003.
At the same time that WaMu was implementing its high risk lending strategy, WaMu and
Long Beach engaged in a host of shoddy lending practices that produced billions of dollars in
high risk, poor quality mortgages and mortgage backed securities. Those practices included
qualifying high risk borrowers for larger loans than they could afford; steering borrowers from
conventional mortgages to higher risk loan products; accepting loan applications without
verifying the borrower’s income; using loans with low, short term “teaser” rates that could lead
to payment shock when higher interest rates took effect later on; promoting negatively
amortizing loans in which many borrowers increased rather than paid down their debt; and
authorizing loans with multiple layers of risk. In addition, WaMu and Long Beach failed to
enforce compliance with their own lending standards; allowed excessive loan error and exception
rates; exercised weak oversight over the third party mortgage brokers who supplied half or more
of their loans; and tolerated the issuance of loans with fraudulent or erroneous borrower
information. They also designed compensation incentives that rewarded loan personnel for
issuing a large volume of higher risk loans, valuing speed and volume over loan quality.
As a result, WaMu, and particularly its Long Beach subsidiary, became known by
industry insiders for its failed mortgages and poorly performing residential mortgage backed
securities (RMBS). Among sophisticated investors, its securitizations were understood to be
some of the worst performing in the marketplace. Inside the bank, WaMu’s President Steve
Rotella described Long Beach as “terrible” and “a mess,” with default rates that were “ugly.”
WaMu’s high risk lending operation was also problem-plagued. WaMu management was
provided with compelling evidence of deficient lending practices in internal emails, audit reports,
and reviews. Internal reviews of two high volume WaMu loan centers, for example, described
“extensive fraud” by employees who “willfully” circumvented bank policies. A WaMu review
of internal controls to stop fraudulent loans from being sold to investors described them as
“ineffective.” On at least one occasion, senior managers knowingly sold delinquency-prone
loans to investors. Aside from Long Beach, WaMu’s President described WaMu’s prime home
loan business as the “worst managed business” he had seen in his career.

4
Documents obtained by the Subcommittee reveal that WaMu launched its high risk
lending strategy primarily because higher risk loans and mortgage backed securities could be
sold for higher prices on Wall Street. They garnered higher prices because higher risk meant the
securities paid a higher coupon rate than other comparably rated securities, and investors paid a
higher price to buy them. Selling or securitizing the loans also removed them from WaMu’s
books and appeared to insulate the bank from risk.
The Subcommittee investigation indicates that unacceptable lending and securitization
practices were not restricted to Washington Mutual, but were present at a host of financial
institutions that originated, sold, and securitized billions of dollars in high risk, poor quality
home loans that inundated U.S. financial markets. Many of the resulting securities ultimately
plummeted in value, leaving banks and investors with huge losses that helped send the economy
into a downward spiral. These lenders were not the victims of the financial crisis; the high risk
loans they issued were the fuel that ignited the financial crisis.

(2) Regulatory Failure:
Case Study of the Office of Thrift Supervision
The next chapter focuses on the failure of the Office of Thrift Supervision (OTS) to stop
the unsafe and unsound practices that led to the demise of Washington Mutual, one of the
nation’s largest banks. Over a five year period from 2004 to 2008, OTS identified over 500
serious deficiencies at WaMu, yet failed to take action to force the bank to improve its lending
operations and even impeded oversight by the bank’s backup regulator, the FDIC.
Washington Mutual Bank was the largest thrift under the supervision of OTS and was
among the eight largest financial institutions insured by the FDIC. Until 2006, WaMu was a
profitable bank, but in 2007, many of its high risk home loans began experiencing increased rates
of delinquency, default, and loss. After the market for subprime mortgage backed securities
collapsed in July 2007, Washington Mutual was unable to sell or securitize its subprime loans
and its loan portfolio fell in value. In September 2007, WaMu’s stock price plummeted against
the backdrop of its losses and a worsening financial crisis. From 2007 to 2008, WaMu’s
depositors withdrew a total of over $26 billion in deposits from the bank, triggering a liquidity
crisis, followed by the bank’s closure.
OTS records show that, during the five years prior to WaMu’s collapse, OTS examiners
repeatedly identified significant problems with Washington Mutual’s lending practices, risk
management, asset quality, and appraisal practices, and requested corrective action. Year after
year, WaMu promised to correct the identified problems, but never did. OTS failed to respond
with meaningful enforcement action, such as by downgrading WaMu’s rating for safety and
soundness, requiring a public plan with deadlines for corrective actions, or imposing civil fines
for inaction. To the contrary, until shortly before the thrift’s failure in 2008, OTS continually
rated WaMu as financially sound.
The agency’s failure to restrain WaMu’s unsafe lending practices stemmed in part from
an OTS regulatory culture that viewed its thrifts as “constituents,” relied on bank management to

5
correct identified problems with minimal regulatory intervention, and expressed reluctance to
interfere with even unsound lending and securitization practices. OTS displayed an unusual
amount of deference to WaMu’s management, choosing to rely on the bank to police itself in its
use of safe and sound practices. The reasoning appeared to be that if OTS examiners simply
identified the problems at the bank, OTS could then rely on WaMu’s assurances that problems
would be corrected, with little need for tough enforcement actions. It was a regulatory approach
with disastrous results.
Despite identifying over 500 serious deficiencies in five years, OTS did not once, from
2004 to 2008, take a public enforcement action against Washington Mutual to correct its lending
practices, nor did it lower the bank’s rating for safety and soundness. Only in 2008, as the bank
incurred mounting losses, did OTS finally take two informal, nonpublic enforcement actions,
requiring WaMu to agree to a “Board Resolution” in March and a “Memorandum of
Understanding” in September, neither of which imposed sufficient changes to prevent the bank’s
failure. OTS officials resisted calls by the FDIC, the bank’s backup regulator, for stronger
measures and even impeded FDIC oversight efforts by at times denying FDIC examiners office
space and access to bank records. Tensions between the two agencies remained high until the
end. Two weeks before the bank was seized, the FDIC Chairman contacted WaMu directly to
inform it that the FDIC was likely to have a ratings disagreement with OTS and downgrade the
bank’s safety and soundness rating, and informed the OTS Director about that communication,
prompting him to complain about the FDIC Chairman’s “audacity.”
Hindered by a culture of deference to management, demoralized examiners, and agency
infighting, OTS officials allowed the bank’s short term profits to excuse its risky practices and
failed to evaluate the bank’s actions in the context of the U.S. financial system as a whole. Its
narrow regulatory focus prevented OTS from analyzing or acknowledging until it was too late
that WaMu’s practices could harm the broader economy.
OTS’ failure to restrain Washington Mutual’s unsafe lending practices allowed high risk
loans at the bank to proliferate, negatively impacting investors across the United States and
around the world. Similar regulatory failings by other agencies involving other lenders repeated
the problem on a broad scale. The result was a mortgage market saturated with risky loans, and
financial institutions that were supposed to hold predominantly safe investments but instead held
portfolios rife with high risk, poor quality mortgages. When those loans began defaulting in
record numbers and mortgage related securities plummeted in value, financial institutions around
the globe suffered hundreds of billions of dollars in losses, triggering an economic disaster. The
regulatory failures that set the stage for those losses were a proximate cause of the financial
crisis.

(3) Inflated Credit Ratings:
Case Study of Moody’s and Standard & Poor’s
The next chapter examines how inflated credit ratings contributed to the financial crisis
by masking the true risk of many mortgage related securities. Using case studies involving
Moody’s Investors Service, Inc. (Moody’s) and Standard & Poor’s Financial Services LLC

6
(S&P), the nation’s two largest credit rating agencies, the Subcommittee identified multiple
problems responsible for the inaccurate ratings, including conflicts of interest that placed
achieving market share and increased revenues ahead of ensuring accurate ratings.
Between 2004 and 2007, Moody’s and S&P issued credit ratings for tens of thousands of
U.S. residential mortgage backed securities (RMBS) and collateralized debt obligations (CDO).
Taking in increasing revenue from Wall Street firms, Moody’s and S&P issued AAA and other
investment grade credit ratings for the vast majority of those RMBS and CDO securities,
deeming them safe investments even though many relied on high risk home loans. 1 In late
2006, high risk mortgages began incurring delinquencies and defaults at an alarming rate.
Despite signs of a deteriorating mortgage market, Moody’s and S&P continued for six months to
issue investment grade ratings for numerous RMBS and CDO securities.
Then, in July 2007, as mortgage delinquencies intensified and RMBS and CDO securities
began incurring losses, both companies abruptly reversed course and began downgrading at
record numbers hundreds and then thousands of their RMBS and CDO ratings, some less than a
year old. Investors like banks, pension funds, and insurance companies, who are by rule barred
from owning low rated securities, were forced to sell off their downgraded RMBS and CDO
holdings, because they had lost their investment grade status. RMBS and CDO securities held
by financial firms lost much of their value, and new securitizations were unable to find investors.
The subprime RMBS market initially froze and then collapsed, leaving investors and financial
firms around the world holding unmarketable subprime RMBS securities that were plummeting
in value. A few months later, the CDO market collapsed as well.
Traditionally, investments holding AAA ratings have had a less than 1% probability of
incurring defaults. But in 2007, the vast majority of RMBS and CDO securities with AAA
ratings incurred substantial losses; some failed outright. Analysts have determined that over
90% of the AAA ratings given to subprime RMBS securities originated in 2006 and 2007 were
later downgraded by the credit rating agencies to junk status. In the case of Long Beach, 75 out
of 75 AAA rated Long Beach securities issued in 2006, were later downgraded to junk status,
defaulted, or withdrawn. Investors and financial institutions holding the AAA rated securities
lost significant value. Those widespread losses led, in turn, to a loss of investor confidence in
the value of the AAA rating, in the holdings of major U.S. financial institutions, and even in the
viability of U.S. financial markets.
Inaccurate AAA credit ratings introduced risk into the U.S. financial system and
constituted a key cause of the financial crisis. In addition, the July mass downgrades, which
were unprecedented in number and scope, precipitated the collapse of the RMBS and CDO
secondary markets, and perhaps more than any other single event triggered the beginning of the
financial crisis.

1

S&P issues ratings using the “AAA” designation; Moody’s equivalent rating is “Aaa.” For ease of reference, this
Report will refer to both ratings as “AAA.”

7
The Subcommittee’s investigation uncovered a host of factors responsible for the
inaccurate credit ratings issued by Moody’s and S&P. One significant cause was the inherent
conflict of interest arising from the system used to pay for credit ratings. Credit rating agencies
were paid by the Wall Street firms that sought their ratings and profited from the financial
products being rated. Under this “issuer pays” model, the rating agencies were dependent upon
those Wall Street firms to bring them business, and were vulnerable to threats that the firms
would take their business elsewhere if they did not get the ratings they wanted. The rating
agencies weakened their standards as each competed to provide the most favorable rating to win
business and greater market share. The result was a race to the bottom.
Additional factors responsible for the inaccurate ratings include rating models that failed
to include relevant mortgage performance data; unclear and subjective criteria used to produce
ratings; a failure to apply updated rating models to existing rated transactions; and a failure to
provide adequate staffing to perform rating and surveillance services, despite record revenues.
Compounding these problems were federal regulations that required the purchase of investment
grade securities by banks and others, which created pressure on the credit rating agencies to issue
investment grade ratings. While these federal regulations were intended to help investors stay
away from unsafe securities, they had the opposite effect when the AAA ratings proved
inaccurate.
Evidence gathered by the Subcommittee shows that the credit rating agencies were aware
of problems in the mortgage market, including an unsustainable rise in housing prices, the high
risk nature of the loans being issued, lax lending standards, and rampant mortgage fraud. Instead
of using this information to temper their ratings, the firms continued to issue a high volume of
investment grade ratings for mortgage backed securities. If the credit rating agencies had issued
ratings that accurately reflected the increasing risk in the RMBS and CDO markets and
appropriately adjusted existing ratings in those markets, they might have discouraged investors
from purchasing high risk RMBS and CDO securities, and slowed the pace of securitizations.
It was not in the short term economic interest of either Moody’s or S&P, however, to
provide accurate credit ratings for high risk RMBS and CDO securities, because doing so would
have hurt their own revenues. Instead, the credit rating agencies’ profits became increasingly
reliant on the fees generated by issuing a large volume of structured finance ratings. In the end,
Moody’s and S&P provided AAA ratings to tens of thousands of high risk RMBS and CDO
securities and then, when those products began to incur losses, issued mass downgrades that
shocked the financial markets, hammered the value of the mortgage related securities, and helped
trigger the financial crisis.

(4) Investment Bank Abuses:
Case Study of Goldman Sachs and Deutsche Bank
The final chapter examines how investment banks contributed to the financial crisis,
using as case studies Goldman Sachs and Deutsche Bank, two leading participants in the U.S.
mortgage market.

8
Investment banks can play an important role in the U.S. economy, helping to channel the
nation’s wealth into productive activities that create jobs and increase economic growth. But in
the years leading up to the financial crisis, large investment banks designed and promoted
complex financial instruments, often referred to as structured finance products, that were at the
heart of the crisis. They included RMBS and CDO securities, credit default swaps (CDS), and
CDS contracts linked to the ABX Index. These complex, high risk financial products were
engineered, sold, and traded by the major U.S. investment banks.
From 2004 to 2008, U.S. financial institutions issued nearly $2.5 trillion in RMBS and
over $1.4 trillion in CDO securities, backed primarily by mortgage related products. Investment
banks typically charged fees of $1 to $8 million to act as the underwriter of an RMBS
securitization, and $5 to $10 million to act as the placement agent for a CDO securitization.
Those fees contributed substantial revenues to the investment banks, which established internal
structured finance groups, as well as a variety of RMBS and CDO origination and trading desks
within those groups, to handle mortgage related securitizations. Investment banks sold RMBS
and CDO securities to investors around the world, and helped develop a secondary market where
RMBS and CDO securities could be traded. The investment banks’ trading desks participated in
those secondary markets, buying and selling RMBS and CDO securities either on behalf of their
clients or in connection with their own proprietary transactions.
The financial products developed by investment banks allowed investors to profit, not
only from the success of an RMBS or CDO securitization, but also from its failure. CDS
contracts, for example, allowed counterparties to wager on the rise or fall in the value of a
specific RMBS security or on a collection of RMBS and other assets contained or referenced in a
CDO. Major investment banks developed standardized CDS contracts that could also be traded
on a secondary market. In addition, they established the ABX Index which allowed
counterparties to wager on the rise or fall in the value of a basket of subprime RMBS securities,
which could be used to reflect the status of the subprime mortgage market as a whole. The
investment banks sometimes matched up parties who wanted to take opposite sides in a
transaction and other times took one or the other side of the transaction to accommodate a client.
At still other times, investment banks used these financial instruments to make their own
proprietary wagers. In extreme cases, some investment banks set up structured finance
transactions which enabled them to profit at the expense of their clients.
Two case studies, involving Goldman Sachs and Deutsche Bank, illustrate a variety of
troubling practices that raise conflicts of interest and other concerns involving RMBS, CDO,
CDS, and ABX related financial instruments that contributed to the financial crisis.
The Goldman Sachs case study focuses on how it used net short positions to benefit from
the downturn in the mortgage market, and designed, marketed, and sold CDOs in ways that
created conflicts of interest with the firm’s clients and at times led to the bank=s profiting from
the same products that caused substantial losses for its clients.
From 2004 to 2008, Goldman was a major player in the U.S. mortgage market. In 2006
and 2007 alone, it designed and underwrote 93 RMBS and 27 mortgage related CDO

9
securitizations totaling about $100 billion, bought and sold RMBS and CDO securities on behalf
of its clients, and amassed its own multi-billion-dollar proprietary mortgage related holdings. In
December 2006, however, when it saw evidence that the high risk mortgages underlying many
RMBS and CDO securities were incurring accelerated rates of delinquency and default,
Goldman quietly and abruptly reversed course.
Over the next two months, it rapidly sold off or wrote down the bulk of its existing
subprime RMBS and CDO inventory, and began building a short position that would allow it to
profit from the decline of the mortgage market. Throughout 2007, Goldman twice built up and
cashed in sizeable mortgage related short positions. At its peak, Goldman’s net short position
totaled $13.9 billion. Overall in 2007, its net short position produced record profits totaling $3.7
billion for Goldman’s Structured Products Group, which when combined with other mortgage
losses, produced record net revenues of $1.1 billion for the Mortgage Department as a whole.
Throughout 2007, Goldman sold RMBS and CDO securities to its clients without
disclosing its own net short position against the subprime market or its purchase of CDS
contracts to gain from the loss in value of some of the very securities it was selling to its clients.
The case study examines in detail four CDOs that Goldman constructed and sold called
Hudson 1, Anderson, Timberwolf, and Abacus 2007-AC1. In some cases, Goldman transferred
risky assets from its own inventory into these CDOs; in others, it included poor quality assets
that were likely to lose value or not perform. In three of the CDOs, Hudson, Anderson and
Timberwolf, Goldman took a substantial portion of the short side of the CDO, essentially betting
that the assets within the CDO would fall in value or not perform. Goldman’s short position was
in direct opposition to the clients to whom it was selling the CDO securities, yet it failed to
disclose the size and nature of its short position while marketing the securities. While Goldman
sometimes included obscure language in its marketing materials about the possibility of its
taking a short position on the CDO securities it was selling, Goldman did not disclose to
potential investors when it had already determined to take or had already taken short investments
that would pay off if the particular security it was selling, or RMBS and CDO securities in
general, performed poorly. In the case of Hudson 1, for example, Goldman took 100% of the
short side of the $2 billion CDO, betting against the assets referenced in the CDO, and sold the
Hudson securities to investors without disclosing its short position. When the securities lost
value, Goldman made a $1.7 billion gain at the direct expense of the clients to whom it had sold
the securities.
In the case of Anderson, Goldman selected a large number of poorly performing assets
for the CDO, took 40% of the short position, and then marketed Anderson securities to its
clients. When a client asked how Goldman “got comfortable” with the New Century loans in the
CDO, Goldman personnel tried to dispel concerns about the loans, and did not disclose the firm’s
own negative view of them or its short position in the CDO.
In the case of Timberwolf, Goldman sold the securities to its clients even as it knew the
securities were falling in value. In some cases, Goldman knowingly sold Timberwolf securities
to clients at prices above its own book values and, within days or weeks of the sale, marked

10
down the value of the sold securities, causing its clients to incur quick losses and requiring some
to post higher margin or cash collateral. Timberwolf securities lost 80% of their value within
five months of being issued and today are worthless. Goldman took 36% of the short position in
the CDO and made money from that investment, but ultimately lost money when it could not sell
all of the Timberwolf securities.
In the case of Abacus, Goldman did not take the short position, but allowed a hedge fund,
Paulson & Co. Inc., that planned on shorting the CDO to play a major but hidden role in
selecting its assets. Goldman marketed Abacus securities to its clients, knowing the CDO was
designed to lose value and without disclosing the hedge fund’s asset selection role or investment
objective to potential investors. Three long investors together lost about $1 billion from their
Abacus investments, while the Paulson hedge fund profited by about the same amount. Today,
the Abacus securities are worthless.
In the Hudson and Timberwolf CDOs, Goldman also used its role as the collateral put
provider or liquidation agent to advance its financial interest to the detriment of the clients to
whom it sold the CDO securities.
The Deutsche Bank case study describes how the bank’s top global CDO trader, Greg
Lippmann, repeatedly warned and advised his Deutsche Bank colleagues and some of his clients
seeking to buy short positions about the poor quality of the RMBS securities underlying many
CDOs. He described some of those securities as “crap” and “pigs,” and predicted the assets and
the CDO securities would lose value. At one point, Mr. Lippmann was asked to buy a specific
CDO security and responded that it “rarely trades,” but he “would take it and try to dupe
someone” into buying it. He also at times referred to the industry’s ongoing CDO marketing
efforts as a “CDO machine” or “ponzi scheme.” Deutsche Bank’s senior management disagreed
with his negative views, and used the bank’s own funds to make large proprietary investments in
mortgage related securities that, in 2007, had a notional or face value of $128 billion and a
market value of more than $25 billion. Despite its positive view of the housing market, the bank
allowed Mr. Lippmann to develop a large proprietary short position for the bank in the RMBS
market, which from 2005 to 2007, totaled $5 billion. The bank cashed in the short position from
2007 to 2008, generating a profit of $1.5 billion, which Mr. Lippmann claims is more money on
a single position than any other trade had ever made for Deutsche Bank in its history. Despite
that gain, due to its large long holdings, Deutsche Bank lost nearly $4.5 billion from its mortgage
related proprietary investments.
The Subcommittee also examined a $1.1 billion CDO underwritten by Deutsche Bank
known as Gemstone CDO VII Ltd. (Gemstone 7), which issued securities in March 2007. It was
one of 47 CDOs totaling $32 billion that Deutsche Bank underwrote from 2004 to 2008.
Deutsche Bank made $4.7 million in fees from Gemstone 7, while the collateral manager, a
hedge fund called HBK Capital Management, was slated to receive $3.3 million. Gemstone 7
concentrated risk by including within a single financial instrument 115 RMBS securities whose
financial success depended upon thousands of high risk, poor quality subprime loans. Many of
those RMBS securities carried BBB, BBB-, or even BB credit ratings, making them among the
highest risk RMBS securities sold to the public. Nearly a third of the RMBS securities contained

11
subprime loans originated by Fremont, Long Beach, and New Century, lenders well known
within the industry for issuing poor quality loans. Deutsche Bank also sold securities directly
from its own inventory to the CDO. Deutsche Bank’s CDO trading desk knew that many of
these RMBS securities were likely to lose value, but did not object to their inclusion in
Gemstone 7, even securities which Mr. Lippmann was calling “crap” or “pigs.” Despite the poor
quality of the underlying assets, Gemstone’s top three tranches received AAA ratings. Deutsche
Bank ultimately sold about $700 million in Gemstone securities, without disclosing to potential
investors that its global head trader of CDOs had extremely negative views of a third of the
assets in the CDO or that the bank’s internal valuations showed that the assets had lost over $19
million in value since their purchase. Within months of being issued, the Gemstone 7 securities
lost value; by November 2007, they began undergoing credit rating downgrades; and by July
2008, they became nearly worthless.
Both Goldman Sachs and Deutsche Bank underwrote securities using loans from
subprime lenders known for issuing high risk, poor quality mortgages, and sold risky securities
to investors across the United States and around the world. They also enabled the lenders to
acquire new funds to originate still more high risk, poor quality loans. Both sold CDO securities
without full disclosure of the negative views of some of their employees regarding the
underlying assets and, in the case of Goldman, without full disclosure that it was shorting the
very CDO securities it was marketing, raising questions about whether Goldman complied with
its obligations to issue suitable investment recommendations and disclose material adverse
interests.
The case studies also illustrate how these two investment banks continued to market new
CDOs in 2007, even as U.S. mortgage delinquencies intensified, RMBS securities lost value, the
U.S. mortgage market as a whole deteriorated, and investors lost confidence. Both kept
producing and selling high risk, poor quality structured finance products in a negative market, in
part because stopping the “CDO machine” would have meant less income for structured finance
units, smaller executive bonuses, and even the disappearance of CDO desks and personnel,
which is what finally happened. The two case studies also illustrate how certain complex
structured finance products, such as synthetic CDOs and naked credit default swaps, amplified
market risk by allowing investors with no ownership interest in the reference obligations to place
unlimited side bets on their performance. Finally, the two case studies demonstrate how
proprietary trading led to dramatic losses in the case of Deutsche Bank and undisclosed conflicts
of interest in the case of Goldman Sachs.
Investment banks were the driving force behind the structured finance products that
provided a steady stream of funding for lenders originating high risk, poor quality loans and that
magnified risk throughout the U.S. financial system. The investment banks that engineered,
sold, traded, and profited from mortgage related structured finance products were a major cause
of the financial crisis.

12

C. Recommendations
The four causative factors examined in this Report are interconnected. Lenders
introduced new levels of risk into the U.S. financial system by selling and securitizing complex
home loans with high risk features and poor underwriting. The credit rating agencies labeled the
resulting securities as safe investments, facilitating their purchase by institutional investors
around the world. Federal banking regulators failed to ensure safe and sound lending practices
and risk management, and stood on the sidelines as large financial institutions active in U.S.
financial markets purchased billions of dollars in mortgage related securities containing high
risk, poor quality mortgages. Investment banks magnified the risk to the system by engineering
and promoting risky mortgage related structured finance products, and enabling investors to use
naked credit default swaps and synthetic instruments to bet on the failure rather than the success
of U.S. financial instruments. Some investment banks also ignored the conflicts of interest
created by their products, placed their financial interests before those of their clients, and even
bet against the very securities they were recommending and marketing to their clients. Together
these factors produced a mortgage market saturated with high risk, poor quality mortgages and
securities that, when they began incurring losses, caused financial institutions around the world
to lose billions of dollars, produced rampant unemployment and foreclosures, and ruptured faith
in U.S. capital markets.
Nearly three years later, the U.S. economy has yet to recover from the damage caused by
the 2008 financial crisis. This Report is intended to help analysts, market participants,
policymakers, and the public gain a deeper understanding of the origins of the crisis and take the
steps needed to prevent excessive risk taking and conflicts of interest from causing similar
damage in the future. Each of the four chapters in this Report examining a key aspect of the
financial crisis begins with specific findings of fact, details the evidence gathered by the
Subcommittee, and ends with recommendations. For ease of reference, all of the
recommendations are reprinted here. For more information about each recommendation, please
see the relevant chapter.
Recommendations on High Risk Lending
1. Ensure “Qualified Mortgages” Are Low Risk. Federal regulators should use their
regulatory authority to ensure that all mortgages deemed to be “qualified residential
mortgages” have a low risk of delinquency or default.
2. Require Meaningful Risk Retention. Federal regulators should issue a strong risk
retention requirement under Section 941 by requiring the retention of not less than a
5% credit risk in each, or a representative sample of, an asset backed securitization’s
tranches, and by barring a hedging offset for a reasonable but limited period of time.
3. Safeguard Against High Risk Products. Federal banking regulators should
safeguard taxpayer dollars by requiring banks with high risk structured finance
products, including complex products with little or no reliable performance data, to
meet conservative loss reserve, liquidity, and capital requirements.

13
4. Require Greater Reserves for Negative Amortization Loans. Federal banking
regulators should use their regulatory authority to require banks issuing negatively
amortizing loans that allow borrowers to defer payments of interest and principal, to
maintain more conservative loss, liquidity, and capital reserves.
5. Safeguard Bank Investment Portfolios. Federal banking regulators should use the
Section 620 banking activities study to identify high risk structured finance products
and impose a reasonable limit on the amount of such high risk products that can be
included in a bank’s investment portfolio.
Recommendations on Regulatory Failures
1. Complete OTS Dismantling. The Office of the Comptroller of the Currency (OCC)
should complete the dismantling of the Office of Thrift Supervision (OTS), despite
attempts by some OTS officials to preserve the agency’s identity and influence within
the OCC.
2. Strengthen Enforcement. Federal banking regulators should conduct a review of
their major financial institutions to identify those with ongoing, serious deficiencies,
and review their enforcement approach to those institutions to eliminate any policy of
deference to bank management, inflated CAMELS ratings, or use of short term profits
to excuse high risk activities.
3. Strengthen CAMELS Ratings. Federal banking regulators should undertake a
comprehensive review of the CAMELS ratings system to produce ratings that signal
whether an institution is expected to operate in a safe and sound manner over a
specified period of time, asset quality ratings that reflect embedded risks rather than
short term profits, management ratings that reflect any ongoing failure to correct
identified deficiencies, and composite ratings that discourage systemic risks.
4. Evaluate Impacts of High Risk Lending. The Financial Stability Oversight Council
should undertake a study to identify high risk lending practices at financial
institutions, and evaluate the nature and significance of the impacts that these
practices may have on U.S. financial systems as a whole.
Recommendations on Inflated Credit Ratings
1. Rank Credit Rating Agencies by Accuracy. The SEC should use its regulatory
authority to rank the Nationally Recognized Statistical Rating Organizations in terms
of performance, in particular the accuracy of their ratings.
2. Help Investors Hold CRAs Accountable. The SEC should use its regulatory
authority to facilitate the ability of investors to hold credit rating agencies accountable
in civil lawsuits for inflated credit ratings, when a credit rating agency knowingly or
recklessly fails to conduct a reasonable investigation of the rated security.

14
3. Strengthen CRA Operations. The SEC should use its inspection, examination, and
regulatory authority to ensure credit rating agencies institute internal controls, credit
rating methodologies, and employee conflict of interest safeguards that advance
rating accuracy.
4. Ensure CRAs Recognize Risk. The SEC should use its inspection, examination, and
regulatory authority to ensure credit rating agencies assign higher risk to financial
instruments whose performance cannot be reliably predicted due to their novelty or
complexity, or that rely on assets from parties with a record for issuing poor quality
assets.
5. Strengthen Disclosure. The SEC should exercise its authority under the new Section
78o-7(s) of Title 15 to ensure that the credit rating agencies complete the required
new ratings forms by the end of the year and that the new forms provide
comprehensible, consistent, and useful ratings information to investors, including by
testing the proposed forms with actual investors.
6. Reduce Ratings Reliance. Federal regulators should reduce the federal government’s
reliance on privately issued credit ratings.
Recommendations on Investment Bank Abuses
1. Review Structured Finance Transactions. Federal regulators should review the
RMBS, CDO, CDS, and ABX activities described in this Report to identify any
violations of law and to examine ways to strengthen existing regulatory prohibitions
against abusive practices involving structured finance products.
2. Narrow Proprietary Trading Exceptions. To ensure a meaningful ban on
proprietary trading under Section 619, any exceptions to that ban, such as for marketmaking or risk-mitigating hedging activities, should be strictly limited in the
implementing regulations to activities that serve clients or reduce risk.
3. Design Strong Conflict of Interest Prohibitions. Regulators implementing the
conflict of interest prohibitions in Sections 619 and 621 should consider the types of
conflicts of interest in the Goldman Sachs case study, as identified in Chapter VI(C)(6)
of this Report.
4. Study Bank Use of Structured Finance. Regulators conducting the banking
activities study under Section 620 should consider the role of federally insured banks
in designing, marketing, and investing in structured finance products with risks that
cannot be reliably measured and naked credit default swaps or synthetic financial
instruments.

15

II. BACKGROUND
Understanding the recent financial crisis requires examining how U.S. financial markets
have changed in fundamental ways over the past 15 years. The following provides a brief
historical overview of some of those changes; explains some of the new financial products and
trading strategies in the mortgage area; and provides background on credit ratings, investment
banks, government sponsored enterprises, and financial regulators. It also provides a brief
timeline of key events in the financial crisis. Two recurrent themes are the increasing amount of
risk and conflicts of interest in U.S. financial markets.

A. Rise of Too-Big-To-Fail U.S. Financial Institutions
Until relatively recently, federal and state laws limited federally-chartered banks from
branching across state lines. 2 Instead, as late as the 1990s, U.S. banking consisted primarily of
thousands of modest-sized banks tied to local communities. Since 1990, the United States has
witnessed the number of regional and local banks and thrifts shrink from just over 15,000 to
approximately 8,000 by 2009, 3 while at the same time nearly 13,000 regional and local credit
unions have been reduced to 7,500. 4 This broad-based approach meant that when a bank
suffered losses, the United States could quickly close its doors, protect its depositors, and avoid
significant damage to the U.S. banking system or economy. Decentralized banking also
promoted competition, diffused credit in the marketplace, and prevented undue concentrations of
financial power.
In the mid 1990s, the United States initiated substantial changes to the banking industry,
some of which relaxed the rules under which banks operated, while others imposed new
regulations, and still others encouraged increased risk-taking. In 1994, for the first time,
Congress explicitly authorized interstate banking, which allowed federally-chartered banks to
open branches nationwide more easily than before. 5 In 1999, Congress repealed the GlassSteagall Act of 1933, which had generally required banks, investment banks, securities firms,
and insurance companies to operate separately, 6 and instead allowed them to openly merge
operations. 7 The same law also eliminated the Glass-Steagall prohibition on banks engaging in
proprietary trading 8 and exempted investment bank holding companies from direct federal
2
See McFadden Act of 1927, P.L. 69-639 (prohibiting national banks from owning branches in multiple states);
Bank Holding Company Act of 1956, P.L. 84-511 (prohibiting banking company companies from owning branches
in multiple states). See also “Going Interstate: A New Dawn for U.S. Banking,” The Regional Economist, a
publication of the Federal Reserve Bank of St. Louis (7/1994).
3
See U.S. Census Bureau, “Statistical Abstract of the United States 2011,” at 735,
http://www.census.gov/compendia/statab/2011/tables/11s1175.pdf.
4
1/3/2011 chart, “Insurance Fund Ten-Year Trends,” supplied by the National Credit Union Administration
(showing that, as of 12/31/1993, the United States had 12,317 federal and state credit unions).
5
Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, P.L. 103-328 (repealing statutory
prohibitions on interstate banking).
6
Glass-Steagall Act of 1933, also known as the Banking Act, P.L. 73-66.
7
Gramm-Leach-Bliley Act of 1999, also known as the Financial Services Modernization Act, P.L. 106-102. Some
banks had already begun to engage in securities and insurance activities, with the most prominent example at the
time being Citicorp’s 1998 merger with the Travelers insurance group.
8
Glass-Steagall Act, Section 16.

16
regulation. 9 In 2000, Congress enacted the Commodity Futures Modernization Act which barred
federal regulation of swaps and the trillion-dollar swap markets, and which allowed U.S. banks,
broker-dealers, and other financial institutions to develop, market, and trade these unregulated
financial products, including credit default swaps, foreign currency swaps, interest rate swaps,
energy swaps, total return swaps, and more. 10
In 2002, the Treasury Department, along with other federal bank regulatory agencies,
altered the way capital reserves were calculated for banks, and encouraged the retention of
securitized mortgages with investment grade credit ratings by allowing banks to hold less capital
in reserve for them than if the individual mortgages were held directly on the banks’ books. 11 In
2004, the SEC relaxed the capital requirements for large broker-dealers, allowing them to grow
even larger, often with borrowed funds. 12 In 2005, when the SEC attempted to assert more
control over the growing hedge fund industry, by requiring certain hedge funds to register with
the agency, a federal Court of Appeals issued a 2006 opinion that invalidated the SEC
regulation. 13
These and other steps paved the way, over the course of little more than the last decade,
for a relatively small number of U.S. banks and broker-dealers to become giant financial
conglomerates involved in collecting deposits; financing loans; trading equities, swaps and
commodities; and issuing, underwriting, and marketing billions of dollars in stock, debt
instruments, insurance policies, and derivatives. As these financial institutions grew in size and
complexity, and began playing an increasingly important role in the U.S. economy, policymakers
began to ask whether the failure of one of these financial institutions could damage not only the
U.S. financial system, but the U.S. economy as a whole. In a little over ten years, the creation of
too-big-to-fail financial institutions had become a reality in the United States. 14
9

Gramm-Leach-Bliley Act of 1999, also known as the Financial Services Modernization Act, P.L. 106-102. See
also prepared statement of SEC Chairman Christopher Cox, “Role of Federal Regulators: Lessons from the Credit
Crisis for the Future of Regulation,” October 23, 2008 House Committee on Oversight and Government Reform
Hearing, (“It was a fateful mistake in the Gramm-Leach-Bliley Act that neither the SEC nor any regulator was given
the statutory authority to regulate investment bank holding companies other than on a voluntary basis.”).
10
The 2000 Commodity Futures Modernization Act (CFMA) was enacted as a title of the Consolidated
Appropriations Act of 2001, P.L. 106-554.
11
See 66 Fed. Reg. 59614 (Nov. 29, 2011), http://www.federalregister.gov/articles/2001/11/29/01-29179/risk-basedcapital-guidelines-capital-adequacy-guidelines-capital-maintenance-capital-treatment-of.
12
See “Alternative Net Capital Requirements for Broker-Dealers That Are Part of Consolidated Supervised
Entities,” RIN 3235-AI96, 17 CFR Parts 200 and 240 (8/20/2004) (“amended the net capital rule under the
Securities Exchange Act of 1934 to establish a voluntary alternative method of computing net capital for certain
broker-dealers”). The Consolidated Supervised Entities (CSE) program, which provided SEC oversight of
investment bank holding companies that joined the CSE program on a voluntarily basis, was established by the SEC
in 2004, and terminated by the SEC in 2008, after the financial crisis. The alternative net capital rules for brokerdealers were terminated at the same time.
13
Goldstein v. SEC, 451 F.3d 873 (D.C. Cir. 2006).
14
The financial crisis has not reversed this trend; it has accelerated it. By the end of 2008, Bank of America had
purchased Countrywide and Merrill Lynch; Wells Fargo had acquired Wachovia Bank; and JPMorgan Chase had
purchased Washington Mutual and Bear Stearns, creating the largest banks in U.S. history. By early 2009, each
controlled more than 10% of all U.S. deposits. See, e.g., “Banks ‘Too Big To Fail’ Have Grown Even Bigger:
Behemoths Born of the Bailout Reduce Consumer Choice, Tempt Corporate Moral Hazard,” Washington Post

17
Over the last ten years, some U.S. financial institutions have not only grown larger and
more complex, but have also engaged in higher risk activities. The last decade has witnessed an
explosion of so-called “innovative” financial products with embedded risks that are difficult to
analyze and predict, including collateralized debt obligations, credit default swaps, exchange
traded funds, commodity and swap indices, and more. Financial engineering produced these
financial instruments which typically had little or no performance record to use for risk
management purposes. Some U.S. financial institutions became major participants in the
development of these financial products, designing, selling, and trading them in U.S. and global
markets.
In addition, most major U.S. financial institutions began devoting increasing resources to
so-called “proprietary trading,” in which the firm’s personnel used the firm’s capital to gain
investment returns for the firm itself rather than for its clients. Traditionally, U.S. banks, brokerdealers, and investment banks had offered investment advice and services to their clients, and did
well when their clients did well. Over the last ten years, however, some firms began referring to
their clients, not as customers, but as counterparties. In addition, some firms at times developed
and used financial products in transactions in which the firm did well only when its clients, or
counterparties, lost money. Some U.S. banks also sponsored affiliated hedge funds, provided
them with billions of dollars in client and bank funds, and allowed the hedge funds to make high
risk investments on the bank’s behalf, seeking greater returns.
By 2005, as U.S. financial institutions reached unprecedented size and made increasing
use of complex, high risk financial products, government oversight and regulation was
increasingly incoherent and misguided.

B. High Risk Mortgage Lending
The U.S. mortgage market reflected many of the trends affecting the U.S. financial
system as a whole. Prior to the early 1970s, families wishing to buy a home typically went to a
local bank or mortgage company, applied for a loan and, after providing detailed financial
information and a down payment, qualified for a 30-year fixed rate mortgage. The local bank or
mortgage company then typically kept that mortgage until the homeowner paid it off, earning its
profit from the interest rates and fees paid by the borrower.
Lenders were required to keep a certain amount of capital for each loan they issued,
which effectively limited the number of loans one bank could have on its books. To increase
their capital, some lenders began selling the loans on their books to other financial institutions
that wanted to service the loans over time, and then used the profits to make new loans to
prospective borrowers. Lenders began to make money, not from holding onto the loans they
originated and collecting mortgage payments over the years, but from the relatively short term
fees associated with originating and selling the loans.

(8/28/2009). Those banks plus Citigroup also issued one out of every two mortgages and two out of every three
credit cards. Id.

18
By 2003, many lenders began using higher risk lending strategies involving the
origination and sale of complex mortgages that differed substantially from the traditional 30-year
fixed rate home loan. The following describes some of the securitization practices and higher
risk mortgage products that came to dominate the mortgage market in the years leading up to the
financial crisis.
Securitization. To make home loans sales more efficient and profitable, banks began
making increasing use of a mechanism now called “securitization.” In a securitization, a
financial institution bundles a large number of home loans into a loan pool, and calculates the
amount of mortgage payments that will be paid into that pool by the borrowers. The securitizer
then forms a shell corporation or trust, often offshore, to hold the loan pool and use the mortgage
revenue stream to support the creation of bonds that make payments to investors over time.
Those bonds, which are registered with the SEC, are called residential mortgage backed
securities (RMBS) and are typically sold in a public offering to investors. Investors typically
make a payment up front, and then hold onto the RMBS securities which repay the principal plus
interest over time. The amount of money paid periodically to the RMBS holders is often referred
to as the RMBS “coupon rate.”
For years, securitization worked well. Borrowers paid their 30-year, fixed rate mortgages
with few defaults, and mortgage backed securities built up a reputation as a safe investment.
Lenders earned fees for bundling the home loans into pools and either selling the pools or
securitizing them into mortgage backed securities. Investment banks also earned fees from
working with the lenders to assemble the pools, design the mortgage backed securities, obtain
credit ratings for them, and sell the resulting securities to investors. Investors like pension funds,
insurance companies, municipalities, university endowments, and hedge funds earned a
reasonable rate of return on the RMBS securities they purchased.
Due to the 2002 Treasury rule that reduced capital reserves for securitized mortgages,
RMBS holdings also became increasingly attractive to banks, which could determine how much
capital they needed to hold based on the credit ratings their RMBS securities received from the
credit ratings agencies. According to economist Arnold Kling, among other problems, the 2002
rule “created opportunities for banks to lower their ratio of capital to assets through structured
financing” and “created the incentive for rating agencies to provide overly optimistic assessment
of the risk in mortgage pools.” 15
High Risk Mortgages. The resulting increased demand for mortgage backed securities,
joined with Wall Street’s growing appetite for securitization fees, prompted lenders to issue
mortgages not only to well qualified borrowers, but also higher risk borrowers. Higher risk
borrowers were often referred to as “subprime” borrowers to distinguish them from the more
creditworthy “prime” borrowers who traditionally qualified for home loans. Some lenders began

15

“Not What They Had In Mind: A History of Policies that Produced the Financial Crisis of 2008,” September
2009, Mercatus Center, http://mercatus.org/sites/default/files/publication/NotWhatTheyHadInMind(1).pdf.

19
to specialize in issuing loans to subprime borrowers and became known as subprime lenders. 16
Subprime loans provided new fuel for the securitization engines on Wall Street.
Federal law does not define subprime loans or subprime borrowers, but in 2001, guidance
issued by federal banking regulators defined subprime borrowers as those with certain credit risk
characteristics, including one or more of the following: (1) two or more 30-day delinquencies in
the last 12 months, or one or more 60-day delinquencies in the last 24 months; (2) a judgment or
foreclosure in the prior 24 months; (3) a bankruptcy in the last five years; (4) a relatively high
default probability as evidenced by, for example, a credit score below 660 on the FICO scale; or
(5) a debt service-to-income ratio of 50% or more. 17 Some financial institutions reduced that
definition to any borrower with a credit score below 660 or even 620 on the FICO scale; 18 while
still others failed to institute any explicit definition of a subprime borrower or loan. 19 Credit
scores are an underwriting tool used by lenders to evaluate the likelihood that a particular
individual will repay his or her debts. FICO credit scores, developed by the Fair Issacs
Corporation, are the most widely used credit scores in U.S. financial markets and provide scores
ranging from 300 to 850, with the higher scores indicating greater creditworthiness. 20
High risk loans were not confined, however, to those issued to subprime borrowers.
Some lenders engaged in a host of risky lending practices that allowed them to quickly generate
a large volume of high risk loans to both subprime and prime borrowers. Those practices, for
example, required little or no verification of borrower income, required borrowers to provide
little or no down payments, and used loans in which the borrower was not required to pay down
the loan amount, and instead incurred added debt over time, known as “negative amortization”
loans. Some lenders offered a low initial “teaser rate,” followed by a higher interest rate that
16

A Federal Reserve Bank of New York research paper identifies the top ten subprime loan originators in 2006 as
HSBC, New Century, Countrywide, Citigroup, WMC Mortgage, Fremont, Ameriquest Mortgage, Option One,
Wells Fargo, and First Franklin. It identifies the top ten originators of subprime mortgage backed securities as
Countrywide, New Century, Option One, Fremont, Washington Mutual, First Franklin, Residential Funding Corp.,
Lehman Brothers, WMC Mortgage, and Ameriquest. “Understanding the Securitization of Subprime Mortgage
Credit,” by Adam Ashcraft and Til Schuermann, Federal Reserve Bank of New York Staff Report No. 318, (3/2008)
at 4.
17
Interagency “Expanded Guidance for Subprime Lending Programs, (1/31/2001) at 3. See also “Understanding the
Securitization of Subprime Mortgage Credit,” by Adam Ashcraft and Til Schuermann, Federal Reserve Bank of
New York Staff Report No. 318, (3/2008) at 14.
18
See, e.g., 1/2005 “Definition of Higher Risk Lending,” chart from Washington Mutual Board of Directors Finance
Committee Discussion, JPM_WM00302979, Hearing Exhibit 4/13-2a; 4/2010 “Evaluation of Federal Regulatory
Oversight of Washington Mutual Bank,” report prepared by the Offices of Inspector General at the Department of
the Treasury and Federal Deposit Insurance Corporation, at 8, Hearing Exhibit 4/16-82.
19
See, e.g., Countrywide Financial Corporation, as described in SEC v. Mozilo, Case No. CV09-03994 (USDC CD
Calif.), Complaint (June 4, 2009), at ¶¶ 20-21.
20
To develop FICO scores, Fair Isaac uses proprietary mathematical models that draw upon databases of actual
credit information to identify factors that can reliably be used to predict whether an individual will repay outstanding
debt. Key factors in the FICO score include an individual’s overall level of debt, payment history, types of credit
extensions, and use of available credit lines. See “What’s in Your FICO Score,” Fair Isaac Corporation,
http://www.myfico.com/CreditEducation/WhatsInYourScore.aspx. Other types of credit scores have also been
developed, including the VantageScore developed jointly by the three major credit bureaus, Equifax Inc., Experian
Group Ltd., and TransUnion LLC, but the FICO score remains the most widely used credit score in U.S. financial
markets.

20
took effect after a specified event or period of time, to enable borrowers with less income to
make the initial, smaller loan payments. Some qualified borrowers according to whether they
could afford to pay the lower initial rate, rather than the higher rate that took effect later,
expanding the number of borrowers who could qualify for the loans. Some lenders deliberately
issued loans that made economic sense for borrowers only if the borrowers could refinance the
loan within a few years to retain the teaser rate, or sell the home to cover the loan costs. Some
lenders also issued loans that depended upon the mortgaged home to increase in value over time,
and cover the loan costs if the borrower defaulted. Still another risky practice engaged in by
some lenders was to ignore signs of loan fraud and to issue and securitize loans suspected of
containing fraudulent borrower information.
These practices were used to qualify borrowers for larger loans than they could have
otherwise obtained. When borrowers took out larger loans, the mortgage broker typically
profited from higher fees and commissions; the lender profited from higher fees and a better
price for the loan on the secondary market; and Wall Street firms profited from a larger revenue
stream to support bigger pools of mortgage backed securities.
The securitization of higher risk loans led to increased profits, but also injected greater
risks into U.S. mortgage markets. Some U.S. lenders, like Washington Mutual and Countrywide,
made wholesale shifts in their loan programs, reducing their sale of low risk, 30-year, fixed rate
mortgages and increasing their sale of higher risk loans. 21 Because higher risk loans required
borrowers to pay higher fees and a higher rate of interest, they produced greater initial profits for
lenders than lower risk loans. In addition, Wall Street firms were willing to pay more for the
higher risk loans, because once securitized, the AAA securities relying on those loans typically
paid investors a higher rate of return than other AAA investments, due to the higher risk
involved. As a result, investors were willing to pay more, and mortgaged backed securities
relying on higher risk loans typically fetched a better price than those relying on lower risk loans.
Lenders also incurred little risk from issuing the higher risk loans, since they quickly sold the
loans and kept the risk off their books.
After 2000, the number of high risk loans increased rapidly, from about $125 billion in
dollar value or 12% of all U.S. loan originations in 2000, to about $1 trillion in dollar value or
34% of all loan originations in 2006. 22 Altogether from 2000 to 2007, U.S. lenders originated
about 14.5 million high risk loans. 23 The majority of those loans, 59%, were used to refinance
21

See, e.g., “Shift to Higher Margin Products,” chart from Washington Mutual Board of Directors meeting, at
JPM_WM00690894, Hearing Exhibit 4/13-3 (featuring discussion of the larger “gain on sale” produced by higher
risk home loans); “WaMu Product Originations and Purchases By Percentage - 2003-2007,” chart prepared by the
Subcommittee, Hearing Exhibit 4/13-1i (showing how higher risk loans grew from about 19% to about 55% of
WaMu’s loan originations); SEC v. Mozilo, Case No. CV09-03994 (USDC CD Calif.), Complaint (June 4, 2009), at
¶¶ 17-19 (alleging that higher risk loans doubled at Countrywide, increasing from about 31% to about 64% of its
loan originations).
22
8/2010 “Nonprime Mortgages: Analysis of Loan Performance, Factors Associated with Defaults, and Data
Sources,” Government Accountability Office (GAO), Report No. GAO-10-805 at 1. These figures include subprime
loans, Alt A, and option payment loans, but not home equity loans, which means the totals for high risk loans are
understated.
23
Id. at 5.

21
an existing loan, rather than buy a new home. 24 In addition, according to research performed by
GAO, many of these borrowers:
“refinanced their mortgages at a higher amount than the loan balance to convert their
home equity into money for personal use (known as ‘cash-out refinancing’). Of the
subprime mortgages originated from 2000 through 2007, 55 percent were for cash-out
refinancing, 9 percent were for no-cash-out refinancing, and 36 percent were for a home
purchase.” 25
Some lenders became known inside the industry for issuing high risk, poor quality loans,
yet during the years leading up to the financial crisis were able to securitize and sell their home
loans with few problems. Subprime lenders like Long Beach Mortgage Corporation, New
Century Financial Corporation, and Fremont Loan & Investment, for example, were known for
issuing poor quality subprime loans. 26 Despite their reputations for poor quality loans, leading
investment banks continued to do business with them and helped them sell or securitize hundreds
of billions of dollars in home mortgages.
These three lenders and others issued a variety of nontraditional, high risk loans whose
subsequent delinquencies and defaults later contributed to the financial crisis. They included
hybrid adjustable rate mortgages, pick-a-payment or option ARM loans, interest-only loans,
home equity loans, and Alt A and stated income loans. Although some of these loans had been
in existence for years, they had previously been restricted to a relatively small group of
borrowers who were generally able to repay their debts. In the years leading up to the financial
crisis, however, lenders issued these higher risk loans to a wide variety of borrowers, including
subprime borrowers, who often used them to purchase more expensive homes than they would
have been able to buy using traditional fixed rate, 30-year loans.
Hybrid ARMs. One common high risk loan used by lenders in the years leading up to
the financial crisis was the short term hybrid adjustable rate mortgage (Hybrid ARM), which was
offered primarily to subprime borrowers. From 2000 to 2007, about 70% of subprime loans
were Hybrid ARMs. 27 Hybrid ARMs were often referred to “2/28,” “3/27,” or “5/25” loans.
These 30-year mortgages typically had a low fixed teaser rate, which then reset to a higher
floating interest rate, after two years for the 2/28, three years for the 3/27, or five years for the
5/25. The initial loan payment was typically calculated by assuming the initial low, fixed
interest rate would be used to pay down the loan. In some cases, the loan used payments that
initially covered only the interest due on the loan and not any principal; these loans were called
“interest only” loans. After the fixed period for the teaser rate expired, the monthly payment was
typically recalculated using the higher floating rate to pay off the remaining principal and interest
owing over the course of the remaining loan period. The resulting monthly payment was much
24

7/28/2009 “Characteristics and Performance of Nonprime Mortgages,” GAO, Report No. GAO-09-848R at 24,
Table 3.
25
Id. at 7.
26
For more information about Long Beach, see Chapter III of this Report. For more information about New
Century and Fremont, see section (D)(2)(c)-(d) of Chapter IV.
27
8/2010 “Nonprime Mortgages: Analysis of Loan Performance, Factors Associated with Defaults, and Data
Sources,” GAO, Report No. GAO-10-805 at 5, 11.

22
larger and sometimes caused borrowers to experience “payment shock” and default on their
loans. To avoid the higher interest rate and the larger loan payment, many of the borrowers
routinely refinanced their loans; when those borrowers were unable to refinance, many were
unable to afford the higher mortgage payment and defaulted.
Pick-A-Payment or Option ARMs. Another common high risk loan, offered to both
prime and subprime borrowers during the years leading up to the financial crisis, was known as
the “pick-a-payment” or “option adjustable rate mortgage” (Option ARM). According to a 2009
GAO report:
“[P]ayment-option ARMs were once specialized products for financially sophisticated
borrowers but ultimately became more widespread. According to federal banking
regulators and a range of industry participants, as home prices increased rapidly in some
areas of the country, lenders began marketing payment-option ARMs as affordability
products and made them available to less-creditworthy and lower-income borrowers.” 28
Option ARMs typically allowed the borrower to pay an initial low teaser rate, sometimes
as low as a 1% annual rate for the first month, and then imposed a much higher interest rate
linked to an index, while also giving the borrower a choice each month of how much to pay
down the outstanding loan balance. These loans were called “pick-a-payment” or “option”
ARMs, because borrowers were typically allowed to choose among four alternatives: (1) paying
the fully amortizing amount needed to pay off the loan in 30 years; (2) paying an even higher
amount to pay off the loan in 15 years; (3) paying only the interest owed that month and no
principal; or (4) making a “minimum” payment that covered only a portion of the interest owed
and none of the principal. If the minimum payment option were selected, the unpaid interest
would be added to the loan principal. If, each month, the borrower made only the minimum
payment, the loan principal would increase rather than decrease over time, creating a negatively
amortizing loan.
Typically, after five years or when the loan principal reached a designated threshold, such
as 110%, 115%, or 125% of the original loan amount, the loan would “recast.” The borrower
would then be required to make the fully amortizing payment needed to pay off the remaining
loan amount within the remaining loan period. The new monthly payment amount was typically
much greater, causing payment shock and increasing loan defaults. For example, a borrower
taking out a $400,000 loan, with a teaser rate of 1.5% and subsequent interest rate of 6%, might
have a minimum payment of $1,333. If the borrower then made only the minimum payments
until the loan recast, the new payment using the 6% rate would be $2,786, an increase of more
than 100%. What began as a 30-year loan for $400,000 became a 25-year loan for $432,000. To
avoid having the loan recast, option ARM borrowers typically sought to refinance their loans. At
some lenders, a significant portion of their option ARM business consisted of refinancing
existing loans.
Home Equity Loans. A third type of high risk loan that became popular during the
years leading up to the financial crisis was the home equity loan (HEL). HELs provided loans
28

7/28/2009 “Characteristics and Performance of Nonprime Mortgages,” GAO, Report No. GAO-09-848R at 12-13.

23
secured by the borrower’s equity in his or her home, which served as the loan collateral. HELs
typically provided a lump sum loan amount that had to be repaid over a fixed period of time,
such as 5, 10, or 30 years, using a fixed interest rate, although adjustable rates could also be
used. A related loan, the Home Equity Line of Credit (HELOC), created a revolving line of
credit, secured by the borrower’s home, that the borrower could use at will, to take out and repay
various levels of debt over time, typically using an adjustable rate of interest. Both HELs and
HELOCs created liens against the borrower’s house which, in the event of a default, could be
sold to repay any outstanding loan amounts.
During the years leading up to the financial crisis, lenders provided HELs and HELOCs
to both prime and subprime borrowers. They were typically high risk loans, because most were
issued to borrowers who already had a mortgage on their homes and held only a limited amount
of equity. The HEL or HELOC was typically able to establish only a “second lien” or “second
mortgage” on the property. If the borrower later defaulted and the home sold, the sale proceeds
would be used to pay off the primary mortgage first, and only then the HEL or HELOC. Often,
the sale proceeds were insufficient to repay the HEL or HELOC loan. In addition, some lenders
created home loan programs in which a HEL was issued as a “piggyback loan” to the primary
home mortgage to finance all or part of the borrower’s down payment. 29 Taken together, the
HEL and the mortgage often provided the borrower with financing equal to 85%, 90%, or even
100% of the property’s value. 30 The resulting high loan-to-value ratio, and the lack of borrower
equity in the home, meant that, if the borrower defaulted and the home had to be sold, the sale
proceeds were unlikely to be sufficient to repay both loans.
Alt A Loans. Another type of common loan during the years leading up to the financial
crisis was the “Alt A” loan. Alt A loans were issued to borrowers with relatively good credit
histories, but with aggressive underwriting that increased the risk of the loan. 31 For example, Alt
A loans often allowed borrowers to obtain 100% financing of their homes, to have an unusually
high debt-to-income ratio, or submit limited or even no documentation to establish their income
levels. Alt A loans were sometimes referred to as “low doc” or “no doc” loans. They were
originally developed for self employed individuals who could not easily establish their income
by producing traditional W-2 tax return forms or pay stubs, and so were allowed to submit
“alternative” documentation to establish their income or assets, such as bank statements. 32 The
reasoning was that other underwriting criteria could be used to ensure that Alt A loans would be
repaid, such as selecting only borrowers with a high credit score or with a property appraisal
showing the home had substantial value in excess of the loan amount. According to GAO, from
2000 to 2006, the percentage of Alt A loans with less than full documentation of the borrower’s
income or assets rose from about 60% to 80%. 33

29

7/28/2009 “Characteristics and Performance of Nonprime Mortgages,” GAO, Report No. GAO-09-848R at 9.
Id. GAO determined that, in 2000, only about 2.4% of subprime loans had a combined loan-to-value ratio,
including both first and second home liens, of 100%, but by 2006, the percentage had climbed tenfold to 29.3%.
31
Id. at 1. GAO treated both low documentation loans and Option ARMs as Alt A loans. This Report considers
Option ARMs as a separate loan category.
32
See id. at 14.
33
Id.
30

24
Stated Income Loans. Stated income loans were a more extreme form of low doc Alt A
loans, in that they imposed no documentation requirements and required little effort by the lender
to verify the borrower’s income. These loans allowed borrowers simply to “state” their income,
with no verification by the lender of the borrower’s income or assets other than to consider the
income’s “reasonableness.” They were sometimes called “NINA” loans, because “No Income”
and “No Assets” of the borrower were verified by the lender. They were also referred to as “liar
loans,” since borrowers could lie about their incomes, and the lender would make little effort to
substantiate the claimed income. Many lenders believed they could simply rely on the other
underwriting tools, such as the borrower’s credit score and the property appraisal, to ensure the
loans would be repaid. Once rare and reserved only for wealthier borrowers, stated income loans
became commonplace in the years leading up to the financial crisis. For example, at Washington
Mutual Bank, one of the case studies in this Report, by the end of 2007, stated income loans
made up 50% of its subprime loans, 73% of its Option ARMs, and 90% of its home equity
loans. 34
Nationwide, the percentage of high risk loans issued with low or no documentation of
borrower income or assets was less dramatic. According to GAO, for example, from 2000 to
2006, the nationwide percentage of subprime loans with low or no documentation of borrower
income or assets grew from about 20% to 38%. 35
Volume and Speed. When lenders kept on their books the loans they issued, the
creditworthiness of those loans determined whether the lender would turn a profit. Once lenders
began to sell or securitize most of their loans, volume and speed, as opposed to creditworthiness,
became the keys to a profitable securitization business.
In addition, in the years leading up to the financial crisis, investors that might normally
insist on purchasing only high quality securities, purchased billions of dollars in RMBS
securities containing poor quality, high risk loans, in part because those securities bore AAA
ratings from the credit rating agencies, and in part because the securities offered higher returns
compared to other AAA rated investments. Banks also bought investment grade RMBS
securities to take advantage of their lower capital requirements. Increasingly, the buyers of
RMBS securities began to forego detailed due diligence of the RMBS securities they purchased.
Instead, they, like the lenders issuing the mortgages, operated in a mortgage market that came to
be dominated by volume and speed, as opposed to credit risk.
Lenders that produced a high volume of loans could sell pools of the loans to Wall Street
or to government sponsored entities like Fannie Mae and Freddie Mac. Likewise, they could
securitize the loans and work with Wall Street investment banks to sell the securities to investors.
These lenders passed on the risk of nonpayment to third parties, and so lost interest in whether
the sold loans would, in fact, be repaid. Investment banks that securitized the loans garnered
fees for their services and also typically passed on the risk of nonpayment to the investors who
34

4/2010 “Evaluation of Federal Regulatory Oversight of Washington Mutual Bank,” prepared by the Offices of
Inspector General at the Department of the Treasury and Federal Deposit Insurance Corporation, at 10, Hearing
Exhibit 4/16-82.
35
7/28/2009 “Characteristics and Performance of Nonprime Mortgages,” GAO, Report No. GAO-09-848R at 14.

25
bought the mortgage backed securities. The investment banks were typically interested in loan
repayment rates only to the extent needed to ensure defaulting loans did not cause losses to the
mortgage backed securities they sold. Even some of the investors who purchased the mortgage
backed securities lost interest in their creditworthiness, so long as they could buy “insurance” in
the form of credit default swaps that paid off if a mortgage backed security defaulted.
To ensure an ongoing supply of loans for sale, lenders created compensation incentives
that encouraged their personnel to quickly produce a high volume of loans. They also
encouraged their staffs to issue or purchase higher risk loans, because those loans produced
higher sale prices on Wall Street. Loan officers, for example, received more money per loan for
originating higher risk loans and for exceeding established loan targets. Loan processing
personnel were compensated according to the speed and number of the loans they processed.
Loan officers and their sales associates received still more compensation, often called yield
spread premiums, if they charged borrowers higher interest rates or points than required in the
lender’s rate sheets specifying loan prices, or included prepayment penalties in the loan
agreements. The Subcommittee’s investigation found that lenders employed few compensation
incentives to encourage loan officers or loan processors to produce high quality, creditworthy
loans in line with the lender’s credit requirements.
As long as home prices kept rising, the high risk loans fueling the securitization markets
produced few problems. Borrowers who could not make their loan payments could refinance
their loans or sell their homes and use the sale proceeds to pay off their mortgages. As this chart
shows, over the ten years before the crisis hit, housing prices shot up faster than they had in
decades, allowing price increases to mask problems with the high risk loans being issued. 36

36

See “Estimation of Housing Bubble: Comparison of Recent Appreciation vs. Historical Trends,” chart prepared by
Paulson & Co. Inc., Hearing Exhibit 4/13-1j.

26

Borrowers were able to pay for the increasingly expensive homes, in part, because of the
exotic, high risk loans and lax loan underwriting practices that allowed them to buy more house
than they could really afford.

C. Credit Ratings and Structured Finance
Despite the increasing use of high risk loans to support mortgage related securities,
mortgage related securities continued to receive AAA and other investment grade ratings from
the credit rating agencies, indicating they were judged to be safe investments. Those credit
ratings gave a sense of security to investors and enabled investors like pension funds, insurance
companies, university endowments, and municipalities, which were often required to hold safe
investments, to continue to purchase mortgage related securities.
Credit Ratings Generally. A credit rating is an assessment of the likelihood that a
particular financial instrument, such as a corporate bond or mortgage backed security, may

27
default or incur losses. 37 A high credit rating indicates that a debt instrument is expected to be
repaid and so qualifies as a safe investment.
Credit ratings are issued by private firms that have been officially designated by the SEC
as Nationally Recognized Statistical Rating Organizations (NRSROs). NRSROs are usually
referred to as “credit rating agencies.” While there are ten registered credit rating agencies in the
United States, the market is dominated by just three: Moody’s Investors Service, Inc.
(Moody’s); Standard & Poor’s Financial Services LLC (S&P); and Fitch Ratings Ltd. (Fitch). 38
By some accounts, these firms issue about 98% of the total credit ratings and collect 90% of total
credit rating revenue in the United States. 39
Credit ratings use a scale of letter grades to indicate credit risk, ranging from AAA to D,
with AAA ratings designating the safest investments. Investments with AAA ratings have
historically had low default rates. For example, S&P reported that its cumulative RMBS default
rate by original rating class (through September 15, 2007) was 0.04% for AAA initial ratings and
1.09% for BBB. 40 Financial instruments bearing AAA through BBB- ratings are generally
referred to as “investment grade,” while those with ratings below BBB- (or Baa3) are referred to
as “below investment grade” or sometimes as having “junk” status. Financial instruments that
default receive a D rating from Standard & Poor’s, but no rating at all from Moody’s.
Investors often rely on credit ratings to gauge the safety of a particular investment. Some
institutional investors design an investment strategy that calls for acquiring assets with specified
credit ratings. State and federal law also restricts the amount of below investment grade bonds
that certain investors can hold, such as pension funds and insurance companies. 41 Banks are also
limited by law in the amount of noninvestment grade bonds they can hold, and are typically
required to post additional capital for investments carrying riskier ratings. Because so many
federal and state statutes and regulations required financial institutions to hold securities with
investment grade ratings, the credit rating agencies were not only guaranteed a steady business,
but were encouraged to issue AAA and other investment grade ratings. Issuers of securities and
other financial instruments also worked hard to obtain favorable credit ratings to ensure more
investors could buy their products.
Although the SEC has generally overseen the credit rating industry for many years, it had
no statutory basis to exercise regulatory authority until enactment of the Credit Rating Agency
Reform Act in September 2006. Concerned by the inflated credit ratings that had been issued for
37

See 9/3/2009 “Credit Rating Agencies and Their Regulation,” prepared by the Congressional Research Service
Report No. R40613 (revised report issued 4/9/2010). For more information about the credit rating process and the
credit rating agencies, see Chapter V, below.
38
See 9/25/2008 “Credit Rating Agencies—NRSROs,” SEC, http://www.sec.gov/answers/nrsro.htm.
39
See 9/3/2009 “Credit Rating Agencies and Their Regulation,” prepared by the Congressional Research Service
Report No. R40613 (revised report issued 4/9/2010).
40
Prepared Statement of Vickie A. Tillman, Executive Vice President, Standard & Poor’s Credit Market Services,
“The Role of Credit Rating Agencies in the Structured Finance Market,” before the U.S. House of Representatives
Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises of the Committee on Financial
Services, Serial No. 110-62 (9/27/2007), S&P SEC-PSI 0001945-71, at 51. (See Chapter V below.) See also 1/2007
“Annual 2006 Global Corporate Default Study and Ratings Transitions,” S&P.
41
For more detail on these matters, see Chapter V, below.

28
bonds from Enron Corporation and other troubled corporations, Congress strengthened the
SEC’s authority over the credit rating industry. Among other provisions, the law established
criteria for the NRSRO designation and authorized the SEC to conduct examinations of credit
rating agencies. The law also, however, prohibited the SEC from regulating credit rating criteria
or methodologies used in credit rating models. In June 2007, the SEC issued implementing
regulations, which were essentially too late to affect the ratings already provided for mortgage
related securities. One month later, in July 2007, the credit rating agencies issued the first of
several mass downgrades of the ratings earlier issued for mortgage related securities.
Structured Finance. In recent years, Wall Street firms have devised increasingly
complex financial instruments for sale to investors. These instruments are often referred to as
structured finance. Because structured finance products are so complicated and opaque,
investors often place particular reliance on credit ratings to determine whether they should buy
them.
Among the oldest types of structured finance products are RMBS securities. To create
these securities, issuers – often working with investment banks – bundle large numbers of home
loans into a loan pool, and calculate the revenue stream coming into the loan pool from the
individual mortgages. They then design a “waterfall” that delivers a stream of revenues in
sequential order to specified “tranches.” The first tranche is at the top of the waterfall and is
typically the first to receive revenues from the mortgage pool. Since that tranche is guaranteed
to be paid first, it is the safest investment in the pool. The issuer creates a security, often called a
bond, linked to that first tranche. That security typically receives a AAA credit rating since its
revenue stream is the most secure.
The security created from the next tranche receives the same or a lower credit rating and
so on until the waterfall reaches the “equity” tranche at the bottom. The equity tranche typically
receives no rating since it is the last to be paid, and therefore the first to incur losses if mortgages
in the loan pool default. Since virtually every mortgage pool has at least some mortgages that
default, equity tranches are intended to provide loss protection for the tranches above it. Because
equity tranches are riskier, however, they are often assigned and receive a higher rate of interest
and can be profitable if losses are minimal. One mortgage pool might produce five to a dozen or
more tranches, each of which is used to create a residential mortgage backed security that is rated
and then sold to investors.
Cash CDOs. Collateralized debt obligations (CDOs) are another type of structured
finance product whose securities receive credit ratings and are sold to investors. CDOs are a
more complex financial product that involves the re-securitization of existing income-producing
assets. From 2004 through 2007, many CDOs included RMBS securities from multiple
mortgage pools. For example, a CDO might contain BBB rated securities from 100 different
RMBS securitizations. CDOs can also contain other types of assets, such as commercial
mortgage backed securities, corporate bonds, or other CDO securities. These CDOs are often
called “cash CDOs,” because they receive cash revenues from the underlying RMBS bonds and
other assets. If a CDO is designed so that it contains a specific list of assets that do not change, it
is often called a “static” CDO; if the CDO’s assets are allowed to change over time, it is often

29
referred to as a “managed” CDO. Like an RMBS securitization, the CDO arranger calculates the
revenue stream coming into the pool of assets, designs a waterfall to divide those incoming
revenues among a hierarchy of tranches, and uses each tranche to issue securities that can then be
marketed to investors. The most senior tranches of a CDO may receive AAA ratings, even if all
of its underlying assets have BBB ratings.
Synthetic CDOs. Some investment banks also created “synthetic CDOs” which
mimicked cash CDOs, but did not contain actual mortgages or other assets that produced income.
Instead, they simply “referenced” existing assets and then allowed investors to use credit default
swaps to place bets on the performance of those referenced assets. Investors who bet that the
referenced assets would maintain or increase in value bought the CDO’s securities and, in
exchange, received periodic coupon payments to recoup their principal investment plus interest.
Investors who bet that the referenced assets would lose value or incur a specified negative credit
event purchased one or more credit default swap contracts referencing the CDO’s assets, and
paid monthly premiums to the CDO in exchange for obtaining a large lump sum payment if the
loss or other negative credit event actually occurred. Investors in synthetic CDOs who bet the
referenced assets would maintain or increase in value were said to be on the “long” side, while
investors who bet the assets would lose value or fail were said to be on the “short” side. Some
investment banks also created “hybrid CDOs” which contained some cash assets as well as credit
default swaps referencing other assets. Others created financial instruments called CDO squared
or cubed, which contained or referenced tranches from other CDOs.
Like RMBS mortgage pools and cash CDOs, synthetic and hybrid CDOs pooled the
payments they received, designed a waterfall assigning portions of the revenues to tranches set
up in a certain order, created securities linked to the various tranches, and then sold the CDO
securities to investors. Some CDOs employed a “portfolio selection agent” to select the initial
assets for the CDO. In addition, some CDOs employed a “collateral manager” to select both the
initial and subsequent assets that went into the CDO.
Ratings Used to Market RMBS and CDOs. Wall Street firms helped design RMBS
and CDO securities, worked with the credit rating agencies to obtain ratings for the securities,
and sold the securities to investors like pension funds, insurance companies, university
endowments, municipalities, and hedge funds. Without investment grade ratings, Wall Street
firms would have had a more difficult time selling structured finance products to investors,
because each investor would have had to perform its own due diligence review of the product. In
addition, their sales would have been restricted by federal and state regulations limiting certain
institutional investors to the purchase of instruments carrying investment grade credit ratings.
Still other regulations conditioned capital reserve requirements on the credit ratings assigned to a
bank’s investments. Investment grade credit ratings, thus, purported to simplify the investors’
due diligence review, ensured some investors could make a purchase, reduced banks’ capital
calls, and otherwise enhanced the sales of the structured finance products. Here’s how one
federal bank regulator’s handbook put it:
“The rating agencies perform a critical role in structured finance – evaluating the credit
quality of the transactions. Such agencies are considered credible because they possess

30
the expertise to evaluate various underlying asset types, and because they do not have a
financial interest in a security’s cost or yield. Ratings are important because investors
generally accept ratings by the major public rating agencies in lieu of conducting a due
diligence investigation of the underlying assets and the servicer.” 42
The more complex and opaque the structured finance instruments became, the more reliant
investors were on high credit ratings for the instruments to be marketable.
In addition to making structured finance products easier to sell to investors, Wall Street
firms used financial engineering to combine AAA ratings – normally reserved for ultra-safe
investments with low rates of return – with high risk assets, such as the AAA tranche from a
subprime RMBS paying a relatively high rate of return. Higher rates of return, combined with
AAA ratings, made subprime RMBS and related CDOs especially attractive investments.
Record Ratings and Revenues. From 2004 to 2007, Moody’s and S&P produced a record
number of ratings and a record amount of revenues for rating structured finance products. A
2008 S&P submission to the SEC indicates, for example, that from 2004 to 2007, S&P issued
more than 5,500 RMBS ratings and more than 835 mortgage related CDO ratings. 43 According
to a 2008 Moody’s submission to the SEC, from 2004 to 2007, Moody’s issued over 4,000
RMBS ratings and over 870 CDO ratings. 44
Revenues increased dramatically over the same time period. The credit rating agencies
charged substantial fees to rate a product. To obtain a rating during the height of the market, for
example, S&P generally charged from $40,000 to $135,000 to rate tranches of an RMBS and
from $30,000 to $750,000 to rate the tranches of a CDO. 45 Surveillance fees generally ranged
from $5,000 to $50,000 per year for mortgage backed securities. 46 Over a five-year period,
Moody’s gross revenues from RMBS and CDO ratings more than tripled, going from over $61
million in 2002, to over $260 million in 2006.47 S&P’s revenue also increased. S&P’s gross
revenues for RMBS and mortgage related CDO ratings quadrupled, from over $64 million in
42

11/1997 Comptroller of the Currency Administrator of National Banks Comptroller’s Handbook, “Asset
Securitization,” at 11.
43
3/14/2008 compliance letter from S&P to SEC, SEC_OCIE_CRA_011218-59, at 20. These numbers represent the
RMBS or CDO pools that were presented to S&P which then issued ratings for multiple tranches per RMBS or
CDO pool. (See Chapter V below.)
44
3/11/2008 compliance letter from Moody’s to SEC, SEC_OCIE_CRA_011212 and SEC_OCIE_CRA_011214.
These numbers represent the RMBS or CDO pools that were presented to Moody’s which then issued ratings for
multiple tranches per RMBS or CDO pool. The data Moody’s provided to the SEC on CDOs represented ABS
CDOs, some of which may not be mortgage related. However, by 2004, most, but not all, CDOs relied primarily on
mortgage related assets such as RMBS securities. Subcommittee interview of Gary Witt, former Managing Director
of Moody’s RMBS Group (10/29/2009). (See Chapter V below.)
45
“U.S. Structured Ratings Fee Schedule Residential Mortgage-backed Financings and Residential Servicer
Evaluations,” prepared by S&P, S&P-PSI 0000028-35; and “U.S. Structured Ratings Fee Schedule Collateralized
Debt Obligations Amended 3/7/2007,” prepared by S&P, S&P-PSI 0000036-50. (See Chapter V below.)
46
Id.
47
3/11/2008 compliance letter from Moody’s to SEC, SEC_OCIE_CRA_011212 and SEC_OCIE_CRA_011214.
The 2002 figure does not include gross revenue from CDO ratings as this figure was not readily available due to the
transition of Moody’s accounting systems. (See Chapter V below.)

31
2002, to over $265 million in 2006. 48 Altogether, revenues from the three leading credit rating
agencies more than doubled from nearly $3 billion in 2002 to over $6 billion in 2007. 49
Conflicts of Interest. Credit rating agencies are paid by the issuers seeking ratings for
the products they sell. Issuers and the investment banks want high ratings, whether to help
market their products or ensure they comply with federal regulations. Because credit rating
agencies issue ratings to issuers and investment banks who bring them business, they are subject
to an inherent conflict of interest that can create pressure on the credit rating agencies to issue
favorable ratings to attract business. The issuers and investment banks engage in “ratings
shopping,” choosing the credit rating agency that offers the highest ratings. Ratings shopping
weakens rating standards as the rating agencies who provide the most favorable ratings win more
business. In September 2007, Moody’s CEO described the problem this way: “What happened
in ’04 and ’05 with respect to subordinated tranches is that our competition, Fitch and S&P, went
nuts. Everything was investment grade.” 50 In 2003, the SEC reported that “the potential
conflicts of interest faced by credit rating agencies have increased in recent years, particularly
given the expansion of large credit rating agencies into ancillary advisory and other businesses,
and the continued rise in importance of rating agencies in the U.S. securities markets.” 51
Mass Downgrades. The credit ratings assigned to RMBS and CDO securities are
designed to last the lifetime of the securities. Because circumstances can change, however,
credit rating agencies conduct ongoing surveillance of each rated financial product to evaluate
the rating and determine whether it should be upgraded or downgraded. Prior to the financial
crisis, the numbers of downgrades and upgrades for structured finance ratings were substantially
lower. 52 Beginning in July 2007, however, Moody’s and S&P issued hundreds and then
thousands of downgrades of RMBS and CDO ratings, the first mass downgrades in U.S. history.
From 2004 through the first half of 2007, Moody’s and S&P provided AAA ratings to a
majority of the RMBS and CDO securities issued in the United States, sometimes providing
AAA ratings to as much as 95% of a securitization. 53 By 2010, analysts had determined that
over 90% of the AAA ratings issued to RMBS securities originated in 2006 and 2007 had been
downgraded to junk status. 54

48

3/14/2008 compliance letter from S&P to SEC, SEC_OCIE_CRA_011218-59, at 18-19. (See Chapter V below.)
“Revenue of the Three Credit Rating Agencies: 2002-2007,” chart prepared by the Subcommittee using data from
http://thismatter.com/money, Hearing Exhibit 4/23-1g.
50
9/10/2007 Transcript of Raymond McDaniel at Moody’s MD Town Hall Meeting, Hearing Exhibit 4/23-98.
51
1/2003 “Report on the Role and Function of Credit Rating Agencies in the Operation of the Securities Markets,”
prepared by the SEC, at 40. The report continued: “[C]oncerns had been expressed that a rating agency might be
tempted to give a more favorable rating to a large issue because of the large fee, and to encourage the issuer to
submit future large issues to the rating agency.” Id. at 40 n.109.
52
See, e.g., 3/26/2010 “Fitch Ratings Global Structured Finance 2009 Transition and Default Study,” prepared by
Fitch.
53
See “MBS Ratings and the Mortgage Credit Boom,” Federal Reserve Bank of New York Staff Report no. 449,
May 2010, at 1.
54
See, e.g., “Percent of the Original AAA Universe Currently Rated Below Investment Grade,” chart prepared by
BlackRock Solutions, Hearing Exhibit 4/23-1i. See also 3/2008 “Understanding the Securitization of Subprime
Mortgage Credit,” Federal Reserve Bank of New York Staff Report no. 318, at 58 and chart 31 (“92 percent of 1st49

32
Moody’s and S&P began downgrading RMBS and CDO products in late 2006, when
residential mortgage delinquency rates and losses began increasing. Then, in July 2007, both
S&P and Moody’s initiated the first of several mass downgrades that shocked the financial
markets. On July 10, S&P placed on credit watch the ratings of 612 subprime RMBS with an
original value of $7.35 billion. Later that day, Moody’s downgraded 399 subprime RMBS with
an original value of $5.2 billion. Two days later, S&P downgraded 498 of the ratings it had
placed on credit watch.
In October 2007, Moody’s began downgrading CDOs on a daily basis, downgrading
more than 270 CDO securities with an original value of $10 billion. In December 2007,
Moody’s downgraded another $14 billion in CDOs, and placed another $105 billion on credit
watch. Moody’s calculated that, overall in 2007, “8725 ratings from 2116 deals were
downgraded and 1954 ratings from 732 deals were upgraded,” 55 which means that it downgraded
over four times more ratings than it upgraded. On January 30, 2008, S&P either downgraded or
placed on credit watch over 8,200 ratings of subprime RMBS and CDO securities, representing
issuance amounts of approximately $270.1 billion and $263.9 billion, respectively. 56
These downgrades created significant turmoil in the securitization markets, as investors
were required by regulations to sell off assets that had lost their investment grade status, holdings
at financial firms plummeted in value, and new securitizations were unable to find investors. As
a result, the subprime RMBS and CDO secondary markets slowed and then collapsed, and
financial firms around the world were left holding billions of dollars in suddenly unmarketable
RMBS and CDO securities.

D. Investment Banks
Historically, investment banks helped raise capital for business and other endeavors by
helping to design, finance, and sell financial products like stocks or bonds. When a corporation
needed capital to fund a large construction project, for example, it often hired an investment
bank either to help it arrange a bank loan or raise capital by helping to market a new issue of
shares or corporate bonds to investors. Investment banks also helped with corporate mergers and
acquisitions. Today, investment banks also participate in a wide range of other financial
activities, including offering broker-dealer and investment advisory services, and trading
derivatives and commodities. Many have also been active in the mortgage market and have
worked with lenders or mortgage brokers to package and sell mortgage loans and mortgage
backed securities. Investment banks have traditionally performed these services in exchange for
fees.
lien subprime deals originated in 2006 as well as … 91.8 percent of 2nd-lien deals originated in 2006 have been
downgraded.”).
55
2/2008 “Structured Finance Ratings Transitions, 1983-2007,” Credit Policy Special Comment prepared by
Moody’s, at 4.
56
6/24/2010 supplemental response from S&P to the Subcommittee, Exhibit N, Hearing Exhibit 4/23-108
(1/30/2008 “S&P Takes Action on 6,389 U.S. Subprime RMBS Ratings and 1,953 CDO Ratings,” S&P’s
RatingsDirect). Ratings may appear on CreditWatch when events or deviations from an expected trend occur and
additional information is needed to evaluate the rating.

33
If an investment bank agreed to act as an “underwriter” for the issuance of a new security
to the public, it typically bore the risk of those securities on its books until the securities were
sold. By law, securities sold to the public generally must be registered with the SEC. 57
Registration statements explain the purpose of a proposed public offering, an issuer’s operations
and management, key financial data, and other important facts to potential investors. Any
offering document or prospectus provided to the investing public must also be filed with the
SEC. If an issuer decides not to offer a new security to the general public, it can still offer it to
investors through a “private placement.” 58 Investment banks often act as the “placement agent”
in these private offerings, helping to design, market, and sell the security to selected investors.
Solicitation documents in connection with private placements are not required to be filed with
the SEC. Under the federal securities laws, however, investment banks that act as an underwriter
or placement agent may be liable for any material misrepresentations or omissions of material
facts made in connection with a solicitation or sale of a security to an investor. 59
In the years leading up to the financial crisis, RMBS securities were generally registered
with the SEC and sold in public offerings, while CDO securities were generally sold to investors
through private placements. Investment banks frequently served as the underwriter or placement
agent in those transactions, and typically sold both types of securities to large institutional
investors.
In addition to arranging for a public or private offering, some investment banks take on
the role of a “market maker,” standing willing and able to buy or sell financial products to their
clients or other market participants. To facilitate client orders to buy or sell those products, the
investment bank may acquire an inventory of them and make them available for client
transactions. 60 By filling both buy and sell orders, market makers help create a liquid market for
the financial products and make it easier and more attractive for clients to buy and sell them.
Market makers typically rely on fees in the form of markups in the price of the financial products
for their profits.
At the same time, investment banks may decide to buy and sell the financial products for
their own account, which is called “proprietary trading.” Investment banks often use the same
inventory of financial products to carry out both their market making and proprietary trading
activities. Investment banks that trade for their own account typically rely on changes in the
values of the financial products to turn a profit.
Inventories that are used for market making and short term proprietary trading purposes
are typically designated as a portfolio of assets “held for sale.” Investment banks also typically
maintain an inventory or portfolio of assets that they intend to keep as long term investments.
57

Securities Act of 1933, 15 U.S.C. § 77a (1933).
See, e.g., Securities Act of 1933 §§ 3(b) and 4(2); 17 CFR § 230.501 et seq. (Regulation D).
59
Securities Act of 1933, § 11, 15 U.S.C. § 77k; and Securities Exchange Act of 1934, § 10(b), 15 U.S.C. § 78j(b),
and Rule 10b-5 thereunder.
60
For a detailed discussion of market making, see “Study & Recommendations on Prohibitions on Proprietary
Trading & Certain Relationships with Hedge Funds & Private Equity Funds,” prepared by the Financial Stability
Oversight Council, at 28-29 (Jan. 18, 2011) (citing SEC Exchange Act Rel. No. 34-58775 (Oct. 14, 2008)).
58

34
This inventory or portfolio of long-term assets is typically designated as “held for investment,”
and is not used in day-to-day transactions.
Investment banks that carry out market-making and proprietary trading activities are
required – by their banking regulator in the case of banks and bank holding companies 61 and by
the SEC in the case of broker-dealers 62 – to track their investments and maintain sufficient
capital to meet their regulatory requirements and financial obligations. These capital
requirements typically vary based on how the positions are held and how they are classified. For
example, assets that are “held for sale” or are in the “trading account” typically have lower
capital requirements than those that are “held for investment,” because of the expected lower
risks associated with what are expected to be shorter term holdings.
Many investment banks use complex automated systems to analyze the “Value at Risk”
(VaR) associated with their holdings. To reduce the VaR attached to their holdings, investment
banks employ a variety of methods to offset or “hedge” their risk. These methods can include
diversifying their assets, taking a short position on related financial products, purchasing loss
protection through insurance or credit default swaps, or taking positions in derivatives whose
values move inversely to the value of the assets being hedged.
Shorting the Mortgage Market. Prior to the financial crisis, investors commonly
purchased RMBS or CDO securities as long-term investments that produced a steady income. In
2006, however, the high risk mortgages underlying these securities began to incur record levels
of delinquencies. Some investors, worried about the value of their holdings, sought to sell their
RMBS or CDO securities, but had a difficult time doing so due to the lack of an active market.
Some managed to sell their high risk RMBS securities to investment banks assembling cash
CDOs.
Some investors, instead of selling their RMBS or CDO securities, purchased “insurance”
against a loss by buying a credit default swap (CDS) that would pay off if the specified securities
incurred losses or other negative credit events. By 2005, investment banks had standardized
CDS contracts for RMBS and CDO securities, making this a practical alternative.
Much like insurance, the buyer of a CDS contract paid a periodic premium to the CDS
seller, who guaranteed the referenced security against loss. CDS contracts referencing a single
security or corporate bond became known as “single name” CDS contracts. If the referenced
security later incurred a loss, the CDS seller had to pay an agreed-upon amount to the CDS buyer
to cover the loss. Some investors began to purchase single name CDS contracts, not as a hedge
to offset losses from RMBS or CDO securities they owned, but as a way to profit from particular
RMBS or CDO securities they predicted would lose money. CDS contracts that paid off on
securities that were not owned by the CDS buyer were known as “naked credit default swaps.”
61

See, e.g., 12 CFR part 3, Appendix A (for the Office of the Comptroller of the Currency), 12 CFR part 208,
Appendix A and 12 CFR part 225, Appendix A (for the Federal Reserve Board of Governors) and 12 CFR part 325,
Appendix A (for the Federal Deposit Insurance Corporation).
62
Securities Exchange Act of 1934, Rule 15c3-1.

35
Some investors purchased large numbers of these CDS contracts in a concerted strategy to profit
from mortgage backed securities they believed would fail.
Some investment banks took the CDS approach a step further. In 2006, a consortium of
investment banks led by Goldman Sachs and Deutsche Bank launched the ABX Index, which
created five indices that tracked the aggregate performance of a basket of 20 designated
subprime RMBS securitizations. 63 Borrowing from longstanding practice in commodities
markets, investors could buy and sell contracts linked to the value of one of the ABX indices.
Each contract consisted of a credit default swap agreement in which the parties could essentially
wager on the rise or fall of the index value. According to a Goldman Sachs employee, the ABX
Index “introduced a standardized tool that allow[ed] clients to quickly gain exposure to the asset
class,” in this case subprime RMBS securities. An investor – or investment bank – taking a short
position in an ABX contract was, in effect, placing a bet that the basket of subprime RMBS
securities would lose value.
Synthetic CDOs provided still another vehicle for shorting the mortgage market. In this
approach, an investment bank created a synthetic CDO that referenced a variety of RMBS
securities. One or more investors could take the “short” position by paying premiums to the
CDO in exchange for a promise that the CDO would pay a specified amount if the referenced
assets incurred a negative credit event, such as a default or credit rating downgrade. If that event
took place, the CDO would have to pay an agreed-upon amount to the short investors to cover
the loss, removing income from the CDO and causing losses for the long investors. Synthetic
CDOs became a way for investors to short multiple specific RMBS securities that they expected
would incur losses.
Proprietary Trading. Financial institutions also built increasingly large proprietary
holdings of mortgage related assets. Numerous financial firms, including investment banks,
bought RMBS and CDO securities, and retained these securities in their investment portfolios.
Others retained these securities in their trading accounts to be used as inventory for short term
trading activity, market making on behalf of clients, hedging, providing collateral for short term
loans, or maintaining lower capital requirements. Deutsche Bank’s RMBS Group in New York,
for example, built up a $102 billion portfolio of RMBS and CDO securities, while the portfolio
at an affiliated hedge fund, Winchester Capital, exceeded $8 billion. 64 Other financial firms,
including Bear Stearns, Citibank, JPMorgan Chase, Lehman Brothers, Merrill Lynch, Morgan
Stanley, and UBS also accumulated enormous propriety holdings in mortgage related products.
When the value of these holdings dropped, some of these financial institutions lost tens of

63

Each of the five indices tracked a different tranche of securities from the designated 20 subprime RMBS
securitizations. One index tracked AAA rated securities from the 20 subprime RMBS securities; the second tracked
AA rated securities from the 20 RMBS securitizations; and the remaining indices tracked baskets of A, BBB, and
BBB rated RMBS securities. Every six months, a new set of RMBS securitizations was selected for a new ABX
index. See 3/2008 “Understanding the Securitization of Subprime Mortgage Credit,” prepared by Federal Reserve
Bank of New York, Report No. 318, at 26. Markit Group Ltd. administered the ABX Index which issued indices in
2006 and 2007, but has not issued any new indices since then.
64
For more information, see Chapter VI, section discussing Deutsche Bank.

36
billions of dollars, 65 and either declared bankruptcy, were sold off, 66 or were bailed out by U.S.
taxpayers seeking to avoid damage to the U.S. economy as a whole. 67
One investment bank, Goldman Sachs, built a large number of proprietary positions to
short the mortgage market. 68 Goldman Sachs had helped to build an active mortgage market in
the United States and had accumulated a huge portfolio of mortgage related products. In late
2006, Goldman Sachs decided to reverse course, using a variety of means to bet against the
mortgage market. In some cases, Goldman Sachs took proprietary positions that paid off only
when some of its clients lost money on the very securities that Goldman Sachs had sold to them
and then shorted. Altogether in 2007, Goldman’s mortgage department made $1.1 billion in net
revenues from shorting the mortgage market. 69 Despite those gains, Goldman Sachs was given a
$10 billion taxpayer bailout under the Troubled Asset Relief Program, 70 tens of billions of
dollars in support through accessing the Federal Reserve’s Primary Dealer Credit Facility, 71 and
billions more in indirect government support 72 to ensure its continued existence.

E. Market Oversight
U.S. financial regulators failed to stop financial firms from engaging in high risk,
conflict-ridden activities. Those regulatory failures arose, in part, from the fragmented nature of
U.S. financial oversight as well as statutory barriers to regulating high risk financial products.

65

See, e.g., Goldman Sachs Group, Inc., 2008 Annual Report 27 (2009) (stating that the firm had “long proprietary
positions in a number of [its] businesses. These positions are accounted for at fair value, and the declines in the
values of assets have had a direct and large negative impact on [its] earnings in fiscal 2008.”); see also, Viral V.
Acharya and Matthew Richardson, “Causes of the Financial Crisis,” 21 Critical Review 195, 199-204 (2009) (citing
proprietary holdings of asset backed securities as one of the primary drivers of accumulated risks causing the
financial crisis); “Prop Trading Losses Ain’t Peanuts,” The Street (1/27/2010),
http://www.thestreet.com/story/10668047/prop-trading-losses-aint-peanuts.html.
66
See, e.g., “Lehman Files for Bankruptcy; Merrill is Sold,” New York Times (9/14/2008); and discussion in
Chapter III of Washington Mutual Bank which was sold to JPMorgan Chase.
67
See, e.g., Capital Purchase Program Transactions, under the Troubled Asset Relief Program, U.S. Department of
the Treasury, at http://www.treasury.gov/initiatives/financial-stability/investmentprograms/cpp/Pages/capitalpurchaseprogram.aspx.
68
For more information, see Chapter VI, section describing Goldman Sachs.
69
Id. Goldman’s Structured Product Group Trading Desk earned $3.7 billion in net revenues, which was offset by
losses on other desks within the mortgage department, resulting in the $1.1 billion in total net revenues.
70
See, e.g., Capital Purchase Program Transactions, under the Troubled Asset Relief Program, U.S. Department of
the Treasury, available at http://www.treasury.gov/initiatives/financial-stability/investmentprograms/cpp/Pages/capitalpurchaseprogram.aspx and an example of a transactions report at
http://www.treasury.gov/initiatives/financial-stability/briefing-room/reports/tarptransactions/DocumentsTARPTransactions/transactions-report-062309.pdf.
71
See data available at http://www.federalreserve.gov/newsevents/reform_pdcf.htm showing Goldman Sachs’ use of
the Primary Dealer Credit Facility 85 times in 2008.
72
See, e.g., prepared statement of Neil Barofsky, Special Inspector General of the Troubled Asset Relief Program,
“The Federal Bailout of AIG,” before the House Committee on Oversight and Government Reform (1/27/2010),
http://oversight.house.gov/images/stories/Hearings/pdfs/20100127barofsky.pdf (noting that some firms, including
Goldman Sachs, disproportionately benefited from the federal government’s bailout of AIG).

37
Oversight of Lenders. At the end of 2005, the United States had about 8,800 federally
insured banks and thrifts, 73 plus about 8,700 federally insured credit unions, many of which were
in the business of issuing home loans. 74 On the federal level, these financial institutions were
overseen by five agencies: the Federal Reserve which oversaw state-chartered banks that were
part of the Federal Reserve System as well as foreign banks and others; the Office of the
Comptroller of the Currency (OCC) which oversaw banks with national charters; the Office of
Thrift Supervision (OTS) which oversaw federally-chartered thrifts; the National Credit Union
Administration which oversaw federal credit unions; and the Federal Deposit Insurance
Corporation (FDIC) which oversaw financial institutions that have federal deposit insurance
(hereinafter referred to as “federal bank regulators”). 75 In addition, state banking regulators
oversaw the state-chartered institutions and at times took action to require federally-chartered
financial institutions to comply with certain state laws.
The primary responsibility of the federal bank regulators was to ensure the safety and
soundness of the financial institutions they oversaw. One key mechanism they used to carry out
that responsibility was to conduct examinations on a periodic basis of the financial institutions
within their jurisdiction and provide the results in an annual Report of Examination (ROE) given
to the Board of Directors at each entity. The largest U.S. financial institutions typically operated
under a “continuous exam” program, which required federal bank examiners to conduct a series
of specialized examinations during the year with the results from all of those examinations
included in the annual ROE.
Federal examination activities were typically led by an Examiner in Charge and were
organized around a rating system called CAMELS that was used by all federal bank regulators.
The CAMELS rating system evaluated a financial institution’s: (C) capital adequacy, (A) asset
quality, (M) management, (E) earnings, (L) liquidity, and (S) sensitivity to market risk.
CAMELS ratings are on a scale of 1 to 5, in which 1 signifies a safe and secure bank with no
cause for supervisory concern, 3 signifies an institution with supervisory concerns in one or more
areas, and 5 signifies an unsafe and unsound bank with severe supervisory concerns. In the
annual ROE, regulators typically provided a financial institution with a rating for each CAMELS
component, as well as an overall composite rating on its safety and soundness.
In addition, the FDIC conducted its own examinations of financial institutions with
federal deposit insurance. The FDIC reviews relied heavily on the examination findings and
ROEs developed by the primary regulator of the financial institution, but the FDIC assigned its
own CAMELS ratings to each institution. In addition, for institutions with assets of $10 billion
or more, the FDIC established a Large Insured Depository Institutions (LIDI) Program to assess
and report on emerging risks that may pose a threat to the federal Deposit Insurance Fund.
Under this program, the FDIC performed an ongoing analysis of emerging risks within each
73

See FDIC Quarterly Banking Profile, 1 (Fourth Quarter 2005) (showing that, as of 12/31/2005, the United States
had 8,832 federal and state chartered insured banks and thrifts).
74
See 1/3/2011 chart, “Insurance Fund Ten-Year Trends,” supplied by the National Credit Union Administration
(showing that, as of 12/31/2005, the United States had 8,695 federal and state credit unions).
75
The Dodd-Frank Act has since abolished one of these agencies, the Office of Thrift Supervision, and assigned its
duties to the OCC. See Chapter IV.

38
insured institution and assigned a quarterly risk rating, using a scale of A to E, with A being the
best rating and E the worst.
If a regulator became concerned about the safety or soundness of a financial institution, it
had a wide range of informal and formal enforcement actions that could be used to require
operational changes. Informal actions included requiring the financial institution to issue a
safety and soundness plan, memorandum of understanding, Board resolution, or commitment
letter pledging to take specific corrective actions by a certain date, or issuing a supervisory letter
to the financial institution listing specific “matters requiring attention.” These informal
enforcement actions are generally not made public and are not enforceable in court. Formal
enforcement actions included a regulator issuing a public memorandum of understanding,
consent order, or cease and desist order requiring the financial institution to stop an unsafe
practice or take an affirmative action to correct identified problems; imposing a civil monetary
penalty; suspending or removing personnel from the financial institution; or referring misconduct
for criminal prosecution.
A wide range of large and small banks and thrifts were active in the mortgage market.
Banks like Bank of America, Citigroup, JPMorgan Chase, and Wells Fargo originated,
purchased, and securitized billions of dollars in home loans each year. Thrifts, whose charters
typically required them to hold 65% of their assets in mortgage related assets, also originated,
purchased, sold, and securitized billions of dollars in home loans, including such major lenders
as Countrywide Financial Corporation, IndyMac Bank, and Washington Mutual Bank. Some of
these banks and thrifts also had affiliates, such as Long Beach Mortgage Corporation, which
specialized in issuing subprime mortgages. Still more lenders operated outside of the regulated
banking system, including New Century Financial Corporation and Fremont Loan & Investment,
which used such corporate vehicles as industrial loan companies, real estate investment trusts, or
publicly traded corporations to carry out their businesses. In addition, the mortgage market was
populated with tens of thousands of mortgage brokers that were paid fees for their loans or for
bringing qualified borrowers to a lender to execute a home loan. 76
Oversight of Securities Firms. Another group of financial institutions active in the
mortgage market were securities firms, including investment banks, broker-dealers, and
investment advisors. These security firms did not originate home loans, but typically helped
design, underwrite, market, or trade securities linked to residential mortgages, including the
RMBS and CDO securities that were at the heart of the financial crisis. Key firms included Bear
Stearns, Goldman Sachs, Lehman Brothers, Merrill Lynch, Morgan Stanley, and the asset
management arms of large banks, including Citigroup, Deutsche Bank, and JPMorgan Chase.
Some of these firms also had affiliates which specialized in securitizing subprime mortgages.
Securities firms were overseen on the federal level by the Securities and Exchange
Commission (SEC) whose mission is to “protect investors, maintain fair, orderly, and efficient
76

1/2009 “Financial Regulation: A Framework for Crafting and Assessing Proposals to Modernize the Outdated
U.S. Financial Regulatory System,” prepared by the Government Accountability Office, Report No. GAO-09-216, at
26-27.

39
markets, and facilitate capital formation.” 77 The SEC oversees the “key participants in the
securities world, including securities exchanges, securities brokers and dealers, investment
advisors, and mutual funds,” primarily for the purpose of “promoting the disclosure of important
market related information, maintaining fair dealing, and protecting against fraud.” 78
The securities firms central to the financial crisis were subject to a variety of SEC
regulations in their roles as broker-dealers, investment advisors, market makers, underwriters,
and placement agents. Most were also subject to oversight by state securities regulators. 79 The
securities firms were required to submit a variety of public filings with the SEC about their
operations and in connection with the issuance of new securities. The SEC’s Office of
Compliance Inspections and Examinations (OCIE) conducted inspections of broker-dealers,
among others, to understand industry practices, encourage compliance, evaluate risk
management, and detect violations of the securities laws. In addition, under the voluntary
Consolidated Supervised Entities program, the SEC’s Division of Trading and Markets
monitored the investment activities of the largest broker-dealers, including Bear Stearns,
Goldman Sachs, Lehman Brothers, Merrill Lynch, Morgan Stanley, Citigroup, and JPMorgan
Chase, evaluating their capital levels, use of leverage, and risk management. 80
Like bank regulators, if the SEC became concerned about a particular securities firm, it
could choose from a range of informal and formal enforcement actions. Informal actions could
include issuing a “deficiency letter” identifying problems and requiring the securities firm to take
corrective action by a certain date. Formal enforcement actions, undertaken by the SEC’s
Division of Enforcement, could include civil proceedings before an administrative law judge; a
civil complaint filed in federal district court; civil fines; an order to suspend or remove personnel
from a firm or bar them from the brokerage industry; or a referral for criminal prosecution.
Common securities violations included selling unregistered securities, misrepresenting
information about a security, unfair dealing, price manipulation, and insider trading. 81
Statutory and Regulatory Barriers. Federal and state financial regulators responsible
for oversight of banks, securities firms, and other financial institutions in the years leading to the
financial crisis operated under a number of statutory and regulatory constraints.
One key constraint was the sweeping statutory prohibition on the federal regulation of
any type of swap, including credit default swaps. This prohibition took effect in 2000, with
enactment of the Commodity Futures Modernization Act (CFMA). 82 The key statutory section
explicitly prohibited federal regulators from requiring the registration of swaps as securities;
issuing or enforcing any regulations or orders related to swaps; or imposing any recordkeeping
77

See SEC website, “About the SEC: What We Do,” www.sec.gov.
Id.
79
Some firms active in the U.S. securities and mortgage markets, such as hedge funds, operated without meaningful
federal oversight by taking advantage of exemptions in the Investment Company Act of 1940.
80
See 9/2008 “SEC’s Oversight of Bear Stearns and Related Entities: The Consolidated Entity Program,” report
prepared by Office of the SEC Inspector General, Report No. 446-A.Report No. 446-A, (9/2008).
81
See SEC website, “About the SEC: What We Do,” www.sec.gov.
82
CFMA was included as a title of H.R. 4577, the Consolidated Appropriations Act of 2001, P.L.106-554.
78

40
requirements for swaps. 83 In addition, the law explicitly prohibited regulation of any “‘interest
rate swap,’ including a rate floor, rate cap, rate collar, cross-currency rate swap, basis swap,
currency swap, equity index swap, equity swap, debt index swap, debt swap, credit spread, credit
default swap, credit swap, weather swap, or commodity swap.” 84 These prohibitions meant that
federal regulators could not even ask U.S. financial institutions to report on their swaps trades or
holdings, much less regulate swap dealers or examine how swaps were affecting the mortgage
market or other U.S. financial markets.
As a result, the multi-trillion-dollar U.S. swaps markets operated with virtually no
disclosure requirements, no restrictions, and no oversight by any federal agency, including the
market for credit default swaps which played a prominent role in the financial crisis. On
September 23, 2008, in a hearing before the Senate Committee on Banking, Housing, and Urban
Affairs, then SEC Chairman Christopher Cox testified that, as a result of the statutory
prohibition, the credit default swap market “is completely lacking in transparency,” “is regulated
by no one,” and “is ripe for fraud and manipulation.” 85 In a September 26, 2008 press release, he
discussed regulatory gaps impeding his agency and again raised the issue of swaps:
“Unfortunately, as I reported to Congress this week, a massive hole remains: the approximately
$60 trillion credit default swap market, which is regulated by no agency of government. Neither
the SEC nor any regulator has authority even to require minimum disclosure.” 86 In 2010, the
Dodd-Frank Act removed the CFMA prohibition on regulating swaps. 87
A second significant obstacle for financial regulators was the patchwork of federal and
state laws and regulations applicable to high risk mortgages and mortgage brokers. Federal bank
regulators took until October 2006, to provide guidance to federal banks on acceptable lending
practices related to high risk home loans. 88 Even then, the regulators issued voluntary guidance
whose standards were not enforceable in court and failed to address such key issues as the
acceptability of stated income loans. 89 In addition, while Congress had authorized the Federal
Reserve, in 1994, to issue regulations to prohibit deceptive or abusive mortgage practices –
regulations that could have applied across the board to all types of lenders and mortgage brokers
– the Federal Reserve failed to issue any until July 2008, after the financial crisis had already
hit. 90
83

CFMA, § 302, creating a new section 2A of the Securities Act of 1933.
CFMA, § 301, creating a new section 206A of the Gramm-Leach-Bliley Act.
85
Statement of SEC Chairman Christopher Cox, “Turmoil in U.S. Credit Markets: Recent Actions Regarding
Government Sponsored Entities, Investment Banks and Other Financial Institutions,” before the U.S. Senate
Committee on Banking, Housing and Urban Affairs, S.Hrg. 110-1012 (9/23/2008).
86
9/26/2008 SEC press release, “Chairman Cox Announces End of Consolidated Supervised Entities Program,”
http://www.sec.gov/news/press/2008/2008-230.htm.
87
Title VII of the Dodd-Frank Act.
88
10/4/2006 “Interagency Guidance on Nontraditional Mortgage Product Risks,” (NTM Guidance), 71 Fed. Reg.
192 at 58609.
89
For more information, see Chapter IV.
90
Congress authorized the Federal Reserve to issue the regulations in Section 151 of the Home Ownership and
Equity Protection Act of 1994 (HOEPA), P.L. 103-325. The Federal Reserve did not issue any regulations under
HOEPA, however, until July 2008, when it amended Regulation Z. The new rules primarily strengthened consumer
protections for “higher priced loans,” which included many types of subprime loans. See “New Regulation Z Rules
Enhance Protections for Mortgage Borrowers,” Consumer Compliance Outlook (Fourth Quarter 2008) (Among
84

41
A third problem, exclusive to state regulators, was a 2005 regulation issued by the OCC
to prohibit states from enforcing state consumer protection laws against national banks. 91 After
the New York State Attorney General issued subpoenas to several national banks to enforce New
York’s fair lending laws, a legal battle ensued. In 2009, the Supreme Court invalidated the OCC
regulation, and held that states were allowed to enforce state consumer protection laws against
national banks. 92 During the intervening four years, however, state regulators had been
effectively unable to enforce state laws prohibiting abusive mortgage practices against federallychartered banks and thrifts.
Systemic Risk. While bank and securities regulators focused on the safety and
soundness of individual financial institutions, no regulator was charged with identifying,
preventing, or managing risks that threatened the safety and soundness of the overall U.S.
financial system. In the area of high risk mortgage lending, for example, bank regulators
allowed banks to issue high risk mortgages as long as it was profitable and the banks quickly
sold the high risk loans to get them off their books. Securities regulators allowed investment
banks to underwrite, buy, and sell mortgage backed securities relying on high risk mortgages, as
long as the securities received high ratings from the credit rating agencies and so were deemed
“safe” investments. No regulatory agency focused on what would happen when poor quality
mortgages were allowed to saturate U.S. financial markets and contaminate RMBS and CDO
securities with high risk loans. In addition, none of the regulators focused on the impact
derivatives like credit default swaps might have in exacerbating risk exposures, since they were
barred by federal law from regulating or even gathering data about these financial instruments.

F. Government Sponsored Enterprises
Between 1990 and 2004, homeownership rates in the United States increased rapidly
from 64% to 69%, the highest level in 50 years. 93 While many highly regarded economists and
officials argued at the time that this housing boom was the result of healthy economic activity, in
retrospect, some federal housing policies encouraged people to purchase homes they were
ultimately unable to afford, which helped to inflate the housing bubble.
Fannie Mae and Freddie Mac. Two government sponsored entities (GSE), the Federal
National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation
(Freddie Mac), were chartered by Congress to encourage homeownership primarily by providing
a secondary market for home mortgages. They created that secondary market by purchasing
loans from lenders, securitizing them, providing a guarantee that they would make up the cost of
other requirements, the rules prohibited lenders “from making loans based on collateral without regard to [the
borrower’s] repayment ability,” required lenders to “verify income and obligations,” and imposed “more stringent
restrictions on prepayment penalties.” The rules also required lenders to “establish escrow accounts for taxes and
mortgage related insurance for first-lien loans.” In addition, the rules “prohibit[ed] coercion of appraisers, define[d]
inappropriate practices for loan servicers, and require[d] early truth in lending disclosures for most mortgages.”).
91
12 CFR § 7.4000.
92
Cuomo v. Clearing House Association, Case No. 08-453, 129 S.Ct. 2710 (2009).
93
U.S. Census Bureau, “Table 14. Homeownership Rates by Area: 1960 to 2009,”
http://www.census.gov/hhes/www/housing/hvs/annual09/ann09t14.xls.

42
any securitized mortgage that defaulted, and selling the resulting mortgage backed securities to
investors. Many believed that the securities had the implicit backing of the federal government
and viewed them as very safe investments, leading investors around the world to purchase them.
The existence of this secondary market encouraged lenders to originate more loans, since they
could easily sell them to the GSEs and use the profits to increase their lending.
Over time, however, Fannie Mae and Freddie Mac began to purchase larger quantities of
higher risk loans, providing a secondary market for those loans and encouraging their
proliferation. Between 2005 and 2007, Fannie Mae alone purchased billions of dollars in high
risk home loans, including Option ARM, Alt A, and loans with subprime characteristics. For
example, data from Fannie Mae shows that, in mid 2008, 62% of the Option ARM loans on its
books had been purchased between 2005 and 2007. 94 Likewise, 84% of its interest-only loans
were purchased in that time frame, as were 57% of those with FICO scores less than 620; 62% of
its loans with loan-to-value ratios greater than 90; and 73% of its Alt A loans. 95 While these
loans constituted only a small percentage of Fannie Mae’s purchases at the time, they came to
account for some its most significant losses. By the middle of 2009, Fannie Mae reported an
unpaid principal balance of $878 billion for its loans with subprime characteristics, nearly a third
of its total portfolio of $2.7 trillion. 96
According to economist Arnold Kling, Fannie Mae and Freddie Mac purchased these
loans after “lowering their own credit standards in order to maintain a presence in the market and
to meet their affordable housing goals.” 97
Throughout their history, Fannie Mae and Freddie Mac were able to bundle the
mortgages they purchased into securities that were popular with investors, because many
believed the securities carried the implicit support of the federal government. The Congressional
Budget Office found the following:
“Because of their [Fannie Mae and Freddie Mac] size and interconnectedness with other
financial institutions, they posed substantial systemic risk—the risk that their failure
could impose very high costs on the financial system and the economy. The GSEs’
market power also allowed them to use their profits partly to benefit their other stakeholders rather than exclusively to benefit mortgage borrowers. The implicit guarantee
created an incentive for the GSEs to take excessive risks: Stakeholders would benefit
when gambles paid off, but taxpayers would absorb the losses when they did not. …
One way that Fannie Mae and Freddie Mac increased risk was by expanding the volume
of mortgages and MBSs held in their portfolios, which exposed them to the risk of losses
94

Fannie Mae, 2008 Q2 10-Q Investor Summary, August 8, 2008,
http://www.fanniemae.com/media/pdf/newsreleases/2008_Q2_10Q_Investor_Summary.pdf.
95
Id.
96
Fannie Mae, 2009 Second Quarter Credit Supplement, August 6, 2009,
http://www.fanniemae.com/ir/pdf/sec/2009/q2credit_summary.pdf.
97
“Not What They Had In Mind: A History of Policies that Produced the Financial Crisis of 2008,” September
2009, Mercatus Center, http://mercatus.org/sites/default/files/publication/NotWhatTheyHadInMind(1).pdf.

43
from changes in interest or prepayment rates. Over the past decade, the two GSEs also
increased their exposure to default losses by investing in lower-quality mortgages, such
as subprime and Alt-A loans.” 98
The risks embedded in their mortgage portfolios finally overwhelmed the GSEs in
September 2008, and both Fannie Mae and Freddie Mac were taken into conservatorship by the
federal government. Since that time, the Treasury Department has spent nearly $150 billion to
support the two GSEs, a total which projections show could rise to as high as $363 billion. 99
Ginnie Mae. Additional housing policies that allowed borrowers with less than adequate
credit to obtain traditional mortgages included programs at the Federal Housing Administration
(FHA) and the Department of Veterans Affairs (VA). Both agencies provided loan guarantees to
lenders that originated loans for borrowers that qualified under the agencies’ rules. Many of the
loans guaranteed by the FHA and VA, some of which required down payments as low as 3%,
were bundled and sold as mortgage backed securities guaranteed by the Government National
Mortgage Association (Ginnie Mae), a government corporation. Ginnie Mae guaranteed
investors the timely payment of principal and interest on mortgage backed securities backed by
federally insured or guaranteed loans.
In the years leading up to the financial crisis, FHA guaranteed millions of home loans
worth hundreds of billions of dollars. 100 According to FHA data, as of 2011, nearly 20% of all
FHA loans originated in 2008 were seriously delinquent, meaning borrowers had missed three or
more payments, while loans originated in 2007 had a serious delinquency rate of over 22%. The
2007 and 2008 loans, which currently make up about 15% of FHA’s active loan portfolio,
remain the worst performing in that portfolio. In 2009 and 2010, FHA tightened its underwriting
guidelines, and the loans it guaranteed performed substantially better. By early 2011, the serious
delinquency rate for all FHA borrowers was about 8.8%, down from over 9.4% the prior year.

G. Administrative and Legislative Actions
In response to the financial crisis, Congress and the Executive Branch have taken a
number of actions. Three that have brought significant changes are the Troubled Asset Relief
Program, Federal Reserve assistance programs, and the Dodd-Frank Wall Street and Consumer
Protection Act.
Troubled Asset Relief Program (TARP). On October 3, 2008, Congress passed and
President Bush signed into law the Emergency Economic Stabilization Act of 2008, P.L. 110343. This law, which passed both Houses with bipartisan majorities, established the Troubled
98

Congressional Budget Office, “Fannie Mae, Freddie Mac, and the Federal Role in the Secondary Mortgage
Market,” December 2010, at x, http://www.cbo.gov/ftpdocs/120xx/doc12032/12-23-FannieFreddie.pdf.
99
Federal Housing Finance Agency, News Release, “FHFA Releases Projections Showing Range of Potential
Draws for Fannie Mae and Freddie Mac,” October 21, 2010, http://fhfa.gov/webfiles/19409/Projections_102110.pdf.
100
The statistics cited in this paragraph are taken from the U.S. Department of Housing and Urban Development,
“FHA Single-Family Mutual Mortgage Insurance Fund Programs, Quarterly Report to Congress, FY 2011 Q1,”
March 17, 2011, at 4 and 19, http://www.hud.gov/offices/hsg/rmra/oe/rpts/rtc/fhartc_q1_2011.pdf.

44
Asset Relief Program (TARP) and authorized the expenditure of up to $700 billion to stop
financial institutions from collapsing and further damaging the U.S. economy. Administered by
the Department of the Treasury, with support from the Federal Reserve, TARP funds have been
used to inject capital into or purchase or insure assets at hundreds of large and small banks.
The largest recipients of TARP funds were AIG, Ally Financial (formerly GMAC
Financial Services), Bank of America, Citigroup, Goldman Sachs, JPMorgan Chase, Morgan
Stanley, PNC Financial Services, U.S. Bancorp, and Wells Fargo, as well as Chrysler, and
General Motors. Most have repaid all or a substantial portion of the TARP funds they received.
Although initially expected to cost U.S. taxpayers more than $350 billion, the
Congressional Budget Office estimated in November 2010, that the final cost of the TARP
program will be approximately $25 billion. 101
Federal Reserve Emergency Support Programs. In addition, as the financial crisis
began to unfold, the Federal Reserve aggressively expanded its balance sheet from about $900
billion at the beginning of 2008, to more than $2.4 trillion in December 2010, to provide support
to the U.S. financial system and economy. Using more than a dozen programs, through more
than 21,000 individual transactions, the Federal Reserve provided trillions of dollars in assistance
to U.S. and foreign financial institutions in an effort to promote liquidity and prevent a financial
collapse. 102 In some instances, the Federal Reserve created new programs, such as its Agency
Mortgage Backed Securities Purchase Program which purchased more than $1.25 trillion in
mortgage backed securities backed by Fannie Mae, Freddie Mac, and Ginnie Mae. 103 In other
instances, it modified and significantly expanded existing programs, such as by lowering the
quality of collateral it accepted and increasing lending by the discount window.
Dodd-Frank Act. On July 21, 2010, Congress passed and President Obama signed into
law the Dodd-Frank Wall Street Reform and Consumer Protection Act, P.L. 111-203. This law,
which passed both Houses with bipartisan majorities, expanded the authority of regulatory
agencies to try to prevent future financial crises. Among other provisions, the law:
– established a Financial Stability Oversight Council, made up of federal financial
regulators and others, to identify and respond to emerging financial risks;
– established a Consumer Financial Protection Bureau to strengthen protection of
American consumers from abusive financial products and practices;
– restricted proprietary trading and investments in hedge funds by banks and other large
financial institutions;

101

11/2010 “Report on the Troubled Asset Relief Program,” prepared by the Congressional Budget Office,
http://www.cbo.gov/ftpdocs/119xx/doc11980/11-29-TARP.pdf.
102
“Usage of Federal Reserve Credit and Liquidity Facilities,” Federal Reserve Board, available at
http://www.federalreserve.gov/newsevents/reform_transaction.htm.
103
“Agency Mortgage-Backed Securities Purchase Program,” Federal Reserve Board, available at
http://www.federalreserve.gov/newsevents/reform_mbs.htm.

45
– prohibited sponsors of asset backed securities from engaging in transactions that would
involve or result in a material conflict of interest with investors in those securities;
– established procedures to require nonbank firms whose failure would threaten U.S.
financial stability to divest some holdings or undergo an orderly liquidation;
– strengthened regulation of credit rating agencies;
– strengthened mortgage regulation, including by clamping down on high cost mortgages,
requiring securitizers to retain limited liability for securities reliant on high risk
mortgages, banning stated income loans, and restricting negative amortization loans;
– required better federal regulation of mortgage brokers;
– directed regulators to require greater capital and liquidity reserves;
– required regulation of derivatives and derivative dealers;
– required registration of certain hedge funds and private equity funds;
– authorized regulators to impose standards of conduct that are the same as those
applicable to investment advisers on broker-dealers who provide personalized
investment advice to retail customers; and
– abolished the Office of Thrift Supervision.

H. Financial Crisis Timeline
This Report reviews events from the period 2004 to 2008, in an effort to identify and
explain four significant causes of the financial crisis. A variety of events could be identified as
the start of the crisis. Candidates include the record number of home loan defaults that began in
December 2006; the FDIC’s March 2007 cease and desist order against Fremont Investment &
Loan which exposed the existence of unsafe and unsound subprime lending practices; or the
collapse of the Bear Stearns hedge funds in June 2007. Still another candidate is the two-week
period in September 2008, when half a dozen major U.S. financial institutions failed, were
forcibly sold, or were bailed out by U.S. taxpayers seeking to prevent a collapse of the U.S.
economy.
This Report concludes, however, that the most immediate trigger to the financial crisis
was the July 2007 decision by Moody’s and S&P to downgrade hundreds of RMBS and CDO
securities. The firms took this action because, in the words of one S&P senior analyst, the
investment grade ratings could not “hold.” By acknowledging that RMBS and CDO securities
containing high risk, poor quality mortgages were not safe investments and were going to incur
losses, the credit rating agencies admitted the emperor had no clothes. Investors stopped buying,
the value of the RMBS and CDO securities fell, and financial institutions around the world were

46
suddenly left with unmarketable securities whose value was plummeting. The financial crisis
was on.
Because of the complex nature of the financial crisis, this chapter concludes with a brief
timeline of some key events from 2006 through 2008. The succeeding chapters provide more
detailed examinations of the roles of high risk lending, federal regulators, credit ratings agencies,
and investment banks in causing the financial crisis.

47

Financial Crisis Timeline 104
December 2006:
Ownit Mortgage Solutions bankruptcy
February 27, 2007:
Freddie Mac announces it will no longer buy the
most risky subprime mortgages

May 29, 2008:
Bear Stearns shareholders approve sale

March 7, 2007:
FDIC issues cease and desist order against Fremont
for unsafe and unsound banking

July 11, 2008:
IndyMac Bank fails and is seized by FDIC

April 2, 2007:
New Century bankruptcy

July 15, 2008:
SEC restricts naked short selling of some financial
stocks

June 17, 2007:
Two Bear Stearns subprime hedge funds collapse

September 7, 2008:
U.S. takes control of Fannie Mae and Freddie Mac

July 10 and 12, 2007:
Credit rating agencies issue first mass ratings
downgrades of hundreds of RMBS and CDO
securities

September 15, 2008:
Lehman Brothers bankruptcy

August 6, 2007:
American Home Mortgage bankruptcy
August 17, 2007:
Federal Reserve: “[M]arket conditions have
deteriorated … downside risks to growth have
increased appreciably.”
August 31, 2007:
Ameriquest Mortgage ceases operations
December 12, 2007:
Federal Reserve establishes Term Auction Facility
to provide bank funding
January 2008:
ABX Index stops issuing new subprime indices
January 11, 2008:
Countrywide announces sale to Bank of America
January 30, 2008:
S&P downgrades or places on credit watch over
8,000 RMBS and CDO securities

104

March 24, 2008:
Federal Reserve Bank of New York forms Maiden
Lane I to help JPMorgan Chase acquire Bear Stearns

September 15, 2008
Merrill Lynch announces its sale to Bank of America
September 16, 2008:
Federal Reserve offers $85 billion credit line to AIG;
Reserve Primary Money Fund NAV falls below $1
September 21, 2008:
Goldman Sachs and Morgan Stanley convert to bank
holding companies
September 25, 2008:
WaMu fails, is seized by FDIC, and is sold to
JPMorgan Chase
October 3, 2008:
Congress and President Bush establish TARP
October 12, 2008:
Wachovia is sold to Wells Fargo
October 28, 2008:
U.S. uses TARP to buy $125 billion in preferred
stock at nine banks
November 25, 2008:
Federal Reserve buys Fannie and Freddie assets

Many of these events are based upon a timeline prepared by the Federal Reserve Bank of St. Louis, “The Financial
Crisis: A Timeline of Events and Policy Actions,” http://timeline.stlouisfed.org/index.cfm?p=timeline.

48

III.

HIGH RISK LENDING:
CASE STUDY OF WASHINGTON MUTUAL BANK

Washington Mutual Bank, known also as WaMu, rose out the ashes of the great Seattle
fire to make its first home loan in 1890. By 2004, WaMu had become one of the nation’s largest
financial institutions and a leading mortgage lender. Its demise just four years later provides a
case history that traces not only the rise of high risk lending in the mortgage field, but also how
those high risk mortgages led to the failure of a leading bank and contributed to the financial
crisis of 2008.
For many years, WaMu was a mid-sized thrift, specializing in home mortgages. In the
1990s, WaMu initiated a period of growth and acquisition, expanding until it became the nation’s
largest thrift and sixth largest bank, with $300 billion in assets, $188 billion in deposits, 2,300
branches in 15 states, and over 43,000 employees. In 2003, its longtime CEO, Kerry Killinger,
said he wanted to do for the lending industry what Wal-Mart and others did for their industries,
by catering to middle and lower income Americans and helping the less well off buy homes. 105
Soon after, WaMu embarked on a strategy of high risk lending. By 2006, its high risk loans
began incurring record rates of delinquency and default, and its securitizations saw ratings
downgrades and losses. In 2007, the bank itself began incurring losses. Its shareholders lost
confidence, and depositors began withdrawing funds, eventually causing a liquidity crisis. On
September 25, 2008, 119 years to the day of its founding, WaMu was seized by its regulator, the
Office of Thrift Supervision (OTS), and sold to JPMorgan Chase for $1.9 billion. Had the sale
not gone through, WaMu’s failure might have exhausted the $45 billion Deposit Insurance Fund.
Washington Mutual is the largest bank failure in U.S. history.
This case study examines how one bank’s strategy for growth and profit led to the
origination and securitization of hundreds of billions of dollars in poor quality mortgages that
undermined the U.S. financial system. WaMu had held itself out as a prudent lender, but in
reality, the bank turned increasingly to higher risk loans. Its fixed rate mortgage originations fell
from 64% of its loan originations in 2003, to 25% in 2006, while subprime, Option ARM, and
home equity originations jumped from 19% of the originations to 55%. Using primarily loans
from its subprime lender, Long Beach Mortgage Corporation, WaMu’s subprime securitizations
grew sixfold, increasing from about $4.5 billion in 2003, to $29 billion in securitizations in 2006.
From 2000 to 2007, WaMu and Long Beach together securitized at least $77 billion in subprime
loans. WaMu also increased its origination of Option ARMs, its flagship product, which from
2003 to 2007, represented as much as half of all of WaMu’s loan originations. In 2006 alone,
Washington Mutual originated more than $42.6 billion in Option ARM loans and sold or
securitized at least $115 billion, including sales to the Federal National Mortgage Association
(Fannie Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac). In addition, WaMu
dramatically increased its origination and securitization of home equity loan products. By 2007,
105

“Saying Yes, WaMu Built Empire on Shaky Loans,” New York Times (12/27/2008)
http://www.nytimes.com/2008/12/28/business/28wamu.html?_r=1 (quoting Mr. Killinger: “We hope to do to this
industry what Wal-Mart did to theirs, Starbucks did to theirs, Costco did to theirs and Lowe’s-Home Depot did to
their industry. And I think if we’ve done our job, five years from now you’re not going to call us a bank.”).

49
home equity loans made up $63.5 billion or 27% of its home loan portfolio, a 130% increase
from 2003.
At the same time that WaMu was implementing its High Risk Lending Strategy, WaMu
and Long Beach engaged in a host of shoddy lending practices that contributed to a mortgage
time bomb. Those practices included qualifying high risk borrowers for larger loans than they
could afford; steering borrowers to higher risk loans; accepting loan applications without
verifying the borrower’s income; using loans with teaser rates that could lead to payment shock
when higher interest rates took effect later on; promoting negatively amortizing loans in which
many borrowers increased rather than paid down their debt; and authorizing loans with multiple
layers of risk. In addition, WaMu and Long Beach failed to enforce compliance with their
lending standards; allowed excessive loan error and exception rates; exercised weak oversight
over the third party mortgage brokers who supplied half or more of their loans; and tolerated the
issuance of loans with fraudulent or erroneous borrower information. They also designed
compensation incentives that rewarded loan personnel for issuing a large volume of higher risk
loans, valuing speed and volume over loan quality.
WaMu’s combination of high risk loans, shoddy lending practices, and weak oversight
produced hundreds of billions of dollars of poor quality loans that incurred early payment
defaults, high rates of delinquency, and fraud. Long Beach mortgages experienced some of the
highest rates of foreclosure in the industry and their securitizations were among the worst
performing. Senior WaMu executives described Long Beach as “terrible” and “a mess,” with
default rates that were “ugly.” WaMu’s high risk lending operation was also problem-plagued.
WaMu management knew of evidence of deficient lending practices, as seen in internal emails,
audit reports, and reviews. Internal reviews of WaMu’s loan centers, for example, described
“extensive fraud” from employees “willfully” circumventing bank policy. An internal review
found controls to stop fraudulent loans from being sold to investors were “ineffective.” On at
least one occasion, senior managers knowingly sold delinquency-prone loans to investors. Aside
from Long Beach, WaMu’s President Steve Rotella described WaMu’s prime home loan
business as the “worst managed business” he had seen in his career.
Documents obtained by the Subcommittee reveal that WaMu launched its High Risk
Lending Strategy primarily because higher risk loans and mortgage backed securities could be
sold for higher prices on Wall Street. They garnered higher prices, because higher risk meant
they paid a higher coupon rate than other comparably rated securities, and investors paid a higher
price to buy them. Selling or securitizing the loans also removed them from WaMu’s books and
appeared to insulate the bank from risk.
From 2004 to 2008, WaMu originated a huge number of poor quality mortgages, most of
which were then resold to investment banks and other investors hungry for mortgage backed
securities. For a period of time, demand for these securities was so great that WaMu formed its
own securitization arm on Wall Street. Over a period of five years, WaMu and Long Beach
churned out a steady stream of high risk, poor quality loans and mortgage backed securities that
later defaulted at record rates. Once a prudent regional mortgage lender, Washington Mutual

50
tried – and ultimately failed – to use the profits from poor quality loans as a stepping stone to
becoming a major Wall Street player.
Washington Mutual was far from the only lender that sold poor quality mortgages and
mortgage backed securities that undermined U.S. financial markets. The Subcommittee
investigation indicates that Washington Mutual was emblematic of a host of financial institutions
that knowingly originated, sold, and securitized billions of dollars in high risk, poor quality home
loans. These lenders were not the victims of the financial crisis; the high risk loans they issued
became the fuel that ignited the financial crisis.

A. Subcommittee Investigation and Findings of Fact
As part of its investigation into high risk lending and the Washington Mutual case study,
the Subcommittee collected millions of pages of documents from Washington Mutual, JPMorgan
Chase, OTS, the FDIC, eAppraiseIT, Lenders Service Inc., Moody’s, Standard & Poor’s, various
investment banks, Fannie Mae, Freddie Mac, and others. The documents included email,
correspondence, internal memoranda, reports, legal pleadings, financial analysis, prospectuses,
and more. The Subcommittee also conducted more than 30 interviews with former WaMu
employees and regulatory officials. The Subcommittee also spoke with personnel from the
Offices of the Inspector General at the Department of Treasury and the FDIC, who were engaged
in a joint review of WaMu’s regulatory oversight and the events leading to its demise. In
addition, the Subcommittee spoke with nearly a dozen experts on a variety of banking,
accounting, regulatory, and legal issues. On April 13, 2010, the Subcommittee held a hearing
which took testimony from former WaMu officials and released 86 exhibits. 106
In connection with the hearing, the Subcommittee released a joint memorandum from
Chairman Carl Levin and Ranking Member Tom Coburn summarizing the investigation to date
into Washington Mutual and the role of high risk home loans in the financial crisis. The
memorandum contained the following findings of fact, which this Report reaffirms.
1. High Risk Lending Strategy. Washington Mutual (WaMu) executives embarked
upon a High Risk Lending Strategy and increased sales of high risk home loans to
Wall Street, because they projected that high risk home loans, which generally
charged higher rates of interest, would be more profitable for the bank than low risk
home loans.
2. Shoddy Lending Practices. WaMu and its affiliate, Long Beach Mortgage
Company (Long Beach), used shoddy lending practices riddled with credit,
compliance, and operational deficiencies to make tens of thousands of high risk home
loans that too often contained excessive risk, fraudulent information, or errors.

106

“Wall Street and the Financial Crisis: The Role of High Risk Loans,” before the U.S. Senate Permanent
Subcommittee on Investigations, S.Hrg. 111-67 (April 13, 2010) (hereinafter “April 13, 2010 Subcommittee
Hearing”).

51
3. Steering Borrowers to High Risk Loans. WaMu and Long Beach too often steered
borrowers into home loans they could not afford, allowing and encouraging them to
make low initial payments that would be followed by much higher payments, and
presumed that rising home prices would enable those borrowers to refinance their
loans or sell their homes before the payments shot up.
4. Polluting the Financial System. WaMu and Long Beach securitized over $77
billion in subprime home loans and billions more in other high risk home loans, used
Wall Street firms to sell the securities to investors worldwide, and polluted the
financial system with mortgage backed securities which later incurred high rates of
delinquency and loss.
5. Securitizing Delinquency-Prone and Fraudulent Loans. At times, WaMu selected
and securitized loans that it had identified as likely to go delinquent, without
disclosing its analysis to investors who bought the securities, and also securitized
loans tainted by fraudulent information, without notifying purchasers of the fraud that
was discovered.
6. Destructive Compensation. WaMu’s compensation system rewarded loan officers
and loan processors for originating large volumes of high risk loans, paid extra to
loan officers who overcharged borrowers or added stiff prepayment penalties, and
gave executives millions of dollars even when their High Risk Lending Strategy
placed the bank in financial jeopardy.

B. Background
Washington Mutual Bank was a federally chartered thrift whose primary federal regulator
was the Office of Thrift Supervision (OTS). As an insured depository institution, it was also
overseen by the Federal Deposit Insurance Corporation (FDIC). Washington Mutual was a full
service consumer and business bank. This Report focuses only on WaMu’s home lending and
securitization business. As part of that business, WaMu originated home loans, acquired home
loans for investment and securitization, sold pools of loans, and also securitized pools of home
loans that it had originated or acquired. It was also a leading servicer of residential mortgages.

(1) Major Business Lines and Key Personnel
From 2004 to 2008, WaMu had four major business lines. 107 The Home Loans Group
handled WaMu’s home mortgage originations, securitizations, and servicing operations. The
Commercial Group handled apartment buildings and other commercial properties. The Retail
Banking Group provided retail banking services to consumers and businesses across the country.
The Card Services Group handled a credit card business purchased from Providian Financial
Corporation.
107

9/25/2008 “OTS Fact Sheet on Washington Mutual Bank,” Dochow_Darrel-00076154_001.

52
For most of the five-year period reviewed by the Subcommittee, WaMu was led by its
longtime Chairman of the Board and Chief Executive Officer (CEO) Kerry Killinger who joined
the bank in 1982, became bank president in 1988, and was appointed CEO in 1990. Mr.
Killinger was the moving force behind WaMu’s acquisitions and growth strategy during the
1990s, and made the fateful decision to embark upon its High Risk Lending Strategy in 2005.
Mr. Killinger stepped down as Chairman of the Board in June 2008, after shareholders opposed
having the same person occupy the bank’s two top positions. He was dismissed from the bank
on September 8, 2008, the same day WaMu was required by its regulator, OTS, to sign a public
Memorandum of Understanding to address its lending and securitization deficiencies. Two
weeks later the bank failed.
Other key members of the bank’s senior management included President Steve Rotella
who joined the bank in January 2005; Chief Financial Officer Tom Casey; President of the Home
Loans Division David Schneider who joined the bank in July 2005; and General Counsel Faye
Chapman. David Beck served as Executive Vice President in charge of the bank’s Capital
Markets Division, oversaw its securitization efforts, and reported to the head of Home Loans.
Anthony Meola headed up the Home Loans Sales effort. Jim Vanasek was WaMu’s Chief Credit
Officer from 1999 until 2004, and was then appointed its Chief Risk Officer, a new position,
from 2004-2005. After Mr. Vanasek’s retirement, Ronald Cathcart took his place as Chief Risk
Officer, and headed the bank’s newly organized Enterprise Risk Management Division, serving
in that post from 2005 to 2007.

(2) Loan Origination Channels
WaMu was one of the largest mortgage originators in the United States. 108 It originated
and acquired residential mortgages through several methods, which it referred to as loan
origination channels. WaMu referred to them as its retail, wholesale, subprime, correspondent,
and conduit channels.
Retail Channel. In WaMu’s parlance, “retail channel” loans were loans originated by
WaMu employees, typically loan officers or sales associates operating out of WaMu branded
loan centers. The prospective borrower typically communicated directly with the WaMu loan
officer, who was often called a “loan consultant.” WaMu considered all retail channel loans to
be “prime” loans, regardless of the characteristics of the loan or the creditworthiness of the
borrower, and sometimes referred to the retail channel as the “prime” channel. The retail
channel originated significant numbers of Option ARM loans, which WaMu treated as prime
loans, despite their inherent risks. According to the Inspectors General of the U.S. Treasury
Department and the FDIC, who prepared a report on WaMu’s failure (hereinafter “IG Report”),
“Option ARMs represented as much as half of all loan originations from 2003 to 2007 and
approximately $59 billion, or 47 percent, of the home loans on WaMu’s balance sheet at the end
108

See, e.g., “Mortgage Lender Rankings by Residential Originations,” charts prepared by MortgageDaily.com
(indicating WaMu was one of the top three issuers of U.S. residential mortgages from 2003 to 2005); “Washington
Mutual to Acquire PNC’s Residential Mortgage Business,” Business Wire (10/2/2000),
http://findarticles.com/p/articles/mi_m0EIN/is_2000_Oct_2/ai_65635032.

53
of 2007.” 109 The retail channel was also used to originate substantial numbers of home equity
loans and home equity lines of credit.
Wholesale Channel. According to WaMu, its “wholesale channel” loans were loans that
the bank acquired from third party mortgage brokers. These brokers, who were not WaMu
employees, located borrowers interested in purchasing a home or refinancing an existing
mortgage, and explained available loans that could be underwritten by WaMu. The borrower’s
primary, and sometimes sole, contact was with the mortgage broker. The mortgage broker
would then provide the borrower’s information to a WaMu loan officer who would determine
whether the bank would finance the loan. If the bank decided to finance the loan, the broker
would receive a commission for its efforts. Third party mortgage brokers typically received little
guidance or training from WaMu, aside from receiving daily “rate sheets” explaining the terms
of the loans that WaMu was willing to accept and the available commissions. WaMu treated
wholesale loans issued under the WaMu brand as prime loans.
Subprime Channel. WaMu also originated wholesale loans through its subprime
affiliate and later subsidiary, Long Beach Mortgage Company (Long Beach). Long Beach was a
purely wholesale lender, and employed no loan officers that worked directly with borrowers.
Instead, its account executives developed relationships with third party mortgage brokers who
brought prospective loans to the company, and if Long Beach accepted those loans, received a
commission for their efforts. WaMu typically referred to Long Beach as its “subprime channel.”
Later, in 2007, when the bank decided to eliminate Long Beach as a separate entity, it rebranded
Long Beach as its “Wholesale Specialty Lending” channel.
At times, WaMu also acquired subprime loans through “correspondent” or “conduit”
channels, which it used to purchase closed loans – loans that had already been financed – from
other lenders for investment or securitization. For example, WaMu at times operated a
correspondent channel that it referred to as “Specialty Mortgage Finance” and used to purchase
subprime loans from other lenders, especially Ameriquest, for inclusion in its investment
portfolio. In addition, in 2005, its New York securitization arm, Washington Mutual Capital
Corporation, established a “subprime conduit” to purchase closed subprime loans in bulk from
other lenders for use in securitizations. At the end of 2006, WaMu reported that its investment
portfolio included $4 billion in subprime loans from Long Beach and about $16 billion in
subprime loans from other parties. 110
Other Channels. At times, WaMu also originated or acquired loans in other ways. Its
“Consumer Direct” channel, for example, originated loans over the phone or internet; borrowers
did not need to meet in person with a WaMu loan officer. In addition, in 2004, Washington
Mutual Capital Corporation (WCC) set up a conduit to purchase closed Alt A loans in bulk from

109

4/2010 “Evaluation of Federal Regulatory Oversight of Washington Mutual Bank,” report prepared by the
Offices of Inspector General at the Department of the Treasury and Federal Deposit Insurance Corporation, Hearing
Exhibit 4/16-82 (hereinafter “IG Report”).
110
See 3/1/2007 Washington Mutual Inc. 10-K filing with the SEC, at 56.

54
other lenders and use them in securitizations. WCC shut down both the Alt A and subprime
conduits in April 2008, after it became too difficult to find buyers for new securitizations. 111
The Treasury and the FDIC IG report examining the failure of WaMu found that, from
2003 to 2007, the bulk of its residential loans – from 48% to 70% – came from third party
lenders and brokers. 112 That report also determined that, in 2007, WaMu had 14 full-time
employees overseeing 34,000 third party brokers doing business with the bank nationwide, and
criticized the Bank’s oversight and staffing effort. 113

(3) Long Beach
WaMu had traditionally originated mortgages to well qualified prime borrowers. But in
1999, WaMu bought Long Beach Mortgage Company, 114 which was exclusively a subprime
lender to borrowers whose credit histories did not support their getting a traditional mortgage. 115
Long Beach was located in Anaheim, California, had a network of loan centers across the
country, and at its height had as many as 1,000 employees.
Long Beach made loans for the express purpose of securitizing them and profiting from
the gain on sale; it did not hold loans for its own investment. It had no loan officers of its own,
but relied entirely on third party mortgage brokers bringing proposed subprime loans to its
doors. In 2000, the year after it was purchased by WaMu, Long Beach made and securitized
approximately $2.5 billion in home loans. By 2006, its loan operations had increased more than
tenfold, and Long Beach securitized nearly $30 billion in subprime home loans and sold the
securities to investors. 116
Long Beach’s most common subprime loans were short term, hybrid adjustable rate
mortgages, known as “2/28,” “3/27,” or “5/25” loans. These 30-year mortgages typically had a
low fixed “teaser” rate, which then reset to a higher floating rate after two years for the 2/28,
three years for the 3/27, or five years for the 5/25. 117 Long Beach typically qualified borrowers
according to whether they could afford to pay the initial, low interest rate rather than the later,

111
See 6/11/2007 chart entitled, “Capital Markets Division Growth,” JPM_WM03409858, Hearing Exhibit 4/1347c.
112
See prepared statement of Treasury IG Eric Thorson, “Wall Street and the Financial Crisis: Role of the
Regulators,” before the U.S. Senate Permanent Subcommittee on Investigations, S.Hrg. 111-672 (April 16, 2010)
(hereinafter “April 16, 2010 Subcommittee Hearing”), at 5.
113
See 4/2010 IG Report, at 11, Hearing Exhibit 4/16-82.
114
Washington Mutual Inc. actually purchased Long Beach Financial Corporation, the parent of Long Beach
Mortgage Corporation, for about $350 million.
115
12/21/2005 OTS internal memorandum from OTS examiners to Darrel Dochow, OTSWMS06-007 0001009,
Hearing Exhibit 4/16-31 (“LBMC was acquired … as a vehicle for WMI to access the subprime loan market.
LBMC’s core business is the origination of subprime mortgage loans through a nationwide network of mortgage
brokers.”).
116
“Securitizations of Washington Mutual Subprime Home Loans,” chart prepared by the Subcommittee, Hearing
Exhibit 4/13-1c.
117
For more information about these types of loans, see Chapter II.

55
higher interest rate. 118 For “interest-only” loans, monthly loan payments were calculated to
cover only the interest due on the loan and not any principal. After the fixed interest rate period
expired, the monthly payment was typically recalculated to pay off the entire remaining loan
within the remaining loan period at the higher floating rate. Unless borrowers could refinance,
the suddenly increased monthly payments caused some borrowers to experience “payment
shock” and default on their loans.
From 1999 to 2006, Long Beach operated as a subsidiary of Washington Mutual Inc., the
parent of Washington Mutual Bank. Long Beach’s loans repeatedly experienced early payment
defaults, high delinquency rates, and losses, and its securitizations were among the worst
performing in the market. 119 In 2006, in a bid to strengthen Long Beach’s performance, WaMu
received permission from its regulator, OTS, to purchase the company from its parent and make
it a wholly owned subsidiary of the bank. WaMu installed new management, required the head
of Long Beach to report to its Home Loans Division President, and promised OTS that it would
improve Long Beach. When Long Beach’s loans continued to perform poorly, in June 2007,
WaMu shut down Long Beach as a separate entity, and took over its subprime lending
operations, rebranding Long Beach as its “Wholesale Specialty Lending” channel. WaMu
continued to issue and securitize subprime loans. After the subprime market essentially shut
down a few months later in September 2007, WaMu ended all of its subprime lending.
From 2000 to 2007, Long Beach and WaMu together securitized tens of billions of
dollars in subprime loans, creating mortgage backed securities that frequently received AAA or
other investment grade credit ratings. 120 Although AAA securities are supposed to be very safe
investments with low default rates of one to two percent, of the 75 Long Beach mortgage backed
security tranches rated AAA by Standard and Poor’s in 2006, all 75 have been downgraded to
junk status, defaulted, or been withdrawn. 121 In most of the 2006 Long Beach securitizations,
the underlying loans have delinquency rates of 50% or more. 122

(4) Securitization
Washington Mutual depended on the securitization process to generate profit, manage
risk, and obtain capital to originate new loans. Washington Mutual and Long Beach sold or
securitized most of the subprime home loans they acquired. Initially, Washington Mutual kept
most of its Option ARMs in its proprietary investment portfolio, but eventually began selling or
securitizing those loans as well. From 2000 to 2007, Washington Mutual and Long Beach
118

See April 13, 2010 Subcommittee Hearing at 50.
See 4/14/2005 email exchange between OTS examiners, “Fitch – LBMC Review,” Hearing Exhibit 4/13-8a
(discussing findings by Fitch, a credit rating agency, highlighting poor performance of Long Beach securities).
120
“Securitizations of Washington Mutual Subprime Home Loans,” chart prepared by the Subcommittee, Hearing
Exhibit 4/13-1c.
121
See Standard and Poor’s data at www.globalcreditportal.com.
122
See, e.g., wamusecurities.com (subscription website maintained by JPMorgan Chase with data on Long Beach
and WaMu mortgage backed securities showing, as of March 2011, delinquency rates for particular mortgage
backed securities, including LBMLT 2006-1 – 58.44%; LBMLT 2006-6 – 60.06%; and LBMLT 2005-11 –
54.32%).
119

56
securitized at least $77 billion in subprime home loans. Washington Mutual sold or securitized
at least $115 billion of Option ARM loans, as well as billions more of other types of high risk
loans, including hybrid adjustable rate mortgages, Alt A, and home equity loans.
When Washington Mutual began securitizing its loans, it was dependent upon investment
banks to help underwrite and sell its securitizations. In order to have greater control of the
securitization process and to keep securitization underwriting fees in house, rather than paying
them to investment banks, WaMu acquired a company able to handle securitizations and
renamed it Washington Mutual Capital Corporation (WCC), which became a wholly owned
subsidiary of the bank. 123 WCC was a registered broker-dealer and began to act as an
underwriter of WaMu and Long Beach securitizations. 124 WCC worked with two other bank
subsidiaries, Washington Mutual Mortgage Securities Corp. and Washington Mutual Asset
Acceptance Corp., that provided warehousing for WaMu loans before they were securitized.
WCC helped to assemble RMBS pools and sell the resulting RMBS securities to investors. At
first it worked with other investment banks; later it became the sole underwriter of some WaMu
securitizations.
WCC was initially based in Seattle with 30 to 40 employees. 125 In 2004, it moved its
headquarters to Manhattan. 126 At the height of WCC operations, right before the collapse of the
securitization market, WCC had over 200 employees and offices in Seattle, New York, Los
Angeles, and Chicago, with the majority of its personnel in New York. 127 WCC closed its doors
in December 2007, after the securitization markets collapsed.

(5) Overview of WaMu’s Rise and Fall
Washington Mutual Bank (WaMu) was a wholly owned subsidiary of its parent holding
company, Washington Mutual Inc. 128 From 1996 to 2002, WaMu acquired over a dozen other
financial institutions, including American Savings Bank, Great Western Bank, Fleet Mortgage
Corporation, Dime Bancorp, PNC Mortgage, and Long Beach, expanding to become the nation’s
largest thrift and sixth largest bank. WaMu also became one of the largest issuers of home loans
in the country. Washington Mutual kept a portion of those loans for its own investment
portfolio, and sold the rest either to Wall Street investors, usually after securitizing them, or to
Fannie Mae or Freddie Mac. From 2000 to 2008, Washington Mutual sold over $500 billion in
loans to Fannie Mae and Freddie Mac, representing more than a quarter of its loan production
during those years.

123

See 6/11/2007 chart entitled, “Capital Markets Division Growth,” JPM_WM03409858, Hearing Exhibit 4/13-47c.
Prepared statement of David Beck, April 13, 2010 Subcommittee Hearing at 2.
125
Subcommittee interview of David Beck (3/2/2010).
126
Id.
127
Id.
128
9/25/2008 “OTS Fact Sheet on Washington Mutual Bank,” Dochow_Darrel-00076154_001, at 002. Washington
Mutual Inc. also owned a second, much smaller thrift, Washington Mutual Bank, FSB. Id.
124

57
In 2006, WaMu took several major actions that reduced the size of its Home Loans
Group. It sold $140 billion in mortgage servicing rights to Wells Fargo; sold a $22 billion
portfolio of home loans and other securities; and reduced its workforce significantly. 129
In July 2007, after the Bear Stearns hedge funds collapsed and the credit rating agencies
downgraded the ratings of hundreds of mortgaged backed securities, including over 40 Long
Beach securities, the secondary market for subprime loans dried up. In September 2007, due to
the difficulty of finding investors willing to purchase subprime loans or mortgage backed
securities, Washington Mutual discontinued its subprime lending. It also became increasingly
difficult for Washington Mutual to sell other types of high risk loans and related mortgage
backed securities, including its Option ARMs and home equity products. Instead, WaMu
retained these loans in its portfolios. By the end of the year, as the value of its loans and
mortgage backed securities continued to drop, Washington Mutual began to incur significant
losses, reporting a $1 billion loss in the fourth quarter of 2007, and another $1 billion loss in the
first quarter of 2008.
In February 2008, based upon increasing deterioration in the bank’s asset quality,
earnings, and liquidity, OTS and the FDIC lowered the bank’s safety and soundness rating to a 3
on a scale of 1 to 5, signaling it was a troubled institution.130 In March 2008, at the request of
OTS and the FDIC, Washington Mutual allowed several potential buyers of the bank to review
its financial information. 131 JPMorgan Chase followed with a purchase offer that WaMu
declined. 132 Instead, in April 2008, Washington Mutual’s parent holding company raised $7
billion in new capital and provided $3 billion of those funds to the bank. 133 By June, the bank
had shut down its wholesale lending channel. 134 It also closed over 180 loan centers and
terminated 3,000 employees. 135 In addition, WaMu reduced its dividend to shareholders. 136
In July 2008, a $30 billion subprime mortgage lender, IndyMac, failed and was placed
into receivership by the government. In response, depositors became concerned about
Washington Mutual and withdrew over $10 billion in deposits, putting pressure on the bank’s
liquidity. After the bank disclosed a $3.2 billion loss for the second quarter, its stock price
continued to drop, and more deposits left.

129

Subcommittee interview of Steve Rotella (2/24/2010). See also 3/1/2007 Washington Mutual Inc. 10-K filing
with the SEC, at 1 (Washington Mutual reduced its workforce from 60,789 to 49,824 from December 31, 2005 to
December 31, 2006.); “Washington Mutual to cut 2,500 jobs,” MarketWatch (2/15/2006), available at
http://www.marketwatch.com/story/washington-mutual-cutting-2500-mortgage-jobs.
130
See 2/27/2008 letter from Kerry Killinger to Washington Mutual Board of Directors, Hearing Exhibit 4/16-41.
131
Subcommittee interviews of WaMu Chief Financial Officer Tom Casey (2/20/2010); and OTS West Region
Office Director Darrel Dochow (3/3/2010); 4/2010 “Washington Mutual Regulators Timeline,” prepared by the
Subcommittee, Hearing Exhibit 4/16-1j.
132
Subcommittee interview of Tom Casey (2/20/2010).
133
4/2010 “Washington Mutual Regulators Timeline,” prepared by the Subcommittee, Hearing Exhibit 4/16-1j.
134
See 2/27/2008 letter from Kerry Killinger to Washington Mutual Board of Directors, Hearing Exhibit 4/16-41.
135
“Washington Mutual to Take Writedown, Slash Dividend,” Bloomberg (12/10/2007), available at
http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aNUz6NmbYZCQ.
136
Id.

58
On September 8, 2008, Washington Mutual signed a public Memorandum of
Understanding that it had negotiated with OTS and the FDIC to address the problems affecting
the bank. Longtime CEO Kerry Killinger was forced to leave the bank, accepting a $15 million
severance payment. 137 Allen Fishman was appointed his replacement.
On September 15, 2008, Lehman Brothers declared bankruptcy. Three days later, on
September 18, OTS and the FDIC lowered Washington Mutual’s rating to a “4,” indicating that a
bank failure was a possibility. The credit rating agencies also downgraded the credit ratings of
the bank and its parent holding company. Over the span of eight days starting on September 15,
nearly $17 billion in deposits left the bank. At that time, the Deposit Insurance Fund contained
about $45 billion, an amount which could have been exhausted by the failure of a $300 billion
institution like Washington Mutual. As the financial crisis worsened each day, regulatory
concerns about the bank’s liquidity and viability intensified.
Because of its liquidity problems and poor quality assets, OTS and the FDIC decided to
close the bank. Unable to wait for a Friday, the day on which most banks are closed, the
agencies acted on a Thursday, September 25, 2008, which was also the 119th anniversary of
WaMu’s founding. That day, OTS seized Washington Mutual Bank, placed it into receivership,
and appointed the FDIC as the receiver. The FDIC facilitated its immediate sale to JPMorgan
Chase for $1.9 billion. The sale eliminated the need to draw upon the Deposit Insurance Fund.
WaMu’s parent, Washington Mutual, Inc., declared bankruptcy soon after.

C. High Risk Lending Strategy
In 2004, Washington Mutual ramped up high risk home loan originations to borrowers
that had not traditionally qualified for them. The following year, Washington Mutual adopted a
high risk strategy to issue high risk mortgages, and then mitigate some of that risk by selling or
securitizing many of the loans. When housing prices stopped climbing in late 2006, a large
number of those risky loans began incurring extraordinary rates of delinquency as did the
securities that relied on those loans for cash flow. In 2007, the problems with WaMu’s High
Risk Lending Strategy worsened, as delinquencies increased, the securitization market dried up,
and the bank was unable to find buyers for its high risk loans or related securities.
The formal initiation of WaMu’s High Risk Lending Strategy can be dated to January
2005, when a specific proposal was presented to the WaMu Board of Directors for approval. 138
WaMu adopted this strategy because its executives calculated that high risk home loans were
more profitable than low risk loans, not only because the bank could charge borrowers higher
interest rates and fees, but also because higher risk loans received higher prices when securitized
and sold to investors. They garnered higher prices because, due to their higher risk, the
securities paid a higher coupon rate than other comparably rated securities.
137

“Washington Mutual CEO Kerry Killinger: $100 Million in Compensation, 2003-2008,” chart prepared by the
Subcommittee, Hearing Exhibit 4/13-1h.
138
See 1/2005 “Higher Risk Lending Strategy ‘Asset Allocation Initiative,’” submitted to Washington Mutual Board
of Directors Finance Committee Discussion, JPM_WM00302975-93, Hearing Exhibit 4/13-2a.

59
Over a five-year period from 2003 to 2008, Washington Mutual Bank shifted its loan
originations from primarily traditional 30-year fixed and government backed loans to primarily
higher risk home loans. This shift included increased subprime loan activity at Long Beach,
more subprime loans purchased through its Specialty Mortgage Finance correspondent channel,
and more bulk purchases of subprime loans through its conduit channel for use in securitizations.
WaMu also increased its originations and acquisitions of Option ARM, Alt A, and home equity
loans. While the shift began earlier, the strategic decision to move toward higher risk loans was
not fully articulated to regulators or the Board of Directors until the end of 2004 and the
beginning of 2005. 139
In about three years, from 2005 to 2007, WaMu issued hundreds of billions of higher risk
loans, including $49 billion in subprime loans 140 and $59 billion in Option ARMs. 141 Data
compiled by the Treasury and the FDIC Inspectors General showed that, by the end of 2007,
Option ARMs constituted about 47% of all home loans on WaMu’s balance sheet and home
equity loans made up $63.5 billion or 27% of its home loan portfolio, a 130% increase from
2003. 142 According to an August 2006 internal WaMu presentation on Option ARM credit risk,
from 1999 until 2006, Option ARM borrowers selected the minimum monthly payment more
than 95% of the time. 143 The data also showed that at the end of 2007, 84% of the total value of
the Option ARMs was negatively amortizing, meaning that the borrowers were going into deeper
debt rather than paying off their loan balances. 144 In addition, by the end of 2007, stated income
loans – loans in which the bank had not verified the borrower’s income – represented 73% of
WaMu’s Option ARMs, 50% of its subprime loans, and 90% of its home equity loans. 145 WaMu
also originated numerous loans with high loan-to-value (LTV) ratios, in which the loan amount
exceeded 80% of the value of the underlying property. The Treasury and the FDIC Inspectors
General determined, for example, that 44% of WaMu’s subprime loans and 35% of its home
equity loans had LTV ratios in excess of 80%. 146 Still another problem was that WaMu had high
geographic concentrations of its home loans in California and Florida, states that ended up
suffering above-average home value depreciation. 147

139

See, e.g., 12/21/2004 “Asset Allocation Initiative: Higher Risk Lending Strategy and Increased Credit Risk
Management,” Washington Mutual Board of Directors Discussion, JPM_WM04107995-8008, Hearing Exhibit 4/132b; 1/2005 “Higher Risk Lending Strategy ‘Asset Allocation Initiative,’” submitted to Washington Mutual Board of
Directors Finance Committee Discussion, JPM_WM00302975-93, Hearing Exhibit 4/13-2a.
140
“Securitizations of Washington Mutual Subprime Home Loans,” chart prepared by the Subcommittee, Hearing
Exhibit 4/13-1c.
141
4/2010 IG Report, at 9, Hearing Exhibit 4/16-82.
142
Id. at 9-10.
143
See 8/2006 Washington Mutual internal report, “Option ARM Credit Risk,” chart entitled, “Borrower-Selected
Payment Behavior,” at 7, Hearing Exhibit 4/13-37. The WaMu report also stated: “Almost all Option ARM
borrowers select the minimum payment every month with very high persistency, regardless of changes in the interest
rates or payment adjustments.” Id. at 2.
144
4/2010 IG Report, at 9, Hearing Exhibit 4/16-82.
145
Id. at 10.
146
Id.
147
Id. at 11.

60

(1) Strategic Direction
In 2004, WaMu set the stage for its High Risk Lending Strategy by formally adopting
aggressive financial targets for the upcoming five-year time period. The new earnings targets
created pressure for the bank to shift from its more conservative practices toward practices that
carried more risk. Mr. Killinger described those targets in a June 2004 “Strategic Direction”
memorandum to WaMu’s Board of Directors: “Our primary financial targets for the next five
years will be to achieve an average ROE [Return on Equity] of at least 18%, and average EPS
[Earnings Per Share] growth of at least 13%.” 148 In his memorandum to the Board, Mr. Killinger
predicted continuing growth opportunities for the bank:
“In a consolidating industry, it is appropriate to continually assess if shareholder value
creation is best achieved by selling for a short-term change of control premium or to
continue to build long-term value as an independent company. We believe remaining an
independent company is appropriate at this time because of substantial growth
opportunities we see ahead. We are especially encouraged with growth prospects for our
consumer banking group. We would also note that our stock is currently trading at a
price which we believe is substantially below the intrinsic value of our unique franchise.
This makes it even more important to stay focused on building long-term shareholder
value, diligently protecting our shareholders from inadequate unsolicited takeover
proposals and maintaining our long held position of remaining an independent
company.” 149
Mr. Killinger identified residential nonprime and adjustable rate mortgage loans as one of the
primary bank businesses driving balance sheet growth. 150 Mr. Killinger also stated in the
memorandum: “Wholesale and correspondent will be nationwide and retooled to deliver higher
margin products.” 151

(2) Approval of Strategy
After 2002, Washington Mutual stopped acquiring lenders specializing in residential
mortgages, 152 and embarked upon a new strategy to push the company’s growth, focused on
increasing its issuance and purchase of higher risk home loans. OTS took note of this strategy in
WaMu’s 2004 Report on Examination:

148

6/1/2004 Washington Mutual memorandum from Kerry Killinger to the Board of Directors, “Strategic
Direction,” JPM_WM05385579 at 581.
149
Id. at 582.
150
Id.
151
Id. at 585.
152
The only new lender that Washington Mutual acquired after 2004 was Commercial Capital Bancorp in 2006.

61
“Management provided us with a copy of the framework for WMI’s 5-year (2005-2009)
strategic plan [which] contemplates asset growth of at least 10% a year, with assets
increasing to near $500 billion by 2009.” 153
OTS directed the bank to spell out its new lending strategy in a written document that had to be
presented to and gain approval by the WaMu Board of Directors. 154
In response, in January 2005, WaMu management developed a document entitled,
“Higher Risk Lending Strategy” and presented it to its Board of Directors for approval to shift
the bank’s focus from originating low risk fixed rate and government backed loans to higher risk
subprime, home equity, and Option ARM loans. 155 The Strategy disclosed that WaMu planned
to increase both its issuance of higher risk loans and its offering of loans to higher risk
borrowers. The explicit reasoning for the shift was the increased profitability of the higher risk
loans, measured by actual bank data showing that those loans produced a higher “gain on sale”
or profit for the bank compared to lower risk loans. For example, one chart supporting the
Strategy showed that selling subprime loans garnered more than eight times the gain on sale as
government backed loans. 156
The WaMu submission to the Board noted that, in order for the plan to be successful,
WaMu would need to carefully manage its residential mortgage business as well as its credit risk,
meaning the risk that borrowers would not repay the higher risk loans. 157 During the Board’s
discussion of the strategy, credit officers noted that losses would likely lag by several years. 158
These documents show that WaMu knew that, even if loan losses did not immediately come to
pass after initiating the High Risk Lending Strategy, it did not mean the strategy was free of
problems.

153

See 3/15/2004 OTS Report of Examination, at OTSWMS04-0000001509, Hearing Exhibit 4/16-94 [Sealed
Exhibit].
154
6/30/2004 OTS Memo to Lawrence Carter from Zalka Ancely, OTSWME04-0000005357 at 61 (“Joint Memo #9
- Subprime Lending Strategy”); 3/15/2004 OTS Report of Examination, at OTSWMS04-0000001483, Hearing
Exhibit 4/16-94 [Sealed Exhibit]. See also 1/2005 “Higher Risk Lending Strategy Presentation,” submitted to
Washington Mutual Board of Directors, at JPM_WM00302978, Hearing Exhibit 4/13-2a (“As we implement our
Strategic Plan, we need to address OTS/FDIC 2004 Safety and Soundness Exam Joint Memos 8 & 9 . . . Joint Memo
9: Develop and present a SubPrime/Higher Risk Lending Strategy to the Board.”).
155
1/2005 “Higher Risk Lending Strategy Presentation,” submitted to Washington Mutual Board of Directors, at
JPM_WM00302978, Hearing Exhibit 4/13-2a; see also 4/2010 “WaMu Product Originations and Purchases by
Percentage – 2003-2007,” chart prepared by the Subcommittee, Hearing Exhibit 4/13-1i.
156
4/18/2006 Washington Mutual Home Loans Discussion Board of Directors Meeting, at JPM_WM00690894,
Hearing Exhibit 4/13-3 (see chart showing gain on sale for government loans was 13 basis points; for 30-year, fixed
rate loans was 19; for option loans was 109; for home equity loans was 113; and for subprime loans was 150.).
157
See 4/18/2006 Washington Mutual Home Loans Discussion Board of Directors Meeting, at JPM_WM00690899,
Hearing Exhibit 4/13-3 (acknowledging that the risks of the High Risk Lending Strategy included managing credit
risk, implementing lending technology and enacting organizational changes).
158
1/18/2005 Washington Mutual Inc. Washington Mutual Bank FA Finance Committee Minutes,
JPM_WM06293964; see also 1/2005 “Higher Risk Lending Strategy Presentation,” submitted to Washington
Mutual Board of Directors, at JPM_WM00302987, Hearing Exhibit 4/13-2a (“Lags in Effects of Expansion,” chart
showing peak loss rates in 2007).

62

(3) Definition of High Risk Lending
As part of the 2005 presentation to the Board of Directors outlining the strategy, OTS
recommended that WaMu define higher risk lending. 159 The January 2005 presentation
contained a slide defining “Higher Risk Lending”:
“For the purpose of establishing concentration limits, Higher Risk Lending
strategies will be implemented in a ‘phased’ approach. Later in 2005 an
expanded definition of Higher Risk Lending – encapsulating multiple risk
layering and expanded underwriting criteria – and its corresponding
concentration limit – will be presented for Board approval.
“The initial definition is ‘Consumer Loans to Higher Risk Borrowers’,
which at 11/30/04 totaled $32 Billion or 151% of total risk-based capital,
comprised of:
-Subprime loans, or all loans originated by Long Beach Mortgage
or purchased through our Specialty Mortgage Finance program
-SFR [Single Family Residential] and Consumer Loans to
Borrowers with low credit scores at origination.” 160
A footnote on the slide defined “low credit scores” as less than a 620 FICO score for first lien
single family residence mortgages, home equity loans, and home equity lines of credit. It
defined low credit scores as less than 660 for second lien home equity loans (HEL) and home
equity lines of credit (HELOC), and other consumer loans. 161
While the January 2005 presentation promised to present a fuller definition of higher risk
loans for Board approval at some future date, a more complete definition had already been
provided to the Board a few weeks earlier in a December 21, 2004 presentation entitled, “Asset
Allocation Initiative: Higher Risk Lending Strategy and Increased Credit Risk Management.” 162
This presentation contained the same basic definition of higher risk borrowers, but also provided
a definition of higher risk loans.
Higher risk loans were defined as single family residence mortgages with a loan-to-value
(LTV) ratio of equal to or greater than 90% if not credit enhanced, or a combined-loan-to-value
(CLTV) ratio of 95%. These numbers are a notable departure from the 80% LTV ratio
159

6/30/2004 OTS Memo to Lawrence Carter from Zalka Ancely (“Joint Memo #8 - Loans to ‘Higher-Risk
Borrowers’”), OTSWME04-0000005357 at 61.
160
1/2005 “Higher Risk Lending Strategy Presentation,” submitted to Washington Mutual Board of Directors, at
JPM_WM00302979, Hearing Exhibit 4/13-2a.
161
Id. at JPM_WM00302979.
162
12/21/2004 “Asset Allocation Initiative: Higher Risk Lending Strategy and Increased Credit Risk Management,”
Washington Mutual Board of Directors Presentation, at JPM_WM04107995-8008, Hearing Exhibit 4/13-2b.

63
traditionally required for a prime loan. 163 For home equity loans and lines of credit, WaMu
considered a first lien to be high risk if it had a greater than 90% LTV ratio, and considered a
second lien to be high risk if had a greater than 80% CLTV ratio. 164
The December 2004 presentation also defined higher risk lending on the basis of
expanded underwriting criteria and multiple risk layering:
“Expanded Criteria
-‘No Income’ loan documentation type
-All Manufactured Housing loans …
Multiple Risk Layering in SF[R] and 1st lien HEL/HELOC loans
-Higher A- credit score or lacking LTV as strong compensating factor and
-An additional risk factor from at least three of the following:
-Higher uncertainty about ability to pay or ‘stated income’
documentation type
-higher uncertainty about willingness to pay or collateral value[.]” 165
This document indicates that WaMu considered a mortgage to be higher risk if it lacked
documentation regarding the borrower’s income, described as a “no income” or “stated income”
loan.
WaMu held billions of dollars in loans on its balance sheet. 166 Those assets fluctuated in
value based on the changes in the interest rate. Fixed rate loans, in particular, incurred
significant interest rate risk, because on a 30-year fixed rate mortgage, for example, WaMu
agreed to receive interest payments at a certain rate for 30 years, but if the prevailing interest rate
went up, WaMu’s cost of money increased and the relative value of the fixed mortgages on its
balance sheet went down. WaMu used various strategies to hedge its interest rate risk. One way
to incur less interest rate risk was for WaMu to hold loans with variable interest rates, such as
Hybrid ARMs typical of WaMu’s subprime lending, or Option ARMs, WaMu’s flagship “prime”
product. These adjustable rate mortgages paid interest rates that, after the initial fixed rate period
expired, were typically pegged to the Cost of Funds Index (COFI) or the Monthly Treasury
Average (MTA), two common measures of prevailing interest rates.

163

See, e.g., 10/8/1999 “Interagency Guidance on High LTV Residential Real Estate Lending,”
http://www.federalreserve.gov/boarddocs/srletters/1993/SR9301.htm, and discussion of high LTV loans in section
D(2)(b), below.
164
12/21/2004 “Asset Allocation Initiative: Higher Risk Lending Strategy and Increased Credit Risk Management,”
Washington Mutual Board of Directors Presentation, JPM_WM04107995-8008 at 7999, Hearing Exhibit 4/13-2b.
165
Id. This slide lists only the two additional risk factors quoted, despite referring to “at least three of the
following.”
166
See 9/25/2008 “OTS Fact Sheet on Washington Mutual Bank,” Dochow_Darrel-00076154_001 (“Loans held:
$118.9 billion in single-family loans held for investment – this includes $52.9 billion in payment option ARMs and
$16.05 billion in subprime mortgage loans”).

64

(4) Gain on Sale
WaMu’s internal documents indicate that the primary motivation behind its High Risk
Lending Strategy was the superior “gain on sale” profits generated by high risk loans. 167
Washington Mutual management had calculated that higher risk loans were more profitable
when sold or securitized. Prior to sale, higher risk loans also produced greater short term profits,
because the bank typically charged the borrowers a higher rate of interest and higher fees.
Higher risk home loans placed for sale were more profitable for WaMu, because of the
higher price that Wall Street underwriters and investors were willing to pay for them. The profit
that WaMu obtained by selling or securitizing a loan was known as the “gain on sale.” Gain on
sale figures for the loans produced by the bank were analyzed and presented to the WaMu Board
of Directors. On April 18, 2006, David Schneider, the President of WaMu Home Loans division,
provided the Board of Directors a confidential presentation entitled, “Home Loans
Discussion.” 168 The third slide in the presentation was entitled, “Home Loans Strategic
Positioning,” and stated: “Home Loans is accelerating significant business model changes to
achieve consistent, long term financial objectives.” 169 Beneath this heading the first listed
objective was: “Shift from low-margin business to high-margin products,” 170 meaning from less
profitable to more profitable loan products. The next slide in the presentation was entitled:
“Shift to Higher Margin Products,” and elaborated on that objective. The slide listed the actual
gain on sale obtained by the bank, in 2005, for each type of loan WaMu offered, providing the
“basis points” (bps) that each type of loan fetched on Wall Street:
2005 WaMu Gain on Sale
Margin by Product
in bps 171
Government
Fixed
Hybrid/ARM
Alt A
Option ARM
Home Equity
Subprime

167

13
19
25
40
109
113
150

1/18/2005 Washington Mutual Inc. Washington Mutual Bank FA Finance Committee Minutes at
JPM_WM06293964; see also 1/2005 “Higher Risk Lending Strategy Presentation,” submitted to Washington
Mutual Board of Directors, at JPM_WM00302977, Hearing Exhibit 4/13-2a
168
4/18/2006 “Home Loans Discussion Board of Directors Meeting,” WaMu presentation, JPM_WM00690890-901,
Hearing Exhibit 4/13-3.
169
Id. at 893 [emphasis in original removed].
170
Id.
171
Id. at 894 [formatting as in the original].

65
Mr. Schneider told the Subcommittee that the numbers listed on the chart were not
projections, but the numbers generated from actual, historical loan data. 172 As the chart makes
clear, the least profitable loans for WaMu were government backed and fixed rate loans. Those
loans were typically purchased by the government sponsored enterprises (GSEs) Fannie Mae and
Freddie Mac which paid relatively low prices for them. Instead of focusing on those low margin
loans, WaMu’s management looked to make profits elsewhere, and elected to focus on the most
profitable loans, which were the Option ARM, home equity, and subprime loans. In 2005,
subprime loans, with 150 basis points, were eight times more profitable than a fixed rate loan at
19 basis points and more than 10 times as profitable as government backed loans.
The gain on sale data WaMu collected drove not only WaMu’s decision to focus on
higher risk home loans, but also how the bank priced those loans for borrowers. In determining
how much it would charge for a loan, the bank calculated first what price the loan would obtain
on Wall Street. As Mr. Beck explained in his testimony before the Subcommittee:
“Because WaMu’s capital markets organization was engaged in the secondary mortgage
market, it had ready access to information regarding how the market priced loan
products. Therefore my team helped determine the initial prices at which WaMu could
offer loans by beginning with the applicable market prices for private or agency-backed
mortgage securities and adding the various costs WaMu incurred in the origination, sale,
and servicing of home loans.” 173

(5) Acknowledging Unsustainable Housing Price Increases
In 2004, before WaMu implemented its High Risk Lending Strategy, the Chief Risk
Officer Jim Vanasek expressed internally concern about the unsustainable rise in housing prices,
loosening lending standards, and the possible consequences. On September 2, 2004, just months
before the formal presentation of the High Risk Lending Strategy to the Board of Directors, Mr.
Vanasek circulated a prescient memorandum to WaMu’s mortgage underwriting and appraisal
staff, warning of a bubble in housing prices and encouraging tighter underwriting. The
memorandum also captured a sense of the turmoil and pressure at WaMu. Under the subject
heading, “Perspective,” Mr. Vanasek wrote:
“I want to share just a few thoughts with all of you as we begin the month of September.
Clearly you have gone through a difficult period of time with all of the changes in the
mortgage area of the bank. Staff cuts and recent defections have only added to the stress.
Mark Hillis [a Senior Risk Officer] and I are painfully aware of the toll that this has taken
on some of you and have felt it is important to tell you that we recognize it has been and
continues to be difficult.

172
173

Subcommittee interview of David Schneider (2/16/2010).
April 13, 2010 Subcommittee Hearing at 53.

66
“In the midst of all this change and stress, patience is growing thin. We understand that.
We also know that loan originators are pushing very hard for deals. But we need to put
all of this in perspective.
“At this point in the mortgage cycle with prices having increased far beyond the rate of
increase in personal incomes, there clearly comes a time when prices must slow down or
perhaps even decline. There have been so many warnings of a Housing Bubble that we
all tend now to ignore them because thus far it has not happened. I am not in the business
of forecasting, but I have a healthy respect for the underlying data which says ultimately
this environment is no longer sustainable. Therefore I would conclude that now is not the
time to be pushing appraisal values. If anything we should be a bit more conservative
across the board. Kerry Killinger and Bill Longbrake [a Vice Chair of WaMu] have both
expressed renewed concern over this issue.
“This is a point where we should be much more careful about exceptions. It is highly
questionable as to how strong this economy may be; there is clearly no consensus on
Wall Street. If the economy stalls, the combination of low FICOs, high LTVs and
inordinate numbers of exceptions will come back to haunt us.” 174
Mr. Vanasek was the senior-most risk officer at WaMu, and had frequent interactions with Mr.
Killinger and the Board of Directors. While his concerns may have been heard, they were not
heeded.
Mr. Vanasek told the Subcommittee that, because of his predictions of a collapse in the
housing market, he earned the derisive nickname “Dr. Doom.” 175 But evidence of a housing
bubble was overwhelming by 2005. Over the prior ten years, housing prices had skyrocketed in
an unprecedented fashion, as the following chart prepared by Paulson & Co. Inc., based on data
from the Bureau of Economic Analysis and the Office of Federal Housing Enterprise Oversight,
demonstrates. 176

174

9/2/2004 Washington Mutual memorandum from Jim Vanasek, “Perspective,” Hearing Exhibit 4/13-78b.
Subcommittee interview of Jim Vanasek (12/18/2009).
176
“Estimation of Housing Bubble,” PSI-Paulson&Co-02-00003, Hearing Exhibit 4/13-1j.
175

67

Mr. Vanasek shared his concerns with Mr. Killinger. At the Subcommittee’s hearing,
Mr. Killinger testified: “Now, beginning in 2005, 2 years before the financial crisis hit, I was
publicly and repeatedly warning of the risks of a potential housing downturn.” 177 In March
2005, he engaged in an email exchange with Mr. Vanasek, in which both agreed the United
States was in the midst of a housing bubble. On March, 10, 2005, Mr. Vanasek emailed Mr.
Killinger about many of the issues facing his risk management team, concluding:
“My group is working as hard as I can reasonably ask any group to work and in several
cases they are stretched to the absolute limit. Any words of support and appreciation
would be very helpful to the morale of the group. These folks have stepped up to fixing
any number of issues this year, many not at all of their own making.” 178
Mr. Killinger replied:
“Thanks Jim. Overall, it appears we are making some good progress. Hopefully, the
Regulators will agree that we are making some progress. I suspect the toughest thing for
us will be to navigate through a period of high home prices, increased competitive
conditions for reduced underwriting standards, and our need to grow the balance sheet. I
177
178

April 13, 2010 Subcommittee Hearing at 85.
3/2005 WaMu internal email chain, Hearing Exhibit 4/13-78.

68
have never seen such a high risk housing market as market after market thinks they are
unique and for whatever reason are not likely to experience price declines. This typically
signifies a bubble.”
Mr. Vanasek agreed:
“I could not agree more. All the classic signs are there and the likely outcome is
probably not great. We would all like to think the air can come out of the balloon slowly
but history would not lean you in that direction. Over the next month or so I am going to
work hard on what I hope can be a lasting mechanism (legacy) for determining how
much risk we can afford to take ….”
Despite Mr. Killinger’s awareness that housing prices were unsustainable, could drop suddenly,
and could make it difficult for borrowers to refinance or sell their homes, Mr. Killinger
continued to push forward with WaMu’s High Risk Lending Strategy.

(6) Execution of the High Risk Lending Strategy
WaMu formally adopted the High Risk Lending Strategy in January 2005. 179 Over the
following two years, management significantly shifted the bank’s loan originations towards
riskier loans as called for in the plan, but had to slow down the pace of implementation in the
face of worsening market conditions. In retrospect, WaMu executives tried to portray their
inability to fully execute the plan as a strategic choice rather than the result of a failed strategy.
For example, Mr. Killinger testified at the Subcommittee hearing that the bank’s High Risk
Lending Strategy was only contemplated, but not really executed:
“First, we had an adjustment in our strategy that started in about 2004 to gradually
increase the amount of home equity, subprime, commercial real estate, and multi-family
loans that we could hold on the balance sheet. We had that long-term strategy, but … we
quickly determined that the housing market was increasing in its risk, and we put most of
those strategies for expansion on hold.” 180
Mr. Killinger’s claim that the High Risk Lending Strategy was put “on hold” is contradicted,
however, by WaMu’s SEC filings, its internal documents, and the testimony of other WaMu
executives.
Washington Mutual’s SEC filings contain loan origination and acquisition data showing
that the bank did implement its High Risk Lending Strategy. Although rising defaults and the
2007 collapse of the subprime secondary market prevented WaMu from fully executing its plans,
WaMu dramatically shifted the composition of the loans it originated and purchased, nearly

179

See 3/13/2006 OTS Report of Examination, at OTSWMS06-008 0001677, Hearing Exhibit 4/16-94 [Sealed
Exhibit].
180
April 13, 2010 Subcommittee Hearing at 88.

69
doubling the percentage of higher risk home loans from 36% to 67%. The following chart,
prepared by the Subcommittee using data from WaMu’s SEC filings, demonstrates the shift. 181

In 2003, 64% of WaMu’s mortgage originations and purchases were fixed rate loans, and
only 19% were subprime, Option ARM, or home equity loans. In 2004, 31% of WaMu’s
mortgage originations and purchases were fixed rate loans, and 55% were subprime, Option
ARM, or home equity loans. In 2005, 31% of WaMu’s mortgage originations and purchases
were fixed rate loans, and 56% were subprime, Option ARM, or equity loans. By 2006, only
25% of WaMu’s mortgage originations and purchases were fixed rate loans, and 55% were
subprime, Option ARM, or home equity loans. 182 Even after market forces began taking their
toll in 2007, and WaMu ended all subprime lending in the fall of that year, its higher risk
originations and purchases at 47% were double its fixed rate loans at 23%. 183

181

4/2010 “WaMu Product Originations and Purchases by Percentage – 2003-2007,” chart prepared by the
Subcommittee, Hearing Exhibit 4/13-1i.
182
Id.
183
Id.

70
Mr. Killinger’s annual “Strategic Direction” memoranda to the Board in 2005, 2006, and
2007, also contradict his testimony that the strategy of expanding high risk lending was put on
hold. On the first page of his 2005 memorandum, Mr. Killinger wrote: “We continue to see
excellent long-term growth opportunities for our key business lines of retail banking, mortgage
banking, multi-family lending and sub-prime residential lending.” 184 Rather than hold back on
WaMu’s stated strategy of risk expansion, Mr. Killinger told the Board that WaMu should
accelerate it:
“In order to reduce the impact of interest rate changes on our business, we have
accelerated development of Alt-A, government and sub-prime loan products, as well as
hybrid ARMs and other prime products, specifically for delivery through retail,
wholesale and correspondent channels.” 185
The 2005 strategic direction memorandum also targeted Long Beach for expansion:
“Long Beach is expected to originate $30 billion of loans this year, growing to $36
billion in 2006. To facilitate this growth, we plan to increase account managers by 100.
We expect Long Beach to have 5% of the sub-prime market in 2005, growing to [a] 6%
share in 2006.” 186
Despite warning against unsustainable housing prices in March 2005, Mr. Killinger’s
2006 “Strategic Direction” memorandum to the Board put even more emphasis on growth than
the 2005 memorandum. After reviewing the financial targets set in the five-year plan adopted in
2004, Mr. Killinger wrote: “To achieve these targets, we developed aggressive business plans
around the themes of growth, productivity, innovation, risk management and people
development.” 187 His memorandum expressed no hesitation or qualification as to whether the
high risk home lending strategy was still operative in 2006. The memorandum stated:
“Finally, our Home Loan Group should complete its repositioning within the next twelve
months and it should then be in position to grow its market share of Option ARM, home
equity, sub prime and Alt. A loans. We should be able to increase our share of these
categories to over 10%.” 188
Contrary to Mr. Killinger’s hearing testimony, the 2006 memorandum indicates an expansion of
WaMu’s high risk home lending, rather than any curtailment:
“We are refining our home loans business model to significantly curtail low margin
Government and conventional fixed rate originations and servicing, and to significantly
184

6/1/2005 Washington Mutual memorandum from Kerry Killinger to the Board of Directors, “Strategic
Direction,” JPMC/WM - 0636-49 at 36, Hearing Exhibit 4/13-6c.
185
Id. at 644.
186
Id. at 646.
187
6/6/2006 Washington Mutual memorandum from Kerry Killinger to the Board of Directors, “Strategic
Direction,” JPM_00808312-324 at 314, Hearing Exhibit 4/13-6d.
188
Id. at 315 [emphasis in original removed].

71
increase our origination and servicing of high margin home equity, Alt. A, sub prime and
option ARMs. Action steps include merging Longbeach sub prime and the prime
business under common management, merging correspondent activities into our
correspondent channel, getting out of Government lending, curtailing conventional fixed
rate production, expanding distribution of targeted high margin products through all
distribution channels and potentially selling MSRs [Mortgage Servicing Rights] of low
margin products. We expect these actions to result in significantly higher profitability
and lower volatility over time.” 189
The April 16, 2006 “Home Loans Discussion” presentation by Home Loans President
David Schneider, discussed above, also confirms WaMu’s ongoing efforts to shift its loan
business toward high risk lending. Page four of that presentation, entitled, “Shift to Higher
Margin Products,” shows two pie charts under the heading, “WaMu Volume by Product.” 190
One chart depicts loan volume for 2005, and the second chart depicts projected loan volume for
2008:
WaMu Volume By Product
$ In Billions 191

Home Equity
$4B
2%

Govt
$8B
4%

2005

Subprime
$34B
16%

Option ARM
$63B
31%

Alt-A
$1B
0%

Fixed
$69B
33%

Hyb/ARM
$28B
13%

$206 Billion

New Product
$13B
5%

Alt A
$24B
10%

2008

Fixed
$4B
2%
Hyb/ARM
$38B
17%

Home Equity
$30B
13%
Subprime
$70B
30%

Option ARM
$63B
23%

$232 Billion

These charts demonstrate WaMu’s intention to increase its loan originations over three
years by almost $30 billion, focusing on increases in high risk loan products. Subprime
originations, for example, were expected to grow from $34 billion in 2005 to $70 billion in 2008;
Alt A originations were projected to grow from $1 billion in 2005 to $24 billion in 2008; and
189

Id. at 319.
4/18/2006 “Home Loans Discussion Board of Directors Meeting,” WaMu PowerPoint presentation,
JPM_WM00690890-901 at 894, Hearing Exhibit 4/13-3.
191
Id. [formatted for clarity].
190

72
Home Equity originations were projected to grow from $4 billion in 2005 to $30 billion in 2008.
On the other hand, WaMu’s low risk originations were expected to be curtailed dramatically.
Government backed loan originations, which totaled $8 billion in 2005, were projected to be
eliminated by 2008. Fixed rate loan originations were projected to decline from $69 billion in
2005 to $4 billion in 2008.
The 2007 “Strategic Direction” memorandum to the Board is dated June 18, 2007, well
after U.S. housing prices had begun to decline, as Mr. Killinger acknowledged:
“For the past two years, we have been predicting the bursting of the housing bubble and
the likelihood of a slowing housing market. This scenario has now turned into a reality.
Housing prices are declining in many areas of the country and sales are rapidly slowing.
This is leading to an increase in delinquencies and loan losses. The sub-prime market
was especially rocked as many sub-prime borrowers bought houses at the peak of the
cycle and now find their houses are worth less and they are having difficulties refinancing
their initial low-rate loans.” 192
While the memorandum’s section on home loan strategy no longer focused on overall growth, it
continued to push the shift to high risk lending, despite problems in the subprime market:
“Home Loans is a large and important business, but at this point in the cycle, it is
unprofitable. The key strategy for 2008 is to execute on the revised strategy adopted in
2006. … We need to optimize the sub-prime and prime distribution channels with
particular emphasis on growing the retail banking, home loan center and consumer direct
channels. We also expect to portfolio more of Home Loans’ originations in 2008,
including the new Mortgage Plus product. We will continue to emphasize higher-risk
adjusted return products such as home equity, sub-prime first mortgages, Alt A
mortgages and proprietary products such as Mortgage Plus.” 193
The testimony of other WaMu executives further confirms the bank’s implementation of
its High Risk Lending Strategy. Ronald Cathcart, who joined WaMu in 2006, to become the
company’s Chief Risk Officer, testified:
“The company’s strategic plan to shift its portfolios towards higher margin products was
already underway when I arrived at WaMu. Basically, this strategy involved moving
away from traditional mortgage lending into alternative lending programs involving
adjustable-rate mortgages as well as into subprime products. The strategic shift to

192

6/18/2007 Washington Mutual memorandum from Kerry Killinger to the Board of Directors, “Strategic
Direction,” JPM_WM03227058-67 at 60, Hearing Exhibit 4/13-6a.
193
Id. at 66 [emphasis in original removed]. See also 1/2007 Washington Mutual presentation, “Subprime Mortgage
Program,” JPM_WM02551400, Hearing Exhibit 4/13-5 (informing potential investors in its subprime RMBS
securities that: “WaMu is focusing on higher margin products”).

73
higher-margin products resulted in the bank taking on a higher degree of credit risk
because there was a greater chance that borrowers would default.” 194
Likewise, Steven Rotella, WaMu’s President and Chief Operating Officer, who began with the
bank in January 2005, testified before the Subcommittee:
“In particular, I want to be very clear on the topic of high-risk lending, this
Subcommittee’s focus today. High-risk mortgage lending in WaMu’s case, primarily
Option ARMs and subprime loans through Long Beach Mortgage, a subsidiary of WaMu,
were expanded and accelerated at explosive rates starting in the early 2000s, prior to my
hiring in 2005…. In 2004 alone, the year before I joined, Option ARMs were up 124
[percent], and subprime lending was up 52 percent.” 195
In his testimony, Mr. Rotella took credit for curtailing WaMu’s growth and high risk
lending. 196 Mr. Rotella’s own emails, however, show that he supported the High Risk Lending
Strategy. On October 15, 2005, Mr. Rotella emailed Mr. Killinger about WaMu’s 2006 strategic
plan: “I think our focus needs to be on organic growth of home eq, and subprime, and greater
utilization of [the Home Loans division] as we know it today to facilitate that at lower
acquisition costs and greater efficiency.” 197
Mr. Killinger replied by email the next day: “Regarding Longbeach, I think there is a
good opportunity to be a low cost provider and gain significant share when the industry
implodes.” 198 Responding to Mr. Rotella’s ideas about the Home Loans division, Mr. Killinger
wrote: “It makes sense to leverage the home loans distribution channels with home equity, sub
prime, and alt. A.” 199 In this late 2005 email exchange, WaMu’s two senior-most executives
contemplate reducing prime lending, not subprime. Mr. Killinger wrote: “If we can’t make a
shift in our business model, we might be better off exiting the prime space.” 200
Mr. Rotella replied to Mr. Killinger’s email later on October 16, 2005. He continued to
emphasize the importance of focusing on high risk lending, referring to his previous experience
as a mortgage banker at JPMorgan Chase:
“We did these kinds of analyses all the time at Chase which led us to run as fast as we
could into home eq, alt a, subprime (our investment banking brethren stopped us from
going too far here). We viewed prime as a source of scale benefits in servicing for the
other areas and a conduit of higher margin product and aimed to hold our prime servicing

194

April 13, 2010 Subcommittee Hearing at 18-19.
Id. at 83.
196
See id., e.g., at 83-84.
197
10/15/2005-10/16/2005 email from Steve Rotella to Kerry Killinger, JPM_WM00665373-75.
198
Id. at JPM_WM00665374.
199
Id.
200
Id.
195

74
flat to down. I feel strongly that where we need to land is a new home loan unit that
includes prime, heq, and subprime. It is a far superior model.” 201
In July 2008, just two months before the collapse of WaMu, Home Loans President
David Schneider prepared an internal presentation entitled, “Home Loans Story, External &
Internal Views.” 202 The presentation was retrospective, providing timelines of WaMu’s major
strategy, policy, and personnel changes. The first substantive page of the presentation bears the
heading, “Three fundamental business shifts occurred in Home Loans this millennium which
shaped its performance and position in a volatile competitive landscape”:
“2001 to 2005
‘Mono-line’ business model focused on generating high volume of low-margin, prime
products ….
2006
Targeted production franchise toward higher margin products to become a market leader
in specific product segments ….
2007 & Beyond
Subprime mortgage implosion fuels credit and liquidity crisis and the non-agency
secondary market disappears[.]”
Mr. Scheider’s retrospective presentation of the changes that occurred at WaMu is
unambiguous: by 2006, WaMu had “[t]argeted production franchise toward higher margin
products.” 203 According to the same presentation, that model change also lowered earnings
volatility for WaMu by lessening exposure to Mortgage Servicing Rights. 204 Later slides provide
more detail. A quarterly timeline is presented with the heading: “In an environment of internal
and external large-scale change, Home Loans took bold actions to redefine its business into a
sustainable model.” In the strategy section for the second quarter of 2006, Mr. Schneider wrote:
“New business model, high margin products.” 205
Despite warnings by some within its management about unsustainable housing prices,
WaMu pursued a High Risk Lending Strategy to generate short term profits from the favorable
gain-on-sale margins offered by Wall Street for high risk loans and securitizations, for which the
credit rating agencies continued to award AAA ratings. To succeed, the strategy was premised
upon borrowers being able to refinance or sell their homes to pay off their loans in the event of a
default. Stagnant or declining house prices made refinancing and home sales more difficult.

201

Id. at JPM_WM00665373.
7/2008 “Home Loans Story, External & Internal Views,” Washington Mutual PowerPoint presentation, Hearing
Exhibit 4/13-80.
203
Id. at 1.
204
Id.
205
Id. at 4.
202

75
Effective implementation of the High Risk Lending Strategy also required robust risk
management. But while WaMu was incurring significantly more credit risk than it had in the
past, risk managers were marginalized, undermined, and subordinated to WaMu’s business units.
As a result, when credit risk management was most needed, WaMu found itself lacking in
effective risk management and oversight.

D. Shoddy Lending Practices
At the same time they increased their higher risk lending, WaMu and Long Beach
engaged in a host of poor lending practices that produced billions of dollars in poor quality loans.
Those practices included offering high risk borrowers large loans; steering borrowers to higher
risk loans; accepting loan applications without verifying the borrower’s income; using loans with
low teaser rates to entice borrowers to take out larger loans; promoting negative amortization
loans which led to many borrowers increasing rather than paying down their debt over time; and
authorizing loans with multiple layers of risk. WaMu and Long Beach also exercised weak
oversight over their loan personnel and third party mortgage brokers, and tolerated the issuance
of loans with fraudulent or erroneous borrower information.

(1) Long Beach
Throughout the period reviewed by the Subcommittee, from 2004 until its demise in
September 2007, Long Beach was plagued with problems. Long Beach was one of the largest
subprime lenders in the United States, 206 but it did not have any of its own loan officers. Long
Beach operated exclusively as a “wholesale lender,” meaning all of the loans it issued were
obtained from third party mortgage brokers who had brought loans to the company to be
financed. Long Beach “account executives” solicited and originated the mortgages that were
initiated by mortgage brokers working directly with borrowers. Long Beach account executives
were paid according to the volume of loans they originated, with little heed paid to loan quality.
Throughout the period reviewed by the Subcommittee, Long Beach’s subprime home
loans and mortgage backed securities were among the worst performing in the subprime
industry. Its loans repeatedly experienced early payment defaults, its securities had among the
highest delinquencies in the market, and its unexpected losses and repurchase demands damaged
its parent corporation’s financial results. Internal documentation from WaMu shows that senior
management at the bank was fully aware of Long Beach’s shoddy lending practices, but failed to
correct them.
2003 Halt in Securitizations. For a brief period in 2003, Long Beach was required by
WaMu lawyers to stop all securitizations until significant performance problems were remedied.
While the problems were addressed and securitizations later resumed, many of the issues
returned and lingered for several years.
206

See 1/2007 Washington Mutual Presentation, “Subprime Mortgage Program,” Hearing Exhibit 4/13-5 (slide
showing Long Beach Annual Origination Volume).

76
The problems with Long Beach’s loans and securitizations predated the company’s
purchase by WaMu in 1999, but continued after the purchase. An internal email at WaMu’s
primary federal regulator, the Office of Thrift Supervision (OTS), observed the following with
respect to Long Beach’s mortgage backed securities:
“Performance data for 2003 and 2004 vintages appear to approximate industry average
while issues prior to 2003 have horrible performance. LBMC finished in the top 12 worst
annualized NCLs [net credit losses] in 1997 and 1999 thru 2003. LBMC nailed down the
worst spot at top loser … in 2000 and placed 3rd in 2001.” 207
In 2003, Long Beach’s performance deteriorated to the point that WaMu’s legal
department put a stop to all Long Beach securitizations until the company improved its
operations. 208 An internal review of Long Beach’s first quarter 2003 lending “concluded that
40% (109 of 271) of loans reviewed were considered unacceptable due to one or more critical
errors.” 209 According to a 2003 joint report issued by regulators from the FDIC and Washington
State: “This raised concerns over LBMC’s ability to meet the representations and warrant[ies]
made to facilitate sales of loan securitizations, and management halted securitization activity.” 210
A Long Beach corporate credit review in August 2003 confirmed that “credit management and
portfolio oversight practices were unsatisfactory.” 211
As a result of the halt in securitizations, Long Beach had to hold loans on its warehouse
balance sheet, which increased by approximately $1 billion per month and reached nearly $5
billion by the end of November 2003. Long Beach had to borrow money from WaMu and other
creditors to finance the surge. 212 The joint visitation report noted that unless Long Beach
executed a $3 billion securitization by January 2004, “liquidity will be strained.” 213 WaMu
initiated a review of Long Beach led by its General Counsel Faye Chapman. 214 Her team
evaluated the loans that had accumulated during the halt in securitizations. The joint visitation
report noted that of 4,000 Long Beach loans reviewed by WaMu by the end of November 2003,
less than one quarter, about 950, could be sold to investors, another 800 were unsaleable, and the
rest – over half of the loans – had deficiencies that had to be remediated before a sale could take
place. 215

207

4/2005 OTS internal email, Hearing Exhibit 4/13-8(a).
Subcommittee interview of Faye Chapman, WaMu General Counsel (2/9/2010). See also 12/21/2005 OTS
memorandum, “Long Beach Mortgage Corporation (LBMC),” OTSWMS06-007 0001010, Hearing Exhibit 4/16-31.
209
1/13/2004 report on “Joint Visitation Dated October 14, 2003,” jointly prepared by the FDIC and the State of
Washington Department of Financial Institutions, FDIC-E_00102515, at 3, Hearing Exhibit 4/13-8b (citing a Long
Beach quality assurance report).
210
Id.
211
Id. (citing a Long Beach Corporate Credit Review report).
212
Id.
213
Id.
214
Subcommittee interview of Fay Chapman (2/9/2010).
215
1/13/2004 report on “Joint Visitation Dated October 14, 2003,” jointly prepared by the FDIC and the State of
Washington Department of Financial Institutions, FDIC-E_00102515, at 3, Hearing Exhibit 4/13-8b.
208

77
After a short hiatus, WaMu allowed Long Beach to resume securitizing subprime loans in
2004.
An internal WaMu memorandum, later prepared by a WaMu risk officer who had been
asked to review Long Beach in 2004, recalled significant problems:
216

“You’ve asked for a chronological recap of ERM [Enterprise Risk Management] market
risk involvement with Longbeach and the sub prime conduit. … [In] 2004: I conducted
an informal but fairly intensive market risk audit of Longbeach …. The climate was very
adversarial. … We found a total mess.” 217
A November 2004 email exchange between two WaMu risk officers provides a sense that
poor quality loans were still a problem. The first WaMu risk officer wrote:
“Just a heads-up that you may be getting some outreach from Carroll Moseley (or
perhaps someone higher up in the chain) at Long Beach regarding their interest in
exploring the transfer of … a small amount (maybe $10-20mm in UPB [unpaid principal
balance]) of Piggieback ‘seconds’ (our favorite toxic combo of low FICO borrower and
HLTV loan) from HFS [hold for sale portfolio] to HFI [hold for investment portfolio].
“As Carroll described the situation, these are of such dubious credit quality that they
can’t possibly be sold for anything close to their ‘value’ if we held on to them. … I urged
him to reach out to you directly on these questions. (E.g., it’s entirely possible we might
want to make a business decision to keep a small amount of this crap on our books if it
was already written down to near zero, but we would want all parties to be clear that no
precedent was being set for the product as a whole, etc., etc.).” 218
The second risk officer sent the email to the head of Long Beach, with the comment, “I think it
would be prudent for us to just sell all of these loans.”
2005 Early Payment Defaults. Early in 2005, a number of Long Beach loans
experienced “early payment defaults,” meaning that the borrower failed to make a payment on
the loan within three months of the loan being sold to investors. That a loan would default so
soon after origination typically indicates that there was a problem in the underwriting process.
Investors who bought EPD loans often demanded that Long Beach repurchase them, invoking
the representations and warranties clause in the loan sales agreements.
216

Subcommittee interview of Fay Chapman (2/9/2010). See also 12/21/2005 OTS memorandum, “Long Beach
Mortgage Corporation (LBMC),” OTSWMS06-007 0001010, Hearing Exhibit 4/16-31 (“In 2003, adverse internal
reviews of LBMC operations led to a decision to temporarily cease securitization activity. WMU’s Legal
Department then led a special review of all loans in LBMC’s pipeline and held-for-sale warehouse in order to ensure
file documentation adequately supported securitization representations and warranties and that WMI was not
exposed to a potentially significant contingent liability. Securitization activity was reinstated in early 2004 after the
Legal Department concluded there was not a significant liability issue.”).
217
Undated memorandum from Dave Griffith to Michelle McCarthy, “Sub Prime Chronology,” likely prepared in
early 2007, JPM_WM02095572.
218
11/24/2004 email from Michael Smith to Mark Hillis and others, “LBMC Transfer of Piggiebacks from HFS to
HFI,” JPM_WM01407692.

78
To analyze what happened, WaMu conducted a “post mortem” review of 213 Long
Beach loans that experienced first payment defaults in March, April, and May of 2005. 219 The
review found that many early defaults were not only preventable, but that in some instances
fraud should have been easily detected from the presence of “White Out” on an application or a
borrower having two different signatures:
“First Payment Defaults (FPD’s) are preventable and / or detectable in nearly all cases
(~99%)[.] Most FPD cases (60%) are failure of current control effectiveness[.] … High
incident rate of potential fraud among FPD cases[.] … All roles in the origination process
need to sharpen watch for misrepresentation and fraud[.] … Underwriting guidelines are
not consistently followed and conditions are not consistently or effectively met[.] …
Underwriters are not consistently recognizing non-arm’s length transactions and/or
underwriting associated risk effectively[.] … Credit Policy does not adequately address
certain key risk elements in layered high risk transactions[.] …
“66% of reviewed FPD cases had significant variances in the file[.] … Stated Income
should be reviewed more closely ([fraud] incidence rate of 35%) …. Signatures should
be checked – 14% Borrowers signature vary[.] Altered documents are usually detectable
–5% White-out on documentation[.] … 92% of the Purchases reviewed are 100% CLTV
[combined loan-to-value][.] … 52% are Stated Income.” 220
A subsequent review conducted by WaMu’s General Auditor of the “root causes” of the
Long Beach loans with early payment defaults pointed not only to lax lending standards and a
lack of fraud controls, but also to “a push to increase loan volume”:
“In 2004, LBMC [Long Beach] relaxed underwriting guidelines and executed loan sales
with provisions fundamentally different from previous securitizations. These changes,
coupled with breakdowns in manual underwriting processes, were the primary drivers for
the increase in repurchase volume. The shift to whole loan sales, including the EPD
provision, brought to the surface the impact of relaxed credit guidelines, breakdowns in
manual underwriting processes, and inexperienced subprime personnel. These factors,
coupled with a push to increase loan volume and the lack of an automated fraud
monitoring tool, exacerbated the deterioration in loan quality.” 221
Due to the early payment defaults, Long Beach was forced to repurchase loans totaling
nearly $837 million in unpaid principal, and incurred a net loss of about $107 million.222 This

219

11/1/2005 “LBMC Post Mortem – Early Findings Read Out,” prepared by WaMu, JPM_WM03737297, Hearing
Exhibit 4/13-9.
220
Id.
221
4/17/2006 WaMu memorandum to the Washington Mutual Inc. and WaMu Board of Directors’ Audit
Committee, “Long Beach Mortgage Company - Repurchase Reserve Root Cause Analysis,” prepared by WaMu
General Auditor, JPM_WM02533760-61, Hearing Exhibit 4/13-10.
222
Id. (Long Beach “experienced a dramatic increase in EPD’s [early payment defaults], during the third quarter of
2005 [which] … led to a large volume of required loan repurchases. The unpaid principal balance repurchased as a

79
loss overwhelmed Long Beach’s repurchase reserves, leading to a reserve shortfall of nearly $75
million.223 Due to its insufficient loss reserves, its outside auditor, Deloitte and Touche, cited
Long Beach for a serious deficiency in its financial reporting. 224 These unexpected repurchases
were significant enough that Washington Mutual Inc., Long Beach’s parent company, made
special mention of them in its 2005 10-K filing:
“In 2004 and 2005, the Company’s Long Beach Mortgage Company subsidiary engaged
in whole loan sale transactions of originated subprime loans in which it agreed to
repurchase from the investor each ‘early payment default’ loan at a price equal to the
loan’s face value plus the amount of any premium paid by the investor. An early
payment default occurs when the borrower fails to make the first post-sale payment due
on the loan by a contractually specified date. Usually when such an event occurs, the fair
value of the loan at the time of its repurchase is lower than the face value. In the fourth
quarter of 2005, the Company experienced increased incidents of repurchases of early
payment default loans sold by Long Beach Mortgage Company and this trend is expected
to continue in the first part of 2006. 225
In addition to the early payment default problem, a September 2005 WaMu audit
observed that at Long Beach, policies designed to mitigate the risk of predatory lending practices
were not always followed. The audit report stated: “In 24 of 27 (88%) of the refinance
transactions reviewed, policies established to preclude origination of loans providing no net
tangible benefit to the borrower were not followed.” 226 In addition, in 8 out of 10 of the newly
issued refinance loans that WaMu reviewed, Long Beach had not followed procedures designed
to detect “loan flipping,” an industry term used to describe the practice of unscrupulous brokers
or lenders quickly or repeatedly refinancing a borrower’s loan to reap fees and profits but
provide no benefit to the borrower. 227
2006 Purchase of Long Beach. In response to all the problems at Long Beach, at the
end of 2005, WaMu fired Long Beach’s senior management and moved the company under the
direct supervision of the President of WaMu’s Home Loans Division, David Schneider. 228
Washington Mutual promised its regulator, OTS, that Long Beach would improve. 229 The bank
also filed a formal application, requiring OTS approval, to purchase Long Beach from its parent
company, so that it would become a wholly owned subsidiary of the bank. 230 WaMu told OTS
that making Long Beach a subsidiary would give the bank greater control over Long Beach’s
result of the EPD provision for the year ended December 31, 2005 was $837.3 million. The net loss from these
repurchases was approximately $107 million.”).
223
Id.
224
Id.
225
Washington Mutual Inc. 2005 10-K filing with the SEC.
226
9/21/2005 WaMu audit of Long Beach, JPM_WM04656627.
227
Id.
228
Subcommittee interview of David Schneider (2/17/2010).
229
See, e.g., 12/21/2005 OTS memorandum, “Long Beach Mortgage Corporation (LBMC),” OTSWMS06-007
0001009, Hearing Exhibit 4/16-31.
230
Id. at OTSWMS06-007 0001009 (stating WaMu filed a 12/12/2005 application to acquire Long Beach).

80
operations and allow it to strengthen Long Beach’s lending practices and risk management, as
well as reduce funding costs and administrative expenses. 231 In addition, WaMu proposed that it
replace its current “Specialty Mortgage Finance” program, which involved purchasing subprime
loans for its portfolio primarily from Ameriquest, with a similar loan portfolio provided by Long
Beach. 232 OTS had expressed a number of concerns about Long Beach in connection with the
purchase request, 233 but in December 2005, after obtaining commitments from WaMu to
strengthen Long Beach’s lending and risk management practices, OTS agreed to the purchase. 234
The actual purchase date was March 1, 2006. 235
Immediately after the purchase, in April 2006, after reviewing Long Beach’s
operations, WaMu President Rotella sent an email to WaMu CEO Killinger warning
about the extent of the problems: “[D]elinquencies are up 140% and foreclosures close to
70%. … First payment defaults are way up and the 2005 vintage is way up relative to
previous years. It is ugly.” 236 Mr. Rotella, however, expressed hope that operations
would improve:
“Early changes by the new team from HL [Home Loans], who have deep
subprime experience, indicate a solid opportunity to mitigate some of this. I
would expect to see this emerge in 3 to 6 months. That said, much of the paper
we originated in the 05 growth spurt was low quality. … I have the utmost
confidence in the team overseeing this now and no doubt this unit will be more
productive and better controlled, but I figured you should know this is not a pretty
picture right now. We are all over it, but as we saw with repurchases, there was a
lot of junk coming in.”
Despite the new management and direct oversight by WaMu’s Home Loans Division,
Long Beach continued to perform poorly. Five months later, expected improvements had not
materialized. In September 2006, Mr. Rotella sent another email to Mr. Killinger stating that
Long Beach was still “terrible”:
“[Long Beach] is terrible, in fact negative right now. … We are being killed by the
lingering movement of EPDs [early payment defaults] and other credit related issues ….
[W]e are cleaning up a mess. Repurchases, EPDs, manual underwriting, very weak
servicing/collections practices and a weak staff. Other than that, well you get the
picture.” 237

231

Id. at OTSWMS06-007 0001010.
Id. at OTSWMS06-007 0001011.
233
See, e.g., 6/3/2005 OTS internal memorandum by OTS examiner to OTS Deputy Regional Director, at
OTSWMS06-007 0002683, Hearing Exhibit 4/16-28.
234
See 12/21/2005 OTS memorandum, “Long Beach Mortgage Corporation (LBMC),” OTSWMS06-007 0001009,
Hearing Exhibit 4/16-31.
235
“Washington Mutual Regulators Timeline,” chart prepared by the Subcommittee, Hearing Exhibit 4/16-1j.
236
4/27/2006 email from Steve Rotella to Kerry Killinger, JPM_WM05380911, Hearing Exhibit 4/13-11.
237
9/14/2006 WaMu internal email, Hearing Exhibit 4/13-12.
232

81
Again, he expressed hope that the situation would improve: “The good news is David and his
team are pros and are all over it.” 238 Two months later, in November 2006, however, the head of
WaMu Capital Markets in New York, David Beck, relayed even more bad news to Mr.
Schneider, the Home Loans President: “LBMC [Long Beach] paper is among the worst
performing in the mkt [market] in 2006.” 239
Despite the additional focus on improving its lending operations throughout 2006, Long
Beach was once again flooded with repurchase requests. According to a memorandum later
written by an FDIC examination specialist, “[d]uring 2006, more than 5,200 LBMC loans were
repurchased, totaling $875.3 million.” 240 Even though, in January 2006, the bank had ceased
executing whole loan sales which allowed an automatic repurchase in the event of an EPD, 46%
of the repurchase volume was as a result of EPDs. Further, 43% of the repurchase volume
resulted from first payment defaults (FPDs) in which the borrower missed making the first
payment on the loan after it was sold. 241 Another 10% of the repurchases resulted from
violations related to representation and warranties (R&W) not included in the EPD or FPD
numbers, meaning the violations were identified only later in the life of the loan.
R&W repurchases generally pose a challenge for a bank’s loss reserves, because the
potential liability – the repurchase request – continues for the life of the loan. The FDIC
memorandum observed:
“Management claims that R&W provisions are industry standard and indeed they may be.
However, I still found that the Mortgage Loan Purchase Agreement contains some
representations and warranties worth noting. For example, not only must the loans be
‘underwritten in accordance with the seller’s underwriting guideline,’ but the
‘origination, underwriting, and collection practices used by the seller with respect to each
mortgage loan have been in all material respects legal, proper, prudent, and customary in
the subprime mortgage business.’ This provision elevates the potential that investors can
put back a problem loan years after origination and not only must the loan have been
underwritten in line with bank guidelines but must also have been underwritten in
accordance with what is customary with other subprime lenders.” 242
R&W repurchase requests and loss reserves continued to be an issue at Long Beach. The
fourth quarter of 2006 saw another spike in R&W repurchase requests, and in December the
required amount of R&W loss reserves jumped from $18 million to $76 million.243

238

Id.
11/7/2006 WaMu internal email, Hearing Exhibit 4/13-50.
240
See 6/5/2007 memorandum by Christopher Hovik, Examination Specialist, sent to FDIC Dedicated Examiner
Steve Funaro, “WaMu – Long Beach Mortgage Company (LMC) Repurchases,” at 1, FDIC_WAMU_000012348,
Hearing Exhibit 4/13-13b.
241
Id.
242
Id.
243
Id. at 3.
239

82
On December 22, 2006, the FDIC Dedicated Examiner at WaMu, Steve Funaro, sent an
email to Mr. Schneider, the Home Loans President, raising questions about the unexpected loan
defaults and repurchase demands. He wrote that Long Beach had the “[s]ame issues as FPD last
quarter … Current forecast of 35 to 50m [million] risk.” His email also noted potentially
insufficient loss reserves related to WaMu’s own subprime conduit that purchased subprime
loans from other lenders and mortgage brokers, some of which were going out of business and
would be unable to shoulder any liability for defaulting loans. His email noted forecasts of early
payment defaults totaling $15.6 million and loan delinquencies totaling $10.7 million, in addition
to other problems, and asked: “Why the miss? … Who is accountable?” 244
Mr. Schneider forwarded the email to his team and expressed frustration at Long Beach’s
continuing problems:
“Short story is this is not good. … There is [a] growing potential issue around Long
Beach repurchases …. [W]e have a large potential risk from what appears to be a recent
increase in repurchase requests. … We are all rapidly losing credibility as a management
team.” 245
Performance in 2007 Worsens. The following year, 2007, was no better as the
performance of WaMu’s loan portfolio continued to deteriorate. WaMu’s chief risk officer, Ron
Cathcart, asked WaMu’s Corporate Credit Review team to assess the quality of Long Beach
loans and RMBS securities in light of the slowdown and decline in home prices in some areas. 246
In January 2007, he forwarded an email with the results of the review, which identified “key risk
issues” related to recent loans and described deteriorating loan performance at Long Beach. The
“top five priority issues” were:
“Appraisal deficiencies that could impact value and were not addressed[;]
Material misrepresentations relating to credit evaluation were confirmed[;]
Legal documents were missing or contained errors or discrepancies[;]
Credit evaluation or loan decision errors[; and]
Required credit documentation was insufficient or missing from the file.” 247
The review also found: “[D]eterioration was accelerating in recent vintages with each vintage
since 2002 having performed worse than the prior vintage.” Mr. Cathcart also expressed concern
that problems were not being reported to senior management. He wrote: “Long Beach
represents a real problem for WaMu. … I am concerned that Credit Review may seem to have
been standing on the sidelines while problems continue. For instance, why have Cathcart,
Schneider, Rotella and Killinger received NO report on any of this?”248

244

12/22/2006 email from Steve Funaro to David Schneider, Hearing Exhibit 4/13-13a.
12/2006 WaMu internal email, Hearing Exhibit 4/13-13a.
246
12/7/2006 email from Ron Cathcart to his colleagues, Hearing Exhibit 4/13-15.
247
1/2/2007 email from Ron Cathcart to Cory Gunderson, Hearing Exhibit 4/13-16.
248
Id.
245

83
In February 2007, WaMu senior managers discussed “how best to dispose” of $433
million in Long Beach performing second lien loans, due to “disarray” in the securitization
market. 249 David Beck, head of WaMu’s Wall Street operation, wrote that securitizing the loans
was “not a viable exit strategy” and noted:
“Investors are suffering greater than expected losses from subprime in general as well as
subprime 2nd lien transactions. As you know, they are challenging our underwriting
representations and warrants. Long Beach was able to securitize 2nd liens once in 2006
in May. We sold the BBB- bonds to investors at Libor +260. To date, that transaction
has already experienced 7% foreclosures.” 250
WaMu CEO Killinger complained privately to President Steve Rotella:
“Is this basically saying that we are going to lose 15 [percent] on over $400 million of
this product or 60 million. That is a pretty bad hit that reflects poorly on credit and others
responsibility for buying this stuff. Is this showing up in hits to compensation or
personnel changes.” 251
WaMu President Rotella responded:
“This is second lien product originated 7-10 months ago from Long Beach. … In 2006
Beck’s team started sprinkling seconds in deals as they could. And, we now have the %
down to the low single digits, so that we can sell all into our deals (assuming the market
doesn’t get even worse).”
He continued: “In terms of folks losing their jobs, the people largely responsible for bringing us
this stuff are gone, the senior management of LB.” 252
Also in February 2007, early payment defaults again ticked up. A review of the first
quarter of 2007 found: “First payment defaults (FPDs) rose to 1.96% in March but are projected
to fall back to 1.87% in April based on payments received through May 5th.” 253 It also reported
that the findings from a “deep dive into February FPDs revealed” that many of the problems
could have been eliminated had existing guidelines been followed:
“The root cause of over 70% of FPDs involved operational issues such as missed fraud
flags, underwriting errors, and condition clearing errors. This finding indicates there may
be opportunities to improve performance without further restricting underwriting
guidelines.” 254
249

2/2007 email chain among WaMu personnel, JPM_WM00673101-03, Hearing Exhibit 4/13-17.
Id. at JPM_WM00673103.
251
Id. at JPM_WM00673101.
252
Id.
253
“Quarterly Credit Risk Review SubPrime,” prepared by WaMu Home Loans Risk Management (1st Quarter,
2007), Hearing Exhibit 4/13-18.
254
Id.
250

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In June 2007, WaMu decided to discontinue Long Beach as a separate entity, and instead
placed its subprime lending operations in a new WaMu division called “Wholesale Specialty
Lending.” That division continued to purchase subprime loans and issue subprime
securitizations.
Some months later, an internal WaMu review assessed “the effectiveness of the action
plans developed and implemented by Home Loans to address” the first payment default problem
in the Wholesale Specialty Lending division. 255 After reviewing 187 FPD loans from November
2006 through March 2007, the review found:
“The overall system of credit risk management activities and process has major
weaknesses resulting in unacceptable level of credit risk. Exposure is considerable and
immediate corrective action is essential in order to limit or avoid considerable losses,
reputation damage, or financial statement errors.” 256
In particular, the review found:
“Ineffectiveness of fraud detection tools – 132 of the 187 (71%) files were reviewed …
for fraud. [The review] confirmed fraud on 115 [and 17 were] … ‘highly suspect’. ...
Credit weakness and underwriting deficiencies is a repeat finding …. 80 of the 112
(71%) stated income loans were identified for lack of reasonableness of income[.] 133
(71%) had credit evaluation or loan decision errors …. 58 (31%) had appraisal
discrepancies or issues that raised concerns that the value was not supported.” 257
July 2007 was a critical moment not only for WaMu, but also for the broader market for
mortgage securities. In that month, Moody’s and S&P downgraded the ratings of hundreds of
RMBS and CDO securities, including 40 Long Beach subprime securities. 258 The mass
downgrades caused many investors to immediately stop buying subprime RMBS securities, and
the securities plummeted in value. Wall Street firms were increasingly unable to find investors
for new subprime RMBS securitizations.
In August 2007, WaMu’s internal audit department released a lengthy audit report
criticizing Long Beach’s poor loan origination and underwriting practices. 259 By that
time, Long Beach had been rebranded as WaMu’s Wholesale Specialty Lending division,
the subprime market had collapsed, and subprime loans were no longer marketable. The
audit report nevertheless provided a detailed and negative review of its operations:

255

9/28/2007 “Wholesale Specialty Lending-FPD,” WaMu Corporate Credit Review, JPM_WM04013925, Hearing
Exhibit 4/13-21.
256
Id. at 2.
257
Id. at 3.
258
7/10/2007-7/12/2007 excerpts from Standard & Poor’s and Moody’s Downgrades, Hearing Exhibit 4/23-99.
259
8/20/2007 “Long Beach Mortgage Loan Origination & Underwriting,” WaMu audit report, JPM_WM02548939,
Hearing Exhibit 4/13-19.

85
“[T]he overall system of risk management and internal controls has deficiencies related to
multiple, critical origination and underwriting processes .… These deficiencies require
immediate effective corrective action to limit continued exposure to losses. … Repeat
Issue – Underwriting guidelines established to mitigate the risk of unsound underwriting
decisions are not always followed …. Improvements in controls designed to ensure
adherence to Exception Oversight Policy and Procedures is required …. [A]ccurate
reporting and tracking of exceptions to policy does not exist.”260
In response, Mr. Rotella wrote to WaMu’s General Auditor: “This seems to me to be the
ultimate in bayonetting the wounded, if not the dead.” 261
Subprime Lending Ends. In September 2007, with investors no longer interested in
buying subprime loans or securitizations, WaMu shut down all of its subprime operations. 262
During the prior year, which was their peak, Long Beach and WaMu had securitized $29 billion
in subprime loans; by 2007, due to the collapse of the subprime secondary market, WaMu’s
volume for the year dropped to $5.5 billion. Altogether, from 2000 to 2007, Long Beach and
WaMu had securitized at least $77 billion in subprime loans. 263
When asked about Long Beach at the Subcommittee’s hearing, all of the WaMu former
managers who testified remembered its operations as being problematic, and could not explain
why WaMu failed to strengthen its operations. Mr. Vanasek, former Chief Risk Officer, testified
that Long Beach did not have an effective risk management regime when he arrived at WaMu in
1999, and that it had not developed an effective risk management regime by the time he retired at
the end of 2005. 264 Likewise, Mr. Cathcart, who replaced Mr. Vanasek as Chief Risk Officer,
testified that Long Beach never developed effective risk management during the course of his
tenure. 265
At the April 13 Subcommittee hearing, Senator Levin asked Mr. Vanasek: “Is it fair to
say that WaMu is not particularly worried about the risk associated with Long Beach subprime
mortgages because it sold those loans and passed the risk on to investors?” Mr. Vanasek replied:
“Yes, I would say that was a fair characterization.” 266
Home Loans President David Schneider, who had direct responsibility for addressing the
problems at Long Beach, testified that he tried to improve Long Beach, but “ultimately decided
… Long Beach was an operation that we should shut down.” 267 WaMu President Steve Rotella
also acknowledged the inability of WaMu management to resolve the problems at Long Beach:
260

Id. at JPM_WM02548940-41.
8/21/2007 email from Steve Rotella to Randy Melby, JPM_WM04859837, Hearing Exhibit 4/13-20.
262
“Washington Mutual Regulators Timeline,” chart prepared by the Subcommittee, Hearing Exhibit 4/16-1j.
263
“Securitizations of Washington Mutual Subprime Home Loans,” chart prepared by the Subcommittee, Hearing
Exhibit 4/13-1c.
264
April 13, 2010 Subcommittee Hearing at 22.
265
Id.
266
Id. at 23.
267
Id. at 55.
261

86
“We did bring the volume in Long Beach down substantially every quarter starting in the
first quarter of 2006. As we went through that process, it became increasingly clear, as I
have indicated in here, that the problems in Long Beach were deep and the only way we
could address those were to continue to cut back volume and ultimately shut it down.” 268
Community Impact. Long Beach’s poor quality loans not only proved unprofitable for
many investors, they were often devastating for the borrowers and their communities. Mr.
Killinger testified at the Subcommittee hearing that WaMu, “entered the subprime business with
our purchase of Long Beach Mortgage in 1999 to better serve an underserved market.” 269 But
the unfortunate result of many Long Beach loans was that they left communities reeling from
widespread foreclosures and lost homes.
In November 2008, the Office of the Comptroller of the Currency (OCC) which oversees
all nationally chartered banks, identified the ten metropolitan areas across the United States with
the highest rates of foreclosure for subprime and Alt A mortgages originated from 2005 through
2007. 270 Those ten areas were, in order: Detroit, Cleveland, Stockton, Sacramento,
Riverside/San Bernardino, Memphis, Miami/Fort Lauderdale, Bakersfield, Denver, and Las
Vegas. The OCC then identified the lenders with the highest foreclosure rates in each of those
devastated cities. Long Beach had the worst foreclosure rate in four of those areas, and was near
the worst in five more, with the lone exception being Las Vegas. The OCC data also showed
that, overall in the ten metropolitan areas, Long Beach mortgages had the second worst
foreclosure rate of all the lenders reviewed, with over 11,700 foreclosures at the time of the
report. Only New Century was worse.

(2) WaMu Retail Lending
Washington Mutual’s problems were not confined to its subprime operations; they also
affected its retail operations. WaMu loosened underwriting standards as part of its High Risk
Lending Strategy, and received repeated criticisms from its regulators, as outlined in the next
chapter, for weak underwriting standards, risk layering, excessive loan error and exception rates,
appraisal problems, and loan fraud. In August 2007, more than a year before the collapse of the
bank, WaMu’s President Steve Rotella emailed CEO Kerry Killinger saying that, aside from
Long Beach, WaMu’s prime home loan business “was the worst managed business I had seen in
my career.” 271

(a) Inadequate Systems and Weak Oversight
One reason for WaMu’s poor lending practices was its failure to adequately monitor the
hundreds of billions of dollars of residential loans being issued each year by its own loan
268

Id. at 90.
Id. at 86.
270
11/13/2008 “Worst Ten in the Worst Ten,” document prepared by the Office of the Comptroller of the Currency,
http://www.occ.treas.gov/news-issuances/news-releases/2009/nr-occ-2009-112b.pdf, Hearing Exhibit 4/13-58.
271
8/23/2007 email from Mr. Rotella to Mr. Killinger, JPM_WM00675851, Hearing Exhibit 4/13-79.
269

87
personnel. From 1990 until 2002, WaMu acquired more than 20 new banks and mortgage
companies, including American Savings Bank, Great Western Bank, Fleet Mortgage
Corporation, Dime Bancorp, PNC Mortgage, and Long Beach. WaMu struggled to integrate
dozens of lending platforms, information technology systems, staffs, and policies, whose
inconsistencies and gaps exposed the bank to loan errors and fraud.
To address the problem, WaMu invested millions of dollars in a technology program
called Optis, which WaMu President Rotella described in the end as “a complete failure” that the
bank “had to write off” and abandon. 272 In 2004, an OTS Report of Examination (ROE), which
was given to the bank’s Board of Directors, included this observation:
“Our review disclosed that past rapid growth through acquisition and unprecedented
mortgage refinance activity placed significant operational strain on [Washington Mutual]
during the early part of the review period. Beginning in the second half of 2003, market
conditions deteriorated, and the failure of [Washington Mutual] to fully integrate past
mortgage banking acquisitions, address operational issues, and realize expectations from
certain major IT initiatives exposed the institution’s infrastructure weaknesses and began
to negatively impact operating results.” 273
The records reviewed by the Subcommittee showed that, from 2004 until its shuttering in 2008,
WaMu constantly struggled with information technology issues that limited its ability to monitor
loan errors, exception rates, and indicators of loan fraud.
From 2004 to 2008, WaMu’s regulators also repeatedly criticized WaMu’s failure to
exercise sufficient oversight of its loan personnel to reduce excessive loan error and exception
rates that allowed the issuance of loans in violation of WaMu’s credit standards. 274 In 2004,
Craig Chapman, then the President of WaMu Home Loans, visited a number of the bank’s loan
centers around the country. Lawrence Carter, then OTS Examiner-in-Charge at WaMu, spoke
with Mr. Chapman about what he found. Recalling that conversation in a later email, Mr. Carter
wrote:
“Craig has been going around the country visiting home lending and fulfillment offices.
His view is that band-aids have been used to address past issues and that there is a
fundamental absence of process.” 275
The regulators’ examination reports on WaMu indicate that its oversight efforts remained
weak. In February 2005, OTS stated that WaMu’s loan underwriting “has been an area of
272

Subcommittee interview of Steve Rotella (2/24/2010).
See 3/15/2004 OTS Report of Examination, at OTSWMS04-0000001482, Hearing Exhibit 4/16-94 [Sealed
Exhibit]. See also, e.g., 12/17/2004 email exchange among WaMu executives, “Risks/Costs to Moving GSE Share
to FH,” JPM_WM05501400, Hearing Exhibit 4/16-88 (noting that Fannie Mae “is well aware of our data integrity
issues (miscoding which results in misdeliveries, expensive and time consuming data reconciliations), and has been
exceedingly patient.”).
274
See, e.g., OTS examination reports cited in Chapter IV, below.
275
8/13/2004 email from Lawrence Carter to Michal Finn, Finn_Michael-00005331.
273

88
concern for several exams.” 276 In June 2005, OTS expressed concern about the bank’s
underwriting exceptions and policy compliance. 277 In August of the same year, the OTS Report
of Examination stated that, “the level of deficiencies, if left unchecked, could erode the credit
quality of the portfolio,” and specifically drew attention to WaMu concentrations in higher risk
loans that were a direct result of its High Risk Lending Strategy. 278 2006 was no better. OTS
repeatedly criticized the level of underwriting exceptions and errors. 279
Another problem was the weak role played by WaMu’s compliance department. In
March 2007, an OTS examiner noted that WaMu had just hired its “ninth compliance leader
since 2000,” and that its “compliance management program has suffered from a lack of steady,
consistent leadership.” The examiner added: “The Board of Directors should commission an
evaluation of why smart, successful, effective managers can’t succeed in this position. …
(HINT: It has to do with top management not buying into the importance of compliance and turf
warfare and Kerry [Killinger] not liking bad news.)” 280
Still another problem was that WaMu failed to devote sufficient resources to overseeing
the many loans it acquired from third party lenders and mortgage brokers. The 2010 Treasury
and FDIC IG report found that, from 2003 to 2007, a substantial portion of WaMu’s residential
loans – from 48% to 70% – came from third party lenders and brokers. 281 The IG report also
found:
“The financial incentive to use wholesale loan channels for production was significant.
According to an April 2006 internal presentation to the WaMu Board, it cost WaMu
about 66 percent less to close a wholesale loan ($1,809 per loan) than it did to close a
retail loan ($5,273). Thus, WaMu was able to reduce its cost of operations through the
use of third-party originators but had far less oversight over the quality of
originations.” 282
During its last five years, WaMu accepted loans from tens of thousands of third party
brokers and lenders across the country, not only through its wholesale and correspondent
channels, but also through its securitization conduits that bought Alt A and subprime loans in
bulk. Evidence gathered by the Subcommittee from OTS examination reports, WaMu internal
276

2/7/2005 OTS Letter to Washington Mutual Board of Directors on Matters Requiring Board Attention,
OTSWMEF-0000047591, Hearing Exhibit 4/16-94 [Sealed Exhibit]. See the Regulator Chapter of this Report for
more information.
277
6/3/2005 OTS Findings Memorandum, “Single Family Residential Home Loan review,” OTSWME05-004
0000392, Hearing Exhibit 4/16-26. For more information, see Chapter IV, below.
278
3/14/2005 OTS Report of Examination, OTSWMS05-004 0001794, Hearing Exhibit 4/16-94 [Sealed Exhibit].
(Examination findings were issued to WaMu on August 28, 2005.)
279
See, for example, 5/23/2006 OTS Exam Finding Memo, “Home Loan Underwriting, “ OTSWMS06-008
0001299, Hearing Exhibit 4/16-33; and 8/29/2006 OTS Report of Examination, OTSWMS06-008 0001690, Hearing
Exhibit 4/16-94 [Sealed Exhibit].
280
5/31/2007 Draft OTS Findings Memorandum, “Compliance Management Program,” Franklin_Benjamin00020408_001, Hearing Exhibit 4/16-9.
281
4/2010 IG Report, at 23, Hearing Exhibit 4/16-82.
282
Id. at 23.

89
documents, and oral testimony shows that WaMu exercised weak oversight over the thousands of
brokers submitting loans. For example, a 2003 OTS report concluded that WaMu’s “annual
review and monitoring process for wholesale mortgage brokers was inadequate, as management
did not consider key performance indicators such as delinquency rates and fraud incidents.” 283 A
2003 WaMu quality assurance review found an “error rate of 29 percent for wholesale mortgage
loans, more than triple the acceptable error rate of 8 percent established by WaMu.” 284 A 2004
OTS examination noted that 20,000 brokers and lenders had submitted loans to WaMu for
approval during the year, a volume that was “challenging to manage.” 285 A 2005 internal WaMu
investigation of two high volume loan centers in Southern California that accepted loans from
brokers found that “78% of the funded retail broker loans reviewed were found to contain
fraud.” 286 A 2006 internal WaMu inquiry into why loans purchased through its subprime
conduit were experiencing high delinquency rates found the bank had securitized broker loans
that were delinquent, not underwritten to standards, and suffering from “lower credit quality.” 287
OTS examinations in 2006 and 2007 also identified deficiencies in WaMu’s oversight
For example, a 2007 OTS memorandum found that, in 2007, Washington Mutual had
efforts.
only 14 full-time employees overseeing more than 34,000 third party brokers submitting loans to
the bank for approval, 289 which meant that each WaMu employee oversaw more than 2,400
brokers. The OTS examination not only questioned the staffing level, but also criticized the
scorecard WaMu used to rate the mortgage brokers, which did not include the rates at which
significant lending or documentation deficiencies were attributed to the broker, the rate at which
the broker’s loans were denied or produced unsaleable loans, or any indication of whether the
broker was included on industry watch lists for prior or suspected misconduct.
288

In 2006, federal regulators issued Interagency Guidance on Nontraditional Mortgage
Product Risks (NTM Guidance) providing standards on how banks “can offer nontraditional
mortgage products in a safe and sound manner.” 290 It focused, in part, on the need for banks to
“have strong systems and controls in place for establishing and maintaining relationships” with
third party lenders and brokers submitting high risk loans for approval. It instructed banks to
monitor the quality of the submitted loans to detect problems such as “early payment defaults,
incomplete documentation, and fraud.” If problems arose, the NTM Guidance directed banks to
“take immediate action”:

283

Id.
Id. at 24.
285
Id.
286
11/16/2005 “Retail Fraud Risk Overview,” prepared by WaMu Credit Risk Management, at JPM_WM02481938,
Hearing Exhibit 4/13-22b.
287
12/12/2006 WaMu Market Risk Committee Minutes, JPM_WM02095545, Hearing Exhibit 4/13-28.
288
4/2010 IG Report, at 24-25, Hearing Exhibit 4/16-82.
289
6/7/2007 OTS Asset Quality Memo 11, “Broker Credit Administration,” Hedger_Ann-00027930_001, Hearing
Exhibit 4/16-10.
290
10/4/2006 “Interagency Guidance on Nontraditional Mortgage Product Risks,” (NTM Guidance), 71 Fed. Reg.
192 at 58609.
284

90
“Oversight of third party brokers and correspondents who originate nontraditional
mortgage loans should involve monitoring the quality of originations so that they reflect
the institution’s lending standards and compliance with applicable laws and regulations.
… If appraisal, loan documentation, credit problems or consumer complaints are
discovered, the institution should take immediate action.” 291
WaMu did, at times, exercise oversight of its third party brokers. A 2006 credit review of
its subprime loans, for example, showed that Long Beach – which by then reported to the WaMu
Home Loans Division – had terminated relationships with ten brokers in 2006, primarily because
their loans had experienced high rates of first payment defaults requiring Long Beach to
repurchase them at significant expense. 292 But terminating those ten brokers was not enough to
cure the many problems with the third party loans WaMu acquired. The report also noted that, in
2006, apparently for the first time, Long Beach had introduced “collateral and broker risk” into
its underwriting process. 293
WaMu closed down its wholesale and subprime channels in 2007, and its Alt A and
subprime securitization conduits in 2008.

(b) Risk Layering
During the five-year period reviewed by the Subcommittee, from 2004 to 2008, WaMu
issued many loans with multiple higher risk features, a practice known as “risk layering.” At the
April 13 Subcommittee hearing, Mr. Vanasek, its Chief Risk Officer from 2004 to 2005, testified
about the dangers of this practice:
“It was the layering of risk brought about by these incremental changes that so altered the
underlying credit quality of mortgage lending which became painfully evident once
housing prices peaked and began to decline. Some may characterize the events that took
place as a ‘perfect storm,’ but I would describe it as an inevitable consequence of
consistently adding risk to the portfolio in a period of inflated housing price
appreciation.” 294
Stated Income Loans. One common risk layering practice at WaMu was to allow
borrowers to “state” the amount of their annual income in their loan applications without any
direct documentation or verification by the bank. Data compiled by the Treasury and the FDIC
IG report showed that, by the end of 2007, 50% of WaMu’s subprime loans, 73% of its Option
ARMs, and 90% of its home equity loans were stated income loans. 295 The bank’s acceptance of
unverified income information came on top of its use of loans with other high risk features, such
291

Id. at 58615.
12/2006 “Home Loans – SubPrime Quarterly Credit Risk Review,” JPM_WM04107374, Hearing Exhibit 4/1314.
293
Id. at JPM_WM04107375.
294
April 13, 2010 Subcommittee Hearing at 16.
295
4/2010 IG Report, at 10, Hearing Exhibit 4/16-82.
292

91
as borrowers with low credit scores or the use of low initial teaser interest rates followed by
much higher rates.
Stated income loans were originally developed to assist self employed individuals that
had good credit and high net worth to obtain loans they could afford. But from 2004 to 2008,
stated income loans became much more widespread, including with respect to a wide variety of
high risk loans. 296 Mr. Cathcart testified at the Subcommittee hearing:
“[Stated income loans] originated as a product for self-employed individuals who didn’t
have pay stubs and whose financial statements didn’t necessarily reflect what they made.
It was intended to be available for only the most creditworthy borrowers and it was
supposed to be tested for reasonableness so that a person who said that they were a waiter
or a lower-paid individual couldn’t say that they had an income of $100,000.
“I think that the standards eroded over time. At least I have become aware, reading all
that has happened … standards eroded over time and that it became a competitive tool
that was used by banks to gather business, so that if a loan consultant could send his loan
to Bank A or Bank B, the consultant would say, well, why don’t you go to Bank B? You
don’t have to state your income.
“I do think, thinking it through, that there was a certain amount of coaxing that was
possible between the loan consultant and the individual, which would be something
which would be invisible to a bank that received the application and the only test for that
would be reasonableness, which as you have heard there were some issues within the
portfolio.” 297
WaMu required its loan personnel to determine whether a loan applicant’s stated income
was reasonable, but evidence obtained by the Subcommittee indicates that requirement was not
effectively implemented. A 2008 press report about a WaMu stated income loan is illustrative:
“As a supervisor at a Washington Mutual mortgage processing center, John D. Parsons
was accustomed to seeing baby sitters claiming salaries worthy of college presidents, and
schoolteachers with incomes rivaling stockbrokers. He rarely questioned them. A real
estate frenzy was under way and WaMu, as his bank was known, was all about saying
yes.
“Yet even by WaMu’s relaxed standards, one mortgage four years ago raised eyebrows.
The borrower was claiming a six-figure income and an unusual profession: mariachi
singer.
296

See, e.g., NTM Guidance at 58614 (“Institutions increasingly rely on reduced documentation, particularly
unverified income, to qualify borrowers for nontraditional mortgage loans.”). The NTM Guidance directed banks to
use stated income loans “with caution,” but did not prohibit them or even issue guidance limiting their use. Id. at
58611.
297
April 13, 2010 Subcommittee Hearing at 41.

92
“Mr. Parsons could not verify the singer’s income, so he had him photographed in front
of his home dressed in his mariachi outfit. The photo went into a WaMu file.
Approved.” 298
Instead of verifying borrower income, WaMu loan personnel apparently focused instead
on borrower credit scores, as a proxy measure of a borrower’s creditworthiness. The problem
with this approach, however, was that a person could have a high credit score – reflecting the
fact that they paid their bills on time – and still have an income that was insufficient to support
the mortgage amount being requested.
High LTV Ratios. A second risk-layering practice at WaMu involved loan-to-value
(LTV) ratios. LTV ratios are a critical risk management tool, because they compare the loan
amount to the estimated dollar value of the property. If an LTV ratio is too high and the
borrower defaults, the sale of the property may not produce sufficient proceeds to pay off the
loan. In interagency guidance, federal banking regulators noted that banks should generally
avoid issuing loans with LTV ratios over 80%, and directed banks to ensure that loans with LTV
ratios of 90% or more have additional credit support such as mortgage insurance or added
collateral. 299 The Treasury and the FDIC IG report found that WaMu held a “significant
percentage” of home loans in which the LTV ratios exceeded 80%. 300
These loans were the result of explicit WaMu policies allowing high LTV ratios to be
used in loans that already had other high risk features. In February 2005, for example, WaMu set
up automated loan approval parameters to approve loans with a 90% LTV in Option ARM and
interest-only loans providing financing of up to $1 million.301 Still another layer of risk was
added to these loans by permitting the borrowers to have credit scores as low as 620.
The Treasury and the FDIC IG report determined that 44% of WaMu’s subprime loans
and 35% of its home equity loans had LTV ratios in excess of 80%. 302 These loans resulted in
part from a 2006 WaMu decision to combine home equity loans bearing high LTV ratios with
borrowers bearing low credit scores. That initiative was discussed in a June 2006 email sent to
Mr. Rotella, after he inquired about the project. He was informed:

298

“Saying Yes, WaMu Built Empire on Shaky Loans,” New York Times (12/27/08). When asked about this press
report, WaMu told the Subcommittee that it had no record of this loan, but could not deny that the incident took
place as reported. See also, in the following subsection, a WaMu loan issued to a “Sign Designer” who claimed
earnings of $34,000 per month.
299
See 10/8/1999 “Interagency Guidance on High LTV Residential Real Estate Lending,”
http://www.federalreserve.gov/boarddocs/srletters/1993/SR9301.htm.
300
4/2010 IG Report, at 10, Hearing Exhibit 4/16-82.
301
2/2005 email chain between Timothy Bates, Tony Meola, Mr. Rotella and others, JPM_WM00616783-84.
302
4/2010 IG Report, at 10, Hearing Exhibit 4/16-82. See also 3/1/2007 Washington Mutual Inc. 10-K filing with
the SEC, at 52 (showing that, as of 12/31/2006, WaMu held $7.4 billion in home mortgages without private
mortgage insurance or government guarantees with LTV ratios in excess of 80%, and $15 billion in home equity
loans and lines of credit with LTV ratios in excess of 80%).

93
“$4 billion home equity investment program [was] approved … last Friday. High CLTVs
[Combined Loan-to-Value ratios] (up to 100%) and lower FICOs (down to 600)
permitted with some concentration limits.” 303
In order to issue these loans as soon as possible in 2006, WaMu set up an underwriting team to
provide “manual” approvals outside of its automated systems:
“Our team is currently focused on several HE [Home Equity] modeling initiatives to
include higher risk lending …. [W]e are adjusting our decision engine rules for a July
roll out to allow for 580-620 [FICO scores] and LT 80% CLTV [combined loan-to-value]
loans to be referred to a manual ‘sub-prime’ underwriting team that we are putting in
place. … [W]e see this 580-620 segment as the biggest opportunity where we aren’t
lending today.” 304
Also in 2006, WaMu began issuing so-called “80/20 loans,” in which a package of two
loans are issued together, imposing an 80% LTV first lien and a 20% LTV second lien on the
property, for a total combined LTV (CLTV) of 100%. 305 Loans that provide financing for 100%
of a property’s value are extremely high risk, because the borrower has no equity in the property,
the borrower can stop payments on the loan without losing a personal investment, and a
subsequent home sale may not produce sufficient funds to pay off the debt. 306 Yet in 2006,
Home Loans Division President David Schneider approved issuing 80/20 loans despite the risk
and despite the fact that WaMu’s automatic underwriting system was not equipped to accept
them, and loan officers initially had to use a manual system to issue the loans. 307
Using Low Interest Rates to Qualify Borrowers. A third risk layering practice at
WaMu was allowing loan officers to qualify prospective borrowers for short term hybrid ARMs
or Option ARMs based upon only the initial low rate and not the higher interest rate that would
take effect later on. In a filing with the SEC, for example, Washington Mutual Inc. wrote that its
“underwriting guidelines” allowed “borrowers with hybrid adjustable-rate home loans … where
the initial interest rate is fixed for 2 to 5 years” to be “qualified at the payment associated with
the fixed interest rate charged in the initial contractual period.” 308 In addition, in 2005, WaMu
personnel informed OTS that, since 2004, the bank had not been qualifying its Option ARM
303

6/13/2006 email from Cheryl Feltgen to David Schneider who forwarded it to Steve Rotella,
JPM_WM01311922-23.
304
6/14/2006 email from Mark Hillis to Cheryl Feltgen, included in a longer email chain involving Mr. Rotella and
Mr. Schneider, among others, JPM_WM01311922.
305
See, e.g., 6/2006 email chain between Mr. Rotella, Mr. Schneider, Mr. Hillis, and Ms. Feltgen,
JPM_WM01311922-23.
306
See NTM Guidance at 58614. See also SEC v. Mozilo, Case No. CV09-03994 (USDC CD Calif.), Complaint
(June 4, 2009), at ¶ 50 (quoting an email by Countrywide CEO Angelo Mozilo who, when discussing the 80/20
loans being issued by his bank, wrote: “In all my years in the business I have never seen a more toxic pr[o]duct.”).
307
Id.; Subcommittee interview of Cheryl Feltgen (2/6/2010). 2/2006 WaMu internal email chain, “FW: 80/20,”
JPM_WM03960778. See also 3/19/2007 email from Ron Cathcart to David Schneider, JPM_WM02571598,
Hearing Exhibit 4/16-75 (indicating WaMu issued loans with CLTVs in excess of 95% until ending the practice in
March 2007).
308
See 3/1/2007 Washington Mutual Inc. 10-K filing with the SEC at 56.

94
borrowers using the “fully indexed rate.” 309 Instead, WaMu was using a lower “administrative”
rate that was “significantly less than the fully indexed rate.” 310
Borrowers, loan officers, and WaMu executives often assumed that hybrid and Option
ARMs could be refinanced before the payments reset to higher levels – an expectation that
eventually proved to be unfounded. In a November 30, 2007 email discussing loan
modifications from Mr. Schneider to Mr. Killinger, Mr. Rotella and other senior executives, Mr.
Schneider described WaMu’s faulty assumptions about the “start rate” and life span of these
loans:
“I also think it is clear that the economic benefit of providing modifications for these
borrowers is compelling for the following reasons:
- None of these borrowers ever expected that they would have to pay at a rate
greater than the start rate. In fact, for the most part they were qualified at the start
rate
- We need to provide incentive to these borrowers to maintain the home –
especially if the home value has declined
- When we booked these loans, we anticipated an average life of 2 years and
never really anticipated the rate adjustments ….” 311
Qualifying borrowers using the lower initial interest rate enabled banks to qualify more
borrowers for those loans and enabled them to issue loans for larger amounts. Concerned that
more banks were beginning to use this risky practice, federal banking regulators addressed it in
the October 2006 NTM Guidance, which cautioned banks to use the fully indexed rate when
qualifying borrowers for a loan, including loans with lower initial teaser rates. 312 In addition, the
Guidance provided that for negatively amortizing loans, banks should consider not only the
“initial loan amount” but also “any balance increase that may accrue from the negative
amortization provision.” 313 After the NTM Guidance was issued, a WaMu analyst calculated
that applying the new requirement to all of its loans would cause a 33% drop in its loan volume
due to borrowers who would no longer qualify for its loans:
“Implementing the NTM change for Purchase only drops additional 2.5% of volume …
If we implement the NTM changes to all loans, then we’ll see additional drop of 33% of
volume.” 314

309

9/15/2005 email from Darrel Dochow to OTS Examiner-In-Charge at WaMu, OTSWMS05-002 0000537,
Hearing Exhibit 4/16-6. The “fully indexed rate” is the prevailing interest rate in the published index to which an
adjustable rate mortgage is tied, plus the additional percentage points that the lender adds to the index value to
calculate the loan’s interest rate. See NTM Guidance at 58614, n.5.
310
Id.
311
11/30/2007 email from David Schneider to John McMurray, Kerry Killinger and others, JPM_WM05382127-28.
312
NTM Guidance at 58614.
313
Id.
314
3/19/2007 email from Ron Cathcart to David Schneider, JPM_WM02571598, Hearing Exhibit 4/16-75.

95
In response to this information, WaMu’s chief risk officer wrote that the impact on the bank
“argues in favor of holding off on implementation until required to act for public relations … or
regulatory reasons.”
Because OTS gave the bank more than six months to come into compliance with the
NTM Guidance, WaMu continued qualifying high risk borrowers using the lower interest rate,
originating billions of dollars in new loans that would later suffer significant losses.
WaMu’s risk-layering practices went beyond its use of stated income loans, high LTV
ratios, and the qualification of borrowers using low initial interest rates. The bank also allowed
its loan officers to issue large volumes of high risk loans to borrowers who did not occupy the
homes they were purchasing or had large debt-to-income ratios. 315 On top of those risks, WaMu
concentrated its loans in a small number of states, especially California and Florida, increasing
the risk that a downturn in those states would have a disproportionate impact upon the
delinquency rates of its already high risk loans.
At one point in 2004, Mr. Vanasek made a direct appeal to WaMu CEO Killinger, urging
him to scale back the high risk lending practices that were beginning to dominate not only
WaMu, but the U.S. mortgage market as a whole. Despite his efforts, he received no response:
“As the market deteriorated, in 2004, I went to the Chairman and CEO with a proposal
and a very strong personal appeal to publish a full-page ad in the Wall Street Journal
disavowing many of the then-current industry underwriting practices, such as 100 percent
loan-to-value subprime loans, and thereby adopt what I termed responsible lending
practices. I acknowledged that in so doing the company would give up a degree of
market share and lose some of the originators to the competition, but I believed that
Washington Mutual needed to take an industry-leading position against deteriorating
underwriting standards and products that were not in the best interests of the industry, the
bank, or the consumers. There was, unfortunately, never any further discussion or
response to the recommendation.” 316

(c) Loan Fraud
Perhaps the clearest evidence of WaMu’s shoddy lending practices came when senior
management was informed of loans containing fraudulent information, but then did little to stop
the fraud.

315

See, e.g., OTS document, “Hybrid ARM Lending Survey” (regarding WaMu), undated but the OTS Examiner-inCharge estimated it was prepared in March or mid-2007, JPM_WM03190673 (“For Subprime currently up to 100%
LTV/CLTV with 50% DTI is allowed for full Doc depending on FICO score. Up to 95% LTV/CLTV is allowed
with 50% DTI for Stated Doc depending on FICO score. … For No Income Verification, No Income No Ratio, and
No Income No Asset only up to 95% LTV/CLTV is allowed.”).
316
April 13, 2010 Subcommittee Hearing at 17.

96
Downey and Montebello Fraud Investigations. The most significant example involves
an internal WaMu investigation that, in 2005, uncovered substantial evidence of loan fraud
involving two top producing loan offices in Southern California. WaMu management was
presented with the findings, but failed to respond, leading to the same fraud allegations erupting
again in 2007. According to the WaMu Home Loans Credit Risk Mitigation Team that
conducted the 2005 internal investigation, it was initiated in response to “a sustained history of
confirmed fraud findings over the past three years” involving the two offices, known as Downey
and Montebello. 317 Each office was located in a low-income area of Los Angeles and headed by
a loan officer who had won repeated WaMu awards for high volume loan production.
To conduct its inquiry, the WaMu Risk Mitigation Team reviewed all of the loans
produced by the two offices over a two-month period from August to September 2005, which
totaled 751 loans. Analysts scored the loans using a standard electronic fraud detection program,
and then reviewed all of the loans flagged for possible fraud, as well as ten percent of the
remaining loans. 318 A November 2005 memorandum summarizing the review stated that it
found an “extensive level of loan fraud” caused primarily by employees “circumventing” bank
policies:
“[A]n extensive level of loan fraud exists in the Emerging Markets [loan processing
centers], virtually all of it stemming from employees in these areas circumventing bank
policy surrounding loan verification and review. Of the 129 detailed loan review[s] …
conducted to date, 42% of the loans reviewed contained suspect activity or fraud,
virtually all of it attributable to some sort of employee malfeasance or failure to execute
company policy. In terms of employee activity enabling this perpetration of fraud, the
following categories of activity appeared most frequently: inconsistent application of
credit policy, errors or negligence, process design flaws, intentional circumvention of
established processes, and overriding automated decisioning recommendations. …
Based on the consistent and pervasive pattern of activity among these employees, we are
recommending firm action be taken to address these particular willful behaviors on the
part of the employees named.” 319
A presentation prepared for WaMu management provided additional detail. 320 It stated
that, out of the 751 loans produced, the Risk Mitigation Team had selected 180 loans for detailed
review, of which 129 had been completed. 321 It stated that 42% of the reviewed loans had
“contained excessive levels of fraud related to loan qualifying data.” 322 It also stated that the
fraud findings did not differ between loans originated by WaMu’s own loan officers and loans

317

11/17/2005 WaMu internal memorandum, “So. CA Emerging Markets Targeted Loan Review Results,”
JPM_WM01083051, Hearing Exhibit 4/13-22a.
318
Id.
319
Id.
320
11/16/2005 “Retail Fraud Risk Overview,” prepared by Credit Risk Management, JPM_WM02481934, Hearing
Exhibit 4/13-22b.
321
Id. at JPM_WM02481940.
322
Id. at JPM_WM02481936.

97
originated by third party brokers and brought to the loan centers. 323 The presentation also stated
that the fraud uncovered by the review was found to be “preventable with improved processes
and controls.”
The presentation indicated that the loan fraud involved primarily “misrepresentation of
loan qualifying data,” including misrepresentations of income and employment, false credit
letters and appraisal issues. 324 The presentation included a few examples of misrepresentations,
including:
“Loan #0694256827[:] Misrepresentation [of] the borrower’s identification and
qualifying information were confirmed in every aspect of this file, including: – Income –
SSN – Assets – Alternative credit reference letters – Possible Strawbuyer or Fictitious
borrower[.] The credit package was found to be completely fabricated. Throughout the
process, red flags were over-looked, process requirements were waived, and exceptions
to policy were granted.” 325
The presentation noted that the loan delinquency rate for Luis Fragoso, the loan officer
heading the Montebello loan office, was “289% worse than the delinquency performance for the
entire open/active retail channel book of business,” while the delinquency rate for Thomas
Ramirez, the loan officer heading the Downey loan office was 157% worse. 326 The message
from the Risk Mitigation Team was clear that the two head loan officers were willfully flouting
bank policy, issuing poor quality loans, and needed to be the subject of “firm action” by the
bank.
Three months prior to its formal presentation on the fraud, the Risk Mitigation Team
supplied a lengthy email with its fraud findings to colleagues in the credit risk department. The
August 2005 email provided spreadsheets containing data collected on the loans from the two
offices as well as figures about the types of loans reviewed and fraud found. 327 Among other
information, it indicated that at the Downey office, 83 loans had been reviewed, including 28
originated by the WaMu loan officer Thomas Ramirez, and 54 submitted to him by third party
brokers; while at the Montebello office, 48 loans had been reviewed, including 19 originated by
the WaMu loan officer Luis Fragoso and 29 submitted to him by third party brokers. The email
was forwarded by a credit risk officer to WaMu’s Chief Risk Officer Jim Vanasek, with the
following comment:
“As you requested in our Enterprise Fraud Committee meeting last Friday, the attached
email contains a high-level summary of the investigations the Home Loans Risk Mit team
has conducted on [the two offices] over the past year and a half, based on loans that were
referred to them. … As you can see, among the referred cases there is an extremely high
323

Id. at JPM_WM02481936.
Id. at JPM_WM02481938.
325
Id. at JPM_WM02481943.
326
Id. at JPM_WM02481948.
327
8/29/2005 email from Jill Simons to Tim Bates, JPM_WM04026076-77, Hearing Exhibit 4/13-23b.
324

98
incidence of confirmed fraud (58% for Ramirez, 83% for Fragoso) …. [Additional
analysis] will allow us to substantially validate what we suspect, which is that the
incidence of fraud in this area is greater than with other producers.” 328
At the Subcommittee hearing, Mr. Vanasek agreed these were “eye popping” rates of fraud. 329
On November 18, 2005, Cheryl Feltgen, the Home Loans Chief Credit Officer, “had a
very quick meeting” with Home Loans President David Schneider, the head of Home Loans
sales, Tony Meola, and others in which she reviewed the memorandum and presentation on the
fraud investigation. 330 After the meeting, she sent an email to the Risk Mitigation Team stating:
“The good news is that people are taking this very seriously. They requested some additional
information that will aid in making some decisions on the right course of action.” 331 She asked
the Risk Mitigation Team to prepare a new spreadsheet with the loan information, which the
team did over the weekend in anticipation of a Monday meeting.
The trail of documentation in 2005 about the fraud investigation ends there. Despite the
year-long effort put into the investigation, the written materials prepared, the meetings held, and
fraud rates in excess of 58% and 83% at the Downey and Montebello offices, no discernable
actions were taken by WaMu management to address the fraud problem in those two offices. No
one was fired or disciplined for routinely violating bank policy, no anti-fraud program was
installed, no notice of the problem was sent to the bank’s regulators, and no investors who
purchased RMBS securities containing loans from those offices were alerted to the fraud
problem underlying their high delinquency rates. Mr. Vanasek retired from the bank in
December 2005, and the new Chief Risk Officer Ron Cathcart was never told about the fraud
investigation. Senior personnel, including Mr. Schneider, Mr. Meola, and Ms. Feltgen, failed to
follow up on the matter.
Over the next two years, the Downey and Montebello head loan officers, Messrs.
Ramirez and Fragoso, continued to issue high volumes of loans 332 and continued to win awards
for their loan productivity, including winning trips to Hawaii as members of WaMu’s
“President’s Club.” One of the loan officers even suggested to bank President Steve Rotella
ways to further relax bank lending standards. 333
In June 2007, however, the fraud problem erupted again. That month, AIG, which
provided mortgage insurance for some of WaMu’s residential mortgages, contacted the bank
with concerns about material misrepresentations and fraudulent documents included in

328

8/30/2005 email from Tim Bates to Jim Vanasek and others, JPM_WM04026075, Hearing Exhibit 4/13-23b.
April 13, 2010 Subcommittee Hearing at 28.
330
11/18/2005 email from Cheryl Feltgen to Nancy Gonseth on the Risk Mitigation Team and Tim Bates,
JPM_WM03535695, Hearing Exhibit 4/13-23a.
331
Id.
332
At the Subcommittee’s hearing, Mr. Vanasek testified that as much as $1 billion in loans originated out of these
two offices per year. April 13, 2010 Subcommittee Hearing at 27.
333
See, e.g., 3/2006 WaMu email chain, JPM_WM03985880-83.
329

99
mortgages being issued by Mr. Fragoso, the loan officer heading the Montebello office. 334 When
no one responded to its concerns, in September 2007, AIG filed a Suspected Fraud Claim with
the California Department of Insurance which, in turn, notified OTS of the problem. 335 The OTS
Examiner-in-Charge at WaMu at the time, Benjamin Franklin, asked the bank to conduct an
investigation into the matter. 336 WaMu’s legal department asked the WaMu Corporate Fraud
Investigation (CFI) group and the Audit department to conduct a joint inquiry.
Seven months later, in April 2008, CFI and the Audit department issued a 12-page
memorandum with their findings. 337 The memorandum not only confirmed the presence of fraud
in the Montebello office, citing a loan file review that found a fraud rate of 62%, it also
uncovered the 2005 investigation that had identified the problem two years earlier, but was
ignored by management. The 2008 memorandum stated:
“In 2005, HL [Home Loans] Risk Mitigation provided Senior HL Management with an
assessment of fraud and loan performance in the Retail Broker Program and two
Southern California Emerging Markets [loan centers] for the period of September 2003
through August 2005. This assessment identified excessive levels of fraud related to loan
qualifying data …. It also highlighted the Downey and Montebello [loan centers] as the
primary contributors of these fraudulent loan documents based upon volume and
articulated strategies to mitigate fraud. The report also stated that delinquency
performance on these [loan centers] … were significantly worse that the delinquency
performance for the entire open/active retail channel book of business. In 2007, HL Risk
Mitigation mirrored their 2005 review with a smaller sample of loans and found that, for
the September and October 2007 sampled time period, the volume of misrepresentation
and suspected loan fraud continued to be high for this [loan center] (62% of the sampled
loans).” 338
Examples of fraudulent loan information uncovered in the 2007 review included falsified income
documents, unreasonable income for the stated profession, false residency claims, inflated
appraisal values, failure of the loan to meet bank guidelines, suspect social security numbers,
misrepresented assets, and falsified credit information. 339
The memorandum found that, in 2005, the WaMu Risk Mitigation Team had reported its
findings to several WaMu managers whom it “felt were very aware of high volumes of fraud” in
the loans issued by the two loan officers. 340 The memorandum reported that one individual
believed that David Schneider “was made aware of these findings” and wanted Risk Mitigation
334

4/4/2008 WaMu Memorandum of Results, “AIG/UG and OTS Allegation of Loan Frauds Originated by [name
redacted],” at 1, Hearing Exhibit 4/13-24.
335
Id.
336
Subcommittee interview of Benjamin Franklin (2/18/2010).
337
4/4/2008 WaMu Memorandum of Results, “AIG/UG and OTS Allegation of Loan Frauds Originated by [name
redacted],” at 1, Hearing Exhibit 4/13-24.
338
Id. at 2.
339
Id. at 3.
340
Id. at 7.

100
to “monitor the situation.” 341 But no one knew “of additional monitoring that was done, or
efforts to bring additional attention to” the fraudulent loans from the Downey and Montebello
offices. The memorandum also noted that no personnel action had been taken against either of
the loan officers heading the two offices. 342 David Schneider was interviewed and “recalled
little about the 2005 fraud findings or actions taken to address them.” 343 He “thought the matter
was handled or resolved.” The WaMu memorandum concluded:
“Outside of training sessions … in late 2005, there was little evidence that any of the
recommended strategies were followed or that recommendations were operationalized.
There were no targeted reviews conducted … on the Downey or Montebello loan
portfolios between 2005 and the actions taken in December 2007.” 344
After the memorandum was issued, WaMu initially resisted providing a copy to OTS,
claiming it was protected by attorney-client privilege. 345 The OTS Examiner-in-Charge
Benjamin Franklin told the Subcommittee that he insisted on seeing the memorandum. After
finally receiving it and reading about the substantial loan fraud occurring at the two loan offices
since 2005, he told the Subcommittee that it was “the last straw” that ended his confidence that
he could rely on WaMu to combat fraudulent practices within its own ranks.
The 2008 WaMu memorandum and a subsequent OTS examination memorandum 346
included a number of recommendations to address the fraud problem at the Downey and
Montebello offices. The recommendations in the WaMu memorandum included actions to
“[d]etermine appropriate disciplinary actions for employees”; “[e]nhance Code of Conduct
training to stress each employee’s role as a corporate steward and the consequences for passively
facilitating the placement of loans into the origination process that could be suspect”; enhance
WaMu compensation incentives “to support loan quality”; and determine if further analysis was
required of the loans originated by the Montebello office or “the broader loan population (bank
owned and securitized)” including “if actions are needed to address put backs or sales to
investors of loans that contain misrepresentation[s] or other fraud findings.” 347
By the time WaMu issued the April 2008 memorandum on the Downey and Montebello
fraud problem, however, the bank was already experiencing serious liquidity problems and was
cutting back on its loan operations and personnel. On April 30, 2008, WaMu put an end to its
wholesale loan channel which had accepted loans from third party mortgage brokers, closed 186

341

Id.
Id.
343
Id. at 8.
344
Id. at 9.
345
Subcommittee interview of Benjamin Franklin (2/18/2010).
346
1/7/2008 OTS Asset Quality Memo 22, “Loan Fraud Investigation,” JPM_WM02448184, Hearing Exhibit 4/1325.
347
4/4/2008 WaMu Memorandum of Results, “AIG/UG and OTS Allegation of Loan Frauds Originated by [name
redacted],” at 4, Hearing Exhibit 4/13-24.
342

101
stand-alone loan centers, and reduced its workforce by 3,000. 348 The Downey and Montebello
offices were closed as part of that larger effort. The two loan officers heading those offices left
the bank and found other jobs in the mortgage industry that involve making loans to borrowers.
Other Fraud Problems. The loan fraud problems at the Downey and Montebello offices
were not the only fraud problems plaguing WaMu. The Subcommittee uncovered three
additional examples that demonstrate the problem was not isolated.
The first example involves the Westlake Village loan office outside of Los Angeles. On
April 1, 2008, WaMu’s Risk Mitigation Team sent 13 home loans with early payment defaults to
the WaMu Corporate Fraud Investigations (CFI) group for further examination. 349 All 13, whose
unpaid loan balances totaled about $14.3 million, had been issued in 2007, by the Westlake
Village loan office which was one of WaMu’s top loan producers. Two loan officers, Chris
O’Brien and Brian Minkow, who worked in tandem, had won multiple awards for their loan
production and had a team of 14 sales associates assisting them. 350 CFI reviewed the referred
loans which contained a variety of fraud indicators, including “fabricated asset statements,
altered statements, income misrepresentation and one altered statement that is believed to have
been used in two separate loans.” 351 CFI then interviewed the loan officers, sales associates, and
personnel at the WaMu “loan fulfillment center” (LFC) that processed Westlake Village loan
applications.
In one egregious example of document “manufacturing,” a sales associate confessed that
if “it was too late to call the borrower,” the “sales associates would take [bank] statements from
other [loan] files and cut and paste the current borrower’s name and address” onto the old bank
statements. 352 The same sales associate “admitted that during that crunch time some of the
Associates would ‘manufacture’ asset statements from previous loan docs,” because end-ofmonth loans would often get funded without full documentation. The pressure to get the
necessary documentation was “tremendous” and they had been told to get the loans funded “with
whatever it took.” 353
The LFC loan processor in charge of handling Westlake Village’s loan applications was
fired, as was the sales associate who confessed to manufacturing false documents. The rest of
the employees were also let go, when the office itself was closed on April 30, 2008, in
348

Subcommittee interview of Brian Minkow (2/16/2010); 5/27/2008 “Internal Investigative Report” on Westlake
Home Loan Center, JPM_WM03171384, Hearing Exhibit 4/13-31. See also “Washington Mutual Exits Wholesale
Lending Business, Will Close Home-Loan Centers,” Mercury News, 4/7/2008,
http://blogs.mercurynews.com/realestate/2008/04/07/washington-mutual-exits-wholesale-lending-business-willclose-home-loan-centers.
349
5/12/2008 “WaMu Significant Incident Notification (SIN),” JPM_WM05452386, Hearing Exhibit 4/13-30.
350
Subcommittee interview of Brian Minkow (2/16/2010). See also 2005 “President’s Club 2005 - Maui, Awards
Night Show Script,” Washington Mutual, Home Loans Group, Hearing Exhibit 4/13-63a (stating Mr. O’Brien and
Mr. Minkow had produced $1.2 billion in loans in 2005).
351
Id.
352
5/27/2008 “Internal Investigative Report” on Westlake Home Loan Center, JPM_WM03171384, Hearing Exhibit
4/13-31.
353
5/12/2008 “WaMu Significant Incident Notification (SIN),” JPM_WM05452386, Hearing Exhibit 4/13-30.

102
connection with WaMu’s reorganization and downsizing. One of the loan officers who headed
the office told the Subcommittee, however, that he had been offered another job within the bank,
but declined it due to lower compensation. 354 He went on to work in the mortgage industry
arranging residential loans.
The second example involves 25 Home Equity Lines of Credit (HELOCs) totaling $8.5
million that were originated in 2008 by a WaMu loan officer at the Sunnyvale loan office in
California. Before all of the loans were funded, they were referred to the Risk Mitigation Team
because of fraud indicators. On May 1, 2008, the loan files were sent on to the CFI group for
further inquiry. An internal document summarizing the CFI investigation stated:
“The review found that the borrowers indicated they owned the property free and clear
when in fact existing liens were noted on the properties. The properties are located in
California, Arizona and Washington. … WaMu used … Abbreviated Title reports [that]
… do not provide existing lien information on the subject property.” 355
Of the 25 loan applications, 22 were ultimately terminated or declined. The employee involved
in originating the loans was terminated as part of the April 30, 2008 reorganization.
The third example involves a review of 2006 and 2007 WaMu loans conducted by Radian
Guaranty Inc., a company which provided mortgage insurance for those loans. 356 Radian’s
objectives were to test WaMu’s “compliance with Radian’s underwriting guidelines and eligible
loan criteria,” assess the quality of WaMu’s underwriting decisions, “rate the risk of the
individual loans insured,” and identify any errors in the loan data transmitted to Radian. 357 The
review looked at a random selection of 133 loans and found enough problems to give WaMu an
overall rating of “unacceptable.” 358
The Radian review identified a number of problems in the loan files it deemed ineligible
for insurance. In one, WaMu issued a $484,500 loan to a “Sign Designer” who claimed to be
making $34,000 in income every month. 359 The Radian review observed: “Borrower’s stated
monthly income of $34,000 does not appear reasonable for a ‘Sign Designer.’” The review also
noted several high risk elements in the loan, which was an 85% LTV loan given to a borrower
with a 689 credit score who used the loan to refinance an existing loan and “cash-out” the equity
in the house. The review noted that the borrower received $203,000 at the loan closing. In
addition, the review stated that WaMu had appraised the house at $575,000, but an automated
appraisal verification program assigned the house a probable value of only $321,000, less than
the amount of the loan.

354

Subcommittee interview of Brian Minkow (2/16/2010).
5/15/2008 “WaMu Significant Incident Notification (SIN),” JPM_WM05452389, Hearing Exhibit 4/13-32b.
356
2/7/2008 Radian Guaranty Inc. review of Washington Mutual Bank loans, JPM_WM02057526, Hearing Exhibit
4/13-33.
357
Id. at 1.
358
Id.
359
Id. at 5.
355

103
Extent of Fraud. At the Subcommittee hearing, when asked about these matters, Mr.
Vanasek, WaMu’s Chief Risk Officer from 2004 to 2005, attributed the loan fraud to
compensation incentives that rewarded loan personnel and mortgage brokers according to the
volume of loans they processed rather than the quality of the loans they produced:
“Because of the compensation systems rewarding volume versus quality and the
independent structure of the originators, I am confident at times borrowers were coached
to fill out applications with overstated incomes or net worth to meet the minimum
underwriting requirements. Catching this kind of fraud was difficult at best and required
the support of line management. Not surprisingly, loan originators constantly threatened
to quit and to go to Countrywide or elsewhere if the loan applications were not
approved.” 360
When asked by Senator Coburn if he thought the type of fraud at the Downey and Montebello
loan offices extended beyond those two offices, Mr. Vanasek replied: “Yes, Senator.” 361
Another sobering internal WaMu report, issued in September 2008, a few weeks before
the bank’s failure, found that loans marked as containing fraudulent information had nevertheless
been securitized and sold to investors. The report blamed ineffective controls that had “existed
for some time”:
“The controls that are intended to prevent the sale of loans that have been confirmed by
Risk Mitigation to contain misrepresentations or fraud are not currently effective. There
is not a systematic process to prevent a loan in the Risk Mitigation Inventory and/or
confirmed to contain suspicious activity from being sold to an investor. ... Of the 25
loans tested, 11 reflected a sale date after the completion of the investigation which
confirmed fraud. There is evidence that this control weakness has existed for some
time.” 362
Loans not meeting the bank’s credit standards, deliberate risk layering, sales associates
manufacturing documents, offices issuing loans in which 58%, 62%, or 83% contained evidence
of loan fraud, and selling fraudulent loans to investors are evidence of deep seated problems that
existed within WaMu’s lending practices. Equally disturbing is evidence that when WaMu
senior managers were confronted with evidence of substantial loan fraud, they failed to take
corrective action. WaMu’s failure to strengthen its lending practices, even when problems were
identified, is emblematic of how lenders and mortgage brokers produced billions of dollars in
high risk, poor quality home loans that contributed to the financial crisis.

360

April 13, 2010 Subcommittee Hearing at 17.
Id. at 30.
362
9/8/2008 “WaMu Risk Mitigation and Mortgage Fraud 2008 Targeted Review,” JPM_WM00312502, Hearing
Exhibit 4/13-34.
361

104

(d) Steering Borrowers to High Risk Option ARMs
In addition to subprime loans, Washington Mutual made a variety of high risk loans to
“prime” borrowers, including its flagship product, the Option Adjustable Rate Mortgage (Option
ARM). Washington Mutual’s Option ARMs typically offered borrowers an initial teaser rate,
sometimes as low as 1% for the first month, which later adjusted to a much higher floating
interest rate linked to an index, but gave borrowers the choice each month of paying a higher or
lower amount. These loans were called “Option” ARMs, because borrowers were typically
given four options: (1) paying the fully amortizing amount needed to pay off the loan in 30
years; (2) paying an even higher amount to pay off the loan in 15 years; (3) paying only the
interest owed that month and no principal; or (4) making a “minimum payment” that covered
only a portion of the interest owed and none of the principal. 363 If the borrower selected the
minimum payment option, unpaid interest would be added to the loan principal. If the borrower
repeatedly selected the minimum payment, the loan principal would increase rather than decrease
over time, creating a negatively amortizing loan.
Negative amortization created additional credit risk for WaMu and posed a challenge to
risk managers. At the April 13 Subcommittee hearing, Mr. Vanasek testified:
“We had concerns from the standpoint of negative amortization that was accumulating
and we had been reassured that in the past, borrowers would negatively amortize during
difficult times and then make up for the lost payments in good times. But the percentage
and the potential percentage for negative amortization was very large, and, of course the
attendant payment shock was also very large, which was a concern to credit.” 364
Few executives at WaMu shared Mr. Vansek’s concern about the Option ARM. To the extent
that risk managers expressed concern, it was outweighed by the product’s favorable gain-onsale margin.
As part of its High Risk Lending Strategy, WaMu determined to increase its issuance of
its Option ARM loans. To do that, WaMu had to convince customers to forego a simple, low
risk conventional loan in favor of the complex and higher risk Option ARM. In late 2003,
WaMu conducted two focus group studies to “explore ways to increase sales of Option ARMs,
Washington Mutual’s most profitable mortgage loan products.” 365 The first focus group
examined the views of WaMu loan consultants and third party mortgage brokers. The second
focus group examined the views of WaMu Option ARM customers.
The report following the first focus group with WaMu loan consultants and mortgage
brokers identified a number of impediments to selling Option ARMs. It noted that Option ARM
363

See 8/2006 “Option ARM Credit Risk,” WaMu presentation, at 3, Hearing Exhibit 4/13-37; 10/17/2006 “Option
ARM” draft presentation to the WaMu Board of Directors, JPM_WM02549027, Hearing Exhibit 4/13-38.
364
April 13, 2010 Subcommittee Hearing at 49.
365
9/17/2003 “Option ARM Focus Groups – Phase II, WaMu Option ARM Customers,” WaMu research report, at
3, Hearing Exhibit 4/13-35.

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loans had to be “sold” to customers asking for a 30-year fixed loan, and training was needed to
overcome the feeling of “many” WaMu loan consultants that Option ARMs were “bad” for their
customers. The report also recommended increasing commissions so salespersons would take
the “hour” needed to sell an Option ARM, and increasing loan processing times so salespersons
and brokers were not inconvenienced. The report stated in part:
“Option ARMs are sold to customers and few walk through the door and ask for them. ...
If salespeople don’t understand Option ARMs, they won’t sell them. Many felt that more
training would be needed to better educate salespeople about this type of loan, and to
change the mindset of current Loan Consultants. Some felt there were many within
Washington Mutual who simply felt these loans were ‘bad’ for customers, probably from
a lack of understanding the product and how it could benefit customers. ...
It is critical that salespeople fully understand a customer’s financial situation and
motivation for the loan. By taking into account these factors, they can recommend the
loan that will best fit their customers’ needs. Given today’s low interest rate
environment, it can be challenging to get salespeople to take the time to do this.
Currently it is easier to give customers what they ask for (a 30 year fixed loan) than to
sell them an Option ARM. They can take 20 minutes and sell a 30 fixed-rate loan, or
spend an hour trying to sell an Option ARM.
Commission caps make it unappealing for Mortgage Brokers to sell Washington Mutual
Option ARMs. Most would not sell loans to customers with prepayment penalties, and
given the low commission rate for selling them without the prepayment penalty, many
simply go to another company or product where they can make more money.
Slow ARM processing times (up to 90 days) can cause Mortgage Brokers to take
business elsewhere. …
Improving collateral would help salespeople better explain Option ARMs to customers
and take away some of the mystery. … They also would like improved brochures which
talk to the customer in simple, easy to understand terms about features and benefits.
They liked the current sample statements they are provided.” 366
The second focus group with existing Option ARM customers showed they were also
unenthusiastic about the product. The focus group report stated:
“In general, people do not seem to have a good understanding of their mortgage and its
terms. What understanding they do have is framed by the concept of a 30-year fixed
mortgage. Option ARMs are very complicated and need to be explained in simple, easy

366

8/14/2003 “Option ARM Focus Groups – Phase I, WaMu Loan Consultants and Mortgage Brokers,” WaMu
research report, at 2, Hearing Exhibit 4/13-36 [emphasis in original].

106
to understand terms, prospective borrowers need to be educated about the loan – this is
not a product that sells itself.” 367
The focus group identified several reasons that borrowers were leery of Option ARMs
and suggested ways to address the unease: “Helping prospective borrowers understand payment
and interest rate caps may mitigate fears of wild monthly payment swings .… Similarly, fears
about negative amortization, a concept also not very well understood by the participants, could
be reduced or eliminated by showing how much residential properties in the local market have
appreciated over time.” 368
The main findings of the focus group included:
“Few participants fully understood the Option ARM and its key benefits. A number of
them were not familiar with the payment options or how they could be used. …
Additionally, most did not understand how their interest rate was derived, how often their
payments would change, and what, if any, were the interest and/or payment caps.
Perhaps the best selling point for the Option ARM loan was being shown how much
lower their monthly payment would be by choosing an Option ARM versus a fixed-rate
loan.
Many participants did not know what happened to their loan at the end of the fixed
interest rate period. Most of them assumed they would have to sell or refinance because
of a potential balloon payment or a steep jump in their payments. Because of these
misperceptions, most participants expect to refinance their loans within the next three to
five years.” 369
To increase Option ARM sales, WaMu increased the compensation paid to its loan
personnel and outside mortgage brokers for the loans. 370 The bank also qualified borrowers for
Option ARMs by using a monthly payment amount that was less than what the borrower would
likely pay once the loan recast. 371
The Option ARM was also frequently featured in sales promotion efforts communicated
to loan officers through WaMu’s internal alert email system known as, “e-Flash.” For example,
a June 5, 2006 e-Flash from Steve Stein, the Director of Retail Lending in the Home Loans
division, to the entire retail sales team announced:

367

9/17/2003 “Option ARM Focus Groups – Phase II, WaMu Option ARM Customers,” WaMu research report, at
4, Hearing Exhibit 4/13-35.
368
Id.
369
Id. at 5 [emphasis in original].
370
Subcommittee interview of David Schneider (2/17/2010).
371
See April 13, 2010 Subcommittee Hearing at 50.

107
“We are beginning to focus on higher-margin products like our flagship product, the
Option ARM. This is a fantastic product for almost any borrower. To help our sales
force feel more comfortable with selling the Option ARM to a wide variety of borrowers,
we are rolling out a comprehensive skills assessment and training initiative. ... This
initiative is not about selling the Option ARM to everyone. We will always stay true to
our values and provide the right loan for every customer. … Through the skills
assessment, training, role playing and a best-practices selling tips video, I think this retail
sales team will be unstoppable with the Option ARM. … The Option ARM is our
product and we can sell it better than anyone. I have great confidence that we’ll improve
our Option ARM market share quickly, like the experts that we are.” 372
One month later, Mr. Stein announced increased compensation incentives for selling
Option ARMs. In another e-Flash to the entire retail sales team, Mr. Stein wrote:
“You’ve seen and heard a lot recently about our refined business model and focus on
higher margin products, especially Option ARMs. To further drive this focus, I’m
pleased to announce the 2006 Option ARM Blitz – Quarterly Incentive Campaign. This
will allow eligible Loan Consultants to earn 5 additional basis points on all Option ARM
volume funded during the 3rd quarter 2006.” 373
Under the rules of the Option ARM Blitz, loan consultants who increased the percentage of
Option ARMs they sold by at least 10% would receive an additional bonus. In August 2006, an
e-Flash announced that the underwriting guidelines for Option ARMs had been loosened,
allowing higher loan amounts for “condos and co-ops” and greater loan-to-value ratios for “lowdoc” second home mortgages. 374 Also in August, an e-Flash announced that the “Option ARM
Sales Mastery Program” that was launched in June, would now become part of the mandatory
loan originator training curricula. 375
In September 2006, WaMu introduced pricing incentives for Option ARMs in the
consumer direct channel which waived all closing costs for Option ARMs except for an appraisal
deposit. 376 In the fourth quarter of 2006, the consumer direct channel also held a contest called
the “Fall Kickoff Contest.” For each of the 13 weeks in the quarter, the loan consultant who
scored the most points would receive a $100 gift card. An Option ARM sale was a “touchdown”
and worth seven points; jumbo-fixed, equity, and nonprime mortgages were only “field goals”
worth three points. At the end of the quarter the top five point winners were awarded with a
$1,000 gift card. 377 In addition, from November 2006 through January 2007, e-Flashes sent to

372

6/5/2006 “e-Flash” from Steve Stein to Retail Production Sales, JPM_WM03246053.
7/3/2006 “e-Flash” from Steve Stein to Retail Production Sales, JPM_WM04471136-37.
374
8/17/2006 “e-Flash” from Steve Stein, Arlene Hyde, and John Schleck to Production and Operations,
JPM_WM03277786-87.
375
8/18/2006 “e-Flash” from Allen Myers to Retail Production Sales Managers, JPM_WM03277758.
376
8/31/2006 “e-Flash” from Mary Ann Kovach to Consumer Direct, JPM_WM03077747.
377
10/12/2006 “e-Flash” from Mary Ann Kovach to Consumer Direct, JPM_WM03627448-49.
373

108
consumer direct originators promoted Option ARM sales specials offering $1,000 off closing
costs for loans under $300,000 and a waiver of all fees for loans greater than $300,000. 378
Judging by sales of Option ARMs in 2004, after the completion of the focus groups,
WaMu’s strategy to push sales of Option ARM loans was successful. In 2003, WaMu originated
$30.1 billion in Option ARMs; in 2004 WaMu more than doubled its Option ARM originations
to $67.5 billion. Although sales of Option ARMs declined thereafter because of challenges in
the market, in 2006, WaMu still originated $42.6 billion in Option ARMs. According to its
internal documents, by 2006, Washington Mutual was the second largest Option ARM originator
in the country. 379
As WaMu’s Option ARM portfolio grew, and as the wider economy worsened, the
prevalence of negative amortization in the Option ARMs increased. While WaMu risk managers
viewed negative amortization as a liability, WaMu accountants, following generally accepted
accounting practices, treated negative amortization as an asset. In 2003, WaMu recognized $7
million in earnings from deferred interest due to negative amortization. 380 By 2006, capitalized
interest recognized in earnings that resulted from negative amortization surpassed $1 billion; by
2007 it exceeded $1.4 billion. 381 In other words, as WaMu customers stopped paying down their
mortgages, WaMu booked billions of dollars in earnings from the increasing unpaid balances.
By another measure, in 2003, $959 million in Option ARM loans that WaMu held in its
investment portfolio experienced negative amortization; in 2007, the figure was more than $48
billion.382
According to data compiled by the Treasury and the FDIC Inspectors General, in 2005,
WaMu borrowers selected the minimum monthly payment option for 56% of the value of the
Option ARM loans in its investment portfolio. By the end of 2007, 84% of the total value of the
Option ARMs in WaMu’s investment portfolio was negatively amortizing. 383 To avoid having
their loans recast at a higher interest rate, Option ARM borrowers typically refinanced the
outstanding loan balance. Some borrowers chose to refinance every year or two. 384 The
Treasury and the FDIC IG report determined that a significant portion of Washington Mutual’s
Option ARM business consisted of refinancing existing loans. 385
One WaMu loan officer, Brian Minkow, told the Subcommittee that he expected the vast
majority of Option ARMs borrowers to sell or refinance their homes before their payments
increased. 386 As long as home prices were appreciating, most borrowers were able to refinance if
378

See, e.g., 11/13/2006 “e-Flash” from Mary Ann Kovack to Consumer Direct, JPM_WM03077089-90.
2007 “Home Loans Product Strategy,” WaMu presentation at JPM_WM03097203, Hearing Exhibit 4/13-60a
(only Countrywide ranked higher).
380
2005 Washington Mutual Inc. 10-K filing with the SEC at 27.
381
Id.
382
Id. at 55; 3/2007 Washington Mutual Inc. 10-K filing with the SEC at 57.
383
4/2010 IG Report, at 9, Hearing Exhibit 4/16-82.
384
Subcommittee interview of Brian Minkow (2/16/2010).
385
4/2010 IG Report, Hearing Exhibit 4/16-82.
386
Subcommittee interview of Brian Minkow (2/16/2010).
379

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they chose to. According to Mr. Minkow, who was one of WaMu’s top loan consultants and in
some years originated more than $1 billion in loans, 80% of his business was in Option ARMs,
and 70% of his business consisted of refinances. 387 Once housing prices stopped rising,
however, refinancing became difficult. At recast, many people found themselves in homes they
could not afford, and began defaulting in record numbers.
WaMu was one of the largest originators of Option ARMs in the country. In 2006 alone,
WaMu securitized or sold $115 billion in Option ARMs. 388 Like Long Beach securitizations,
WaMu Option ARM securitizations performed badly starting in 2006, with loan delinquency
rates between 30 and 50%, and rising. 389

(e) Marginalization of WaMu Risk Managers
WaMu knowingly implemented a High Risk Lending Strategy, but failed to establish a
corresponding system for risk management. Instead, it marginalized risk managers who warned
about and attempted to limit the risk associated with the high risk strategy.
At the time it formally adopted its High Risk Lending Strategy, WaMu executives
acknowledged the importance of managing the risks it created. For example, the January 2005
“Higher Risk Lending Strategy ‘Asset Allocation Initiative’” presentation to the Board of
Directors Finance Committee stated in its overview:
“In order to generate more sustainable, consistent, higher margins within Washington
Mutual, the 2005 Strategic Plan calls for a shift in our mix of business, increasing our
Credit Risk tolerance while continuing to mitigate our Market and Operational Risk
positions.
“The Corporate Credit Risk Management Department has been tasked, in conjunction
with the Business Units, to develop a framework for the execution of this strategy. Our
numerous activities include:
-Selecting best available credit loss models
-Developing analytical framework foundation
-Identifying key strategy components per Regulatory Guidance documents
“A strong governance process will be important as peak loss rates associated with this
higher risk lending strategy will occur with a several year lag and the correlation between
high risk loan products is important. For these reasons, the Credit Department will pro387

Id.
10/17/2006 “Option ARM” draft presentation to the WaMu Board of Directors, JPM_WM02549027, Hearing
Exhibit 4/13-38, chart at 2.
389
See wamusecurities.com (subscription website maintained by JPMorgan Chase with data on Long Beach and
WaMu mortgage backed securities showing, as of January 2011, delinquency rates for particular mortgage backed
securities, including WMALT 2006 OA-3 – 57.87% and WAMU 2007-OA4 – 48.43%).
388

110
actively review and manage the implementation of the Strategic Plan and provide
quarterly feedback and recommendations to the Executive Committee and timely
reporting to the Board.” 390
The robust risk management system contemplated by in the January 2005 memorandum,
which was critical to the success of the High Risk Lending Strategy, was never meaningfully
implemented. To the contrary, risk managers were marginalized, undermined, and often ignored.
As former Chief Risk Manager Jim Vanasek testified at the April 13 Subcommittee hearing:
“I made repeated efforts to cap the percentage of high-risk and subprime loans in the
portfolio. Similarly, I put a moratorium on non-owner-occupied loans when the
percentage of these assets grew excessively due to speculation in the housing market. I
attempted to limit the number of stated income loans, loans made without verification of
income. But without solid executive management support, it was questionable how
effective any of these efforts proved to be.” 391
Later in the hearing, Mr. Vanasek had the following exchange with Senator Coburn:
Senator Coburn: Did you ever step in and try to get people to take a more conservative
approach at WaMu?
Mr. Vanasek: Constantly.
Senator Coburn: Were you listened to?
Mr. Vanasek: Very seldom.
Senator Coburn: [Had] you ever felt that your opinions were unwelcomed, and could you
be specific?
Mr. Vanasek: Yes. I used to use a phrase. It was a bit of humor or attempted humor. I
used to say the world was a very dark and ugly place in reference to subprime loans. I
cautioned about subprime loans consistently. 392
Mr. Vanasek’s description of his efforts is supported by contemporaneous internal
documents. In a February 24, 2005 memorandum to the Executive Committee with the subject
heading, “Critical Pending Decisions,” for example, Mr. Vanasek cautioned against expanding
WaMu’s “risk appetite”:

390

1/2005 “Higher Risk Lending Strategy ‘Asset Allocation Initiative,’” Washington Mutual Board of Directors
Finance Committee Discussion, JPM_WM00302975, Hearing Exhibit 4/13-2a [emphasis in original].
391
April 13, 2010 Subcommittee Hearing at 17.
392
Id. at 32.

111
“My credit team and I fear that we are considering expanding our risk appetite at exactly
the wrong point and potentially walking straight into a regulatory challenge and criticism
from both the Street and the Board. Said another way I fear that the timing of further
expansion into higher risk lending beyond what was contemplated in the ’05 Plan and
most especially certain new products being considered is ill-timed given the overheated
market and the risk [of] higher interest rates ….
So we come down to the basic question, is this the time to expand beyond the ’05 Plan
and/or to expand into new categories of higher risk assets? For my part I think not. We
still need to complete EDE [Enterprise Decision Engine, an automated underwriting
system], reduce policy exception levels, improve the pricing models, build our sub-prime
collection capability, improve our modeling etc. We need to listen to our instincts about
the overheated housing market and the likely outcome in our primary markets. We need
to build further credibility with the regulators about the control exercised over our SFR
underwriting and sub-prime underwriting particularly in LBMC.” 393
Mr. Vanasek retired in December 2005, in part, because the management support for his
risk policies and culture was lacking. 394 When Mr. Vanasek left WaMu, the company lost one of
the few senior officers urging caution regarding the high risk lending that came to dominate the
bank. After his departure, many of his risk management policies were ignored or discarded. For
example, by the end of 2007, stated income loans represented 73% of WaMu’s Option ARMs,
50% of its subprime loans, and 90% of its home equity loans. 395
Ronald Cathcart was hired in December 2005 to replace Mr. Vanasek, and became the
Chief Enterprise Risk Officer. He had most recently been the Chief Risk Officer for Canadian
Imperial Bank of Commerce’s retail bank. 396 Although the High Risk Lending Strategy was
well underway, after Mr. Vanasek’s departure, risk management was in turmoil. Mr. Cathcart
testified at the Subcommittee hearing: “When I arrived at WaMu, I inherited a Risk Department
that was isolated from the rest of the bank and was struggling to be effective at a time when the
mortgage industry was experiencing unprecedented demand for residential mortgage assets.” In
early 2006, the bank reorganized WaMu’s risk management. 397 Under the new system, much of
the risk management was subordinated to the WaMu business divisions, with each business
division’s Chief Risk Officer reporting to two bosses, Mr. Cathcart and the head of the business
unit to which the division’s Chief Risk Officer was assigned. WaMu referred to this system of
reporting as a “Double-Double.” 398

393

2/24/2005 Washington Mutual memorandum from Jim Vanasek to the Executive Committee, “Critical Pending
Decisions,” JPM_WM01265462-64.
394
Subcommittee interview of Jim Vanasek (12/18/2009 and 1/19/2010).
395
4/2010 IG Report, at 10, Hearing Exhibit 4/16-82.
396
Subcommittee interview of Ronald Cathcart (2/23/2010).
397
Id.
398
Id.; Subcommittee interviews of David Schneider (2/17/2010) and Cheryl Feltgen (2/6/2010).

112
Cheryl Feltgen, for example, was the Chief Risk Officer for the Home Loans division.
She reported both to Mr. Cathcart and to Mr. Schneider, the Home Loans President, setting up a
tension between the two. 399 Mr. Schneider had hired Ms. Feltgen from Citi Mortgage, where she
had been the Chief Marketing Officer, not a risk manager. Mr. Cathcart told the Subcommittee
that he would not have hired her for the role, because of her lack of risk management
experience. 400
Ms. Feltgen told the Subcommittee that, although she was the Home Loans Chief Risk
Officer, she also had responsibility to meet business goals. She indicated that she did not see her
role as one of risk minimization, but rather of risk optimization. 401 Her 2007 performance
evaluation reflected her dual responsibilities, but clearly subordinated her risk management
duties to the achievement of business growth objectives. For example, the evaluation identified a
series of goals and assigned each a percentage weighting to determine their precedence. Instead
of assigning priority to her performance in the area of managing risk, Ms. Feltgen’s number one
performance goal for 2007 was “GROWTH” in home loans, given a weighting of 35%, followed
by “RISK MANAGEMENT,” given a weighting of only 25%. 402 Her performance review even
listed specific sales targets:
“Employee Goals
GROWTH 35%
1. Achieve Net Income - $340 MM for 2007
2. HL [Home Loan] Product Sales (Incl. Conduit)
1. Home Equity - $18B
2. Subprime - $32B
3. Option ARM - $33B
4. Alt A - $10B
3. Customer Satisfaction (Total HL) – 55%” 403
By conditioning her evaluation on whether her division hit pre-determined sales figures, the
performance evaluation made her compensation more dependent upon the Home Loans division
hitting revenue growth and product sales than upon her contributions to risk management.
Further complicating matters were Ms. Feltgen’s two supervisors. In an interview, Ms.
Feltgen stated that Ron Cathcart, her supervisor on risk matters, was “not well respected” and
did not have “a strong voice.” 404 On the other hand, she described David Schneider, her

399

See April 13, 2010 Subcommittee Hearing at 34; Subcommittee interviews of Mr. Cathcart (2/23/2010), Mr.
Schneider (2/17/2010), and Ms. Feltgen (2/6/2010).
400
Subcommittee interview of Ronald Cathcart (2/23/2010).
401
Subcommittee interview of Cheryl Feltgen (2/6/2010).
402
“Performance Review Form: Leadership,” Hearing Exhibit 4/13-64 (the form is not dated, but Ms. Feltgen
confirmed that it is the 2007 review).
403
Id.
404
Subcommittee interview of Cheryl Feltgen (2/6/2010).

113
supervisor on loan origination matters, as having a strong voice and acting more as her boss.
This arrangement again de-emphasized the importance of her risk duties.
Ms. Feltgen’s dedication to the growth of the Home Loans business is apparent in her
communications with her staff. For example, on December 26, 2006, she sent a year-end email
to her staff. Under the subject line, “Year-End 2006 Message for the Home Loans Risk
Management Team,” Ms. Feltgen wrote:
“As we approach the close of 2006, it is fitting to reflect on the challenges and
accomplishments of this past year and to look forward to 2007 and beyond. Earlier this
year David Schneider and the leadership team of Home Loans articulated a new business
strategy that included: (1) a shift to higher margin products (Alt-A, subprime and home
equity); (2) reducing market risk … and taking on more credit risk and (3) aggressively
attacking the cost structure. We have made great strides as a business on all of those
fronts and you have all been a part of those accomplishments. You have partnered
successfully with the business units of Home Loans in pursuit of our collective goal to
drive profitable growth with the right balance of risk and return.” 405
The email continued with a list of “accomplishments of the Home Loans Risk
Management Team in support of business goals,” that included the following accomplishment:
“Our appetite for credit risk was invigorated with the expansion of credit guidelines for various
product segments including the 620 to 680 FICO, low docs and also for home equity.” 406 The
email continued with Ms. Feltgen stating her commitment to the High Risk Lending Strategy and
emphasizing revenue and sales despite an acknowledgement of the worsening condition of the
mortgage market:
“The year 2007 will be another challenging year for the mortgage industry with mortgage
origination volumes down, the inverted yield curve putting pressure on profitability and
gain on sale margins at lower level than prior years. The focus on the three key elements
of our 2006 strategy remains important: shift to higher margin products, reduce market
risk and increase credit risk and attack the cost structure. … In 2007, we must find new
ways to grow our revenue. Home Loans Risk Management has an important role to play
in that effort.
David Schneider has encouraged us to ‘BE BOLD’…. Recognize that ‘we are all in
sales’ passionately focused on delivering great products and service to our customers.” 407
Ms. Feltgen’s year-end bonus was based upon her performance review. 408 According to
Mr. Cathcart, in 2007, the bank made bonus distributions more dependent on the performance of
405

1/3/2007 email from Cheryl Feltgen, “Year-End 2006 Message for the Home Loans Risk Management Team,”
Hearing Exhibit 4/13-73.
406
Id.
407
Id.
408
Subcommittee Interview of Ronald Cathcart (2/23/2010).

114
each business line, rather than the performance of the bank as a whole, which largely removed
his control over compensation of his risk managers. Mr. Cathcart told the Subcommittee that he
disagreed with this change because it made his risk managers, who reported to him and to the
heads of the business units, more beholden to the business heads. Mr. Cathcart said he
approached the head of Human Resources, and strongly objected to the change, but was told to
take it up with Mr. Killinger. Mr. Cathcart told the Subcommittee that he voiced his objection to
Mr. Killinger, but Mr. Killinger told him to talk to Mr. Rotella. He said that he took his
objection to Mr. Rotella, but was unsuccessful at preventing the policy change.
Mr. Cathcart told the Subcommittee that this change created further separation between
him and his risk managers, and compromised the independence of risk management. 409 He
testified at the Subcommittee hearing:
Mr. Cathcart: The chairman adopted a policy of what he called double reporting, and in
the case of the Chief Risk Officers, although it was my preference to have them reporting
directly to me, I shared that reporting relationship with the heads of the businesses so that
clearly any of the Chief Risk Officers reporting to me had a direct line to management
apart from me.
Senator Coburn: And was that a negative or a positive in terms to the ultimate outcome
in your view?
Mr. Cathcart: It depended very much on the business unit and on the individual who was
put in that double situation. I would say that in the case of home loans, it was not
satisfactory because the Chief Risk Officer of that business favored the reporting
relationship to the business rather than to risk. 410
The subordination of risk management to sales was apparent at WaMu in many other
ways as well. Tony Meola, the head of home loans sales, reported directly to David Schneider.
He had direct access to Mr. Schneider and often pushed for more lenient lending standards.
According to Ms. Feltgen, the sales people always wanted more lenient standards and more
mortgage products, and Mr. Meola advocated for them. 411
One example was the 80/20 loan, which consisted of a package of two loans issued
together, an 80% LTV first lien and a 20% LTV second lien, for a total CLTV of 100%. Ms.
Feltgen said she was nervous about the product, as a 100% CLTV was obviously very risky.
WaMu’s automatic underwriting system was not set up to accept such loans, but Mr. Meola
wanted permission to “side step” the systems issue. 412 Mr. Schneider approved the product, and
Ms. Feltgen ultimately signed off on it. She told the Subcommittee that it was a high risk

409

Id.
April 13, 2010 Subcommittee Hearing at 34.
411
Subcommittee Interview of Cheryl Feltgen (2/6/2010).
412
See 2/2006 WaMu internal email chain, “FW: 80/20,” JPM_WM03960778.
410

115
product, but was priced accordingly, and that it might have been successful if housing prices had
not declined. 413
When the housing market began to collapse, a time in which prudent risk management
became even more critical, Mr. Cathcart, the Chief Enterprise Risk Manager, was accorded even
less deference and authority. Mr. Cathcart testified at the April 13 Subcommittee hearing:
“Financial conditions … deteriorated further in 2007 and 2008. As head of risk, I began
to be excluded from key management decisions. By February 2008, I had been so fully
isolated that I initiated a meeting with the Director, where I advised that I was being
marginalized by senior management to the point that I was no longer able to discharge
my responsibilities as Chief Enterprise Risk Officer of WaMu. Within several weeks, I
was terminated by the Chairman.” 414
During his interview with the Subcommittee Mr. Cathcart provided additional details
about his marginalization by senior management. 415 He said that he initially had extensive
interaction with the WaMu Board of Directors and presented to the full Board every six months.
According to Mr. Cathcart, he attended all of the Board meetings until the end of 2007 or the
beginning of 2008, at which time he was no longer invited. Mr. Cathcart felt he was excluded
from Board meetings and calls with investment bankers because he was forthright about
WaMu’s mortgage loss rates, whereas senior management used older, more favorable numbers.
According to Mr. Cathcart, during one of the last Board meetings he attended, after a
presentation on expected mortgage losses, he interjected that the loan loss data being presented
were already out of date, and the real figures would be much worse. He also recalled speaking
up in a 2007 conference call with investment bankers to correct an overly optimistic loss figure.
According to Mr. Cathcart, he was chastised for his corrections by WaMu management and told
to leave the credit discussions to another senior manager.
Mr. Cathcart told the Subcommittee that regulators were also given out-of-date loss
projections as the situation worsened, because Mr. Killinger and Mr. Rotella wanted to prevent a
negative reaction. Mr. Cathcart said that the loss rates were increasing every week, and the
regulators were being provided with three-week old information. Mr. Cathcart told the
Subcommittee that in February or March 2008, he discovered that Mr. Killinger had provided the
Director of OTS, John Reich, with out-of-date loss rates. Mr. Cathcart said that he called a
meeting with Mr. Dochow, head of the OTS West Regional Office, and provided him with the
current numbers. Mr. Cathcart said that Mr. Killinger found out about the meeting and was
upset. In April, Mr. Killinger fired Mr. Cathcart.

413

Subcommittee Interview of Cheryl Feltgen (2/6/2010). See also 2/2006 WaMu internal email chain, “FW:
80/20,” JPM_WM03960778.
414
April 13, 2010 Subcommittee Hearing at 19.
415
Subcommittee interview of Ronald Cathcart (2/23/2010).

116

E. Polluting the Financial System
Washington Mutual, as the nation’s largest thrift, was a leading issuer of home loans.
When many of those loans began to go bad, they caused significant damage to the financial
system.
Washington Mutual originated or acquired billions of dollars of home loans through
multiple channels, including loans originated by its own loan officers, loans brought to the bank
by third party mortgage brokers, and loans purchased in bulk from other lenders or firms. Its
subprime lender, Long Beach, originated billions of dollars in home loans brought to it by third
party mortgage brokers across the country. According to a 2007 WaMu presentation, by 2006,
Washington Mutual was the second largest nonagency issuer of mortgage backed securities in
the United States, behind Countrywide. 416
Washington Mutual and Long Beach sold or securitized the vast majority of their
subprime home loans. Initially, Washington Mutual kept most of its Option ARMs in its
proprietary investment portfolio, but eventually began selling or securitizing those loans as well.
With respect to other loans, such as fixed rate 30-year, Alt A, home equity, and jumbo loans,
WaMu kept a portion for its own investment portfolio, and sold the rest either to Wall Street
investors, usually after securitizing them, or to Fannie Mae or Freddie Mac.
By securitizing billions of dollars in poor quality loans, WaMu and Long Beach were
able to decrease their risk exposure while passing along risk to others in the financial system.
They polluted the financial system with mortgage backed securities which later incurred high
rates of delinquency and loss. At times, WaMu securitized loans that it had identified as likely
to go delinquent, without disclosing its analysis to investors to whom it sold the securities, and
also securitized loans tainted by fraudulent information, without notifying purchasers of the
fraud that was discovered and known to the bank.

(1) WaMu and Long Beach Securitizations
From 2000 to 2007, Washington Mutual and Long Beach securitized at least $77 billion
in subprime and home equity loans. 417 WaMu also sold or securitized at least $115 billion in
Option ARM loans. 418 Between 2000 and 2008, Washington Mutual sold over $500 billion in
loans to Fannie Mae and Freddie Mac, accounting for more than a quarter of every dollar in
loans WaMu originated. 419
416

See 6/11/2007 chart entitled, “Rate of Growth Exceeds the Industry,” JPM_WM03409860, Hearing Exhibit 4/1347c.
417
6/2008 “WaMu Wholesale Specialty Lending Securitization Performance Summary,” JPM_WM02678980,
Hearing Exhibit 4/13-45.
418
10/17/2006 “Option ARM” draft presentation to the WaMu Board of Directors, JPM_WM02549027, Hearing
Exhibit 4/13-38 (see chart at 2). See also 8/2006 “Option ARM Credit Risk,” WaMu presentation, at
JPM_WM00212644, Hearing Exhibit 4/13-37 (see chart at 5).
419
See chart in section E(4), below, using loan data from Inside Mortgage Finance.

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According to a 2007 WaMu presentation at a securities investor meeting in New York, in
2004, WaMu issued $37.2 billion in RMBS securitizations and was the sixth largest RMBS
issuer in the United States. 420 In 2005, it doubled its production, issuing $73.8 billion in
securitizations, and became the third largest issuer. In 2006, it issued $72.8 billion and was the
second largest issuer, behind Countrywide. 421
WaMu and Long Beach’s securitizations produced only RMBS securities. Although
WaMu considered issuing CDO securities as well, it never did so. 422 From 2004 to 2006, WaMu
and Long Beach securitized dozens of pools of prime, subprime, Alt A, second lien, home
equity, and Option ARM loans. 423 WaMu and Long Beach also sold “scratch and dent” pools of
nonperforming loans, including nonperforming primary mortgages, second lien, and Option
ARMs. 424
At first, Washington Mutual worked with Wall Street firms to securitize its home loans,
but later built up its own securitization arm, Washington Mutual Capital Corporation (WCC),
which gradually took over the securitization of both WaMu and Long Beach loans. WCC was a
private Washington State corporation that WaMu acquired from another bank in 2001, and
renamed. 425 WCC became a wholly owned subsidiary of Washington Mutual Bank. In July
2002, WaMu announced that WCC would act as an institutional broker-dealer handling RMBS
securities and would work with Wall Street investment banks to market and sell WaMu and
Long Beach RMBS securities. 426
WCC was initially based in Seattle, and by 2003, had between 30 and 40 employees. 427
In 2004, due to increasing securitizations, WaMu decided to move the headquarters of WCC to
Manhattan. 428 In 2004, for the first time, WCC acted as the lead manager of a WaMu
securitization. That same year, WCC initiated a “conduit program” to buy Alt A and subprime
loans in bulk for securitization. 429 WCC issued its first Alt A securitization in 2005, and its first
subprime securitization in 2006. 430 It also conducted whole loan sales and credit card
420

See 6/11/2007 chart entitled, “Rate of Growth Exceeds the Industry,” JPM_WM03409860, Hearing Exhibit 4/1347c.
421
Id. WaMu attributed its rapid rise in the issuer rankings over the three-year period to its establishment of a
Conduit Program, which began buying loans in bulk in 2004. Id.
422
See 12/15/2006 Enterprise Risk Management Committee, JPM_WM02656967. See also 10/25/2006 AssetLiability Management Committee Meeting Agenda, JPM_WM02406624.
423
See 6/2008 “WaMu Wholesale Specialty Lending Securitization Performance Summary,” JPM_WM02678980,
Hearing Exhibits 4/13-45 and 46; 6/11/2007 chart entitled, “WaMu Capital Corp Sole/Lead Underwriter,”
JPM_WM03409861, Hearing Exhibit 4/13-47c.
424
See, e.g., undated “List of WaMu-Goldman Loans Sales and Securitizations,” Hearing Exhibit 4/13-47b; 2/2007
internal WaMu email chain, JPM_WM00652762.
425
See 6/11/2007 chart entitled, “Capital Markets Division Growth,” JPM_WM03409858, Hearing Exhibit 4/1347c.
426
Id.
427
Subcommittee interview of David Beck (3/2/2010).
428
Id.
429
See 6/11/2007 chart entitled, “Capital Markets Division Growth,” JPM_WM03409858, Hearing Exhibit 4/1347c.
430
Id.

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securitizations. 431 At its peak, right before the collapse of the subprime securitization market,
WCC had over 200 employees and offices in Seattle, New York, Los Angeles, and Chicago. The
majority of WCC employees were based in New York. 432 WCC was headed by Tim Maimone,
WCC President, who reported to David Beck, Executive Vice President in charge of WaMu’s
Capital Markets Division. Mr. Beck reported to the President of WaMu’s Home Loans Division,
David Schneider. 433
At the Subcommittee hearing on April 13, 2010, Mr. Beck explained the role of WCC in
WaMu and Long Beach securitizations as follows:
“WaMu Capital Corp. acted as an underwriter of securitization transactions generally
involving Washington Mutual Mortgage Securities Corp. or WaMu Asset Acceptance
Corp. Generally, one of the two entities would sell loans into a securitization trust in
exchange for securities backed by the loans in question, and WaMu Capital Corp. would
then underwrite the securities consistent with industry standards. As an underwriter,
WaMu Capital Corp. sold mortgage-backed securities to a wide variety of institutional
investors. 434
WCC sold WaMu and Long Beach loans and RMBS securities to insurance companies, pension
funds, hedge funds, other banks, and investment banks. 435 It also sold WaMu loans to Fannie
Mae and Freddie Mac. WCC personnel marketed WaMu and Long Beach loans both in the
United States and abroad.
Before WCC was able to act as a sole underwriter, WaMu and Long Beach worked with
a variety of investment banks to arrange, underwrite, and sell its RMBS securitizations, including
Bank of America, Credit Suisse, Deutsche Bank, Goldman Sachs, Lehman Brothers, Merrill
Lynch, Royal Bank of Scotland, and UBS. To securitize its loans, WaMu typically assembled
and sold a pool of loans to a qualifying special-purpose entity (QSPE) that it established for that
purpose, typically a trust. 436 The QSPE then issued RMBS securities secured by future cash
flows from the loan pool. Next, the QSPE – working with WCC and usually an investment bank
– sold the RMBS securities to investors, and used the sale proceeds to repay WaMu for the cost
431

Id.
Subcommittee interview of David Beck (3/2/2010).
433
Id.
434
April 13, 2010 Subcommittee Hearing at 53. Washington Mutual Mortgage Securities Corp. (WMMSC) and
WaMu Asset Acceptance Corp. (WAAC) served as warehouse entities that held WaMu loans intended for later
securitization. Mr. Beck explained in his prepared statement: “WMMSC and WAAC purchased loans from WaMu,
and from other mortgage originators, and held the loans until they were sold into the secondary market. WCC was a
registered broker-dealer and acted as an underwriter of securitization deals for a period of time beginning in 2004
and ending in the middle of 2007. In addition to buying and selling mortgage loans, WMMSC acted as a ‘master
servicer’ of securitizations. The master servicer collects and aggregates the payments made on loans in a securitized
pool and forwards those payments to the Trustee who, in turn, distributes those payments to the holders of the
securities backed by that loan pool.” Id. at 163.
435
See 6/11/2007 chart entitled, “Origination Through Distribution,” JPM_WM03409859, Hearing Exhibit 4/1347c; Subcommittee interview of David Beck (3/2/2010).
436
See 3/2007 Washington Mutual Inc. 10-K filing with the SEC, at 45 (describing securitization process).
432

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of the loan pool. Washington Mutual Inc. generally retained the right to service the loans.
WaMu or Long Beach might also retain a senior, subordinated, residual, or other interest in the
loan pool.
The following two diagrams created for a 2005 Long Beach securitization, LBMC 20052, demonstrate the complex structures created to issue the RMBS securities, as well as the
“waterfall” constructed to determine how the mortgage payments being made into the
securitization pool would be used. 437

437

See “LBMC 2005-2 Structure” and “LBMC 2005-2 Cash Flow Waterfall,” FDIC_WAMU_000012358-59,
Hearing Exhibit 47a.

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__

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122
In that particular securitization, Goldman Sachs served as the lead underwriter, WCC served as
the securities dealer, Deutsche Bank served as the trustee of the trust set up to hold the securities,
and Long Beach served as the mortgage servicer.
Another document, prepared by Goldman Sachs, shows the variety of relationships that
WaMu engaged in as part of its securitization efforts. 438 That document, which consists of a list
of various loan pools and related matters, shows that WaMu worked with Goldman Sachs to
make whole loan sales; securitize loans insured by the Federal Home Administration or Veterans
Administration; and securitize prime, subprime, Alt A, second lien, and scratch and dent
nonperforming loans. It also shows that Goldman Sachs asked WaMu and Long Beach to
repurchase more than $19.7 million in loans it had purchased from the bank. 439
Goldman Sachs handled a number of securitizations for Long Beach. At one point in
2006, Goldman Sachs made a pitch to also handle loans issued by WaMu. One Goldman Sachs
broker explained to a colleague in an email: “They have possibly the largest subprime portfolio
on the planet.” 440

(2) Deficient Securitization Practices
Over the years, both Long Beach and Washington Mutual were repeatedly criticized by
the bank’s internal auditors and reviewers, as well as its regulators, OTS and the FDIC, for
deficient lending and securitization practices. Their mortgage backed securities were among the
worst performing in the marketplace due to poor quality loans that incurred early payment
defaults, fraud, and high delinquency rates.
Long Beach Securitizations. In April 2005, an internal email sent by an OTS regulator
recounted eight years of abysmal performance by Long Beach securities, noting that loan
delinquencies and losses occurred in pools containing both fixed rate and adjustable rate
mortgages:
“[Securitizations] prior to 2003 have horrible performance …. For FRM [fixed rate
mortgage] losses, LBMC finished in the top 12 worst annual NCLs [net credit losses] in
1997 and 1999 thru 2003. LBMC nailed down the number 1 spot as top loser with an
NCL of 14.1% in 2000 and placed 3rd in 2001 with 10.5% .... For ARM losses, LBMC
really outdid themselves with finishes as one of the top 4 worst performers for 1999 thru
2003. For specific ARM deals, LBMC made the top 10 worst deal list from 2000 thru
2002. LBMC had an extraordinary year in 2001 when their securitizations had 4 of the
top 6 worst NCLs (range: 11.2% to 13.2%).

438

Undated “List of WaMu-Goldman Loans Sales and Securitizations,” Hearing Exhibit 4/13-47b.
Id.
440
3/24/2005 email from Kevin Gasvoda of Goldman Sachs to Christopher Gething, others, Hearing Exhibit 4/27167b.
439

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“Although underwriting changes were made from 2002 thru 2004, the older issues are
still dragging down overall performance. Despite having only 8% of UPB [unpaid
balances] in 1st lien FRM pools prior to 2002 and only 14.3% in 2002 jr. lien pools,
LBMC still had third worst delinquencies and NCLs for most of [the] period graphed
from 11/02 thru 2/05 and was 2nd worst in NCLs in 2005 out of 10 issuers graphed. …
At 2/05, LBMC was #1 with a 12% delinquency rate. Industry was around 8.25%. At
3/05, LBMC had a historical NCL rate of 2% smoking their closest competitor by 70bp
and tripling the industry average.” 441
This email, which is based upon a 2005 Fitch analysis of Long Beach, shows that,
from 1997 to March 2005, due to loan delinquencies and losses, Long Beach securities
were among the very worst performing in the entire subprime industry. 442
Long Beach’s performance did not improve after 2005. In April 2006, for
example, Nomura Securities issued an analysis of the ABX Index that tracked a basket of
20 subprime RMBS securities and identified Long Beach as the worst performer:
“Long Beach Mortgage Loan Trust appears to be the poorest performing issuer, with its
three deals averaging 15.67% in 60+ day delinquency and 12.75% in 90+ day
delinquency. Unsurprisingly, all three deals issued by LBMLT have exceeded their
delinquency trigger limits.” 443
In November 2006, while attending the Asset Backed Securities East Conference
for the securitization industry, the head of WaMu’s Capital Markets Division, David
Beck, emailed WaMu’s Home Loans President, David Schneider, that with respect to
RMBS securities carrying noninvestment grade ratings, “LBMC [Long Beach] paper is
among the worst performing paper in the mkt [market] in 2006. Subordinate buyers want
answers.” 444
In March 2007, an analysis by JPMorgan Chase again singled out Long Beach securities
for having the worst delinquency rates among the subprime securities tracked by the ABX Index:
“Washington Mutual Inc.’s subprime bonds are suffering from some of the worst rates of
delinquency among securities in benchmark indexes, according to JPMorgan Chase &
Co. research. … Delinquencies of 60 days or more on loans supporting WaMu’s Long
Beach LBMLT 2006-1 issue jumped … to 19.44 percent … the highest among the 20

441

4/14/2005 email from Steve Blelik to David Henry, “Fitch – LBMC Review,” Hearing Exhibit 4/13-8a.
Id.
443
4/19/2006 “ABX Index – The Constituent Breakdown,” prepared by Nomura Securities International Inc.,
http://www.scribd.com/doc/19606903/Nomura-ABX-Index-The-Constituent-Breakdown.
444
11/7/2006 email from David Beck to David Schneider, Hearing Exhibit 4/13-50. See also 4/19/2006 “ABX
Index – The Constituent Breakdown,” prepared by Nomura Securities International Inc.,
http://www.scribd.com/doc/19606903/Nomura-ABX-Index-The-Constituent-Breakdown.
442

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bonds in the widely watched ABX-HE 06-2 index of bonds backed by residential loans to
risky borrowers.” 445
In July 2007, Moody’s and S&P downgraded the credit ratings of hundreds of subprime
RMBS and CDO securities, due to rising mortgage delinquencies and defaults. Included were
approximately 40 Long Beach securities. 446 A July 12, 2007 presentation prepared by Moody’s
to explain its ratings action shows that Long Beach was responsible for only 6% of all the
subprime RMBS securities issued in 2006, but received 14% of the subprime RMBS ratings
downgrades that day. 447 Only Fremont had a worse ratio.
Over time, even AAA rated Long Beach securities performed terribly. Of the 75 Long
Beach mortgage backed security tranches rated AAA by Standard and Poor’s in 2006, all 75
have been downgraded to junk status, defaulted, or been withdrawn. 448 In most of the 2006
Long Beach securitizations, the underlying loans have delinquency rates of 50% or more. 449
The problems were not confined to Long Beach loans. In early 2008, for example, an
investment adviser posted information on his personal blog about a WaMu-sponsored RMBS
securitization known as WMALT 2007-OC1. Formed in May 2007, this pool contained about
1,700 Alt A loans with a total outstanding balance of about $515 million. WaMu was the sole
underwriter. The credit rating agencies gave AAA and other investment grade ratings to more
than 92% of the securitization, but within eight months, 15% of the pool was in foreclosure. The
posting suggested that the poor performance of WaMu securities was systemic.
When informed by David Schneider of the complaint about the negative publicity
surrounding the pool, David Beck responded:
“Yes (ughh!) we are doing some peer group performance and looking at the servicing
data … and putting together an analysis. … The collateral is full of limited doc layered
risk alt a paper and at least half is TPO [third party originated]. The performance is not
great but my opinion is not a WaMu specific issue.” 450

445

“WaMu subprime ABS delinquencies top ABX components,” Reuters (3/27/2007), Hearing Exhibit 4/13-52.
7/10/2007-7/12/2007 excerpts from Standard & Poor’s and Moody’s Downgrades, Hearing Exhibit 4/23-99.
447
7/12/2007 “Moody’s Structured Finance Teleconference and Web Cast: RMBS and CDO Rating Actions,”
MOODYS-PSI2010-0046902, Hearing Exhibit 4/23-106.
448
See Standard and Poor’s data at www.globalcreditportal.com.
449
See, e.g., wamusecurities.com (subscription website maintained by JPMorgan Chase with data on Long Beach
and WaMu mortgage backed securities showing, as of March 2011, delinquency rates for particular mortgage
backed securities, including LBMLT 2006-1 – 58.44%; LBMLT 2006-6 – 60.06%; and LBMLT 2005-11 –
54.32%).
450
2/2/2008 email from David Beck to David Schneider and others, JPM_WM02445758, Hearing Exhibit 4/13-51.
446

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Home Loans President David Schneider replied: “Ok – thanks .… Are we sure there isn’t a
reporting issue?” Today, those securities have all been downgraded to junk status and more than
half of the underlying loans are delinquent or in foreclosure. 451
Despite their poor performance, it is unclear that any investment bank refused to do
business with either Long Beach or WaMu. As long as investors expressed interest in
purchasing the securities, banks continued selling them until the entire subprime market
collapsed. Before the market collapsed, WaMu earned hundreds of millions of dollars a year
from its home loans sales and securitizations. 452
Securitizing Fraudulent Loans. WaMu and Long Beach securitized not just poor
quality loans, but also loans that its own personnel had flagged as containing fraudulent
information. That fraudulent information included, for example, misrepresentations of the
borrower’s income and of the appraised value of the mortgaged property. In September 2008,
WaMu’s Corporate Credit Review team released a report which found that internal controls
intended to prevent the sale of fraudulent loans to investors were ineffective:
“The controls that are intended to prevent the sale of loans that have been confirmed by
Risk Mitigation to contain misrepresentations or fraud are not currently effective. There
is not a systematic process to prevent a loan in the Risk Mitigation Inventory and/or
confirmed to contain suspicious activity from being sold to an investor. ... Of the 25
loans tested, 11 reflected a sale date after the completion of the investigation which
confirmed fraud. There is evidence that this control weakness has existed for some
time.” 453
In other words, even loans marked with a red flag indicating fraud were being sold to investors.
The review identified several factors contributing to the problem, including insufficient resources
devoted to anti-fraud work, an absence of automated procedures to alert personnel to fraud
indicators, and inadequate training on fraud awareness and prevention. The 2008 review
warned: “Exposure is considerable and immediate corrective action is essential in order to limit
or avoid considerable losses, reputation damage, or financial statement errors.” 454

(3) Securitizing Delinquency-Prone Loans
The Subcommittee uncovered an instance in 2007 in which WaMu securitized certain
types of loans that it had identified as most likely to go delinquent, but did not disclose its
analysis to investors who bought the securities. Investors who purchased these securities without
the benefit of that analysis quickly saw the value of their purchases fall.
451

As of December 2010, the total loan delinquency rate of the WMALT 2007-OC1 series was 57.37%. See
wamusecurities.com.
452
See 3/1/2007 Washington Mutual Inc. 10-K filing with the SEC, at 82, 87.
453
9/8/2008 “Risk Mitigation and Mortgage Fraud 2008 Targeted Review,” WaMu Corporate Credit Review,
JPM_WM00312502, Hearing Exhibit 4/13-34.
454
Id.

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WaMu securitization agreements prohibited the bank from using an “adverse selection”
process when including loans within a securitized pool. On March 22, 2007, WaMu filed a
prospectus for WMALT Series 2007-OA3, in which Washington Mutual Bank and Washington
Mutual Mortgage Securities Corp. co-sponsored a securitization of a $2.3 billion pool of Option
ARM loans. In the section entitled, “Representations and Warranties Regarding the Mortgage
Loans,” the prospectus stated:
“Washington Mutual Mortgage Securities Corp. and Washington Mutual Bank, as
applicable, used no adverse selection procedures in selecting the mortgage loans from
among the outstanding adjustable rate conventional mortgage loans owned by it which
were available for sale and as to which the representations and warranties in the mortgage
loan sale agreement could be made.” 455
On the following page of the prospectus, under the section heading, “Criteria for
Selection of Mortgage Loans,” it stated:
“Each co-sponsor selected the mortgage loans it sold to the depositor from among its
portfolio of mortgage loans held for sale based on a variety of considerations, including
type of mortgage loan, geographic concentration, range of mortgage interest rates,
principle balance, credit scores and other characteristics described in Appendix B to this
prospectus supplement, and taking into account investor preferences and the depositor’s
objective of obtaining the most favorable combination of ratings on the certificates.” 456
WaMu emails and memoranda obtained by the Subcommittee indicate that, prior to
assembling the loan pool used in the WMALT 2007-OA3 securitization, WaMu identified
delinquency-prone Option ARM mortgages in its “Held for Investment” loan portfolio and
transferred those loans to its portfolio of mortgages available for sale or securitization. WaMu
then used its “Held for Sale” loan portfolio to select the loans for the loan pool used in the
WMALT 2007-OA3 securitization. The prospectus provides a list of criteria used to select the
loans in the WMALT 2007-OA3 loan pool, but omits any mention of the fact that some of the
loans were selected using statistical analysis designed to identify Option ARM loans likely to go
delinquent quickly. The internal emails demonstrate that WaMu selected delinquency-prone
loans for sale in order to move risk from the bank’s books to the investors in WaMu securities,
and profit from its internal analysis, which was not available to the market.
On Thursday, September 14, 2006, John Drastal, then Senior Managing Director of
WCC, sent David Beck, head of WaMu’s Capital Markets Division, with copies to others, an
email regarding “Tom Casey visit,” with the importance marked “high.” Tom Casey was then
the Chief Financial Officer of Washington Mutual Bank. In the email Mr. Drastal relayed Mr.
Casey’s concern about WaMu’s exposure to Option ARM loans:

455

3/22/2007 WaMu Prospectus Supplement, “Washington Mutual Mortgage Pass-Through Certificates, WMALT
Series 2007-OA3,” at S-102, Hearing Exhibit 4/13-86b.
456
Id. at S-103.

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“David,
“Tom just stopped by after the Lehman investor conference. He says equity investors are
totally freaking about housing now. He asked how we could prepare for this. A few
items ….
“2. On the portfolio side, he asked about exposure on option ARMs. We talked about
looking to potentially sell ’06 production Option ARMs in portfolio. He even said
looking at this quarter. I don’t think that this is possible but we should look at what the
credit composition of this product is and see if we can sell quickly if it’s the right thing to
do (see Nagle’s message). He doesn’t for[e]see a tainting issue if we are doing it for
credit issues. Youyi, can you get me a collateral strat from the portfolio?” 457
Three months later, on Wednesday, February 14, 2007, a WaMu portfolio analyst and
trader, Michael Liu, sent an email to a senior official in WaMu’s portfolio management
department, Richard W. Ellson, with the subject line: “Option ARM MTA and Option ARM
MTA Delinquency.” The email included the abbreviations “MTA,” which stands for “Monthly
Treasury Average,” and “PPD,” which stands for “Payment Past Due.” The email provided a
description of Option ARM loans in WaMu’s investment portfolio that were delinquent in the
fourth quarter of 2006:
“Hi Rick,
“Attached is the spreadsheet with the total Option ARM MTA … and Option ARM MTA
>=1 PPD summary. Some points for the Option ARM MTA >=1PPD:
• $105mm in Nonaccrual is between FICO 501-540.
• $222mm in Nonaccrual between LTV 61-80.
• CA [California] represents the greatest amount of Delinquency (1PPD, 2PPD,
3PPD, nonaccrual)[.]
• Loans originated in 2004 and 2005 represent the highest amount of 3 PPD and
nonaccrual[.]” 458
On the same day, Mr. Ellson forwarded the email to the Division Executive for Portfolio
Management and Research, Youyi Chen, with the following comments:
“Youyi – attached is a description of the Option ARMs that were delinquent in the
2006q4 [fourth quarter]. You can see that it is very much a function of FICOs and Low
Doc loans. We are in the process of updating the optimum pricing matrix. Mike did the
work. Your comments are appreciated.” 459

457

9/14/2006 email from John Drastal to David Beck, with Youyi Chen and Doug Potolsky copied, “Tom Casey
visit,” Hearing Exhibit 4/13-40a.
458
2/2007 WaMu internal email chain, Hearing Exhibit 4/13-40b.
459
Id.

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Mr. Chen, in turn, forwarded the email to the head of WaMu’s Capital Markets Division,
David Beck. Mr. Chen’s introductory comments indicated that the research had been performed
in response to a question from WaMu Home Loans President David Schneider and was intended
to identify criteria for the loans driving delinquencies in the Option ARM portfolio:
“This answers partially [David] Schneider’s questions on break down of the option arm
delinquencies.
The details (1PPD tab) shows Low fico, low doc, and newer vintages are where most of
the delinquency comes from, not a surprise.” 460
On the same day, February 14, Mr. Beck forwarded the entire email chain to David
Schneider and WaMu Home Loans Risk Officer Cheryl Feltgen, adding his own view:
“Please review. The performance of newly minted option arm loans is causing us
problems. Cheryl can validate but my view is our alt a (high margin) option arms [are]
not performing well.
We should address selling 1Q [first quarter] as soon as we can before we loose [sic] the
oppty. We should have a figure out how to get this feedback to underwriting and
fulfillment.” 461
Mr. Beck’s message indicated that recently issued Option ARM loans were not
performing well, and suggested selling them before the bank lost the opportunity. WaMu would
lose the opportunity to sell those loans if, for example, they went delinquent, or if the market
realized what WaMu analysts had already determined about their likelihood of going delinquent.
Mr. Beck’s email proposed selling the loans during the first quarter of the year, already six
weeks underway, and “as soon as we can.”
Four days later, on Sunday, February 18, Mr. Schneider replied to the email chain by
requesting Ms. Feltgen’s thoughts. Later that day, Ms. Feltgen responded with additional
analysis and an offer to help further analyze the Option ARM delinquencies:
“The results described below are similar to what my team has been observing.
California, Option ARMs, large loan size ($1 to $2.5 million) have been the fastest
increasing delinquency rates in the SFR [Single Family Residence] portfolio. Although
the low FICO loans have … higher absolute delinquency rates, the higher FICOs have
been increasing at a faster pace than the low FICOs. Our California concentration is
getting close to 50% and many submarkets within California actually have declining
house prices according to the most recent OFHEO [Office of Federal Housing Enterprise
Oversight] data from third quarter of 2006. There is a meltdown in the subprime market
which is creating a ‘flight to quality’. I was talking to Robert Williams just after his
460
461

Id.
Id.

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return from the Asia trip where he and Alan Magleby talked to potential investors for
upcoming covered bond deals backed by our mortgages. There is still strong interest
around the world in USA residential mortgages. Gain on sale margins for Option ARMs
are attractive. This seems to me to be a great time to sell as many Option ARMs as we
possibly can. Kerry Killinger was certainly encouraging us to think seriously about it at
the MBR [Monthly Business Review] last week. What can I do to help? David, would
your team like any help on determining the impact of selling certain groupings of Option
ARMs on overall delinquencies? Let me know where we can help. Thanks.” 462
As Chief Risk Officer in WaMu’s Home Loans division, Ms. Feltgen pointed out some
counterintuitive features of the latest delinquencies, noting that the fastest increases in
delinquencies occurred in large loans and loans with high FICO scores. She also noted that the
subprime meltdown had led to a “flight to quality,” and that foreign investors still had a strong
interest in U.S. residential mortgages, suggesting that WaMu might be able to sell its likely-to-go
delinquent Option ARMs to those foreign investors. From her perspective as a risk manager, she
urged selling “as many Option ARMs as we can.”
Her email also indicated that the topic of selling more Option ARMs had come up during
the prior week at the monthly business review meeting, in which WaMu CEO Killinger
expressed interest in exploring the idea. 463 Finally, Ms. Feltgen offered help in analyzing the
impact of selling “certain groupings of Options ARMs” on overall delinquencies. Removing
those problematic loans from the larger pool of Option ARM loans in the bank’s investment
portfolio would reduce loan delinquencies otherwise affecting the value of the portfolio as a
whole.
Mr. Schneider sent a second email at 11:00 at night that same Sunday providing
instructions for moving forward:
“Let[’]s do the following:
1. db [David Beck] - please select the potential sample portfolios - along the lines we
discussed at the mbr [Monthly Business Review]
2. cf [Cheryl Feltgen] - please run credit scenarios
3. db - coordinate with finance on buy/sell analysis
4. db/cf – recommendation[.]”464
On Tuesday morning, February 20, 2007, Mr. Beck replied with additional analysis:
“Here’s how I see this going.

462

Id.
At the end of 2006, WaMu held about $63.5 billion in Option ARM mortgages, then comprising about 28% of its
investment portfolio. See 3/2007 Washington Mutual Inc. 10-K filing with the SEC, at 52.
464
2/2007 WaMu internal email chain, Hearing Exhibit 4/13-40b.
463

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From the MBR [Monthly Business Review], my notes indicate two portfolios we
discussed for sale; the 2007 high margin production (Jan and Feb so far) and the seasoned
COFI book. 465
I will supply to Cheryl the loan level detail on both pools and the pricing assumptions for
losses. Cheryl, you need to run scenario analysis and on losses versus pricing AND
reserving assumptions. I can supply pricing assumptions but would like you to pull the
ALLL [Allowance for Loan and Lease Losses] against these pools.” 466
Later that day, Ms. Feltgen forwarded the email chain to her team, changing the subject
line to read: “URGENT NEED TO GET SOME WORK DONE IN THE NEXT COUPLE
DAYS: Option ARM MTA and Option ARM MTA Delinquency.” Clearly, time was of the
essence:
“See the attached string of emails. We are contemplating selling a larger portion of our
Option ARMs than we have in the recent past. Gain on sale is attractive and this could be
a way to address California concentration, rising delinquencies, falling house prices in
California with a favorable arbitrage given that the market seems not to be yet
discounting a lot for those factors. David Schneider has set a meeting for Friday morning
with David Beck and me to hear our conclusions and recommendations. See the
comments below about the information that we need to provide for this analysis. We will
get the pools by tomorrow at the latest. We will need to coordinate with Joe Mattey and
get input from him in order to make a judgment regarding the ALLL impact. ...
In addition to the specific information that David Beck asks for, I would like your input
on portions of the Option ARM portfolio that we should be considering selling. We may
have a different view than David Beck’s team as to the most desirable to sell and we
should provide that input. Our suggestion, for instance, might include loans in California
markets where housing prices are declining. There may be other factors.
I will need to get from you by Thursday, February 22 end of day a summary of our
conclusions and recommendations.” 467

465

Option ARMs were considered a “high margin” product within WaMu, because they produced a relatively high
gain on sale when sold. See 4/18/2006 Washington Mutual Home Loans Discussion Board of Directors Meeting, at
JPM_WM00690894, Hearing Exhibit 4/13-3 (chart showing gain on sale margin by product). “COFI” stands for
“Cost of Funds Index” which is an index used to set variable interest rates. “Seasoned” means the loans are older
production.
466
2/2007 WaMu internal email chain, Hearing Exhibit 4/13-40b.
467
Id.

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A WaMu risk analyst, Robert Shaw, replied the same day and identified specific factors
that were driving delinquencies in the Option ARM portfolio:
“Cheryl,
I reviewed the HFI [Hold for Investment] prime loan characteristics that contributed to
rising 60+ delinquency rates 468 between 1/06 - 1/07 [January 6 and 7]. The results of this
analysis show that seven combined factors contain $8.3 billion HFI Option ARM
balances which experienced above-average increases in the 60+ delinquency rate during
the last 12 months (a 821% increase, or 10 times faster than the average increase of 79%).
I recommend that we select loans with some or all of these characteristics to develop a
HFS [Hold for Sale] pool.
Below, I have listed the factors (layered), their percentage change in 60+ delinquency
rate over the last 12 months, and HFI balances as of January 2007. 469
1)
2)
3)
4)
5)
6)
7)
8)

HFI Option ARMs – 79% increase (.56% to 1.0%), $60.6 billion
Above + Vintages 2004-2007 – 179% increase (.33% to .92%), $47.8 billion
Above + CA – 312% increase (.16 to .66%), $23.7 billion
Above + NY/NJ/CT – 254% increase (.21 to .76%), $29.3 billion
Above + $351k-1mil – 460% increase (.12 to .70%), $17.2 billion
Above + FICO 700-739 – 1197% increase (.03% to .40%), $4.2 billion
Above + FICO 780+ – 1484% increase (.02% to .38%), $5.2 billion
Above + FICO 620-659 – 821% increase (.07 to .67%), $8.3 billion[.]” 470

Essentially, the key factors identified Option ARMs that were in certain states, like California,
had certain FICO scores or certain loan amounts, or were issued during the period 2004-2007.
Later that same day, Ms. Feltgen forwarded Mr. Shaw’s email to Mr. Beck, Mr. Chen,
and Mr. Ellson. Her email carried the subject line: “Some thoughts on target population for
potential Option ARM MTA loan sale.” She wrote:
“David, Youyi and Rick:
My team and I look forward to receiving the loan level detail on the pools of Option
ARMs we are considering for sale. I thought it might be helpful insight to see the
information Bob Shaw provides below about the components of the portfolio that have
been the largest contributors to delinquency in recent times. I know this is mostly an
exercise about gain on sale, but we might also be able to accomplish the other purpose of
reducing risk and delinquency at the same time. Talk to you soon.” 471
468

A “60+ delinquency rate” applies to loans in which a payment is late by 60 days or more.
2/2007 WaMu internal email chain, Hearing Exhibit 4/13-40b.
470
2/20/2007 email from Robert Shaw to Cheryl Feltgen, Hearing Exhibit 4/13-41.
471
2/20/2007 email from Cheryl Feltgen to David Beck, Youyi Chen, and Richard Ellson, Hearing Exhibit 4/13-41.
469

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A week later, on Sunday, February 25, 2007, Mr. Beck sent an email with the subject
heading, “HFI Option Arms redirect to HFS,” to much of WaMu’s top management, including
Mr. Schneider, Mr. Rotella, Mr. Casey, as well as the FDIC Examiner-In-Charge Steve Funaro,
and others. The email indicated that a decision had been made to sell $3 billion in recent Option
ARM loans, with as many as possible to be sold before the end of the quarter, which was four
weeks away:
“David [Schneider] and I spoke today. He’s instructed me to take actions to sell all
marketable Option Arms that we intend to transfer to portfolio in 1Q[first quarter], 2007.
That amounts to roughly 3B [$3 billion] option arms availab[l]e for sale. I would like to
get these loans into HFS [the Hold for Sale portfolio] immediately so that [I] can sell as
many as possible in Q1.
John [Drastal], we are only targeting to sell Option Arms destined for portfolio since year
end at this point. I’ll need direction from you on any special accounting concerns or
documentation you will need to get these loans in the warehouse without tainting the HFI
[Hold for Investment] book. 472
Michelle, I believe this action requires MRC [Market Risk Committee] approval. Please
advise.
This week I’ll work to get the necessary governance sign offs in place. Cheryl, please
direct me on what form the approval request should take and what committees should
review and authorize the request. I can pull all of the data.
We continue to work with Cheryl and the credit risk team to analyze emerging credit
risks in our prime portfolio and recommend actions to mitigate them.
Thanks for your help,
DJB” 473
Two days later, on Tuesday, February 27, 2007, Mr. Chen sent an email with the subject
line, “HFI selection criteria changes,” to Michelle McCarthy, who was head of WaMu’s Market
Risk Management department 474 as well as chair of both its Market Risk Committee and Asset
Liability Committee. 475 The email was copied to Mr. Beck, Ms. Feltgen and others, and showed
that the implementation of the plan was underway:

472

Loans in a bank’s Hold for Investment portfolio receive different accounting treatment than loans in the bank’s
Hold for Sale portfolio, and generally accepted accounting principles (GAAP) frown upon frequent transfers
between the two portfolios. The GAAP principles were a key reason for Mr. Beck’s instruction that the transfer of
the Option ARM loans from WaMu’s HFI to HFS portfolios proceed “without tainting the HFI book.”
473
2/25/2007 email from David Beck to himself, David Schneider, Steve Rotella, Ron Cathcart, Tom Casey, Cheryl
Feltgen, others, Hearing Exhibit 4/13-42b.
474
12/28/2007 WaMu internal report, “Disclosure Management,” JPM_WM02414318.
475
3/9/2007 WaMu Market Risk Committee Meeting Minutes, Hearing Exhibit 4/13-43.

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“After careful review with David and the teams, David suggested me to make the
following recommendations to MRC [Market Risk Committee] on the existing prime
HFI/HFS selection criteria
1. Effective March 7th 2007, modify the portfolio option ARM and COFI ARM
retention criteria (see attached ‘existing HFI descriptions’, ‘section 1.01 to 1.11 and
section 2.01 to 2.08’) to include only following loans for the portfolio (HFI)
a. Super jumbo of size greater or equal to $ 3 MM (Risk based pricing applied,
but difficult to sale)
b. Advantage 90 (high LTV loans without MI, very little production as 80/10/10
gets popularity)
c. Foreign Nationals (Risk based pricing applied, but difficult to sale due to FICO
problems)
d. FICO less than 620, except employee loans in which case FICO can be restated after closing.
e. 3-4 units (excessive S & P level hit calls for portfolio execution)
2. Further more, we would like to request, transferring from HFI to HFS, all the MTA
option ARMs and COFI ARMs, funded or locked between January 1st, 2007 to
Mach [sic] 7th, 2007, and DO NOT fit the criteria listed above, and DO NOT fit the
criteria section 3.02 to 4.07 in the attached ‘existing HFI descriptions’)
As a result of this change, we expected to securitize and settle about $ 2 billion more
option/COFI ARMs in Q1-07 (mostly margin greater than 295), and going forward $ 1
billion per month potential incremental volume into HFS. For your information, the
impact to gain on sale for the year is estimated to be about $180 MM pretax based on
current market, and the impacts to 2007 portfolio NII is estimated to be about - $ 80 MM
pretax.
Also included in the attachment, is a pool of $1.3 billion option/COFI ARMs funded to
portfolio between January 1st and February 22nd that will be re-classified as HFS based
on the above recommendations. We understand that this population of loans will be
growing from now to March 7th until the portfolio selection criteria are officially
modified.
We expected to start marketing the deal on March 12th, your prompt response will be
greatly appreciated as the TSG [Technology Solutions Group] and QRM [Quantitative
Risk Management] teams also need time to implement the coding changes.” 476

476

2/27/2007 email from Youyi Chen to Michelle McCarthy, with copies to David Beck, Cheryl Feltgen, Steve
Fortunato, and others, “HFI selection criteria changes,” Hearing Exhibit 4/13-42a [emphasis in original].

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This email proposed several significant changes to WaMu’s treatment of its Option
ARMs. First, WaMu decided to require most of its Option ARMs to go directly into its Hold for
Sale portfolio instead of going into its Held for Investment portfolio. In light of its analysis that
Option ARM loans were rapidly deteriorating, the bank no longer wanted to treat them as
investments it would keep, but immediately sell them. Second, the only Option ARMs that it
would automatically direct into its investment portfolio were those that the bank considered to be
so obviously of poor quality that they were “non-salable,” according to another internal email. 477
Third, WaMu proposed transferring all Option ARM loans originated in 2007 from the
investment portfolio to the sale portfolio. Since these three changes in how WaMu would treat
its Option ARMs had compliance, accounting, and tax consequences, they had to be approved by
the Market Risk Committee. That Committee was composed of senior risk officers throughout
the bank as well as senior managers in the bank’s finance, treasury, and portfolio management
departments. The email indicated that the changes needed to be implemented within about a
week so that marketing of some of the Option ARMs could begin by March 12.
On March 9, 2007 the Market Risk Committee met and approved the Option ARM
proposal. The minutes of that meeting describe the changes that had been proposed:
“- Change the Held for Investment (HFI) ARM and COFI ARM retention criteria to
include only the following loans for HFI effective March 12, 2007; Super jumbo ≥ $3.0
million, Advantage 90, Foreign Nationals, FICO < 620 except employee loans in which
case FICO can be re-stated after closing, and 3 to 4 units.
- Increase Prime Option ARM’s (including Second Liens) from $26.0 billion to $37.0
billion.
- Transfer up to $3.0 billion of saleable Option ARM and COFI ARM loans originated
between January 1, 2007 and March 12, 2007 from HFI to HFS (excluding HFI loans
described above).” 478
The minutes also recorded an exchange between Ms. McCarthy and another Committee
member, Mr. Woods, who was the Chief Financial Officer of WaMu’s Home Loans division:
“A second part of the proposal requests approval to transfer up to $3.0 billion of saleable
Option ARM and COFI ARM loans originated since January 1, 2007 from HFI to Held
for Sale (HFS). In response to a question from Mr. Woods, Ms. McCarthy explained that
there are other Option ARM loans not included in the criteria that we are retaining in
portfolio. Ms. McCarthy noted that Ms. Feltgen ha[d] reviewed and approved this
proposal. Mr. Woods noted that Deloitte has reviewed the proposal as well.” 479

477

2/27/2007 email from Youyi Chen to David Griffith, “Option ARM,” JPM_WM03117796 (“David, we sell all
295+ margin and other OA and COFI, and KEEP the 4 categories going forward due mostly to non-salable
reasons.”).
478
3/9/2007 WaMu Market Risk Committee Meeting Minutes, Hearing Exhibit 4/13-43.
479
Id.

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This exchange acknowledges that not all of the saleable Option ARM loans were diverted from
the HFI to the HFS portfolio. WaMu chose to keep some Option ARMs and make other Option
ARMs available for sale. The internal WaMu documents and communications reviewed by the
Subcommittee strongly suggest that the decision to transfer the most recently originated Option
ARMs from the Held-for-Investment portfolio to the Held-for-Sale portfolio was part of an effort
to sell loans thought to be prone to delinquency, before they became delinquent. None of the
hearing witnesses recalled how these loans were specifically selected for securitization, nor did
any deny that they may have been selected for their propensity toward delinquency. 480
The Subcommittee investigation determined that WaMu carried out the plan as approved,
and transferred at least $1.5 billion Option ARMs originated in the first quarter of 2007, from the
HFI to HFS portfolio. Of these loans, about 1,900 with a total value of a little over $1 billion
were assembled into a pool and used in the WMALT 2007-OA3 securitization in March 2007. 481
WMALT 2007-OA3 securities were issued with WaMu as the sole underwriter and sold to
investors. 482
None of the materials associated with the sale of the WMALT 2007-OA3 securities
informed investors of the process used to select the delinquency-prone Option ARMs from
WaMu’s investment portfolio and include them in the securitization. 483 Nor did WaMu inform
investors of the internal analysis it performed to identify the delinquency-prone loans. Senator
Levin questioned Mr. Beck about this point at the April 13 Subcommittee hearing:
Senator Levin. When you said that investors were told of the characteristics of loans,
they were told of all the characteristics of loans. Did they know, were they informed that
loans with those or some of those characteristics had a greater propensity towards
delinquency in WaMu’s analysis? Were they told that?
Mr. Beck. They were not told of the WaMu analysis. 484
Predictably, the securitization performed badly. Approximately 87% of the securities
received AAA ratings. 485 Within 9 months, by January 2008, those ratings began to be
downgraded. 486 As of February 2010, more than half of the loans in WMALT Series 2007-OA3

480

Mr. Schneider and Mr. Beck were asked about this matter at the hearing. See April 13, 2010 Subcommittee
Hearing at 75-82.
481
4/10/2010 Subcommittee email from Brent McIntosh, Sullivan & Cromwell LLP, Counsel for JPMorgan Chase
[Sealed Exhibit].
482
3/22/2007 WaMu Prospectus Supplement, “Washington Mutual Mortgage Pass-Through Certificates, WMALT
Series 2007-OA3,” at S-102, Hearing Exhibit 4/13-86b.
483
See, e.g., id. See also April 13, 2010 Subcommittee Hearing at 80.
484
April 13, 2010 Subcommittee Hearing at 82.
485
4/11/2007 “New Issue: Washington Mutual Mortgage Pass-Through Certificates WMALT Series 2007-OA3
Trust,” S&P’s Global Credit Portal, www.globalcreditportal.com.
486
See 1/14/2008 “Moody’s takes negative rating actions on certain WaMu Option Arm deals issued in 2007,”
Moody’s, http://www.moodys.com/viewresearchdoc.aspx?lang=en&cy=global&docid=PR_147683.

136
were delinquent, and more than a quarter were in foreclosure. 487 All of the investment grade
ratings have been downgraded to junk status, and the investors have incurred substantial losses.

(4) WaMu Loan Sales to Fannie Mae and Freddie Mac
Washington Mutual had longstanding relationships with a number of government
sponsored enterprises (GSEs), including the Federal National Mortgage Association (Fannie
Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac). 488 Between 2000 and
2008, Washington Mutual sold over $500 billion in loans to Fannie Mae and Freddie Mac,
accounting for more than a quarter of every dollar in loans WaMu originated. 489 While the
majority of those loans involved lower risk, fixed rate mortgages, WaMu also sold Fannie and
Freddie billions of dollars in higher risk Option ARMs.
Relationships with Fannie and Freddie. Fannie Mae and Freddie Mac purchase
residential mortgages that meet specified underwriting standards and fall below a specified dollar
threshold, so-called “conforming loans.” They often enter into multi-year contracts with large
mortgage issuers to purchase an agreed-upon volume of conforming loans at agreed-upon rates.
Prior to 2005, Washington Mutual sold most of its conforming loans to Fannie Mae, with
relatively little business going to Freddie Mac. 490 From at least 1999 through 2004, WaMu sold
those loans to Fannie Mae through a long term “Alliance Agreement,” 491 that resulted in its
providing more than 85% of its conforming loans to Fannie Mae. 492 In 2004, WaMu calculated
that it “contributed 15% of Fannie Mae’s 2003 mortgage business,” 493 and was “Fannie Mae’s
2nd largest provider of business (behind Countrywide).” 494 Among the advantages that WaMu
believed it gained from its relationship with Fannie Mae were help with balance sheet

487

“Select Delinquency and Loss Data for Washington Mutual Securitizations,” chart prepared by the
Subcommittee, Hearing Exhibit 4/13-1g.
488
See 9/29/2005 “GSE Forum,” internal presentation prepared by WaMu, Hearing Exhibit 4/16-91 at
JPM_WM02575608. As mentioned earlier, GSEs are Congressionally chartered, nongovernment owned financial
institutions created for public policy purposes. At the time of the financial crisis, the GSEs included Fannie Mae,
Freddie Mac, and the Federal Home Loan Bank System (FHLBS), all of which were created by Congress to
strengthen the availability of capital for home mortgage financing.
489
See chart, below, using loan data from Inside Mortgage Finance.
490
See 4/12/2004 “Pre-Meeting for Fannie Mae,” internal presentation prepared by WaMu, at JPM_WM02405463,
Hearing Exhibit 4/16-86 (“At current level, alternative executions, e.g., Freddie Mac, FHLB, and private investors,
do not win a significant level of business.”).
491
See 4/12/2004 “Pre-Meeting for Fannie Mae,” internal presentation prepared by WaMu, at JPM_WM02405462,
Hearing Exhibit 4/16-86 (chart entitled, “Timeline of the Alliance Agreement”).
492
See 4/12/2004 “Pre-Meeting for Fannie Mae,” internal presentation prepared by WaMu, at JPM_WM02405461,
Hearing Exhibit 4/16-86 (“Under this Alliance Agreement with Fannie Mae, WaMu has agreed to deliver no less
than 75% of eligible, conforming loans to Fannie Mae.”); 2/23/2005 email exchange between David Beck and
WaMu executives, Hearing Exhibit 4/16-85 (“5 years of 85%+ share with Fannie”).
493
4/12/2004 “Pre-Meeting for Fannie Mae,” internal presentation prepared by WaMu, at JPM_WM02405459,
Hearing Exhibit 4/16-86.
494
Id. at JPM_WM02405467, Subcommittee Hearing Exhibit 4/16-86.

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management, underwriting guidance, and support for WaMu’s Community Reinvestment Act
initiatives. 495
The following slide, created by Washington Mutual in March 2004, provides an overview
of the GSEs’ impact on the mortgage market at the time as well as the status of WaMu’s
relationship with Fannie Mae in early 2004. 496

495

Id. at JPM_WM02405461, Subcommittee Hearing Exhibit 4/16-86. The Community Reinvestment Act (CRA)
was passed by Congress to encourage banks to make loans in low- and moderate-income neighborhoods. See
website of the Federal Financial Institutions Examination Council, “Community Reinvestment Act,”
http://www.ffiec.gov/cra/history.htm. Regulators, including the Office of Thrift Supervision, periodically reviewed
banks’ CRA activities and took them into account if a bank applied for deposit facilities or a merger or acquisition.
Id. A 2005 presentation prepared by WaMu stated that its relationship with Freddie Mac helped the bank meet its
CRA goals by purchasing more than $10 billion in qualifying loans. See 9/29/2005 “GSE Forum,” presentation
prepared by WaMu Capital Markets, at JPM_WM02575611, Hearing Exhibit 4/16-91. Between 1991 and 2006,
WaMu was evaluated 20 times by OTS and the FDIC, achieving the highest possible CRA rating of “Outstanding”
in each evaluation. See website of the Federal Financial Institutions Examination Council, ratings search for
“Washington Mutual,” http://www.ffiec.gov/craratings/default.aspx. Regulations state that an “outstanding”
institution is one that not only meets the needs of its surrounding community, but utilizes “innovative or flexible
lending practices.” See 12 C.F.R. 345, Appendix A, http://www.fdic.gov/regulations/laws/rules/20006600.html#fdic2000appendixatopart345.
496
Id. at JPM_WM02405459, Subcommittee Hearing Exhibit 4/16-86.

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Despite Fannie Mae’s long history with WaMu, in 2005, the bank made a major change
and shifted the majority of its conforming loan business to Freddie Mac. WaMu made the
change in part because its long term contract with Fannie Mae was up for renegotiation, 497 and
Freddie Mac offered better terms. According to WaMu, Freddie Mac had purchased $6 billion
of its Option ARM loans in 2004, without a contract in place, and WaMu wanted to sell more of
those loans. 498 WaMu conducted detailed negotiations with both firms that lasted more than six
months. 499 Internally, it considered a number of issues related to switching the majority of its
conforming loans to Freddie Mac. 500 The deciding factor was Freddie Mac’s offer to purchase
100% of WaMu’s conforming Option ARM mortgages which were among the bank’s most
profitable loans. 501 In January 2005, in a document comparing the proposals from Fannie and
Freddie, WaMu wrote:
“The Freddie Mac Business Relationship [proposal] dated 12/21/2004 establishes another
execution opportunity that diversifies WaMu’s execution risk and confers material
financial benefits for the Option ARM product. The key to the Freddie proposal is that it
provides significant liquidity for our Option ARM originations, with more advantageous
credit parameters, competitive g-fees and preferred access to their balance sheet relative
to our current agreement with Fannie. Fannie has made it very clear to us that we should
not expect to retain the same pricing and credit parameters for Option ARMs in our 2005
pricing agreement that we have enjoyed during 2004. For fixed rate loans and hybrids, gfe[e]s adjusted for MAP Pricing and credit parameters are roughly equivalent to the
Fannie Agreement.” 502

497

See 4/12/2004 “Pre-Meeting for Fannie Mae,” internal presentation prepared by WaMu, at JPM_WM02405468,
Hearing Exhibit 4/16-86.
498
See, e.g., 2/23/2005 email exchange between David Beck and WaMu executives, Hearing Exhibit 4/16-85
(reporting that Freddie Mac was “very aggressive in 2004 buying 6B of option arm without a share agreement in
place.”).
499
See, e.g., 4/12/2004 “Pre-Meeting for Fannie Mae,” internal presentation prepared by WaMu, Hearing Exhibit
4/16-86; 12/17/2004 email exchange among WaMu executives, “Risks/Costs to Moving GSE Share to FH [Freddie
Mac],” JPM_WM05501399, Hearing Exhibit 4/16-88; 1/5/2005 “Business Relationship Proposal Issues,” document
prepared by WaMu, Hearing Exhibit 4/16-90 (describing multiple issues negotiated with both firms);
2/23/2005 email exchange between David Beck and WaMu executives, Hearing Exhibit 4/16-85 (David Beck wrote:
“Fannie negotiated hard for our business especially in the 11th hour.” CEO Killinger responded: “Good work
David. It appears we got a good economic outcome and haven’t burnt any bridges for the future.”).
500
See 12/17/2004 email exchange among WaMu executives, “Risks/Costs to Moving GSE Share to FH [Freddie
Mac],” at JPM_WM05501401, Hearing Exhibit 4/16-88 (listing multiple issues including whether Fannie Mae
would “be less supportative [sic] of using their balance sheet to support our quarter-end liquidity needs”).
501
Id. at JPM_WM05501399 (describing Fannie Mae’s offer to purchase two-thirds of WaMu’s Option ARM
production); 2/23/2005 email exchange between David Beck and WaMu executives, Hearing Exhibit 4/16-85 (“I
reviewed the most recent proposals from Freddie and Fannie today with Steve. We agreed that the Freddie 65%
minimum share (100% of option arms) proposal offers us between 26MM and 37MM of benefit depending on
volume … 39% of our 2005 home loans gain on sale comes from conforming option arm sales. FH [Freddie Mac]
stepped up with 21B of committed balance sheet and aggressive forward pricing for OA [Option ARMs] that result
in the financial benefit over FN [Fannie Mae].”). WaMu originated both conforming and nonconforming Option
ARMs, depending upon whether the loan exceeded the GSEs’ dollar limit for the loans they would purchase.
502
1/5/2005 “Business Relationship Proposal Issues,” document prepared by WaMu, Hearing Exhibit 4/16-90.

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In April 2004, at the conclusion of its negotiations with Fannie and Freddie, WaMu
entered into a one-year contract with Freddie Mac, switching the lion’s share of the bank’s
conforming loans to that company and away from Fannie Mae. 503 According to WaMu, Freddie
Mac’s share of its conforming loans “went from 20% in Q1 [first quarter of 2005] to 81% in Q2
[second quarter of 2005].” 504 WaMu reported internally that, as a result of the new contract, it
became the second largest seller of mortgages to Freddie Mac behind Wells Fargo, and that
“[f]orty percent of FRE’s [Freddie Mac’s] portfolio growth in ’05 can be attributed to WM’s $8
billion sale of option ARMS.” 505
As the 2005 contract’s expiration date neared, WaMu developed a list of issues to be
negotiated with Freddie Mac for a new contract, noting that Freddie Mac “does not want to be a
‘one-year’ wonder.” 506 WaMu also observed that “FRE is not likely to outbid FNM by such a
wide margin on option ARMS like in the current contract.” 507 In a list of “asks … to cement our
relationship” with Freddie Mac, WaMu indicated, among other issues, that it would press
Freddie Mac to buy more subprime and “lower quality loans”:





“Credit …
• WM [WaMu] wants FRE [Freddie Mac] to expand the eligibility of lower
quality loans to ensure WM is ‘market competitive’. …
Non-prime
• Potential securitization of SMF [Specialty Mortgage Finance] assets ($1.5 $10 bil) that will create liquidity for WM and create a positive affordability
profile for FRE;
• Expansion of credit profile into subprime; (Keith Johnson wants to keep this
point very general); …
Liquidity – we want to understand how we can best help the FRE portfolio
w/Product.
• Longer term portfolio commitment on option ARMS;
• Broader deliverability guidelines w/respect to option ARMs.” 508

WaMu wrote that it also expected Freddie Mac to discuss trends related to accepting “lower
documentation standards.” 509
In April 2006, WaMu signed a new, two-year contract with Freddie Mac, again agreeing
to sell the majority of its conforming loans to that company. 510 WaMu President Steve Rotella
503

See 7/5/2006 “Freddie Mac – WaMu Meeting,” document prepared by WaMu, JPM_WM03200453, Hearing
Exhibit 4/16-87 (“WM executed a majority share arrangement w/FRE [Freddie Mac], effective 4/1/05 thru 3/31/06;
included in that arrangement was a market-leading opportunity to sell up to $21 billion of option ARMs to the FRE
portfolio.”).
504
Id.
505
Id.
506
Id.
507
Id.
508
Id. [italics in original omitted].
509
Id. at JPM_WM03200454.

140
wrote: “Congratulations to the team for getting this done and with terrific results for the
company.” 511 In a document describing the “highlights” of the new agreement, a Wamu
employee wrote:
“Aligns WM with the stronger GSE over the next 12-18 months; we fully expect once
FNM [Fannie Mae] gets its financial house in order to become a very aggressive
competitor – just when this contract is coming up for renewal.” 512
WaMu’s reference to the “stronger GSE” was in response to accounting scandals that,
over the prior year, had weakened both Freddie Mac and Fannie Mae. In 2003, Freddie Mac
announced that it had misstated its earnings by at least $4.5 billion, mostly by under-reporting its
earnings in order to smooth the volatility of its quarterly earnings reports, and would be restating
its earnings for the prior three years. 513 Later that year, Freddie Mac paid a $125 million civil
fine to settle civil charges of accounting fraud brought by its regulator, the Office of Federal
Housing Enterprise Oversight (OFHEO). 514 In September 2004, OFEHO issued a report finding
that Fannie Mae had also violated accounting rules to smooth its earnings reports. 515 Fannie Mae
later filed a $6.3 billion restatement of earnings and paid a $400 million fine. 516 Both GSEs also
changed their senior management.
When asked at the Subcommittee hearing to define Washington Mutual’s relationship
with Fannie Mae and Freddie Mac, Mr. Rotella provided the following response:
“Well, like all big mortgage lenders, Senator, Fannie Mae and Freddie Mac were
important .... [T]here was a substantial amount of production that was sold off to either
Fannie or Freddie. ... [A]ny mortgage lender that is in the mortgage business, given the
government advantages and the duopoly that Fannie and Freddie had, needed to do
business with them. It would be very difficult to be a mortgage player without them.” 517

510
See 4/28/2006 email exchange between WaMu executives, JPM_WM02521921, Hearing Exhibit 4/16-89
(celebrating contract that “David Schneider signed today”).
511
Id.
512
Id.
513
See “Freddie Mac Raises its Estimate of Errors,” Associated Press (9/26/2003).
514
See “Freddie to Settle with Fat Civil Fine,” Associated Press (12/11/2003). In 2007, Freddie Mac paid an
additional $50 million civil fine to the SEC to settle civil charges of securities fraud, without admitting or denying
wrongdoing. “Freddie Mac to Pay $50 million,” Associated Press (9/28/2007).
515
9/17/2004 Office of Federal Housing Enterprise Oversight Report of Findings to Date, “Special Examination of
Fannie Mae,” available at http://www.fhfa.gov/PreviewFHFAWWW/webfiles/748/FNMfindingstodate17sept04.pdf.
516
See 2004 10-K filing with the SEC. Fannie Mae paid the $400 million civil fine in May 2006, to settle
accounting fraud charges brought by OFHEO and SEC. See also “Fannie Settles Fraud Charges,” National
Mortgage News (5/29/2006).
517
April 13, 2010 Subcommittee Hearing at 105, Senator Coburn question to Mr. Rotella.

141
Loan Sales to Fannie and Freddie. During the years examined by the Subcommittee,
WaMu sold a variety of loans to both Fannie Mae and Freddie Mac, including 15, 20, and 30year fixed rate mortgages; Option ARMs; interest-only ARMs; and hybrid ARMs. 518
A September 2005 chart prepared by WaMu, identifying the loans it sold to Fannie Mae
and Freddie Mac during the first part of that year, details the types and volumes of loans
involved. 519 The chart showed, for example, that the largest category of loans that WaMu sold to
Fannie and Freddie at that point in 2005 was fixed rate loans, which together totaled nearly
140,000 loans with a collective, total loan amount of about $24.3 billion. 520 The next largest
category of loans was Option ARMs, which WaMu sold only to Freddie Mac and which
consisted of 35,421 loans with a total loan amount of about $7.9 billion. 521 The third largest
category was interest-only ARMs, totaling about 8,400 loans with a total loan amount of about
$2 billion.522 The fourth largest category was hybrid ARMs, totaling 6,500 loans with a total
loan amount of about $1.4 billion.523 WaMu also sold other loans to Fannie and Freddie which
included 6,020 loans of various types bearing a total loan amount of about $2 billion.524
The chart showed that, altogether by September 2005, WaMu had sold Fannie and
Freddie about 196,000 loans with a total loan amount of $36.5 billion. 525 About 70% were fixed
rate loans; 526 about 20% were Option ARMs; 527 and other types of loans made up the final 10%.
In addition to those single family mortgages, WaMu had an active business with Fannie and
Freddie regarding loans related to multifamily apartment buildings. 528 The 2005 loan data
indicates that WaMu sold twice as many loans to Fannie and Freddie as it did to all other buyers
combined. 529 Most of those loans were fixed rate mortgages, but they also included the higher
518

See 9/29/2005 “GSE Forum,” internal presentation prepared by WaMu, at JPM_WM02575611, Hearing Exhibit
4/16-91 (chart entitled, “WaMu’s Deliveries – Contract to Date 2005”). For more information on these types of
loans, see Chapter II, above. WaMu did not sell loans directly to Ginnie Mae which, instead, guaranteed certain
government backed mortgages when they were securitized by one of its approved securitizers. The WaMu chart
showed that, in 2005, WaMu originated 35,291 loans with a total loan amount of about $4.6 billion that were
securitized with Ginnie Mae guarantees. Id.
519
Id.
520
Id. The WaMu chart showed that WaMu sold 31,460 fixed rate loans with a total loan amount of about $5.2
billion to Fannie Mae, and 108,246 loans with a total loan amount of about $19.1 billion to Freddie Mac.
521
Id.
522
Id. The WaMu chart showed that WaMu sold 5,350 interest-only ARMs with a total loan amount of about $1.3
billion to Fannie Mae, and 3,016 interest-only ARMs with a total loan amount of $724 million to Freddie Mac.
523
Id. The WaMu chart showed that WaMu sold 3,250 hybrid ARMs with with a total loan amount of nearly $700
million to Fannie Mae, and 3,303 hybrid ARMs with a total loan amount of nearly $700 million to Freddie Mac.
524
Id. See chart for more detail.
525
Id. The chart showed that, altogether, WaMu sold about 45,000 loans with a total loan amount of $7.9 billion to
Fannie Mae and 151,000 loans with a total loan amount of about $28.6 billion to Freddie Mac.
526
By loan number, the percentage is 71%; by loan amount, the percentage is 67%.
527
By loan number, the percentage is 18%; by loan amount, the percentage is 22%.
528
See, e.g., 4/12/2004 “Pre-Meeting for Fannie Mae,” internal presentation prepared by WaMu, at
JPM_WM02405461, JPM_WM02405467, Hearing Exhibit 4/16-86 (chart entitled, “Overview of the Alliance,” and
“WaMu was responsible for 34.7% of Fannie Mae’s Multifamily business”).
529
See 9/29/2005 “GSE Forum,” internal presentation prepared by WaMu, at JPM_WM02575611, Hearing Exhibit
4/16-91 (chart entitled, “WaMu’s Deliveries – Contract to Date 2005”). During the same time period in 2005,
WaMu sold about 99,000 loans with a total loan amount of about $35 billion to buyers other than Fannie and

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risk Option ARMs. In 2005, for example, WaMu sold three times as many Option ARMs to
Freddie Mac than to all of its other buyers combined. 530
The amount and variety of the loans that WaMu sold to the GSEs fluctuated over time.
For example, the following chart, which is taken from data compiled by Inside Mortgage
Finance, presents the total dollar volume of loans sold by WaMu to Fannie and Freddie from
2000 until 2008 when WaMu was sold, as well as the percentage those loans represented
compared to WaMu’s total loan originations. 531

Year
2000
2001
2002
2003
2004
2005
2006
2007
2008
TOTAL

Sold to Freddie Mac
(in billions)
$
0
$ 1.4
$ 0.2
$ 2.2
$ 1.1
$ 34.6
$ 32.3
$ 31.8
$ 20.8
$ 124.4

Sold to Fannie Mae
(in billions)
$ 7.1
$ 35.3
$ 95.7
$ 174.3
$ 25.9
$ 20.3
$ 11.2
$ 8.2
$ 2.1
$ 380.1

Percent of Total WaMu
Originations Sold to GSEs
14%
20%
29%
40%
10%
20%
23%
29%
70%
27.3%

Source: Inside Mortgage Finance

The data indicates that, in total, WaMu sold more than half a trillion dollars in loans to the two
GSEs in the nine years leading up to the bank’s collapse, accounting for more than a quarter of
all of the loans WaMu originated.
The documents obtained by the Subcommittee indicate that, from 2004 to 2008, Fannie
Mae and Freddie Mac competed to purchase billions of dollars in WaMu’s residential mortgage
loans, and WaMu used that competition to negotiate better terms for its loan sales. Twice during
that period, WaMu successfully played one GSE off the other to sell more high risk Option
ARM loans under better terms to Freddie Mac.
Freddie. The two largest categories of loans sold to buyers other than Fannie or Freddie were jumbo loans (43,758
loans with a total loan amount of $26.9 billion) and government backed loans in securities guaranteed by Ginnie
Mae (35,291 loans with a total loan amount of $4.6 billion). Id.
530
Id. The chart indicates that WaMu sold over 17,000 loans with a total loan amount of nearly $4 billion to Freddie
Mac, but only 5,841 Option ARMs with a total loan amount of $1.2 billion to all other buyers. It is possible,
however, that the data on Option ARMs sold to other buyers is understated if some portion of the loans categorized
on the chart as “jumbo” loans were, in fact, also Option ARMs. See, e.g., Id. at JPM_WM02575611, Hearing
Exhibit 4/16-91 (interpretive note below chart); 8/2006 WaMu chart entitled, “WaMu Originations Product Mix,” at
JPM_WM00212644, Hearing Exhibit 4/13-37 (showing that WaMu used Option ARMs in both conforming and
jumbo loans). In addition to selling Option ARMs to Freddie Mac and others, WaMu kept a portion of the Option
ARMs it originated in its investment portfolio and securitized still others.
531
“Historical Data from Inside Mortgage Finance, Inside Mortgage Finance, www.imfpubs.com/data.

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F. Destructive Compensation Practices
Washington Mutual and Long Beach’s compensation practices contributed to and
deepened its high risk lending practices. Loan officers and processors were paid primarily on
volume, not primarily on the quality of their loans, and were paid more for issuing higher risk
loans. Loan officers and mortgage brokers were also paid more when they got borrowers to pay
higher interest rates, even if the borrower qualified for a lower rate – a practice that enriched
WaMu in the short term, but made defaults more likely down the road. Troubling compensation
practices went right to the top. In 2008, when he was asked to leave the bank that failed under
his management, CEO Kerry Killinger received a severance payment of $15 million. 532

(1) Sales Culture
WaMu’s compensation policies were rooted in the bank culture that put loan sales ahead
of loan quality. As early as 2004, OTS expressed concern about WaMu’s sales culture: “The
overt causes for past underwriting concerns were many, but included: (1) A sales culture
focused heavily on market share via loan production, (2) extremely high lending volumes.” 533 In
early 2005, WaMu’s Chief Credit Officer complained to Mr. Rotella that: “[a]ny attempts to
enforce [a] more disciplined underwriting approach were continuously thwarted by an
aggressive, and often times abusive group of Sales employees within the organization.” 534 The
aggressiveness of the sales team toward underwriters was, in his words, “infectious and
dangerous.” 535
In late 2006, as home mortgage delinquency rates began to accelerate and threaten the
viability of WaMu’s High Risk Lending Strategy, Home Loans President David Schneider
presided over a “town hall” meeting to rally thousands of Seattle based employees of the WaMu
Home Loans Group. 536 At the meeting, Mr. Schneider made a presentation, not just to WaMu’s
sales force, but also to the thousands of risk management, finance, and technology staff in

532

See “Washington Mutual CEO Kerry Killinger: $100 Million in Compensation, 2003-2008,” chart prepared by
the Subcommittee, Hearing Exhibit 4/13-1h.
533
5/12/2004 OTS Safety & Soundness Examination Memo 5, “SFR Loan Origination Quality,” at 1, Hearing
Exhibit 4/16-17.
534
Undated draft WaMu memorandum, “Historical Perspective HL – Underwriting: Providing a Context for Current
Conditions, and Future Opportunities,” JPM_WM00783315 (a legal pleading states this draft memorandum was
prepared for Mr. Rotella by WaMu’s Chief Credit Officer in or about February or March 2005; FDIC v. Killinger,
Case No. 2:2011cv00459 (W.D. Wash.), Complaint (March 16, 2011), at ¶ 35).
535
Undated draft WaMu memorandum, “Historical Perspective HL – Underwriting: Providing a Context for Current
Conditions, and Future Opportunities,” JPM_WM00783315, at JPM_WM00783322.
536
Mr. Schneider told the Subcommittee that this meeting was held in early 2007, but Ms. Feltgen’s end of 2006
email to her staff quotes Mr. Schneider’s language from this presentation. 1/3/2007 email from Ron Cathcart to
Cheryl Feltgen, Hearing Exhibit 4/13-73.

144
attendance. 537 The title and theme of his presentation was: “Be Bold.” 538 One slide
demonstrates the importance and pervasiveness of the sales culture at WaMu: 539

When asked about this presentation, Mr. Schneider told the Subcommittee it was an appropriate
message, even for WaMu’s risk managers. 540
The sales culture was also promoted through WaMu’s “President’s Club,” which
sponsored an annual all-expense-paid gala and retreat in an exotic locale, such as Hawaii or the
Bahamas, where the top producing loan officers were feted and lavished with gifts and
plaudits. 541 Only a limited number of top producing loan officers were made members of the
club, and the President’s Club trips were used to incentivize sales volume. Loan officers were
encouraged to look up their sales rankings on the company’s intranet to see if they would qualify
for a trip.
In November 2006, as subprime mortgages began to incur delinquencies, Mr. Schneider
sent a letter about the President’s Club to WaMu loan consultants. Under a photo of the Grand
Hyatt Kauai in Hawaii and the banner headline, “President’s Club – Take the Lead!,” Mr.
Schneider wrote:

537

Subcommittee interview of David Schneider (2/17/2010).
“Way2Go, Be Bold!,” WaMu presentation prepared by David Schneider, Home Loans President, at 28, Hearing
Exhibit 4/13-4.
539
Id. at 30 [recreated by the Subcommittee staff from an image].
540
Subcommittee interview of David Schneider (2/17/2010).
541
Subcommittee interviews of Brian Minkow (2/16/2010), David Schneider (2/17/2010), and Kerry Killinger
(2/5/2010).
538

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“I attended WaMu’s President’s Club last year for the first time and had an awesome
time getting to know the stars of our sales force. You work hard, but you know how to
have a good time too ….
“At the first-class awards dinner, I looked around the room and felt honored to be with so
many talented people. Congratulations to those of you who were repeat President’s Club
honorees. Of those of you who have not yet reached the President’s Club, I want each
and every one of you to believe you have the potential to achieve this great reward.
“Now is the time to really kick it into high gear and drive for attending this awesome
event! Rankings are updated and posted monthly on the DashBoards (under reports) and
on WaMu.net: President’s Club Rankings. Where do you rank? What can you do to take
your business [to] the next level? Your management team is here to help.” 542
At the April 13 Subcommittee hearing, Mr. Schneider testified:
“As housing prices peaked, the economy softened, and credit markets tightened, WaMu
adopted increasingly conservative credit policies and moved away from loan products
with greater credit risk. ... During my time at WaMu, we reduced and then entirely
stopped making Alt A loans and Option ARM loans.” 543
However, his November 2006 letter to WaMu loan consultants showed no reticence about the
High Risk Lending Strategy. The letter went on to say:
“As you know, growth is a key area of focus for WaMu and Home Loans. I am
extremely proud of the achievements in Production so far this year – and I know it’s been
tough. I’m especially pleased with your ability to change with the market and
responsibly sell more higher-margin products – Option ARM, Home Equity, Non-prime,
and Alt A. I also know that you – truly the best sales team in the industry – are up to the
challenge of doing even more by year end. ...
“I hope to see you in Kauai!” 544
The 2005 President’s Club retreat had taken place in Maui. The awards night was hosted
by Magic Johnson. An excerpt of the script from the evening gives a sense of the proceedings:
“VOICE-OVER ANNOUNCER
Good evening ladies and gentleman and welcome to your President’s Club 2005
Awards Night program!
Please welcome the host of President’s Club, the President of the Washington
Mutual Home Loans Group, Mr. David Schneider!
542

11/2006 “President’s Club - Take the Lead!,” WaMu Home Loans flier, Hearing Exhibit 4/13-62.
Prepared statement of David Schneider, April 13, 2010 Subcommittee Hearing.
544
11/2006 “President’s Club - Take the Lead!,” WaMu Home Loans flier, Hearing Exhibit 4/13-62.
543

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WALK-UP MUSIC
FOR DAVID SCHNEIDER
DAVID SCHNEIDER
Thank you ladies and gentlemen, and welcome to this very special Awards
Evening.
Wow, could you feel the energy and excitement tonight out on the Red Carpet?!
Talk about star power!
And it was great fun to learn so much more about some of you during the
interviews … and at the bar.
But don’t worry. I’m told that the age-old tradition here at Washington Mutual is,
‘What happens at President’s Club stays at President’s Club.’ And who am I to
mess with tradition?
Tonight we are gathered together to pay the highest respects and honors to those
who deserve them the most, the President’s Club Class of 2005. …
And of course I want to pay special homage to all of you astonishing returning
champions of President’s Club. You multiple award-winning superstars clearly
lead our entire industry as the standard others can only attempt to match. You
folks really do make this feel like the academy awards tonight because
everywhere I turn I see another star of another box office sensation.” 545
This 2005 awards ceremony was attended by WaMu loan officers Luis Fragoso and Thomas
Ramirez at the same time they were under investigation for fraud. Both were members of the
President’s Club in 2005 and 2006.
When asked about the sales culture at the bank, Mr. Vanasek testified at the hearing that
he tried in vain to counter it. He recalled one occasion at an annual management retreat in 2004,
in which the bank was promoting a new advertising slogan called, “The Power of Yes”:
“I stood in front of thousands of senior Washington Mutual managers and executives in
an annual management retreat in 2004 and countered the senior executive ahead of me on
the program who was rallying the troops with the company's advertising line, ‘The power
of yes.’ The implication of that statement was that Washington Mutual would find some
way to make a loan. The tag line symbolized the management attitude about mortgage
lending more clearly than anything I can tell you.

545

2005 “President’s Club 2005 - Maui, Awards Night Show Script,” Washington Mutual Home Loans Group,
Hearing Exhibit 4/13-63a.

147
“Because I believed this sent the wrong message to the loan originators, I felt compelled
to counter the prior speaker by saying to the thousands present that the power of yes
absolutely needed to be balanced by the wisdom of no. This was highly unusual for a
member of the management team to do, especially in such a forum. In fact, it was so far
out of the norm for meetings of this type that many considered my statement exceedingly
risky from a career perspective.” 546
The President’s Club annual trip was the pinnacle of WaMu awards to its top producing
loan consultants. One loan consultant interviewed by the Subcommittee described it as an
incredible experience, with first class airfare, daily gifts, lavish food, and top entertainment for
both employees and their spouses. 547 It was also an opportunity to meet WaMu’s top executives,
including Mr. Killinger, Mr. Rotella, and Mr. Schneider. It sent a powerful message about the
priority that WaMu placed on loan volume and sales of higher risk loans.

(2) Paying for Speed and Volume
The Long Beach and Washington Mutual compensation systems encouraged high
volumes of risky loans but provided little or no incentive to ensure high quality loans that
complied with the bank’s credit requirements. WaMu loan officers or their sales associates
typically interacted directly with customers interested in obtaining loans. Some also were
allowed to accept loans brought to them by third party lenders or mortgage brokers. Long Beach
account executives dealt only with third party lenders or mortgage brokers; they did not deal
directly with customers. After reaching agreement on a loan, the WaMu or Long Beach loan
officers or executives completed the loan application and sent it to a loan processing center
where the application was reviewed by an underwriter and, if approved, underwent further
processing and brought to a loan closing.
Long Beach and Washington Mutual loan officers received more money per loan for
originating higher risk loans and for exceeding established loan targets. Loan processing
personnel were compensated according to the speed and number of the loans they processed.
Loan officers and their sales associates received still more compensation if they charged
borrowers higher interest rates or points than required in bank rate sheets specifying loan prices,
or included prepayment penalties in the loan agreements. That added compensation created
incentives to increase loan profitability, but not loan quality. A 2008 OTS review elaborated:
“[T]he review defines an origination culture focused more heavily on production volume
rather than quality. An example of this was a finding that production personnel were
allowed to participate in aspects of the income, employment, or asset verification process,
a clear conflict of interest. … Prior OTS examinations have raised similar issues

546
547

April 13, 2010 Subcommittee Hearing at 16-17.
Subcommittee interview of Brian Minkow (2/16/2010).

148
including the need to implement incentive compensation programs to place greater
emphasis on loan quality.” 548

(a) Long Beach Account Executives
Despite the years of internal and external audits that found a lack of internal controls at
Long Beach that led to some of the worst rates of loan delinquency in the subprime industry,
Long Beach continued to incentivize production volume over sound lending. The Subcommittee
obtained a presentation of the Long Beach 2004 Incentive Plan. 549 The plan outlines four
compensation tiers based on volume, creating a system where the largest producers not only
make more money by issuing more loans, but rather, as producers climb more of the tiers, they
earn a higher rate of commission as well. Tier 1 Long Beach account executives, those who
closed 1-6 loans or funded up to $899,000 in loans per month, received 40 basis points (bps)
commission for each broker sourced loan. 550 Tier 2 Long Beach account executives, those who
closed 7-12 loans or funded between $900,000 and $2,499,999 in loans per month, received 50
bps commission for each broker sourced loan plus $30 per loan in additional compensation. Tier
3 Long Beach account executives, those who closed 13-26 loans or funded between $2,500,000
and $4,999,999 in loans per month, received 55 bps commission for each broker sourced loan
plus $30 additional per loan. Tier 4 Long Beach account executives, those who closed more than
26 loans or funded more than $5,000,000 in loans per month, received 60 bps commission for
each broker sourced loan. 551
The 2004 Long Beach Incentive Plan also introduced a contingent compensation program
called, “Long Term Cash Incentive Program,” which provided bonuses tied to the performance
of WaMu stock and could be converted to cash over a three-year period. Top producing Long
Beach account executives received the Long Term Cash Incentive bonus calculated as a small
percentage of overall volume. Like the tier system, as volume increased so did the percentage
used to calculate the bonus. Account executives ranked in the top 25% in volume received a five
bps bonus on their total production, account executives in the top 15% received a 7.5 bps bonus,
and account executives in the top 5% received a 10 bps bonus. These bonuses could add up to
tens of thousands, if not hundreds of thousands of dollars. 552
In addition, in 2004, the top 40 Long Beach account executives were rewarded with a trip
to the President’s Club. Long Beach used a point system to calculate the top account executives
for this purpose. Three points were awarded for each loan funded for first mortgages, two points
548

6/19/2008 OTS Findings Memorandum, “Loan Fraud Investigation,” JPM_WM02448184, Hearing Exhibit 4/1325.
549
Documents regarding Long Beach compensation, Hearing Exhibit 4/13-59a.
550
Id. The “units” referred to in the document are “loans.” Subcommittee interview of Brian Minkow (2/16/2010).
By awarding “basis points” the compensation system ensured that the account executives got a percentage of the
loan amounts that they successfully issued after receiving loan information from a broker, incentivizing them to
maximize the dollar amount of the loans they issued. Some were also paid a per loan fee, incentivizing them to sell
as many loans as possible.
551
Id.
552
Id.

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were awarded for each purchase loan funded (as opposed to a refinance), and two points were
awarded for each $100,000 funded. The point system created a competition that focused
primarily on volume. The 2004 incentive plan makes no reference to loan quality. 553
Long Beach regularly made changes to the compensation plan, but the basic volume
incentives remained. In the 2007 incentive plan, which took effect after the collapse of the
subprime market, the volume requirements were even greater than 2004 requirements. In 2007,
the Tier 1 represented 1-9 qualified loans and up to $1,499,999 funded; Tier 2 was 10-13
qualified loans and between $1,500,000 and $2,399,000 funded; Tier 3 was 14-35 qualified loans
and between $2,400,000 and $5,999,999 funded; Tier 4 was 36 or more loans and $6,000,000 or
more funded. 554

(b) WaMu Loan Consultants
Like Long Beach, at WaMu loan officers were compensated for the volume of loans
closed and loan processors were compensated for speed of loan closing rather than a more
balanced scorecard of timeliness and loan quality. According to the findings and
recommendations from an April 2008 internal investigation into allegations of loan fraud at
WaMu:
“A design weakness here is that the loan consultants are allowed to
communicate minimal loan requirements and obtain various verification
documents from the borrower that [are] need[ed] to prove income,
employment and assets. Since the loan consultant is also more intimately
familiar with our documentation requirements and approval criteria, the
temptation to advise the borrower on means and methods to game the
system may occur. Our compensation and reward structure is heavily
tilted for these employees toward production of closed loans.” 555
An undated presentation obtained by the Subcommittee entitled, “Home Loans Product
Strategy, Strategy and Business Initiatives Update,” outlines WaMu’s 2007 Home Loans
Strategy and shows the decisive role that compensation played, while providing still more
evidence of WaMu’s efforts to execute its High Risk Lending Strategy:
“2007 Product Strategy
Product strategy designed to drive profitability and growth
-Driving growth in higher margin products (Option ARM, Alt A, Home
Equity, Subprime) …

553

Id.
Documents regarding Long Beach compensation, Hearing Exhibit 4/13-59b.
555
4/4/2008 WaMu Memorandum of Results, “AIG/UG and OTS Allegation of Loan Frauds Originated by [name
redacted],” at 11, Hearing Exhibit 4/13-24.
554

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-Recruit and leverage seasoned Option ARM sales force, refresh existing
training including top performer peer guidance
-Maintain a compensation structure that supports the high margin product
strategy” 556
The presentation goes on to explain the Retail Loan Consultant incentive plan: “Incentive Tiers
reward high margin products … such as the Option ARM, Non-Prime referrals and Home Equity
Loans …. WaMu also provides a 15 bps ‘kicker’ for selling 3 year prepayment penalties.” 557
In order to promote high risk, high margin products, WaMu paid its loan consultants
more to sell them. WaMu divided its products into four categories: “W,” “A,” “M,” and “U.”
WaMu paid the highest commissions for “W” category products, and in general, commissions
decreased though the other categories. “W” products included new Option ARMs, “Non-prime”
referrals, and home equity loans. “A” products included Option ARM refinancings, new hybrid
ARMs, new Alt A loans, and new fixed rate loans. Like Long Beach, WaMu also created four
compensation tiers with increasing commissions based on volume. The tiers were called:
“Bronze,” “Silver,” “Gold,” and “Platinum.” 558 Even in 2007, WaMu’s compensation plan
continued to incentivize volume and high risk mortgage products.
In 2007, WaMu also adopted a plan to pay “overages,” essentially a payment to loan
officers who managed to sell mortgages to clients with higher rates of interest than the clients
qualified for or were called for in WaMu’s daily rate sheets. The plan stated:
“Overages … [give a] Loan Consultant [the] [a]bility to increase compensation [and]
[e]nhance compensation/incentive for Sales Management …. Major national competitors
have a similar plan in place in the market. ” 559
Under the 2007 plan, if a loan officer sold a loan that charged a higher rate of interest than
WaMu would have accepted according to its rate sheet, WaMu would split the additional profit
with the loan officer. 560 This compensation practice, often referred to as awarding “yield spread
premiums,” has been barred by the Dodd-Frank Act implementing financial reforms. 561

556

2007 WaMu Home Loans Product Strategy, “Strategy and Business Initiatives Update,” JPM_WM03097217,
Hearing Exhibit 4/13-60a [emphasis in original].
557
Id.
558
Id.
559
12/6/2006 WaMu Home Loan Credit Risk F2F, JPM_WM02583396-98, Hearing Exhibit 4/13-60b (The proposal
to pay overages, adopted in 2007, increased compensation for loan officers who sold loans with a higher interest rate
or more points than required on WaMu’s daily rate sheet.)
560
Subcommittee interview of David Schneider (2/17/2010).
561
Section 1403 of the Dodd-Frank Act (prohibiting “steering incentives”).

151

(c) Loan Processors and Quality Assurance Controllers
At Long Beach and WaMu, volume incentives were not limited to the sales people. Back
office loan processors and quality control personnel were also compensated for volume. While
WaMu executives and senior managers told the Subcommittee that quality control was
emphasized and considered as part of employee compensation, the back office staff said
otherwise. 562 Diane Kosch worked as a Quality Assurance Controller in a Long Beach Loan
Fulfillment Center (LFC) in Dublin, California, east of San Francisco Bay. She told the
Subcommittee that the pressure to keep up with the loan volume was enormous. Each month the
LFC would set volume goals, measured in dollar value and the number of loans funded. At the
end of each month the pressure to meet those goals intensified. Ms. Kosch said that at month’s
end, she sometimes worked from 6 a.m. until midnight reviewing loan files. Monthly rallies
were held, and prizes were awarded to the underwriters and loan processors who had funded the
most loans. 563
Documents obtained by the Subcommittee confirm Ms. Kosch’s recollections. A
September 2004 email sent to all Dublin LFC employees with the subject line, “Daily
Productivity – Dublin,” by the area manager uses creative formatting to express enthusiasm:
“Less than 1 week and we have a long way to go to hit our 440M!
including today, we have 4 days of fundings to end the Quarter with a
bang! With all the new UW changes, we will be swamped next month, so
don’t hold any back!
4 days…..it’s time for the mad dash to the finish line! Who is in the
running……
Loan Set Up – Phuong is pulling away with another 18 files set up
yesterday for 275 MTD! 2nd place is held by Jean with 243…can you
catch Phuong? Get ready Set Up – come October, it’s going to get a little
crazy!
Underwriting – Michelle did it! She broke the 200 mark with 4 days left
to go! Nice job Michelle! 2nd place is held by Andre with 176 for the
month! Way to go Andre! Four other UW’s had solid performances for
the day as well including Mikhail with 15! Jason and Chioke with 11
and June with 10 – The double digit club!” 564

562

Subcommittee interview of Mark Brown (2/19/2010). Mr. Brown, WaMu National Underwriting Director, told
the Subcommittee that incentives for loan processors were based on quality standards and monthly volume.
563
Subcommittee interview of Diane Kosch (2/18/2010).
564
9/2004 Long Beach processing center internal email, Hearing Exhibit 4/13-61. In the email, “UW” stands for
Underwriting or Underwriter, and “SLC” stands for Senior Loan Coordinator.

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Ms. Kosch told the Subcommittee that from late 2005 until early 2007, loan volume
increased and loan quality remained very poor. She said that just about every loan she reviewed
was a stated income loan, sloppy, or appeared potentially fraudulent. Yet she was not given the
resources or support to properly review each loan. Ms. Kosch said that she was told by a Quality
Control manager that she should spend 15 minutes on each file, which she felt was insufficient.
Yet, because Quality Assurance Controllers received a bonus on the basis of the number of loans
they reviewed, she said some of her colleagues spent only ten minutes on each file. 565
Ms. Kosch found that often, when she tried to stop the approval of a loan that did not
meet quality standards, it would be referred to management and approved anyway. She said
good Quality Assurance Controllers were treated like “black sheep,” and hated because they got
in the way of volume bonuses. She said certain brokers were identified as “elite,” and the Dublin
LFC employees were told to, “take care of them.” Ms. Kosch even suspected some underwriters
were getting kickbacks, in part, because of the clothes they wore and cars they drove, which she
believed would have been unaffordable to even the top back office employees. She reported her
suspicions to her supervisor, but she was not aware of any action taken as a result.
As it turns out, Ms. Kosch’s concerns about fraud were not unfounded. The September
2004 Daily Productivity email also lauds the work of a Senior Loan Coordinator (SLC) named
John Ngo:
“SLC – This one is still tight with Sandy holding on to the first place slot! Sandy
funded 4 more on Friday for a MTD total of 46! 2nd place is John Ngo with 4 fundings
on Friday and 44 MTD – only 2 back!”
About a year after this email was sent, the FBI began to question Mr. Ngo about a scheme to buy
houses in Stockton, California with fake documents and stolen identities. According to court
records, the FBI had uncovered documents that showed Mr. Ngo had received more than
$100,000 in payments from a mortgage broker, allegedly bribes to approve bad loans. Mr. Ngo’s
estranged wife told the FBI that she didn’t know how he could afford their $1.4 million home for
which he made a down payment of $350,000. At the time, his salary at Long Beach was
$54,000. 566
Mr. Ngo later pled guilty to perjury and agreed to testify against his Long Beach sales
associate, Joel Blanford. Long Beach paid Mr. Blanford more than $1 million in commissions
each year from 2003-2005. According to the Department of Justice:
“NGO admitted in his plea agreement that most of the payments were to ensure that
fraudulent loan applications were processed and funded. NGO also admitted he received
payments from Long Beach Mortgage sales representatives to push applications through
the funding process. He knew many of these applications were fraudulent, and he and
565

Subcommittee interview of Diane Kosch (2/18/2010).
“At Top Subprime Mortgage Lender, Policies Were an Invitation to Fraud,” Huffington Post Investigative Fund
(12/21/2009), http://www.huffingtonpost.com/2009/12/21/at-long-beach-mortgage-a_n_399295.html.
566

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others took steps to ‘fix’ applications by creating false documents or adding false
information to the applications or the loan file.” 567

(3) WaMu Executive Compensation
Questionable compensation practices did not stop in the loan offices, but went all the way
to the top of the company. WaMu’s CEO received millions of dollars in pay, even when his high
risk loan strategy began unraveling, even when the bank began to falter, and even when he was
asked to leave his post. From 2003 to 2007, Mr. Killinger was paid between $11 million and $20
million each year in cash, stock, and stock options. In addition, WaMu provided him with four
retirement plans, a deferred bonus plan, and a separate deferred compensation plan. In 2008,
when he was asked to leave to leave the bank, Mr. Killinger was paid $25 million, including $15
million in severance pay. Altogether, from 2003 to 2008, Washington Mutual paid Mr. Killinger
nearly $100 million, on top of multi-million-dollar corporate retirement benefits. 568
As WaMu began losing billions of dollars due to the declining value of its loans and
mortgage backed securities, top management paid significant attention to ensuring that they
would be well compensated despite the crisis. In January 2008, Mr. Killinger sent Mr. Rotella an
email with the subject “comp,” seeking input on formulating compensation recommendations for
the Board of Directors’ Human Resources Committee. The email discussed compensation for
WaMu’s top executives. Mr Killinger wrote: “Our current thinking is to recommend that equity
grants be in options this year. … I am considering an additional restricted stock grant which
would help a bit on retention and to help offset the low bonus for 2007.” 569
Mr. Rotella responded that he thought WaMu executives would want more of their
bonuses in cash:
“[T]he feeling people will have about this is tied to the level of pain on the cash bonus
side …. Unfortunately more than a few feel that our stock price will not easily recover,
that it is highly dependent on housing and credit and they can’t influence that at all. This
will come on the heels of what will be a terrible fourth qtr, and likely very poor results in
the first half along with continued bad news in the environment. So we will have some
people thinking, ‘this is nice but I don’t see the upside in a time frame that works.’ Also,
as you know folks feel very burned by the way their paper was tied to performance
targets that they now see as unrealistic and tied to housing and have a jaundiced view of
paper. … People want more certainty now with some leverage, not a high dose of
leverage with low cash.” 570
567

6/19/2008 Department of Justice press release, “Federal Authorities Announce Significant Regional Federal
Mortgage Fraud Investigations and Prosecutions Coinciding with Nationwide ‘Operation Malicious Mortgage’
Takedown,” http://sacramento.fbi.gov/dojpressrel/pressrel08/sc061908a.htm.
568
“Washington Mutual CEO Kerry Killinger: $100 Million in Compensation, 2003-2008,” chart prepared by the
Subcommittee, Hearing Exhibit 4/13-1h.
569
1/3/2008 email chain between Kerry Killinger and Steve Rotella, JPM_WM01335818, Hearing Exhibit 4/13-65.
570
Id.

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Mr. Killinger replied: “In short, the success of the comp program is up to you and me. I think
we are putting the right economics and opportunities on the table. But we have to convince our
folks that they will all make a lot of money by being with WaMu.” 571
In February 2008, the Human Resources Committee approved a bonus plan for executive
officers that tried to shield the executive bonuses from any impact caused by WaMu’s mounting
mortgage losses. The Committee established a formula consisting of four weighted performance
measures, but took steps to exclude mortgage losses. The first performance measure, for
example, set a goal for WaMu’s 2008 net operating profit, but adjusted the profit calculation to
exclude: “(i) loan loss provisions other than related to our credit card business and (ii) expenses
related to foreclosed real estate assets.” 572 The second performance measure set a target limiting
WaMu’s 2008 noninterest expense, but excluded expenses related to: “(i) business resizing or
restructuring and (ii) foreclosed real estate assets.” 573
WaMu filed its executive compensation plan with the SEC, as required. The exclusion of
mortgage related losses and expenses in the plan attracted notice from shareholders and the
press. One March 5, 2008 article entitled, “WaMu Board Shields Executives’ Bonuses,”
reported: “The board of Washington Mutual Inc. has set compensation targets for top executives
that will exclude some costs tied to mortgage losses and foreclosures when cash bonuses are
calculated this year.” 574 WaMu employees circulated the article through company email. 575
Investors and analysts raised concerns.
Mr. Killinger sought to respond to the controversy in a way that would placate investors
without alienating executives. His solution was to eliminate bonuses for the top five executives,
and make cash payments to the other executives, without making that fact public. In July, Mr.
Killinger emailed Steve Frank, the Chairman of the Board of Directors, with his proposal:
“We would like to have the HR [Human Resources] committee approve excluding the
exec com [Executive Committee] from the 2008 bonus and to approve the cash retention
grants to the non NEOs [Named Executive Officers]. This would allow me to respond to
questions next week regarding the bonus plan on the analyst call. And it would help calm
down some of the EC [Executive Committee] members.” 576
In other words, WaMu would announce publicly that none of the Executive Committee members
would receive bonuses in 2008, while quietly paying “retention grants” rather than “bonuses” to
the next tier of executives. Mr. Frank replied, “Sounds OK to me.” Mr. Killinger followed up
with the explanation: “We would disclose the exclusion of EC [Executive Committee] members
from the bonus plan. There would be no disclosure of the retention cash payments. Option
571

Id.
2/28/2008 email from David Schneider, “FW: 2008 Leadership Bonus,” JPM_WM02446549.
573
Id.
574
“WaMu Board Shields Executives’ Bonuses,” Wall Street Journal (3/5/2008), Hearing Exhibit 4/13-67.
575
Id.
576
7/16/2008 email from Kerry Killinger, JPM_WM01240144, Hearing Exhibit 4/13-66.
572

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grants would be held off until whenever other comp. actions were done.” 577 At WaMu’s annual
meeting with shareholders, the Board indicated that it had “reversed” the decision to exclude
mortgage losses when calculating executive bonuses and made no mention of the cash retention
payments planned for some executives. 578
When WaMu failed, shareholders lost all of their investments. Yet in the waning days of
the company, top executives were still well taken care of. On September 8, 2008, Mr. Killinger
walked away with $25 million, including $15 million in severance pay. His replacement, Allen
Fishman, received a $7.5 million signing bonus for taking over the reins from Mr. Killinger in
September 2008. 579 Eighteen days later, WaMu failed, and Mr. Fishman was out of a job.
According to his contract, he was eligible for about $11 million in severance pay when the bank
failed. 580 It is unclear how much of the severance he received.

G. Preventing High Risk Lending
Washington Mutual was a $300 billion, 120-year-old financial institution that was
destroyed by high risk lending practices. By 2007, stated income loans – loans in which
Washington Mutual made no effort to verify the borrower’s income or assets – made up 50% of
its subprime loans, 73% of its Option ARMs, and 90% of its home equity loans. Nearly half of
its loans were Option ARMs of which 95% of the borrowers were making minimum payments
and 84% were negatively amortizing. Numerous loans had loan-to-value ratios of over 80%, and
some provided 100% financing. Loans issued by two high volume loan offices in the Los
Angeles area were found to have loan fraud rates of 58, 62, and even 83%. Loan officer sales
assistants were manufacturing borrower documentation. The bank’s issuance of hundreds of
billions of dollars in high risk, poor quality loans not only destroyed confidence in the bank, but
also undermined the U.S. financial system.
The consequences of WaMu’s High Risk Lending Strategy and the proliferation of its
RMBS structured finance products incorporating high risk, poor quality loans provide critical
lessons that need to be learned to protect the U.S. financial system from similar financial
disasters. A number of developments over the past two years hold promise in helping to address
many of the problems identified in the Washington Mutual case history.

(1) New Developments
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act),
P.L. 111-203, which the President signed into law on July 21, 2010, contains a number of
changes in law that will be implemented over the course of 2011. The Dodd-Frank Act changes
577

7/16/2008 email from Kerry Killinger, JPM_WM01240144, Hearing Exhibit 4/13-66.
See, e.g., “Shareholders Score at WaMu,” Bloomberg BusinessWeek (4/15/2008) (“And perhaps most notable:
WaMu reversed a much-criticized decision to leave out the company’s mortgage related losses when calculating
profits that determine executive bonuses for the year ahead.”).
579
“WaMu Creditors could Challenge Payments to Killinger, Others,” Seattle Times (10/1/2008), Hearing Exhibit
4/13-68.
580
“WaMu CEO: 3 Weeks Work, $18M,” CNNMoney.com (9/26/2008).
578

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include banning stated income loans; restricting negative amortization loans; requiring lenders to
retain an interest in high risk loan pools that they sell or securitize; prohibiting lenders from
steering borrowers to poor quality, high risk loans; and re-evaluating the role of high risk,
structured finance products in bank portfolios.
Ban on Stated Income Loans. Multiple witnesses at the Subcommittee’s April 16, 2010
hearing on the role of bank regulators expressed support for banning stated income loans. The
FDIC Chairman Sheila Bair testified: “We are opposed to stated income. … We think you
should document income.” 581 When asked for his opinion of stated income loans, the FDIC
Inspector General Jon Rymer responded: “I do not think they should be allowed,” 582 stressing
the fraud risk: “I really can see no practical reason from a banker’s perspective or a lender’s
perspective to encourage that. … That is just, to me, an opportunity to essentially encourage
fraud.” 583 Treasury Inspector General Eric Thorson also criticized stated income loans,
explaining: “[T]he problem is, you can’t assess the strength of the borrower and that has got to
be at the foundation of underwriting, risk assessment, risk management.” 584 Even the former
head of OTS called stated income loans an “anathema” and expressed regret that OTS had
allowed them. 585
The Dodd-Frank Act essentially bans stated income loans by establishing minimum
standards for residential mortgages in Title XIV of the law. Section 1411 establishes a new
Section 129C of the Truth in Lending Act (TILA) prohibiting lenders from issuing a residential
mortgage without first conducting a “good faith and reasonable” determination, based upon
“verified and documented information,” that a borrower has a “reasonable ability to repay the
loan” and all applicable taxes, insurance, and assessments. Subsection 129C(a)(4) states the
lender “shall verify” the borrower’s income and assets by reviewing the borrower’s W-2 tax
form, tax returns, payroll receipts, financial institution records, or “other third-party documents
that provide reasonably reliable evidence” of the borrower’s income or assets. In addition,
Section 1412 of the Dodd-Frank Act adds a new Subsection 129C(b) to TILA establishing a new
category of “qualified mortgages” eligible for more favorable treatment under federal law. It
states that, in all “qualified mortgages,” the “income and financial resources” of the borrower
must be “verified and documented.”
These statutory requirements, by prohibiting lenders from issuing a residential mortgage
without first verifying the borrower’s income and assets, essentially put an end to stated income
loans. 586

581

April 16, 2010 Subcommittee Hearing at 88.
Id. at 27.
583
Id. at 15.
584
Id.
585
Id. at 42, 142.
586
The Federal Reserve is charged with issuing regulations to implement Section 1411. Federal Reserve regulations
issued in July 2008, under the authority of the Home Ownership and Equity Protection Act (HOEPA) of 1994,
which took effect in October 2009, already require lenders issuing certain high cost mortgages to verify a borrower’s
ability to repay the loan. 73 Fed. Reg. 147, at 44543 (7/30/2008). Since the Dodd-Frank Act applies to all types of
582

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Restrictions on Negative Amortization Loans. Witnesses at the Subcommittee’s April
16 hearing also criticized WaMu’s heavy reliance on Option ARM loans. These loans provided
borrowers with a low initial interest rate, which was followed at a later time by a higher variable
rate. Borrowers were generally qualified for the loans by assuming they would pay the lower
rather than the higher rate. In addition, borrowers were allowed to select one of four types of
monthly payments, including a “minimum payment” that was less than the interest and principal
owed on the loan. If the borrower selected the minimum payment, the unpaid interest was added
to the unpaid loan principal, which meant that the loan debt could increase rather than decrease
over time, resulting in negative amortization.
At the Subcommittee hearing, the FDIC Inspector General Jon Rymer warned that
negative amortization loans are “extraordinarily risky” for both borrowers and banks. 587 The
FDIC Chairman Sheila Bair testified:
“We are opposed to teaser rate underwriting. You need to underwrite at the fully indexed
rate. You should document the customer’s ability to repay, not just the initial
introductory rate, but if it is an adjustable product, when it resets, as well.” 588
The Dodd-Frank Act does not ban negatively amortizing loans, but does impose new
restrictions on them. Section 1411 amends TILA by adding a new Section 129C(6) that requires,
for any residential mortgage that allows a borrower “to defer the repayment of any principal or
interest,” that the lender vet potential borrowers based upon the borrower’s ability to make
monthly loan payments on a fully amortizing schedule – meaning a schedule in which the loan
would be fully repaid by the end of the loan period – instead of evaluating the borrower’s ability
to make payments at an initial teaser rate or in some amount that is less than the amount required
at a fully amortized rate. The law also requires the lender, when qualifying a borrower, to “take
into consideration any balance increase that may accrue from any negative amortization
provision.” This provision essentially codifies the provisions in the 2006 Nontraditional
Mortgage Guidance regarding qualification of borrowers for negatively amortizing loans.
In addition, Section 1414 of the Dodd-Frank Act adds a new Section 129C(c) to TILA
prohibiting lenders from issuing a mortgage with negative amortization without providing certain
disclosures to the borrower prior to the loan. The lender is required to provide the borrower with
an explanation of negative amortization in a manner prescribed by regulation as well as describe
its impact, for example, how it can lead to an increase in the loan’s outstanding principal
balance. In the case of a first-time home buyer, the lender must also obtain documentation that
the home buyer received homeownership counseling from a HUD-certified organization or
counselor. Finally, Section 1412 of the Dodd-Frank Act, establishing the new favored category
of “qualified mortgages,” states those mortgages cannot negatively amortize.

mortgage loans, the Federal Reserve is expected to issue revised regulations during 2011, expanding the verification
requirement to all mortgage loans.
587
April 16, 2010 Subcommittee Hearing at 16.
588
Id. at 88.

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Together, these borrower qualification and disclosure requirements, if well implemented,
should reduce, although not eliminate, the issuance of negative amortization mortgages.
Risk Retention. One of the root causes of the financial crisis was the ability of lenders
like Washington Mutual to securitize billions of dollars in high risk, poor quality loans, sell the
resulting securities to investors, and then walk away from the risky loans it created. At the April
16 Subcommittee hearing, the FDIC Chairman Bair testified:
“[W]e support legislation to require that issuers of mortgage securitizations retain some
‘skin in the game’ to provide added discipline for underwriting quality. In fact, the FDIC
Board will consider … a proposal to require insured banks to retain a portion of the credit
risk of any securitizations that they sponsor.” 589
Section 941(b) of the Dodd-Frank Act adds a new section 15G to the Securities Exchange
Act of 1934 to require the federal banking agencies, SEC, Department of Housing and Urban
Development, and Federal Housing Finance Agency jointly to prescribe regulations to “require
any securitizer to retain an economic interest in a portion of the credit risk for any residential
mortgage asset that the securitizer, through the issuance of an asset-backed security, transfers,
sells, or conveys to a third party.” 590 The retained economic interest must be “not less than 5
percent of the credit risk” of the assets backing the security, with an exception made for
“qualified residential mortgages,” to be further defined by the regulators. The regulators issued a
proposed rule early in 2011, which is currently the subject of a public comment period.
In the meantime, the FDIC has issued a new regulation, effective September 30, 2010,
that imposes a range of disclosure, risk retention, and other obligations on all insured banks that
issue asset backed securitizations.591 One of the provisions imposes a 5% risk retention
requirement on all asset backed securitizations issued by an insured bank, whether backed by
mortgages or other assets. The provision states that the bank sponsoring the securitization must:
“retain an economic interest in a material portion, defined as not less than five (5)
percent, of the credit risk of the financial assets. This retained interest may be either in
the form of an interest of not less than five (5) percent in each of the credit tranches sold
or transferred to the investors or in a representative sample of the securitized financial
assets equal to not less than five (5) percent of the principal amount of the financial assets
at transfer. This retained interest may not be sold or pledged or hedged, except for the
hedging of interest rate or currency risk, during the term of the securitization.” 592
The provision also states that this risk retention requirement applies only until the “effective
date” of the regulations to be issued under Section 941 of the Dodd-Frank Act.

589

Id. at 81.
Section 941(b) also imposes risk retention requirements on other types of asset backed securities and
collateralized debt obligations.
591
12 CFR § 360.6.
592
12 CFR § 360.6(b)(5)(i).
590

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The FDIC risk retention requirement, followed by the risk retention requirement to be
developed under the Dodd-Frank Act, should, if well implemented, end the ability of banks to
magnify risk through issuing asset backed securities and then walking away from that risk.
Instead, banks will be required to keep “skin in the game” until each securitization concludes.
Ban on Steering. The Washington Mutual case history also exposed another problem:
compensation incentives that encouraged loan officers and mortgage brokers to steer borrowers
to higher risk loans. Compensation incentives called “overages” at WaMu and “yield spread
premiums” at other financial institutions also encouraged loan officers and mortgage brokers to
charge borrowers higher interest rates and points than the bank would accept, so that the loan
officer or mortgage banker could split the extra money taken from the borrower with the bank.
To ban these compensation incentives, Section 1403 of the Dodd-Frank Act creates a new
Section 129B(c) in TILA prohibiting the payment of any steering incentives, including yield
spread premiums. It states: “no mortgage originator shall receive from any person and no person
shall pay to a mortgage originator, directly or indirectly, compensation that varies based on the
terms of loan (other than the amount of the principal).” It also states explicitly that no provision
of the section should be construed as “permitting any yield spread premium or other similar
compensation.” In addition, it directs the Federal Reserve to issue regulations to prohibit a range
of abusive and unfair mortgage related practices, including prohibiting lenders and brokers from
steering borrowers to mortgages for which they lack a reasonable ability to repay.
The Dodd-Frank provisions were enacted into law shortly before the Federal Reserve, in
September 2010, promulgated new regulations prohibiting a number of unfair or abusive lending
practices, including certain payments to mortgage originators. 593 In its notice, the Federal
Reserve noted that its new regulations prohibit many of the same practices banned in Section
1403 of the Dodd Frank Act, but that it will fully implement the new Dodd-Frank measures in a
future rulemaking. 594
High Risk Loans. Still another problem exposed by the Washington Mutual case history
is the fact that, in the years leading up to the financial crisis, many U.S. insured banks held
highly risky loans and securities in their investment and sale portfolios. When those loans and
securities lost value in 2007, many banks had to declare multi-billion-dollar losses that triggered
shareholder flight and liquidity runs.
Section 620 of the Dodd-Frank Act requires the federal banking regulators, within 18
months, to prepare a report identifying the activities and investments that insured banks and their
affiliates are allowed to engage in under federal and state law, regulation, order, and guidance,
and analyzing the risks associated with those activities and investments. The federal banking
agencies are also asked to make recommendations on whether each allowed activity or
investment is appropriate, could negatively affect the safety and soundness of the banking entity
or the U.S. financial system, and should be restricted to reduce risk.
593
594

75 Fed. Reg. 185 (9/24/2010).
Id. at 58509.

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(2) Recommendations
To further strengthen standards and controls needed to prevent high risk lending and
safeguard the Deposit Insurance Fund, this Report makes the following recommendations.
1. Ensure “Qualified Mortgages” Are Low Risk. Federal regulators should use their
regulatory authority to ensure that all mortgages deemed to be “qualified residential
mortgages” have a low risk of delinquency or default.
2. Require Meaningful Risk Retention. Federal regulators should issue a strong risk
retention requirement under Section 941 by requiring the retention of not less than a
5% credit risk in each, or a representative sample of, an asset backed securitization’s
tranches, and by barring a hedging offset for a reasonable but limited period of time.
3. Safeguard Against High Risk Products. Federal banking regulators should
safeguard taxpayer dollars by requiring banks with high risk structured finance
products, including complex products with little or no reliable performance data, to
meet conservative loss reserve, liquidity, and capital requirements.
4. Require Greater Reserves for Negative Amortization Loans. Federal banking
regulators should use their regulatory authority to require banks issuing negatively
amortizing loans that allow borrowers to defer payments of interest and principal, to
maintain more conservative loss, liquidity, and capital reserves.
5. Safeguard Bank Investment Portfolios. Federal banking regulators should use the
Section 620 banking activities study to identify high risk structured finance products
and impose a reasonable limit on the amount of such high risk products that can be
included in a bank’s investment portfolio.

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IV.

REGULATORY FAILURE:
CASE STUDY OF THE OFFICE OF THRIFT SUPERVISION

Washington Mutual Bank (WaMu), with more than $300 billion in assets, $188 billion in
deposits, over 2,300 branches in 15 states, and 43,000 employees, was by late 2008 the largest
thrift under the supervision of the Office of Thrift Supervision (OTS) and among the eight
largest financial institutions insured by the Federal Deposit Insurance Corporation (FDIC). The
bank’s collapse in September 2008 came on the heels of the Lehman Brothers bankruptcy filing,
accelerating the unraveling of the financial markets. WaMu’s collapse marked one of the most
spectacular failures of federal bank regulators in recent history.
In 2007, many of WaMu’s home loans, especially those with the highest risk profile,
began experiencing increased rates of delinquency, default, and loss. After the subprime
mortgage backed securities market collapsed in September 2007, Washington Mutual was unable
to sell or securitize subprime loans and its loan portfolio began falling in value. By the fourth
quarter of 2007, the bank recorded a loss of $1 billion, and then in the first half of 2008, WaMu
lost $4.2 billion more. WaMu’s stock price plummeted against the backdrop of these losses and
a worsening financial crisis elsewhere on Wall Street, which was witnessing the forced sales of
Countrywide Financial Corporation and Bear Stearns, the government takeover of IndyMac,
Fannie Mae and Freddie Mac, the bankruptcy of Lehman Brothers, the taxpayer bailout of AIG,
and the conversion of Goldman Sachs and Morgan Stanley into bank holding companies. From
2007 to 2008, WaMu’s depositors withdrew a total of over $26 billion in deposits from the bank,
triggering a liquidity crisis. On September 25, 2008, OTS placed Washington Mutual Bank into
receivership, and the FDIC, as receiver, immediately sold it to JPMorgan Chase for $1.9 billion.
Had the sale not gone through, Washington Mutual’s failure could have exhausted the FDIC’s
entire $45 billion Deposit Insurance Fund.
OTS records show that, during the five years prior to its collapse, OTS examiners
repeatedly identified significant problems with Washington Mutual’s lending practices, risk
management, and asset quality, and requested corrective action. Year after year, WaMu
promised to correct the identified problems, but failed to do so. OTS, in turn, failed to respond
with meaningful enforcement action, choosing instead to continue giving the bank inflated
ratings for safety and soundness. Until shortly before the thrift’s failure in 2008, OTS regularly
gave WaMu a CAMELS rating of “2” out of “5,” which signaled to the bank and other regulators
that WaMu was fundamentally sound.
Federal bank regulators are charged with ensuring that U.S. financial institutions operate
in a safe and sound manner. However, in the years leading up to the financial crisis, OTS failed
to prevent Washington Mutual’s increasing use of high risk lending practices and its origination
and sale of tens of billions of dollars in poor quality home loans. The agency’s failure to
adequately monitor and regulate WaMu’s high risk lending stemmed in part from an OTS
regulatory culture that viewed its thrifts as “constituents,” relied on them to correct the problems
identified by OTS with minimal regulatory intervention, and expressed reluctance to interfere
with even unsound lending and securitization practices. OTS displayed an unusual amount of

162
deference to WaMu’s management, choosing to rely on the bank to police itself. The reasoning
appeared to be that if OTS examiners simply identified the problems at the bank, OTS could then
rely on WaMu’s assurances that problems were corrected, with little need for tough enforcement
actions. It was a regulatory approach with disastrous results.
Over the five-year period reviewed by the Subcommittee, OTS examiners identified over
500 serious deficiencies in WaMu operations. Yet OTS did not once, from 2004 to 2008, take a
public enforcement action against Washington Mutual, even when the bank failed to correct
major problems. Only in late 2008, as the bank incurred mounting losses, did OTS finally take
two informal, nonpublic enforcement actions, requiring WaMu to agree to a Board Resolution in
March and a Memorandum of Understanding in September, but neither action was sufficient to
prevent the bank’s failure. OTS officials resisted calls by the FDIC, the bank’s backup regulator,
for stronger measures and even impeded FDIC oversight efforts at the bank. Hindered by a
culture of deference to management, demoralized examiners, and agency infighting, OTS
officials allowed the bank’s short term profits to excuse its risky practices and failed to evaluate
the bank’s actions in the context of the U.S. financial system as a whole.
OTS not only failed to prevent Washington Mutual from engaging in unsafe and unsound
lending practices, it gave its tacit approval and allowed high risk loans to proliferate. As long as
Washington Mutual was able to sell off its risky loans, neither OTS nor the FDIC expressed
concerns about the impact of those loans elsewhere. By not sounding the alarm, OTS and the
FDIC enabled WaMu to construct a multi-billion-dollar investment portfolio of high risk
mortgage assets, and also permitted WaMu to sell hundreds of billions of dollars in high risk,
poor quality loans and securities to other financial institutions and investors in the United States
and around the world. Similar regulatory failings by OTS, the FDIC, and other agencies
involving other lenders repeated these problems on a broad scale. The result was a mortgage
market saturated with risky loans, and financial institutions that were supposed to hold
predominantly safe investments but instead held portfolios rife with high risk, poor quality
mortgages. When those loans began defaulting in record numbers and mortgage related
securities plummeted in value, financial institutions around the globe suffered hundreds of
billions of dollars in losses, triggering an economic disaster. The regulatory failures that set the
stage for these losses were a proximate cause of the financial crisis.

A. Subcommittee Investigation and Findings of Fact
To analyze regulatory oversight of Washington Mutual, the Subcommittee subpoenaed
documents from OTS, the FDIC, and WaMu, including bank examination reports, legal
pleadings, reports, internal memoranda, correspondence, and email. The Subcommittee also
conducted over two dozen interviews with OTS, FDIC, and WaMu personnel, including the
FDIC Chairman, OTS Director, OTS and the FDIC senior examiners assigned to Washington
Mutual, and senior WaMu executives. The Subcommittee also spoke with personnel from the
Offices of the Inspector General (IG) at the FDIC and the Department of Treasury, who were
engaged in a joint review of WaMu’s failure. In addition, the Subcommittee spoke with nearly a
dozen experts on a variety of banking, accounting, regulatory, and legal issues. On April 16,
2010, the Subcommittee held a hearing at which OTS, the FDIC, and IG officials provided

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testimony; released 92 hearing exhibits; and released the FDIC and Treasury IGs’ joint report on
Washington Mutual. 595
In connection with the hearing, the Subcommittee released a joint memorandum from
Chairman Levin and Ranking Member Coburn summarizing the investigation to date into the
role of the regulators overseeing WaMu. That memorandum stated:
“Federal bank regulators are supposed to ensure the safety and soundness of individual
U.S. financial institutions and, by extension, the U.S. banking system. Washington
Mutual was just one of many financial institutions that federal banking regulators allowed
to engage in such high risk home loan lending practices that they resulted in bank failure
and damage to financial markets. The ineffective role of bank regulators was a major
contributor to the 2008 financial crisis that continues to afflict the U.S. and world
economy today.”
On March 16, 2011, the FDIC sued the three top former executives of Washington
Mutual for pursuing a high risk lending strategy without sufficient risk management practices
and despite their knowledge of a weakening housing market. 596 The FDIC complaint stated:
“Chief Executive Officer Kerry K. Killinger (“Killinger”), Chief Operating
Officer Stephen J. Rotella (“Rotella”), and Home Loans President David C. Schneider
(“Schneider”) caused Washington Mutual Bank (“WaMu” or “the Bank”) to take extreme
and historically unprecedented risks with WaMu’s held-for-investment home loans
portfolio. They focused on short term gains to increase their own compensation, with
reckless disregard for WaMu’s longer term safety and soundness. Their negligence, gross
negligence and breaches of fiduciary duty caused WaMu to lose billions of dollars. The
FDIC brings this Complaint to hold these three highly paid senior executives, who were
chiefly responsible for WaMu’s higher risk home lending program, accountable for the
resulting losses.”

595

See “Wall Street and the Financial Crisis: Role of the Regulators,” before the U.S. Senate Permanent
Subcommittee on Investigations, S.Hrg. 111-672 (April 16, 2010) (hereinafter “April 16, 2010 Subcommittee
Hearing”).
596
The Federal Deposit Insurance Corporation v. Kerry K. Killinger, Stephen J. Rotella, David C. Schneider, et al.,
Case No. 2:11-CV-00459 (W.D. Wash.), Complaint (March 16, 2011), at
http://graphics8.nytimes.com/packages/pdf/business/conformedcomplaint.pdf (hereinafter “FDIC Complaint
Against WaMu Executives”).

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The Levin-Coburn memorandum contained joint findings of fact regarding the role of
federal regulators in the Washington Mutual case history. Those findings of fact, which this
Report reaffirms, are as follows.
1. Largest U.S. Bank Failure. From 2003 to 2008, OTS repeatedly identified
significant problems with Washington Mutual’s lending practices, risk management,
and asset quality, but failed to force adequate corrective action, resulting in the largest
bank failure in U.S. history.
2. Shoddy Lending and Securitization Practices. OTS allowed Washington Mutual
and its affiliate Long Beach Mortgage Company to engage year after year in shoddy
lending and securitization practices, failing to take enforcement action to stop its
origination and sale of loans with fraudulent borrower information, appraisal
problems, errors, and notoriously high rates of delinquency and loss.
3. Unsafe Option ARM Loans. OTS allowed Washington Mutual to originate
hundreds of billions of dollars in high risk Option Adjustable Rate Mortgages,
knowing that the bank used unsafe and unsound teaser rates, qualified borrowers
using unrealistically low loan payments, permitted borrowers to make minimum
payments resulting in negatively amortizing loans (i.e., loans with increasing
principal), relied on rising house prices and refinancing to avoid payment shock and
loan defaults, and had no realistic data to calculate loan losses in markets with flat or
declining house prices.
4. Short Term Profits Over Long Term Fundamentals. OTS abdicated its
responsibility to ensure the long term safety and soundness of Washington Mutual by
concluding that short term profits obtained by the bank precluded enforcement action
to stop the bank’s use of shoddy lending and securitization practices and unsafe and
unsound loans.
5. Impeding FDIC Oversight. OTS impeded FDIC oversight of Washington Mutual
by blocking its access to bank data, refusing to allow it to participate in bank
examinations, rejecting requests to review bank loan files, and resisting the FDIC
recommendations for stronger enforcement action.
6. FDIC Shortfalls. The FDIC, the backup regulator of Washington Mutual, was
unable to conduct the analysis it wanted to evaluate the risk posed by the bank to the
Deposit Insurance Fund, did not prevail against unreasonable actions taken by OTS to
limit its examination authority, and did not initiate its own enforcement action against
the bank in light of ongoing opposition by the primary federal bank regulators to
FDIC enforcement authority.
7. Recommendations Over Enforceable Requirements. Federal bank regulators
undermined efforts to end unsafe and unsound mortgage practices at U.S. banks by
issuing guidance instead of enforceable regulations limiting those practices, failing to

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prohibit many high risk mortgage practices, and failing to set clear deadlines for bank
compliance.
8. Failure to Recognize Systemic Risk. OTS and the FDIC allowed Washington
Mutual and Long Beach to reduce their own risk by selling hundreds of billions of
dollars of high risk mortgage backed securities that polluted the financial system with
poorly performing loans, undermined investor confidence in the secondary mortgage
market, and contributed to massive credit rating downgrades, investor losses,
disrupted markets, and the U.S. financial crisis.
9. Ineffective and Demoralized Regulatory Culture. The Washington Mutual case
history exposes the regulatory culture at OTS in which bank examiners are frustrated
and demoralized by their inability to stop unsafe and unsound practices, in which
their supervisors are reluctant to use formal enforcement actions even after years of
serious bank deficiencies, and in which regulators treat the banks they oversee as
constituents rather than arms-length regulated entities.

B. Background
At the time of its collapse, Washington Mutual Savings Bank was a federally chartered thrift
with over $188 billion in federal insured deposits. Its primary federal regulator was OTS. Due
to its status as an insured depository institution, it was also overseen by the FDIC.

(1) Office of Thrift Supervision
The Office of Thrift Supervision was created in 1989, in response to the savings and loan
crisis, to charter and regulate the thrift industry. 597 Thrifts are required by their charters to hold
most of their assets in mortgage lending, and have traditionally focused on the issuance of home
loans. 598 OTS was part of the U.S. Department of the Treasury and headed by a presidentially
appointed director. Like other bank regulators, OTS was charged with ensuring the safety and
soundness of the financial institutions it oversaw. Its operations were funded through
semiannual fees assessed on the institutions it regulated, with the fee amount based on the size,
condition, and complexity of each institution’s portfolio. Washington Mutual was the largest
thrift overseen by OTS and, from 2003 to 2008, paid at least $30 million in fees annually to the
agency, which comprised 12-15% of all OTS revenue. 599

597

Twenty years after its establishment, OTS was abolished by the Dodd-Frank Wall Street Reform and Consumer
Protection Act, P.L. 111-203, (Dodd-Frank Act) which has transferred the agency’s responsibilities to the Office of
the Comptroller of the Currency (OCC), and directed the agency to cease all operations by 2012. This Report
focuses on OTS during the time period 2004 through 2008.
598
6/19/2002 OTS Regulatory Bulletin, “Thrift Activities Regulatory Handbook Update” (some educational loans,
SBLs, and credit card loans also count towards qualifying as a thrift), http://files.ots.treas.gov/74081.pdf.
599
See April 16, 2010 Subcommittee Hearing at 11 (testimony of Treasury IG Eric Thorson).

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In 2009, OTS oversaw about 765 thrift-chartered institutions. 600 OTS supervised its
thrifts through four regional offices, each led by a Regional Director, Deputy Director, and
Assistant Director. Regional offices assigned an Examiner-in-Charge to each thrift in its
jurisdiction, along with other supporting examination personnel. Approximately three-quarters
of the OTS workforce reported to its four regional offices, while the remaining quarter worked at
OTS headquarters in Washington, D.C. Washington Mutual, whose headquarters were located in
Seattle, was supervised by the Western Region Office which, through the end of 2008, was based
in Daly City, California.
During the years reviewed by the Subcommittee, the OTS Executive Director was John
Reich; the Deputy Director was Scott Polakoff; the Western Region Office Director was Michael
Finn and later Darrel Dochow; and the Examiners-in-Charge at WaMu were Lawrence Carter
and later Benjamin Franklin.

(2) Federal Deposit Insurance Corporation
WaMu’s secondary federal regulator was the FDIC. The FDIC’s mission is to maintain
stability and public confidence in the nation’s financial system by insuring deposits, examining
and supervising financial institutions for safety and soundness and consumer protection, and
managing failed institutions placed into receivership. 601 The FDIC administers the Deposit
Insurance Fund, which is the primary mechanism used to protect covered deposits at U.S.
financial institutions from loss. The Deposit Insurance Fund is financed through fees assessed
on the insured institutions, with assessments based on the amount of deposits requiring
insurance, the amount of assets at each institution, and the degree of risk posed by each
institution to the insurance fund.
To minimize withdrawals from the Deposit Insurance Fund, the FDIC is assigned backup
supervisory authority over approximately 3,000 federally insured depository institutions whose
primary regulators are the Federal Reserve, OCC, and, until recently, OTS. Among other
measures, the FDIC is authorized to conduct a “special examination” of any insured institution
“to determine the condition of such depository institution for insurance purposes.” 602 To
facilitate and coordinate its oversight obligations with those of the primary bank regulators and
ensure it is able to protect the Deposit Insurance Fund, the FDIC has entered into an inter-agency
agreement with the primary bank regulators. 603 The 2002 version of that agreement, which was
in effect until 2010, stated that the FDIC was authorized to request to participate in examinations
of large institutions or higher risk financial institutions, recommend enforcement actions to be
taken by the primary regulator, and if the primary regulator failed to act, take its own
enforcement action with respect to an insured institution.
600

2009 OTS Annual Report, “Agency Profile,” http://www.ots.treas.gov/_files/482096.pdf.
See “FDIC Mission, Vision, and Values,” http://www.fdic.gov/about/mission/index.html.
602
12 U.S.C. § 1820(b)(3).
603
The interagency agreement is entitled, “Coordination of Expanded Supervisory Information Sharing and Special
Examinations.” During the time period of the Subcommittee’s investigation, the 2002 version of the interagency
agreement, signed by the FDIC, Federal Reserve, OCC, and OTS, was in effect. In July 2010, the federal financial
regulators agreed to adopt a stronger version, discussed later in this Report.
601

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For the eight largest insured institutions at the time, the FDIC assigned at least one
Dedicated Examiner to work on-site at the institution. The examiner’s obligation is to evaluate
the institution’s risk to the Deposit Insurance Fund and work with the primary regulator to lower
that risk. During the period covered by this Report, Washington Mutual was one of the eight and
had an FDIC-assigned Dedicated Examiner who worked with OTS examiners to oversee the
bank.
During the years examined by the Subcommittee, the FDIC Chairman was Sheila Bair;
the Acting Deputy Director for the FDIC’s Division of Supervision and Consumer Protection’s
Complex Financial Institution Branch was John Corston; in the San Francisco Region, the
Director was John Carter and later Stan Ivie, and the Assistant Director was George Doerr. At
WaMu, the FDIC’s Dedicated Examiner was Stephen Funaro.

(3) Examination Process
The stated mission of OTS was “[t]o supervise savings associations and their holding
companies in order to maintain their safety and soundness and compliance with consumer laws,
and to encourage a competitive industry that meets America’s financial services needs.” The
OTS Examination Handbook required “[p]roactive regulatory supervision” with a focus on
evaluation of “future needs and potential risks to ensure the success of the thrift system in the
long term.” 604 OTS, like other bank regulators, had special access to the financial information of
the thrifts under its regulation, which was otherwise kept confidential from the market and other
parties.
To carry out its mission, OTS traditionally conducted an examination of each of the
thrifts within its jurisdiction every 12 to 18 months and provided the results in a Report of
Examination (ROE). In 2006, OTS initiated a “continuous exam” program for its largest thrifts,
requiring its examiners to conduct a series of specialized examinations during the year with the
results from all of those examinations included in an annual ROE. The Examiner-in-Charge led
the examination activities which were organized around the CAMELS rating system used by all
federal bank regulators. The CAMELS rating system evaluates a bank’s: (C) capital adequacy,
(A) asset quality, (M) management, (E) earnings, (L) liquidity, and (S) sensitivity to market risk.
A CAMELS rating of 1 is the best rating, while 5 is the worst. In the annual ROE, OTS
provided its thrifts with an evaluation and rating for each CAMELS component, as well as an
overall composite rating on the bank’s safety and soundness. 605
At Washington Mutual, OTS examiners conducted both on-site and off-site activities to
review bank operations, and maintained frequent communication with bank management through
emails, telephone conferences, and meetings. During certain periods of the year, OTS examiners
604

2004 OTS Examination Handbook, Section 010.2, OTSWMEF-0000031969, Hearing Exhibit 4/16-2.
A 1 composite rating in the CAMELS system means “sound in every respect”; a 2 rating means “fundamentally
sound”; a 3 rating means “exhibits some degree of supervisory concern in one or more of the component areas”; a 4
rating means “generally exhibits unsafe and unsound practices or conditions”; and a 5 rating means “exhibits
extremely unsafe and unsound practices or conditions” and is of “greatest supervisory concern.” See chart in the
prepared statement of Treasury IG Eric Thorson at 7, reprinted in April 16, 2010 Subcommittee Hearing at 107.
605

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had temporary offices at Washington Mutual for accessing bank information, collecting data
from bank employees, performing analyses, and conducting other exam activities. Washington
Mutual formed a Regulatory Relations office charged with overseeing its interactions and
managing its relationships with personnel at OTS, the FDIC, and other regulators.
During the year, OTS examiners issued “findings memoranda,” which set forth particular
examination findings, and required a written response and corrective action plan from WaMu
management. The memoranda contained three types of findings. The least severe was an
“observation,” defined as a “weakness identified that is not of regulatory concern, but which may
improve the bank’s operating effectiveness if addressed. … Observations may or may not be
reviewed during subsequent examinations.” The next level of finding was a “recommendation,”
defined as a “secondary concern requiring corrective action. … They may be included in the
Report of Examination … Management’s actions to address Recommendations are reviewed at
subsequent or follow-up examinations.” The most severe type of finding was a “criticism,”
defined as a “primary concern requiring corrective action … often summarized in the ‘Matters
Requiring Board Attention’ … section of the Report of Examination. … They are subject to
formal follow-up by examiners and, if left uncorrected, may result in stronger action.” 606
The most serious OTS examination findings were elevated to Washington Mutual Bank’s
Board of Directors by designating them as a “Matter Requiring Board Attention” (MRBA).
MRBAs were set forth in the ROE and presented to the Board in an annual meeting attended by
OTS and FDIC personnel. Washington Mutual tracked OTS findings, along with its own
responses, through an internal system called Enterprise Risk Issue Control System (ERICS).
ERICS was intended to help WaMu manage its relationship with its regulators by storing the
regulators’ findings in one central location. In one of its more unusual discoveries, the
Subcommittee learned that OTS also came to rely largely on ERICS to track its dealings with
WaMu. OTS’ reliance on WaMu’s tracking system was a unique departure from its usual
practice of separately tracking the status of its past examination findings and a bank’s
responses. 607
The FDIC also participated in the examinations of Washington Mutual. Because WaMu
was one of the eight largest insured banks in the country, the FDIC assigned a full-time
Dedicated Examiner to oversee its operations. Typically, the FDIC examiners worked with the
primary regulator and participated in or relied upon the examinations scheduled by that regulator,
rather than initiating separate FDIC examinations. At least once per year, the FDIC examiner
performed an evaluation of the institution’s risk to the Deposit Insurance Fund, typically relying
primarily on the annual Report on Examination (ROE) issued by the primary regulator and the
ROE’s individual and composite CAMELS ratings for the institution. After reviewing the ROE
as well as other examination and financial information, the FDIC examiner reviewed the
CAMELS ratings for WaMu to ensure they were appropriate.

606

Descriptions of these terms appeared in OTS findings memoranda. See, e.g., 6/19/2008 OTS Findings
Memorandum of Washington Mutual Bank, at Bisset_John-00046124_002, Hearing Exhibit 4/16-12a.
607
See April 16, 2010 Subcommittee Hearing at 21 (information supplied by Treasury IG Thorson for the record).

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In addition, for institutions with assets of $10 billion or more, the FDIC had established a
Large Insured Depository Institutions (LIDI) Program to assess and report on emerging risks that
may pose a threat to the Deposit Insurance Fund. Under that program, the FDIC Dedicated
Examiner and other FDIC regional case managers performed ongoing analysis of emerging risks
within each covered institution and assigned it a quarterly risk rating, using a scale of A to E,
with A being the best rating and E the worst. In addition, senior FDIC analysts within the
Complex Financial Institutions Branch analyzed specific bank risks and developed supervisory
strategies. If the FDIC viewed an institution as imposing an increasing risk to the Deposit
Insurance Fund, it could perform one or more “special examinations” to take a closer look.

C. Washington Mutual Examination History
For the five-year period, from 2004 to 2008, OTS repeatedly identified significant
problems with Washington Mutual’s lending practices, risk management, appraisal procedures,
and issued securities, and requested corrective action. WaMu promised to correct the identified
deficiencies, but failed to do so. OTS failed, in turn, to take enforcement action to ensure the
corrections were made, until the bank began losing billions of dollars. OTS also resisted and at
times impeded FDIC examination efforts at Washington Mutual.

(1) Regulatory Challenges Related to Washington Mutual
Washington Mutual was a larger and more complex financial institution than any other
thrift overseen by OTS, and presented numerous regulatory challenges. By 2007, Washington
Mutual had over $300 billion in assets, 43,000 employees, and over 2,300 branches in 15 states,
including a securitization office on Wall Street, a massive loan portfolio, and several lines of
business, including home loans, credit cards, and commercial real estate.
Integration Issues. During the 1990s, as described in the prior chapter, WaMu
embarked upon a strategy of growth through acquisition of smaller institutions, and over time
became one of the largest mortgage lenders in the United States. One consequence of its
acquisition strategy was that WaMu struggled with the logistical and managerial challenges of
integrating a variety of lending platforms, information technology systems, staff, and policies
into one system.
OTS was concerned about and critical of WaMu’s integration efforts. In a 2004 Report
on Examination (ROE), OTS wrote:
“Our review disclosed that past rapid growth through acquisition and unprecedented
mortgage refinance activity placed significant operational strain on [Washington Mutual]
during the early part of the review period. Beginning in the second half of 2003, market
conditions deteriorated, and the failure of [Washington Mutual] to fully integrate past
mortgage banking acquisitions, address operational issues, and realize expectations from

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certain major IT initiatives exposed the institution’s infrastructure weaknesses and began
to negatively impact operating results.” 608
Long Beach. One of WaMu’s acquisitions, in 1999, was Long Beach Mortgage
Company (Long Beach), a subprime lender that became a source of significant management,
asset quality, and risk problems. Long Beach’s headquarters were located in Long Beach,
California, but as a subsidiary of Washington Mutual Inc., the parent holding company of
Washington Mutual Bank, it was subject to regulation by the State of Washington Department of
Financial Institutions and the FDIC. Long Beach’s business model was to purchase subprime
loans from third party mortgage brokers and lenders and then sell or securitize the loans for sale
to investors.
For the first seven years, from 1999 to 2006, OTS had no direct jurisdiction over Long
Beach, since it was a subsidiary of WaMu’s parent holding company, but not a subsidiary of the
bank itself. OTS was limited to reviewing Long Beach indirectly by examining its effect on the
holding company and WaMu. In late 2003, OTS examiners took greater notice of Long Beach
after WaMu’s legal department halted Long Beach’s securitizations while it helped the company
strengthen its internal controls. As many as 4,000 Long Beach loans were of such poor quality
that three quarters of them could not be sold to investors. In 2005, Long Beach experienced a
surge in early payment defaults, was forced to repurchase a significant number of loans, lost over
$107 million, and overwhelmed its loss reserves. Washington Mutual requested permission to
make Long Beach a division of the bank, so that it could assert greater control over Long
Beach’s operations, and in March 2006, OTS approved the purchase with conditions. In 2006,
Long Beach experienced another surge of early payment defaults and was forced to repurchase
additional loans. When Long Beach loans continued to have problems in 2007, Washington
Mutual eliminated Long Beach as a separate operation and rebranded it as a Washington Mutual
“Wholesale Specialty Lending” division. In August 2007, after the collapse of the subprime
secondary market, WaMu stopped offering subprime loans and discontinued the last vestiges of
the Long Beach operation.
High Risk Lending. In 2004, Washington Mutual shifted its strategy toward the
issuance and purchase of higher risk home loans. OTS took note of the strategic shift in WaMu’s
2004 ROE:
“Management provided us with a copy of the framework for WMI’s 5-year (2005-2009)
strategic plan [which] contemplates asset growth of at least 10% a year, with assets
increasing to near $500 billion by 2009.” 609

608

See 3/15/2004 OTS Report of Examination, at OTSWMS04-0000001482, Hearing Exhibit 4/16-94 [Sealed
Exhibit]. See also, e.g., 12/17/2004 email exchange among WaMu executives, “Risks/Costs to Moving GSE Share
to FH,” JPM_WM05501400, Hearing Exhibit 4/16-88 (noting that Fannie Mae “is well aware of our data integrity
issues (miscoding which results in misdeliveries, expensive and time consuming data reconciliations), and has been
exceedingly patient.”).
609
See 3/15/2004 OTS Report of Examination, at OTSWMS04-0000001509, Hearing Exhibit 4/16-94 [Sealed
Exhibit].

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OTS recommended, and the bank agreed, to spell out its new lending strategy in a written
document that had to be approved by the WaMu Board of Directors. 610
The result was the bank’s January 2005 High Risk Lending Strategy, discussed in the
prior chapter, in which WaMu management obtained the approval of its Board to shift its focus
from originating lower risk fixed rate and government backed loans to higher risk subprime,
home equity, and Option ARM loans. 611 The High Risk Lending Strategy also outlined WaMu’s
plans to increase its issuance of higher risk loans to borrowers with a higher risk profile. The
purpose of the shift was to maximize profits by originating loans with the highest profit margins,
which were usually the highest risk loans. According to actual loan data analyzed by WaMu,
higher risk loans, such as subprime, Option ARM, and home equity loans, produced a higher
“gain on sale” or profit for the bank compared to lower risk loans. For example, a presentation
supporting the High Risk Lending Strategy indicated that selling subprime loans garnered more
than eight times the gain on sale as government backed loans. 612
The WaMu submission to the Board noted that, in order for the plan to be successful,
WaMu would need to carefully manage its residential mortgage business as well as its credit risk,
meaning the risk that borrowers would not repay the higher risk loans. 613 During the Board’s
discussion of the strategy, credit officers noted that losses would likely lag by several years. 614
WaMu executives knew that even if loan losses did not immediately materialize, the strategy
presented potentially significant risks down the road. OTS did not object to the High Risk
Lending Strategy, even though OTS noted that the bank’s five-year plan did not articulate a
robust plan for managing the increased risk. 615

610

6/30/2004 OTS Memo to Lawrence Carter from Zalka Ancely, OTSWME04-0000005357 at 61 (“Joint Memo #9
- Subprime Lending Strategy”); 3/15/2004 OTS Report of Examination, at OTSWMS04-0000001483 [Sealed
Exhibit]. See also 1/2005 “Higher Risk Lending Strategy Presentation,” submitted to Washington Mutual Board of
Directors, at JPM_WM00302978, Hearing Exhibit 4/13-2a (“As we implement our Strategic Plan, we need to
address OTS/FDIC 2004 Safety and Soundness Exam Joint Memos 8 & 9 . . . Joint Memo 9: Develop and present a
SubPrime/Higher Risk Lending Strategy to the Board.”).
611
1/2005 “Higher Risk Lending Strategy Presentation,” submitted to Washington Mutual Board of Directors, at
JPM_WM00302978, Hearing Exhibit 4/13-2a; see also “WaMu Product Originations and Purchases by Percentage –
2003-2007,” chart prepared by the Subcommittee, Hearing Exhibit 4/13-1i.
612
4/18/2006 Washington Mutual Home Loans Discussion Board of Directors Meeting, at JPM_WM00690894,
Hearing Exhibit 4/13-3 (see chart showing gain on sale for government loans was 13 basis points (bps); for 30-year,
fixed rate loans was 19 bps; for Option ARMs was 109 bps; for home equity loans was 113 bps; and for subprime
loans was 150 bps.)
613
The Home Loans presentation to the Board acknowledged that risks of the High Risk Lending Strategy included
managing credit risk, implementing lending technology and enacting organizational changes. 4/18/2006
Washington Mutual Home Loans Discussion Board of Directors Meeting, at JPM_WM00690899, Hearing Exhibit
4/13-3.
614
1/18/2005 Washington Mutual Inc. Washington Mutual Bank FA Finance Committee Minutes,
JPM_WM06293964-68 at 67; see also 1/2005 Washington Mutual, Higher Risk Lending Strategy Presentation, at
JPM_WM00302987, Hearing Exhibit 4/13-2a (chart showing peak loss rates in 2007).
615
See 3/15/2004 OTS Report of Examination, at OTSWMS04-0000001509, Hearing Exhibit 4/16-94 [Sealed
Exhibit].

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Even before it received formal Board approval, Washington Mutual had begun shifting
its loan originations toward higher risk loans. By 2007, rising defaults and the collapse of the
subprime secondary market prevented WaMu from fully implementing its plans, but it did have
time to shift the composition of the loans it originated and purchased, increasing the percentage
of higher risk home loans from at least 19% in 2003, to over 47% in 2007. 616
Home
Equity
7%

2007

2003

Subprime
5%
Option
ARM
7%

Other ARM
17%

Fixed
64%

Subprime
5%

Home
Equity
24%

Fixed
23%

Option
ARM
18%

Other
ARM
30%

Over the course of nearly three years, from 2005 to 2007, WaMu issued and securitized
hundreds of billions of high risk loans, including $49 billion in subprime loans 617 and $59 billion
in Option ARMs. 618 Data compiled by the Treasury and the FDIC Inspectors General showed
that, by the end of 2007, Option ARMs constituted about 47% of all home loans on WaMu’s
balance sheet, of which about 56% of the borrowers were making the minimum payment
amounts. 619 The data also showed that 84% of the total value of the Option ARMs was
negatively amortizing, meaning that the borrowers were going into deeper debt rather than
paying off their loan balances. 620 In addition, by the end of 2007, stated income loans – loans in
which the bank had not verified the borrower’s income – represented 73% of WaMu’s Option

616

“WaMu Product Originations and Purchases by Percentage – 2003-2007,” chart prepared by the Subcommittee,
Hearing Exhibit 4/13-1i.
617
“Securitizations of Washington Mutual and Long Beach Subprime Home Loans,” chart prepared by the
Subcommittee, Hearing Exhibit 4/13-1c.
618
4/2010 “Evaluation of Federal Regulatory Oversight of Washington Mutual Bank,” report prepared by the
Offices of Inspector General at the Department of the Treasury and Federal Deposit Insurance Corporation
(hereinafter “Treasury and FDIC IG Report”), at 9, Hearing Exhibit 4/16-82.
619
Id. An August 2006 WaMu internal presentation indicated that over 95% of its Option ARM borrowers were
making minimum payments. See 8/2006 chart, “Borrower-Selected Payment Behavior,” in WaMu internal
presentation entitled, “Option ARM Credit Risk,” JPM_WM00212646, Hearing Exhibit 4/13-37.
620
See Treasury and FDIC IG Report, at 9, Hearing Exhibit 4/16-82.

173
ARMs, 50% of its subprime loans, and 90% of its home equity loans. 621 WaMu also originated
numerous loans with high loan-to-value (LTV) ratios, in which the loan amount exceeded 80%
of the value of the underlying property. The Inspectors General determined, for example, that
44% of WaMu’s subprime loans and 35% of its home equity loans had LTV ratios in excess of
80%. 622 Still another problem was that WaMu had high concentrations of its home loans in
California and Florida, states that ultimately suffered above-average home value depreciation. 623
WaMu issued loans through its own retail loan offices, through Long Beach, which
issued subprime loans initiated by third party mortgage brokers, and through correspondent and
conduit programs in which the bank purchased loans from third parties. The Treasury and the
FDIC Inspectors General observed that, from 2003 to 2007, 48 to 70% of WaMu’s residential
mortgages came from third party mortgage brokers, and that only 14 WaMu employees were
responsible for overseeing more than 34,000 third party brokers, 624 requiring each WaMu
employee to oversee more than 2,400 third party brokers.
When the subprime market collapsed in July 2007, Washington Mutual was left holding a
portfolio saturated with high risk, poorly performing loans. Prior to the collapse, WaMu had
sold or securitized the majority of the loans it had originated or purchased, undermining the U.S.
home loan mortgage market with hundreds of billions of dollars in high risk, poor quality loans.
OTS documentation shows that WaMu’s regulators saw what was happening, identified the
problems, but then took no enforcement actions to protect either Washington Mutual or the U.S.
financial system from the bank’s shoddy lending practices.

(2) Overview of Washington Mutual’s Ratings History and Closure
An overview of Washington Mutual’s ratings history shows how OTS and the FDIC were
required to work together to oversee Washington Mutual, which the two agencies did with
varying levels of success. At times, the relationship was productive and useful, while at others
they found themselves bitterly at odds over how to proceed. As Washington Mutual’s problems
intensified, the working relationship between OTS and the FDIC grew more dysfunctional.
From 2004 to 2006, Washington Mutual was a profitable bank and enjoyed a 2 CAMELS
rating from both agencies, signifying it was a fundamentally sound institution. In late 2006, as
housing prices began to level off for the first time in years, subprime loans began to experience
delinquencies and defaults. In part because borrowers were unable to refinance their loans, those
delinquencies and defaults accelerated in 2007. The poorly performing loans began to affect the
payments supporting subprime mortgage backed securities, which began to incur losses. In July
2007, the subprime market was performing so poorly that the major credit rating agencies
suddenly downgraded hundreds of subprime mortgage backed securities, including over 40
issued by Long Beach. The subprime market slowed and then collapsed, and Washington
Mutual was suddenly left with billions of dollars in unmarketable subprime loans and securities
621

Id. at 10.
Id.
623
Id. at 11.
624
See Thorson prepared statement, at 5, April 16, 2010 Subcommittee Hearing at 105.
622

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that were plummeting in value. WaMu stopped issuing subprime loans. In the fourth quarter of
2007, WaMu reported a $1 billion loss.
As housing prices slowed and even began declining in some parts of the country, high
risk prime loans, including hybrid adjustable rate mortgages, Alt A, and Option ARMs, also
began incurring delinquencies and defaults. 625 By March 2008, the total delinquency rate for
prime/Alt A loans underlying WaMu and Long Beach securitizations was 8.57%, more than
twice the industry average. 626 In 2008, WaMu did not issue any new high risk, nonconforming
mortgage securitizations due to, in the words of OTS, “continued market illiquidity, deterioration
in the financial condition of the market, and the poor performance of WaMu’s outstanding
securitizations.” 627
In the first quarter of 2008, WaMu continued to incur losses as the value of its loan
portfolio and mortgage backed securities continued to drop. In February 2008, OTS downgraded
Washington Mutual for the first time, changing its CAMELS rating from a 2 to a 3, signifying
that the bank was in trouble. Unfortunately, OTS did not follow up with a suitable enforcement
action. Consistent with its own practice, OTS should have required WaMu to enter into a public
Memorandum of Understanding specifying the measures WaMu would take to remedy its
problems. Instead, in March, OTS allowed WaMu to issue a nonpublic Board Resolution in
which the WaMu Board generally promised to address various problems, but did not identify any
specific actions or deadlines. 628
Also in March 2008, at the urging of the FDIC, OTS required Washington Mutual to
allow potential buyers of the bank to conduct due diligence of its assets and operations. 629
Several institutions participated, and JPMorgan Chase made an offer to buy the bank which
Washington Mutual turned down. By the end of the first quarter of 2008, Washington Mutual
had lost another $1 billion. In April 2008, to reassure the market and its depositors, the holding
company raised additional capital of $7 billion from the private sector and provided $3 billion of
those funds to the bank. But by the end of the second quarter, WaMu lost another $3.2 billion.
Its stock price plummeted, and depositors began withdrawing substantial sums from the bank.
In June 2008, as a result of the bank’s financial and deposit losses, the FDIC downgraded
WaMu to its lowest internal LIDI rating, an E, indicating “serious concern” that the bank would
625

WaMu’s Chief Credit Officer informed the Board of Directors that WaMu was “heavily concentrated” in
residential mortgages and high risk products as well as in “highly stressed” geographic markets, which negatively
affected WaMu’s portfolio performance. See 2/25/2008 Credit Risk Overview Report to the Board of Directors,
prepared by John McMurray, WaMu Chief Credit Officer, JPM_WM02548447, at 28-29. He reported that WaMu’s
mortgages were 1366% of its common tangible equity, the highest percentage of any of the top 20 banks. He also
informed the Board that the bank’s residential mortgages “performed very poorly” and WaMu had “generally
retained higher risk products (e.g., Option ARMS, 2nd Liens, Subprime, Low Doc).”
626
OTS Fact Sheet 12, “Securitizations,” Dochow_Darrel-00001364_001.
627
Id.
628
3/17/2008 letter from Kerry Killinger to Darrel Dochow with enclosed Board Resolution, OTSWMS08-015
0001216. See also Treasury and FDIC IG Report at 31.
629
Subcommittee interviews of WaMu Chief Financial Officer Tom Casey (2/20/2010); WaMu Controller Melissa
Ballenger (2/14/2010); and OTS Western Region Office Director Darrel Dochow (3/3/2010); 4/2010 “Washington
Mutual Regulators Timeline,” prepared by the Subcommittee, Hearing Exhibit 4/16-1j.

175
cause a loss to the Deposit Insurance Fund. It also initiated a special insurance examination of
WaMu, which it conducted concurrently with ongoing OTS examination efforts. 630
Other financial institutions were also failing, compounding the concern of those who
worried whether the Deposit Insurance Fund had sufficient funds. In July 2008, IndyMac Bank,
another thrift with high risk loans, failed and was taken over by the FDIC. 631 In response,
Washington Mutual depositors began to withdraw more funds from the bank, eventually
removing over $10 billion. 632 The Federal Home Loan Bank of San Francisco also began to
limit WaMu’s borrowing, further straining its liquidity. 633 The parent holding company supplied
an additional $2 billion in capital to the bank.
In the final three months before WaMu’s collapse, tensions increased further between
OTS and the FDIC as they disagreed on the course of action. On July 3, 2008, the head of OTS
sent an email to the CEO of WaMu informing him that the agency had decided to require the
bank to issue a nonpublic Memorandum of Understanding (MOU). 634 On July 15, OTS and the
FDIC met with the WaMu Board of Directors to discuss the latest examination findings and
formally advise the Board of the OTS decision to require the MOU. On July 21, 2008, the FDIC
sent a letter to OTS urging it to take tough supervisory action in the MOU, including by
requiring WaMu to increase its loan loss reserves, begin providing regular financial updates, and
raise an additional $5 billion in capital. 635 OTS rejected the FDIC’s advice. 636 On July 31, 2008,
both OTS and FDIC officials met with WaMu’s Board. An FDIC official suggested at the Board
meeting that WaMu look for a strategic partner to buy or invest in the bank; OTS expressed
anger that the FDIC had raised the issue without first clearing it with OTS. 637
On August 1, 2008, the FDIC informed OTS that it thought WaMu should be
downgraded to a 4 CAMELS rating, signaling it was a troubled bank exhibiting unsafe and
unsound practices. 638 OTS strongly disagreed. 639 Also on August 1, OTS provided WaMu with
the proposed MOU. The proposed MOU would require the bank to correct lending and risk
management deficiencies identified in a June 30 examination report, develop a capital
contingency plan (rather than, as the FDIC originally urged, raise additional capital), submit a 3year business plan, and engage a consultant to review its underwriting, risk management,
630

See 7/21/2008 letter from FDIC to OTS, FDIC_WAMU_000001730, Hearing Exhibit 4/16-59.
For more information on IndyMac Bank, see section E(2), below.
632
See undated charts prepared by FDIC on “Daily Retail Deposit Change,” FDIC-PSI-01-000009.
633
See, e.g., 12/1/2008 “WaMu Bank Supervisory Timeline,” prepared by OTS Examiner-in-Charge Benjamin
Franklin, at Franklin_Benjamin-00035756_001, at 032 (7/22/2008 entry: “Although they have $60 billion in
borrowing capacity, the FHLB is not in a position to fund more than about $4 to $5 billion a week”). See also FDIC
LIDI Report for the Second Quarter of 2008, at FDIC_WAMU_000014991 [Sealed Exhibit].
634
7/3/2008 email from John Reich to Kerry Killinger, “MOU vs. Board Resolution,” Hearing Exhibit 4/16-44.
635
7/21/2008 letter from FDIC to OTS, FDIC_WAMU_000001730, Hearing Exhibit 4/16-59.
636
7/22/2008 letter from OTS to FDIC, OTSWMS08-015 0001312, Hearing Exhibit 4/16-60.
637
See 8/1/2008 email exchange among FDIC colleagues, FDIC-EM_00246958, Hearing Exhibit 4/16-64.
638
8/1/2008 email exchange among OTS officials, Hearing Exhibit 4/16-62. The FDIC had performed a capital
analysis earlier in the summer and had been pushing for a downgrade for weeks. See 7/21/2008 letter from FDIC to
OTS, FDIC_WAMU_000001730, Hearing Exhibit 4/16-59.
639
8/1/2008 email from OTS Director John Reich to FDIC Chairman Sheila Bair, Hearing Exhibit 416-63.
631

176
management, and board oversight. On August 4, WaMu asked OTS to drop the requirement that
the consultant review the Board’s oversight efforts, and OTS agreed.
On August 6, the FDIC Chairman asked the OTS Director to discuss contingency plans
for an emergency closure of the bank. The OTS Director reacted negatively and sent an email
criticizing the FDIC Chairman for acting as if it were the primary regulator of the bank. 640 As
the agencies argued amongst themselves, the bank’s condition continued to deteriorate.
By August 25, OTS and WaMu reached agreement on the terms of the MOU, but it was
not actually signed until September 7, 2008. 641 Apart from the capitalization plan, OTS Deputy
Director Scott Polakoff described the final MOU as a “benign supervisory document,” 642
meaning it would not bring about meaningful change at WaMu. 643
On September 10, 2008, the FDIC Chairman, Sheila Bair, informed WaMu that there was
a ratings disagreement between the FDIC and OTS, and that the FDIC was likely to downgrade
WaMu to a 4. When she informed the OTS Director, John Reich, of her conversation with
WaMu, he sent an internal email to his deputy, Scott Polakoff, venting his frustration that she
had not discussed the matter with him first and allowed OTS to break the news to the bank: “I
cannot believe the continuing audacity of this woman.” 644
Six days later, on September 16, 2008, Lehman Brothers declared bankruptcy, triggering
another run on Washington Mutual. Over the next eight days, depositors pulled $17 billion in
cash from WaMu’s coffers, leading to a second liquidity crisis. 645 On September 18, the FDIC
downgraded the bank to a 4 rating, and OTS agreed to the lower rating. Within days, because of
the bank’s accelerating liquidity problems, portfolio losses, share price decline, and other
problems, OTS and the FDIC decided they had to close the bank. 646
Due to the bank’s worsening liquidity crisis, the regulators abandoned their customary
practice of waiting until markets closed on Friday, and on Thursday, September 25, 2008, OTS
closed Washington Mutual Bank and appointed the FDIC as receiver. The FDIC immediately
sold the bank to JPMorgan Chase for $1.9 billion. If the sale had not gone through, Washington
Mutual’s $300 billion failure might have exhausted the entire $45 billion Deposit Insurance
Fund.

640

See 8/6/2008 email from John Reich, OTS Director, to Sheila Bair, FDIC Chairman, “Re: W,” FDICEM_00110089, Hearing Exhibit 4/16-66.
641
9/11/2008 OTS document, “WaMu Ratings,” Hearing Exhibit 4/16-48.
642
7/28/2008 email from OTS Deputy Director Scott Polakoff to Timothy Ward, “Re: WAMU MOU,”
Polakoff_Scott-00060660_001, Hearing Exhibit 4/16-45.
643
Subcommittee interview of Tim Ward, OTS Deputy Director of Examinations, Supervision and Consumer
Protection (2/12/2010).
644
9/10/2008 email from OTS Director John Reich to OTS Deputy Director Scott Polakoff, Polakoff_Scott00065461_001, Hearing Exhibit 4/16-68.
645
See undated charts prepared by FDIC on “Daily Retail Deposit Change,” FDIC-PSI-01-000009.
646
See IG Report at 13.

177

(3) OTS Identification of WaMu Deficiencies
During the five-year period reviewed by the Subcommittee, from 2004 through 2008,
OTS examiners identified over 500 serious deficiencies in Washington Mutual’s lending, risk
management, and appraisal practices. 647 OTS examiners also criticized the poor quality loans
and mortgage backed securities issued by Long Beach, and received FDIC warnings regarding
the bank’s high risk activities. When WaMu failed in 2008, it was not a case of hidden problems
coming to light; the bank’s examiners were well aware of and had documented the bank’s high
risk, poor quality loans and deficient lending practices.

(a) Deficiencies in Lending Standards
From 2004 to 2008, OTS Findings Memoranda and annual Reports of Examination
(ROE) repeatedly identified deficiencies in WaMu’s lending standards and practices. Lending
standards, also called “underwriting” standards, determine the types of loans that a loan officer
may offer or purchase from a third party mortgage broker. These standards determine, for
example, whether the loan officer may issue a “stated income” loan without verifying the
borrower’s professed income, issue a loan to a borrower with a low FICO score, or issue a loan
providing 90% or even 100% of the appraised value of the property being purchased.
When regulators criticize a bank’s lending or “underwriting” standards as weak or
unsatisfactory, they are expressing concern that the bank is setting its standards too low, issuing
risky loans that may not be repaid, and opening up the bank to later losses that could endanger its
safety and soundness. When they criticize a bank for excessively high lending or underwriting
“errors,” regulators are expressing concern that the bank’s loan officers are failing to comply
with the bank’s standards, such as by issuing a loan that finances 90% of a property’s appraised
value when the bank’s lending standards prohibit issuing loans that finance more than 80% of the
appraised value.
In addition to errors, regulators may express concern about the extent to which a bank
allows its loan officers to make “exceptions” to its lending standards and issue a loan that does
not comply with some aspects of its lending standards. Exceptions that are routinely approved
can undermine the effectiveness of a bank’s formal lending standards. Another common
problem is inadequate loan documentation indicating whether or not a particular loan complies
with the bank’s lending standards, such as loan files that do not include a property’s appraised
value, the source of the borrower’s income, or key analytics such as the loan-to-value or debt-toincome ratios. In the case of Washington Mutual, from 2004 to 2008, OTS examiners routinely
found all four sets of problems: weak standards, high error and exception rates, and poor loan
documentation.
2004 Lending Deficiencies. In 2004, OTS examiners identified a variety of problems
with WaMu’s lending standards. In May of that year, an OTS Findings Memorandum stated:

647

See IG Report at 28.

178
“Several of our recent examinations concluded that the Bank’s single family loan
underwriting was less than satisfactory due to excessive errors in the underwriting
process, loan document preparation, and in associated activities.” 648
After reviewing an OTS examination of a loan sample, the FDIC examiner wrote that the loans:
“reflected inconsistencies with underwriting and documentation practices, particularly in
the brokered channel. Additionally, examiners noted that Washington Mutual’s SFR
[Single Family Residential] portfolio has an elevated level of risk to a significant volume
of potential negative amortization loans, high delinquency and exception rates, and a
substantial volume of loans with higher risk characteristics, such as low FICO scores.” 649
A few months later, in September, an OTS review of a sample of 2003 WaMu loans
found “critical error rates as high as 57.3%”:
“[Residential Quality Assurance]’s review of 2003 originations disclosed critical error
rates as high as 57.3 percent of certain loan samples, thereby indicating that SFR [Single
Family Residential] underwriting still requires much improvement. While this group has
appropriately identified underwriting deficiencies, it has not been as successful in
effecting change.” 650
The same OTS Report of Examination observed that one of the three causes of underwriting
deficiencies was “a sales culture focused on building market share.” It also stated:
“Notwithstanding satisfactory asset quality overall, some areas still require focused
management and Board attention. Most important is the need to address weaknesses in
single-family residential (SFR) underwriting, which is an ongoing issue from prior
exams.” 651
The OTS ROE concluded: “Underwriting of SFR loans remains less than satisfactory.” 652
The next month, when OTS conducted a field visit to follow up on some of the problems
identified earlier, it concluded:
“The level of SFR [Single Family Residential] underwriting exceptions in our samples
has been an ongoing examination issue for several years and one that management has
found difficult to address. The institution instituted a major organizational/staffing

648

5/12/2004 OTS Memo 5, “SFR Loan Origination Quality,” OTSWME04-0000004883.
5/20/2004 FDIC-DFI Memo 3, “Single Family Residential Review,” OTSWME04-0000004889.
650
9/13/2004 OTS Report of Examination, at OTSWMS04-0000001498, Hearing Exhibit 4/16-94 [Sealed Exhibit].
651
9/13/2004 OTS Report of Examination, at OTSWMS04-0000001492, Hearing Exhibit 4/16-94 [Sealed Exhibit].
652
9/13/2004 OTS Report of Examination, at OTSWMS04-0000001497, Hearing Exhibit 4/16-94 [Sealed Exhibit].
649

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realignment in September 2003 and has continued to make additional adjustments since
that time to address accumulating control issues.” 653
2005 Lending Deficiencies. In early 2005, OTS elevated the problems with the bank’s
lending standards to the attention of the WaMu Board of Directors. In a letter to the Board, OTS
wrote:
“SFR Loan Underwriting – This has been an area of concern for several exams. As
management continues to make change in organization, staffing, and structure related to
SFR loan underwriting, delays in meeting target dates become inevitable. The board
should closely monitor these delays to ensure they do not become protracted.” 654
OTS officials attended a Board meeting to address this and other concerns. Yet a few months
later, in June, an OTS examiner wrote: “We continue to have concerns regarding the number of
underwriting exceptions and with issues that evidence lack of compliance with Bank policy.” 655
The examination findings memorandum also noted that, while WaMu tried to make changes,
those changes produced “only limited success” and loan underwriting remained “less than
satisfactory.” 656
In August 2005, the OTS ROE for the year indicated that the lending standards problem
had not been resolved:
“[W]e remain concerned with the number of underwriting exceptions and with issues that
evidence lack of compliance with bank policy …. [T]he level of deficiencies, if left
unchecked, could erode the credit quality of the portfolio. Our concerns are increased
with the risk profile of the portfolio is considered, including concentrations in Option
ARM loans to higher-risk borrowers, in low and limited documentation loans, and loans
with subprime or higher-risk characteristics. We are concerned further that the current
market environment is masking potentially higher credit risk.” 657
2006 Lending Deficiencies. The same problems continued into 2006. In March 2006,
OTS issued the same strong warning about WaMu’s loan portfolio that it had provided in August
2005:
“We believe the level of delinquencies, if left unchecked, could erode the credit quality of
the portfolio. Our concerns are increased when the risk profile of the portfolio is
considered, including concentrations in Option ARMS to higher-risk borrowers, in low
and limited documentation loans, and loans with subprime or higher-risk characteristics.

653

10/18/2004 OTS Field Visit Report of Examination, at OTSWMEF-0000047576-78, Hearing Exhibit 4/16-94
[Sealed Exhibit].
654
2/7/2005 OTS Letter to Washington Mutual Board of Directors on Matters Requiring Board Attention,
OTSWMEF-0000047591 [Sealed Exhibit].
655
6/3/2005 OTS Findings Memorandum, “Single Family Residential Home Loan Review,” OTSWME05-004
0000392, Hearing Exhibit 4/16-26.
656
Id. at OTSWME05-004 0000392.
657
8/29/2005 OTS Report of Examination, at OTSWMS05-004 0001794, Hearing Exhibit 4/16-94 [Sealed Exhibit].

180
We are concerned further that the current market environment is masking potentially
higher credit risk.” 658
Two months later, in May 2006, an OTS examiner wrote:
“During the prior examination, we noted numerous instances of underwriters exceeding
underwriting guidelines, errors in income calculations, errors in debt-to-income (DTI)
calculations, lack of sufficient mitigating factors for credit-quality related issues, and
insufficient title insurance coverage on negative amortization loans. … [U]nderwriting
errors [] continue to require management’s attention.” 659
While OTS was documenting its concerns, however, it is apparent in hindsight that the
agency tempered its criticism. The OTS examiner who authored the memo found that in his
review, none of the negatively amortizing loans he analyzed for safety and soundness carried an
“exception,” meaning it “probably should not have been made.” 660 Many of the loans made in
this time period would later default.
Another OTS Findings Memorandum the same month concluded: “Overall, we
concluded that the number and severity of underwriting errors noted remain at higher than
acceptable levels.” 661
The 2006 OTS ROE for the year concluded:
“[S]ubprime underwriting practices remain less than satisfactory. … [T]he number and
severity of underwriting exceptions and errors remain at higher than acceptable levels.
… The findings of this judgmental sample are of particular concern since loans with risk
layering … should reflect more, rather than less, stringent underwriting.” 662
2007 Lending Deficiencies. In 2007, the problems with WaMu’s lending standards were
no better, and the acceleration of high risk loan delinquencies and defaults threatened serious
consequences.
By July 2007, the major credit rating agencies had begun mass ratings downgrades of
hundreds of mortgage backed securities, the subprime secondary market froze, and WaMu was
left holding billions of dollars worth of suddenly unmarketable subprime and other high risk
loans. In September, the OTS ROE for the year concluded:
“Underwriting policies, procedures, and practices were in need of improvement,
particularly with respect to stated income lending. Based on our current findings, and the
658

3/14/2006 OTS Report of Examination, at 19, OTSWMEF-0000047030, Hearing Exhibit 4/16-94 [Sealed
Exhibit].
659
5/23/2006 OTS Findings Memorandum, “Home Loan Underwriting,” OTSWMS06-008 0001299, Hearing
Exhibit 4/16-33.
660
Id.
661
5/25/2006 OTS Findings Memorandum, “Loan Underwriting Review - Long Beach Mortgage,” OTSWMS06008 0001243, Hearing Exhibit 4/16-35.
662
8/26/2006 OTS Report of Examination, at OTSWMS06-008 0001680, Hearing Exhibit 4/16-94 [Sealed Exhibit].

181
fact that a number of similar concerns were raised at prior examinations, we concluded
that too much emphasis was placed on loan production, often at the expense of loan
quality.” 663
The ROE also reported on an unsatisfactory review of loans that had been originated by Long
Beach and warned that, if the problems were not promptly corrected, “heightened supervisory
action would be taken”:
“Based on our review of 75 subprime loans originated by [Long Beach], we concluded
that subprime underwriting practices remain less than satisfactory …. Given that this is a
repeat concern and MRBA [Matter Requiring Board Attention], we informed
management that underwriting must be promptly corrected, or heightened supervisory
action would be taken, including limiting the Bank’s ability to continue SFR subprime
underwriting.” 664
In the fourth quarter of 2007, WaMu’s loan portfolio lost $1 billion in value. Despite that
loss, and the strong language in the 2007 examinations, OTS took no enforcement action against
the bank that would result in WaMu’s tightening its lending standards or strengthening
compliance with the standards it had.
2008 Lending Deficiencies. In the first six months of 2008, WaMu continued to incur
billions of dollars in losses, as its high risk loan portfolio lost value and its share price fell. In
July 2008, about two months before the bank failed, OTS met with the WaMu Board of Directors
to discuss, among other matters, the bank’s deficient lending standards. While the presentation
to the Board reiterated the concerns from past years, it failed to convey a sense of urgency to a
bank on the verge of collapse. Instead, the presentation focused on long term corrective action
that WaMu should take. The OTS written presentation to the Board included the following:
“High SFR [Single Family Residential] losses due in part to downturn in real estate
market but exacerbated by: geographic concentrations[,] risk layering[,] liberal
underwriting policy[,] poor underwriting. … Discontinuing higher risk lending and
tightened underwriting policy should improve asset quality; however, actions should have
been taken sooner. …
Significant underwriting and process weaknesses noted again in the Home Loans
Group[.] ... Reducing higher risk lending products and practices should have been done
sooner.” 665
Failure to Correct Deficient Lending Practices. In various reports for nearly five
consecutive years, OTS criticized WaMu’s lending standards, error and exception rates, and loan
documentation, and directed the bank to improve its performance. When WaMu failed to
improve during that span, OTS failed to take action, such as requiring a board resolution,
663

9/18/2007 OTS Report of Examination, at OTSWMEF-0000046679, Hearing Exhibit 4/16-94 [Sealed Exhibit].
9/18/2007 OTS Report of Examination, at OTSWMEF-0000047146, Hearing Exhibit 4/16-94 [Sealed Exhibit].
665
7/15/2008 OTS Presentation to WaMu Board of Directors based on Comprehensive Examinations,
Polakoff_Scott-00061303_007, 012, 027, Hearing Exhibit 4/16-12b.
664

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memorandum of understanding, or cease and desist order compelling WaMu to tighten its
lending standards and increase oversight of its loan officers to reduce underwriting error and
exception rates and improve loan documentation. The result was that WaMu originated or
purchased hundreds of billions of dollars of high risk loans, including stated income loans
without verification of the borrower’s assets or ability to repay the loan; loans with low FICO
scores and high loan-to-value ratios; loans that required interest-only payments; and loan
payments that did not cover even the interest owed, much less the principal.

(b) Deficiencies in Risk Management
Over the same five-year period, from 2004 to 2008, in addition to identifying deficiencies
associated with WaMu’s lending practices, OTS repeatedly identified problems with WaMu’s
risk management practices. Risk management involves identifying, evaluating, and mitigating
the risks that threaten the safety, soundness, and profitability of an institution. At thrifts, the
primary risk issues include setting lending standards that will produce profitable loans, enforcing
those standards, evaluating the loan portfolio, identifying home loans that may default,
establishing adequate reserves to cover potential losses, and advising on measures to lower the
identified risks. When regulators criticize a bank’s risk management practices as weak or
unsatisfactory, they are expressing concern that the bank is failing to identify the types of risk
that threaten the bank’s safety and soundness and failing to take actions to reduce and manage
those risks.
Within WaMu, from 2004-2005, oversight of risk management practices was assigned to
a Chief Risk Officer. In 2006, it was assigned to an Enterprise Risk Management (ERM)
Department headed by a Chief Enterprise Risk Officer. ERM employees reported, not only to
the department, but also to particular lines of business such as the WaMu Home Loans Division,
and reported both to the Chief Risk Officer and to the head of the business line, such as the
president of the Home Loans Division. WaMu referred to this system of reporting as a “DoubleDouble.” 666
As with the bank’s poor lending standards, OTS allowed ongoing risk management
problems to fester without taking enforcement action. From 2004 to 2008, OTS explicitly and
repeatedly alerted the WaMu Board of Directors to the need to strengthen the bank’s risk
management practices.
2004 Risk Management Deficiencies. In 2004, prior to the bank’s adoption of its High
Risk Lending Strategy, OTS expressed concern about the bank’s risk management practices,
highlighted the issue in the annual ROE, and brought it to the attention of the WaMu Board of
Directors. The 2004 ROE stated:

666

Subcommittee interviews of Ronald Cathcart (2/23/2010), David Schneider (2/17/2010), and Cheryl Feltgen
(2/6/2010).

183
“Board oversight and management performance has been satisfactory … but … increased
operational risks warrant prompt attention. These issues limit the institution’s flexibility
and may threaten its ability to remain competitive and independent.” 667
At another point, the ROE warned: “Ensure cost-cutting measures are not impacting critical risk
management areas.” 668
Another OTS examination that focused on WaMu’s holding company identified multiple
risks associated with Long Beach: “[P]rimary risks associated with Long Beach Mortgage
Company remain regulatory risk, reputation risk, and liquidity of the secondary market in
subprime loans.” 669
Its concern about WaMu’s risk management practices prompted, in part, OTS’
requirement that WaMu commit its high risk lending strategy to paper and gain explicit approval
from the Board of Directors.
2005 Risk Management Deficiencies. In 2005, after adoption of the High Risk Lending
Strategy, OTS again highlighted risk management issues in its examination reports and again
brought the matter to the attention of WaMu’s Board of Directors.
In March 2005, OTS observed that WaMu’s five-year strategy, which increased credit
risk for the bank, did not “clearly articulate the need to first focus on addressing the various
operational challenges before embarking on new and potentially more risky growth
initiatives.” 670 OTS also wrote: “We discussed the lack of a clear focus in the plan on resolving
operational challenges with CEO Killinger and the Board.” 671 OTS continued to express
concerns about the bank’s weak risk management practices for the rest of the year, yet took no
concrete enforcement action to compel the bank to address the issue. In June 2005, OTS
described risk management weaknesses within WaMu’s Corporate Risk Oversight group, a subgroup within the ERM Department responsible for evaluating credit and compliance risk. OTS
wrote that it had deemed its comments as “criticisms” of the bank, because of the significance of
the risk management function in addressing ongoing problems with the bank’s lending standards
and loan error rates:
“Most of the findings are considered ‘criticisms’ due to the overall significance of CRO
[Corporate Risk Oversight] activities and the fact that we have had concerns with quality
assurance and underwriting processes within home lending for several years.” 672
In August 2005, in its annual Report on Examination, OTS urged the WaMu Board to
obtain progress reports from the ERM Department and ensure it had sufficient resources to
667

9/13/2004 OTS Report of Examination, at OTSWMS04-0000001504, Hearing Exhibit 4/16-94 [Sealed Exhibit].
Id. at OTSWMS04-000001488.
669
4/5/2004 OTS Report of Examination, at OTSWMEF-0000047477, Hearing Exhibit 4/16-94 [Sealed Exhibit].
670
3/15/2004 OTS Report of Examination, at OTSWMS04-0000001509, Hearing Exhibit 4/16-94 [Sealed Exhibit].
671
Id.
672
6/1/2005 OTS Findings Memorandum, “Corporate Risk Oversight,” OTSWMS05-005 0002046, Hearing Exhibit
4/16-23.
668

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become an effective counterweight to the increased risk-taking entailed in the High Risk Lending
Strategy:
“Monitor and obtain reports from management on status of [Enterprise Risk
Management] in terms of effectiveness and resource adequacy. … ERM provides an
important check and balance on the company’s profit-oriented units and warrants
ongoing strong Board commitment given the institution’s current strategic direction.” 673
The same ROE noted that the bank did not have effective procedures in place to evaluate the
many exceptions being granted to allow loan officers to issue loans that failed to comply with the
bank’s lending standards, and urged attention to the risks being established:
“Until full exception data collection, reporting, and follow-up processes are in place and
stabilized, senior management and the Board cannot fully assess whether quality
assurance processes are having a meaningful impact on line activities, including loan
underwriting. We are particularly concerned with the establishment of good quality
assurance process for SFR underwriting, which has been an issue for the past several
examinations.” 674
A follow-up field examination, conducted in September 2005, stated:
“We criticized the lack of Trend and Dashboard Report to senior management and the
board, without which it is impossible to determine whether line functions are performing
acceptably and, more specifically, whether the quality assurance process is having a
meaningful impact on improving loan underwriting.” 675
2006 Risk Management Deficiencies. In 2006, OTS again expressed concern about
WaMu’s risk management practices, but took no further steps to compel improvements. The
annual ROE urged the Board of Directors to:
“[c]ontinue to monitor and obtain reports from management on the status of ERM to
ensure its effectiveness and adequacy of resources. . . . ERM should provide an
important check and balance on profit-oriented units … particularly given the bank’s
current strategy involving increased credit risk.” 676
The 2006 ROE also commented that: “[w]ithin ERM, fraud risk management at the enterprise
level is in the early stage of development. … Currently, fraud management is decentralized and
does not provide a streamlined process to effectively track fraud events across all business lines.
In addition, consistent fraud reporting capabilities are not in place to consolidate data for
analysis, reporting, and risk management at the enterprise level.” 677
673

8/29/2005 OTS Report of Examination, at OTSWMS05-003 0001783, Hearing Exhibit 4/16-94 [Sealed Exhibit].
Id. at OTSWMS05-004 0001792.
675
10/3/2005 OTS Field Visit Report of Examination, at OTSWMEF-0000047602, Hearing Exhibit 4/16-94 [Sealed
Exhibit].
676
8/29/2006 OTS Report of Examination, at OTSWMS06-008 0001671, Hearing Exhibit 4/16-94 [Sealed Exhibit].
677
Id. at OTSWMS06-008 0001687, 91.
674

185
2007 Risk Management Deficiencies. In 2007, as high risk loan delinquencies and
defaults accelerated and WaMu began to incur losses, OTS examiners used harsher language to
describe the deficiencies in WaMu’s risk management practices, criticizing the bank’s failure to
institute stronger risk controls and procedures at an earlier date, as recommended.
In June 2007, for example, OTS examiners completed a review critical of WaMu
procedures to oversee the loans it purchased from third party mortgage brokers. 678 From 2003 to
2007, 48 to 70% of WaMu’s loans were purchased from third parties. 679 An OTS memorandum
noted that Washington Mutual had only 14 full-time employees overseeing more than 34,000
third party brokers submitting loans to the bank for approval. OTS also criticized the scorecard
used to rate those brokers which, among other problems, did not include the rate at which
significant lending or documentation deficiencies were attributed to the broker, the rate at which
its loans were denied or produced unsaleable loans, or an indication of whether the broker was
included in industry watchlists for misconduct. After describing these and other problems, rather
than lower WaMu’s safety and soundness scores for its poor oversight, however, the OTS
memorandum made only the following observation: “Given the . . . increase in fraud, early
payment defaults, first payment defaults, subprime delinquencies, etc., management should reassess the adequacy of staffing.” 680 WaMu management agreed with the finding, but provided
no corrective action plan, stating only that “[s]taffing needs are evaluated continually and
adjusted as necessary.” 681
In the September 2007 annual ROE, OTS wrote:
“Risk management practices in the HLG (Home Loans Group) during most of the review
period were inadequate …. We believe that there were sufficient negative credit trends
that should have elicited more aggressive action by management with respect to limiting
credit exposure. In particular, as previously noted, the risk misrepresentation in stated
income loans has been generally reported for some time. This information should have
led management to better assess the prudence of stated income lending and curtail riskier
products well before we indicated during this examination that we would limit the Bank’s
ability to continue such lending.” 682
The ROE also faulted management and Board inaction:
“Board oversight and management’s performance was less than satisfactory. …
Contributing factors should have been more proactively managed by the Board and
management. The most significant of these factors include Matters Requiring Board

678

6/7/2007 OTS Asset Quality Memo 11, “Broker Credit Administration,” Hedger_Ann-00027930_001, Hearing
Exhibit 4/16-10.
679
Prepared statement of Treasury IG Thorson, April 16, 2010 Subcommittee Hearing, at 5.
680
6/7/2007 OTS Asset Quality Memo 11, “Broker Credit Administration,” Hedger_Ann-00027930_001, Hearing
Exhibit 4/16-10.
681
Id. at 011.
682
9/18/2007 OTS Report of Examination, at OTSWMEF-0000046681, Hearing Exhibit 4/16-94 [Sealed Exhibit].

186
Attention that were noted in prior examinations but were not adequately addressed,
including … an ERM function that was not fully effective.” 683
The ROE concluded: “The ERM function has been less than effective for some time. … ERM
has not matured in a timely manner and other ERM functions have been generally
ineffective.” 684
A separate OTS examination of WaMu’s compliance function observed that WaMu had
hired nine different compliance officers in the past seven years, and that “[t]his amount of
turnover is very unusual for an institution of this size and is a cause for concern.” 685
Despite these harsh assessments in 2007, OTS again refrained from taking any
enforcement action against the bank such as developing a nonpublic Memorandum of
Understanding or a public Cease and Desist Order with concrete plans for strengthening WaMu’s
risk management efforts.
2008 Risk Management Deficiencies. In 2008, as WaMu continued to post billions of
dollars in losses, OTS continued to express concerns about its risk management practices. In
February 2008, OTS downgraded WaMu to a 3 CAMELS rating and required the bank to issue a
Board Resolution committing to certain strategic initiatives including “a more disciplined
framework for the identification and management of compliance risks.” 686
In June 2008, OTS issued a Findings Memorandum reacting to a WaMu internal review
that found significant levels of loan fraud at a particular loan office, and expressed concern “as to
whether similar conditions are systemic throughout the organization.” 687 The memorandum
noted that “a formalized process did not exist to identify, monitor, resolve, and escalate third
party complaints” about loan fraud, expressed concern about “an origination culture focused
more heavily on production volume rather than quality”; noted that the WaMu review had found
the “loan origination process did not mitigate misrepresentation/fraud”; and described the “need
to implement incentive compensation programs to place greater emphasis on loan quality.”
As referenced above, in July 2008, two months before the bank’s failure, OTS made a
presentation to the WaMu Board which, among other problems, criticized its risk management
efforts:
“An adequate [Enterprise Risk Management] function still does not exist although this
has been an MRBA [Matter Requiring Board Attention] for some time. Critical as a
check and balance for profit oriented units[.] Necessary to ensure that critical risks are
683

Id. at OTSWMEF-0000046690.
Id. at OTSWMEF-0000046691.
685
5/31/2007 Draft OTS Findings Memorandum, “Compliance Management Program,” Franklin_Benjamin00020408_001, Hearing Exhibit 4/16-9.
686
3/11/2008 WaMu presentation, “Summary of Management’s Action to Address OTS Concerns,”
JPM_WM01022322; 3/17/2008 letter from Kerry Killinger to Darrel Dochow with enclosed Board Resolution,
OTSWMS08-015 0001216 (committing to initiatives outlined by management).
687
6/19/2008 OTS Asset Quality Memo 22, Bisset_John-00046124_002, Hearing Exhibit 4/16-12a.
684

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identified, measured, monitored and communicated[.] Even more critical given increased
credit, market, and operational risk.” 688
Failure to Correct Poor Risk Management. By neglecting to exercise its enforcement
authority, OTS chronicled WaMu’s inadequate risk management practices over a period of years,
but ultimately failed to change its course of action. During a hearing of the Subcommittee, the
Department of the Treasury Inspector General, Eric Thorson, whose office conducted an in-depth
review of WaMu’s regulatory oversight, testified:
“Issues related to poor underwriting and weak risk controls were noted as far back
as 2003, but the problem was OTS did not ensure that WaMu ever corrected those
weaknesses. We had a hard time understanding why OTS would allow these
satisfactory ratings to continue given that, over the years, they found the same
things over and over.” 689

(c) Deficiencies in Home Appraisals
Still another area in which OTS failed to take appropriate enforcement action involves
WaMu’s appraisal practices. OTS failed to act even after other government entities accused
WaMu of systematically inflating property values to justify larger and more risky home loans.
Appraisals provide estimated dollar valuations of property by independent experts. They
play a key role in the mortgage lending process, because a property’s appraised value is used to
determine whether the property provides sufficient collateral to support a loan. Lending
standards at most banks require loans to meet, for example, certain loan-to-value (LTV) ratios to
ensure that, in the event of a default, the property can be sold and the proceeds used to pay off
any outstanding debt.
From 2004 to mid-2006, WaMu conducted its own property appraisals as part of the loan
approval process. During that period, OTS repeatedly expressed concerns about WaMu’s
appraisal efforts. 690 In May 2005, OTS criticized WaMu – the most severe type of finding –
regarding its practice of allowing sellers to estimate the value of their property. OTS directed
WaMu to stop including an Owner’s Estimate of Value in documents sent to appraisers since it
biased the review; this criticism had been repeatedly noted in prior examinations, yet WaMu did
not satisfactorily address it until the end of 2005. 691 A second finding criticized WaMu’s use of
automated appraisal software, noting “significant technical document weaknesses.” 692 OTS
ultimately determined that none of WaMu’s automated appraisals complied with standard
appraisal practices and some even had “highly questionable value conclusions.” 693 Despite this
688

7/15/2008 OTS presentation to WaMu Board of Directors based on Comprehensive Examinations,
Polakoff_Scott-00061303-028, Hearing Exhibit 4/16-12b.
689
See April 16, 2010 Subcommittee Hearing at 25.
690
See, e.g., 10/3/2005 OTS Report of Examination, at OTSWMEF-0000047601, Hearing Exhibit 4/16-94 [Sealed
Exhibit].
691
5/20/2005 OTS Memo 4, “Safety and Soundness Examination,” at OTSWME06-039 0000214.
692
Id.
693
3/14/2005 OTS Report of Examination, at OTSWMEN-000001794, Hearing Exhibit 4/16-94 [Sealed Exhibit].

188
dramatic criticism, OTS found in the next year’s examination that WaMu had continued to use
noncompliant automated appraisals. 694 Before any enforcement action was taken, WaMu
management agreed to cease using automated appraisals by October 2006.
To address the issue, WaMu decided in mid-2006 to outsource its appraisal function to
two vendors: eAppraiseIT and Lender Service Incorporated (LSI). 695 Calling the move “Project
Cornerstone,” WaMu fired all of its residential staff appraisers, reducing a staff of about 400 to
30, 696 and eAppraiseIT and LSI were tasked with conducting appraisals of homes purchased with
WaMu loans. 697 WaMu assigned oversight of the outside appraisals to a new Appraisal Business
Oversight (ABO) group, a unit within the WaMu Home Loans Risk Management division.
The Decision to Outsource. WaMu’s decision to outsource the appraisal function
received minimal attention from OTS. Documentation obtained by the Subcommittee indicates
only a few meetings took place between OTS examiners and the WaMu staff tasked with the
outsourcing. During a Subcommittee interview, the key OTS appraisal expert, Bruce Thorvig,
explained that it was his first time supervising a large institution that decided to outsource the
appraisal function. 698 Though the bank had repeatedly delayed taking action or failed to respond
to OTS recommendations and criticisms in the appraisal area in the past, the OTS appraisal
expert told the Subcommittee that he saw nothing to indicate that WaMu management could not
competently handle a large appraisal outsourcing project of this scale. 699 In one of the few
meetings that did occur between WaMu and OTS staff on appraisal issues, the bank’s
management came away with what they thought was full OTS approval for the outsourcing
project, 700 though OTS’ appraisal expert disputed that he was even in a position to grant approval
and was instead simply receiving notification of WaMu’s plans. 701
Appraisal Problems. Problems began almost immediately after WaMu outsourced the
appraisal function. Whether appraisals are conducted internally by the bank or through a vendor,
the bank must take responsibility for establishing a standard process to ensure accurate, unbiased
home appraisal values. One, for example, was a repeat problem from when WaMu did its own
appraisals: “WaMu allowed a homeowner’s estimate of the value of the home to be included on
the form sent from WaMu to third party appraisers, thereby biasing the appraiser’s evaluation”
toward a higher home value, in violation of standard residential appraisal methods. 702 A
seasoned appraisal compliance manager, who oversaw WaMu as an FDIC examiner prior to
coming to work for the bank, drafted a February 2007 Residential Appraisal Department Review
which included a long list of issues. Problems included: “undefined” appraisal standards and
processes; “loosely defined” vendor management; “unreasonable and imprudent sales force
694

5/23/2006 OTS Memo 2, “Safety and Soundness Examination,” at OTSWME06-039 0000205.
Undated OTS internal memo, OTSWMSP-00000001936-51 at 39 [Sealed Exhibit].
696
Undated OTS internal memo, OTSWMEN-0000015926-31 at 28 [Sealed Exhibit].
697
Undated OTS internal memo, OTSWMSP-00000001936-51 at 39 [Sealed Exhibit].
698
Subcommittee Interview of Bruce Thorvig (2/24/2010).
699
Id.
700
5/22/2006 WaMu internal email, OTSWMEN-0000020983.
701
Subcommittee Interview of Bruce Thorvig (2/24/2010).
702
IG Report, at 11, Hearing Exhibit 4/16-82.
695

189
influence over the appraisal function;” and a “broken” third party appraisal risk control process
that “may be contributing to the increasing incidence of mortgage fraud.” 703
These problems continued without resolution or enforcement action from OTS
throughout 2007. In an April 2007 memorandum, OTS detailed its concerns, both old and new,
with WaMu’s appraisal operations. OTS found that WaMu had failed to update and revise its
appraisal manual after outsourcing, which put the bank at risk of regulatory violations. In
addition, an OTS review of 54 WaMu appraisals identified a number of concerns:
“Primary appraisal issues (red flags requiring attention by the underwriter or review
appraiser) included seller paid closing costs and concession, misstatements/
contradictions, inadequate/incomplete explanations and support for the value conclusion,
reconciliation of the sales comparison approach, and weakness in the appraisal review
process.” 704
Despite the extent of these concerns, OTS issued a “recommendation” to the bank that it address
the identified problems, rather than the stronger “criticism” which would have elevated the issue
to the bank’s senior management or Board of Directors. 705
Attorney General Complaint. On November 1, 2007, the New York Attorney General
issued a complaint against WaMu’s appraisal vendors, LSI and eAppraiseIT, alleging fraud and
collusion with WaMu to systematically inflate real estate values. 706 The complaint stated in part:
“[F]irst American and eAppraiseIT have abdicated their role in providing ‘third-party,
unbiased valuations’ for eAppraiseIT’s largest client, WaMu. Instead, eAppraiseIT
improperly allows WaMu’s loan production staff to hand-pick appraisers who bring in
appraisal values high enough to permit WaMu’s loans to close, and improperly permits
WaMu to pressure eAppraiseIT appraisers to change appraisal values that are too low to
permit loans to close.” 707
Though OTS had been aware of the Attorney General’s investigation in May 2007, it
took no action until after the Attorney General issued the complaint. Even then, OTS did not
initiate its own investigation until after an internal WaMu investigation was already underway.
The OTS Western Region Director advised: “I believe OTS needs to open up its own special
investigation. WaMu started their own special investigation a few days ago when this broke.” 708

703

2/21/2007 draft internal WaMu report, “Residential Appraisal Department Review,” OTSWMEN-0000000274
(drafted by Mark Swift).
704
4/5/2007 OTS Asset Quality Memo 2, OTSWME07-067 0001082.
705
Id.
706
11/1/2007 New York Attorney General press release,
http://www.ag.ny.gov/media_center/2007/nov/nov1a_07.html. Both companies appraised property in New York,
which provided jurisdiction for the complaint.
707
New York v. First American Corporation, et al., (N.Y. Sup.), Complaint (November 1, 2007), at 3.
708
11/7/2007 email from Darrel Dochow to Benjamin Franklin, Randy Thomas, others, OTSWMS07-011 0001294.

190
It took nearly a month for OTS to launch its own investigation into the allegations set out
in the New York Attorney General’s complaint. 709 In November 2007, when the director of
OTS, John Reich, was presented with his agency’s investigation plan, he responded:
“This appears to be a comprehensive (and impressive) review schedule. It doesn’t
appear, on the surface anyway, to leverage off of WaMu’s own review. Do you
think we might be totally reinventing the wheel and possibly taking too long to
complete our review?” 710
Despite his concerns about how long the planned investigation might take, the OTS investigation
proceeded as proposed. It took over 10 months, until September 2008, for OTS to gather,
analyze, and reach conclusions about WaMu’s appraisal practices.
The OTS investigation uncovered many instances of improper appraisals. After
reviewing 225 loan files, the OTS appraisal expert found that “[n]umerous instances were
identified where, because of undue influence on the appraiser, values were increased without
supporting documentation.” 711 OTS also found that WaMu had violated the agency’s appraisal
regulations by failing to comply with appraisal independence procedures after they outsourced
the function. 712 The OTS investigation concluded that WaMu’s appraisal practices constituted
“unsafe or unsound banking practices.” 713 The OTS investigation also concluded that WaMu
was not in compliance with the Uniform Standards of Professional Appraisal Practice and other
minimum appraisal standards. 714
Failure to Correct Appraisal Deficiencies. Shortly before WaMu was sold, OTS’ staff
prepared a draft recommendation that the agency issue a cease and desist order to bar the bank
from engaging in any activity that would lead to further violation of the appraisal regulations. 715
A cease and desist order would have been the first public enforcement action against WaMu
regarding its lending practices. Ultimately, the legal staff submitted the memorandum to OTS’
Deputy Director and Chief Counsel on October 3, 2008, more than a week after the bank
collapsed and was sold. 716 By this point, the recommendation was too late and the issue was
moot.

709

See undated OTS internal memo to John Bowman, OTSWMSP-0000001936 [Sealed Exhibit].
11/16/2007 email from OTS Director John Reich to OTS Operations Director Scott Polakoff, Reich_John00040045_001.
711
7/28/2008 Draft Memo to Hugo Zia from Bruce Thorvig, OTSWMEN-0000015851 [Sealed Exhibit].
712
See 12 CFR Part 564.
713
Undated OTS internal memo, OTSWMSP-00000001936-51 at 47 [Sealed Exhibit].
714
Id. at 37 [Sealed Exhibit]. The Subcommittee found no evidence that anyone in OTS senior management
disputed the conclusions of the investigation.
715
Id.
716
OTS internal document, OTS Enforcement Status of Formal Investigations, Quigley_Lori-00231631_001.
710

191

(d) Deficiencies Related to Long Beach
In 1999, WaMu’s parent holding company, Washington Mutual Inc., purchased Long
Beach Mortgage Company (Long Beach). Long Beach’s business model was to issue subprime
loans initiated by third party mortgage lenders and brokers and then sell or package those loans
into mortgage backed securities for sale to Wall Street firms. Beginning in 1999, Washington
Mutual Bank worked closely with Long Beach to sell or securitize its subprime loans and
exercised oversight over its lending and securitization operations. Because Long Beach was a
subsidiary of Washington Mutual Inc., the holding company, however, and not a subsidiary of
Washington Mutual Bank, OTS did not have direct regulatory authority over the company, but
could review its operations to the extent they affected the holding company or the bank itself.
OTS was aware of ongoing problems with Long Beach’s management, lending and risk
standards, and issuance of poor quality loans and mortgage backed securities. OTS reported, for
example, that Long Beach’s “early operations as a subsidiary of [Washington Mutual Inc.] were
characterized by a number of weaknesses” including “loan servicing weaknesses, documentation
exceptions, high delinquencies, and concerns regarding compliance with securitization-related
representations and warranties.” 717 OTS also reported that, in 2003, “adverse internal reviews of
[Long Beach] operations led to a decision to temporarily cease securitization activity” until a
“special review” by the WaMu legal department ensured that file documentation “adequately
supported securitization representations and warranties” made by Long Beach. 718 OTS was
aware of an examination report issued by a state regulator and the FDIC after a review of 2003
Long Beach loans, which provides a sense of the extent of problems with those loans at the time:
“An internal residential quality assurance (RQA) report for [Long Beach]’s first quarter
2003 … concluded that 40% (109 of 271) of loans reviewed were considered
unacceptable due to one or more critical errors. This raised concerns over [Long
Beach]’s ability to meet the representations and warranty’s made to facilitate sales of
loan securitizations, and management halted securitization activity. A separate credit
review report … disclosed that [Long Beach]’s credit management and portfolio
oversight practices were unsatisfactory. … Approximately 4,000 of the 13,000 loans in
the warehouse had been reviewed … of these, approximately 950 were deemed saleable,
800 were deemed unsaleable, and the remainder contained deficiencies requiring
remediation prior to sale. … [O]f 4,500 securitized loans eligible for foreclosure, 10%
could not be foreclosed due to documentation issues.” 719
Despite these severe underwriting and operational problems, Long Beach resumed
securitization of its subprime loans in 2004. In April 2005, OTS examiners circulated an internal
email commenting on the poor quality of Long Beach loans and mortgage backed securities
compared to its peers:
717

12/21/2005 OTS internal memorandum by OTS examiners to OTS Deputy Regional Director, OTSWMS06-007
0001010, Hearing Exhibit 4/16-31.
718
Id.
719
1/13/2004 FDIC-Washington State joint visitation report, FDIC-EM_00102515-20, Hearing Exhibit 4/13-8b.
OTS held a copy of this report in its files, OTSWME04-0000029592.

192
“Performance data for 2003 and 2004 vintages appear to approximate industry average
while issues prior to 2003 have horrible performance. . . . [Long Beach] finished in the
top 12 worst annualized [Net Credit Losses] in 1997 and 1999 thru 2003. [Long Beach
nailed down the number 1 spot as top loser with an [Net Credit Loss] of 14.1% in 2000
and placed 3rd in 2001 with 10.5%. … For ARM [adjustable rate mortgage] losses, [Long
Beach] really outdid themselves with finishes as one of the top 4 worst performers from
1999 through 2003. For specific ARM deals, [Long Beach] made the top 10 worst deal
list from 2000 thru 2002. … Although underwriting changes were made from 2002 thru
2004, the older issues are still dragging down overall performance. … At 2/05, [Long
Beach] was #1 with a 12% delinquency rate. Industry was around 8.25%.” 720
Six months later, after conducting a field visit, an OTS examiner wrote: “Older securitizations
of [Long Beach] continue to have some issues due to previously known underwriting issues in
some vintages. The deterioration in these older securitizations is not unexpected.” 721
Purchase of Long Beach. In 2005, Washington Mutual Bank proposed purchasing Long
Beach from its holding company so that Long Beach would become a wholly owned subsidiary
of the bank. In making the case for the purchase, which required OTS approval, WaMu
contended that making Long Beach a subsidiary would give the bank greater control over Long
Beach’s operations and allow it to strengthen Long Beach’s lending practices and risk
management, as well as reduce funding costs and administrative expenses. In addition, WaMu
proposed that it could replace its current “Specialty Mortgage Finance” program, which involved
purchasing subprime loans for its portfolio primarily from Ameriquest, with a similar loan
portfolio provided by Long Beach. 722
In June 2005, an OTS examiner expressed concerns about the purchase in an internal
memorandum to OTS regional management and recommended that the purchase be conditioned
on operational improvements:
“At the start of this examination, it was our intent to perform a review of the operation of
[Long Beach] with the expectation that [Washington Mutual Inc.] or the bank would be
requesting approval to move [Long Beach] as an operating subsidiary of the bank. Such
a move would obviously place the heightened risks of a subprime lending operation
directly within the regulated institution structure. Because of the high profile nature of
the business of [Long Beach] and its problematic history, we believe that any and all
concerns regarding the subprime operation need to be fully addressed prior to any
move.” 723

720

4/14/2005 OTS internal email, OTSWME05-012 0000806, Hearing Exhibit 4/16-19.
10/3/2005 OTS Holding Company Field Visit Report of Examination, at OTSWMS06-010 00002532, Hearing
Exhibit 4/16-94 [Sealed Exhibit].
722
See 12/21/2005 OTS internal memorandum by OTS examiners to OTS Deputy Regional Director, at
OTSWMS06-007 0001011, Hearing Exhibit 4/16-31.
723
6/3/2005 OTS memorandum from Rich Kuczek to Darrel Dochow, “Long Beach Mortgage Corporation (LBMC)
Review,” OTSWMS06-007 0002683, Hearing Exhibit 4/16-28.
721

193
The memorandum identified several matters that required resolution prior to a WaMu purchase
of Long Beach, including the establishment of pre- and post-funding loan quality reviews that
were already in place at the bank. The memorandum also stated that Long Beach management
had “worked diligently to improve its operation and correct significant deficiencies … reported
in prior years,” and observed, “there is definitely a new attitude and culture.” 724
OTS continued to review Long Beach’s lending practices and found additional
deficiencies throughout the year. Those deficiencies included errors in loan calculations of debtto-income ratios, lack of documentation to support the reasonableness of borrower income on
stated income loans, and lack of explanation of a borrower’s ability to handle payment shock on
loans with rising interest rates. 725 OTS also determined that Long Beach’s newly created
portfolio of subprime loans “had attributes that could result in higher risk” than WaMu’s existing
subprime loan portfolio. 726
Nevertheless, in December 2005, OTS examiners wrote that, even though Long Beach
was “engaged in a high-risk lending activity and we are not yet fully satisfied with its practices,”
they recommended approving WaMu’s purchase of the company with certain conditions. 727
Those conditions included WaMu’s reconsidering its high risk lending concentration limits,
including “stated income loans with low FICOs and high LTV ratios”; WaMu’s assurance that
Long Beach would comply with certain loan guidance; a WaMu commitment to continue to
bring down its loan exception and error rates; and a WaMu commitment to ensure its Enterprise
Risk Management division would provide a “countervailing balance” to “imprudent” desires to
expand Long Beach’s subprime lending. 728
About the same time as this memorandum was completed, OTS learned that, during the
fourth quarter of 2005, Long Beach had been required to repurchase tens of millions of dollars of
loans it had sold to third parties due to early payment defaults. 729 By December, this unexpected
wave of repurchases had overwhelmed Long Beach’s repurchase reserves, leading to a reserve
shortfall of nearly $75 million. Altogether in the second half of 2005, Long Beach had to
repurchase loans with about $837 million in unpaid principal, and incurred a net loss of about

724
Id. See also 5/19/2005 OTS email, “LBMC Fair Lending,” OTSWMS05-005 0002002, Hearing Exhibit 4/16-20
(“I would not … feel comfortable with their moving [Long Beach] under the thrift without some conditions”).
725
See 12/21/2005 OTS internal memorandum by OTS examiners to OTS Deputy Regional Director Darrel
Dochow, OTSWMS06-007 0001009-16, Hearing Exhibit 4/16-31.
726
Id. at OTSWMS06-007 0001011.
727
See 12/21/2005 OTS internal memorandum by OTS examiners to OTS Deputy Regional Director Darrel
Dochow, OTSWMS06-007 0001009-16, Hearing Exhibit 4/16-31.
728
Id. at OTSWMS06-007 0001015-16.
729
See 10/3/2005 OTS Report of Examination, OTSWMS06-010 0002530, Hearing Exhibit 4/16-94 [Sealed
Exhibit] (noting that, after a field visit to Long Beach that concluded in December 2005, OTS learned that loan
repurchases had surged: “Subsequent to our on-site field visit, management informed us that loan repurchases had
increased considerably. … Management indicated that approximately $0.6 billion in loans were repurchased during
the fourth quarter of 2005 out of approximately $13.2 billion in total whole loan sales. The gross financial impact at
December 31, 2005, was $72.3 million.”); 1/20/2006 email from Darrel Dochow to Michael Finn and others, with
chart, OTSWMS06-007 0001020 to 1021 (describing Long Beach repurchases).

194
$107 million.730 In response, its auditor, Deloitte and Touche, cited Long Beach for a
Significant Deficiency in its financial reporting. Despite the sudden evidence of Long Beach’s
poor quality loans, inadequate repurchase reserves, and negative earnings impact on its parent
company, Washington Mutual Inc., OTS approved the bank’s application to purchase Long
Beach. OTS explained its decision to the Subcommittee by contending that the change in status
gave WaMu more control over Long Beach to ensure its improvement. 731
WaMu ultimately purchased Long Beach on March 1, 2006. 732 After the purchase, Long
Beach’s practices did not improve, but continued to exhibit numerous problems, as described in
the prior chapter. A May 2006 OTS examination of Long Beach loans concluded, for example,
“that the number and severity of underwriting errors noted remain at higher than acceptable
levels.” 733 In a June 2006 internal email to his colleagues, the OTS Regional Deputy Director
wrote:
“We gave them the benefit of doubt based on commitments and some progress when we
allowed them to bring [Long Beach] into the bank, but … we have the same type of
concerns remaining 6 months later.” 734
In the annual 2006 ROE and again in the annual 2007 ROE, OTS found that Long
Beach’s lending practices “remain[ed] less than satisfactory.” 735 At a hearing of the
Subcommittee on April 13, 2010, WaMu’s chief credit risk officers from 2004 to 2008 uniformly
condemned Long Beach’s poor performance and testified that it had never developed an
effective risk management system. 736

730

See 4/17/2006 memorandum by WaMu General Auditor to Board of Directors’ Audit Committees of Washington
Mutual Inc. and Washington Mutual Bank, “Long Beach Repurchase Reserve Root Cause Analysis,”
JPM_WM02533760, Hearing Exhibit 4/13-10 (Long Beach “experienced a dramatic increase in EPD’s [early
payment defaults], during the third quarter of 2005 [which] … led to a large volume of required loan repurchases.
The unpaid principal balance repurchased as a result of the EPD provision for the year ended December 31, 2005
was $837.3 million. The net loss from these repurchases was approximately $107 million.”).
731
Subcommittee interview of Benjamin Franklin (2/18/2010).
732
See “Washington Mutual Regulators Timeline,” chart prepared by the Subcommittee, Hearing Exhibit 4/16-1j.
733
5/25/2006 OTS Findings Memorandum, “Loan Underwriting Review - Long Beach Mortgage,” OTSWMS06008 0001243, Hearing Exhibit 4/16-35. See also 1/20/2006 email from Darrel Dochow to Michael Finn, et al.,
“LBMC EDP Impact,” OTSWMS06-007 0001020 (emphasis added).
734
6/9/2006 email from Darrel Dochow to Richard Kuczek, Lawrence Carter, and Benjamin Franklin, “Findings
Memos,” OTSWMS06-008 0001253, Hearing Exhibit 4/16-36.
735
8/29/2006 OTS Report of Examination, at OTSWMS06-008 0001680, Hearing Exhibit 4/16-94 [Sealed Exhibit];
9/18/2007 OTS Report of Examination, OTSWMEF-0000047146, Hearing Exhibit 4/16-94 (“Based on our review
of 75 subprime loans originated by LBMC, we concluded that subprime underwriting practices remain less than
satisfactory . . . . Given that this is a repeat concern and MRBA, we informed management that underwriting must
be promptly corrected, or heightened supervisory action would be taken, including limiting the Bank’s ability to
continue SFR subprime underwriting.”) [Sealed Exhibit].
736
April 13, 2010 Subcommittee Hearing at 22.

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(e) Over 500 Deficiencies in 5 Years
As part of their review of Washington Mutual, the Treasury and the FDIC Inspectors
General determined that, over a five-year period, 2004-2008, OTS examiners identified a total of
over 540 criticisms, observations, and recommendations related to WaMu operations. 737 At the
Subcommittee hearing, when asked whether those 540 findings constituted “serious criticisms”
of the bank, Treasury IG Eric Thorson responded: “Absolutely.” 738 The FDIC Inspector
General, Jon Rymer, agreed:
“[T]he examiners, from what I have seen here, were pointing out the problems,
underwriting problems, riskier products, concentrations, distributions, and markets that
may display more risk – they were all significant problems and they were identified. At
the end of the day, though, I don’t think forceful enough action was taken.” 739
As WaMu accumulated hundreds of infractions from OTS, longstanding problems with
asset quality in the bank’s portfolio continued. While some observers have blamed WaMu’s
failure on its liquidity troubles in late 2008, years of unresolved problems festered below the
surface.
The consequences of WaMu’s failure to address its underwriting problems, risk
concentrations, risk layering, and other problems were exponential increases in its loss rates.
The FDIC later calculated the loss rates for several WaMu products. In WaMu’s held-forinvestment Option ARM portfolio, delinquency rates nearly doubled every year, rising from
0.48% at the end of 2005 to 0.90% a year later, to 2.63% at year end 2007, and up to 4.63% by
June 30, 2008. 740 In its subprime portfolio, its delinquency rate increased from 7.39% in 2005 to
25.20% in June 2008. 741 The delinquency rate in its HELOC portfolio rose from 0.58% in 2005
to 4.00% in June 2008.742 As a result, net charge-offs for WaMu’s Option ARM portfolio rose
from $15 million at year end 2005 to $37 million in 2006, to $147 million in 2007, and to $777
million by June 2008. 743 HELOC net charge-offs likewise increased, rising from $21 million in
2005, to $23 million in 2006, to $424 million in 2007, and to $1.19 billion by June 2008. 744
Subprime net charge-offs expanded even more rapidly, rising from $47 million in 2005, to $134
million in 2006, to $550 million in 2007, and $956 million by June 2008. 745 To account for
these losses, WaMu’s loss provisions jumped from $218 million in 2006 to over $2 billion in
2007, and an additional $6 billion by June 2008. 746

737

Id. at 20. See also IG Report at 28.
April 16, 2010 Subcommittee Hearing at 17.
739
Id. at 18.
740
See FDIC Complaint Against WaMu Executives at ¶ 79.
741
Id.
742
Id.
743
Id. at ¶ 81.
744
Id.
745
Id.
746
Id. at ¶ 82.
738

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The joint report of the Treasury and the FDIC Inspectors General specifically identified
WaMu’s poor quality loans and poor risk management practices as the real cause of its failure,
rather than the liquidity crisis that hit the bank in 2008. 747 During the Subcommittee’s hearing,
when asked why WaMu failed, a senior FDIC official put it this way: “Asset quality. Weak
asset quality. It brought on the liquidity problems.” 748 He explained:
“If you have strong asset quality, you will not have liquidity issues because your assets –
you can borrow either against them or you can sell them. If you have weak asset quality,
then you are going to have liquidity issues at some point.” 749

(4) OTS Turf War Against the FDIC
As WaMu approached the end, tensions between OTS and the FDIC that had built up
over two years evolved into a turf war. OTS examination and regional officials began to express
distrust of their FDIC counterparts. The conflict was elevated to the top leaders of both agencies,
who came to take different views of what to do with WaMu – the FDIC becoming more
aggressive and OTS becoming more protective. When the bank’s imminent collapse was no
longer a question, the result was a hasty seizure and sale. Had the two government agencies
acted in concert, rather than as adversaries, it is likely that WaMu’s problems would have been
resolved earlier and with less collateral damage. During an interview, the chairman of the FDIC,
Sheila Bair, stated pointedly that WaMu “could have sold themselves in July if they had
tried.” 750 The same outcome was not accomplished until two months later in September when no
other options remained, and OTS worked with the FDIC to make it happen.
As mentioned earlier, OTS was the primary, but not the only, federal bank regulator that
oversaw Washington Mutual. Since WaMu was also an insured institution, the FDIC served as a
backup examiner responsible for evaluating the risk that the bank posed to the Deposit Insurance
Fund. Because WaMu was one of the eight largest insured institutions in the country, the FDIC
had assigned a Dedicated Examiner whose full time responsibility was to determine whether the
bank was operating in a safe and sound manner. The FDIC Examiner reviewed all OTS ROEs
and examination findings, participated on many occasions in OTS examinations, and reviewed
bank documents. The FDIC reviewed the CAMELS ratings for the bank, as well as LIDI ratings
under its Large Insured Depository Institutions Program.
For many years, FDIC examiners worked cooperatively with OTS examiners to conduct
oversight of WaMu. But beginning in 2006, OTS management expressed increasing reluctance
to allow FDIC examiners to participate in WaMu examinations and review bank documents.
Claiming that joint efforts created confusion about which agency was WaMu’s primary

747

IG Report at 8.
April 16, 2010 Subcommittee Hearing at 76. John Corston was the Acting Deputy Director of the FDIC’s
Division of Supervision and Consumer Protection, Complex Financial Institution Branch.
749
Id.
750
Subcommittee interview of Sheila Bair (4/5/2010).
748

197
regulator, 751 OTS officials employed a variety of tactics to limit the FDIC oversight of the bank,
including restricting its physical access to office space at the bank, its participation in bank
examinations, and its access to loan files. In addition, as the FDIC began to express greater
concern about the bank’s viability, recommend ratings downgrades, and urge enforcement
action, OTS officials displayed increasing resistance to its advice. In the end, OTS not only
undermined years of cooperative oversight efforts, but at times actively impeded FDIC oversight
of one of the largest insured banks in the country.
Resisting FDIC Advice. During the period 2004-2008, internal FDIC evaluations of
Washington Mutual were consistently more negative than those of OTS, at times creating friction
between the two agencies. OTS also resisted the FDIC’s advice to subject WaMu to stronger
enforcement actions, downgrade its CAMELS rating, and solicit buyers for the bank.
As early as 2005, the FDIC examination team expressed concerns about WaMu’s high
risk lending strategy, even though the bank’s management expressed confidence that the risks
were manageable. In an internal memorandum, for example, the FDIC team identified multiple
negative impacts on WaMu’s loan portfolio if housing prices were to stop climbing. The
memorandum stated in part:
“Washington Mutual Bank’s (WMB) single-family residential (SRF) loan portfolio has
embedded risk factors that increase exposure to a widespread decline in housing prices.
The overall level of risk is moderate, but increasing. … A general decline in housing
prices would adversely impact: a) The SRF loan portfolio; b) The home equity loan
portfolio; and c) Mortgage banking revenue. … In January 2005, management developed
a higher-risk lending (HRL) strategy and defined company-wide higher-risk loans as …
sub prime loans … SFR loans with FICO scores below 620, … consumer loans with
FICO scores below 660, and … [the] Long Beach … portfolio. Management intends to
expand the HRL definition and layer additional risk characteristics in the future. …
Management acknowledges the risks posed by current market conditions and recognizes
that a potential decline in housing prices is a distinct possibility. Management believes,
however that the impact on WMB would be manageable, since the riskiest segments of
production are sold to investors, and that these investors will bear the brunt of a bursting
housing bubble.” 752

751

See, e.g., April 16, 2010 Subcommittee Hearing at 61 (testimony of OTS Director Reich: “[F]irst of all, the
primary regulator is the primary Federal regulator, and when another regulator enters the premises, when the FDIC
enters the premises, confusion develops about who is the primary regulator, who really is calling the shots, and who
do we report to, which agency.”)
752
Undated draft memorandum from the WaMu examination team at the FDIC to the FDIC Section Chief for Large
Banks, FDIC-EM_00251205-10, Hearing Exhibit 4/16-51a (likely mid-2005). In an interview, when shown the
draft memorandum, FDIC Assistant Regional Director George Doerr, who was a member of the WaMu examination
team, told the Subcommittee that this type of analysis was prepared for a select group of mortgage lenders, including
WaMu, to understand where the mortgage market was headed and how it would affect those insured thrifts. He did
not have a copy of the final version of the memorandum, but said the FDIC’s analysis was discussed with OTS.
Subcommittee interview of George Doerr (3/30/2010).

198
In mid-2005, an internal FDIC memorandum discussed the increased risk associated with
the new types of higher risk mortgage loans being issued in the U.S. housing market:
“Despite the favorable history, we believe recent lending practices and buyer
behavior have elevated the risk of residential lending. Concerns are compounded
by significantly increased investor activity and new loan products that allow less
creditworthy borrowers to obtain mortgages. The new loan products of most
concern include Option Adjustment Rate Mortgage (ARM) Loans, Interest Only
(IO) Loans, and Piggyback Home Equity Loans.” 753
WaMu offered all three types of loans, in addition to subprime loans through Long
Beach.
In 2007, an FDIC memorandum again identified WaMu’s high risk home loans as
its “primary risk,” singling out both its subprime and Option ARM loans:
“SFR [Single Family Residential loan] credit risk remains the primary risk. The
bank has geographic concentrations, moderate exposure to subprime assets, and
significant exposure to mortgage products with potential for payment shock. …
The bank’s credit culture emphasized home price appreciation and the ability to
perpetually refinance. … In the past, the bank relied on quarterly sales of
delinquent residential loans to manage its non performing assets. The bank’s
underwriting standards were lax as management originated loans under an
originate to sell model. When the originate to sell model collapsed in July 2007
for private and subprime loans, management was no longer able to sell non
performing assets. Consequently, non performing assets are now mounting, and
the bank’s credit risk mitigation strategy is no longer effective.” 754
From 2004 to 2008, the FDIC assigned LIDI ratings to WaMu that indicated a higher
degree of risk at the bank than portrayed by the bank’s CAMELS ratings. LIDI ratings are
intended to convey the degree of risk that a bank might cause loss to the Deposit Insurance Fund,
with A being the best rating and E the worst. 755 The FDIC IG explained the difference between
LIDI and CAMELS ratings as follows: “LIDI ratings consider future risks at an institution,
where CAMELS rating, in practice, are more point-in-time measures of performance.” 756 As

753

7/5/2005 memorandum from FDIC Associate Director John H. Corston to FDIC Associate Director Michael
Zamorski, “Insured Institutions’ Exposures to a Housing Slowdown,” FDIC_WAMU_000015114, Hearing Exhibit
4/16-51b.
754
FDIC Washington Mutual Bank LIDI Report, Q307, FDIC_WAMU_000014851, Hearing Exhibit 4/16-94
[Sealed Exhibit].
755
An A rating indicates a “low risk” of concern that an institution will cause a loss to the Deposit Insurance Fund, a
B rating indicates an “ordinary level of concern,” a C rating indicates a “more than an ordinary level of concern,” a
D rating conveys a “high level of concern,” and an E rating conveys “serious concerns.” See prepared statement of
FDIC IG Rymer at 5 (chart showing FDIC LIDI ratings descriptions), April 16, 2010 Subcommittee Hearing, at 124
(showing FDIC LIDI ratings description).
756
Id.

199
early as 2004, the FDIC viewed WaMu as having higher levels of risk than indicated by its
CAMELS ratings. This chart shows the comparable ratings over time:
WaMu CAMELS and LIDI Ratings, 2004-2008 757
Assessment
Period
January 2004
July 2004
January 2005
July 2005
January 2006
July 2006
March 2007
June 2007
September 2007
December 2007
March 2008
June 2008
September 2008

CAMELS
Composite Rating
2
2
2
2
2
2
2
2
2
2
3
3
4

LIDI
Rating
B
B/C
B/C
B/C
B/C
B/C
B/C
C
C
C
D
E
E

FDIC IG Rymer explained that the B/C rating meant that the FDIC viewed WaMu as posing a
“somewhat more than ordinary risk” to the Deposit Insurance Fund, the C rating meant it “posed
more than an ordinary risk,” D meant the FDIC had “a high level of concern,” and E meant that
the FDIC had “serious concerns” that WaMu would cause a loss to the Fund. 758
Despite assigning lower LIDI ratings to the bank, indicating the increasing risk it posed
to the Deposit Insurance Fund, the FDIC – like OTS – continued to support a 2 CAMELS rating
throughout 2007. The result of both regulators delaying a downgrade in WaMu’s rating had a
direct impact on FDIC operations. According to the FDIC Inspector General, WaMu’s
CAMELS rating of 2 prevented the FDIC from charging higher premiums for the Deposit
Insurance Fund until February 2008, when its rating was dropped to a 3. 759 Higher premiums are
one of the tools used by the FDIC to signal to financial institutions that they should better control
their risk. Unfortunately, in this case, that tool was not available in 2005, 2006, or 2007.
OTS downgraded the bank to a 3 CAMELS rating in February 2008, after WaMu
incurred substantial losses. OTS also required WaMu to issue a nonpublic Board Resolution
making general commitments to strengthen its operations. The FDIC undertook a special
insurance examination of the bank, analyzed its capital, and concluded that the bank should raise
757

See prepared statement of FDIC IG Rymer at 6 (chart showing WaMu ratings and insurance assessments), April
16, 2010 Subcommittee Hearing at 125.
758
Id.
759
Prepared statement of FDIC IG Rymer at 6-7, April 16, 2010 Subcommittee Hearing, at 125-26. See also IG
Report at 40-42.

200
additional capital. 760 The FDIC staff attempted to engage OTS staff in discussions about
increasing the bank’s capital and downgrading its CAMELS ratings, but OTS was not
persuaded. 761
In July 2008, tensions between the FDIC and OTS flared after the FDIC sent a letter to
OTS urging it to take additional enforcement action: “As we discussed, we believe that
[WaMu’s] financial condition will continue to deteriorate unless prompt and effective
supervisory action is taken.” 762 The letter urged OTS to impose a “corrective program” that
included requiring the bank to raise $5 billion in additional capital and provide quarterly reports
on its financial condition. OTS not only rejected that advice, but also expressed the hope that the
FDIC would refrain from future “unexpected letter exchanges.” 763 In a separate email, Scott
Polakoff, a senior OTS official called the FDIC letter “inappropriate and disingenuous”:
“I have read the attached letter from the FDIC regarding supervision of Wamu and am
once again disappointed that the FDIC has confused its role as insurer with the role of the
Primary Federal Regulator. Its letter is both inappropriate and disingenuous. I would
like to see our response to the FDIC, which I assume will remind it that we, as the PFR,
will continue to effectively supervise the entity and will continue to consider the FDIC’s
views.” 764
Two weeks later, on July 31, both OTS and the FDIC met with the WaMu Board of
Directors to discuss the bank’s problems. At that meeting, the FDIC Dedicated Examiner
suggested that the bank look for a “strategic partner” who could buy or invest in the bank. The
OTS director, John Reich, later expressed anger at the FDIC for failing to clear that suggestion
first with OTS as the bank’s primary regulator. An FDIC examiner wrote to his colleagues:
“Major ill will at WAMU meeting yesterday caused by FDIC suggestion in front of
WAMU management that they find a strategic partner. [OTS Director] Reich reportedly
indicated that was totally inappropriate and that type of conversation should have
occurred amongst regulatory agencies before it was openly discussed with
management.” 765
The next day, on August 1, 2008, due to WaMu’s increasing financial and deposit losses,
the FDIC Chairman, Sheila Bair, suggested that the bank’s condition merited a downgrade in its
CAMELS rating to a 4, signaling a troubled bank. 766 The head of OTS sent an email to the head
of the FDIC responding that “rating WaMu a 4 would be a big error”:
“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
760

See 7/21/2008 letter from FDIC to OTS, FDIC_WAMU_000001730, Hearing Exhibit 4/16-59.
Subcommittee interview of Steve Funaro (3/18/2010).
762
7/21/2008 letter from the FDIC to OTS, FDIC_WAMU_000001730, Hearing Exhibit 4/16-59.
763
7/22/2008 letter from OTS to the FDIC, OTSWMS08-015 0001312, Hearing Exhibit 4/16-60.
764
7/22/2008 email from OTS Deputy Director Scott Polakoff to OTS colleagues, Hearing Exhibit 4/16-59.
765
8/1/2008 email from David Promani to FDIC colleagues, FDIC-EM_00246958, Hearing Exhibit 4/16-64.
766
See 8/1/2008, email from Darrell Dochow to OTS senior officials, Hearing Exhibit 4/16-62.
761

201
of the institution. WaMu has both the capital and the liquidity to justify a 3 rating. It
seems based on email exchanges which have taken place that FDIC supervisory staff in
San Francisco is under pressure by the fear in Washington to downgrade this institution.
… [P]rior to such action I would request a[n FDIC] Board meeting to consider the proper
rating on this institution.” 767
The FDIC Chairman responded: “We will follow the appropriate procedures if the staff cannot
agree.” 768
A few days later, Ms. Bair sent an email to Mr. Reich requesting a discussion of
“contingency planning” for WaMu, including making “discrete inquiries” to determine whether
any institution would be willing to buy the bank. The OTS Director responded with a lengthy
email criticizing the request and stating in part:
“I do not under any circumstances want to discuss this on Friday’s conference call …. I
should not have to remind you the FDIC has no role until the PFR [Primary Federal
Regulator] (i.e. the OTS) rules on solvency …. 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. … It seems as though the FDIC is behaving
as some sort of super-regulator – which you and it are not.” 769
In September 2008, Ms. Bair informed WaMu that there was a likely ratings
disagreement between the FDIC and OTS, and that the FDIC intended to lower the bank’s rating
to a 4. After the FDIC Chairman informed the OTS Director by email of her conversation with
WaMu, Mr. Reich forwarded the exchange to his OTS Deputy Director, upset that she had not
come to him first with that information: “I cannot believe the continuing audacity of this
woman.” 770 Two weeks later, the bank failed.
Restricting Office Space and Information. Throughout the period examined by the
Subcommittee, OTS not only rebuffed the FDIC’s analysis and advice, it began to actively
impede FDIC oversight efforts at WaMu. OTS even went so far as to limit the FDIC’s physical
access to office space, as well as to needed information, at WaMu’s new headquarters. Prior to
2006, OTS had always provided the FDIC examiners with space in its on-site offices at the bank,
making it easy for FDIC examiners to participate in OTS examinations. In the summer of 2006,
however, following WaMu’s move to a new headquarters in Seattle, OTS did not provide any of
its desks for the FDIC examiners. OTS also restricted the FDIC’s access to an important
database that all examiners used to review WaMu documents, referred to as the “examiner’s
library.” From July until November 2006, a period of about four months, the FDIC examiners
were denied access to both office space on the bank’s premises and the examiner’s library. The

767

8/1/2008 email from OTS Director John Reich to FDIC Chairman Sheila Bair, Hearing Exhibit 416-63.
Id.
769
8/6/2008 email from OTS Director John Reich to FDIC Chairman Sheila Bair, “Re: W,” FDIC-EM_00110089,
Hearing Exhibit 4/16-66.
770
9/10/2008 email from OTS Director John Reich to OTS Deputy Director Scott Polakoff, Polakoff_Scott00065461_001, Hearing Exhibit 4/16-68.
768

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FDIC had to make multiple requests, taking the issue up through the OTS hierarchy in
Washington, D.C. headquarters, to regain the access it had enjoyed for years at WaMu.
In an October 2006 email to the FDIC Assistant Regional Director, George Doerr, the
FDIC Dedicated Examiner at WaMu, described in exasperation how he had been promised
permanent space at the bank, but still did not have it. Demonstrating how poisoned the
relationship was at that point, the FDIC examiner blamed the lack of cooperation on “stalling
tactics and misrepresentations:”
“Our issue is with OTS management (Finn and Dochow) and how they have apparently
mislead RD [Regional Director] Carter, DRD [Deputy Regional Director] Villalba, you,
and me. This regards space for the dedicated examiner and access to information …. I
met with OTS examiners yesterday and they have not made arrangements for permanent
space for me at the new location and protocols for information sharing have not been
developed …. In July RD Carter [from FDIC] talked with Finn [from OTS] and he
agreed to space and access. On 8/17 you and DRD Villalba had a telephone conversation
with Dochow and he agreed it was not necessary to fix what was not broken and he
promised access to space and information. On 9/15 I met with Dochow and he agreed to
space and information sharing …. I am prepared for more of Dochow’s stalling tactics
and misrepresentations.” 771
Mr. Doerr forwarded the “info about OTS denying us space and access to information” to other
FDIC officials stating: “The situation has gone from bad to worse.” 772
At the Subcommittee hearing, when asked why OTS took four months to restore FDIC
access to office space and WaMu documents, Mr. Doerr of the FDIC responded:
Mr. Doerr: I can’t explain what the reason was. I personally think they didn’t want us
there. I mean, we were denied physical access and the access to this examiner library …
of electronic materials that WaMu puts together for the regulators …. [Y]ou shouldn’t
have to go 4 months without having to have that. …
Senator Levin: And it was essential that Mr. Funaro [the FDIC Dedicated Examiner]
have access to that library in order to get information about the Washington Mutual?
Mr. Doerr: Absolutely. 773
By November 2006, when OTS relented and provided desk space and database access to
the FDIC Dedicated Examiner, it did little to ameliorate the situation. Its actions contributed to a
771

10/13/2006 email chain from Vanessa Villalba to J. George Doerr, John F. Carter, and John H. Corston, “Re:
wamu quarterly,” FDIC_WAMU_000014449, Hearing Exhibit 4/16-53. See also 9/6/2006 FDIC internal email
chain, “OTS re: WAMU,” FDIC-EM_00252239, Hearing Exhibit 4/16-51c (“He absolutely agreed you’d have
access to the Examiner Library. And he hasn’t arranged that.”).
772
Id.
773
April 16, 2010 Subcommittee Hearing at 72-73.

203
worsening relationship between the two agencies, impeded FDIC oversight efforts, and
weakened oversight of WaMu’s activities. 774
Restricting FDIC Examinations. At the same time OTS was withholding office space
and database access from the FDIC examination team, it also, for the first time, refused an FDIC
request to participate in an OTS examination of WaMu.
Although the FDIC has a broad statutory right to participate in examinations of insured
depository institutions, 775 it had agreed to spell out how it would exercise that statutory authority
in a 2002 Interagency Agreement with the Federal Reserve, OCC, and OTS. 776 The Interagency
Agreement authorized the FDIC to conduct “special examinations” of insured institutions that
“represent a heightened risk” to the Deposit Insurance Fund, defined as institutions with a 3, 4,
or 5 rating on the CAMELS scale or which were “undercapitalized as defined under Prompt
Corrective Action” standards. 777 Other FDIC bank examinations had to be authorized by the
primary regulator. Prior to 2006, OTS had routinely authorized joint OTS-FDIC examinations
without regard to the CAMELS ratings, but in January 2006, OTS suddenly changed its policy.
The change was signaled in an email sent by a senior OTS official to his colleagues:
“The message was crystal clear today. Absolutely no FDIC participation on any OTS 1
and 2 rated exams. . . . We should also deny FDIC requests to participate on HC [holding
company] or affiliate exams.
Permission for FDIC to join us on WaMu … will stand for now, but they should not be
[in] direct contact with thrift management or be requesting info directly from the
thrift.” 778
This email signaled the beginning of a much more restrictive policy toward the FDIC
participation in OTS examinations, even though in January 2006, OTS indicated it would allow
an exception for the FDIC examiners to continue participating in its scheduled examination of
WaMu. The reasons for this change in policy were never made clear, but in several interviews,
OTS and FDIC officials attributed it to certain senior OTS officials who were reluctant to share
thrift oversight responsibilities with the FDIC.
In August 2006, the FDIC made what it viewed as a routine request to join in the next
OTS examination of WaMu, which was designed to focus, in part, on WaMu’s subprime lending.
To the surprise and consternation of the FDIC, the OTS Regional Director Michael Finn sent a
letter denying the request and stating that OTS would instead “share our exam findings with the
774

See also IG Report at 42-45 (“It appears that 2006 was a turning point in the relationship between FDIC and OTS
in terms of information sharing that carried through to 2008.”).
775
See 12 U.S.C. § 1820(b)(3).
776
See “Coordination of Expanded Supervisory Information Sharing and Special Examinations,” PSI-FDIC-100001.
777
Id.
778
1/24/2006 email from OTS senior official Michael Finn to Edwin Chow and Darrel Dochow, OTSWM06-006
0000129, Hearing Exhibit 4/16-49.

204
FDIC, as we have in the past.” 779 Mr. Finn wrote that because WaMu’s CAMELS rating was a 2
and FDIC had not shown “any concerns regarding our past or planned examination activities,
and our continued commitment to share all appropriate information, the FDIC has not shown the
regulatory need to participate in the upcoming Washington Mutual examination.”
After discussing the Finn letter in an internal email, the FDIC Assistant Regional
Director, George Doerr, wrote to his colleagues:
“Obviously, we have a major problem here. OTS is taking the approach we need to
establish a ‘regulatory need to participate’ on an exam, and that the basis would have to
be disagreement on exam findings. Mr. Finn is totally missing the point on our need for
timely accurate information to properly categorize WAMU for deposit insurance
premium purposes, more so now than ever in the past.” 780
In October 2006, John Carter with the FDIC sent Michael Finn of OTS a letter repeating
the FDIC’s request to participate in the WaMu examination:
“I have received your response to our August 14 2006 letter in which we request
permission to participate in aspects of the upcoming examination of Washington Mutual
Bank. Regarding your reasoning for rejecting our participation in these target reviews,
you are correct that our request is not predicated on any current disagreement related to
examination findings or concerns regarding supervisory activities at Washington Mutual.
Such criteria are not prerequisite for requesting – or for the OTS granting – FDIC staff
participation in target examination activities.
As you are aware, the FDIC and the OTS have a long, cooperative, and productive
working relationship with respect to the examination of Washington Mutual Bank, which
we hope to continue. Past experience has proven that our participation in targeted
reviews is beneficial to our respective Agencies, as well as to the Bank. … The 2002
Agreement clearly allows for FDIC staff participation in examination activities to
evaluate the risk of a particular banking activity to the deposit insurance fund.
Washington Mutual Bank is very large insured financial institution, and in our view
participation on the upcoming targeted reviews is necessary to fulfill our responsibilities
to protect the deposit insurance fund.” 781
On November 10, 2006, Mr. Finn responded with a letter that, again, refused to allow the
FDIC to participate in the WaMu examination:
“OTS does not seek to have FDIC staff actively participate in our examination activities
and conclusions at Washington Mutual. We do understand your need for access to
779

9/6/2006 FDIC internal email chain, “OTS re: WAMU,” FDIC-EM_00252239-40, Hearing Exhibit 4/16-51c.
Id. at FDIC-EM_00252240.
781
10/6/2006 letter from FDIC senior official John Carter to OTS senior official Michael Finn,
FDIC_WAMU_000014445-46, Hearing Exhibit 4/16-52a.
780

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examination information and your need to meet with OTS staff to discuss our supervisory
activities at Washington Mutual. To facilitate this information sharing and discussions,
we have agreed to allow your Dedicated Examiner … to conduct his FDIC risk
assessment activities on site at Washington Mutual when our examination team is on site.
All FDIC requests for information should continue to be funneled through our examinerin-charge.” 782
The OTS letter also restricted the ability of the FDIC to place more than one examiner on site at
WaMu, even though the bank, with $300 billion in assets, was one of the largest insured
institutions in the country and was engaged in a high risk lending strategy:
“We also understand that the FDIC may occasionally request OTS permission to have
FDIC examination staff assist [its Dedicated Examiner] on site at Washington Mutual in
his risk assessment activities. We will consider these limited requests to send additional
FDIC staff to Washington Mutual on a case-by-case basis.” 783
Despite the negative tone of the OTS letter, the FDIC persisted in its request, and OTS
eventually allowed the FDIC examiners to participate in some WaMu examinations in 2006 and
2007, though it continued to press the FDIC to limit its requests and personnel. 784
During the Subcommittee hearing, the FDIC staff described their surprise at the new OTS
policy and frustration at its seemingly circular reasoning – that the FDIC needed to specify a
“basis” and “disagreement” with OTS to justify joining an OTS examination, but the FDIC was
also barred from participating in the very examinations that could develop that basis and
disagreement. 785
Restricting Access to Loan Files. Even after OTS reluctantly allowed the FDIC to
participate in some OTS examinations, it held firm in its refusal to allow the FDIC to directly
review WaMu loan files, insisting that the FDIC instead rely on the findings and conclusions of
OTS examiners who conducted the loan file reviews.
In September 2006, when OTS first refused to give the FDIC direct access to WaMu loan
files, an FDIC senior official commented: “The OTS must really be afraid of what we might
come across, but bottom line is we need access to the information.” 786 The FDIC explained to
the Subcommittee that it needed direct access to the loan files to assess the higher risk loans
WaMu was issuing, both to evaluate what insurance fees should be imposed on Washington
Mutual and to assess the extent of any threat to the Deposit Insurance Fund.

782

11/10/2006 letter from OTS senior official Michael Finn to FDIC Regional Director John Carter, OTSWMS06008 0001827, Hearing Exhibit 4/16-52b.
783
Id.
784
See, e.g., 1/22/2007 letter from Michael Finn to John Carter, Hearing Exhibit 4/16-52d.
785
See, e.g., April 16, 2010 Subcommittee Hearing at 73-74.
786
9/7/2006 email from FDIC senior official John Carter to George Doerr, FDIC-EM_00252239, Hearing Exhibit
4/16-51c.

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In February 2007, OTS refused an FDIC request to review WaMu loan files to evaluate
the bank’s compliance with recently issued federal guidance on how to handle nontraditional
mortgages, such as subprime, stated income, and negatively amortizing loans. Even though
Washington Mutual was issuing exactly those types of loans under its High Risk Lending
Strategy, OTS indicated that it did not plan to evaluate WaMu’s compliance with the guidance
and did not want the FDIC to perform that evaluation either. In a February email, the FDIC
Dedicated Examiner at WaMu informed the FDIC Assistant Regional Director: “OTS is
restricting FDIC on the current examination in the SFR [single family residential loan] review
segment. OTS will not allow us to review SFR loan files.” 787 The Assistant Regional Director
relayed the development to the Regional Director: “John, here we go again. … OTS wants to
draw a distinction between loan file review as an examination activity (that they object to) vs.
risk assessment (which they do not object to). I don’t fathom the distinction.” 788
Two months later, in April 2007, the FDIC continued to press for permission to review
WaMu loan files. The FDIC Assistant Regional Deputy wrote in an email to a colleague:
“[OTS Regional Director] Finn pushed back on his previous approval of our participation
in the 2007 exam targets, specifically as to our ability to work loan files alongside OTS
examiner, and we were particularly interested in WAMU’s compliance with
nontraditional mortgage guidance. ... Mr. Finn and his examiner, Ben Franklin, stated that
OTS did not intend to look at files for purposes of testing nontraditional mortgage
guidance until after the bank made a few changes they had agreed to. I asked if we could
then join the file review whenever ots did look at this, and he said, ‘No.’” 789
At the Subcommittee hearing, when asked about these incidents, the FDIC Chairman
Sheila Bair testified:
“[I]n 2005 … OTS management determined that FDIC should not actively participate in
OTS examinations at WaMu, citing the 2002 interagency agreement. In subsequent
years, FDIC faced repeated resistance to its efforts to fully participate in examinations of
WaMu. Even as late as 2008, as problems at WaMu were becoming more apparent, OTS
management sought to limit the number of FDIC examiners involved in the examination
and did not permit the FDIC to review loan files.” 790
Both the Treasury and the FDIC Inspectors General were critical of OTS’ actions. In response to
a question about “[w]hether or not OTS should have allowed the FDIC to help” with the
examinations of WaMu, FDIC IG Rymer responded:
“[I]t is clear to me that they [OTS] should have. … [T]hey [the FDIC] had concerns and
those concerns were principally driven by its own LIDI analysis. … [T]here is no
question in my mind that the FDIC’s request for back-up authority, simply given the
787

2/6/2007 email from Stephen Funaro to George Doerr, Hearing Exhibit 4/16-55.
2/6/2007 email from George Doerr to John Carter and others, Hearing Exhibit 4/16-55.
789
4/30/2007 email from George Doerr to David Collins, FDIC_WAMU 000014457, Hearing Exhibit 4/16-57.
790
April 16, 2010 Subcommittee Hearing at 80-81 (testimony of Sheila Bair).
788

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sheer size of WaMu, was, to me, enough reason for FDIC to ask for back-up
authority.” 791
Treasury IG Thorson agreed:
“I agree with Mr. Rymer. … [T]he sheer size of the bank would say that there should be
a maximum of cooperation, not to mention the fact that it is dictated by statute, as well.
… [A]s a matter of policy, I think they [OTS] should have allowed that. No matter what
their reasoning was, as a matter of policy, they should have, yes.” 792
OTS Turf War. At the Subcommittee hearing, John Reich, the OTS Director, was asked
about the friction between the two agencies. In response to a question about the August 2008
email in which he wrote that the FDIC had “no role” at WaMu until OTS “rules on solvency,” 793
Mr. Reich stressed that the key point he was trying to convey was that OTS was WaMu’s
primary federal regulator:
Mr. Reich: I think basically and fundamentally it was who was the primary Federal
regulator.
Senator Levin: It was turf, in a word.
Mr. Reich: I think OTS had the responsibility as the primary Federal regulator.
Senator Levin: Turf.
Mr. Reich: We had the statutory responsibility.
Senator Levin: Instead of going at this as partners –
Mr. Reich: I have more than most – an understanding of the role of the FDIC and their
need to participate. I have been there. 794
The evidence shows that OTS senior officials not only resisted, but resented the FDIC
participation in the oversight of Washington Mutual Bank and deliberately took actions that
limited the FDIC oversight, even in the face of a deteriorating $300 billion institution whose
failure could have exhausted the entire Deposit Insurance Fund. After contrasting OTS’ hardedged treatment of the FDIC with the collaborative approach it took towards WaMu, Senator
Levin observed:
“About the only time OTS showed backbone was against another agency’s moving, in
your view, into your turf. Boy, that really got your dander up. That got your blood
pressure up. I do not see your blood pressure getting up against a bank which is engaged
791

April 16, 2010 Subcommittee Hearing at 34.
Id. at 35.
793
See 8/6/2008 email from OTS Director John Reich to FDIC Chairman Sheila Bair, “Re: W,” FDICEM_00110089, Hearing Exhibit 4/16-66 (“I should not have to remind you the FDIC has no role until the PFR
[Primary Federal Regulator] (i.e. the OTS) rules on solvency.”).
794
April 16, 2010 Subcommittee Hearing at 64.
792

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in the kind of dangerous practices that the bank engaged in, dangerous to their solvency,
dangerous to their investors, dangerous to their depositors, dangerous to this
economy.” 795
Because OTS has been abolished, its turf war with the FDIC is over. But witnesses from
the FDIC told the Subcommittee that the remaining banking regulators also sometimes resist its
participation in bank oversight. In particular, a senior FDIC official told the Subcommittee that,
although the FDIC has the statutory authority to take an enforcement action against a bank, the
FDIC has never used that authority because the other regulators would view it as “an act of war.”
The WaMu case history demonstrates how important it is for our federal regulators to view each
other as partners rather than adversaries in the effort to ensure the safety and soundness of U.S.
financial institutions.

D. Regulatory Failures
In a market economy, the purpose of regulation within the financial markets is to provide
a level playing field that works for everyone involved, from the financial institutions, to the
investors, to the consumers and businesses that rely on well functioning financial systems. When
financial regulators fail to enforce the rules in an effective and even handed manner, they not
only tilt the playing field in favor of some and not others, but also risk creating systemic
problems that can damage the markets and even the entire economy.
At the April 16, 2010 hearing of the Subcommittee, Senator Coburn had the following
exchange with Inspectors General Thorson and Rymer, which explains in part why OTS failed as
a regulator to address WaMu’s harmful lending policies:
Senator Coburn: As I sat here and listened to both the opening statement of the Chairman
and to your statements, I come to the conclusion that actually investors would have been
better off had there been no OTS because, in essence, the investors could not get behind
the scene to see what was essentially misled by OTS because they had faith the regulators
were not finding any problems, when, in fact, the record shows there are tons of
problems, just there was no action taken on it. ... I mean, we had people continually
investing in this business on the basis—as a matter of fact, they raised an additional $7
billion before they collapsed, on the basis that OTS said everything was fine, when, in
fact, OTS knew everything was not fine and was not getting it changed. Would you
agree with that statement or not?
Mr. Thorson: Yes, sir. I think ... basically assigning a ‘satisfactory’ rating when
conditions are not is contradictory to the very purpose for which regulators use a rating
system. I think that is what you are saying.
Senator Coburn: Any comments on that Mr. Rymer?
Mr. Rymer: I would agree with Mr. Thorson. ...
795

Id. at 66.

209
Senator Coburn: [To Mr. Thorson] By your statement, it would imply almost that OTS is
an enabler of this effort rather than an enabler of making sure that the American people’s
taxpayer dollars and the trust in institutions that are supposed to be regulated by an
agency of the Federal Government can be trusted.
Mr. Thorson: Right.
In trying to understand why OTS failed to make use of its enforcement tools to compel
WaMu to operate in a safe and sound manner, the Subcommittee investigation has identified
factors that have resonance not only in the recent financial crisis, but are critical for regulators
and policymakers to address in order to avoid future financial disasters as well.

(1) OTS’ Failed Oversight of WaMu
During the five-year period of the Subcommittee’s inquiry, from 2004 to 2008, OTS
identified over 500 serious operational deficiencies at WaMu and Long Beach. At WaMu, the
problems included weak lending standards, high loan exception and error rates, noncompliance
with bank loan policy, weak risk management, poor appraisal practices, and poor quality loans.
At Long Beach, OTS identified many of the same problems and added on top of those, weak
management, poor quality mortgage backed securities, and inadequate repurchase reserves. The
problems are described in examination report after examination report, and OTS raised many of
the same concerns, in writing and in person, with WaMu’s Board of Directors.
But for all those years, OTS did little beyond describing the problems and asking bank
executives to make improvements. When the reforms failed to materialize, the problems
continued, and the risk increased, OTS stood on the sidelines. Subcommittee interviews found
that, until 2008, OTS regulators never even held internal discussions about taking an
enforcement action against the bank. In 2008, in the face of mounting losses, OTS took two
informal, nonpublic enforcement actions, which contained few mandatory measures or deadlines
and were together insufficient to save the bank.
In trying to understand the agency’s years of inaction, the Subcommittee’s investigation
concluded that the lack of enforcement reflected an OTS culture of deference to bank
management, demoralized examiners whose oversight efforts were unsupported by their
supervisors, and a narrow regulatory focus that allowed short term profits to excuse high risk
activities and disregarded systemic risk. Inflated CAMELS ratings may have further reduced the
pressure to act, while conflicts of interest may have also tempered OTS’ willingness to take
tough enforcement action against WaMu.

(a) Deference to Management
Part of the reason that OTS declined to take enforcement action against Washington
Mutual was a posture of deference to the management of the institutions it regulated. Ronald
Cathcart, WaMu’s chief enterprise risk officer from 2006-2008, described OTS as essentially
believing in “self-regulation”:

210
“I … have actually operated in banks under three regulators, in Canada under the Office
of the Supervisor of Financial Institutions, at Bank One under the OCC, and then at
Washington Mutual under the OTS[.] … [T]he approach that the OTS took was much
more light-handed than I was used to. It seemed as if the regulator was prepared to allow
the bank to work through its problems and had a higher degree of tolerance that I had …
seen with the other two regulators. … I would say that the OTS did believe in selfregulation.” 796
A former OTS regulator who later took a job with WaMu, was quoted in a press report as saying
that OTS provided “by far the softest” oversight of any federal bank regulator. 797
Evidence of OTS’ unusually deferential approach can be found in its internal documents,
starting at the top. In a May 2007 email, for example, cancelling lunch with a colleague so he
could instead have lunch with WaMu’s CEO, Kerry Killinger, OTS Director, John Reich,
described the bank as “my largest constituent.” 798 At the Subcommittee hearing, Mr. Reich
defended using the term, testifying that referring to others as constituents was a “habit” he had
picked up while working on Capitol Hill.799 One Senator pointed out that OTS’ true constituents
were not the banks it regulated, but “the American people it was supposed to protect from unsafe
and unsound banking practices.” 800
On another occasion in July 2008, Mr. Reich sent an email to Mr. Killinger informing
him that OTS had decided to issue a Memorandum of Understanding (MOU) to address issues of
concern at the bank. In the email, the OTS Director apologized twice for his method of
communication, but also sounded a note of regret for his decision to take a tougher approach:
“Kerry,
I’m sorry to communicate by email – I’ve left a couple of messages on your office phone,
but I’m guessing you may be off for a long weekend.
I’ve been wrestling with the issue of an MOU versus a Board Resolution as a result of
our conversation in my office last week. And I’ve decided that an MOU is the right
approach for OTS to do in this situation ….
We almost always do an MOU for 3-rated institutions, and if someone were looking over
our shoulders, they would probably be surprised we don’t already have one in place. …
So as much as I would like to be able to say a Board Resolution is the appropriate
regulatory response, I don’t really believe it is. I do believe we need to do an MOU. We
796

April 13, 2010 Subcommittee Hearing, at 39-40 (Testimony of Ronald J. Cathcart, former WaMu Chief
Enterprise Risk Officer, 2006-2008).
797
“Lax Regulators Helped Doom Washington Mutual,” Associated Press (4/16/2010).
798
5/2/2007 email from OTS Director John Reich to Shelley Hymes, “Re: Lunch Friday,” Reich_John00025837_001, Hearing Exhibit 4/16-78.
799
April 16, 2010 Subcommittee Hearing at 36.
800
Id. at 5 (opening statement of Senator Levin).

211
don’t consider it a disclosable event, and we also think the investment community won’t
be surprised if they learn of it, and would probably only be surprised to learn one didn’t
already exist.
Again, I’m sorry to communicate this decision by email, but I’m scheduled to be out of
the office next week myself and wanted you to have this information.
Best regard, Kerry,
John” 801
The email does not convey a message from an arms-length regulator concerned about a
failing bank. To the contrary, the email conveys a sense of familiarity and discloses that the
head of OTS knew his agency had already been providing preferential treatment to the bank by
failing to impose an MOU after its downgrade to a 3 rating five months earlier, in February
2008. Mr. Reich stated that others “looking over our shoulders … would probably be surprised”
an MOU was not already in place at WaMu.
When asked about this email at the Subcommittee hearing, the Treasury and the FDIC
Inspectors General both expressed discomfort with its language and tone:
Mr. Thorson: Again, he sort of apologizes in the previous document that this could
become known. This gets right to the heart of what you were talking about, the culture.
… [T]here is not an acceptance of the fact that a strong regulatory control helps them.
Senator Levin: This is far too cozy?
Mr. Thorson: Absolutely, as far as I am concerned, yes.
Senator Levin: Mr. Rymer, do you have any reaction to this?
Mr. Rymer: It does indicate a level of familiarity that makes me uncomfortable. 802
Equally telling is the fact that, even after sending the email, OTS delayed imposing the MOU on
WaMu for another two months, waiting until September 2008, just three weeks before the bank’s
failure. 803
Like the head of the agency, OTS examiners also took a deferential approach to WaMu.
In a January 2006 email discussing WaMu’s desire to purchase Long Beach, for example, the
OTS Examiner-in-Charge indicated that, rather than insist the bank clean up Long Beach
801

7/3/2008 email from OTS Director John Reich to WaMu CEO Kerry Killinger, OTSWMS08-014 0000912-13,
Hearing Exhibit 4/16-44.
802
April 16, 2010 Subcommittee Hearing at 34.
803
See also id. at 46 (When asked why OTS took so long to complete the MOU, former OTS Director John Reich
testified: “I don’t know, to tell you the truth. I do not know why it took so long to implement the MOU. … I regret
[the] … delay.”).

212
problems before the purchase, OTS would have to rely on its “relationship” with WaMu to get
the job done:
“The letter [from WaMu] seems okay. They obviously want to leave it a little squishy, of
course, on the growth plans, but at least they make a firm commitment to clean up the
underwriting issues. At some level, it seems we have to rely on our relationship and their
understanding that we are not comfortable with current underwriting practices and don’t
want them [Long Beach] to grow significantly without having the practices cleaned up
first.” 804
On another occasion in June 2006, the same OTS Examiner-in-Charge sent a lengthy
email to his Regional Director discussing plans for the annual WaMu Report on Examination
(ROE). His email expressed concern about losing credibility with the bank if OTS pressed too
hard on certain reforms, twice noted the bank’s size and complexity, and stressed that the bank
was making progress in fixing identified problems:
“[W]e still have some strong feelings on some items that I’d like to ‘push back’ … some
on. Generally we feel that we are quite balanced and do not have any gloves on in our
approach to our findings and conclusions at WAMU. We have some concern that if we
press forward with some things … we may run the risk of losing some credibility in
terms of understanding the size and complexity of their business and looking as though
we do not have a balanced perspective. My own fear is that we may not have done
enough to communicate to you [the Regional Director] why we feel that the few negative
things we have brought up through findings memos and meetings, while important to
keep in front of management, are not so serious they wipe out all the right things the
institution is doing in all those areas we reviewed and did not have any issues, nor should
they negate the ongoing good progress in making improvements in a manner that seems
reasonable given the size, complexity, and status of the institution.” 805
The Examiner-in-Charge then listed three areas of concern, problems at Long Beach
which he seemed to downplay, the need to limit the number of corrective actions listed in the
ROE, and the need to review how OTS cited the bank for compliance violations. In the Long
Beach discussion, he wrote that improvements “will take time because of size and complexity
…. We don’t feel demanding more than providing us with an acceptable action plan with
realistic timelines is appropriate or necessary at this time.” On the corrective actions, he wrote
that the list had to be limited or “more important findings will get lost. … We feel strongly that
we should not cite all findings and corrective actions within the body of the ROE … [which] is
already not getting read I believe.” He also expressed concern that OTS was “starting to ‘overmeeting’ the institution” and suggested that “the exit meeting” with the bank to discuss the ROE
findings had “become almost unnecessary.”

804

1/27/2006 email from Lawrence Carter to Darrel Dochow, OTSWMS06-008 0001082, Hearing Exhibit 4/16-32.
6/15/2006 email from Lawrence Carter to Darrel Dochow, Dochow_Darrel-00022908_001, Hearing Exhibit
4/16-7.
805

213
After urging patience on WaMu reforms, suggesting a limit on the corrective actions
listed in the ROE, and recommending fewer meetings with WaMu management, the curious final
line in the email is: “My management class this week has made me feel empowered! Can you
tell? Please don’t fire me!”
Additional evidence of OTS deference is its reliance on WaMu to track its own
compliance with OTS findings calling for corrective action. At all other thrifts, OTS tracked the
extent to which the thrift implemented OTS findings, using its own systems. But at WaMu, OTS
did not keep its own records, but relied on WaMu’s Enterprise Risk Issue Control System
(ERICS). The Treasury and the FDIC Inspectors General criticized this arrangement, noting that
they were unable to use WaMu’s system to determine the status of multiple OTS findings. 806 In
addition, they noted that, in 2006, ERICS discontinued its practice of identifying “repeat
findings,” making it difficult to identify and track those findings. 807 Their report explicitly
recommends against OTS’ relying on a bank’s systems in the future to track compliance.
Finally, the actual language used by OTS in its reports and memoranda that described
deficiencies demonstrated a passive approach to dealing with management. Common phrases
noted that the bank’s practices were “less than satisfactory,” error rates were at “higher than
acceptable levels,” and “management’s actions did not improve underwriting to a satisfactory
level.” OTS reports rarely used more assertive language that, for example, called the bank’s
efforts unsatisfactory, inadequate, or ineffective. An exchange at the Subcommittee hearing
between Senator Levin and the OTS Examiner-in-Charge at WaMu from 2004 to 2006,
Lawrence Carter, captured the issue:
Mr. Carter: I think that what I said here is that we could not conclude that their progress
was wholly inadequate, because they did make some progress.
Senator Levin: … Can you use the words, ‘Folks, your progress was inadequate?’ Are
you able to tell them that?
Mr. Carter: For their progress on this specific action plan, I did not conclude we could
tell them that.
Senator Levin: That it was inadequate?
Mr. Carter: That is right.
Senator Levin: You could tell them it was not wholly adequate.
Mr. Carter: Yes.
Senator Levin: But not inadequate.
Mr. Carter: I do not think I could say it was wholly inadequate.
806
807

See, e.g., IG Report at 30.
See Thorson prepared statement, April 16, 2010 Subcommittee Hearing at 12.

214
Senator Levin: I did not use the word ‘wholly.’ You could tell them it was not wholly
adequate, but you could not tell them it was inadequate. That is what you are telling us.
Mr. Carter: Yes.
Senator Levin: That is the kind of bureaucratic speech which I think sends the message
to people you regulate that, hey, folks, you are making progress, instead of telling them it
is inadequate. 808
At times, WaMu took advantage of its special relationship with OTS and lobbied for
leniency. In one instance from May 2006, a WaMu official from the Regulatory Relations
division sent an email to his colleagues stating that he was able to convince the agency to reduce
an audit “criticism” to the less serious category of a “recommendation”: “OTS confirmed today
that they will re-issue this memo without the ‘Criticism.’ It will be a ‘Recommendation.’” 809 His
colleague forwarded the email to bank executives noting: “Good news - John was able to get the
OTS to see the light and revise the Underwriting rating to a Recommendation.” 810
A more serious incident involved WaMu’s 2005 discovery, after almost a year-long
investigation by an internal Home Loans Risk Mitigation Team, of substantial loan fraud taking
place at two high volume loan offices in California, known as Downey and Montebello. The
WaMu investigators found that 83% of the loans reviewed from the Downey office and 58% of
the loans reviewed from the Montebello office contained fraudulent information, either with
respect to the borrower or the appraised value of the property. The investigators wrote up their
findings and presented them to WaMu’s Chief Risk Officer and the President of Home Loans. 811
No one, however, informed OTS, and WaMu took no action to stop the fraudulent loans.
Two years later, in 2007, after a mortgage insurer refused to insure any more loans issued
by the lead loan officer in the Montebello office, OTS directed WaMu to investigate the matter.
WaMu’s internal auditors launched an investigation, confirmed the loan fraud problem at the
Montebello office, and also uncovered the 2005 investigation whose fraud findings had been
ignored. WaMu took until April 2008 to produce a report documenting its findings. 812 WaMu
also initially resisted providing the report to OTS, claiming it was protected by attorney-client

808

April 16, 2010 Subcommittee Hearing at 60-61.
5/30/2006 email from John Robinson, WaMu VP of Regulatory Relations, to colleagues, JPM_WM02619435.
Hearing Exhibit 4/16-34.
810
5/30/2006 email from Wayne Pollack, WaMu SVP, to David Schneider, et al., JPM_WM02619434, Hearing
Exhibit 4/16-34.
811
See 11/17/2005 WaMu internal memorandum, “re So. CA Emerging Markets Targeting Loan Review Results,”
JPM_WM01083051, Hearing Exhibit 4/13-22a; 11/16/2005 WaMu internal PowerPoint presentation, “Retail Fraud
Risk Overview,” JPM_WM02481934-49, Hearing Exhibit 4/13-22b; 11/19/2005 email from Cheryl Feltgen to
colleagues, “Re: Retail Fraud Risk Overview,” JPM_WM03535694-95, Hearing Exhibit 4/13-23a; 8/29/2005 email
from Jill Simons to Timothy Bates, “Risk Mit Loan review data ‘Confidential,’” JPM_WM04026076-77, Hearing
Exhibit 4/13-23b.
812
4/4/2008 WaMu internal memorandum, from June Thoreson-Rogers, Corporate Fraud Investigations, and
Michele Snyer, Deputy General Auditor, to Stewart Landefeld, Acting Chief Legal Officer, and others, Hearing
Exhibit 4/13-24.
809

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privilege. 813 The OTS Examiner-in-Charge at the time told the Subcommittee that he insisted on
seeing the report. After finally receiving it and reading about the substantial loan fraud occurring
at the two loan offices since 2005, he told the Subcommittee that it was “the last straw” that
ended his confidence that he could rely on WaMu to combat fraudulent practices within its own
ranks.
OTS’ deference to WaMu management appeared to be the result of a deliberate posture
of reliance on the bank to take the steps needed to ensure that its personnel were engaged in safe
and sound practices. The reasoning appeared to be that if OTS examiners simply identified the
problems at the bank, OTS could then rely on WaMu’s own self interest, competence, and
discipline to ensure the problems were corrected, with no need for tough enforcement action. It
was a regulatory approach with disastrous results. While OTS may have hoped that it could
accomplish its regulatory responsibilities by simply identifying problems without the threat of
enforcement action, that approach proved ineffective.

(b) Demoralized Examiners
For five years, OTS examiners identified serious problems with WaMu’s lending
practices and risk management, but OTS senior officials failed to support their efforts by using
the agency’s enforcement tools to compel the bank to correct the identified problems. WaMu’s
chief risk officer from 2004 to 2005, James Vanasek, remarked at the Subcommittee hearing on
how OTS examiners seemed to receive little support from more senior officials in terms of
enforcement:
“[T]he OTS Examiner-in-Charge during the period time in which I was involved … did
an excellent job of finding and raising the issues. Likewise, I found good performance
from … the FDIC Examiner-in-Charge. … What I cannot explain is why the superiors
in the agencies didn’t take a tougher tone with the banks given the degree of … negative
findings. My experience with the OTS, versus with the OCC, was completely different.
So there seemed to be a tolerance there or a political influence on senior management of
those agencies that prevent them from taking a more active stance. By a more active
stance, I mean putting the banks under letters of agreement and forcing change.” 814
Internal OTS documents and emails indicate that the result was a cadre of OTS examiners who
were skeptical of their ability to effect meaningful change at WaMu, who were too often
rebuffed by their own management when they tried to reduce risk or strengthen bank controls,
and whose leaders worked to weaken rather than strengthen the standards used by examiners to
hold banks accountable.

813

Subcommittee interview of OTS Examiner-in-Charge Benjamin Franklin (2/17/2010).
April 13, 2010 Subcommittee Hearing at 39 (testimony of James G. Vanasek, former WaMu Chief Risk Officer,
2004-2005).
814

216
Low Expectations. The documents show that OTS examiners had low expectations that
WaMu would actually implement recommended changes at the bank. Ultimately, OTS
examiners adapted to the situation, they gave up trying to make the bank act more quickly, and
WaMu was able to delay needed changes for long periods of time if it wished.
In 2003, for example, one OTS examiner wrote to the Examiner-in-Charge:
“It is clear from my experience that changes seem to progress slowly at WaMu so I don’t
know if we can expect faster progress …. If any target is missed, as happens at WaMu,
then we may not be in a position to determine the effectiveness of the corrective
actions.” 815
In 2005, another OTS examiner wrote: “They agree to take all action required to correct the
problem. The Target Completion Dates are not real timely but fine for WaMu.” 816
Other examiners were more critical. In 2007, for example, one OTS examiner wrote:
“Regulatory Relations [the WaMu office established to work with regulators] is a joke.
The purpose of this group seems to be how can we give the regulators the bare minimum
without them raising a fuss.” 817
The examiner also wrote:
“WaMu’s compliance management program has suffered from a lack of steady,
consistent leadership. Dick Stevenson, who took over as Chief Compliance Officer on
March 2, 2007, is the bank’s ninth compliance leader since 2000. … The OTS is very
concerned that this lack of consistent, stable leadership leaves the program vulnerable.
This amount of turnover is very unusual for an institution of this size and is a cause for
concern. The Board of Directors should commission an evaluation of why smart,
successful, effective managers can’t succeed in this position. If you would like my
opinion, just ask. (HINT: It has to do with top management not buying into the
importance of compliance and turf warfare and Kerry [Killinger] not liking bad
news.)” 818
In an interview, OTS examiner Benjamin Franklin, who worked at the agency for 24
years, told the Subcommittee that the thrifts he oversaw generally did not “collaborate” with the
agency but would “fight” OTS reviews and resist OTS recommendations. He said that at WaMu,

815

6/27/2003 email from Dennis Fitzgerald, OTS Examiner, to Lawrence Carter, OTSWEM04-0000006748,
Hearing Exhibit 4/16-15.
816
6/8/2005 email from Verlin Campbell, OTS Examiner, to Zalka Ancely, OTS Examiner, OTSWME05-003
0000634, Hearing Exhibit 4/16-29.
817
5/31/2007 Draft Compliance Memo from Susie Clark, OTS Compliance Specialist, Franklin_Benjamin00020408_002, Hearing Exhibit 4/16-9.
818
Id. at Franklin_Benjamin-00020408_001.

217
“for the most part” OTS examiners were “butting heads” with bank personnel and it was difficult
to effect change. 819
Weak Standards. The documents show that the OTS examiners were also frustrated by
the agency’s weak standards, which made it difficult to cite WaMu for violations or require the
bank to strengthen its operations.
In 2007, for example, an examiner critical of WaMu’s compliance procedures wanted to
downgrade the bank’s compliance rating from 2 to 3, but told the OTS Examiner-in-Charge that,
due to the lack of standards on compliance matters, she didn’t believe she could win a battle with
the bank:
“I’m not up for the fight or the blood pressure problems. … It doesn’t matter that we are
right, what matters is how it is framed. … They [Washington Mutual] aren’t interested
in our ‘opinions’ of the [compliance] program. They want black and white, violations or
not. … [O]ur training always emphasizes ‘Best Practices’ but when it comes down to it,
we don’t have the resources to show the risk.” 820
At another point, when discussing standards for calculating acceptable loan error rates, an
OTS examiner wrote:
“We will need additional discussion of acceptable error rates and how we view their
[WaMu’s] standard. … [A] 2.5 percent error rate would mean that approximate[ly]
$600.0 million could be originated and be within acceptable guidelines. A 20.0 percent
medium error rate means that $4.8 billion of loans with these types of errors could be
originated without a criticism. The latter seem[s] especially high when you consider that
their medium criteria includes loans that we don’t think should be made.” 821
The OTS Examiner-in-Charge responded with a lengthy email criticizing outdated, unclear OTS
standards on the acceptable loan error rate for a portfolio of subprime loans:
“Unfortunately, our sampling standards are 10 years old and we have no standards of
acceptance really. It depends on our own comfort levels, which differ. … Moreover, our
guidance requires that an exception be SIGNIFICANT, which ... we have over time
interpreted as loans that should not have been made. … While we may (and have)
questioned the reasonableness of these standards, they are all we have at this time. If our
tolerance for some reason is now a lot lower than our handbook standards, it would be
nice to have this clarified. I have always used these standards as rough benchmarks and
not absolutes myself, upping my expectations for higher risk portfolios. … It would be

819

Subcommittee interview of Benjamin Franklin (2/17/2010).
6/3/2007 email from OTS examiner Mary Clark to Examiner-in-Charge Benjamin Franklin, “Compliance
Rating,” OTSWMS07-013 0002576, Hearing Exhibit 4/16-39.
821
11/21/2005 email exchange between OTS examiner Benjamin Franklin and Examiner-in-Charge Lawrence
Carter and others, OTSEMS05-004 0001911-12, Hearing Exhibit 4/16-30.
820

218
nice if they [higher risk loan portfolios] could meet even higher expectations, but that
would require us to agree on what the standard should be.” 822
At another point, the same Examiner-in-Charge wrote a long email discussing issues
related to a decision by WaMu to qualify borrowers for adjustable rate mortgages using an
interest rate that was less than the highest rate that could be charged under the loan. He
complained that it was difficult to force WaMu to comply with the OTS “policy of underwriting
at or near the fully indexed rate,” when “in terms of policy, I am not sure we have ever had a
really hard rule that institutions MUST underwrite to the fully indexed rate.” 823 He also noted
that OTS sometimes made an exception to that rule for loans held for sale.
NTM Guidance. While some OTS examiners were complaining about the agency’s
weak standards, other OTS officials worked to ensure that new standards being developed for
high risk mortgages would not restrain WaMu’s lending practices. The effort began in 2006 with
an aim to address concerns about lax lending standards and the risks posed by subprime,
negatively amortizing, and other exotic home loans. The federal banking agencies convened a
joint effort to reduce the risk associated with those mortgages by issuing interagency guidance
for “nontraditional mortgage” products (NTM Guidance). Washington Mutual filed public
comments on the proposed NTM Guidance and argued that Option ARM and Interest-Only loans
were “considered more safe and sound for portfolio lenders than many fixed rate mortgages,” so
regulators should “not discourage lenders from offering these products.” 824 It also stated that
calculating a potential borrower’s “DTI [debt-to-income ratio] based on the potential payment
shock from negative amortization would be highly speculative” and “inappropriate to use in
lending decisions.” 825 During subsequent negotiations to finalize that guidance, OTS argued for
less stringent lending standards than other regulators were advocating and bolstered its points
using data supplied by Washington Mutual. 826
In one July 2006 email, for example, an OTS official expressed the view that early
versions of the new guidance focused too much on negative amortization loans, which were
popular with several thrifts and at WaMu in particular, and failed to also look closely at other
high risk lending products more common elsewhere. 827 He also wrote that OTS needed to
address this issue and “should consider going on the offensive, rather than defensive to refute the
OCC’s positions” on negatively amortizing loans, defending the loans using WaMu Option
ARM loan data. 828 In August, several OTS officials discussed over email how to prevent the
822

Id.
9/15/2005 email from OTS Examiner-in-Charge Lawrence Carter to OTS Western Region Deputy Director
Darrel Dochow, OTSWMS05-002 0000535, Hearing Exhibit 4/16-6.
824
3/29/2006 letter from Washington Mutual Home Loans President David C. Schneider to OTS Chief Counsel,
Proposed Guidance – Interagency Guidance on Nontraditional Mortgage Products 70 Fed. Reg. 77249,
JPM_WM04473292.
825
Id. at JPM_WM04473298.
826
Subcommittee interviews of Sheila Bair (4/5/2010) and George Doerr (3/30/2010). The Subcommittee was told
that OTS was the “most sympathetic to industry” concerns of the participating agencies and was especially
protective of Option ARMs.
827
7/27/2006 email from Steven Gregovich to Grovetta Gardineer and others, “NTM Open Issues,” OSWMS06-008
0001491-495, Hearing Exhibit 4/16-71.
828
Id.
823

219
proposed restrictions on negatively amortizing loans from going farther than they believed
necessary, noting in part the “profitable secondary market” for Option ARMs and the fact that
“hybrid IO [interest only] ARMs are a huge product for Wamu.” One OTS official wrote:
“We have dealt with this product [negatively amortizing loans] longer than any other
regulator and have a strong understanding of best practices. I just don’t see us taking a
back seat on guidance that is so innate to the thrift industry.” 829
OTS officials argued variously that the new proposal would wrongly put the focus on
“products” instead of “underwriting,” as well as that it would hurt the business of large thrifts
like WaMu. 830
The NTM Guidance was finally issued on October 4, 2006. 831 The final version did not
fully reflect the recommendations of OTS on negatively amortizing loans. Among other matters,
it called on banks to:
•

evaluate a borrower’s ability to fully repay a prospective loan, including any balance
increase from negative amortization;

•

qualify borrowers using the higher interest rate that would apply after any teaser or
introductory interest rate;

•

avoid loans whose repayment was dependent solely upon the value of the collateral or
the borrower’s ability to refinance the loan; and

•

implement strong quality control and risk mitigation procedures for loans containing
layers of risk, including loans with no documentation requirements, no verification of
the borrower’s income or assets, or high loan-to-value ratios.

The Guidance also called for capital levels commensurate with risk and adequate allowances for
loan losses.
The Guidance was not promulgated as a bank regulation that could be enforced in court,
and it contained no explicit deadline for compliance. Instead, it provided policies and procedures
that regulators could use as benchmarks during examinations. Agencies could penalize
noncompliance with the standards through lower CAMELS ratings or enforcement actions.
FDIC officials told the Subcommittee that the FDIC expected banks to come into immediate

829

8/14/2006 email from Kurt Kirch to David Henry and Steven Gregovich, “Latest AMP Guidance,” Hearing
Exhibit 4/16-72.
830
7/27/2006 email from Steven Gregovich to Grovetta Gardineer, et al., “NTM Open Issues,” OSWMS06-008
0001491-495, Hearing Exhibit 4/16-71.
831
10/4/2006 “Interagency Guidance on Nontraditional Mortgage Product Risks,” (NTM Guidance), 71 Fed. Reg.
192 at 58609.

220
compliance with the Guidance, and that no agency should have been telling a bank that it did not
have to comply with the new standards. 832
A few days after the NTM Guidance went into effect, WaMu officials met with OTS
about implementation and reported back that OTS had indicated that compliance was something
institutions “should” do, not something they “must” do. 833 According to a written summary by
WaMu of its October 12, 2006 meeting with OTS to discuss the new rules, OTS told the bank
that it “view[ed] the guidance as flexible” and “specifically pointed out that the language in the
guidance says ‘should’ vs. ‘must’ in most cases and they [were] looking to WaMu to establish
our position on how the guidance impacts our business processes.” 834
In 2007, OTS conducted a review of WaMu’s Option ARM activities and compliance
efforts and found that three months after the NTM Guidance had become effective, the bank was
not yet complying with the new standards when issuing Option ARMs. 835 The OTS review
noted that as of January 31, 2007, the bank had a total of $62 billion in outstanding Option
ARMs in its investment portfolio, of which 80% were negatively amortizing. 836 The review
stated that, as of December 31, 2006, WaMu was not in compliance with the NTM Guidance,
because it continued not to consider potential negative amortization amounts when qualifying
borrowers for Option ARMs; placed too much reliance on FICO scores instead of income
verification to qualify borrowers for nontraditional mortgages; failed to consider amortizing
payments or payment shocks when qualifying borrowers for interest only loans; and placed too
much reliance on collateral, rather than borrower income, as the primary repayment source in the
event of a loan default. 837 The review contained no recommendations for actions to ensure
WaMu changed its procedures.
In April 2007, the FDIC asked OTS for permission to conduct its own review of WaMu
loan files to evaluate the bank’s compliance with the NTM Guidance. 838 OTS refused, however,
to provide the FDIC with access to the relevant loan files and effectively blocked the review. 839
The FDIC Assistant Regional Director George Doerr told the Subcommittee that when he
832

Subcommittee interviews of Sheila Bair (4/5/2010) and George Doerr (3/30/2010).
See 10/2006 OTS Meeting, “Washington Mutual Alternative Mortgage Guidance Implementation Plan,”
JPM_WM02549033, Hearing Exhibit 4/16-73.
834
Id. at JPM_WM02549037. Subcommittee interview of Darrel Dochow (3/3/2010) (indicating that the NTM
Guidance used “should” instead of “must” to avoid being a “one-size-fits-all” set of requirements). See also
Subcommittee interview of John Bowman (4/6/2010) (indicating that guidance is not enforceable and that giving
banks more time to comply was a reasonable approach).
835
See undated OTS document, “Option ARM Neg Am Review Workprogram 212A(1) & Nontraditional Mortgage
Guidance Review,” OTSWMEF-0000009888, Hearing Exhibit 4/16-74. The document quotes Option ARM data
from March 31, 2007, indicating that the document was prepared after that date.
836
Id. at OTSWMEF-0000009890.
837
Id. at OTSWMEF-0000009893-94.
838
See, e.g., 4/30/2007 email from FDIC Western Region Assistant Director George Doerr to FDIC official David
Collins, FDIC_WAMU 000014457, Hearing Exhibit 4/16-57.
839
See April 16, 2010 Subcommittee Hearing at 33 (Testimony of FDIC IG John Rymer: “OTS did grant FDIC
greater access at WaMu, but limited FDIC’s review of WaMu's residential loan files. The FDIC wanted to review
these files to assess underwriting and WaMu's compliance with the Non-Traditional Mortgage Guidance.”); See also
April 16, 2010 Subcommittee Hearing at 187 (Testimony of George Doerr, FDIC).
833

221
contacted OTS official Mike Finn about the FDIC’s request to review WaMu loan files to test
NTM compliance, Mr. Finn said that OTS was giving its institutions more time to comply with
the guidance, even though it had taken effect more than six months earlier. 840 The FDIC
Chairman Sheila Bair told the Subcommittee that the FDIC had not known until then that OTS
was allowing institutions to delay compliance with the NTM Guidance and were “surprised” by
the agency’s actions. She said that normally, if an institution needs more time to comply with
new standards, a regulator required it to provide a written plan with milestones for achieving
compliance. 841
Documents uncovered by the Subcommittee show how WaMu took advantage of the
delay to continue its high risk lending practices. The NTM Guidance directed banks, for
example, to evaluate a borrower’s ability to repay a mortgage using the highest interest rate that
would be charged under the loan and the fully amortized payment amount rather than any
smaller or minimum payment amount. After determining that those new requirements could lead
to a 33% drop in Option ARM loan volume due to borrowers who would no longer qualify for
the loans, WaMu’s Chief Enterprise Risk Officer, Ron Cathcart, advised “holding off on
implementation until required to act for public relations (CFC [Countrywide] announces
unexpectedly) or regulatory reasons.” 842 When he made that suggestion in March 2007, OTS
had already allowed Washington Mutual to delay its compliance with the Guidance for six
months, resulting in the bank’s originating billions of dollars in new Option ARM loans that
would later suffer significant losses. 843 Instead of using the NTM Guidance as an opportunity to
strengthen WaMu’s lending standards and reduce its loan risk, OTS chose to delay its
implementation.
In addition, in May 2007, when an OTS official attempted to stop WaMu from issuing
mortgages without verifying borrower incomes, relying on the NTM Guidance and other rules as
justification, OTS senior management rebuffed the official’s efforts. Instead, OTS senior
managers interpreted its standards as allowing thrifts to continue issuing “stated income loans,”
also called “No Income No Asset” (NINA) or “no doc” loans, because they permitted lenders to
provide credit without verifying the borrower’s income or assets. On May 15, 2007, after
reviewing a summary of WaMu’s loans, an OTS official in Washington, Bill Magrini, sent an
email to the OTS Examiner-in-Charge with responsibility for WaMu stating:
“I note that WAMU makes a significant amount of No-doc loans. OTS policy states that
no-doc loans are unsafe and unsound. I assume they mean no doc regarding NINA or no
income-no asset loans.

840

Subcommittee interview of George Doerr (3/30/2010).
Subcommittee interview of Sheila Bair (4/5/2010).
842
3/19/2007 email from Ron Cathcart to David Schneider, JPM_WM02571598, Hearing Exhibit 4/16-75.
843
See wamusecurities.com. (subscription website maintained by JPMorgan Chase with data on Long Beach and
WaMu mortgage backed securities showing, as of January 2011, delinquency rates for particular mortgage backed
securities, including WMALT 2006 OA-3 – 57.87%).
841

222
Without even asking for income or assets/liabilities, the loans are collateral-dependent.
This is imprudent … [T]he interagency NTM Guidance states specifically that collateral
dependent loans are unsafe and unsound. …
Does WAMU have any plans to amend its policies per no doc loans?” 844
The Examiner-in-Charge, Benjamin Franklin, relayed the inquiry to the then Director of
the OTS Western Region Office, Darrel Dochow, and stated that, while WaMu had not issued
“true NINAs” in the past, the bank had begun “doing NINA’s in 2006 through their conduit
program. As such, all these loans are held for sale.” He estimated WaMu then had about $90
million of NINA loans held for sale, had originated about $600 million in 2006, and would
originate the same amount again in 2007. 845
Mr. Dochow responded that he was already in regular contact with OTS officials in
Washington about WaMu and “there is no need to duplicate with Bill Magrini as far as I
know.” 846 Later the same day, Mr. Dochow wrote:
“I am being told that Bill’s views may not necessarily represent OTS policy in these
matters. I value Bill’s input, but we should be careful about relaying his views to others
as being OTS policy, absent collaborating written guidance. [His] views … are
somewhat inconsistent with NTM guidance and industry practice. I also understand
Grovetta [another OTS official] promised to clarify section 212 of the handbook in
several areas as a result of the NTM roundtable discussion in Wash DC last month.” 847
That same day, another OTS official, Mark Reiley, sent an email indicating his belief that
sections of the OTS handbook barred WaMu from issuing NINA loans, even when those loans
were originated for sale to Wall Street:
“The Handbook guidance Section 212 states that no-doc loans (NINAs) are unsafe and
unsound loans (Pg. 212.7). Furthermore, even if the no-doc (NINA) loans are originated
and held for sale the guidance indicates (pg. 212.8) the association must use prudent
underwriting and documentation standards and we have already concluded they are
unsafe and unsound. Even if the institution holds the loans for a short period of time. …
[T]his is a hot topic in DC and we are getting a significant amount of push back from the
844

See 5/15/2007 email from OTS Examiner-in-Charge Benjamin Franklin to OTS Western Region Director Darrel
Dochow, Franklin_Benjamin-00020449_001, Hearing Exhibit 4/16-79 (quoting email from Bill Magrini). See also
3/27/2007 email from OTS official Bill Magrini to OTS colleagues, Quigley_Lori-00110324, Hearing Exhibit 4/1676 (“I noted that several of our institutions make NINA loans. That, in my humble opinion is collateral dependent
lending and deemed unsafe and unsound by all the agencies. … It is not at all surprising that delinquencies are up,
even among Alt-A. In my opinion, credit standards have gone too low.”). See also undated OTS document,
“Option ARM Neg Am Review Workprogram 212A(1) & Nontraditional Mortgage Guidance Review,” at
OTSWMEF-0000009891, Hearing Exhibit 4/16-74 (determining that 73% of the Option ARMs in WaMu’s portfolio
were “low doc” loans).
845
5/16/2007 email from OTS Western Region Director Darrel Dochow to OTS Examiner-in-Charge Benjamin
Franklin, Franklin_Benjamin-00020449_001, Hearing Exhibit 4/16-79.
846
Id.
847
Id.

223
industry. … At this point I don’t think a memo is the best avenue, I think we need to
request in writing that WAMU respond to us on how the NINA’s comply with the
handbook guidance?”
The WaMu Examiner-in-Charge, Benjamin Franklin, responded:
“I didn’t intend to send a memo until I got a blessing from [the Western Region Director]
or DC on what our official policy is on this. … [M]any of our larger institutions now do
NINAs (including Countrywide) .… Apparently [OTS policy official] Bill Magrini is the
lone ranger in his view that NINA’s are imprudent. West region position seems to be that
FICO, appraisal, and other documentation … is sufficient to assess the borrower’s ability
to repay in all but subprime loans. While I probably fall more into the Magrini camp
(until we get empirical data to support NINAs are not imprudent) we will just document
our findings … until the ‘official’ policy on this has been worked out.” 848
A year later, in October 2008, after WaMu’s failure, the same Examiner-in-Charge,
Benjamin Franklin, wrote to a colleague:
“[N]ot one regulatory agency had a rule or guideline saying you couldn’t do stated
income lending, even to this day. That, I find incredible. We criticized stated income
lending at WaMu but they never got it completely fixed. … [I]n hindsight, I’m
convinced that it is just a flawed product that can’t be fixed and never should have been
allowed in the first place. How do you really assess underwriting adequacy when you
allow the borrower to tell you what he makes without verification. We used to have
documentation requirements for underwriting in the regs, but when those were taken out,
the industry slowly migrated to an anything goes that got us into this mess. … When I
told Scott Polakoff [OTS Deputy Director] that stated income subprime should not be
made under any circumstance, I was corrected by Mike Finn [OTS Western Region head]
that that was not the West Region’s position. I rest my case.” 849
Data compiled by the Treasury and FDIC Inspectors General shows that, by the end of
2007, stated income loans – loans in which the bank did not verify the borrower’s income –
represented 50% of WaMu’s subprime loans, 73% of its Option ARMs, and 90% of its home
equity loans. 850 At the Subcommittee hearing, virtually every witness condemned stated income
loans as unsafe and unsound. 851 OTS Director John Reich testified that he regretted not doing
more to prevent supervised thrifts from issuing stated income loans. 852
Subcommittee interviews with OTS examiners who worked at WaMu found those
examiners to be demoralized and frustrated at their inability to effect change at the bank. They
848

Id.
10/7/2008 email exchange between OTS Examiner-in-Charge Benjamin Franklin and OTS examiner Thomas
Constantine, “West Region Update,” Franklin_Benjamin-00034415_001, Hearing Exhibit 4/16-14.
850
4/2010 “Evaluation of Federal Regulatory Oversight of Washington Mutual Bank,” prepared by the Offices of
Inspector General at the Department of the Treasury and Federal Deposit Insurance Corporation, at 10, Hearing
Exhibit 4/16-82.
851
See, e.g., April 16, 2010 Subcommittee Hearing at 14-15, 41-42.
852
Id. at 42 (“In hindsight, I regret it.”).
849

224
had identified serious deficiencies at the bank year after year, with no enforcement
consequences; some tried to interpret OTS standards in ways that would reduce risk, only to be
rebuffed by their leaders; and others were told that the NTM Guidance being enforced by other
agencies did not have standards that could be enforced by OTS examiners. Days after WaMu’s
failure, one OTS examiner had this to say about OTS leadership:
“My examination history here is filled with the editing and removal of my comments as
well as predictions (that turned out to be true) by EICs [Examiners-in-Charge]. No
system in place to keep that from happening. Instead we put whitewashers and scaredity
cats in charge of the most problematic shops. I don’t know what happened to you at
WAMU, but I was critical of their accounting at Card Services and the AP. Fortunately, I
think I made the ‘don’t let him come back here’ list. … [O]ur leadership screwed us and
can’t acknowledge it. They should resign.” 853

(c) Narrow Regulatory Focus
In addition to a policy of deference to management, weak standards, and demoralized
examiners, OTS employed an overly narrow regulatory focus that allowed WaMu’s short term
profits to excuse its risky practices and that ignored systemic risk. For a time, its short term
profits masked the problems at Washington Mutual, and regulators allowed practices which they
knew to be risky and problematic to continue. Because it mishandled its responsibilities, OTS
gave the illusion to investors, economists, policy makers, and others that the bank was sound,
when in reality, it was just the opposite. Unfortunately, the truth of the matter was not revealed
until it was too late, and the bank collapsed.
Using Short Term Profits to Excuse Risk. OTS justified not taking enforcement action
against WaMu in part by pointing to Washington Mutual’s profits and low loss rates during the
height of the mortgage boom, claiming they made it difficult to require the bank to reduce the
risks threatening its safety and soundness. In 2005, when faced with underwriting problems at
WaMu, the OTS Examiner-in-Charge put it this way:
“It has been hard for us to justify doing much more than constantly nagging (okay,
‘chastising’) through ROE [Reports of Examination] and meetings, since they [WaMu]
have not been really adversely impacted in terms of losses. It has been getting better and
has not recently been bad enough to warrant any ratings downgrade.” 854
The OTS Handbook was explicit, however, in stating that profits should not be used to
overlook or excuse high risk activities:

853

10/7/2008 emails from OTS examiner Thomas Constantine to OTS Examiner-in-Charge Benjamin Franklin,
“West Region Update,” Franklin_Benjamin-00034415_002, Hearing Exhibit 4/16-14.
854
9/15/2005 email from Examiner-in-Charge Lawrence Carter to Western Region Deputy Director Darrel Dochow,
OTSWMS05-002 0000535, Hearing Exhibit 4/16-6.

225
“If an association has high exposure to credit risk, it is not sufficient to demonstrate that
the loans are profitable or that the association has not experienced insignificant losses in
the near term.” 855
But in the case of Washington Mutual, profits did make a difference. At the
Subcommittee hearing, when asked by Senator Kaufman to identify one or two reasons why no
regulatory action was taken against WaMu, the FDIC IG Jon Rymer testified as follows:
“[L]et me start by saying I think the problem in 2005, 2006, and into 2007, the problem
was the bank was profitable. I think there was a great reluctance to [take action], even
though problems were there in underwriting, the product mix, the distribution process,
the origination process, all in my view extraordinarily risky .… [T]he people in [agency]
leadership positions have to be willing to make the tough calls and be experienced
enough to know that today’s risky practices may show today profitability, but to explain
to management and enforce with regulatory action that risky profitability is going to have
a cost. It either has a cost in control processes an institution would have to invest in now,
or it is going to have a cost ultimately to the bank’s profitability and perhaps eventually
to the Deposit Insurance Fund.” 856
In his prepared statement, the Treasury Inspector General, Eric Thorson, noted
that OTS examiners told his staff they did not lower WaMu’s CAMELS ratings because
“even though underwriting and risk management practices were less than satisfactory,
WaMu was making money and loans were performing.” 857
This problem was not isolated within OTS, however, but applied to other regulatory
agencies as well. The FDIC Inspector General noted, for example, that the bank’s profitability
also tempered the FDIC views of the bank. He explained that, prior to 2008, the FDIC did not
challenge WaMu’s 2 CAMELS ratings, because “the risks in WaMu’s portfolio had not
manifested themselves as losses and nonperforming loans, and therefore did not impact WaMu’s
financial statements.” 858 At the same time, an internal FDIC analysis of the bank identified a
long list of “embedded risk factors” in WaMu’s home loans that, despite the bank’s profitability,
exposed the bank to losses in the event of “a widespread decline in housing prices.” 859
In the financial industry, high risk activities are undertaken by financial institutions to
earn higher marginal returns. The role of the regulator is to enforce rules that ensure the risks an
institution undertakes do not unfairly transfer that risk to others or threaten the safety and
soundness of the economy, despite any short term profits. In the case of the FDIC, the judgment
855

11/2004 Office of Thrift Supervision Examination Handbook, at 070.8, OTSWMEF-0000032053; 2/2011 Office
of Thrift Supervision Examination Handbook, at 070.9, http://www.ots.treas.gov/_files/422008.pdf (quote is the
same in updated version of handbook). See also April 16, 2010 Subcommittee Hearing at 19 (testimony of FDIC and
Treasury Inspectors General).
856
April 16, 2010 Subcommittee Hearing at 24-26.
857
Thorson prepared statement at 10, April 16, 2010 Subcommittee Hearing at 110.
858
Rymer prepared statement at 10, April 16, 2010 Subcommittee Hearing at 129.
859
Undated draft memorandum from the WaMu examination team at the FDIC to the FDIC Section Chief for Large
Banks, FDIC-EM_00251205-10, Hearing Exhibit 4/16-51a (likely mid-2005).

226
includes whether the risk threatens loss to the Deposit Insurance Fund. Any firm that decides to
take a risk should be the only firm, along with its investors, to bear the brunt of the problem if it
turns out to have been a mistake. Regulators that, when faced with short term profits, stop
evaluating or downplay attendant risks that could produce later losses fail in their obligation to
ensure the safety and soundness of the financial institutions they are regulating. In the case of
WaMu, both OTS and the FDIC allowed the bank’s success in the short term to paper over its
underlying problems.
In October 2008, after Washington Mutual failed, the OTS Examiner-in-Charge at the
bank, Benjamin Franklin, deplored OTS’ failure to prevent its thrifts from engaging in high risk
lending because “the losses were slow in coming”:
“You know, I think that once we (pretty much all the regulators) acquiesced that stated
income lending was a reasonable thing, and then compounded that with the sheer insanity
of stated income, subprime, 100% CLTV [Combined Loan-to-Value], lending, we were
on the figurative bridge to nowhere. Even those of us that were early opponents let
ourselves be swayed somewhat by those that accused us of being ‘chicken little’ because
the losses were slow in coming, and let[’]s not forget the mantra that ‘our shops have to
make these loans in order to be competitive’. I will never be talked out of something I
know to be fundamentally wrong ever again!!” 860
Failure to Consider Financial System Impacts. A related failing was that OTS took a
narrow view of its regulatory responsibilities, evaluating each thrift as an individual institution
without evaluating the effect of thrift practices on the financial system as a whole. The U.S.
Government Accountability Office, in a 2009 evaluation of how OTS and other federal financial
regulators oversaw risk management practices, concluded that none of the regulators took a
systemic view of factors that could harm the financial system:
“Even when regulators perform horizontal examinations across institutions in areas such
as stress testing, credit risk practices, and the risks of structured mortgage products, they
do not consistently use the results to identify potential system risks.” 861
Evidence of this narrow regulatory focus includes the fact that OTS examiners carefully
evaluated risk factors affecting home loans that WaMu kept on its books in a portfolio of loans
held for investment, but paid less attention to the bank’s portfolio of loans held for sale. OTS
apparently reasoned that the loans held for sale would soon be off WaMu’s books so that little
analysis was necessary. From 2000 to 2007, WaMu securitized about $77 billion in subprime

860

10/7/2008 email from OTS Examiner-in-Charge Benjamin Franklin to OTS Examiner Thomas Constantine,
Franklin_Benjamin-00034415, Hearing Exhibit 4/16-14.
861
3/18/2009 Government Accountability Office, “Review of Regulators’ Oversight of Risk Management Systems
at a Limited Number of Large, Complex Financial Institutions,” Testimony of Orice M. Williams, Hearing Exhibit
4/16-83 (GAO reviewed risk management practices of OTS, as well as the Federal Reserve, the Office of the
Comptroller of the Currency, the SEC, and self-regulatory organizations.).

227
loans, mostly from Long Beach, as well as about $115 billion in Option ARM loans. 862 Internal
documents indicate that OTS did not consider the problems that could result from widespread
defaults of poorly underwritten mortgage securities from WaMu and other thrifts.
Numerous documents show that OTS and the FDIC were, in fact, aware that WaMu was
issuing high risk loans that led to poor quality securitizations:
2005 OTS email describing poor quality Long Beach mortgage backed securities:
“Performance data for 2003 and 2004 vintages appear to approximate industry average
while issues [of securities] prior to 2003 have horrible performance. ... [Long Beach]
finished in the top 12 worst annualized [net credit losses] in 1997 and 1999 thru 2003. …
At 2/05, [Long Beach] was #1 with a 12% delinquency rate. Industry was around
8.25%.” 863
2005 FDIC analysis of WaMu high risk loans: “Management acknowledges the risks
posed by current market conditions and recognizes that a potential decline in housing
prices is a distinct possibility. Management believes, however that the impact on
[WaMu] would be manageable, since the riskiest segments of production are sold to
investors, and that these investors will bear the brunt of a bursting housing bubble.” 864
2005 OTS email discussing allowing lower standards for loans held for sale: “[L]oans
held for sale could be underwritten to secondary market standards …. I believe we would
still find that secondary market requirements are more lax than our policy on
underwriting to fully indexed rates. … [I]f you allow them [WaMu] the exception for
loans held for sale … they probably do not have a ton of loans that fall far outside our
policy guidance.” 865
2006 OTS email discussing Long Beach loans that had to be repurchased from buyers:
“The primary reasons for the problem were … [g]eneral lower quality 2005 production
due to economy and lowered standards …. The $4.749 billion in loans on [Long Beach]
books at 12/31/05 are largely comprised of the same 2005 vintage production that was
sold in the whole loan sales and are now subject to the increased repurchases. …
Management is balancing the probability that these loans will perform worse than
expected and priced for, versus the increased income they generate … in considering
whether to [sell] some or all of the portfolio.” 866

862

“Securitizations of Washington Mutual and Long Beach Subprime Home Loans,” chart prepared by the
Subcommittee, Hearing Exhibit 4/13-1c; 10/17/2006 “Option ARM” draft presentation to the WaMu Board of
Directors, JPM_WM02549027, chart at 2, Hearing Exhibit 4/13-38.
863
4/14/2005 email from OTS examiner to colleagues, OTSWME05-0120000806, Hearing Exhibit 4/13-8a.
864
Undated draft memorandum from WaMu examination team to the FDIC Section Chief for Large Banks, FDICEM_00251205-10, Hearing Exhibit 4/16-51a (likely mid-2005).
865
9/16/2005 email from OTS Examiner-in-Charge at WaMu, OTSWMS05-002 0000535, Hearing Exhibit 4/16-6.
866
1/20/2006 email from Darrel Dochow to Michael Finn and others, OTSWMS06-007 0001020.

228
2008 OTS email after WaMu’s failure: “We were satisfied that the loans were originated
for sale. SEC and FED [were] asleep at the switch with the securitization and
repackaging of the cash flows, irrespective of who they were selling to.” 867
2005 WaMu audit of Loan Sales and Securitization planned no further audit for three
years. In March 2007, OTS informally suggested that more frequent audits would be
appropriate given the high volume and high risk nature of WaMu’s securitization activity
and “data integrity issues surrounding the creation of securitization trusts, resulting in
loan repurchases from those trusts.” 868 OTS was two years too late, however; the
secondary market for subprime securities collapsed four months later.
Neither OTS nor the FDIC saw preventing WaMu’s sale of high risk mortgages into U.S.
securitization markets as part of its regulatory responsibilities.

(d) Inflated CAMELS Ratings
Still another possible explanation for OTS’ inaction may have been the overly positive
CAMELS ratings it assigned WaMu. From 2004 until early 2008, WaMu held a 2 rating, which
meant that it was “fundamentally sound,” had “satisfactory risk management,” and had “only
moderate weaknesses that [were] within the board’s and management’s capability and
willingness to correct.” 869 A lower CAMELS rating would have represented one of the strongest
actions that OTS and the FDIC could have taken, because it would have required changes from
WaMu.
Both the Treasury and the FDIC Inspector General criticized the assignment of the 2
ratings as inaccurate and inappropriate, highlighting how those inflated ratings masked the true
problems. 870 Treasury IG Thorson focused in particular on the 2 rating assigned to WaMu’s high
risk home loans:
“[W]e find it difficult to understand how OTS could assign WaMu a satisfactory asset
quality 2-rating for so long. Assigning a satisfactory rating when conditions are not
satisfactory sends a mixed and inappropriate supervisory message to the institution
and its board. It is also contrary to the very purpose for which regulators use the
CAMELS rating system.” 871
Inspector General Thorson also criticized the 2 rating assigned to WaMu’s management,
which signaled “satisfactory performance by management and the Board of Directors and

867

10/7/2008 email from OTS examiner Thomas Constantine to OTS colleague Benjamin Franklin,
Franklin_Benjamin-00034415_001, Hearing Exhibit 4/16-14.
868
See 3/5/2007 WAMU Examination “Review of Securitization,” OTSWME07-075 0000780-791 at 789 (data
gathered from WaMu’s Market Risk Committee minutes, Dec. 2006 and Jan. 2007).
869
Thorson prepared statement at 7, April 16, 2010 Subcommittee Hearing at 107.
870
See, e.g., Treasury and FDIC IG Report at 16.
871
Thorson prepared statement at 10, April 16, 2010 Subcommittee Hearing at 110. See also id. at 8, April 16, 2010
Subcommittee Hearing at 108.

229
satisfactory risk management practices.” 872 He noted that OTS gave management this positive
rating until June 2008, despite the bank’s ongoing failure to correct the many deficiencies
identified by OTS examiners and the fact that management problems at WaMu were
longstanding. At the Subcommittee hearing, the FDIC Inspector General Rymer also criticized
the 2 rating assigned to WaMu’s management:
“[T]he management piece should be, in my view, downgraded if management has not
demonstrated that it has built the adequate systems and control processes and
governance processes to help manage problems when they eventually do occur in
assets. … I find it difficult to understand why the management rating at a minimum
was not lowered much earlier on.” 873
The FDIC Inspector General also noted that, from 2004 to 2008, the FDIC had assigned
LIDI ratings to WaMu that indicated a higher degree of risk at the bank than portrayed by the
bank’s CAMELS ratings. He observed that LIDI ratings, which are intended to convey the
degree of risk that a bank might cause loss to the Deposit Insurance Fund, are designed to be
more forward-looking and incorporate consideration of future risks to a bank, as compared to
CAMELS ratings, which are designed to convey the state of an institution at a particular point in
time. 874
WaMu kept its 2 rating despite the five-year litany of lending, risk management,
appraisal, and Long Beach deficiencies identified by OTS examiners from 2004 to 2008. It was
only in February 2008, after the bank began to incur substantial losses, that OTS downgraded the
bank to a 3. When the FDIC urged a further downgrade to a 4 rating in the summer of 2008,
OTS disagreed. In September 2008, however, while still resisting the ratings downgrade, OTS
acknowledged internally that WaMu’s poor quality loans and poor risk management were the
source of its problems:
“The bank’s overall unsatisfactory condition is primarily the result of the poor
asset quality and operating performance in the bank’s major Home Loans
Group area of business. … The deteriorating asset quality in the Home Loans
Group is accompanied by inadequacies in risk management, internal controls,
and oversight that made more vulnerable to the current housing and economic
downturn. The examination criticized past liberal home loan underwriting
practices and concentrated delivery of nontraditional mortgage products to
higher risk geographic markets.” 875
It was only on September 18, 2008, after the bank began to run out of the cash needed to
conduct its affairs and the FDIC independently downgraded the bank to a 4, that OTS
finally agreed to the downgrade. One week later, OTS placed the bank into receivership.

872

See Thorson prepared statement at 11, April 16, 2010 Subcommittee Hearing at 111.
April 16, 2010 Subcommittee Hearing at 24-26.
874
See, e.g., Rymer prepared statement at 5.
875
9/11/2008 OTS document, “WaMu Ratings of 3/343432,” Polakoff_Scott-00065325, Hearing Exhibit 4/16-48.
873

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Hindsight establishes that the CAMELS ratings assigned to Washington Mutual
Bank were inflated. Whether the ratings inflation was attributable to the OTS culture of
deference to management, examiners who were too intimidated to downgrade the
agency’s largest institution, an overly narrow regulatory focus that was blinded by
WaMu’s short term profits and ignored systemic risk, or an absence of forward-looking
risk analysis, the WaMu collapse suggests that the CAMELS rating system did not work
as it should.

(e) Fee Issues
During the investigation, when asked why OTS senior officials were not tougher on
Washington Mutual Bank, several persons brought up the issue of fees – that WaMu supplied
$30 million or nearly 15% of the fees per year that paid for OTS’ operating expenses. WaMu’s
former Chief Risk Officer James Vanasek offered this speculation:
“I think you have to look at the fact that Washington Mutual made up a substantial
portion of the assets of the OTS and one wonders if the continuation of the agency would
have existed had Washington Mutual failed.” 876
The issue was also raised by Treasury IG Thorson who warned that OTS should have been “very
clear from top to bottom” that WaMu’s payment of $30 million in fees per year to OTS was “not
a factor. It just [was] not.” 877
The OCC and OTS are the only federal banking regulators reliant on fees paid by their
regulated entities to fund their operations. At OTS, Washington Mutual was far larger than any
other thrift overseen by the agency and was a far larger and more important contributor to the
agency’s budget. It is possible that the agency’s oversight was tempered by recognition of the
thrift’s unique importance to the agency’s finances and a concern that tough regulation might
cause WaMu to convert its charter and switch to a different regulator. Its dependence on WaMu
fees may have given OTS the incentive to avoid subjecting WaMu to regulatory enforcement
actions and ultimately compromised its judgments.
Conclusion. WaMu is the largest bank failure in the history of the United States. When
OTS seized it, WaMu had $307 billion in assets. By comparison, the next largest U.S. bank
failure was Continental Illinois, which had $40 billion in assets when it collapsed in 1984. OTS’
failure to act allowed Washington Mutual to engage in unsafe and unsound practices that cost
borrowers their homes, led to a loss of confidence in the bank, and sent hundreds of billions of
dollars of toxic mortgages into the financial system with its resulting impact on financial markets
at large. Even more sobering is the fact that WaMu’s failure was large enough that, if the bank
had not been purchased by JPMorgan Chase, it could have exhausted the entire Deposit
Insurance Fund which then contained about $45 billion. Exhausting the Deposit Insurance Fund

876
877

April 13, 2010 Subcommittee Hearing at 40 (Testimony of James Vanasek).
See April 16, 2010 Subcommittee Hearing at 25.

231
could have triggered additional panic and loss of confidence in the U.S. banking system and
financial markets.

(2) Other Regulatory Failures
Washington Mutual was not the only failed thrift overseen by OTS. In 2008, OTS closed
the doors of five thrifts with combined assets of $354 billion.878 Another seven thrifts holding
collective assets of $350 billion were sold or declared bankruptcy. 879 Virtually all of these thrifts
conducted high risk lending, accumulated portfolios with high risk assets, and sold high risk,
poor quality mortgages to other financial institutions and investors. At the Subcommittee
hearing, the Treasury Inspector General testified that, after completing 17 reviews and working
on another 33 reviews of a variety of failed financial institutions, he could say that OTS’ lack of
enforcement action was “not unique to WaMu” and lax enforcement by the relevant federal
banking regulator was “not unique to OTS.” 880
Mortgage lenders other than banks also failed. Many of these mortgage lenders had
operated as private firms, rather than as depository institutions, and were not overseen by any
federal or state bank regulator. Some were overseen by the SEC; others were not overseen by
any federal financial regulator. Some became large companies handling billions of dollars in
residential loans annually, yet operated under minimal and ineffective regulatory oversight.
When residential loans began to default in late 2006, and the subprime securitization market
dried up in 2007, these firms were unable to sell their loans, developed liquidity problems, and
went out of business. Together, these failed mortgage lenders, like the failed thrifts, contributed
to systemic risk that damaged the U.S. banking system, U.S. financial markets, and the U.S.
economy as a whole.

(a) Countrywide
Countrywide Financial Corporation, now a division of Bank of America and known as
Bank of America Home Loans, was formerly the largest independent mortgage lender in the
United States and one of the most prolific issuers of subprime mortgages. 881 For a number of
years, Countrywide operated as a national bank under the OCC. In March 2007, it converted to a
thrift charter and operated for its last 18 months under the regulatory supervision of OTS. 882 At
its height, Countrywide had approximately $200 billion in assets, 62,000 employees, and issued
in excess of $400 billion in residential mortgages each year. In 2008, Countrywide originated
878

1/2009 Center for Responsible Lending report, “The Second S&L Scandal,” at 1, Hearing Exhibit 4/16-84.
Id.
880
April 16, 2010 Subcommittee Hearing at 18 (Testimony of Treasury IG Thorson). The Treasury IG also
reviewed, for example, failed banks overseen by the OCC.
881
See, e.g., “Mortgage Lender Rankings by Residential Originations,” charts prepared by MortgageDaily.com,
http://www.mortgagedaily.com/MortgageLenderRanking.asp (indicating Countrywide was one of the top three
issuers of U.S. residential mortgages from 2003 to 2008); “A Mortgage Crisis Begins to Spiral, and the Casualties
Mount,” New York Times (3/5/2007).
882
3/5/2007 OTS press release, “OTS Approves Countrywide Application,”
http://www.ots.treas.gov/_files/777014.html.
879

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nearly 20% of all mortgages in the United States. 883 But in August 2008, after the collapse of the
subprime secondary market, Countrywide could no longer sell or securitize its subprime loans
and was unable to obtain replacement financing, forcing the bank into a liquidity crisis. 884 By
the end of the summer of 2008, it would have declared bankruptcy, but for its sale to Bank of
America for $2.8 billion. 885
Neither the OCC nor OTS ever filed a public enforcement action against the bank. In
June 2009, the SEC filed suit against the three most senior Countrywide executives, the chief
executive officer, the chief operating officer and president, and the chief financial officer,
charging them with fraudulently misleading investors by representing that Countrywide had
issued loans primarily to “prime” or low risk borrowers, when it had actually written
increasingly risky loans that senior executives knew would result in substantial defaults and
delinquencies. 886 In addition, the SEC charged that CEO Angelo Mozilo had violated his federal
disclosure obligations and engaged in insider trading. 887
The SEC complaint detailed the bank’s increasingly risky underwriting and lending
practices from 2005 to 2007, including its use of stated income loans, loan-to-value ratios in
excess of 95%, loans to borrowers with low FICO scores, frequent use of loan exceptions, and
willingness to match the loan terms of any competitor. Like WaMu, from 2003 to 2007, the
bank switched from issuing primarily low risk, 30-year loans, to subprime and other high risk
mortgages. 888
The complaint also described how Mr. Mozilo was internally alarmed and critical of the
increased credit risks that Countrywide was incurring, while at the same time telling investors
that the bank was more prudent than its competitors. 889 The SEC complaint cited, for example,
an April 2006 email from Mr. Mozilo discussing Countrywide’s issuance of subprime 80/20
loans, which are loans that have no down payment and are comprised of a first loan for 80% of
the home’s value and a second loan for the remaining 20% of the value, resulting in a loan-tovalue ratio of 100%. Mr. Mozilo wrote: “In all my years in the business I have never seen a
more toxic pr[o]duct.” 890 In another email that same month, after being informed that most
borrowers were making the minimum payments allowed on Option ARM loans, Mr. Mozilo
wrote: “Since over 70% have opted to make the lower payment it appears it is just a matter of
time that we will be faced with much higher resets and therefore much higher delinquencies.” 891

883

OCC, “Annual Report: Fiscal Year 2009,” http://www.occ.gov/static/publications/annrpt/2009AnnualReport.pdf.
See, e.g., SEC v. Mozilo, Case No. CV09-03994 (USDC CD Calif.), Complaint (June 4, 2009), at ¶¶ 102-104
(hereinafter “SEC Complaint against Countrywide Executives”).
885
“Countrywide Financial Corporation,” New York Times (10/15/2010).
886
SEC Complaint against Countrywide Executives.
887
Id.
888
See, e.g., SEC Complaint against Countrywide Executives, at ¶¶ 17-19.
889
See, e.g., id. at ¶¶ 6-7.
890
Id. at ¶ 50.
891
Id. at ¶ 63.
884

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Later he warned that the bank was “flying blind” on the ultimate delinquency rate and should
consider selling the loans. 892 The SEC complaint also stated:
“Mozilo went on to write that he had ‘personally observed a serious lack of compliance
within our origination system as it relates to documentation and generally a deterioration
in the quality of loans originated versus the pricing of those loan[s].’ Mozilo noted that,
‘In my conversations with Sambol [Countrywide’s chief operating officer] he calls the
100% sub prime seconds as the ‘milk’ of the business. Frankly, I consider that product
line to be the poison of ours.” 893
On October 15, 2010, the SEC announced a record settlement with the three Countrywide
executives. 894 Mr. Mozilo agreed to pay $22.5 million to settle the disclosure fraud allegations
and $45 million to settle the insider trading allegations, bringing his total settlement to $67.5
million.895 He also agreed to be permanently barred from serving as an officer or director of a
publicly traded corporation. Countrywide’s former chief operating officer paid $5.5 million and
agreed to a three-year bar. The chief financial officer paid $130,000 and agreed to a one-year
bar on practicing before the SEC.
In June 2010, in a case brought by the Federal Trade Commission, Countrywide agreed to
pay penalties of $108 million for charging inflated mortgage servicing fees to homeowners in
delinquency, including excessive fees to inspect property or mow lawns for people struggling to
keep their homes. 896 In August 2010, Countrywide and some former executives agreed to pay
$600 million to settle several class action lawsuits. 897

(b) IndyMac
IndyMac Bank was established in 1985 by Countrywide co-founders Angelo Mozilo and
David Loeb. While its lines of business changed over time, in 2000, it became a chartered thrift
overseen by OTS, and grew to become the country’s ninth-largest originator of residential
mortgage loans. 898 IndyMac specialized in two types of high risk home loans, Alt A loans which
did not require verification or documentation of the borrower’s income, assets or employment;
and Option ARM loans which allowed borrowers to pay less than the fully amortized cost of the
mortgage. From 2004 to 2006, Option ARMs made up 75% of IndyMac’s home loans and, in
2006, IndyMac allowed 75% of its Option ARM borrowers to make only the minimum payment
892

Id. at ¶ 68-69.
Id. at ¶ 49.
894
10/15/2010 SEC Press Release, “Former Countrywide CEO Angelo Mozilo to Pay SEC’s Largest-Ever Financial
Penalty Against a Public Company’s Senior Executive,” http://www.sec.gov/news/press/2010/2010-197.htm.
895
Id.
896
6/7/2010 U.S. Federal Trade Commission press release, “Countrywide Will Pay $108 Million for Overcharging
Struggling Homeowners; Loan Servicer Inflated Fees, Mishandled Loans of Borrowers in Bankruptcy,”
http://www.ftc.gov/opa/2010/06/countrywide.shtm.
897
See, e.g., “$600 Million Countrywide Settlement,” Associated Press (8/3/2010).
898
2/26/2009 Office of Inspector General, Dept. of the Treasury Audit Report, “Safety and Soundness: Material
Loss Review of IndyMac Bank,” at 40, http://www.treasury.gov/about/organizationalstructure/ig/Documents/oig09032.pdf (hereinafter “IG Report on IndyMac Bank”).
893

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required by the loan, triggering negative amortization. In addition to originating loans, IndyMac
packaged them into securities and sold them on the secondary market. 899
In July 2007, after the credit rating agencies downgraded the ratings on most subprime
mortgage backed securities and the subprime secondary market collapsed, IndyMac – like
WaMu – was left holding a large inventory of poor quality mortgage loans it could not sell. As
delinquencies increased and the value of the mortgages fell, IndyMac incurred substantial losses,
and its depositors began withdrawing funds. The withdrawals continued throughout 2007 and
into 2008, eventually reaching $1.55 billion and triggering a liquidity crisis at the bank. 900 In
July 2008, IndyMac collapsed and was seized by the FDIC, which had to pay more than $10
billion from the Deposit Insurance Fund to protect insured deposits and pay related expenses. 901
As it did with WaMu, OTS gave IndyMac high CAMELS ratings until shortly before the
thrift’s failure, despite the fact that OTS had identified numerous problems with IndyMac’s
subprime mortgage business practices. 902 Those problems included adopting an overly narrow
definition of “subprime,” so that IndyMac could maintain a lower level of capital reserves; 903
poor underwriting and sloppy property appraisal practices; 904 and improper risk mitigation. 905
Neither OTS nor the FDIC ever took a public enforcement action against the bank.
After IndyMac’s failure, the Treasury Inspector General conducted a review and issued a
report evaluating OTS’ oversight efforts. 906 The report attributed IndyMac’s collapse to its
strategy of rapid growth; originating and securitizing nontraditional, high risk loans; lack of
verification of borrowers’ income or assets; lax underwriting; and reliance on high interest loans
for its own operations. 907 The Treasury IG found that OTS was aware of IndyMac’s problems,
but did not take sufficient enforcement action to correct them. 908 According to the Inspector

899

Id. at 7.
Id. at 3.
901
Id. at 1.
902
Id. at 8.
903
Id. at 18.
904
Id. at 21-31.
905
Id.
906
Id. In addition to the Material Loss Review, the Treasury Inspector General investigated OTS’ conduct in
permitting thrifts, including IndyMac to backdate certain capital infusions. See 12/22/2008 Office of the Inspector
General, Dept. of the Treasury, Letter to Ranking Member Charles Grassley, Senate Committee on Finance,
http://media.washingtonpost.com/wpsrv/business/documents/Indymac_Thorson_122308pdf.pdf?sid=ST2008122202386. Darrel Dochow was removed
from his position as Director of the OTS West Division for having allowed IndyMac to backdate a capital
contribution of $18 million, which made it appear stronger than it really was in the relevant financial statement.
Then Acting OTS Director Scott Polakoff was also placed on leave during the backdating investigation, but he
disputed that he directed anyone to allow backdated capital injections and asserted that the real impetus for his being
placed on leave was his Congressional testimony critical of the agency’s conduct related to AIG. Subcommittee
interview of Scott Polakoff (3/16/10).
907
3/31/2009 Office of the Inspector General, Dept. of the Treasury, “Semiannual Report to Congress,” at 15,
http://www.treasury.gov/about/organizational-structure/ig/Documents/sar042009.pdf.
908
Id. at 31.
900

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General, OTS typically relied on the “cooperation of IndyMac management to obtain needed
improvements” – which was usually not forthcoming – to remedy identified problems. 909
In February 2011, the SEC charged three former senior IndyMac executives with
securities fraud for misleading investors about the company’s deteriorating financial
condition. 910 The SEC alleged that the former CEO and two former CFOs participated in the
filing of false and misleading disclosures about the financial stability of IndyMac and its main
subsidiary, IndyMac Bank F.S.B. One of the executives – S. Blair Abernathy, former CFO – has
agreed to settle the SEC’s charges without admitting or denying the allegations for
approximately $125,000. The SEC’s complaint against former CEO Michael W. Perry and
former CFO A. Scott Keys seeks, among other things, disgorgement, financial penalties, and a
bar on their acting as an officer or director of a publicly traded corporation. 911
IndyMac was the third-largest bank failure in U.S. history and the largest collapse of a
FDIC-insured depository institution since 1984. 912 At the time of its collapse, IndyMac had $32
billion in assets and $19 billion in deposits, of which approximately $18 billion were insured by
the FDIC. 913 IndyMac’s failure cost the FDIC $10.7 billion,914 a figure which, at the time,
represented over 10% of the federal Deposit Insurance Fund. 915
(c) New Century
New Century Financial Corporation is an example of a failed mortgage lender that
operated largely without federal or state oversight, other than as a publicly traded corporation
overseen by the SEC. New Century originated, purchased, sold, and serviced billions of dollars
in subprime residential mortgages, operating not as a bank or thrift, but first as a private
corporation, then as a publicly traded corporation, and finally, beginning in 2004, as a publicly
traded Real Estate Investment Trust (REIT). 916 By 2007, New Century had approximately 7,200
employees, offices across the country, and a loan production volume of $51.6 billion, making it

909

Id. at 38.
2/11/2011 SEC press release, “SEC Charges Former Mortgage Lending Executives With Securities Fraud,”
http://www.sec.gov/news/press/2011/2011-43.htm.
911
Id.
912
“The Fall of IndyMac,” CNNMoney.com (7/13/2008).
913
Id.
914
3/31/2010 Office of Inspector General, Dept. of the Treasury, “Semiannual Report to Congress,”
http://www.treasury.gov/about/organizationalstructure/ig/Documents/March%202010%20SAR%20Final%20%20(04-30-10).pdf.
915
“Crisis Deepens as Big Bank Fails; IndyMac Seized in Largest Bust in Two Decades,” Wall Street Journal
(7/12/2008).
916
See SEC v. Morrice, Case No. SACV09-01426 (USDC CD Calif.), Complaint (Dec. 7, 2009), ¶¶ 12-13
(hereinafter “SEC Complaint against New Century Executives”). See also In re New Century, Case No. 2:07-cv00931-DDP (USDC CD Calif.), Amended Consolidated Class Action Complaint (March 24, 2008), at ¶¶ 55-58
(hereinafter “New Century Class Action Complaint”).
910

236
the second largest subprime lender in the country. 917 Because it did not accept deposits or have
insured accounts, it was not overseen by any federal or state bank regulator.
In 2007, after the company announced its intent to restate its 2006 financial results,
investors lost confidence in the company, its stock plummeted, and New Century collapsed. In
April 2007, it filed for bankruptcy. 918 In February 2008, the bankruptcy examiner released a
detailed report that found New Century was responsible for “significant improper and imprudent
practices related to its loan originations, operations, accounting and financial reporting
processes.” 919 Like WaMu, New Century had engaged in a number of harmful mortgage
practices, including “increasing loan originations, without due regard to the risks associated with
that business strategy”; risk layering in which it issued high risk loans to high risk borrowers,
including originating in excess of 40% of its loans on a stated income basis; allowing multiple
exceptions to underwriting standards; and utilizing poor risk management practices that relied on
the company’s selling or securitizing its high risk mortgages rather than retaining them.
After New Century’s bankruptcy, a 2007 class action complaint was filed by the New
York State Teachers’ Retirement System and others alleging that New Century executives had
violated federal securities laws and committed fraud. 920 Among other matters, the complaint
alleged that the company sold poor quality loans that incurred early payment defaults, received
numerous demands from third party buyers of the loans to repurchase them, and built up a huge
backlog of hundreds of millions of dollars in repurchase requests that the company deliberately
delayed paying to make its 2005 and 2006 financial results appear better than they actually
were. 921 The complaint also alleged that New Century issued loans using lax underwriting
standards to maximize loan production, 922 and “routinely and increasingly lent money to people
who were unable to repay the debt shortly after the loans were closed.” 923 The suit took note of a
news article stating: “Loans made by New Century, which filed for bankruptcy protection in
March, have some of the highest default rates in the industry.” 924
In December 2009, the SEC filed a civil complaint charging three former New Century
executives, the CEO, CFO, and controller, with fraudulent accounting that misled investors about
the company’s finances. 925 The SEC alleged that, while the company’s financial disclosures
painted a picture that the company’s performance exceeded that of its peers, its executives had
failed to disclose material negative information, such as significant increases in its loans’ early
917

In re New Century TRS Holdings, Inc., Case No. 07-10416 (KJC) (US Bankruptcy Court, Del.), 2/29/2008 Final
Report of Michael J. Missal, Bankruptcy Court Examiner, at 2,
http://graphics8.nytimes.com/packages/pdf/business/Final_Report_New_Century.pdf (hereinafter “New Century
Bankruptcy Report”). See also New Century Class Action Complaint at ¶ 59-60.
918
In re New Century TRS Holdings, Inc., Case No. 07-10416 (KJC) (US Bankruptcy Court, Del.).
919
New Century Bankruptcy Report.
920
New Century Class Action Complaint.
921
Id. at ¶¶ 75-79.
922
Id. at ¶ 112. See also ¶¶ 126-130.
923
Id. at ¶ 113. See also ¶¶ 114-116.
924
Id. at ¶ 123.
925
SEC Complaint against New Century Executives; See also 12/7/2009 SEC Press Release, “SEC Charges Former
Offices of Subprime Lender New Century With Fraud.”

237
payment defaults and a backlog of loan repurchases, which had the effect of materially
overstating the company’s financial results. The SEC complaint also stated that, although New
Century had represented itself as a prudent subprime lender, it “soon became evident that its
lending practices, far from being ‘responsible,’ were the recipe for financial disaster.” 926 The
complaint detailed a number of high risk lending practices, including the issuance of interest
only loans; 80/20 loans with loan-to-value ratios of 100%; and stated income loans in which the
borrower’s income and assets were unverified. 927 The complaint charged the New Century
executives with downplaying the riskiness of the company’s loans and concealing their high
delinquency rates.
In July 2010, the three former New Century executives settled the SEC complaint for
about $1.5 million, without admitting or denying wrongdoing. 928 Each also agreed to be barred
from serving as an officer or director of any publicly traded corporation for five years. A larger
group of about a dozen former New Century officers and directors settled several class action
and other shareholder lawsuits for $88.5 million.929
In 2007, New Century reported publicly that it was under criminal investigation by the
U.S. Attorney’s Office for the Central District of California, but no indictment of the company or
any executive has been filed. 930

(d) Fremont
Fremont Investment & Loan was once the fifth largest subprime mortgage lender in the
United States. 931 At its peak in 2006, it had $13 billion in assets, 3,500 employees, and nearly
two dozen offices. 932 Fremont Investment & Loan was neither a bank nor a thrift, but an
“industrial loan company” that issued loans and held insured deposits. 933 It was owned by
Fremont General Credit Corporation which was owned, in turn, by Fremont General
Corporation. In 2007, the bank was the subject of an FDIC cease and desist order which
identified multiple problems with its operations and ordered the bank to cease its subprime
lending. 934 In 2008, due to insufficient capital, the FDIC ordered Fremont General Corporation
to either recapitalize the bank or sell it. The bank was then sold to CapitalSource, Inc. 935 In June
926

SEC Complaint against New Century Executives at 3.
See, e.g., SEC Complaint against New Century Executives at ¶¶ 24-32.
928
See 7/30/2010 SEC Litigation Release No. 21609, “SEC Settles With Former Officers of Subprime Lender New
Century, “ http:www.sec.gov/litigation/litreleases/2010/lr21609.htm.
929
See, e.g., “New Century Ex-leaders to Pay $90 Million in Settlements,” Los Angeles Times (7/31/2010).
930
See 3/12/2007 New Century Financial Corporation Form 8-K, Item 8.01.
931
“Fremont Ordered by FDIC to Find Buyer; Curbs Imposed,” Bloomberg (3/28/2010),
http://www.bloomberg.com/apps/news?pid=newsarchive&sid=atIgi9otRZ3k.
932
3/2006 Fremont General Corporation Form 10-K filed with the SEC.
933
Id.
934
In re Fremont Investment & Loan, Order to Cease and Desist, Docket No. FDIC-07-035b (March 7, 2007)
(hereinafter “Fremont Cease and Desist Order”).
935
In re Fremont Investment & Loan, Supervisory Prompt Corrective Action Directive, Docket No. FDIC-08-069
PCAS (March 26, 2008); “CapitalSource, Inc.,” Hoover’s Company Records. See also “CapitalSource to Acquire
Fremont’s Retail Arm,” New York Times (4/14/2008).
927

238
2008, Fremont General Corporation declared bankruptcy under Chapter 11 and has since
reorganized as Signature Group Holdings, Inc. 936
As a California based industrial loan company, Fremont Investment & Loan was
overseen by the California Department of Financial Institutions, a state bank regulator. Since it
had deposits that were federally insured, Fremont was also regulated by the FDIC. 937 The March
2007 FDIC cease and desist order required the bank to end its subprime lending business, due to
“unsafe and unsound banking practices and violations of law,” including operating with “a large
volume of poor quality loans”; “unsatisfactory lending practices”; “excessive risk”; and
inadequate capital. 938 The FDIC also determined that the bank lacked effective risk management
practices, lacked adequate mortgage underwriting criteria, and was “approving loans with loanto-value ratios approaching or exceeding 100 percent of the value of the collateral.” 939
Many of the specific practices cited in the cease and desist order mirror the FDIC and
OTS criticisms of WaMu. For example, the FDIC determined that Fremont was “marketing and
extending adjustable-rate mortgage (‘ARM’) products to subprime borrowers in an unsafe and
unsound manner that greatly increase[d] the risk that borrowers will default”; “qualifying
borrowers for loans with low initial payments based on an introductory or ‘start’ rate that will
expire after an initial period”; “approving borrowers without considering appropriate
documentation and/or verification of the their income”; and issuing loans with “features likely to
require frequent refinancing to maintain an affordable monthly payment and/or to avoid
foreclosure.” 940 Fremont later reported receiving default notices on $3.15 billion in subprime
mortgages it had sold to investors. 941
One year later, in March 2008, the FDIC filed another public enforcement action against
the bank, for failing to provide an acceptable capital restoration plan or obtaining sufficient
capital, and ordered the bank’s parent company to either adequately capitalize the bank within 60
days or sell it. 942 The bank was then sold to CapitalSource, Inc.
The FDIC took action against Fremont much earlier – in March 2007 – than other
regulators did with respect to other financial institutions, including OTS’ nonpublic enforcement
actions against WaMu in March and September 2008; the FDIC’s seizure of IndyMac in July
2008; the SEC’s action against Countrywide in June 2009; and the SEC’s action against New
936

In re Fremont General Corporation, Case No. 8:08-bk-13421-ES (US Bankruptcy Court, CD Calif.), First Status
Report (July 30, 2010) (included in 7/30/2010 Fremont General Corporation 8K filing with the SEC).
937
2006 Fremont 10-K Statement with the SEC.
938
Fremont Cease and Desist Order at 1-3. See also 3/7/2007 FDIC press release, “FDIC Issues Cease and Desist
Order Against Fremont Investment & Loan, Brea, California, and its Parents.”
939
Fremont Cease and Desist Order at 2-4.
940
Id. at 3.
941
See 3/4/2008 Fremont General Corporation press release, “Fremont General Corporation Announces Receipt of
Notice of Covenant Default With Respect to Guaranties Issued in Connection With Certain Prior Residential SubPrime Loan Sale Transactions,” http://media.corporate-ir.net/media_files/irol/10/106265/08-0304N%20FGCAnnouncesDefaultNoticewithRRELoanTransactions.pdf. See also “CapitalSource to Acquire
Fremont’s Retail Arm,” New York Times (4/14/2008).
942
In re Fremont Investment & Loan, Supervisory Prompt Corrective Action Directive, Docket No. FDIC-08-069
PCAS ( March 26, 2008).

239
Century in December 2009. By putting an early end to Fremont’s subprime lending, the FDIC
stopped it from selling additional poor quality mortgage backed securities into U.S. securitization
markets.
In November 2008, the OCC researched the ten metropolitan areas with the highest
foreclosure rates and identified the ten lenders in each area with the most foreclosed loans; Long
Beach, Countrywide, IndyMac, New Century, and Fremont all made the list of the “Worst Ten in
the Worst Ten.” 943 Moody’s, the credit rating agency, later calculated that, in 2006 alone, Long
Beach, New Century, and Fremont were responsible for 24% of the residential subprime
mortgage backed securities issued, but 50% of the subsequent credit rating downgrades of those
securities. 944 The fact is that each of these lenders issued billions of dollars in high risk, poor
quality home loans. By allowing these lenders, for years, to sell and securitize billions of dollars
in poor quality, high risk home loans, regulators permitted them to contaminate the secondary
market and introduce systemic risk throughout the U.S. financial system.

E. Preventing Regulatory Failures
Regulators stood on the sidelines as U.S. mortgage lenders introduced increasingly high
risk mortgage products into the U.S. mortgage market. Stated income loans, NINA loans, and
so-called “liar loans” were issued without verifying the borrower’s income or assets. Alt A loans
also had reduced documentation requirements. Interest-only loans, Option ARMs, and hybrid
ARMs involved charging low introductory interest rates on loans that could be refinanced before
much higher interest rates took effect. Negative amortization loans – loans that became bigger
rather than smaller over time – became commonplace. Home equity loans and lines of credit,
piggybacks and silent seconds, 100% financing – all involved loans that required the borrower to
make virtually no down payment or equity investment in the property, relying instead on the
value of the property to ensure repayment of the loan. All of these loans involved higher risks
than the 30-year and 15-year fixed rate mortgages that dominated the U.S. mortgage market prior
to 2004. When property values stopped climbing in late 2006, these higher risk loans began
incurring delinquencies, losses, and defaults at record rates.
A number of new developments have occurred in the past several years to address the
problems highlighted throughout this Report.

(1) New Developments
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act),
which the President signed into law on July 21, 2010, contains many changes in the law that will
be implemented over the next year. The Dodd-Frank changes include abolishing OTS, banning
stated income loans, and restricting negative amortization loans. Other developments include a
revised interagency agreement strengthening the FDIC’s ability to conduct examinations of

943

See 11/13/2008 “Worst Ten in the Worst Ten,” document prepared by the OCC, Hearing Exhibit 4/13-58.
7/12/2007 “Moody’s Structured Finance Teleconference and Web Cast: RMBS and CDO Rating Actions,”
prepared by Moody’s Investors Service, Hearing Exhibit 4/23-106.
944

240
insured depository institutions and a new FDIC deposit insurance pricing system that requires
higher risk institutions to pay higher insurance fees.
OTS Abolished. One significant new change brought about by the Dodd-Frank Act is
the abolishment of the Office of Thrift Supervision. Title III of the Dodd-Frank Act reassigned
OTS’ duties and personnel to other agencies, primarily the Office of the Comptroller of the
Currency (OCC). 945 Although some OTS officials claim the law intended OTS to be a merger
partner with the OCC, the statute is clear in its intent to abolish OTS, rather than effect a merger
of equals.
Revised Interagency Agreement. A second important change is that the interagency
agreement that guides when the FDIC can examine an insured institution was altered to give the
FDIC increased authority. Under federal law, the FDIC can conduct an examination of an
insured depository institution “whenever the [FDIC] Board of Directors determines a special
examination … is necessary to determine the condition of such depository institution for
insurance purposes.” 946 Despite this broad statutory grant of examination authority, in 2002, the
FDIC agreed to limit the circumstances in which it would examine banks subject to regulation by
another agency. The resulting interagency agreement essentially required the FDIC to establish
that an institution was at “heightened risk” of causing loss to the Deposit Insurance Fund before
the FDIC could compel another banking regulator to allow the FDIC to participate in an
examination of its operations. OTS used that agreement to impede the FDIC’s participation in
examinations of WaMu.
In 2010, the FDIC renegotiated that agreement with the other financial regulators, and
they signed a revised version that will facilitate more cooperation on a less bureaucratic and
more timely basis. 947 Compared to the 2002 version, the revised agreement explicitly provides
for special examinations of a broader scope of insured depository institutions. It also streamlined
the process for resolving differences in CAMELS ratings between financial regulators. In the
case of WaMu, this new process would have helped facilitate a quicker response to WaMu’s
deteriorating condition. Additionally, the new agreement establishes a continuous on-site FDIC
presence, with five or more examiners, at certain large institutions, including those that receive
ratings under the FDIC’s Large Insured Depository Institutions Program. This new provision
ensures the FDIC has consistent access to information about big banks that, by virtue of their
size, pose the most risk to the Deposit Insurance Fund. Finally, after first discussing it with the
primary federal regulator, the FDIC is permitted to gather information directly from financial
institutions. These provisions will help ensure that the FDIC can obtain the information needed
to safeguard the Deposit Insurance Fund.
945

See, e.g., Section 312 of the Dodd-Frank Act.
12 U.S.C. § 1820(b)(3).
947
9/17/2010 letter from FDIC Chairman Sheila C. Bair to the Subcommittee, PSI-FDIC-13-000001 (“Enclosed
please find a signed copy of a revised and much-strengthened memorandum of understanding among the FDIC and
other bank regulators which will greatly enhance our ability to continually access and monitor information related to
our risks as deposit insurer. I believe this is a very strong agreement and one which we accomplished due in no
small part to the work of your Subcommittee in identifying weaknesses in the supervisory processes leading up to
the failure of Washington Mutual.”).
946

241
Risk Factors in Insurance Fees. Under a new FDIC deposit insurance pricing system
that takes effect in 2011, large depository institutions with higher risk activities will be required
to pay higher fees into the Deposit Insurance Fund. 948 This new assessment system is designed
to “better capture risk at the time large institutions assume the risk, to better differentiate among
institutions for risk and take a more forward-looking view of risk, [and] to better take into
account the losses that the FDIC may incur if such an insured depository institution fails.” 949 It
is the product of both past FDIC revisions and changes to the insurance fund assessment system
made by the Dodd-Frank Act. 950 It is intended to impose higher assessments on large banks
“with high-risk asset concentrations, less stable balance sheet liquidity, or potentially higher loss
severity in the event of failure,” and impose those higher assessments when the banks “assume
these risks rather than when conditions deteriorate.” 951 Under this new system, banks with
higher risk activities will be assessed higher fees, not only to safeguard the insurance fund and
allocate insurance costs more fairly, but also to help discourage high risk activities.
Financial Stability Oversight Council. The Dodd-Frank Act has also established a new
intra-governmental council, the Financial Stability Oversight Council (FSOC), to identify
systemic risks and respond to emerging threats to the stability of the U.S. financial system. 952
The council is comprised of ten existing regulators in the financial services sector, including the
Chairman of the Federal Reserve Board of Governors, the Chairman of the FDIC, and the
Comptroller of the Currency, and is chaired by the Secretary of the Treasury. This Council is
intended to ensure that U.S. financial regulators consider the safety and soundness of not only
individual financial institutions, but also of U.S. financial markets and systems as a whole.

(2) Recommendations
To further strengthen oversight of financial institutions to reduce risk, protect U.S.
financial markets and the economy, and safeguard the Deposit Insurance Fund, this Report
makes the following recommendations.
1. Complete OTS Dismantling. The Office of the Comptroller of the Currency (OCC)
should complete the dismantling of the Office of Thrift Supervision (OTS), despite
attempts by some OTS officials to preserve the agency’s identity and influence within
the OCC.
2. Strengthen Enforcement. Federal banking regulators should conduct a review of
their major financial institutions to identify those with ongoing, serious deficiencies,
and review their enforcement approach to those institutions to eliminate any policy of
deference to bank management, inflated CAMELS ratings, or use of short term profits
to excuse high risk activities.
948

See 2/7/2011 FDIC Final Rule of Assessments, Dividends, Assessment Base and Large Bank Pricing, RIN 3064.
Id.
950
See Sections 331, 332 and 334 of the Dodd-Frank Act.
951
2/7/2011 FDIC press release, “FDIC Approves Final Rule of Assessments, Dividends, Assessment Base and
Large Bank Pricing,” http://www.fdic.gov/news/news/press/2011/pr11028.html.
952
See Title I, Subtitle A, of the Dodd-Frank Act establishing the Financial Stability Oversight Council, including
Section 112(a) which provides its purposes and duties.
949

242
3. Strengthen CAMELS Ratings. Federal banking regulators should undertake a
comprehensive review of the CAMELS ratings system to produce ratings that signal
whether an institution is expected to operate in a safe and sound manner over a
specified period of time, asset quality ratings that reflect embedded risks rather than
short term profits, management ratings that reflect any ongoing failure to correct
identified deficiencies, and composite ratings that discourage systemic risks.
4. Evaluate Impacts of High Risk Lending. The Financial Stability Oversight Council
should undertake a study to identify high risk lending practices at financial
institutions, and evaluate the nature and significance of the impacts that these
practices may have on U.S. financial systems as a whole.

243

V. INFLATED CREDIT RATINGS:
CASE STUDY OF MOODY’S AND STANDARD & POOR’S
Moody’s Investors Service, Inc. (Moody’s) and Standard & Poor’s Financial Services
LLC (S&P), the two largest credit rating agencies (CRAs) in the United States, issued the AAA
ratings that made residential mortgage backed securities (RMBS) and collateralized debt
obligations (CDOs) seem like safe investments, helped build an active market for those
securities, and then, beginning in July 2007, downgraded the vast majority of those AAA ratings
to junk status. 953 The July mass downgrades sent the value of mortgage related securities
plummeting, precipitated the collapse of the RMBS and CDO secondary markets, and perhaps
more than any other single event triggered the financial crisis.
In the months and years of buildup to the financial crisis, warnings about the massive
problems in the mortgage industry were not adequately addressed within the ratings industry. By
the time the rating agencies admitted their AAA ratings were inaccurate, it took the form of a
massive ratings correction that was unprecedented in U.S. financial markets. The result was an
economic earthquake from which the aftershocks continue today.
Between 2004 and 2007, taking in increasing revenue from Wall Street firms, Moody’s
and S&P issued investment grade credit ratings for the vast majority of the RMBS and CDO
securities issued in the United States, deeming them safe investments even though many relied
on subprime and other high risk home loans. In late 2006, high risk mortgages began to go
delinquent at an alarming rate. Despite signs of a deteriorating mortgage market, Moody’s and
S&P continued for six months to issue investment grade ratings for numerous subprime RMBS
and CDO securities. In July 2007, as mortgage defaults intensified and subprime RMBS and
CDO securities began incurring losses, both companies abruptly reversed course and began
downgrading at record numbers hundreds and then thousands of their RMBS and CDO ratings,
some less than a year old. Investors like banks, pension funds, and insurance companies were
suddenly forced to sell off their RMBS and CDO holdings, because they had lost their
investment grade status. RMBS and CDO securities held by financial firms lost much of their
value, and new securitizations were unable to find investors. The subprime RMBS market
initially froze and then collapsed, leaving investors and financial firms around the world holding
unmarketable subprime RMBS securities plummeting in value. A few months later, the CDO
market collapsed as well.
Traditionally, investments holding AAA ratings have had a less than 1% probability of
incurring defaults. But in the financial crisis, the vast majority of RMBS and CDO securities
with AAA ratings incurred substantial losses; some failed outright. Investors and financial
institutions holding those AAA securities lost significant value. Those widespread losses led, in
turn, to a loss of investor confidence in the value of the AAA rating, in the holdings of major
U.S. financial institutions, and even in the viability of U.S. financial markets. Inaccurate AAA
953

S&P issues ratings using the “AAA” designation; Moody’s equivalent rating is “Aaa.” For ease of reference, this
Report will refer to both ratings as “AAA.”

244
credit ratings introduced systemic risk into the U.S. financial system and constituted a key cause
of the financial crisis.
The Subcommittee’s investigation uncovered a host of factors responsible for the
inaccurate credit ratings issued by Moody’s and S&P. One significant cause was the inherent
conflict of interest arising from the system used to pay for credit ratings. Credit rating agencies
were paid by the Wall Street firms that sought their ratings and profited from the financial
products being rated. The rating companies were dependent upon those Wall Street firms to
bring them business and were vulnerable to threats that the firms would take their business
elsewhere if they did not get the ratings they wanted. Rating standards weakened as each credit
rating agency competed to provide the most favorable rating to win business and greater market
share. The result was a race to the bottom.
Additional factors responsible for the inaccurate ratings include rating models that failed
to include relevant mortgage performance data, unclear and subjective criteria used to produce
ratings, a failure to apply updated rating models to existing rated transactions, and a failure to
provide adequate staffing to perform rating and surveillance services, despite record revenues.
Compounding these problems were federal regulations that required the purchase of investment
grade securities by banks and others, thereby creating pressure on the credit rating agencies to
issue investment grade ratings. Still another factor were the Securities and Exchange
Commission’s (SEC) regulations which required use of credit ratings by Nationally Recognized
Statistical Rating Organizations (NRSRO) for various purposes but, until recently, resulted in
only three NRSROs, thereby limiting competition. 954
Evidence gathered by the Subcommittee shows that credit rating agencies were aware of
problems in the mortgage market, including an unsustainable rise in housing prices, the high risk
nature of the loans being issued, lax lending standards, and rampant mortgage fraud. Instead of
using this information to temper their ratings, the firms continued to issue a high volume of
investment grade ratings for mortgage backed securities. If the credit rating agencies had issued
ratings that accurately exposed the increasing risk in the RMBS and CDO markets and
appropriately adjusted existing ratings in those markets, they might have discouraged investors
from purchasing high risk RMBS and CDO securities, slowed the pace of securitizations, and as
a result reduced their own profits. It was not in the short term economic self interest of either
Moody’s or S&P to provide accurate credit ratings for high risk RMBS and CDO securities,
because doing so would have hurt their own revenues. Instead, the credit rating agencies’ profits
became increasingly reliant on the fees generated by issuing a large volume of investment grade
ratings.
954

See, e.g., 1/2003 “Report on the Role and Function of Credit Rating Agencies in the Operation of the Securities
Markets,” prepared by the SEC, at 5-6 (explaining how the SEC came to rely on NRSRO credit ratings); 9/3/2009
“Credit Rating Agencies and Their Regulation,” report prepared by the Congressional Research Service, Report No.
R40613 (revised report issued 4/9/2010) (finding that, prior to the 2006 Credit Rating Agency Reform Act, “[t]he
SEC never defined the term NRSRO or specified how a CRA might become one. Its approach has been described as
essentially one of ‘we know-it-when-we-see-it.’ The resulting limited growth in the pool of NRSROs was widely
believed to have helped to further entrench the three dominant CRAs: by some accounts, they have about 98% of
total ratings and collect 90% of total rating revenue.” 9/3/2009 version of the report at 2-3).

245
Looking back after the first shock of the crisis, one Moody’s managing director offered
this critical self analysis:
“[W]hy didn’t we envision that credit would tighten after being loose, and housing prices
would fall after rising, after all most economic events are cyclical and bubbles inevitably
burst. Combined, these errors make us look either incompetent at credit analysis, or like
we sold our soul to the devil for revenue, or a little bit of both.” 955

A. Subcommittee Investigation and Findings of Fact
For more than one year, the Subcommittee conducted an in-depth investigation of the role
of credit rating agencies in the financial crisis, using as case histories Moody’s and S&P. The
Subcommittee subpoenaed and reviewed hundreds of thousands of documents from both
companies including reports, analyses, memoranda, correspondence, and email, as well as
documents from a number of financial institutions that obtained ratings for RMBS and CDO
securities. The Subcommittee also collected and reviewed documents from the SEC and reports
produced by academics and government agencies on credit rating issues. In addition, the
Subcommittee conducted nearly two dozen interviews with current and former Moody’s and
S&P executives, managers, and analysts, and consulted with credit rating experts from the SEC,
Federal Reserve, academia, and industry. On April 23, 2010, the Subcommittee held a hearing
and released 100 hearing exhibits.956
In connection with the hearing, the Subcommittee released a joint memorandum from
Chairman Levin and Ranking Member Coburn summarizing the investigation into the credit
rating agencies and the problems with the credit ratings assigned to RMBS and CDO securities.
The memorandum contained joint findings regarding the role of the credit rating agencies in the
Moody’s and S&P case histories, which this Report reaffirms. The findings of fact are as
follows.
1. Inaccurate Rating Models. From 2004 to 2007, Moody’s and S&P used credit
rating models with data that was inadequate to predict how high risk residential
mortgages, such as subprime, interest only, and option adjustable rate mortgages,
would perform.
2. Competitive Pressures. Competitive pressures, including the drive for market share
and need to accommodate investment bankers bringing in business, affected the credit
ratings issued by Moody’s and S&P.
3. Failure to Re-evaluate. By 2006, Moody’s and S&P knew their ratings of RMBS
and CDOs were inaccurate, revised their rating models to produce more accurate
ratings, but then failed to use the revised model to re-evaluate existing RMBS and
955

9/2007 anonymous Moody’s Managing Director after a Moody’s Town Hall meeting on the financial crisis, at
763, Hearing Exhibit 4/23-98.
956
“Wall Street and the Financial Crisis: The Role of Credit Rating Agencies,” before the U.S. Senate Permanent
Subcommittee on Investigations, S.Hrg. 11-673 (4/23/2010) (hereinafter “April 23, 2010 Subcommittee Hearing”).

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CDO securities, delaying thousands of rating downgrades and allowing those
securities to carry inflated ratings that could mislead investors.
4. Failure to Factor in Fraud, Laxity, or Housing Bubble. From 2004 to 2007,
Moody’s and S&P knew of increased credit risks due to mortgage fraud, lax
underwriting standards, and unsustainable housing price appreciation, but failed
adequately to incorporate those factors into their credit rating models.
5. Inadequate Resources. Despite record profits from 2004 to 2007, Moody’s and
S&P failed to assign sufficient resources to adequately rate new products and test the
accuracy of existing ratings.
6. Mass Downgrades Shocked Market. Mass downgrades by Moody’s and S&P,
including downgrades of hundreds of subprime RMBS over a few days in July 2007,
downgrades by Moody’s of CDOs in October 2007, and actions taken (including
downgrading and placing securities on credit watch with negative implications) by
S&P on over 6,300 RMBS and 1,900 CDOs on one day in January 2008, shocked the
financial markets, helped cause the collapse of the subprime secondary market,
triggered sales of assets that had lost investment grade status, and damaged holdings
of financial firms worldwide, contributing to the financial crisis.
7. Failed Ratings. Moody’s and S&P each rated more than 10,000 RMBS securities
from 2006 to 2007, downgraded a substantial number within a year, and, by 2010,
had downgraded many AAA ratings to junk status.
8. Statutory Bar. The SEC is barred by statute from conducting needed oversight into
the substance, procedures, and methodologies of the credit rating models.
9. Legal Pressure for AAA Ratings. Legal requirements that some regulated entities,
such as banks, broker-dealers, insurance companies, pension funds, and others, hold
assets with AAA or investment grade credit ratings, created pressure on credit rating
agencies to issue inflated ratings making assets eligible for purchase by those entities.

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B. Background
(1) Credit Ratings Generally
Credit ratings, which first gained prominence in the late 1800s, are supposed to provide
independent assessments of the creditworthiness of particular financial instruments, such as a
corporate bond, mortgage backed security, or CDO. Essentially, credit ratings predict the
likelihood that a debt will be repaid. 957
The United States has three major credit rating agencies: Moody’s, S&P, and Fitch
Rating Ltd., each of which is a NRSRO. By some accounts, these three firms issue about 98% of
total credit ratings and collect 90% of total credit rating revenue. 958
Paying for Ratings. Prior to the 1929 crash, credit rating agencies made money by
charging subscription fees to investors who were considering investing in the financial
instruments being rated. This method of payment was known as the “subscriber-pays” model.
Following the 1929 crash, the credit rating agencies fell out of favor. As one academic expert
has explained:
“Investors were no longer very interested in purchasing ratings, particularly given the
agencies’ poor track record in anticipating the sharp drop in bond values beginning in late
1929. … The rating business remained stagnant for decades.” 959
In 1970, the credit rating agencies changed to an “issuer-pays” model and have used it since. 960
In this model, the party seeking to issue a financial instrument, such as a bond or security, pays
the credit rating agency to analyze the credit risk and assign a credit rating to the financial
instrument.
Credit Ratings. Credit ratings use a scale of letter grades, from AAA to C, with AAA
ratings designating the safest investments and the other grades designating investments at greater
risk of default. 961 Investments with AAA ratings have historically had low default rates. For
example, S&P reported that its cumulative RMBS default rate by original rating class (through
September 15, 2007) was 0.04% for AAA initial ratings and 1.09% for BBB. 962 Financial
957

9/3/2009 “Credit Rating Agencies and Their Regulation,” report prepared by the Congressional Research Service,
Report No. R40613 (revised report issued 4/9/2010).
958
Id.
959
“How and Why Credit Rating Agencies Are Not Like Other Gatekeepers,” Frank Partnoy, University of San
Diego Law School Legal Studies Research Paper Series (5/2006), at 63.
960
9/3/2009 “Credit Rating Agencies and Their Regulation,” report prepared by the Congressional Research Service,
Report No. R40613 (revised report issued 4/9/2010). A few small credit rating agencies use the “subscriber-pays”
model. However, 99% of outstanding credit ratings are issued by agencies using the “issuer-pays” model. 1/2011
“Annual Report on Nationally Recognized Statistical Rating Organizations,” report prepared by the SEC, at 6.
961
The Moody’s rating system is similar in concept but with a slightly different naming convention. For example its
top rating scale is Aaa, Aa1, Aa2, Aa3, A1, A2, A3.
962
Prepared statement of Vickie A. Tillman, Executive Vice President, Standard & Poor’s Credit Market Services,
“The Role of Credit Rating Agencies in the Structured Finance Market,” before U.S. House of Representatives
Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises, Cong.Hrg. 110-62

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instruments bearing AAA through BBB- ratings are generally called “investment grade,” while
those with ratings below BBB- (or Baa3) are referred to as “below investment grade” or
sometimes as “junk” investments. Financial instruments that default receive a D rating from
S&P, but no rating at all by Moody’s.
Investors often rely on credit ratings to gauge the safety of a particular investment. A
former senior credit analyst at Moody’s explained that investors use ratings to:
“satisfy any number of possible needs: institutional investors such as insurance
companies and pension funds may have portfolio guidelines or requirements, investment
fund portfolio managers may have risk-based capital requirements or investment
committee requirements. And of course, private investors lacking the resources to do
separate analysis may use the published ratings as their principal determinant of the risk
of the investment.” 963
Legal Requirements. Some state and federal laws restrict the amount of below
investment grade bonds that certain investors can hold, such as pension funds, insurance
companies, and banks. Banks, for example, are limited by law in the amount of non-investment
grade bonds they can hold, and are sometimes required to post additional capital for those higher
risk instruments. 964 Broker-dealers and money market funds that register with the SEC operate
under similar restrictions. 965 The rationale behind these legal requirements is to require or
provide economic incentives for banks and other financial institutions to purchase investments
that have been identified as liquid and “safe” by an independent third party with a high level of
market expertise, such as a credit rating agency. Because so many federal and state statutes and
regulations require the purchase of investment grade ratings, issuers of securities and other
instruments work hard to obtain favorable credit ratings to ensure regulated financial institutions
can buy their products. As a result, those legal requirements not only increased the demand for
investment grade ratings, but also created pressure on credit rating agencies to issue top ratings
in order to make the rated products eligible for purchase by regulated financial institutions. The
legal requirements also generated more work and greater profits for the credit rating agencies.

(9/27/2007), S&P SEN-PSI 0001945-71, at 51. See also 1/2007 S&P document, “Annual 2006 Global Corporate
Default Study and Ratings Transitions.”
963
Prepared statement of Richard Michalek, Former VP/Senior Credit Officer, Moody's Investors Service, April 23,
2010 Subcommittee Hearing, at 2. See also 8/29/2006 email from Greg Lippmann, (Deutsche Bank), to Paolo
Pellegrini (Paulson & Co.) and others, DBSI_PSI_EMAIL01625848 at 52 (“Since a CDO without a triple-A-rated
senior tranche would be unmarketable, their imprimatur is indispensable.”); 11/13/2007 email from Ralph Silva
(Goldman Sachs), GS MBS-E-010023525, Tri-Lateral Combined Comments Attachment, GS MBS-E-01035693715, at 713 (“Investors in subprime related securities, especially higher rated bonds, have historically relied
significantly on bond ratings particularly when securities are purchased by structured investing vehicles.”); M&T
Bank Corporation v. Gemstone CDO VII, Ltd., Index No. 200800764 (N.Y. Sup.), Complaint, (June 16, 2008) at 12.
964
See, e.g., Section 28 (d) and (e) of the Federal Deposit Insurance Act, codified at 12 U.S.C. § 1831e(d)-(e).
965
See, e.g., Rule 15c3-1 of the Securities Exchange Act of 1934 (allowing broker-dealers to avoid “haircuts” for net
capital requirements provided they hold instruments with investment grade credit ratings); and Rule 2a-7 of the
Investment Company Act of 1940 (limiting money market funds to investments in “high quality” securities).

249
CRA Oversight and Accountability. The credit rating agencies are currently subject to
regulation by the SEC. In September 2006, Congress enacted the Credit Rating Agency Reform
Act, P.L. 109-291, to require SEC oversight of the credit rating industry. Among other
provisions, the law charged the SEC with designating NRSROs and defined that term for the first
time. By 2008, the SEC had granted NRSRO status to ten credit rating agencies (CRA). 966 The
Act also directed the SEC to conduct examinations of the CRAs, while at the same time
prohibiting the SEC from regulating the substance, criteria, or methodologies used in credit
rating models. 967
Prior to the 2006 Reform Act, CRAs had been subject to uneven or limited regulatory
oversight by state and federal agencies. The SEC had developed the NRSRO system, for
example, but had no clear statutory basis for establishing that system or exercising regulatory
authority over the credit rating agencies. Because the requirements for the NRSRO designation
were not defined in law, the SEC had designated only three rating agencies, limiting competition.
No government agency conducted routine examinations of the credit rating agencies or the
procedures they used to rate financial products.
In addition, private investors have generally been unable to hold CRAs accountable for
poor quality ratings or other malfeasance through civil lawsuits. 968 The CRAs have successfully
won dismissal of investor lawsuits, claiming that they are in the financial publishing business
and their opinions are protected under the First Amendment. 969 In addition, the CRAs have
attempted to avoid any legal liability for their ratings by making disclaimers to investors who
potentially may rely on their opinions. For example, S&P’s disclaimer reads in part as follows:
“Standard & Poor’s Ratings
Analytic services provided by Standard & Poor’s Ratings Services (‘Ratings Services’)
are the result of separate activities designed to preserve the independence and objectivity
of ratings opinions. The credit ratings and observations contained herein are solely
statements of opinion and not statements of fact or recommendations to purchase, hold,
or sell any securities or make any other investment decisions. Accordingly, any user of
the information contained herein should not rely on any credit rating or other opinion
contained herein in making any investment decision. Ratings are based on information
received by Ratings Services.” 970

966

The ten NRSROs are Moody’s; Standard & Poor’s; Fitch; A.M. Best Company, Inc.; DBRS Ltd.; Egan-Jones
Rating Company; Japan Credit Rating Agency, Ltd.; LACE Financial Corp.; Rating and Investment Information,
Inc.; and Realpoint LLC. 9/25/2008 “Credit Rating Agencies – NRSROs,” SEC, available at
http://www.sec.gov/answers/nrsro.htm.
967
See Sections 15E(c)(2) and 17(a)(1) of the Securities Exchange Act of 1934, as amended by the Credit Rating
Agency Reform Act of 2006, codified at 15 U.S.C. § 78o-7(c)(2) and § 78q(a)(1).
968
“How and Why Credit Rating Agencies Are Not Like Other Gatekeepers,” Frank Partnoy, University of San
Diego Law School Legal Studies Research Paper Series (5/2006), at 61.
969
Id.
970
Standard & Poor’s ClassicDirect website, https://www.eclassicdirect.com/NASApp/cotw/CotwLogin.jsp.

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RMBS and CDO Ratings. Over the last ten years, Wall Street firms have devised ever
more complex financial instruments for sale to investors, including the RMBS and CDO
securities that played a key role in the financial crisis. Because of the complexity of the
instruments, investors often relied heavily on credit ratings to determine whether they could or
should buy the products. For a fee, Wall Street firms helped design the RMBS and CDO
securities, worked with the credit rating agencies to obtain ratings, and sold the securities to
investors like pension funds, insurance companies, university endowments, municipalities, and
hedge funds. 971 Without investment grade ratings, Wall Street firms would have had a much
more difficult time selling these products to investors, because each investor would have had to
perform its own due diligence review of the financial instrument. Credit ratings simplified the
review and enhanced sales. Here’s how one federal bank regulatory handbook put it:
“The rating agencies perform a critical role in structured finance – evaluating the credit
quality of the transactions. Such agencies are considered credible because they possess
the expertise to evaluate various underlying asset types, and because they do not have a
financial interest in a security’s cost or yield. Ratings are important because investors
generally accept ratings by the major public rating agencies in lieu of conducting a due
diligence investigation of the underlying assets and the servicer.” 972
In addition to making structured finance products easier to sell to investors, Wall Street
firms used financial engineering to create high risk assets that were given AAA ratings – ratings
which are normally reserved for ultra-safe investments with low rates of return. Firms combined
high risk assets, such as the BBB tranches from subprime mortgage backed securities paying a
relatively high rate of return, in a new financial instrument, such as a CDO, that issued securities
with AAA ratings and were purportedly safe investments. Higher rates of return, combined with
AAA ratings, made subprime RMBS and related CDO securities especially attractive
investments.

(2) The Rating Process
Prior to the massive ratings downgrade in mid-2007, the RMBS and CDO rating process
followed a generally well-defined pattern. It began with the firm designing the securitization –
the arranger – sending a detailed proposal to the credit rating agency. The proposal contained
information on the mortgage pools involved and how the security would be structured. The
rating agency examined the proposal and provided comments and suggestions, before ultimately
agreeing to run the securitization through one of its models. The results from the model were
used by a rating committee within the agency to determine a final rating, which was then
published.

971

See 9/2009 “The Financial Crisis of 2007-2009: Causes and Circumstances,” report prepared by the Task Force
on the Cause of the Financial Crisis, Banking Law Committee, Section of Business Law, American Bar Association.
972
11/1997 Comptroller of the Currency Administrator of National Banks Comptroller’s Handbook, “Asset
Securitization,” at 11.

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Arrangers. For RMBS, the “arranger” – typically an investment bank – initiated the
rating process by sending to the credit rating agency information about a prospective RMBS and
data about the mortgage loans included in the prospective pool. The data typically identified the
characteristics of each mortgage in the pool including: the principal amount, geographic location
of the property, FICO score, loan to value ratio of the property, and type of loan. In the case of a
CDO, the process also included a review of the underlying assets, but was based primarily on the
ratings those assets had already received.
In addition to data on the assets, the arranger provided a proposed capital structure for the
financial instrument, identifying, for example, how many tranches would be created, how the
revenues being paid into the RMBS or CDO would be divided up among those tranches, and
how many of the tranches were designed to receive investment grade ratings. The arranger also
identified one or more “credit enhancements” for the pool to create a financial cushion that
would protect the designated investment grade tranches from expected losses. 973
Credit Enhancements. Arrangers used a variety of credit enhancements. The most
common was “subordination” in which the arranger “creates a hierarchy of loss absorption
among the tranche securities.” 974 To create that hierarchy, the arranger placed the pool’s
tranches in an order, with the lowest tranche required to absorb any losses first, before the next
highest tranche. Losses might occur, for example, if borrowers defaulted on their mortgages and
stopped making mortgage payments into the pool. Lower level tranches most at risk of having to
absorb losses typically received noninvestment grade ratings from the credit rating agencies,
while the higher level tranches that were protected from loss typically received investment grade
ratings. One key task for both the arrangers and the credit rating agencies was to calculate the
amount of “subordination” required to ensure that the higher tranches in a pool were protected
from loss and could be given AAA or other investment grade ratings.
A second common form of credit enhancement was “over-collateralization.” In this
credit enhancement, the arranger ensured that the revenues expected to be produced by the assets
in a pool exceeded the revenues designated to be paid out to each of the tranches. That excess
amount provided a financial cushion for the pool and was used to create an “equity” tranche,
which was the first tranche in the pool to absorb losses if the expected payments into the pool
were reduced. This equity tranche was subordinate to all the other tranches in the pool and did
not receive any credit rating. The larger the excess, the larger the equity tranche, and the larger
the cushion created to absorb losses and protect the more senior tranches in the pool. In some
pools, the equity tranche was also designed to pay a relatively higher rate of return to the party or
parties who held that tranche due to its higher risk.
Still another common form of credit enhancement was the creation of “excess spread,”
which involved designating an amount of revenue to pay the pool’s monthly expenses and other
liabilities, but ensuring that the amount was slightly more than what was likely needed for that

973

See, e.g., 7/2008 “Summary Report of Issues Identified in the Commission Staff’s Examination of Select Credit
Rating Agencies,” report prepared by the SEC, at 6-10.
974
Id. at 6.

252
purpose. Any funds not actually spent on expenses would provide an additional financial
cushion to absorb losses, if necessary.
Credit Rating Models. After the arranger submitted the pool information, proposed
capital structure, and proposed credit enhancements to the CRA, a CRA analyst was assigned to
evaluate the proposed financial instrument. The first step that most CRA analysts took was to
use a credit rating model to evaluate the rate of probable defaults or expected losses from the
asset pool. Credit rating models are mathematical constructs that analyze a large number of data
points related to the likelihood of an asset defaulting. RMBS rating models typically use
statistical analyses of past mortgage performance data to calculate expected RMBS default rates
and losses. In contrast, rather than statistics, CDO models use assumptions to build simulations
that can be used to project likely CDO defaults and losses.
The major RMBS credit rating model at Moody’s was called the Mortgage Metrics
Model (M3), while the S&P model was called the Loan Evaluation and Estimate of Loss System
(LEVELS). Both models used large amounts of statistical data related to the performance of
residential mortgages over time to develop criteria to analyze and rate submitted mortgage pools.
CRA analysts relied on these quantitative models to predict expected loss (Moody’s) or the
probability of default (S&P) for a pool of residential loans.
To derive the default or loss rate for an RMBS pool of residential mortgages, the CRA
analyst typically fed a “loan tape” – most commonly a spreadsheet provided by the arranger with
details on each loan – into the credit rating model. The rating model then automatically assessed
the expected credit performance of each loan in the pool and aggregated that information. To
perform this function, the model selected certain data points from the loan tape, such as borrower
credit scores or loan-to-value ratios, and compared that information to past mortgage data using
various assumptions, to determine the likely “frequency of foreclosure” and “loss severity” for
the particular types of mortgages under consideration. It then projected the level of “credit
enhancement,” or cushion needed to protect investment grade tranches from loss.
For riskier loans, the model required a larger cushion to protect investment grade tranches
from losses. For example, the model might project that 30% of the pool’s incoming revenue
would need to be set aside to ensure that the remaining 70% of incoming revenues would be
protected from any losses. Tranches representing the 70% of the incoming revenues could then
receive AAA ratings, while the remaining 30% of incoming revenues could be assigned to
support the payment of expenses, an equity tranche, or one or more of the subordinated tranches.
In addition to using quantitative models, Moody’s analysts also took into account
qualitative factors in their analysis of expected default and loss rates. For example, Moody’s
analysts considered the quality of the originators and servicers of the loans included in a pool.
Originators known for issuing poor quality loans or servicers known for providing poor quality
servicing could increase the loss levels calculated for a pool by a significant degree, up to a total

253
of 20%. 975 Moody’s only began incorporating that type of analysis into its M3 ratings process in
December 2006, only six months before the mass downgrades began. 976 In contrast, S&P
analysts did not conduct this type of analysis of mortgage originators and servicers during the
time period examined in this Report. 977
Credit Analysis. After obtaining the model’s projections for the cushion or
subordination needed to protect the pool’s investment grade tranches from loss, the CRA analyst
compared that projection to the tranches and credit enhancements actually proposed for the
particular pool to evaluate their sufficiency.
In addition to evaluating an RMBS pool’s expected default and loss rates, credit
enhancements, and capital structure, CRA analysts conducted a cash flow analysis of the interest
and principal payments to be made into the proposed pool to determine that the revenue
generated would be sufficient to pay the rates of return projected for each proposed tranche.
CRA analysts also reviewed the proposed legal structure of the financial instrument to
understand how it worked and how revenues and losses would be allocated. Some RMBS and
CDO transactions included complex “waterfalls” that allocated projected revenues and expected
losses among an array of expenses, tranches, and parties. The CRA analyst was expected to
evaluate whether the projected revenues were sufficient for the designated purposes. The CRA
review also included a legal analysis “ensuring that there was no structural risk presented due to
a failure to fulfill minimally necessary legal requirements … and confirming that the deal
documentation accurately and faithfully described the structure modeled by the Quant
[quantitative analyst].” 978
The process for assigning credit ratings to cash CDOs followed a similar path. CRA
analysts used CDO rating models to predict the CDO’s expected defaults and losses. However,
unlike RMBS statistical models that used past performance data to predict RMBS default and
loss rates, the CDO models relied primarily on the underlying ratings of the assets as well as on a
set of assumptions, such as asset correlation, and ran multiple simulations to predict how the
CDO pool would perform. The CDO simulation model at Moody’s was called “CDOROM,”
while the S&P CDO model was called the “CDO Evaluator,” which was repeatedly updated,
eventually to “Evaluator 3” or “E3.” Both companies’ CDO models analyzed the likely rates of
loss for assets within a particular CDO, but neither model re-analyzed any underlying RMBS

975

See 2008 SEC Examination Report for Moody’s Investor Services Inc., PSI-SEC (Moodys Exam Report)-140001-16, at 2-3, footnote 5.
976
Id. See also 7/2008 “Summary Report of Issues Identified in the Commission Staff’s Examination of Select
Credit Rating Agencies,” report prepared by the Securities and Exchange Commission, at 35, n.70.
977
In November 2008, after the time period examined in this Report, S&P published enhanced criteria
requiring the quality of mortgage originators and their underwriting processes to be factored into its
RMBS rating analyses. 6/24/2010 supplemental letter from S&P to the Subcommittee, Hearing Exhibit
4/23-108, Exhibit W, 11/25/2008 “Standard &Poor’s Enhanced Mortgage Originator and Underwriting
Review Criteria for U.S. RMBS.”
978
Prepared statement of Richard Michalek at 4, April 23, 2010 Subcommittee hearing.

254
securities included within a CDO. Instead, both models simply relied on the credit rating already
assigned to those securities. 979
After calculating the CDO’s default and loss rates and the cushion or subordination
needed to protect the pool’s investment grade tranches from loss, the CRA analyst examined the
CDO’s capital structure, credit enhancements, cash flow, and legal structure, in the same manner
as for an RMBS pool.
Evidence gathered by the Subcommittee indicates that it was common for a CRA analyst
to speak with the arranger or issuer of an RMBS or CDO to gather additional information and
discuss how a proposed financial instrument would work. Among other tasks, the analyst
worked with the arranger or issuer to evaluate the cash flows, the number and size of the
tranches, the size and nature of the credit enhancements, and the rating each tranche would
receive. Documents obtained by the Subcommittee show that CRA analysts and investment
bankers often negotiated over how specific deal attributes would affect the credit ratings of
particular tranches.
Rating Recommendations. After completing analysis of a proposed financial
instrument, the CRA analyst developed a rating recommendation for each proposed RMBS or
CDO tranche that would be used to issue securities, and presented the recommended ratings
internally to a rating committee composed of other analysts and managers within the credit rating
agency. The rating committee reviewed and then voted on the analyst’s recommendations. Once
the committee approved the ratings, a rating committee memorandum was prepared
memorializing the actions taken, and the ratings were provided to the arranger. If the arranger
indicated that the issuer accepted the ratings, the credit rating agency made the ratings available
publicly. If dissatisfied, the arranger could appeal a ratings decision. 980 The entire rating
process typically took several weeks, sometimes longer for novel or complex transactions.
RMBS and CDO Groups. Moody’s and S&P had separate groups and analysts
responsible for rating RMBS and CDOs. In 2007, Moody’s RMBS ratings were issued by the
RMBS Group, which had about 25 analysts, while it had about 50 derivatives analysts in its
Derivatives Group, whose responsibilities included rating CDOs. 981 Each group responsible for
rating these products was headed by a Team Managing Director who reported to a Group
Managing Director. Both the RMBS Group and the Derivatives Group were housed in the
Structured Finance Group. The setup was similar at S&P. At S&P, RMBS ratings were issued
by the RMBS Group, which had about 90 analysts in 2007, while CDO ratings were issued by

979

Synthetic CDOs, on the other hand, involved a different type of credit analysis. Unlike RMBS and cash CDOs,
synthetic CDOs do not contain any cash producing assets, but simply reference them. The revenues paid into
synthetic CDOs do not come from mortgages or other assets, but from counterparties betting that the referenced
assets will lose value or suffer a specified credit event.
980
7/2008 “Summary Report of Issues Identified in the Commission Staff’s Examination of Select Credit Rating
Agencies,” report prepared by the Securities and Exchange Commission, at 9.
981
3/11/2008 compliance letter from Moody’s to SEC, SEC_OCIE_CRA_011212; SEC_OCIE_CRA_011214; and
SEC_OCIE_CRA_011217.

255
the Global CDO Group, with about 85 analysts. 982 Each group was headed by a Managing
Director, and housed in the Structured Finance Ratings Group which was headed by a Senior
Managing Director.
During the years reviewed by the Subcommittee, at Moody’s, the CEO and Chairman of
the Board was Raymond W. McDaniel, Jr.; the Senior Managing Director of the Structured
Finance Group was Brian Clarkson; the head of the RMBS Group was Pramila Gupta; and the
heads of the Derivatives CDO analysts were Gus Harris and Yuri Yoshizawa. At S&P, the
President was Kathleen A. Corbet; the Senior Managing Director of the Structured Finance
Ratings Group was Joanne Rose; the head of the RMBS Group was Frank Raiter and then Susan
Barnes; and the head of the Global CDO Group was Richard Gugliada.
Surveillance. Following an initial credit rating, both Moody’s and S&P conducted
ongoing surveillance of all rated securities to evaluate a product’s ongoing credit risk and to
determine whether its credit rating should be affirmed, upgraded, or downgraded over the life of
the security. Both used automated surveillance tools that, on a monthly basis, flagged securities
whose performance indicated their rating might need to be adjusted to reflect the current risk of
default or loss. Surveillance analysts investigated the flagged securities and presented
recommendations for rating changes to a ratings committee.
Within both the RMBS and Derivatives Groups, in 2007, Moody’s had 15 RMBS
surveillance analysts and 24 derivatives surveillance analysts, respectively. 983 S&P maintained a
Structured Finance Surveillance Group that included an RMBS Surveillance Group and a CDO
Surveillance Group, with about 20 analysts in each group in 2007. 984 Each of these groups was
headed by a Managing Director who reported to the head of the Structured Finance Group. The
Managing Director for Moody’s surveillance analysts was Nicolas Weill. At S&P, the Managing
Director of the Structured Finance Surveillance Group was Peter D’Erchia.
Meaning of Ratings. The purpose of a credit rating, whether stated at first issuance or
after surveillance, is to forecast a security’s probability of default (S&P) or expected loss
(Moody’s). If the security has an extremely low likelihood of default, credit rating agencies
grant it AAA status. For securities with a higher probability of default, they provide lower credit
ratings.
When asked about the meaning of an AAA rating, Moody’s CEO Raymond McDaniel
explained that it represented the safest type of investment and had the same significance across
various types of financial products. 985 While all credit rating agencies leave room for error by
designing procedures to downgrade or upgrade ratings over time, Moody’s and S&P told the
Subcommittee that their ratings are designed to take into account future performance. Prior to
982

3/14/2008 compliance letter from S&P to SEC, SEC_OCIE_CRA_011218-59, at 32-34, and at 43-44.
3/11/2008 compliance letter from Moody’s to SEC, SEC_OCIE_CRA_011212; SEC_OCIE_CRA_011214; and
SEC_OCIE_CRA_011217.
984
3/14/2008 compliance letter from S&P to SEC, SEC_OCIE_CRA_011218-59, at 48-49, and at 56-57.
985
Subcommittee interview of Raymond McDaniel (4/6/2010).
983

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the financial crisis, the numbers of downgrades and upgrades for structured finance ratings were
substantially lower. 986

(3) Record Revenues
From 2004 to 2007, Moody’s and S&P produced a record number of ratings and a record
amount of revenues in structured finance, primarily because of RMBS and CDO ratings. A 2008
S&P submission to the SEC indicates, for example, that from 2004 to 2007, S&P issued more
than 5,500 RMBS ratings and more than 835 mortgage related CDO ratings. 987 The number of
ratings it issued increased each year, going from approximately 700 RMBS ratings in 2002, to
more than 1,600 in 2006. Its mortgage related CDO ratings increased tenfold, going from 34 in
2002, to over 340 in 2006. 988 Moody’s experienced similar growth. According to a 2008
Moody’s submission to the SEC, from 2004 to 2007, it issued over 4,000 RMBS ratings and over
870 CDO ratings. 989 Moody’s also increased the ratings it issued each year, going from
approximately 540 RMBS and 45 CDO ratings in 2002, to more than 1,200 RMBS and 360 CDO
ratings in 2006. 990
Both companies charged substantial fees to rate a product. To obtain an RMBS or CDO
rating during the height of the market, for example, S&P charged issuers generally from $40,000
to $135,000 to rate tranches of an RMBS and from $30,000 to $750,000 to rate the tranches of a
CDO. 991 Surveillance fees, which may be imposed at the initial rating or annually, ranged
generally from $5,000 to $50,000 for these mortgage backed securities. 992
Revenues increased dramatically over time as well. Moody’s gross revenues from
RMBS and CDO ratings more than tripled in five years, from over $61 million in 2002, to over
$260 million in 2006.993 S&P’s revenue increased even more. In 2002, S&P’s gross revenue for
RMBS and mortgage related CDO ratings was over $64 million and increased to over $265
986

See, e.g., 3/26/2010 “Fitch Ratings Global Structured Finance 2009 Transition and Default Study,” prepared by
Fitch.
987
3/14/2008 compliance letter from S&P to SEC, SEC_OCIE_CRA_011218-59, at 20. These numbers represent
the RMBS or CDO pools that were presented to S&P which then issued ratings for multiple tranches per RMBS or
CDO pool.
988
Id.
989
3/11/2008 compliance letter from Moody’s to SEC, SEC_OCIE_CRA_011212 and SEC_OCIE_CRA_011214.
These numbers represent the RMBS or CDO pools that were presented to Moody’s which then issued ratings for
multiple tranches per RMBS or CDO pool. The data Moody’s provided to the SEC on CDOs represented ABS
CDOs, some of which may not be mortgage related. However, by 2004, most, but not all, CDOs relied primarily on
mortgage related assets such as RMBS securities. Subcommittee interview of Gary Witt, former Managing Director
of Moody’s RMBS Group (10/29/2009).
990
Id.
991
See, e.g., “U.S. Structured Ratings Fee Schedule Residential Mortgage-Backed Financings and Residential
Servicer Evaluations,” prepared by S&P, S&P-PSI 0000028-35; and “U.S. Structured Ratings Fee Schedule
Collateralized Debt Obligations Amended 3/7/2007,” prepared by S&P, S&P-PSI 0000036-50.
992
Id.
993
3/11/2008 compliance letter from Moody’s to SEC, SEC_OCIE_CRA_011212 and SEC_OCIE_CRA_011214.
The 2002 figure does not include gross revenue from CDO ratings as this figure was not readily available due to the
transition of Moody’s accounting systems.

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million in 2006.994 In that same period, revenues from S&P’s structured finance group tripled
from about $184 million in 2002 to over $561 million in 2007. 995 In 2002, structured finance
ratings contributed 36% to S&P’s bottom line; in 2007, they made up 49% of all S&P revenues
from ratings. 996 In addition, from 2000 to 2007, operating margins at the CRAs averaged
53%. 997 Altogether, revenues from the three leading credit rating agencies more than doubled
from nearly $3 billion in 2002 to over $6 billion in 2007. 998
Both companies also saw their share prices shoot up. The chart below reflects the
significant price increase that Moody’s shares experienced as a result of increased revenues
during the years of explosive growth in the ratings of both RMBS and CDOs. 999 Moody’s
percentage gain in share price far outpaced the major investment banks on Wall Street from 2002
to 2006.

994

3/14/2008 compliance letter from S&P to SEC, SEC_OCIE_CRA_011218-59, at 18-19.
Id. at 19.
996
Id.
997
“Debt Watchdogs: Tamed or Caught Napping?” New York Times (12/7/2008). The operating margin is a ratio
used to measure a company’s operating efficiency and is calculated by dividing operating income by net sales.
998
“Revenue of the Three Credit Rating Agencies: 2002-2007,” chart prepared by Subcommittee using data from
thismatter.com/money, Hearing Exhibit 4/23-1g.
999
“How and Why Credit Rating Agencies Are Not Like Other Gatekeepers,” Frank Partnoy, University of San
Diego Law School Legal Studies Research Paper Series (5/2006), at 67.
995

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Standard & Poor’s is a division of The McGraw-Hill Companies (NYSE: MHP), whose share
price also increased significantly during this time period. 1000
Top CRA executives received millions of dollars each year in compensation. Moody’s
CEO, Raymond McDaniel, for example, earned more than $8 million in total compensation in
2006. 1001 Brian Clarkson, the head of Moody’s structured finance group, received $3.8 million
in total compensation in the same year. 1002 Upper and middle managers also did well. Moody’s
managing directors made between $385,000 to about $460,000 in compensation in 2007, before
1000

See “The McGraw-Hill Companies, Inc.,” Google Finance, http://www.google.com/finance?q=mcgraw+hill.
3/19/2008 Moody’s 2008 Proxy Statement, “Summary Compensation Table.”
1002
Id.
1001

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stock options. Including stock options, their total compensation ranged from almost $700,000 to
over $930,000. 1003 S&P managers received similar compensation. 1004

C. Mass Credit Rating Downgrades
In the years leading up to the financial crisis, Moody’s and S&P together issued
investment grade ratings for tens of thousands of RMBS and CDO securities, earning substantial
sums for issuing these ratings. In mid-2007, however, both credit rating agencies suddenly
reversed course and began downgrading hundreds, then thousands of RMBS and CDO ratings.
These mass downgrades shocked the financial markets, contributed to the collapse of the
subprime RMBS and CDO secondary markets, triggered sales of assets that had lost investment
grade status, and damaged holdings of financial firms worldwide. Perhaps more than any other
single event, the sudden mass downgrades of RMBS and CDO ratings were the immediate
trigger for the financial crisis.
To understand why the credit rating agencies suddenly reversed course and how their
RMBS and CDO ratings downgrades impacted the financial markets, it is useful to review trends
in the housing and mortgage backed security markets in the years leading up to the crisis.

(1) Increasing High Risk Loans and Unaffordable Housing
The years prior to the financial crisis saw increasing numbers of borrowers buying not
only more homes than usual, but higher priced homes, requiring larger and more frequent loans
that were constantly refinanced. By 2005, about 69% of Americans had purchased homes, the
largest percentage in American history. 1005 In the five-year period running up to 2006, the
median home price, adjusted for inflation, increased 50 percent. 1006 The pace of home price
appreciation was on an unsustainable trajectory, as is illustrated by the chart below. 1007

1003

4/27/2007 email from Yuri Yoshizawa to Noel Kirnon, PSI-MOODYS-RFN-000044 (Attachment, PSIMOODYS-RFN-000045).
1004
See S&P’s “Global Compensation Guidelines 2007/2008,” S&P-SEC 067708, 067733, 067740, and 067747.
1005
See 3/1/2006 “Housing Vacancies and Homeownership Annual Statistics: 2005,” U.S. Census Bureau.
1006
“Housing Bubble Trouble,” The Weekly Standard (4/10/2006).
1007
1/25/2010, “Estimation of Housing Bubble: Comparison of Recent Appreciation vs. Historical Trends,” chart
prepared by Paulson & Co. Inc., Hearing Exhibit 4/23-1j.

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Subprime lending fueled the overall growth in housing demand and housing price
increases that began in the late 1990s and ran through mid-2006. 1008 “Between 2000 and 2007,
backers of subprime mortgage-backed securities – primarily Wall Street and European
investment banks – underwrote $2.1 trillion worth of [subprime mortgage backed securities]
business, according to data from trade publication Inside Mortgage Finance.” 1009 By 2006,
subprime lending made up 13.5% of mortgage lending in the United States, a fivefold increase
from 2001. 1010 The graph below reflects the unprecedented growth in subprime mortgages
between 2003 and 2006. 1011
1008

See 3/2009 U.S. Department of Housing and Urban Development Interim Report to Congress, “Root Causes of
the Foreclosure Crisis,” at 36. See also “A Brief History of Credit Rating Agencies: How Financial Regulation
Entrenched this Industry’s Role in the Subprime Mortgage Debacle of 2007 – 2008,” Mercatus on Policy (10/2009),
at 2.
1009
“The Roots of the Financial Crisis: Who is to Blame?” The Center for Public Integrity (5/6/2009),
http://www.publicintegrity.org/investigations/economic_meltdown/articles/entry/1286.
1010
3/2009 U.S. Department of Housing and Urban Development Interim Report to Congress, “Root Causes of the
Foreclosure Crisis,” at 7.
1011
1/25/2010, “Mortgage Subprime Origination,” chart prepared by Paulson & Co. Inc., PSI-Paulson&Co-02-000121, at 4.

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To enable subprime borrowers to buy homes that they would not traditionally qualify for,
lenders began using exotic mortgage products that reduced or eliminated the need for large down
payments and allowed monthly mortgage payments that reflected less than the fully amortized
cost of the loan. For example, some types of mortgages allowed borrowers to obtain loans for
100% of the cost of a house; make monthly payments that covered only the interest owed on the
loan; or pay artificially low initial interest rates on loans that could be refinanced before higher
interest rates took effect. In 2006, Barron’s reported that first-time home buyers put no money
down 43% of the time in 2005; interest only loans made up approximately 33% of new
mortgages and home equity loans in 2005, up from 0.6% in 2000; by 2005, 15% of borrowers
owed at least 10% more than their home was worth; and more than $2.5 trillion in adjustable rate
mortgages were due to reset to higher interest rates in 2006 and 2007. 1012
These new mortgage products were not confined to subprime borrowers; they were also
offered to prime borrowers who used them to purchase expensive homes. Many borrowers also
used them to refinance their homes and take out cash against their homes’ increased value.
Lenders also increased their issuance of home equity loans and lines of credit that offered low

1012

“The No-Money-Down Disaster,” Barron’s (8/21/2006).

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initial interest rates or interest-only features, often taking a second lien on an already mortgaged
home. 1013
Subprime loans, Alt A mortgages that required little or no documentation, and home
equity loans all posed a greater risk of default than traditional 30-year, fixed rate mortgages. By
2006, the combined market share of these higher risk home loans totaled nearly 50% of all
mortgage originations. 1014
At the same time housing prices and high risk loans were increasing, the National
Association of Realtors’ housing affordability index showed that, by 2006, housing had become
less affordable than at any point in the previous 20 years, as presented in the graph below. 1015
The “affordability index” measures how easy it is for a typical family to afford a typical
mortgage. Higher numbers mean that homes are more affordable, while lower numbers mean
that homes are generally less affordable.

By the end of 2006, the concentration of higher risk loans for less affordable homes had set the
stage for an unprecedented number of credit rating downgrades on mortgage related securities.

1013

3/2009 U.S. Department of Housing and Urban Development Interim Report to Congress, “Root Causes of the
Foreclosure Crisis,” at 8.
1014
Id.
1015
11/7/2007 “Would a Housing Crash Cause a Recession?” report prepared by the Congressional Research
Service, at 3-4.

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(2) Mass Downgrades
Although ratings downgrades for investment grade securities are supposed to be
relatively infrequent, in 2007, they took place on a massive scale that was unprecedented in U.S.
financial markets. Beginning in July 2007, Moody’s and S&P downgraded hundreds and then
thousands of RMBS and CDO ratings, causing the rated securities to lose value and become
much more difficult to sell, and leading to the subsequent collapse of the RMBS and CDO
secondary markets. The massive downgrades made it clear that the original ratings were not
only deeply flawed, but the U.S. mortgage market was much riskier than previously portrayed.
Housing prices peaked in 2006. In late 2006, as the increase in housing prices slowed or
leveled out, refinancing became more difficult, and delinquencies in subprime residential
mortgages began to multiply. By January 2007, nearly 10% of all subprime loans were
delinquent, a 68% increase from January 2006. 1016 Housing prices then began to decline,
exposing more borrowers who had purchased homes that they could not afford and could no
longer refinance. Subprime lenders also began to close their doors, which the U.S. Department
of Housing and Urban Development marked as the beginning of economic trouble:
“Arguably, the first tremors of the national mortgage crisis were felt in early December
2006 when two sizeable subprime lenders, Ownit Mortgage Solutions and Sebring
Capital, failed. The Wall Street Journal described the closing of these firms as ‘sending
shock waves’ through the mortgage-bond market. … By late February 2007 when the
number of subprime lenders shuttering their doors had reached 22, one of the first
headlines announcing the onset of a ‘mortgage crisis’ appeared in the Daily Telegraph of
London.” 1017
During the first half of 2007, despite the news of failing subprime lenders and increasing
subprime mortgage defaults, Moody’s and S&P continued to issue AAA credit ratings for a large
number of RMBS and CDO securities. In the first week of July 2007 alone, S&P issued over
1,500 new RMBS ratings, a number that almost equaled the average number of RMBS ratings it
issued in each of the preceding three months. 1018 From July 5 to July 11, 2007, Moody’s issued
approximately 675 new RMBS ratings, nearly double its weekly average in the prior month. 1019
The timing of this surge of new ratings on the eve of the mass downgrades is troubling, and
raises serious questions about whether S&P and Moody’s quickly pushed these ratings through
to avoid losing revenues before the mass downgrades began.

1016

1/25/2010 “60 Day+Delinquency and Foreclosure,” chart prepared by Paulson & Co. Inc., PSI-Paulson&Co-020001-21, at 15. Subcommittee interview of Sihan Shu (2/24/2010).
1017
3/2009 U.S. Department of Housing and Urban Development Interim Report to Congress, “Root Causes of the
Foreclosure Crisis,” at 2 [citations omitted].
1018
6/24/2010 supplemental response from S&P to the Subcommittee, at 12, Hearing Exhibit 4/23-108.
1019
Data compiled by the Subcommittee using 6/14/2007 “Structured Finance New Ratings: May 28, 2007 through
June 13, 2007,” Moody’s; 6/28/2007 “Structured Finance New Ratings: June 11, 2007 through June 27, 2007,”
Moody’s; 7/5/2007 “Structured Finance New Ratings: June 18, 2007 through July 4, 2007,” Moody’s; and
7/12/2007 “Structured Finance New Ratings: June 25, 2007 through July 11, 2007,” Moody’s.

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In the second week of July 2007, S&P and Moody’s initiated the first of several mass
rating downgrades, shocking the financial markets. On July 10, S&P placed on credit watch, the
ratings of 612 subprime RMBS with an original value of $7.35 billion, 1020 and two days later
downgraded 498 of these securities. 1021 On July 10, Moody’s downgraded 399 subprime RMBS
with an original value of $5.2 billion.1022 By the end of July, S&P had downgraded more than
1,000 RMBS and almost 100 CDO securities. 1023 This volume of rating downgrades was
unprecedented in U.S. financial markets.
The downgrades created significant turmoil in the securitization markets, as investors
were required to sell off RMBS and CDO securities that had lost their investment grade status,
RMBS and CDO securities in the investment portfolios of financial firms lost much of their
value, and new securitizations were unable to find investors. The subprime RMBS secondary
market initially froze and then collapsed, leaving financial firms around the world holding
suddenly unmarketable subprime RMBS securities that were plummeting in value. 1024
Neither Moody’s nor S&P produced any meaningful contemporaneous documentation
explaining their decisions to issue mass downgrades in July 2007, disclosing how the mass
downgrades by the two companies happened to occur two days apart, or analyzing the possible
impact of their actions on the financial markets. When Moody’s CEO, Raymond McDaniel, was
asked about the July downgrades, he indicated that he could not recall any aspect of the decisionmaking process. 1025 He told the Subcommittee that he was merely informed that the downgrades
would occur, but was not personally involved in the decision. 1026

1020

6/24/2010 supplemental response from S&P to the Subcommittee, Exhibit H, Hearing Exhibit 4/23-108
(7/11/2007 “S&PCORRECT: 612 U.S. Subprime RMBS Classes Put On Watch Neg; Methodology Revisions
Announced,” S&P RatingsDirect (correcting the original version issued on 7/10/2007)).
1021
6/24/2010 supplemental response from S&P to the Subcommittee, Exhibit I, Hearing Exhibit 4/23-108
(7/12/2007 “Various U.S. First-Lien Subprime RMBS Classes Downgraded,” S&P’s RatingsDirect).
1022
7/30/2010 supplemental response from Moody’s to the Subcommittee, Hearing Exhibit 4/23-106 (7/12/2007
Moody’s Structured Finance Teleconference and Web Cast, “RMBS and CDO Rating Actions,” at MOODYSPSI2010-0046899-900). The $5.2 billion also included the original value of 32 tranches that were put on review for
possible downgrade that same day.
1023
6/24/2010 supplemental response from S&P to the Subcommittee, at 3, 6, Hearing Exhibit 4/23-108. According
to this letter, the July downgrades were not the first to take place during 2007. The letter reports that, altogether in
the first six months of 2007, S&P downgraded 739 RMBS and 25 CDOs. These downgrades, however, took place
on multiple days over a six-month period. Prior to July, Moody’s had downgraded approximately 480 RMBS
during the first six months of 2007 (this figure was calculated by the Subcommittee based on information from
Moody’s “Structured Finance: Changes & Confirmations” reports for that time period).
1024
See 3/19/2007 “Subprime Mortgages: Primer on Current Lending and Foreclosure Issues,” report prepared by
the Congressional Research Service, Report No. RL33930; 5/2008 “The Subprime Lending Crisis: Causes and
Effects of the Mortgage Meltdown,” report prepared by CCH, at 13.
1025
Subcommittee interview of Ray McDaniel (4/6/2010).
1026
Id. At S&P, no emails were produced that explained the decision-making process, but a few indicated that, prior
to the mass downgrades, the RMBS Group was required to make a presentation to the chief executive of its parent
company about “how we rated the deals and are preparing to deal with the fallout (downgrades).” 3/18/2007 email
from Michael Gutierrez to William LeRoy, Hearing Exhibit 4/23-52a; 3/2007 S&P internal email chain, “Preempting bad press on the subprime situation,” Hearing Exhibit 4/23-52c.

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Although neither Moody’s nor S&P produced documentation on its internal decisionmaking process related to the mass downgrades, one bank, UBS, produced an email in
connection with a court case indicating that Moody’s was meeting with a series of investment
banks to discuss the upcoming downgrades. In an email dated July 5, 2007, five days before the
mass downgrades began, a UBS banker sent an email to a colleague about a meeting with
Moody’s:
“I just got off the phone with David Oman …. Apparently they’re meeting w/ Moodys to
discuss impacts of ABS subprime downgrades, etc. Has he been in contact with the
[UBS] Desk? It sounds like Moodys is trying to figure out when to start downgrading,
and how much damage they’re going to cause – they’re meeting with various investment
banks.” 1027
It is unclear how much notice Moody’s or S&P provided to investment banks regarding their
planned actions.
One senior executive at S&P, Ian Bell, the head of European structured finance ratings,
provided his own views in a post-mortem analysis a few days after the initial downgrades. He
expressed frustration and concern that S&P had mishandled its public explanation of the mass
downgrades, writing:
“[O]ne aspect of our handling of the subprime that really concerns me is what I
see as our arrogance in our messaging. Maybe it is because I am away from the
center of the action and so have more of an ‘outsider’s’ point of view. …
I listened to the telecon TWICE. That guy [who asked a question about the
timing of the mass downgrades] was not a ‘jerk’. He asked an entirely legitimate
question that we should have anticipated. He then got upset when we totally
fluffed our answer. We did sound like the Nixon White House. Instead of
dismissing people like him or assuming some dark motive on their part, we should
ask ourselves how we could have so mishandled the answer to such an obvious
question.
I have thought for awhile now that if this company suffers from an Arthur
Andersen event, we will not be brought down by a lack of ethics as I have never
seen an organisation more ethical, nor will it be by greed as this plays so little role
in our motivations; it will be arrogance.” 1028
In August 2007, Eric Kolchinsky, a managing director of Moody’s CDO analysts, sent an
urgent email to his superiors about the pressures to rate still more new CDOs in the midst of the
mass downgrades:
1027

7/5/2007 email from David Goldsteen (UBS) to Dayna Corlito (UBS), “ABS Subprime & Moody’s
downgrades,” UBS-CT 021485, Hearing Exhibit 4/23-94o.
1028
7/13/2007 internal S&P email from Ian Bell to Tom Gillis and Joanne Rose, Hearing Exhibit 4/23-54a.

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“[E]ach of our current deals is in crisis mode. This is compounded by the fact that we
have introduced new criteria for ABS CDOs. Our changes are a response to the fact that
we are already putting deals closed in the spring on watch for downgrade. This is
unacceptable and we cannot rate the new deals in the same away [sic] we have done
before. ... [B]ankers are under enormous pressure to turn their warehouses into CDO
notes.” 1029
Both Moody’s and S&P continued to rate new CDO securities despite their companies’
accelerating downgrades.
In October 2007, Moody’s began downgrading CDOs on a daily basis, using the month to
downgrade more than 270 CDO securities with an original value of $10 billion. 1030 In December
2007, Moody’s downgraded another $14 billion in CDOs, and placed another $105 billion on
credit watch. Moody’s calculated that, overall in 2007, “8725 ratings from 2116 deals were
downgraded and 1954 ratings from 732 deals were upgraded,” which means it issued four times
as many downgrades as upgrades. 1031 S&P calculated that, during the second half of 2007, it
1032
downgraded over 9,000 RMBS ratings.
The downgrades continued into 2008. On January 30, 2008, S&P took action on over
6,300 subprime RMBS securities and over 1,900 CDO securities – meaning it either downgraded
their ratings or placed the securities on credit watch with negative implications. The affected
RMBS and CDO securities represented issuance amounts of approximately $270.1 billion and
$263.9 billion, respectively. 1033
The rating downgrades affected a wide range of RMBS and CDO securities. Some of the
downgraded securities had been rated years earlier; others had received AAA ratings less than 12
months before. For example, in April 2007, both Moody’s and S&P gave AAA ratings to three
tranches of approximately $1.5 billion in a cash CDO known as Vertical ABS CDO 2007-1. Six
months later, the majority of the CDO’s tranches were downgraded to junk status; in 2008, the
CDO’s ratings were withdrawn, it assets were liquidated, and the AAA rated securities became
worthless. In another case, in February and March 2007, Moody’s and S&P gave AAA ratings
to 5 tranches of about a $1 billion RMBS securitization known as GSAMP Trust 2007-FM2. In
late 2007, both credit rating agencies began downgrading the securities; by 2008, they began

1029

8/22/2007 email from Moody’s Eric Kolchinsky, “Deal Management,” Hearing Exhibit 4/23-42.
7/30/2010 supplemental response from Moody’s to the Subcommittee, at 9, Hearing Exhibit 4/23-106. In an
email sent in the midst of these CDO downgrades, one Moody’s analyst commented to a colleague: “You’re right
about CDOs as WMD – but it’s only CDOs backed by subprime that are WMD.” 11/27/2007 email from William
May to Deepali Advani, Hearing Exhibit 4/23-58.
1031
2/2008 “Structured Finance Ratings Transitions, 1983-2007,” Credit Policy Special Comment prepared by
Moody’s, at 4.
1032
6/24/2010 supplemental response from S&P to the Subcommittee, at 6, Hearing Exhibit 4/23-108.
1033
6/24/2010 supplemental response from S&P to the Subcommittee, Exhibit N, Hearing Exhibit 4/23-108
(1/30/2008 “S&P Takes Action on 6,389 U.S. Subprime RMBS Ratings and 1,953 CDO Ratings,” S&P’s
RatingsDirect).
1030

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downgrading the AAA rated securities, and by August 2009 S&P had downgraded all its
tranches to noninvestment grade or junk status.
One more striking example involved a $1.6 billion hybrid CDO known as Delphinus
CDO 2007-1, Ltd., which was downgraded a few months after its rating was issued. Moody’s
gave AAA ratings to seven of its tranches and S&P to six tranches in July and August 2007,
respectively, but began downgrading its securities by the end of the year, and by the end of 2008,
had fully downgraded its AAA rated securities to junk status. 1034
Analysts have determined that, by 2010, over 90% of subprime RMBS securities issued
in 2006 and 2007 and originally rated AAA had been downgraded to junk status by Moody’s and
S&P. 1035
Percent of the Original AAA Universe
Currently Rated Below Investment Grade
Vintage Prime
Fixed
2004
3%
2005
39%
2006
81%
2007
92%

Prime
ARM
9%
58%
90%
90%

Alt-A
Fixed
10%
73%
96%
98%

Alt-A
ARM
17%
81%
98%
96%

Option
ARM
50%
76%
97%
97%

Subprime
11%
53%
93%
91%

Source: BlackRock Solutions as of February 8, 2010.
Prepared by the U.S. Senate Permanent Subcommittee on Investigations, April 2010.

D. Ratings Deficiencies
The Subcommittee’s investigation uncovered a host of factors responsible for the
inaccurate credit ratings assigned by Moody’s and S&P to RMBS and CDO securities. Those
factors include the drive for market share, pressure from investment banks to inflate ratings,
inaccurate rating models, and inadequate rating and surveillance resources. In addition, federal
regulations that limited certain financial institutions to the purchase of investment grade financial
instruments encouraged investment banks and investors to pursue and credit rating agencies to
provide those top ratings. All these factors played out against the backdrop of an ongoing
conflict of interest that arose from how the credit rating agencies earned their income. If the
1034

For more details about these three examples, see “Fact Sheet for Three Examples of Failed AAA Ratings,”
prepared by the Subcommittee based on information from S&P and Moody’s websites.
1035
See “Percent of the Original AAA Universe Currently Rated Below Investment Grade,” chart prepared by the
Subcommittee using data from BlackRock Solutions, Hearing Exhibit 4/23-1i. See also 3/2008 “Understanding the
Securitization of Subprime Mortgage Credit,” report prepared by Federal Reserve Bank of New York staff, no. 318,
at 58 and table 31 (“92 percent of 1st-lien subprime deals originated in 2006 as well as … 91.8 percent of 2nd-lien
deals originated in 2006 have been downgraded.”). See also “Regulatory Use of Credit Ratings: How it Impacts the
Behavior of Market Constituents,” University of Westminster - School of Law International Finance Review
(2/2009), at 65-104 (citations omitted) (“As of February 2008, Moody’s had downgraded at least one tranche of
94.2% of the subprime RMBS issues it rated in 2006, including 100% of the 2006 RMBS backed by second-lien
loans, and 76.9% of the issues rated in 2007. In its rating transition report, S&P wrote that it had downgraded
44.3% of the subprime tranches it rated between the first quarter of 2005 and the third quarter of 2007.”)

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credit rating agencies had issued ratings that accurately exposed the increasing risk in the RMBS
and CDO markets, they may have discouraged investors from purchasing those securities,
slowed the pace of securitizations, and as a result reduced their own profits. It was not in the
short term economic self-interest of either Moody’s or S&P to provide accurate credit risk
ratings for high risk RMBS and CDO securities.

(1) Awareness of Increasing Credit Risks
The evidence shows that analysts within Moody’s and S&P were aware of the increasing
risks in the mortgage market in the years leading up to the financial crisis, including higher risk
mortgage products, increasingly lax lending standards, poor quality loans, unsustainable housing
prices, and increasing mortgage fraud. Yet for years, neither credit rating agency heeded
warnings – even their own – about the need to adjust their processes to accurately reflect the
increasing credit risk.
Moody’s and S&P began issuing public warnings about problems in the mortgage market
as early as 2003, yet continued to issue inflated ratings for RMBS and CDO securities before
abruptly reversing course in July 2007. Moody’s CEO testified before the House Committee on
Oversight and Government Reform, for example, that Moody’s had been warning the market
continuously since 2003, about the deterioration in lending standards and inflated housing prices.
“Beginning in July 2003, we published warnings about the increased risks we saw and
took action to adjust our assumptions for the portions of the residential mortgage backed
securities (“RMBS”) market that we were asked to rate.” 1036
Both S&P and Moody’s published a number of articles indicating the potential for deterioration
in RMBS performance. 1037 For example, in September 2005, S&P published a report entitled,
“Who Will Be Left Holding the Bag?” The report contained this strong warning:
“It’s a question that comes to mind whenever one price increase after another – say, for
ridiculously expensive homes – leaves each succeeding buyer out on the end of a longer
1036

Prepared statement of Raymond W. McDaniel, Moody’s Chairman and Chief Executive Officer, “Credit Rating
Agencies and the Financial Crisis,” before the U.S. House of Representatives Committee on Oversight and
Government Reform, Cong.Hrg. 110-155 (10/22/2008), at 1 (hereinafter “10/22/2008 McDaniel prepared
statement”).
1037
See, e.g., 6/24/2010 supplemental response from S&P to the Subcommittee, Hearing Exhibit 4/23-108
(4/20/2005 Subprime Lenders: Basking in the Glow of A Still-Benign Economy, but Clouds Forming on the
Horizon” S&P; 9/13/2005 “Simulated Housing Market Decline Reveals Defaults Only in Lowest-Rated U.S. RMBS
Transactions,” S&P; and 1/19/2006 “U.S. RMBS Market Still Robust, But Risks Are Increasing and Growth
Drivers Are Softening” S&P). “Housing Market Downturn in Full Swing,” Moody’s Economy.com (10/4/2006);
1/18/2007 “Special Report: Early Defaults Rise in Mortgage Securitization,” Moody’s ; and 9/21/2007 “Special
Report: Moody’s Subprime Mortgage Servicer Survey on Loan Modifications,” Moody’s. See 10/22/2008
McDaniel prepared statement at 13-14. In addition, in March 2007 Moody’s warned of the possible effect that
downgrades of subprime mortgage backed securities might have on its structured finance CDOs. See 3/2007 “The
Impact of Subprime Residential Mortgage-Backed Securities on Moody’s-Rated Structured Finance CDOs: A
Preliminary Review,” Moody’s.

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and longer limb: When the limb finally breaks, who’s going to get hurt? In the red-hot
U.S. housing market, that’s no longer a theoretical riddle. Investors are starting to ask
which real estate vehicles carry the most risk – and if mortgage defaults surge, who will
end up suffering the most.” 1038
Internal Moody’s and S&P emails further demonstrate that senior management and
ratings personnel were aware of the deteriorating mortgage market and increasing credit risk. In
June 2005, for example, an outside mortgage broker who had seen the head of S&P’s RMBS
Group, Susan Barnes, on a television program sent her an email warning about the “seeds of
destruction” in the financial markets. He noted that no one at the time seemed interested in
fixing the looming problems:
“I have contacted the OTS, FDIC and others and my concerns are not addressed. I have
been a mortgage broker for the past 13 years and I have never seen such a lack of
attention to loan risk. I am confident our present housing bubble is not from supply and
demand of housing, but from money supply. In my professional opinion the biggest
perpetrator is Washington Mutual. 1) No income documentation loans. 2) Option ARMS
(negative amortization) ... 5) 100% financing loans. I have seen instances where WAMU
approved buyers for purchase loans; where the fully indexed interest only payments
represented 100% of borrower’s gross monthly income. We need to stop this
madness!!!” 1039
Several email chains among S&P employees in the Servicer Evaluation Group in
Structured Finance demonstrate a clear awareness of mortgage market problems. One from
September 2006, for example, with the subject line “Nightmare Mortgages,” contains an
exchange with startling frankness and foresight. One S&P employee circulated an article on
mortgage problems, stating: “Interesting Business Week article on Option ARMs, quoting
anecdotes involving some of our favorite servicers.” Another responded: “This is frightening. It
wreaks of greed, unregulated brokers, and ‘not so prudent’ lenders.” 1040 Another employee
commenting on the same article said: “I’m surprised the OCC and FDIC doesn’t come
downharder [sic] on these guys - this is like another banking crisis potentially looming!!” 1041
Another email chain that same month shows that at least some employees understood the
significance of problems within the mortgage market nine months before the mass downgrades
began. One S&P employee wrote: “I think [a circulated article is] telling us that underwriting
fraud; appraisal fraud and the general appetite for new product among originators is resulting in
loans being made that shouldn’t be made. … [I]f [Eliot] Spitzer [then-New York Attorney
General] could prove coercion this could be a RICO offense!” A colleague responded that the
1038

“Economic Research: Who Will be Left Holding the Bag?” S&P’s RatingsDirect (9/12/2005).
7/22/2005 email from Michael Blomquist (Resource Realty) to Susan Barnes (S&P), “Washington Mutual,”
Hearing Exhibit 4/23-45.
1040
9/2/2006 email from Robert Mackey to Richard Koch, “Nightmare Mortgages,” Hearing Exhibit 4/23-46a.
1041
9/5/2006 email from Michael Gutierrez to Richard Koch and Edward Highland, “RE: Nightmare Mortgages,”
Hearing Exhibit 4/23-46b.
1039

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head of the S&P Surveillance Group “told me that broken down to loan level what she is seeing
in losses is as bad as high 40’s – low 50% I’d love to be able to publish a commentary with this
data but maybe too much of a powder keg.” 1042
In a third email chain from August 2006, commenting on an article about problems in the
mortgage market, a director in the S&P Servicer Evaluation Group wrote: “I’m not surprised;
there has been rampant appraisal and underwriting fraud in the industry for quite some time as
pressure has mounted to feed the origination machine.” 1043 Another S&P director in the same
group wrote in an October 2006 internal email about a news article entitled, “More Home Loans
Go Sour – Though New Data Show Rising Delinquencies, Lenders Continue to Loosen
Mortgage Standards”: “Pretty grim news as we suspected – note also the ‘mailing in the keys
and walking away’ epidemic has begun – I think things are going to get mighty ugly next
year!” 1044 Still another S&P email the same month circulated an article entitled, “Home Prices
Keep Sliding; Buyers Sit Tight,” and remarked: “[J]ust curious...are there ever any positive
repo[r]ts on the housing market?” 1045
An email among several S&P employees a few months later circulated an article entitled,
“The Mortgage Mess Spreads” with one person noting ominously: “This is like watching a
hurricane from FL [Florida] moving up the coast slowly towards us. Not sure if we will get hit
in full or get trounced a bit or escape without severe damage ....” 1046
Government Warnings. At the same time the credit rating agencies were publishing
reports and circulating articles internally about the deteriorating mortgage market, several
government agencies issued public warnings about lax lending standards and increasing
mortgage fraud. A 2004 quarterly report by the FDIC, for example, sounded an alarm over the
likelihood of more high risk loan delinquencies:
“[I]t is unlikely that home prices are poised to plunge nationwide, even when mortgage
rates rise .... The greater risk to insured institutions is the potential for increased credit
delinquencies and losses among highly leveraged, subprime, and ARM borrowers. These

1042

9/29/2006 email from Michael Gutierrez, Director at S&P, PSI-S&P-RFN-000029.
8/7/2006 email from Richard Koch, Director at S&P, Hearing Exhibit 4/23-1d.
1044
10/20/2006 email from Michael Gutierrez to Richard Koch and others, Hearing Exhibit 4/23-47.
1045
10/26/2006 email from Ernestine Warner to Robert Pollsen, Hearing Exhibit 4/23-48.
1046
3/9/2007 email from KP Rajan, Hearing Exhibit 4/23-51. See also 2/14/2006 email from Robert Pollsen, PSIS&P-RFN-000038 (forwarding “Coming Home to Roost,” Barron’s (2/13/2006), which includes the sentences “The
red-hot U.S. housing market may be fast approaching its date with destiny .... much anxiety is being focused on a
looming ‘reset problem.’”); see also 3/25/2007 S&P internal email chain, PSI-S&P-RFN-000006 (forwarding
“Slow-Motion Train Wreck Picks Up Speed,” Barron’s (3/26/2007)). 3/26/2007 Moody’s internal email, PSI-S&PRFN-000003 (forwarding “Slow-Motion Train Wreck Picks Up Speed,” Barron’s (3/26/2007)); 10/19/2006
Moody’s internal email, PSI-MOODYS-RFN-000009 (forwarding “More Home Loans Go Sour—Though New
Data Show Rising Delinquencies, Lenders Continue to Loosen Mortgage Standards,” The Wall Street Journal
(10/19/2006)); 9/6/2006 Moody’s internal email, PSI-MOODYS-RFN-000001 (forwarding “The No-Money-Down
Disaster.” Barron’s (8/21/2006)).
1043

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high-risk segments of mortgage lending may drive overall mortgage loss rates higher if
home prices decline or interest rates rise.” 1047
In 2005, in its 11th Annual Survey on Credit Underwriting Practices, the Office of the
Comptroller of the Currency (OCC), which oversees nationally chartered banks, described a
significant lowering of retail lending standards, noting it was the first time in the survey’s history
that a net lowering of retail lending practices had been observed. The OCC wrote:
“Retail lending has undergone a dramatic transformation in recent years as banks have
aggressively moved into the retail arena to solidify market positions and gain market
share. Higher credit limits and loan-to-value ratios, lower credit scores, lower minimum
payments, more revolving debt, less documentation and verification, and lengthening
amortizations - have introduced more risk to retail portfolios.” 1048
Starting in 2004, federal law enforcement agencies also issued multiple warnings about
fraud in the mortgage marketplace. For example, the Federal Bureau of Investigation (FBI)
made national headlines when it warned that mortgage fraud had the potential to be a national
epidemic, 1049 and issued a 2004 report describing how mortgage fraud was becoming more
prevalent. The report noted: “Criminal activity has become more complex and loan frauds are
expanding to multitransactional frauds involving groups of people from top management to
industry professionals who assist in the loan application process.” 1050 The FBI also testified
about the problem before Congress:
“The potential impact of mortgage fraud on financial institutions and the stock market is
clear. If fraudulent practices become systemic within the mortgage industry and
mortgage fraud is allowed to become unrestrained, it will ultimately place financial
institutions at risk and have adverse effects on the stock market.” 1051
In 2006, the FBI reported that the number of Suspicious Activity Reports describing mortgage
fraud had risen significantly since 2001. 1052

1047

“Housing Bubble Concerns and the Outlook for Mortgage Credit Quality,” FDIC Outlook (Spring 2004),
available at http://www.fdic.gov/bank/analytical/regional/ro20041q/na/infocus.html.
1048
6/2005 “Survey of Credit Underwriting Practices,” report prepared by the Office of the Comptroller of the
Currency, at 6, available at http://www.occ.gov/publications/publications-by-type/survey-credit-underwriting/pubsurvey-cred-under-2005.pdf.
1049
“FBI: Mortgage Fraud Becoming an ‘Epidemic,’” USA Today (9/17/2004).
1050
FY 2004 “Financial Institution Fraud and Failure Report,” prepared by the Federal Bureau of Investigation,
available at http://www.fbi.gov/stats-services/publications/fiff_04.
1051
Prepared statement of Chris Swecker, Assistant Director of the Criminal Investigative Division, Federal Bureau
of Investigation, “Mortgage Fraud and Its Impact on Mortgage Lenders,” before the U.S. House of Representatives
Financial Services Subcommittee on Housing and Community Opportunity, Cong.Hrg. 108-116 (10/7/2004), at 2.
1052
“Financial Crimes Report to the Public: Fiscal Year 2006, October 1, 2005 – September 30, 2006,” prepared by
the Federal Bureau of Investigation, available at http://www.fbi.gov/statsservices/publications/fcs_report2006/financial-crimes-report-to-the-public-2006-pdf/view.

272
The FBI’s fraud warnings were repeated by industry analysts. The Mortgage Bankers
Association’s Mortgage Asset Research Institute (MARI), for example, had been reporting
increasing fraud in mortgages for years. In April 2007, MARI reported a 30% increase in 2006
in loans with suspected mortgage fraud. The report also noted that while 55% of overall fraud
incidents reported to MARI involved loan application fraud, the percentage of subprime loans
with loan application fraud was even higher at 65%. 1053
Press Reports. Warnings in the national press concerning the threat posed by
deteriorating mortgages and unsustainable housing prices were also prevalent. A University of
Florida website has collected dozens of these articles, many of which were published in 2005.
The headlines include: “Fed Debates Pricking the U.S. Housing ‘Bubble’,” New York Times,
May 31, 2005; “Yale Professor Predicts Housing ‘Bubble’ Will Burst,” NPR, June 3, 2005;
“Cover Story: Bubble Bath of Doom” [warning of overheated real estate market], Washington
Post, July 4, 2005; “Housing Affordability Hits 14-Year Low,” The Wall Street Journal,
December 22, 2005; “Foreclosure Rates Rise Across the U.S.,” NPR, May 30, 2006; “For Sale
Signs Multiply Across U.S.,” The Wall Street Journal, July 20, 2006; and “Housing Gets Ugly,”
New York Times, August 25, 2006. 1054
Had Moody’s and S&P heeded their own warnings as well as the warnings in government
reports and the national press, they might have issued more conservative, including fewer AAA,
ratings for RMBS and CDO securities from 2005 to 2007; required additional credit
enhancements earlier; and issued ratings downgrades earlier and with greater frequency,
gradually letting the air out of the housing bubble instead of puncturing it with the mass
downgrades that began in July 2007. The problem, however, was that neither company had a
financial incentive to assign tougher credit ratings to the very securities that for a short while
increased their revenues, boosted their stock prices, and expanded their executive compensation.
Instead, ongoing conflicts of interest, inaccurate credit rating models, and inadequate rating and
surveillance resources made it possible for Moody’s and S&P to ignore their own warnings about
the U.S. mortgage market. In the longer run, these decisions cost both companies dearly.
Between January 2007 and January 2009, the stock price for both The McGraw-Hill Companies
(S&P’s parent company) and Moody’s fell nearly 70%, and neither share price has fully
recovered.

(2) CRA Conflicts of Interest
In transitioning from the fact that the rating agencies issued inaccurate ratings to the
question of why they did, one of the primary issues is the conflicts of interest inherent in the
“issuer-pays” model. Under this system, the firm interested in profiting from an RMBS or CDO
security is required to pay for the credit rating needed to sell the security. Moreover, it requires
the credit rating agencies to obtain business from the very companies paying for their rating
1053

4/2007 “Ninth Periodic Mortgage Fraud Case Report to Mortgage Bankers Association,” prepared by the
Mortgage Asset Research Institute, LLC, at 10.
1054
“Business Library – The Housing Bubble,” University of Florida George A. Smathers Libraries,
http://www.uflib.ufl.edu/cm/business/cases/housing_bubble.htm.

273
judgment. The result is a system that creates strong incentives for the rating agencies to inflate
their ratings to attract business, and for the issuers and arrangers of the securities to engage in
“ratings shopping” to obtain the highest ratings for their financial products.
The conflict of interest inherent in an issuer-pay setup is clear: rating agencies are
incentivized to offer the highest ratings, as opposed to offering the most accurate ratings, in order
to attract business. It is much like a person trying to sell a home and hiring a third-party
appraiser to make sure it is worth the price. Only, with the credit rating agencies, it is the seller
who hires the appraiser on behalf of the buyer – the result is a misalignment of interests. This
system, currently permitted by the SEC, underlies the “issuers-pay” model.
The credit rating agencies assured Congress and the investing public that they could
“manage” these conflicts, but the evidence indicates that the drive for market share and
increasing revenues, ratings shopping, and investment bank pressures have undermined the
ratings process and the quality of the ratings themselves. Multiple former Moody’s and S&P
employees told the Subcommittee that, in the years leading up to the financial crisis, gaining
market share, increasing revenues, and pleasing investment bankers bringing business to the firm
assumed a higher priority than issuing accurate RMBS and CDO credit ratings.

(a) Drive for Market Share
Prior to the explosive growth in revenues generated from the ratings of mortgage backed
securities, the credit rating agencies had a reputation for exercising independent judgment and
taking pride in requiring the information and performing the analysis needed to issue accurate
credit ratings. A journalist captured the rating agency culture in a 1995 article when she wrote:
“Ask a [company’s] treasurer for his opinion of rating agencies, and he’ll probably rank them
somewhere between a trip to the dentist and an IRS audit. You can’t control them, and you can’t
escape them.” 1055
But a number of analysts who worked for Moody’s during the 1990s and into the new
decade told the Subcommittee that a major cultural shift took place at the company around 2000.
They told the Subcommittee that, prior to 2000, Moody’s was academically oriented and
conservative in its issuance of ratings. That changed, according to those interviewed, with the
rise of Brian Clarkson who worked at Moody’s from 1990 to 2008, and rose from Group
Managing Director of the Global Asset Backed Finance Group to President and Chief Operating
Officer of Moody’s. These employees indicated that during Mr. Clarkson’s tenure Moody’s
began to focus less on striving for accurate credit ratings, and more on increasing market share
and “servicing the client,” who was identified as the investment banks that brought business to
the firm.
This testimonial evidence that increasing revenues gained importance is corroborated by
documents obtained by the Subcommittee during the course of its investigation. For example, in
a March 2000 email, the head of Moody’s Structured Finance Group in Paris wrote that she was
1055

“Rating the Rating Agencies,” Treasury and Risk Management (7/1995).

274
leaving the firm, because she was uncomfortable with “the lack of a strategy I can clearly
understand, other than maximize the market share and the gross margin with insufficient
resources.” 1056 A 2002 Moody’s survey of the Structured Finance Group (SFG) also documents
the shift, finding that most employees who responded to the survey indicated that SFG business
objectives included: generating increased revenue; increasing market share; fostering good
relationships with issuers and investors; and delivering high quality ratings and research.
According to the survey results: “When asked about how business objectives were translated
into day-to-day work, most agreed that writing deals was paramount, while writing research and
developing new products and services received less emphasis. Most agreed that there was a
strong emphasis on relationships with issuers and investment bankers.” 1057
A 2003 email sent by Mr. Clarkson to one of his senior managers about the performance
of the Structured Finance Real Estate and Derivatives Group further demonstrates the firm’s
emphasis on market share. Mr. Clarkson wrote:
“Noel and his team handled the increase and met or exceeded almost every financial and
market share objective and goal for his Group. … Through November total revenue for
Noel’s Group has grown 16% compared with budgeted growth of 10% with CMBS
[Commercial Mortgage Backed Securities] up 19% and Derivatives up 14%. This was
achieved by taking advantage of increased CMBS issuance volumes and by meeting or
slightly exceeding market share objectives for the Group. The Derivatives team has
achieved a year to date 96% market share compared to a target share of 95%. This is
down approximately 2% from 2002 primarily due to not rating Insurance TRUP CDO’s
and rating less subordinated tranches. Noel’s team is considering whether we need to
refine our approach to these securities. The CMBS team was able to meet their target
share of 75%. However this was down from 84% market share in 2002 primarily due to
competitor’s [sic] easing their standards to capture share.” 1058
This performance analysis notes that the team being reviewed put up a strong performance
despite competitors “easing their standards to capture [market] share.” It also notes that for
certain CDOs and “less subordinated tranches,” Moody’s might “need to refine our approach.”
The clear emphasis of the analysis is increasing revenues and meeting “market share objectives,”
and appears silent with regard to issuing accurate ratings.
One former Moody’s senior vice president, Mark Froeba, told the Subcommittee that Mr.
Clarkson used fear and intimidation tactics to make analysts spend less time on the ratings
process and work more cooperatively with investment bankers. 1059 At the Subcommittee
hearing, another former Moody’s senior analyst, Richard Michalek, described a meeting that he
1056

3/19/2000 email from Catherine Gerst to Debra Perry, Moody’s Chief Administrative Officer, PSI-MOODYSRFN-000039.
1057
5/2/2002 Moody’s SFG 2002 Associate Survey, prepared by Metrus Group, at 4, Hearing Exhibit 4/23-92a.
1058
12/1/2003 email from Brian Clarkson to Noel Kirnon, Managing Director of Real Estate and Derivatives Group,
Hearing Exhibit 4/23-15.
1059
Subcommittee interview of Mark Froeba (10/27/2010). See also 6/2/2010 statement of Mark Froeba submitted
by request to the Financial Crisis Inquiry Commission.

275
had with Mr. Clarkson shortly after he was promoted to head of the Structured Finance Group.
Mr. Michalek stated:
“In my ‘discussion,’ I was told that he [Mr. Clarkson] had met with the investment banks
to learn how our Group was working with the various clients and whether there were any
analysts who were either particularly difficult or particularly valuable. I was named … as
two of the more ‘difficult’ analysts who had a reputation for making ‘too many’
comments on the deal documentation.
The conversation was quite uncomfortable, and it didn’t improve when he described how
he had previously had to fire [another analyst], a former leader of the Asset-Backed
group who he otherwise considered a ‘good guy.’ He described how, because of the
numerous complaints he had received about [that analyst’s] extreme conservatism,
rigidity and insensitivity to client perspective, he was left with no choice. … He then
asked me to convince him why he shouldn’t fire me. … [T]he primary message of the
conversation was plain: further complaints from the ‘customers’ would very likely
abruptly end my career at Moody’s.” 1060
Several former Moody’s employees have testified that Moody’s employees were fired
when they challenged senior management with a more conservative approach to rating RMBS
and CDO securities. According to Mr. Froeba:
“[T]he fear was real, not rare and not at all healthy. You began to hear of analysts, even
whole groups of analysts, at Moody’s who had lost their jobs because they were doing
their jobs, identifying risks and describing them accurately.” 1061
A former Managing Director, Eric Kolchinsky, one of the senior managers in charge of the
business line which rated subprime backed CDOs at Moody’s stated:
“Managers of rating groups were expected by their supervisors and ultimately the Board
of Directors of Moody’s to build, or at least maintain, market share. It was an unspoken
understanding that loss of market share would cause a manager to lose his or her job.” 1062
He described how market share concerns were addressed:
“Senior management would periodically distribute emails detailing their departments’
market share. These emails were limited to Managing Directors only. Even if the market
share dropped by a few percentage points, managers would be expected to justify

1060

Prepared statement of Richard Michalek at 13-14, April 23, 2010 Subcommittee hearing.
6/2/2010 statement of Mark Froeba, submitted by request to the Financial Crisis Inquiry Commission, at 4.
1062
Prepared Statement of Eric Kolchinsky, Former Managing Director at Moody’s Investor Service, April 23, 2010
Subcommittee Hearing, at 1.
1061

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‘missing’ the deals which were not rated. Colleagues have described enormous pressure
from their superiors when their market share dipped.” 1063
A Moody’s email sent in early October 2007 to Managing Directors of the CDO Group
illustrates the intense pressure placed on CDO analysts to retain or increase market share, even in
the midst of the onset of the financial crisis. 1064 This email reported that for CDOs:
“Market share by deal count [had] dropped to 94%, though by volume it’s 97%. It’s
lower than the 98+% in prior quarters. Any reason for concern, are issuers being more
selective to control costs (is Fitch cheaper?) or is it an aberration[?]”1065
This email was sent during the same period when Moody’s began downgrading CDOs on a daily
basis, eventually downgrading almost 1,500 CDO securities with an original value likely in the
tens of billions in the last three months of 2007 alone. Despite the internal recognition at
Moody’s that previously rated CDOs were at substantial risk for downgrades, the email shows
management pressing the CDO Managing Directors about losing a few points of market share in
the middle of an accelerating ratings disaster.
The drive for market share was similarly emphasized at S&P. One former S&P
Managing Director in charge of the RMBS Ratings Group described it as follows:
“By 2004 the structured finance department at S&P was a major source of revenue and
profit for the parent company, McGraw-Hill. Focus was directed at collecting market
share and revenue data on a monthly basis from the various structured finance rating
groups and forwarded to the finance staff at S&P.” 1066
Numerous internal emails illustrate not only S&P’s drive to maintain or increase market share,
but also how that pressure negatively impacted the ratings process, placing revenue concerns
ahead of ratings quality. For example, in a 2004 email, S&P management discussed the
possibility of changing its CDO ratings criteria in response to an “ongoing threat of losing
deals”:
“We are meeting with your group this week to discuss adjusting criteria for rating
CDOs of real estate assets this week because of the ongoing threat of losing
deals.” 1067

1063

Id. at 2.
10/5/2007 email from Sunil Surana to Yuri Yoshizawa, and others, “RE: 3Q Market Coverage-CDO,” Hearing
Exhibit 4/23-24a.
1065
Id.
1066
Prepared statement of Frank Raiter, Former Managing Director at S&P, April 23, 2010 Subcommittee Hearing,
at 5.
1067
8/17/2004 email from S&P manager, “RE: SF CIA: CDO methodology invokes reactions,” Hearing Exhibit
4/23-3 [emphasis in the original].
1064

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On another occasion, in response to a 2005 email stating that S&P’s ratings model
needed to be adjusted to account for the higher risks associated with subprime loans, a director in
RMBS research, Frank Parisi, wrote that S&P could have released a different ratings model,
LEVELS 6.0, months ago “if we didn’t have to massage the sub-prime and Alt-A numbers to
preserve market share.” 1068 This same director wrote in an email a month later: “Screwing with
criteria to ‘get the deal’ is putting the entire S&P franchise at risk – it’s a bad idea.” 1069
A 2004 email chain among members of the S&P Analytical Policy Board, which set
standards to ensure integrity for the ratings process, provides additional evidence of how market
share concerns affected the credit ratings process. In that chain of emails, a senior S&P
manager, Gale Scott, openly expressed concern about how a criteria change could impact market
share and cause S&P to lose business. Ms. Scott wrote: “I am trying to ascertain whether we
can determine at this point if we will suffer any loss of business because of our decision and if
so, how much? We should have an effective way of measuring the impact of our decision over
time.” 1070 After a colleague reassured her that he did not believe it would cause a loss of
business, she reiterated her concerns, noting, “I think the criteria process must include
appropriate testing and feedback from the marketplace.”
On another occasion, an August 2006 email reveals the frustration that at least one S&P
employee in the Servicer Evaluation Group felt about the dependence of his employer on the
issuers of structured finance products, going so far as to describe the rating agencies as having “a
kind of Stockholm syndrome” – the phenomenon in which a captive begins to identify with the
captor:
“They’ve become so beholden to their top issuers for revenue they have all developed a
kind of Stockholm syndrome which they mistakenly tag as Customer Value creation.” 1071
In October 2007, Moody’s Chief Credit Officer explicitly raised concerns at the highest
levels of the firm that it was losing market share “[w]ith the loosening of the traditional duopoly”
between Moody’s and S&P, noting that Fitch was becoming an “acceptable substitute.” 1072 In a
memorandum entitled, “Credit Policy issues at Moody’s suggested by the subprime/liquidity
crisis,” the author set out to answer the question, “how do rating agencies compete?” 1073 The
candid reflection noted that in an ideal situation “ratings quality” would be paramount, but the
need to maintain, and even increase, market share, coupled with pressures exerted by the
companies seeking credit ratings, were also affecting the quality of its ratings. Moody’s Chief
Credit Officer wrote the following lament:
1068

3/23/2005 email from Frank Parisi to Thomas Warrack, and others, Hearing Exhibit 4/23-5.
6/14/2005 email from Frank Parisi to Frank Bruzese, and others, Hearing Exhibit 4/23-6.
1070
11/9/2004 email from Gale Scott to Perry Inglis, Hearing Exhibit 4/23-4.
1071
8/8/2006 email from Michael Gutierrez to Richard Koch, “RE: Loss Severity vs gross/net proceeds,” Hearing
Exhibit 4/23-14.
1072
10/21/2007 Moody’s internal email, Hearing Exhibit 4/23-24b. Although this email is addressed to and from the
CEO, the Chief Credit Officer told the Subcommittee that he wrote the memorandum attached to the email.
Subcommittee interview of Andy Kimball (4/15/2010).
1073
Id.
1069

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“Analysts and MDs [Managing Directors] are continually ‘pitched’ by bankers, issuers,
investors – all with reasonable arguments – whose views can color credit judgment,
sometimes improving it, other times degrading it (we ‘drink the kool-aid’). Coupled with
strong internal emphasis on market share & margin focus, this does constitute a ‘risk’ to
ratings quality.” 1074
By the time his memorandum was written, both Moody’s and S&P were already issuing
thousands of RMBS and CDO rating downgrades, admitting that their prior investment grade
ratings had not accurately reflected the risk that these investments would fail.

(b) Investment Bank Pressure
At the same time Moody’s and S&P were pressuring their RMBS and CDO analysts to
increase market share and revenues, the investment banks responsible for bringing RMBS and
CDO business to the firms were pressuring those same analysts to ease rating standards. Former
Moody’s and S&P analysts and managers interviewed by the Subcommittee described, for
example, how investment bankers pressured them to get their deals done quickly, increase the
size of the tranches that received AAA ratings, and reduce the credit enhancements protecting
the AAA tranches from loss. They also pressed the CRA analysts and managers to ignore a host
of factors that could be seen as increasing credit risk. Sometimes described as “ratings
shopping,” the analysts described how some investment bankers threatened to take their business
to another credit rating agency if they did not get the favorable treatment they wanted. The
evidence collected by the Subcommittee indicates that the pressure exerted by investment banks
frequently impacted the ratings process, enabling the banks to obtain more favorable treatment
than they otherwise would have received.
The type of blatant pressure exerted by some investment bankers is captured in a 2006
email in which a UBS banker warned an S&P senior manager not to use a new, more
conservative rating model for CDOs. He wrote:
“[H]eard you guys are revising your residential mbs [mortgage backed security] rating
methodology - getting very punitive on silent seconds. [H]eard your ratings could be 5
notches back of [Moody’s] equivalent. [G]onna kill your resi[dential] biz. [M]ay force
us to do moodyfitch only cdos!” 1075
When asked by his colleague about the change in the model, an S&P senior manager, Thomas
Warrack, noted that the new model “took a more conservative approach” that would result in
“raising our credit support requirements going forward,” but Mr. Warrack was also quick to add:
“We certainly did [not] intend to do anything to bump us off a significant amount of deals.” 1076

1074

Id.
5/3/2006 email from Robert Morelli (UBS) to Peter Kambeseles (S&P), Hearing Exhibit 4/23-11.
1076
Id.
1075

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In another instance in May 2007, an S&P analyst reported to her colleagues about
attempting to apply a default stress test to a CDO transaction proposed by Lehman Brothers. She
wrote:
“[T]hey claim that their competitor investment banks are currently doing loads of deals
that are static in the US and where no such stress is applied. … [W]e’d initially
calculated some way of coming up with the stresses, by assuming the lowest rated assets
default first …. [T]hey claim that once they have priced the whole thing, it is possible
that the spreads would change …. We suggested that it was up to them to build up some
cushion at the time they price, but they say this will always make their structures
uneconomic and is basically unmanageable => I understand that to mean they would not
take us on their deals.” 1077
Her supervisor responded in part: “I would recommend we do something. Unless we have too
many deals in US where this could hurt.”
On still another occasion in 2004, several S&P employees discussed the pressure to make
their ratings profitable rather than just accurate, especially when their competitor employed
lower rating standards:
“We just lost a huge Mizuho RMBS deal to Moody’s due to a huge difference in the
required credit support level. It’s a deal that six analysts worked through Golden Week
so it especially hurts. What we found from the arranger was that our support level was at
least 10% higher than Moody’s. … Losing one or even several deals due to criteria
issues, but this is so significant that it could have an impact in the future deals. There’s
no way we can get back on this one but we need to address this now in preparation for the
future deals.” 1078
Other emails illustrate the difficulty of upgrading the ratings models, because of the
potential disruption to securitizations in the process of being rated. Some investment banks
applied various types of pressure to maintain the status quo, despite the fact that the newer
models were considered more accurate. In a February 2006 email to an S&P analyst, for
example, an investment banker from Citigroup wrote:
“I am VERY concerned about this E3 [new CDO rating model]. If our current
struc[ture], which we have been marketing to investors … doesn’t work under the new
assumptions, this will not be good. Happy to comply, if we pass, but will ask for an
exception if we fail.” 1079

1077

5/23/2007 email from Claire Robert to Lapo Guadagnuolo, and others, Hearing Exhibit 4/23-31.
5/25/2004 email from Yu-Tsung Chang to Joanne Rose and Pat Jordan, “Competition with Moody’s,” Hearing
Exhibit 4/23-2.
1079
2/16/2006 email from Edward Tang (Citigroup) to Lina Kharnak (S&P), Hearing Exhibit 4/23-8.
1078

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In another instance from May 2005, an investment banker from Nomura in the middle of
finalizing a securitization raised concerns that S&P was not only failing to provide the desired
rating, but that a new model could make the situation worse. He wrote:
“My desire is to keep S&P on all of my deals. I would rather not drop S&P from the
upcoming deal, particularly if it ends up being for only a single deal until the new model
is in place. Can you please review the approval process on this deal?” 1080
Initially hesitant, S&P analysts ultimately decided to recommend approval of the deal in line
with the banker’s proposal.
The same pressure was applied to Moody’s analysts. In an April 2007 email, for
example, a SunTrust Bank employee told Moody’s:
“SunTrust is disconcerted by the dramatic increase in Moody’s loss coverage levels given
initial indications. … Our entire team is extremely concerned. ... Each of the other
agencies reduced their initial levels, and the material divergence between Moody’s levels
and the other agencies seems unreasonable and unwarranted given our superior collateral
and minimal tail risk.” 1081
On another occasion in March 2007, a Moody’s analyst emailed a colleague about
problems she was having with someone at Deutsche Bank after Moody’s suggested adjustments
to the deal: “[The Deutsche Bank investment banker] is pushing back dearly saying that the deal
has been marketed already and that we came back ‘too late’ with this discovery .… She claims
it’s hard for them to change the structure at this point.” 1082
Special Treatment. Documents obtained by the Subcommittee indicate that investment
bankers who complained about rating methodologies, criteria, or decisions were often able to
obtain exceptions or other favorable treatment. In many instances, the decisions made by the
credit rating agencies appeared to cross over from the healthy give and take involved in complex
analysis to concessions made to prevent the loss of business. While the former facilitates
efficient transactions, the second distorts the market and hurts investors.
In a February 2007 email directed to Moody’s, for example, a Chase investment banker
complained that a transaction would receive a significantly lower rating than the same product
was slated to receive from another rating agency: “There’s going to be a three notch difference
when we print the deal if it goes out as is. I'm already having agita about the investor calls I’m
going to get.” Upon conferring with a colleague, the Moody’s manager informed the banker that
Moody’s was able to make some changes after all: “I spoke to Osmin earlier and confirmed that

1080

5/6/2005 email from Robert Gartner (Nomura) to Thomas Warrack (S&P), PSI-S&P-RFN-000024-28, at 28.
4/12/2007 email from Patrick DellaValle (SunTrust) to David Teicher (Moody’s), and others, PSI-MOODYSRFN-000032.
1082
3/8/2007 email from Karen Ramallo to Yakov Krayn, Hearing Exhibit 4/23-22.
1081

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Jason is looking into some adjustments to his [Moody’s] methodology that should be a benefit to
you folks.” 1083
In another instance, a difference of opinion arose between Moody’s and UBS over how to
rate a UBS transaction known as Lancer II. One senior Moody’s analyst wrote to her colleagues
that, given the “time line for closing” the deal, they should side with the investment bank: “I
agree that what the [Moody’s rating] committee was asking is reasonable, but given the other
modeling related issues and the time line for closing, I propose we let them go with the CDS Cp
criteria for this deal.” 1084
S&P made similar concessions while rating three deals for Bear Stearns in 2006. An
analyst wrote:
“Bear Stearns is currently closing three deals this month which ha[ve] 40 year mortgages
(negam) …. There was some discrepancy in that they were giving some more credit to
recoveries than we would like to see. … [I]t was agreed that for the deals this month we
were OK and they would address this issue for deals going forward.” 1085
While the rating process involved some level of subjective discretion, these electronic
communications make it clear that in many cases, close calls were made in favor of the customer.
An exception made one time often turned into further exceptions down the road. In
August 2006, for example, an investment banker from Morgan Stanley tried to leverage past
exceptions into a new one, couching his request in the context of prior deals:
“When you went from [model] 2.4 to 3.0, there was a period of time where you would
rate on either model. I am asking for a similar ‘dual option’ window for a short period. I
do not think this is unreasonable.”
A frustrated S&P manager resisted, saying: “You want this to be a commodity relationship and
this is EXACTLY what you get.” But even in the midst of his defense, the same S&P manager
reminded the banker how often he had granted exceptions in other transactions: “How many
times have I accommodated you on tight deals? Neer, Hill, Yoo, Garzia, Nager, May, Miteva,
Benson, Erdman all think I am helpful, no?” 1086
1083

2/20/2007 email from Mark DiRienz (Moody’s) to Robert Miller (Chase), PSI-MOODYS-RFN-000031. See
also 4/27/2006 email from Karen Ramallo to Wioletta Frankowicz and others, Hearing Exhibit 4/23-18 (“For
previous synthetic deals this wasn’t as much of an issue since the ARM % wasn’t as high, and … at this point, I
would feel comfortable keeping the previously committed levels since such a large adjustment would be hard to
explain to Bear .… So unless anybody objects, Joe and I will tell Bear that the levels stand where they were
previously.”).
1084
5/23/2007 email from Yvonne Fu to Arnaud Lasseron, PSI-MOODYS-RFN-000013.
1085
2/23/2006 email from Errol Arne to Martin Kennedy, and others, “Request for prioritization,” PSI-S&P-RFN000032.
1086
8/1/2006 email from Elwyn Wong (S&P) to Shawn Stoval (Morgan Stanley) and Belinda Ghetti (S&P), Hearing
Exhibit 4/23-13.

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Some rating analysts who granted exceptions to firm policies, and then tried to limit those
exceptions in future deals, found it difficult to do. In June 2007, for example, a Moody’s analyst
agreed to an exception, while warning that no exceptions would be made in future transactions:
“This is an issue we feel strongly about and it is a published Moody’s criteria. We are
making an exception for this deal only. … Going forward this has to be effective date
level. I would urge you to let your colleagues know as well since we will not be in a
position to give in on this issue in future deals.” 1087
A similar scenario played out at S&P. A Goldman Sachs banker strongly objected to a
rating decision on a CDO called Abacus 2006-12:
“I would add that this scenario is very different from an optional redemption as you point
out below since the optional redemption is at Goldman’s option and a stated maturity is
not. We therefore cannot settle for the most conservative alternative as I believe you are
suggesting.”
The S&P director pushed back, saying that what Goldman wanted was “a significant departure
from our current criteria,” but then suggested an exception could be made if it were limited to the
CDO at hand and did not apply to future transactions:
“As you point out, it is a conservative position for S&P to take, but it is one we’ve taken
with all Dealers. Since time is of the essence, this may be another issue that we table for
2006-12 [the CDO under consideration], but would have to be addressed in future
trades.” 1088
But a Moody’s analyst showed how difficult it was to allow an exception once and
demand different conduct in the future:
“I am worried that we are not able to give these complicated deals the attention they
really deserve, and that they [Credit Suisse] are taking advantage of the ‘light’ review and
the growing sense of ‘precedent’.
As for the precedential effects, we had indicated that some of the ‘fixes’ we agreed to in
Qian’s deal were ‘for this deal only’…. When I asked Roland if they had given further
thought to a more robust approach, he said (unsurprisingly) that they had no success and
could we please accept the same [stopgap] measure for this deal.” 1089
1087

6/28/2007 email from Pooja Bharwani (Moody’s) to Frank Li (Citigroup), and others, PSI-MOODYS-RFN000019.
1088
4/23/2006 email from Chris Meyer (S&P) to Geoffrey Williams and David Gerst (Goldman Sachs), and others,
PSI-S&P-RFN-000002. See also 5/1/2006 email from Matthew Bieber (Goldman Sachs) to Malik Rashid (S&P),
and others, PSI-S&P-RFN-000008-11, at 9 (“GS has not agreed to this hold back provision in any of our previous
transactions (including the ABACUS deal that just closed last week) - and we cannot agree to it in this deal.”).
1089
5/1/2006 email from Richard Michalek to Yuri Yoshizawa, Hearing Exhibit 4/23-19; see also 5/23/2007 email
from Eric Kolchinsky to Yuri Yoshizawa and Yvonne Fu, PSI-MOODYS-RFN-000011 (“In that case, should we

283
Linking a Rating to a Fee. On at least one occasion, an investment bank seeking a
credit rating attempted to link the ratings it would receive with the amount of fees it would pay.
In June 2007, Merrill Lynch was seeking a rating from Moody’s for a CDO known as Belden
Point.1090 Moody’s agreed to rate the CDO, but only for a higher than usual fee using a
“complex CDO fee schedule.” 1091 Merrill Lynch responded: “[N]o one here has ever heard or
seen this fee structure applied for any deal in the past. Could you point us to a precedent deal
where we have approved this?” 1092 Moody’s replied:
“[W]e do not view this transaction as a standard CDO transaction and the rating process
so far has already shown that the analysis for this deal is far more involved and will
continue to be so. We have spent significant amount of resource[s] on this deal and it
will be difficult for us to continue with this process if we do not have an agreement on the
fee issue.” 1093
The next day, Merrill Lynch wrote:
“We are okay with the revised fee schedule for this transaction. We are agreeing to this
under the assumption that this will not be a precedent for any future deals and that you
will work with us further on this transaction to try and get to some middle ground with
respect to the ratings.” 1094
Moody’s responded:
“We agree that this will not be a precedent for future deals by default and we will discuss
with you on a case by case basis if [the] Complex CDO rating application should be
applied to future deals. We will certainly continue working with you on this transaction,
but analytical discussions/outcomes should be independent of any fee discussions.” 1095
Vertical CDO. A transaction known as Vertical ABS CDO 2007-1 helps illustrate how
imbalanced the relationship between investment bankers and rating analysts became. In
connection with that CDO, an investment banker from UBS failed to cooperate with S&P rating
analysts requesting information to analyze the transaction.
On March 30, 2007, an S&P analyst wrote that UBS wanted to close the deal in ten days,
but was not providing the information S&P needed:
exclude any mention of the one notch rule from the general communication? Instead, we should give comm[ittee]
chairs the discretion to apply the rule as they see fit. In this way, there is less of a chance of it getting back to the
bankers as a ‘general rule’. They are more likely to know it as something that only applies, as a concession, on the
deal that they are working on.”).
1090
See 6/11/2007 email exchange between Merrill Lynch and Moody’s, Hearing Exhibit 4/23-23.
1091
Id.
1092
Id.
1093
Id.
1094
Id.
1095
6/12/2007 email from Moody’s to Merrill Lynch, Hearing Exhibit 4/23-23 Addendum.

284
“Sarah and I have been working with James Yao from UBS but we have not been getting
cooperation from him. He has told me that I am jeopardizing the deal. … This is the
third time that he refuses to model the cashflow according to the Indenture and
Criteria.” 1096
A few days later, in an April 5, 2007 instant message, one S&P analyst wrote: “[W]hat
happened? … [I] heard some fury.” His colleague responded that it was Mr. Yao, the UBS
banker. 1097 Later the same day, an S&P manager wrote that the three analysts:
“[w]ould like to give us a heads-up with respect to the lack of responsiveness/cooperation
from UBS … on Vertical 2007-1. There seems to be a general lack of interest to work
WITH us, incorporate our comments, or modeling to our criteria. Based on their
collective difficult experience so far, our analysts estimate a smooth closing is unlikely.
(The behavior is not limited to this deal either.)” 1098
An S&P senior director responded:
“Vertical is politically closely tied to B of A – and is mostly a marketing shop – helping
to take risk off books of B o A. Don’t see why we have to tolerate lack of cooperation.
Deals likely not to perform.” 1099
Despite the uncooperative investment banker and prediction that the CDO was unlikely to
perform, S&P analysts continued to work hard on the rating. One of the analysts sent an email to
her colleagues describing their efforts to get the CDO to pass tests for issuing investment grade
ratings:
“Just wanted to let you know that this deal is closing and going Effective next Tuesday,
but our rated Equity tranche (BBB) is failing in our cashflow modeling.
“Sarah tried a lot of ways to have the model passed. Unfortunately we are still failing by
1bp [basis point], without any stress runs and without modeling certain fees (anticipated
to be minimal).
“In addition, we already incorporated the actual ramped up portfolio, and not a
hypothetical one, for this exercise.” 1100
After another day of work, the analyst reported she had found a “mistake” that, when
corrected, would allow Vertical to get the desired investment grade credit ratings:
1096

3/30/2007 email from Lois Cheng, “Vertical ABS CDO 2007-1, Ltd. UBS,” Hearing Exhibit 4/23-94c.
4/5/2007 instant message exchange between Brian Trant and Shannon Mooney, Hearing Exhibit 4/23-94a.
1098
4/5/2007 email from Bujiang Hu to Peter Kambeseles, and others, Hearing Exhibit 4/23-94b [emphasis in the
original].
1099
4/5/2007 email from James Halprin to Bujiang Hu and others, Hearing Exhibit 4/23-94b.
1100
4/5/2007 email from Lois Cheng to Brian O’Keefe and Peter Kambeseles, and others, Hearing Exhibit 4/23-94c.
1097

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“Just wanted to update you guys on Vertical. The model is passing now. We found a
mistake in the waterfall modeling that was more punitive than necessary. James Yao [the
UBS investment banker] has been notified and is probably having a chuckle at our
expense. I still feel that his attitude toward our rating process and our team still needs to
be addressed in some way.” 1101
These emails show S&P analysts expending great effort to provide favorable ratings to the UBS
CDO, despite concerns about its creditworthiness. 1102
On April 10, 2007, just three months before the July 2007 mass downgrades of subprime
RMBS, S&P issued ratings for the Vertical securitization. All but one of the nine tranches were
given investment grade ratings, with the top three receiving AAA. Moody’s issued similar
ratings. 1103
Four months later in August 2007, all but the top three tranches were put on credit
Two months after that, in October, Moody’s downgraded all but one of the Vertical
watch.
securities to junk status. 1105 In 2008, the CDO was liquidated. 1106 The chart below shows how
the various tranches were originally rated by S&P, only to be downgraded to a D – the rating
given to securities in default.
1104

1101

4/6/2007 email from Lois Cheng to Brian O’Keefe and Peter Kambeseles, and others, Hearing Exhibit 4/23-94c.
For a similar situation involving an RMBS, see 2/8/2006 email exchange among S&P analysts, “EMC
Compares,” PSI-SP-000362, Hearing Exhibit 4/23-7 (describing how an analyst worked to find a way to reduce the
size of the cushion that an RMBS had to set aside to protect its investment grade tranches from loss, and found that
changing the way first loan payment dates were reported in LEVELS would produce a slight reduction; a colleague
responded: “I don’t think this is enough to satisfy them. What’s the next step?”).
1103
4/2007 Moody’s internal memorandum from Saiyid Islam and Peter Hallenbeck to the Derivatives Rating
Committee, Hearing Exhibit 4/23-94d. Moody’s gave investment grade ratings to seven of the eight tranches it
rated, including AAA ratings to the top three tranches.
1104
Moody’s downgrade of Vertical ABS CDO 2007-1, Hearing Exhibit 4/23-94k.
1105
Id.; 10/25/2007 “Moody’s Downgrades Vertical ABS CDO 2007-1 Notes; Further Downgrades Possible,”
Moody’s; 1/14/2008 and 6/23/2008 “Moody’s downgrades ratings of Notes issued by Vertical ABS CDO 2007-1,
Ltd.,” Moody’s; 9/11/2008 “Moody’s withdraws ratings of Notes issued by 34 ABS CDOs,” Moody’s. Moody’s
downgraded all but the super senior Vertical tranche to junk status in October 2007, just six months after giving
investment grade ratings to seven of the eight tranches it rated. See 10/24/2007 email from Jonathan Polansky to
Moody’s colleagues, Hearing Exhibit 4/23-94f. S&P followed suit on November 14, 2007, downgrading all but two
of Vertical’s tranches, with five falling to junk status. 11/14/2007 “112 Ratings Lowered on 21 U.S. Cash Flow,
Hybrid CDOs of ABS; $4.689B In Securities Affected,” S&P.
1106
9/11/2008 “Moody’s Withdraws Ratings of Notes Issued by 34 ABS CDOs,” Moody’s.
1102

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One of the purchasers of Vertical securities, a hedge fund called Pursuit Partners, sued
UBS, S&P, and Moody’s over the quick default. Both credit rating agencies filed successful
motions to be dismissed from the lawsuit, but the court ordered UBS to set aside $35 million for
a possible award to the investor. The investor had found internal UBS emails calling the
investment grade Vertical securities “crap.” 1107
Barring Analysts. Rating analysts who insisted on obtaining detailed information about
transactions sometimes became unpopular with investment bankers who pressured the analysts’
directors to have them barred from rating their deals. One Moody’s analyst, Richard Michalek,
testified before the Subcommittee that he was prohibited from working on RMBS transactions
for several banks because he scrutinized deals too closely. He stated:
“During my tenure at Moody’s, I was explicitly told that I was ‘not welcome’ on deals
structured by certain banks. ... I was told by my then-current managing director in 2001
that I was ‘asked to be replaced’ on future deals by … CSFB [Credit Suisse First Boston],
and then at Merrill Lynch. Years later, I was told by a different managing director that a
CDO team leader at Goldman Sachs also asked, while praising the thoroughness of my
work, that after four transactions he would prefer another lawyer be given an opportunity
to work on his deals.” 1108
This analyst’s claim was corroborated by the Moody’s Managing Director who was his superior
at the time. 1109
At the Subcommittee’s April 23 hearing, Yuri Yoshizawa, the Senior Managing Director
of Moody’s Derivatives Group testified that the relationship between CDO analysts and
investment banks “could get very contentious and very abusive.” 1110 She testified that she did
get complaints from investment banks who wanted analysts removed from conducting their
ratings, because they were unhappy with those analysts. She testified that “[t]here was always
pressure from banks, including [removing analysts from transactions].” 1111 She stated that she
did, in fact, remove analysts from rating certain banks’ transactions, but claimed she did so to
protect the analysts from abuse rather than to appease the complaining bank. 1112 When asked
whether she ever protected her analysts by instead banning the abusive bank employee from
Moody’s interactions, she could not recall taking that action.

1107

8/28/2007 email from Evan Malik (UBS) to Hugh Corcoran (UBS) regarding Pursuit Partners’ purchase of
Vertical securities, Hearing Exhibit 4/23-94n.
1108
Prepared statement of Richard Michalek at 16, April 23, 2010 Subcommittee hearing.
1109
Prepared statement of Gary Witt, Former Managing Director, Moody’s Investors Service, submitted by request
to the Financial Crisis Inquiry Commission (6/2/2010) at 6-7.
1110
April 23, 2010 Subcommittee Hearing at 64. Employees from both Moody’s and S&P confirmed this abusive
conduct in interviews with the Subcommittee, which was also corroborated in emails. Subcommittee interviews of
Richard Michalek (1/18/2010) and Eric Kolchinsky (10/7/2009). See also, e.g., 4/6/2007 email from Lois Cheng to
Brian O’Keefe and Peter Kambeseles, and others, Hearing Exhibit 4/23-94c.
1111
April 23, 2010 Subcommittee Hearing at 65.
1112
Id. at 64, 66.

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Ratings Shopping. It is not surprising that credit rating agencies at times gave into
pressure from the investment banks and accorded them undue influence in the ratings process.
The rating companies were directly dependent upon investment bankers to bring them business
and were vulnerable to threats that the investment bankers would take their business elsewhere if
they did not get the ratings they wanted. Moody’s Chief Credit Officer told the Subcommittee
staff that ratings shopping, the practice in which investment banks chose the credit rating agency
offering the highest rating for a proposed transaction, was commonplace prior to 2008. 1113
Ratings shopping inevitably weakens standards as each credit rating agency seeks to
provide the most favorable rating to win business. It is a conflict of interest problem that results
in a race to the bottom – with every credit rating agency competing to produce credit ratings to
please its paying clients. Moody’s CEO described the problem this way: “What happened in ’04
and ’05 with respect to subordinated tranches is that our competition, Fitch and S&P, went nuts.
Everything was investment grade. It didn’t really matter.” 1114
All of the witnesses who were questioned about ratings shopping during the
Subcommittee’s hearing confirmed its existence:
Senator Levin: Ms. Yoshizawa [Senior Managing Director, Moody’s Derivatives
Group], we were advised by Moody’s Chief Credit Officer that it was common
knowledge that ratings shopping occurred in structured finance. In other words,
investment bankers sought ratings from credit rating agencies who would give them their
highest ratings. Would you agree with that?
Ms. Yoshizawa: I agree that credit shopping does exist, yes.
Senator Levin: Ms. Barnes [Managing Director, S&P RMBS Group], would you agree
that the same thing existed in your area?
Ms. Barnes: Yes, Mr. Chairman. 1115
Moody’s CEO, Ray McDaniel echoed this concern during the hearing:
Senator Levin: There are a lot of interesting things there that your Chief Credit Officer,
Mr. Kimball, wrote in October of 2007 …. One of the things he wrote, and this is under
market share, he says in paragraph five, ‘Ideally, competition would be primarily on the
basis of ratings quality’ – that is ideally – ‘with a second component of price and a third
1113

Subcommittee interview of Andy Kimball (4/15/2010). See also 2007 Moody’s draft “2007 Operating Plan:
Public Finance, Global Structured Finance and Investor Services,” prepared by Brian Clarkson, MIS-OCIE-RMBS0419014-53, at 25. In a draft presentation Clarkson wrote: “Challenges for 2007 … Competitive issues (ex. Rating
inflation, successful rating shopping ....).” He also noted in the presentation “increased ‘rating shopping’ by market
participants.”
1114
9/10/2007 Transcript of Raymond McDaniel at Moody’s MD Town Hall Meeting, at 63, Hearing Exhibit 4/2398.
1115
April 23, 2010 Subcommittee Hearing at 66-67.

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component of service. Unfortunately, of the three competitive factors, rating quality is
proving the least powerful.’ … ‘It turns out that ratings quality has surprisingly few
friends; issuers want high ratings; investors don’t want rating downgrades; short-sighted
bankers labor short-sightedly to game the rating agencies for a few extra basis points on
execution.’ Would you agree with that?
Mr. McDaniel: In this section, he is talking about the issue of rating shopping, and I
agree that that existed then and exists now. 1116

(3) Inaccurate Models
The conflict of interest problem was not the only reason that Moody’s and S&P issued
inaccurate RMBS and CDO credit ratings. Another problem was that the credit rating models
they used were flawed. Over time, from 2004 to 2006, S&P and Moody’s revised their rating
models, but never enough to produce accurate forecasts of the coming wave of mortgage
delinquencies and defaults. Key problems included inadequate performance data for the higher
risk mortgages flooding the mortgage markets and inadequate correlation factors.
In addition, the companies failed to provide their ratings personnel with clear, consistent,
and comprehensive criteria to evaluate complex structured finance deals. The absence of
effective criteria was particularly problematic, because the ratings models did not conclusively
determine the ratings for particular transactions. Instead, modeling results could be altered by
the subjective judgment of analysts and their supervisors. This subjective factor, while
unavoidable due to the complexity and novelty of the transactions being rated, rendered the
process vulnerable to improper influence and inflated ratings.

(a) Inadequate Data
CRA analysts relied on their firm’s quantitative rating models to calculate the probable
default and loss rates for particular pools of assets. These models were handicapped, however,
by a lack of relevant performance data for the high risk residential mortgages supporting most
RMBS and CDO securities, by a lack of mortgage performance data in an era of stagnating or
declining housing prices, by the credit rating agencies’ unwillingness to devote sufficient
resources to update their models, and by the failure of the models to incorporate accurate
correlation assumptions predicting how defaulting mortgages might affect other mortgages.
Lack of High Risk Mortgage Performance Data. The CRA models failed, in part,
because they relied on historical data to predict how RMBS securities would behave, and the
models did not use adequate performance data in the development of criteria to rate subprime
and other high risk mortgages that proliferated in the housing market in the years leading up to
the financial crisis. From 2004 through 2007, many RMBS and CDO securities were comprised
of residential mortgages that were not like those that had been modeled in the past. As one S&P
email observed:
1116

April 23, 2010 Subcommittee Hearing at 100-101.

289
“[T]he assumptions and the historical data used [in the models] … never included the
performance of these types of residential mortgage loans .… The data was gathered and
computed during a time when loans with over 100% LTV or no stated income were
rare.” 1117
In contrast to decades of actual performance data for 30-year mortgages with fixed interest rates,
the new subprime, high risk products had little to no track record to predict their rates of default.
In fact, Moody’s RMBS rating model was not even used to rate subprime mortgages until
December 2006; prior to that time, Moody’s used a system of “benchmarking” in which it rated a
subprime mortgage pool by comparing it to other subprime pools Moody’s had already rated. 1118
Lack of Data During Era of Stagnant or Falling Home Prices. In addition, the
models operated with subprime data for mortgages that had not been exposed to stagnant or
falling housing prices. As one February 2007 presentation from a Deutsche Bank investment
banker explained, the models used to calculate “subprime mortgage lending criteria and bond
subordination levels are based largely on performance experience that was mostly accumulated
since the mid-1990s, when the nation’s housing market has been booming.” 1119 A former
managing director in Moody’s Structured Finance Group put it this way: “[I]t was ‘like
observing 100 years of weather in Antarctica to forecast the weather in Hawaii.” 1120 In
September 2007, after the crisis had begun, an S&P executive testified before Congress that:
“[W]e are fully aware that, for all our reliance on our analysis of historically rooted data
that sometimes went as far back as the Great Depression, some of that data has proved no
longer to be as useful or reliable as it has historically been.” 1121
The absence of relevant data for use in RMBS modeling left the credit rating agencies
unable to accurately predict mortgage default and loss rates when housing prices stopped
climbing. The absence of relevant performance data for high risk mortgage products in an era of
stagnant or declining housing prices impacted the rating of not only RMBS transactions, but also
CDOs, which typically included RMBS securities and relied heavily on RMBS credit ratings.
Lack of Investment. One reason that Moody’s and S&P lacked relevant loan
performance data for their RMBS models was not simply that the data was difficult to obtain, but
1117

9/30/2007 email from Belinda Ghetti to David Tesher, and others, Hearing Exhibit 4/23-33.
See 2008 SEC Examination Report for Moody’s Investor Services Inc., PSI-SEC (Moodys Exam Report)-140001-16, at 3.
1119
2/2007 “Shorting Home Equity Mezzanine Tranches,” Deutsche Bank Securities Inc.,
DBSI_PSI_EMAIL01988773-845, at 776. See also 6/4/2007 FDIC memorandum from Daniel Nuxoll to Stephen
Funaro, “ALLL Modeling at Washington Mutual,” FDIC_WAMU_000003743-52, at 47 (“Virtually none of the data
is drawn from an episode of severe house price depreciation. Even introductory statistics textbooks caution against
drawing conclusions about possibilities that are outside the data. A model based on data from a relatively benign
period in the housing market cannot produce reliable inferences about the effects of a housing price collapse.”).
1120
“Triple-A Failure,” New York Times (4/27/2008).
1121
Prepared statement of Vickie Tillman, S&P Executive Vice President, “The Role of Credit Rating Agencies in
the Structured Finance Market,” before U.S. House of Representatives Subcommittee on Capital Markets, Insurance
and Government Sponsored Enterprises, Cong.Hrg. 110-62 (9/27/2007), S&P SEN-PSI 0001945-71, at 46-47.
1118

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that both companies were reluctant to devote the resources needed to improve their modeling,
despite soaring revenues.
Moody’s senior managers even expressed skepticism about whether new loan data was
needed and, in fact, generally did not purchase new loan data for a four-year period, from 2002
to 2006. 1122 In a 2000 internal email exchange, the head of Moody’s Structured Finance Group
at the time, Brian Clarkson, wrote the following regarding the purchasing of data for Moody’s
RMBS model:
“I have a wild thought also – let[’]s not even consider BUYING anymore data, programs,
software or companies until we figure out what we have and what we intend to do with
what we have. From what I have heard and read so far we have approaches (MBS,
Tranching and Spread) few use or understand (let alone being able to explain it to the
outside) and new data that we are unable to use. We want more data when most of the
time we rate MBS deals using arbitrary rule of thumb?!! …
“I suggest we spend less time asking for more data and software (I have not seen
anything that sets forth the gains in revenue from such spending -- it is easy to ask for $$
-- much harder to justify it against competing projects) and more time figuring out how to
utilize what we have by way of good analysis, a solid approach to this market a proper
staffing model.” 1123
In response to Brian Clarkson’s email, a managing director wrote:
“As you know, I don’t think we need to spend a lot of $ or resources to improve the
model from an analytic perspective; but I’d need to defer to people more in the loop
(looks like you’re that person) on whether the marketing component mandates some
announcement of model and data improvement. …
Make sure you talk to Noel and maybe Fons about the decision to buy the data; I was
invited to the original meeting so that the powers that be (at the time) could understand
the data originally used. I felt that the arguments for buying the data and re-inventing the
model were not persuasive .… The most convincing argument for buying the data was
that it would be a cornerstone for marketing, that S&P touted the size of their database as
a competitive advantage and that this was why they had the market share advantage.” 1124
Moody’s advised the Subcommittee that, in fact, it generally did not obtain any new loan
data for its RMBS model development for four years, from 2002 until 2006, although it
continued to improve its RMBS model in other ways. 1125 In 2005, a Moody’s employee survey
1122

2/24/2011 Response from Moody’s to Subcommittee questions. The Subcommittee asked Moody’s to provide
information on any new data it had received or purchased for its models from 2002 to 2007.
1123
11/3/2000 email from Brian Clarkson to David Zhai and others, PSI-MOODYS-RFN-000007.
1124
11/13/2000 email from Jay Siegel to Brian Clarkson, PSI-MOODYS-RFN-000007.
1125
2/17/2011 and 2/24/2011 Responses from Moody’s to Subcommittee questions.

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found that the company’s employees felt that Moody’s should have been spending more
resources on improving its models. 1126 In 2006, Moody’s obtained new loan level data for use in
its new subprime model, M3 Subprime. 1127
In contrast to Moody’s, S&P did purchase new loan data on several occasions from 2002
to 2006, but told the Subcommittee that this data did not provide meaningful results that could be
used in its RMBS model prior to 2006. 1128 In 2002, for example, S&P said that it purchased data
on approximately 640,000 loans, including ARM and hybrid loans. S&P told the Subcommittee
that it developed an equation from that data set which predicted a lower default rate for ARM
and hybrid loans than for fixed rate loans. S&P considered this counter-intuitive and chose not
to incorporate it into its model. 1129 In 2005, S&P purchased data on another 2.9 million loans
that included first and second liens for prime, subprime, Alt A, high LTV, and home equity
loans. 1130 S&P claimed that it made “concerted efforts to analyze” this data, “both by employing
external consultants and dedicating resources within Standard & Poor’s to analyze the data for
criteria development.” 1131
Contrary to S&P’s claim, the former head of the S&P RMBS Ratings Group, Frank
Raiter, who worked at S&P until 2005, told the Subcommittee that management did not provide
him with sufficient resources to analyze the data and develop improved criteria for the RMBS
model. 1132 Mr. Raiter told the Subcommittee that he personally informed S&P’s senior
management about the need to update S&P’s model with better loan data several years before the
crisis. 1133 Mr. Raiter also testified that the “analysts at S&P had developed better methods for
determining default which did capture some of the variations among products that were to
become evident at the advent of the crisis,” 1134 but those methods were not incorporated into the
RMBS model before he left in 2005. Mr. Raiter said that “[i]t is my opinion that had these
models been implemented we would have had an earlier warning about the performance of many
of the new products that subsequently lead [sic] to such substantial losses.” 1135
1126

4/7/2006 “Moody’s Investor Service, BES-2005: Presentation to Derivatives Team,” Hearing Exhibit 4/23-92b.
2/24/2011 Response from Moody’s to Subcommittee questions. Moody’s also advised the Subcommittee that it
“generally receives, as part of the surveillance process, updated loan performance statistics on a monthly basis for
the collateral pools of the transactions it has rated.” Moody’s told the Subcommittee that its surveillance data
tracked the deterioration in the RMBS market, and its rating committee members were able to incorporate that
information into their rating considerations. 2/17/2011 Response from Moody’s to Subcommittee questions.
1128
2/10/2011 Response from S&P to Subcommittee questions.
1129
Id.
1130
Id.
1131
Id. S&P also told the Subcommittee that, between 2001 and 2008, it updated its RMBS model multiple times,
using other types of data and analytical improvements. 2/2010 Standard & Poor’s Presentation on LEVELS, PSIStandard&Poor’s-04-0001–0025, at 6.
1132
Subcommittee interviews of Frank Raiter (7/15/2009 and 4/8/2010).
1133
Id. See also prepared statement of Frank Raiter, “Credit Rating Agencies and the Financial Crisis,” before the
U.S. House of Representatives Committee on Oversight and Government Reform, Cong.Hrg. 110-155 (10/22/2008),
at 5.
1134
Prepared statement of Frank Raiter, “Credit Rating Agencies and the Financial Crisis,” before the U.S. House of
Representatives Committee on Oversight and Government Reform, Cong.Hrg. 110-155 (10/22/2008), at 5-6.
1135
Id.
1127

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According to Mr. Raiter, even though S&P revenues had increased dramatically and were
generated in large part by the RMBS Group, senior management had no interest in committing
the resources needed to update the RMBS model with improved criteria from the new loan data.
Mr. Raiter said that S&P did not spend sufficient money on better analytics, because S&P
already dominated the RMBS ratings market: “[T]he RMBS group enjoyed the largest ratings
market share among the three major rating agencies (often 92% or better), and improving the
model would not add to S&P’s revenues.” 1136
Poor Correlation Risk Assumptions. In addition to using inadequate loan performance
data, the S&P and Moody’s credit rating models also incorporated inadequate assumptions about
the correlative risk of mortgage backed securities. Correlative risk measures the likelihood of
multiple negative events happening simultaneously, such as the likelihood of RMBS assets
defaulting together. It examines the likelihood, for example, that two houses in the same
neighborhood will default together compared to two houses in different states. If the
neighborhood houses are more likely to default together, they would have a higher correlation
risk than the houses in different states.
The former head of S&P’s Global CDO Group, Richard Gugliada, told the Subcommittee
that the inaccurate RMBS and CDO ratings issued by his company were due, in part, to wrong
assumptions in the S&P models about correlative risk. 1137 Mr. Gugliada explained that, because
CDOs held fewer assets than RMBS, statistical analysis was less helpful, and the modeling
instead required use of significant performance assumptions, including on correlative risk. He
explained that the primary S&P CDO model, the “CDO Evaluator,” ran 100,000 simulations to
determine how a pool would perform. These simulations ran on a set of assumptions that took
the place of historical performance data, according to Mr. Gugliada, and included assumptions
on the probability of default and the correlation between assets if one or more assets began to
default. He said that S&P believed that RMBS assets were more likely to default together than,
for example, corporate bonds held in a CDO. He said that S&P had set the probability of
corporate correlated defaults at 30 out of 100, and set the probability of RMBS correlated
defaults at 40 out of 100. He said that the financial crisis has now shown that the RMBS
correlative assumptions were far too low and should have been set closer to 80 or 90 out of
100. 1138
On one occasion in 2006, an outside party also highlighted a problem with the S&P
model’s consideration of correlative risk. On March 20, 2006, a senior managing director at
Aladdin Capital Management, LLC sent an email to S&P expressing concern about a later
version of its CDO model, Evaluator 3:
“Thanks for a terrific presentation at the UBS conference. I mentioned to you a possible
error in the new Evaluator 3.0 assumptions:

1136

Id. at 6.
Subcommittee interview of Richard Gugliada, Former Head of S&P’s CDO Ratings Group (10/9/2009).
1138
Id.
1137

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Two companies in the same Region belonging to two different local Sectors are assumed
to be correlated (by 5%), while if they belong to the same local Sector then they are
uncorrelated.
I think you probably didn’t mean that.” 1139
Apparently, this problem with the model had already been identified within S&P. Two S&P
employees discussed the problem on the same email, with one saying:
“I have already brought this issue up and it was decided that it would be changed in the
future, the next time we update the criteria. … [T]he correlation matrix is inconsistent.”
Despite this clear problem resulting in the understatement of correlative risk for assets in the
same region, S&P in this instance did not immediately take the steps needed to repair its CDO
model.
At Moody’s, a former Managing Director of the CDO Group, Gary Witt, observed a
different set of correlation problems with Moody’s CDO model. Mr. Witt, who was responsible
for managing Moody’s CDO analysts as well as its CDO modeling, told the Subcommittee that
he had become uncomfortable with the lack of correlation built into the company’s
methodology. 1140 According to Mr. Witt, Moody’s model, which then used the “Binomial
Expansion Technique (BET),” addressed correlation by having a diversity score at a time when
CDOs had diverse assets such as credit cards or aircraft lease revenues, in addition to RMBS
securities. By 2004, however, Mr. Witt said that most CDOs contained primarily RMBS assets,
lacked diversity, and made little use of the diversity score.
Mr. Witt told the Subcommittee that, from 2004 to 2005, he worked on modifying the
BET model to improve its consideration of correlation factors. According to Mr. Witt, modeling
changes like the one he worked on had to be done on an employee’s own time – late nights and
weekends – because there was no time during the work week due to the volume of deals. Indeed,
during his eighteen month tenure as a Managing Director in the CDO Group, Mr. Witt “spent a
huge amount of time working on methodology because the ABS CDO market especially was in
transition from multi-sector to single sector transactions [RMBS]” which he felt necessitated an
update of Moody’s model. 1141 Mr. Witt indicated that, in June 2005, Moody’s CDO model was
changed to incorporate part of his suggested improvements, but did not go as far as he had
proposed. When asked about this 2005 decision, Mr. Witt indicated that he did not feel that
Moody’s was getting the ratings wrong for CDOs with RMBS assets, but he did “think that we
[Moody’s] were not allocating nearly enough resources to get the ratings right.” 1142
1139

3/20/2006 email from Isaac Efrat (Aladdin Capital Management LLC) to David Tesher (S&P), Hearing Exhibit
4/23-26 [emphasis in original].
1140
Subcommittee interview of Gary Witt, Former Managing Director, Moody’s Investors Service (10/29/2009).
1141
6/2/2010 Statement of Gary Witt, Former Managing Director, Moody’s Investors Service, submitted by request
to the Financial Crisis Inquiry Commission, at 11.
1142
Id. at 21.

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The lack of performance data for high risk residential mortgage products, the lack of
mortgage performance data in an era of stagnating or declining housing prices, the failure to
expend resources to improve their model analytics, and incorrect correlation assumptions meant
that the RMBS and CDO models used by Moody’s and S&P were out of date, technically
deficient, and could not provide accurate default and loss predictions to support the credit ratings
being issued. Yet Moody’s and S&P analysts told the Subcommittee that their analysts relied
heavily on their model outputs to project the default and loss rates for RMBS and CDO pools
and rate RMBS and CDO securities.

(b) Unclear and Subjective Ratings Process
Obtaining expected default and loss analysis from the Moody’s and S&P credit rating
models was only one aspect of the work performed by RMBS and CDO analysts. Equally
important was their effort to analyze a proposed transaction’s legal structure, cash flow,
allocation of revenues, the size and nature of its tranches, and its credit enhancements.
Analyzing each of these elements involved often complex judgments about how a transaction
would work and what impact various factors would have on credit risk. Although both Moody’s
and S&P published a number of criteria, methodologies, and guidance on how to handle a variety
of credit risk factors, the novelty and complexity of the RMBS and CDO transactions, the
volume and speed of the ratings process, and inconsistent applications of the various rules, meant
that CRA analysts were continuously faced with issues that were difficult to resolve about how
to analyze a transaction and apply the company’s standards. Evidence obtained by the
Subcommittee indicates that, at times, ratings personnel acted with limited guidance, unclear
criteria, and a limited understanding of the complex deals they were asked to rate.
Many documents obtained by the Subcommittee disclosed confusion and a high level of
frustration from RMBS and CDO analysts about how to handle ratings issues and how the
ratings process actually worked. In May 2007, for example, one S&P employee wrote: “[N]o
body gives a straight answer about anything around here …. [H]ow about we come out with new
[criteria] or a new stress and ac[tu]ally have clear cut parameters on what the hell we are
supposed to do.” 1143 Two years earlier, in May 2005, an S&P analyst complaining about a rating
decision wrote:
“Chui told me that while the three of us voted ‘no’, in writing, that there were 4 other
‘yes’ votes. … [T]his is a great example of how the criteria process is NOT supposed to
work. Being out-voted is one thing (and a good thing, in my view), but being out-voted
by mystery voters with no ‘logic trail’ to refer to is another. ... Again, this is exactly the
kind of backroom decision-making that leads to inconsistent criteria, confused analysts,
and pissed-off clients.” 1144
1143

5/8/2007 instant message exchange between Shannon Mooney and Andrew Loken, Hearing Exhibit 4/23-30b.
5/12/2005 email from Michael Drexler to Kenneth Cheng and others, Hearing Exhibit 4/23-10c. In a similar
email, S&P employees discuss questionable and inconsistent application of criteria. 8/7/2007 email from Andrew
Loken to Shannon Mooney, Hearing Exhibit 4/23-96a (“Back in May, the deal had 2 assets default, which caused it
to fail. We tried some things, and it never passed anything I ran. Next thing I know, I’m told that because it had
1144

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When asked by the SEC to compile a list of its rating criteria in 2007, S&P was unable to
identify all of its criteria for making rating decisions. The head of criteria for the structured
finance department, for example, who was tasked with gathering information for the SEC, wrote
in an email to colleagues:
“[O]ur published criteria as it currently stands is a bit too unwieldy and all over the map
in terms of being current or comprehensive. ... [O]ur SF [Structured Finance] rating
approach is inherently flexible and subjective, while much of our written criteria is
detailed and prescriptive. Doing a complete inventory of our criteria and documenting all
of the areas where it is out of date or inaccurate would appear to be a huge job ....” 1145
The confused and subjective state of S&P criteria, including when the criteria had to be
applied, is also evident in a May 2007 email sent by an S&P senior director to colleagues
discussing whether to apply a default stress test to certain CDOs:
“[T]he cash-flow criteria from 2004 (see below), actually states [using a default stress test
when additional concerns about the CDO are raised] ... in the usual vague S&P’s way ....
Still, consistency is key for me and if we decide we do not need that, fine but I would
recommend we do something. Unless we have too many deals in [the] US where this
could hurt.” 1146
Moody’s ratings criteria were equally subjective, changeable, and inconsistent. In an
October 2007 internal email, for example, Moody’s Chief Risk Officer wrote:
“Methodologies & criteria are published and thus put boundaries on rating committee
discretion. (However, there is usually plenty of latitude within those boundaries to
register market influence.)” 1147
Another factor was that ratings analysts were also under constant pressure to quickly
analyze and rate complex RMBS and CDO transactions. To enable RMBS or CDO transactions
to meet projected closing dates, it was not uncommon, as shown above, for CRA analysts to
grant exceptions to established methodologies and criteria, put off analysis of complex issues to
later transactions, and create precedents that investment banks invoked in subsequent
gone effective already, it was surveillance’s responsibility, and I never heard about it again. Anyway, because of
that, I never created a new monitor.”).
1145
3/14/2007 email from Calvin Wong to Tom Gillis, Hearing Exhibit 4/23-29. See also 2008 SEC Examination
Report for Standard and Poor’s Ratings Services, Inc., PSI-SEC (S&P Exam Report)-14-0001-24, at 6-7 (“[C]ertain
significant aspects of the rating processes and the methodologies used to rate RMBS and CDOs were not always
disclosed, or were not fully disclosed …. [S]everal communications by S&P employees to outside parties related to
the application of unpublished criteria, such as ‘not all our criteria is published. [F]or example, we have no
published criteria on hybrid deals, which doesn’t mean that we have no criteria,’” citing an 8/2006 email from the
S&P Director of the Analytical Pool for the Global CDO Group.).
1146
5/24/2007 email from Lapo Guadagnuolo to Belinda Ghetti, and others, Hearing Exhibit 4/23-31.
1147
10/21/2007 Moody’s internal email, Hearing Exhibit 4/23-24b. Although this email is addressed to and from the
CEO, the Chief Credit Officer told the Subcommittee that he wrote the memorandum attached to the email.
Subcommittee interview of Andy Kimball (4/15/2010).

296
securitizations. CRA analysts were then compelled to decide whether to follow an earlier
exception, revert to the published methodology and criteria, or devise still another compromise.
The result was additional confusion over how to rate complex RMBS and CDO securities.
Publication of the CRAs’ ratings methodologies and criteria was also inconsistent.
According to an October 2006 email sent by an investment banker at Morgan Stanley to an
analyst at Moody’s, for example, key methodology changes had not been made public: “Our
problem here is that nobody has told us about the changes that we are later expected to adhere to.
Since there is no published criteria outlining the change in methodology how are we supposed to
find out about it?” 1148 On another occasion, a Moody’s analyst sought guidance from senior
managers because of the lack of consistency in applying certain criteria. He wrote: “Over time,
different chairs have been giving different guidelines at different point[s] of time on how much
over-enhancement we need for a bond to be notched up to Aaa.” 1149 In a November 2007 email,
another senior executive described the criteria problem this way: “It seems, though, that the
more of the ad hoc rules we add, the further away from the data and models we move and the
closer we move to building models that ape analysts expectations, no?” 1150
The rating agency models were called by some a “black box,” because they were difficult
to understand and not always predictable. Issuers and investors alike vented frustrations toward
the black box and basing decisions on a computer program few understood or could replicate.
This email from June 20, 2006, recounts the conversation one Moody’s employee had with
another over frustrations they had heard from an outside issuer.
“Managers are tired of large ‘grids.’ They would rather prefer a model based test like
what S&P and Fitch do. Pascale disagrees with these managers. As a wrapper, she hates
that the credit quality of what she wraps is linked to a black box. Also, she hates the fact
that the black box can change from time to time.” 1151
A January 2007 email from BlackRock to S&P (and other rating agencies) also complained
about the “black box” problem:
“What steps are you taking to better communicate and comfort investors about your
ratings process? In other w[o]rds, how do we break the ‘black box’ that determines
enhancement levels?” 1152

1148

10/19/2006 email from Graham Jones (Morgan Stanley) to Yuri Yoshizawa (Moody’s) and others, Hearing
Exhibit 4/23-37. See 2008 SEC Examination Report for Moody’s Investor Services Inc., PSI-SEC (Moodys Exam
Report)-14-0001-16, at 5 (“[C]ertain significant aspects of the rating processes and the methodologies used to rate
RMBS and CDOs were not always disclosed, or were not fully disclosed .…”).
1149
6/28/2007 email from Yi Zhang to Warren Kornfeld and others, Hearing Exhibit 4/23-39.
1150
11/28/2007 email from Roger Stein to Andrew Kimball and Michael Kanef, Hearing Exhibit 4/23-44.
1151
6/20/2006 email from Paul Mazataud to Noel Kirnon, MIS-OCIE-RMBS-0035460 [emphasis in original].
1152
1/16/2007 email from Kishore Yalamanchili (BlackRock) to Scott Mason (S&P), Glenn Costello (Fitch
Ratings), and others, PSI-S&P-RFN-000044.

297
At times, some CRA analysts openly questioned their ability to rate some complex
securities. In a December 2006 email chain regarding a synthetic CDO squared, for example,
S&P analysts appeared challenged by a modeling problem and questioned their ability to rate the
product. One analyst wrote: “Rating agencies continue to create and [sic] even bigger monster –
the CDO market. Let’s hope we are all wealthy and retired by the time this house of cards
falters.” 1153 In an email written in a similar vein, an S&P manager preparing for a presentation
wrote to her colleagues: “Can anyone give me a crash course on the ‘hidden risks in CDO’s of
RMBS’?”1154 In an April 2007 instant message, an S&P analyst offered this cynical comment:
“[W]e rate every deal[.] [I]t could be structured by cows and we would rate it.” 1155

(4) Failure to Retest After Model Changes
Another key factor that contributed to inaccurate credit ratings was the failure of
Moody’s and S&P to retest outstanding RMBS and CDO securities after improvements were
made to their credit rating models. These model improvements generally did not derive from
data on new types of high risk mortgages, but were intended to improve the models’ predictive
capability, 1156 but even after they were made, CRA analysts failed to utilize them to downgrade
artificially high RMBS and CDO credit ratings.
Key model adjustments were made in 2006 to both the RMBS and CDO models to
improve their ability to predict expected default and loss rates for higher risk mortgages. Both
Moody’s and S&P decided to apply the revised models to rate new RMBS and CDO
transactions, but not to retest outstanding subprime RMBS and CDO securities, even though
many of those securities contained the same types of mortgages and risks that the models were
recalibrated to evaluate. Had they retested the existing RMBS and CDO securities and issued
appropriate rating downgrades starting in 2006, the CRAs could have signaled investors about
the increasing risk in the mortgage market, possibly dampened the rate of securitizations, and
possibly reduced the impact of the financial crisis.
Surveillance Obligations. Both Moody’s and S&P were obligated by contract to
conduct ongoing surveillance of the RMBS and CDO securities they rated to ensure the ratings
remained valid over the life of the rated securities. In fact, both companies charged annual
surveillance fees to the issuers of the securities to pay for the surveillance costs, and each had
established a separate division to carry out surveillance duties. Due to the huge numbers of
RMBS and CDO securities issued in the years leading up to the financial crisis, those
surveillance divisions were responsible for reviewing tens of thousands of securities. The issue
of whether to retest the outstanding securities using the revised credit rating models was, thus, a
significant issue affecting numerous securities and substantial company resources.

1153

12/15/2006 email from Chris Meyer to Belinda Ghetti and Nicole Billick, Hearing Exhibit 4/23-27.
1/17/2007 email from Monica Perelmuter to Kyle Beauchamp, and others, Hearing Exhibit 4/23-28.
1155
4/5/2007 instant message exchange between Shannon Mooney and Rahul Dilip Shah, Hearing Exhibit 4/23-30a.
1156
These model improvements still significantly underestimated subprime risk as is evidenced by the sheer number
of downgrades that occurred after the model improvements for securities issued in 2006 and 2007.
1154

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Increased Loss Protection. In July 2006, S&P made significant adjustments to its
subprime RMBS model. S&P had determined that, to avoid an increasing risk of default,
subprime RMBS securities required additional credit enhancements that would provide 40%
more protection to keep the investment grade securities from experiencing losses. 1157 Moody’s
made similar adjustments to its RMBS model around the same time, settling on parameters that
required 30% more loss protection. As Moody’s explained to the Senate Banking Committee in
September 2007:
“In response to the increase in the riskiness of loans made during the last few years and
the changing economic environment, Moody’s steadily increased its loss expectations
and subsequent levels of credit protection on pools of subprime loans. Our loss
expectations and enhancement levels rose by about 30% over the 2003 to 2006 time
period, and as a result, bonds issued in 2006 and rated by Moody’s had more credit
protection than bonds issued in earlier years.” 1158
The determination that RMBS pools required 30-40% more credit enhancements to
protect higher rated tranches from loss reflected calculations by the updated CRA models that
these asset pools were exposed to significantly more risk of delinquencies and defaults.
Requiring increased loss protection meant that Moody’s and S&P analysts had to require more
revenues to be set aside in each pool to provide AAA ratings greater protection than before the
model adjustments. Requiring increased loss protection also meant RMBS pools would have a
smaller pool of AAA securities to sell to investors. That meant, in turn, that RMBS pools would
produce fewer profits for issuers and arrangers. Requiring increased loss protection had a similar
impact on CDOs that included RMBS assets.
Retesting RMBS Securities. Even though S&P and Moody’s had independently revised
their RMBS models and, by 2006, determined that additional credit enhancements of 30-40%
were needed to protect investment grade tranches from loss, in 2006 and the first half of 2007,
neither company used its revised models to evaluate existing rated subprime RMBS securities as
part of its surveillance efforts. 1159 Instead S&P, for example, sent out a June 2006 email
announcing that no retests would be done:

1157

3/19/2007 “Structured Finance Ratings - Overview and Impact of the Residential Subprime Market,” S&P
Monthly Review Meeting, at S&P SEC-PSI 0001473, Hearing Exhibit 4/23-52b.
1158
Prepared statement of Michael Kanef, Group Managing Director of Moody’s Asset Backed Finance Rating
Group, “The Role and Impact of Credit Rating Agencies on the Subprime Credit Markets,” before the U.S. Senate
Committee on Banking, Housing, and Urban Affairs, S.Hrg. 110-931 (9/26/2007), at 17.
1159
6/2006 S&P internal email exchange, Hearing Exhibit 4/23-72; and 3/31/2008 Moody’s Structured Finance
Credit Committee Meeting Notes, Hearing Exhibit 4/23-80. See also 7/16/2007 Moody’s email from Joseph Snailer
to Qingyu Liu, and others, PSI-MOODYS-RFN-000029 (when an analyst sought guidance on whether to use the
new or old methodology for testing unrated tranches of outstanding deals, she was advised: “The ratings you are
generating should reflect what we would have rated the deals when they were issued knowing what we knew then
and using the methodology in effect then (ie, using the OC model we built then.”); 6/1/2007 email from Moody’s
Senior Director in Structured Finance, “RE: Financial Times inquiry on transparency of assumptions,” MIS-OCIERMBS-0364942-46, at 43.

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“Simply put – although the RMBS Group does not ‘grandfather’ existing deals, there is
not an absolute and direct link between changes to our new ratings models and
subsequent rating actions taken by the RMBS Surveillance Group. As a result, there will
not be wholesale rating actions taken in July or shortly thereafter on outstanding RMBS
transactions, absent a deterioration in performance and projected credit support on any
individual transaction.” 1160
Moody’s and S&P each advised the Subcommittee that it had decided not to retest any
existing rated RMBS securities, because it felt that actual performance data for the pools in
question would provide a better indicator of future defaults and loss than application of its
statistical model. But actual loan performance data for the subprime mortgages in the pools – the
fact that, for example, timely loan payments had been made in the past on most of those loans –
provided an incomplete picture regarding whether those payments would continue to be made
after home prices stopped climbing, refinancings became difficult, and higher interest rates took
effect in many of the mortgages. By focusing only on actual past performance, the ratings
ignored foreseeable problems and gave investors false assurances about the creditworthiness of
the RMBS and CDO securities.
Some CRA employees expressed concern about the limitations placed on their ability to
alter ratings to reflect expected performance of the rated securities. In a July 2007 email just
before the mass ratings downgrades began, for example, an S&P senior executive raised
concerns about these to the head of the RMBS Surveillance Group as follows:
“Overall, our ratings should be based on our expectations of performance, not
solely the month to month performance record, which will only be backward
looking. ... Up to this point, Surveillance has been ‘limited’ in when we can
downgrade a rating (only after it has experienced realized losses), how far we can
adjust the rating (no more than 3 notches at a time is preferred), and how high up
the capital structure we can go (not downgrading higher rated classes, if they
‘pass’ our stressed cash flow runs).” 1161
In addition, many of the RMBS loans were less than a year old, making any performance
data less significant and difficult to analyze. In others words, the loans were too
unseasoned or new to offer any real predictive performance value.

1160

6/23/2006 email from Thomas Warrack to Pat Jordan and Rosario Buendia, Hearing Exhibit 4/23-72 [emphasis
in original]. Despite this 2006 email, the former head of S&P’s RMBS Group, Frank Raiter, told a House
Committee: “At S&P, there was an ongoing, often heated discussion that using the ratings model in surveillance
would allow for re-rating every deal monthly and provide significantly improved measures of current and future
performance.” Prepared statement of Frank L. Raiter, “Credit Rating Agencies and the Financial Crisis,” before the
U.S. House of Representatives Committee on Oversight and Government Reform, Cong.Hrg. 110-155 (10/22/2008),
at 7.
1161
7/3/2007 S&P email from Cliff Griep to Ernestine Warner and Stephen Anderberg, Hearing Exhibit 4/23-32
[emphasis in original].

300
Some internal S&P emails suggest alternative explanations for the decision not to retest.
In October 2005, for example, an S&P analytic manager in the Structured Finance Ratings Group
sent an email to his colleagues asking: “How do we handle existing deals especially if there are
material changes [to a model] that can cause existing ratings to change?” His email then laid out
what he believed was S&P’s position at that time:
•

“I think the history has been to only re-review a deal under new assumptions/criteria
when the deal is flagged for some performance reason. I do not know of a situation
where there were wholesale changes to existing ratings when the primary group
changed assumptions or even instituted new criteria. The two major reasons why we
have taken the approach is (i) lack of sufficient personnel resources and (ii) not
having the same models/information available for surveillance to relook at an existing
deal with the new assumptions (i.e. no cash flow models for a number of assets). The
third reason is concerns of how disruptive wholesale rating changes, based on a
criteria change, can be to the market.

•

CDO is current[ly] debating the issue and appropriate approach as they change the
methodology.” 1162

This email suggests the reason retesting did not occur was, not because S&P thought
actual performance data would produce more accurate ratings for existing pools, but because
S&P did not have the resources to retest, and lower ratings on existing deals might have
disrupted the marketplace, upsetting investment banks and investors. Several S&P managers and
analysts confirmed in Subcommittee interviews that these were the real reasons for the decision
not to retest existing RMBS securities. 1163 Moody’s documents also suggest that resource
constraints may lay behind its decision not to retest. 1164
The Subcommittee also found evidence suggesting that investment banks may have
rushed to have deals rated before the CRAs implemented more stringent revised models. In an
attempt to explain why one RMBS security from the same vintage and originator was pricing
better than another, a CDO trader wrote:
“Only reasons I can think for my guys showing you a tighter level is that we are very
short this one and that the June 06 deals have a taint that earlier months don[’]t due to the
theory that late June deals were crammed with bad stuff in order to beat the S & P
[model] revisions.1165
1162

10/6/2005 email from Roy Chun, Hearing Exhibit 4/23-62.
Prepared statement of Frank Raiter, Former Managing Director at Standard & Poor’s, April 23, 2010
Subcommittee Hearing, at 2; and Subcommittee interviews of S&P confidential sources (2/24/2010) and (4/9/2010).
1164
See, e.g., 3/31/2008 Moody’s Structured Finance Credit Committee Meeting Notes, Hearing Exhibit 4/23-80
(“Currently, following a methodology change, Moody’s does not re-evaluate every outstanding, affected rating.
Instead, it reviews only those obligations that it considers most prone to multi-notch rating changes, in light of the
revised rating approach. This decision to selectively review certain ratings is made due to resource constraints.”).
1165
10/20/2006 email from Greg Lippmann (Deutsche Bank) to Craig Carlozzi (Mast Capital),
DBSI_PSI_EMAIL01774820.
1163

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Retesting CDO Securities. The debate over retesting existing CDO securities followed
a similar path to the debate over retesting RMBS securities. The CDO Group at S&P first faced
the retest question in the summer of 2005, when it made a major change to its CDO model, then
Evaluator 3 (E3). 1166 The S&P CDO Group appeared ready to announce and implement the
improved model that summer, but then took more than a year to implement it as the group
struggled to rationalize why it would not retest existing CDO securities with the improved
assumptions. 1167 Internal S&P emails indicate that the primary considerations were, again,
resource limitations and possible disruption to the CDO market, rather than concerns over
accuracy. For instance, in a June 2005 email sent to an S&P senior executive, the head of the
CDO Group wrote:
“The overarching issue at this point is what to do with currently rated transactions if we
do release a new version of Evaluator. Some of [us] believe for both logistical and
market reasons that the existing deals should mainly be ‘grand fathered’. Others believe
that we should run all deals using the new Evaluator. The problem with running all deals
using E3 is twofold: we don’t have the model or resource capacity to do so, nor do we all
believe that even if we did have the capability, it would be the responsible thing to do to
the market.” 1168
Several months later the S&P CDO Ratings Group was still deliberating the issue. In
November 2005, an investment banker at Morgan Stanley who had concerns about whether E3
would be used to retest existing deals and those in the pipeline expressed frustration at the delay:
“We are in a bit of a pickle here. My legal staff is not letting me send anything out to any
investor on anything with an S&P rating right now. We are waiting for you to tell us …
that you approve the disclaimer or are grandfathering [not retesting with E3] our existing
and pipeline deals. My business is on ‘pause’ right now.” 1169
One S&P senior manager, frustrated by an inability to get an answer on the retesting issue, sent
an email to a colleague complaining: “Lord help our f**king scam ... this has to be the stupidest
place I have worked at.” 1170

1166

The CDO models were simulation models dependent upon past credit ratings for the assets they included plus
various performance and correlation assumptions. See earlier discussion of these models.
1167
7/12/2005 S&P internal email, “Delay in Evaluator 3.0 incorporation in EOD/CDOi platform,” PSI-S&P-RFN000017.
1168
6/21/2005 email from Pat Jordan to Cliff Griep, “RE: new CDO criteria,” Hearing Exhibit 4/23-60. See also
3/21/2006 email from an S&P senior official, Hearing Exhibit 4/23-71. (“FYI. Just sat on a panel with Frderic
Drevon, my opposite number at Moody’s who fielded a question on what happens to old transactions when there is a
change to rating methodologie[s]. The official Moody’s line is that there is no ‘grandfathering’ and that old
transactions are reviewed using the new criteria. However, the ‘truth is that we do not have the resources to review
thousands of transactions, so we focus on those that we feel are more at risk.’”).
1169
11/23/2005 email from Brian Neer (Morgan Stanley) to Elwyn Wong (S&P), Hearing Exhibit 4/23-64.
1170
11/23/2005 email from Elwyn Wong to Andrea Bryan, Hearing Exhibit 4/23-64.

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In May 2006, S&P circulated a draft policy setting up what seemed to be an informal
screening process “prior to transition date” to see how existing CDOs would be affected by the
revised CDO model. The draft offered a convoluted approach in an apparent attempt to avoid
retesting all existing CDOs, which included allowing the use of the prior “E2” model and review
“by a special E3 committee.” The draft policy read in part as follows:
“***PRIVILEGED AND CONFIDENTIAL - S&P DISCUSSION PURPOSES ONLY***
Prior to Transition Date (in preparation for final implementation of E3 for cash
CDOs):
• A large majority of the pre- E3 cash flow CDOs will be run through E3 in batch
processes to see how the ratings look within the new model …
•

Ratings falling more than 3 notches +/- from the current tranche rating in the
batch process will be reviewed in detail for any modeling, data, performance or
other issues

•

If any transactions are found to be passing/failing E3 by more than 3 notches due
to performance reasons they will be handled through the regular surveillance
process to see if the ratings are stable under current criteria (i.e., if they pass
E2.4.3 using current cash flow assumptions the ratings will remain unchanged)

•

If any transactions are found to be passing/failing E3 by more than 3 notches due
to a model gap between E2.4.3 and E3, they will be reviewed by a special E3
committee ....” 1171

It is unclear whether this screening actually took place.
Questions continued to be raised internally at S&P about the retesting issue. In March
2007, almost a year after the change was made in the CDO model, an S&P senior executive
wrote to the Chief Criteria Officer in the structured finance department:
“Why did the criteria change made in mid 2006 not impact any outstanding transactions
at the time we changed it, especially given the magnitude of the change we are
highlighting in the article? Should we apply the new criteria now, given what we now
know? If we did, what would be the impact?” 1172
In July 2007, the same senior executive raised the issue again in an email asking the S&P
Analytic Policy Board to address the alignment of surveillance methodology and new model
changes at a “special meeting.” 1173 But by then, residential mortgages were already defaulting in
record numbers, and the mass downgrades of RMBS and CDO ratings had begun.

1171

5/19/2006 email from Stephen Anderberg to Pat Jordan, David Tesher, and others, PSI-S&P-RFN-000021
[emphasis in original].
1172
3/12/2007 email from Cliff Griep to Tom Gillis, and others, PSI-S&P-RFN-000015.
1173
7/15/2007 email from Tom Gillis to Valencia Daniels, “Special APB meeting,” Hearing Exhibit 4/23-74.

303
Consequences for Investors. During the April 23 Subcommittee hearing, credit ratings
expert, Professor Arturo Cifuentes, explained to the Subcommittee the importance of retesting
existing rated deals when there is a model change.
Senator Levin: If a ratings model changes its assumptions or criteria, for instance, if it
becomes materially more conservative, how important is it that the credit rating agency
use the new assumptions or criteria to re-test or re-evaluate securities that are under
surveillance?
Mr. Cifuentes: Well, it is very important for two reasons: Because if you do not do that,
you are basically creating two classes of securities, a low class and an upper class, and
that creates a discrepancy in the market. At the same time, you are not being fair because
you are giving an inflated rating then to a security or you are not communicating to the
market that the ratings given before were of a different class. 1174
Moody’s and S&P updated their RMBS and CDO models with more conservative criteria
in 2006, but then used the revised models to evaluate only new RMBS and CDO transactions,
bypassing the existing RMBS and CDO securities that could have benefited from the new credit
analysis. Even with respect to the new RMBS and CDOs, investment banks sought to delay use
of the revised models that required additional credit enhancements to protect investment grade
tranches from loss. For example, in May 2007, Morgan Stanley sent an email to a Moody’s
Managing Director with the following:
“Thanks again for your help (and Mark’s) in getting Morgan Stanley up-to-speed with
your new methodology. As we discussed last Friday, please find below a list of
transactions with which Morgan Stanley is significantly engaged already (assets in
warehouses, some liabilities placed). We appreciate your willingness to grandfather
these transactions [under] Moody’s old methodology.” 1175
When asked about the failure of Moody’s and S&P to retest existing securities after their
model updates in 2006, the global head trader for CDOs from Deutsche Bank told the
Subcommittee that he believed the credit rating agencies did not retest them, because to do so
would have meant significant downgrades and “they did not want to upset the apple cart.” 1176
Instead, the credit rating agencies waited until 2007, when the high risk mortgages underlying
the outstanding RMBS and CDO securities incurred record delinquencies and defaults and then,
based upon the actual loan performance, instituted mass ratings downgrades. Those sudden mass
downgrades caught many financial institutions and other investors by surprise, leaving them with
1174

April 23, 2010 Subcommittee Hearing at 35.
5/2/2007 email from Zach Buchwald (Morgan Stanley Executive Director) to William May (Moody’s Managing
Director), and others, Hearing Exhibit 4/23-76. See also 4/11/2007 email from Moody’s Managing Director to
Calyon, PSI-MOODYS-RFN-000040.
1176
Subcommittee interview of Greg Lippmann, Former Managing Director and Global Head of Trading of CDOs
for Deutsche Bank (10/18/2010). Mr. Lippmann said he thought the agencies’ decision not to retest existing
securities was “ridiculous.”
1175

304
billions of dollars of suddenly unmarketable securities. The RMBS secondary market collapsed
soon after, and the CDO secondary market followed.

(5) Inadequate Resources
In addition to operating with conflicts of interest, models containing inadequate
performance data, subjective and inconsistent rating criteria, and a policy against using improved
models to retest outstanding RMBS and CDO securities, and despite the increasing numbers of
ratings issued each year and record revenues as a result, neither Moody’s nor S&P hired
sufficient staff or devoted sufficient resources to ensure that the initial rating process and the
subsequent surveillance process produced accurate credit ratings.
Instead, both Moody’s and S&P forced their staffs to churn out new ratings and conduct
required surveillance with limited resources. Over time, the credit rating agencies’ profits
became increasingly connected to issuing a high volume of ratings. By not devoting sufficient
resources to handle the high volume of ratings, the strain on resources negatively impacted the
quality of the ratings and their surveillance.
High Speed Ratings. From 2000 to 2007, Moody’s and S&P issued record numbers of
RMBS and CDO ratings. Each year the number of ratings issued by each firm increased.
According to SEC examinations of the firms, from 2002 to 2006, “the volume of RMBS deals
rated by Moody’s increased by 137%, and the number of CDO deals … increased by 700%.” 1177
At S&P, the SEC determined that over the same time period, “the volume of RMBS deals rated
by S&P increased by 130%, and the number of CDO deals … increased by over 900%.” 1178 In
addition to the rapid growth in numbers, the transactions themselves grew in complexity,
requiring more time and talent to analyze.
The former head of the S&P RMBS Group, Frank Raiter, described the tension between
profits and resources this way: “Management wanted increased revenues and profit while
analysts wanted more staff, data and IT support which increased expenses and obviously reduced
profit.” 1179
Moody’s CEO, Ray McDaniel, readily acknowledged during the Subcommittee’s April
23 hearing that resources were stressed and that Moody’s was short staffed. 1180 He testified:
“People were working longer hours than we wanted them to, working more days of the week
than we wanted them to.” He continued: “It was not for lack of having open positions, but with

1177

2008 SEC Examination Report for Moody’s Investor Services Inc., PSI-SEC (Moodys Exam Report)-14-000116, at 4.
1178
2008 SEC Examination Report for Standard and Poor’s Ratings Services, Inc., PSI-SEC (S&P Exam Report)14-0001-24, at 3.
1179
Prepared statement of Frank Raiter, Former Managing Director at Standard & Poor’s, April 23, 2010
Subcommittee Hearing, at 1-2.
1180
April 23, 2010 Subcommittee Hearing at 96-97.

305
the pace at which the market was growing, it was difficult to fill positions as quickly as we
would have liked.” 1181
Moody’s staff, however, had raised concerns about personnel shortages impacting their
work quality as early as 2002. A 2002 survey of the Structured Finance Group staff reported,
for example:
“[T]here is some concern about workload and its impact on operating effectiveness. …
Most acknowledge that Moody’s intends to run lean, but there is some question of
whether effectiveness is compromised by the current deployment of staff.” 1182
Similar concerns were expressed three years later in a 2005 employee survey:
“We are over worked. Too many demands are placed on us for admin[istrative] tasks ...
and are detracting from primary workflow .... We need better technology to meet the
demand of running increasingly sophisticated models.” 1183
In 2006, Moody’s analyst Richard Michalek worried that investment bankers were taking
advantage of the fact that analysts did not have the time to understand complex deals. He wrote:
“I am worried that we are not able to give these complicated deals the attention they
really deserve, and that they (CS) [Credit Suisse] are taking advantage of the ‘light’
review and the growing sense of ‘precedent’.” 1184
Moody’s managers and analysts interviewed by the Subcommittee stated that staff
shortages impacted how much time could be spent analyzing a transaction. One analyst
responsible for rating CDOs told the Subcommittee that, during the height of the boom, Moody’s
analysts didn’t have time to understand the complex deals being rated and had to set priorities on
what issues would be examined:
“When I joined the [CDO] Group in 1999 there were seven lawyers and the Group rated
something on the order of 40 – 60 transactions annually. In 2006, the Group rated over
600 transactions, using the resources of approximately 12 lawyers. The hyper-growth
years from the second half of 2004 through 2006 represented a steady and constant
adjustment to the amount of time that could be allotted to any particular deal’s analysis,
and with that adjustment, a constant re-ordering of the priority assigned to the issues to be
raised at rating Committees.” 1185

1181

Id. at 97.
5/2/2002 “Moody’s SFG 2002 Associate Survey: Highlights of Focus Groups and Interviews,” Hearing Exhibit
4/23-92a at 6.
1183
4/7/2006 “Moody’s Investor Service, BES-2005: Presentation to Derivatives Team,” Hearing Exhibit 4/23-92b.
1184
5/1/2006 email from Richard Michalek to Yuri Yoshizawa, Hearing Exhibit 4/23-19.
1185
Prepared statement of Richard Michalek at 20, April 23, 2010 Subcommittee hearing.
1182

306
A Moody’s managing director responsible for supervising CDO analysts put it this way in a 2007
email: “Unfortunately, our analysts are o[v]erwhelmed .…” 1186 Moody’s CEO testified at the
Subcommittee’s hearing, “[w]e had stress on our resources in this period, absolutely.” 1187
Senator Levin asked him if Moody’s was profitable at the time, and he responded, “[w]e were
profitable, yes.” 1188
S&P also experienced significant resource shortages. In 2004, for example, a managing
director in the RMBS Group wrote a lengthy email about the resource problems impacting credit
analysis:
“I am trying to put my hat on not only for ABS/RMBS but for the department and be
helpful but feel that it is necessary to re-iterate that there is a shortage in resources in
RMBS. If I did not convey this to each of you I would be doing a disservice to each of
you and the department. As an update, December is going to be our busiest month ever
in RMBS. I am also concerned that there is a perception that we have been getting all the
work done up until now and therefore can continue to do so.
“We ran our Staffing model assuming the analysts are working 60 hours a week and we
are short resources. We could talk about the assumptions and make modifications but the
results would be similar. The analysts on average are working longer than this and we
are burning them out. We have had a couple of resignations and expect more. It has
come to my attention in the last couple of days that we have a number of staff members
that are experiencing health issues.” 1189
A May 2006 internal email from an S&P senior manager in the Structured Finance Real
Estate Ratings Group expressed similar concerns:
“We spend most of our time keeping each other and our staff calm. Tensions are high.
Just too much work, not enough people, pressure from company, quite a bit of turnover
and no coordination of the non-deal ‘stuff’ they want us and our staff to do ....” 1190
The head of the S&P CDO Ratings Group sent a 2006 email to the head of the Structured
Finance Department to make a similar point. She wrote:
“While I realize that our revenues and client service numbers don’t indicate any ill
[e]ffects from our severe understaffing situation, I am more concerned than ever that we
are on a downward spiral of morale, analytical leadership/quality and client service.” 1191
1186

5/23/2007 email from Eric Kolchinsky to Yvonne Fu and Yuri Yoshizawa, Hearing Exhibit 4/23-91.
April 23, 2010 Subcommittee Hearing at 97.
1188
Id.
1189
12/3/2004 email from Gail McDermott to Abe Losice and Pat Jordan, PSI-S&P-RFN-000034.
1190
5/2/2006 email from Gale Scott to Diane Cory, “RE: Change in scheduling/Coaching sessions/Other stuff,” PSIS&P-RFN-000012.
1191
10/31/2006 S&P internal email, “A CDO Director resignation,” PSI-S&P-RFN-000001.
1187

307
Some of the groups came up with creative ways to address their staffing shortages. For
example, the head of the S&P RMBS Ratings Group between 2005 and 2007, Susan Barnes,
advised the Subcommittee that her group regularly borrowed staff from the S&P Surveillance
Group to assist with new ratings. She said that almost half the surveillance staff provided
assistance on issuing new ratings during her tenure, and estimated that each person in the
surveillance group might have contributed up to 25% of his or her time to issuing new
ratings. 1192
The Subcommittee investigation discovered a cadre of professional RMBS and CDO
rating analysts who were rushed, overworked, and demoralized. They were asked to evaluate
increasing numbers of increasingly complex financial instruments at high speed, using out-ofdate rating models and unclear ratings criteria, while acting under pressure from management to
increase market share and revenues and pressure from investment banks to ignore credit risk.
These analysts were short staffed even as their employers collected record revenues.
Resource-Starved Surveillance. Resource shortages also impacted the ability of the
credit rating agencies to conduct surveillance on outstanding rated RMBS and CDO securities to
evaluate their credit risk. The credit rating agencies were contractually obligated to monitor the
accuracy of the ratings they issued over the life of the rated transactions. CRA surveillance
analysts were supposed to evaluate each rating on an ongoing basis to determine whether the
rating should be affirmed, upgraded, or downgraded. To support this analysis, both companies
collected substantial annual surveillance fees from the issuers of the financial instruments they
rated, and set up surveillance groups to review the ratings. In the case of RMBS and CDO
securities, the Subcommittee investigation found evidence that these surveillance groups may
have lacked the resources to properly monitor the thousands of rated products.
At Moody’s, for example, a 2007 email disclosed that about 26 surveillance analysts
were responsible for tracking over 13,000 rated CDO securities:
“Thanks for sharing the draft of the CDO surveillance piece you’re planning to publish
later this week. … In the section about your CDO surveillance infrastructure, we were
struck by the data point about the 26 professionals who are dedicated to monitoring CDO
ratings. While this is, no doubt, a strong team, we wanted to at least raise the question
about whether the company’s critics could twist that number – e.g., by comparing it to the
13,000+ CDOs you’re monitoring – and once again question if you have adequate
resources to do your job effectively. Given that potential risk, we thought you might
consider removing any specific reference to the number of people on the CDO
surveillance team.” 1193
The evidence of surveillance shortages at S&P was particularly telling. Although during
an interview with the Subcommittee, the head of S&P’s RMBS Surveillance Group from 2001 to
2008, Ernestine Warner, said she had adequate resources to conduct surveillance of rated RMBS
1192
1193

Subcommittee interview of Susan Barnes (3/18/2010).
7/9/2007 email to Yuri Yoshizawa, “FW: CDO Surveillance Note 7_071.doc,” PSI-MOODYS-RFN-000022.

308
securities during her tenure, her emails indicate otherwise. 1194 In emails sent over a two-year
period, she repeatedly described and complained about a lack of resources that was impeding her
group’s ability to complete its work. In the spring of 2006, she emailed her colleague about her
growing anxiety:
“RMBS has an all time high of 5900 transactions. Each time I consider what my group is
faced with, I become more and more anxious. The situation with Lal [a surveillance
analyst], being off line or out of the group, is having a huge impact.” 1195
In June 2006, she wrote that the problems were not getting better:
“It really feels like I am repeating myself when it comes to completing a very simple
project and addressing some of the other surveillance needs. … The inability to make a
decision about how the project is going to be resourced is causing undue stress. I have
talked to you and Peter [D’Erchia, head of global structured finance surveillance,] about
each of the issues below and at this point I am not sure what else you need from me. …
To rehash the points below:
In addition to the project above that involves some 863 deals, I have a back log of deals
that are out of date with regard to ratings. … We recognize that I am still
understaffed with these two additional bodies. … [W]e may be falling further behind at
the rate the deals are closing. If we do not agree on the actual number, certainly we can
agree that I need more recourse if I am ever going to be near compliance.” 1196
In December 2006, she wrote:
“In light of the current state of residential mortgage performance, especially sub-prime, I
think it would be very beneficial for the RMBS surveillance team to have the work being
done by the temps to continue. It is still very important that performance data is loaded
on a timely basis as this has an impact on our exception reports. Currently, there are
nearly 1,000 deals with data loads aged beyond one month.” 1197
In February 2007, she expressed concerns about having adequate resources to address
potential downgrades in RMBS:
“I talked to Tommy yesterday and he thinks that the [RMBS] ratings are not going to
hold through 2007. He asked me to begin discussing taking rating actions earlier on the
1194

During an interview, the head of RMBS surveillance advised that she believed she was adequately resourced and
prioritized her review of outstanding securities by focusing on 2006 and 2007 vintages that had performance
problems. Subcommittee interview of Ernestine Warner (3/11/2010).
1195
4/28/2006 email from Ernestine Warner to Roy Chun, and others, Hearing Exhibit 4/23-82.
1196
6/1/2006 emails from Ernestine Warner to Roy Chun, Hearing Exhibit 4/23-83.
1197
12/20/2006 email from Ernestine Warner to Gail Houston, Roy Chun, others, Hearing Exhibit 4/23-84.

309
poor performing deals. I have been thinking about this for much of the night. We do not
have the resources to support what we are doing now. A new process, without the right
support, would be overwhelming. ... My group is under serious pressure to respond to the
burgeoning poor performance of sub-prime deals. … we are really falling behind. … I am
seeing evidence that I really need to add staff to keep up with what is going on with sub
prime and mortgage performance in general, NOW.” 1198
In April 2007, a managing director at S&P in the Structured Finance Group wrote an
email confirming the staffing shortages in the RMBS Surveillance Group:
“We have worked together with Ernestine Warner (EW) to produce a staffing model for
RMBS Surveillance (R-Surv). It is intended to measure the staffing needed for detailed
surveillance of the 2006 vintage and also everything issued prior to that. This model
shows that the R-Surv staff is short by 7 FTE [Full Time Employees] - about 3 Directors,
2 AD’s, and 2 Associates. The model suggests that the current staff may have been right
sized if we excluded coverage of the 2006 vintage, but was under titled lacking sufficient
seniority, skill, and experience.” 1199
The global head of the S&P Structured Finance Surveillance Group, Peter D’Erchia, told
the Subcommittee that, in late 2006, he expressed concerns to senior management about
surveillance resources and the need to downgrade subprime in more significant numbers in light
of the deteriorating subprime market. 1200 According to Mr. D’Erchia, the executive managing
director of the Global Structured Finance Ratings Group, Joanne Rose, disagreed with him about
the need to issue significantly more downgrades in subprime RMBS and this disagreement
continued into the next year. He also told the Subcommittee that after this disagreement with
her, he received a disappointing 2007 performance evaluation. He wrote the following in the
employee comment section of his evaluation:
“Even more offensive – and flatly wrong – is the statement that I am not working for a
good outcome for S&P. That is all I am working towards and have been for 26 years. It
is hard to respond to such comments, which I think reflect Joanne’s [Rose] personal
feelings arising from our disagreement over subprime debt deterioration, not professional
assessment. … Such comments, and others like it, suggest to me that this year-end
appraisal, in contrast to the mid-year appraisal, has more to do with our differences over
subprime deterioration than an objective assessment of my overall performance.” 1201
In 2008, Mr. D’Erchia was removed from his surveillance position, where he oversaw
more than 314 employees, as part of a reduction in force. He was subsequently rehired as a
managing director in U.S. Public Finance at S&P, a position without staff to supervise.
1198

2/3/2007 email from Ernestine Warner to Peter D’Erchia, Hearing Exhibit 4/23-86 [emphasis in original].
4/24/2007 email from Abe Losice to Susan Barnes, “Staffing for RMBS Surveillance,” Hearing Exhibit 4/23-88.
1200
Subcommittee interview of Peter D’Erchia (4/13/2010).
1201
2007 Performance Evaluation for Peter D’Erchia, S&P SEN-PSI 0007442; See also April 23, 2010
Subcommittee Hearing at 74-75.
1199

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Similarly, Ernestine Warner, the head of RMBS Surveillance, lost her managerial position and
was reassigned to investor relations in the Structured Finance Group.
On July 10, 2007, amid record mortgage defaults, S&P abruptly began downgrading its
outstanding RMBS and CDO ratings. In July alone, it downgraded the ratings of more than
1,000 RMBS and 100 CDO securities. Both credit rating agencies continued to issue significant
downgrades throughout the remainder of 2007. On January 30, 2008, S&P took action on over
8,200 RMBS and CDO ratings – meaning it either downgraded their ratings or placed the
securities on credit watch with negative implications. These and other downgrades, matched by
equally substantial numbers at Moody’s, paint a picture of CRA surveillance teams acting at top
speed in overwhelming circumstances to correct thousands of inaccurate RMBS and CDO
ratings. When asked to produce contemporaneous decision-making documents indicating how
and when the ratings were selected for downgrade, neither S&P nor Moody’s produced
meaningful documentation. The facts suggest that CRA surveillance analysts with already
substantial responsibilities and limited resources were forced to go into overdrive to clean up
ratings that could not “hold.”

(6) Mortgage Fraud
A final factor that contributed to inaccurate credit ratings involves mortgage fraud.
Although the credit rating agencies were clearly aware of increased levels of mortgage fraud,
they did not factor that credit risk into their quantitative models or adequately factor it into their
qualitative analyses. The absence of that credit risk meant that the credit enhancements they
required were insufficient, the tranches bearing AAA ratings were too large, and the ratings they
issued were too optimistic.
Reports of mortgage fraud were frequent and mounted yearly prior to the financial crisis.
As noted above, as early as 2004, the FBI began issuing reports on increased mortgage fraud. 1202
The FBI was also quoted in Congressional testimony and in the popular press about the mortgage
fraud problem. CNN reported that “[r]ampant fraud in the mortgage industry has increased so
sharply that the FBI warned Friday of an ‘epidemic’ of financial crimes which, if not curtailed,
could become ‘the next S&L crisis.’” 1203 In 2006, the FBI reported that the number of
Suspicious Activity Reports on mortgage fraud had increased sixfold, from about 6,800 in 2002,
to about 36,800 in 2006, while pending mortgage fraud cases nearly doubled from 436 in FY
2003 to 818 in FY 2006. 1204 The Mortgage Asset Research Institute, LLC (MARI) also reported
increasing mortgage fraud over several years, including a 30% increase in 2006 alone. 1205
1202

FY 2004 “Financial Institution Fraud and Failure Report,” prepared by the Federal Bureau of Investigation,
available at http://www.fbi.gov/stats-services/publications/fiff_04.
1203
“FBI warns of mortgage fraud ‘epidemic’,” CNN.com (9/17/2004), http://articles.cnn.com/2004-0917/justice/mortgage.fraud_1_mortgage-fraud-mortgage-industry-s-1-crisis?_s=PM:LAW.
1204
“Financial Crimes Report to the Public: Fiscal Year 2006, October 1, 2005 – September 30, 2006,” prepared by
the Federal Bureau of Investigation, available at http://www.fbi.gov/statsservices/publications/fcs_report2006/financial-crimes-report-to-the-public-2006-pdf/view.
1205
4/2007 “Ninth Periodic Mortgage Fraud Case Report to Mortgage Bankers Association,” prepared by Mortgage
Asset Research Institute, LLC.

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Published reports, as well as internal emails, demonstrate that analysts within both
Moody’s and S&P were aware of the serious mortgage fraud problem in the industry. 1206
Despite being on notice about the problem and despite assertions about the importance of loan
data quality in the ratings process for structured finance securities, 1207 neither Moody’s nor S&P
established procedures to account for the possibility of fraud in its ratings process. For example,
neither company took any steps to ensure that the loan data provided for specific RMBS loan
pools had been reviewed for accuracy. 1208 The former head of S&P’s RMBS Group, Frank
Raiter, stated in his prepared testimony for the Subcommittee hearing that the S&P rating
process did not include any “due diligence” review of the loan tape or any requirement for the
provider of the loan tape to certify its accuracy. He stated: “We were discouraged from even
using the term ‘due diligence’ as it was believed to expose S&P to liability.” 1209 Fraud was also
not factored into the RMBS or CDO quantitative models. 1210
Yet when Moody’s and S&P initiated the mass downgrades of RMBS and CDO
securities in July 2007, they directed some of the blame for the rating errors on the volume of
mortgage fraud. On July 10, 2007, when S&P announced that it was placing 612 U.S. subprime
RMBS on negative credit watch, S&P noted the high incidence of fraud reported by MARI,
“misrepresentations on credit reports,” and that “[d]ata quality concerning some of the borrower
and loan characteristics provided during the rating process [had] also come under question.” 1211
In October 2007, the CEO of Fitch Ratings, another ratings firm, said in an interview that “the
blame may lie with fraudulent lending practices, not his industry.” 1212 Moody’s made similar
observations. In 2008, Moody’s CEO Ray McDaniel told a panel at the World Economic
Forum:
“In hindsight, it is pretty clear that there was a failure in some key assumptions that were
supporting our analytics and our models. … [One reason for the failure was that the]

1206

See, e.g., 9/2/2006 email chain between Richard Koch, Robert Mackey, and Michael Gutierrez, “Nightmare
Mortgages,” Hearing Exhibit 4/23-46a; 9/5/2006 email chain between Edward Highland, Michael Gutierrez, and
Richard Koch, “Nightmare Mortgages,” Hearing Exhibit 4/23-46b; and 9/29/2006 email from Michael Gutierrez,
Director of S&P, PSI-S&P-RFN-000029.
1207
See, e.g., 6/24/2010 supplemental response from S&P to the Subcommittee, Exhibit H, Hearing Exhibit 4/23108 (7/11/2007 “S&PCORRECT: 612 U.S. Subprime RMBS Classes Put On Watch Neg; Methodology Revisions
Announced,” S&P’s RatingsDirect (correcting the original version issued on 7/10/2007)).
1208
See, e.g., 2008 SEC Examination Report for Moody’s Investor Services Inc., PSI-SEC (Moodys Exam Report)14-0001-16, at 7; and 2008 SEC Examination Report for Standard and Poor’s Ratings Services, Inc., PSI-SEC (S&P
Exam Report)-14-0001-24, at 11 (finding with respect to each credit rating agency that it “did not engage in any due
diligence or otherwise seek to verify the accuracy and quality of the loan data underlying the RMBS pools it rated”).
1209
Prepared statement of Frank Raiter, Former Managing Director at Standard & Poor’s, April 23, 2010
Subcommittee Hearing, at 3.
1210
Subcommittee interviews of Susan Barnes (3/18/2010) and Richard Gugliada (10/9/2009).
1211
6/24/2010 supplemental response from S&P to the Subcommittee, Exhibit H, Hearing Exhibit 4/23-108
(7/11/2007 “S&PCORRECT: 612 U.S. Subprime RMBS Classes Put On Watch Neg; Methodology Revisions
Announced,” S&P’s RatingsDirect (correcting the original version issued on 7/10/2007)).
1212
10/12/2007 Moody’s internal email, PSI-MOODYS-RFN-000035 (citing “Fitch CEO says fraudulent lending
practices may have contributed to problems with ratings,” Associated Press, and noting: “After S&P, Fitch is now
blaming fraud for the impact on RMBS, at least partially.”).

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‘information quality’ [given to Moody’s,] both the complete[ness] and veracity, was
deteriorating.” 1213
In 2007, Fitch Ratings decided to conduct a review of some mortgage loan files to
evaluate the impact of poor lending standards on loan quality. On November 28, 2007, Fitch
issued a report entitled, “The Impact of Poor Underwriting Practices and Fraud in Subprime
RMBS Performance.” After reviewing a “sample of 45 subprime loans, targeting high CLTV
[combined loan to value] [and] stated documentation loans, including many with early missed
payments,” Fitch reported that it decided to summarize information about the impact of fraud, as
well as lax lending standards, on the mortgages. Fitch explained: “[t]he result of the analysis
was disconcerting at best, as there was the appearance of fraud or misrepresentation in almost
every file.” 1214
To address concerns about fraud and lax underwriting standards generally, S&P
considered a potential policy change in November 2007 that would give an evaluation of the
quality of services provided by third parties more influence in the ratings process. An S&P
managing director wrote:
“We believe our analytical process and rating opinions will be enhanced by an increased
focus on the role third parties can play in influencing loan default and loss performance.
… [W]e’d like to set up meetings where specific mortgage originators, investment banks
and mortgage servicers are discussed. We would like to use these meetings to share ideas
with a goal of determining whether loss estimates should be altered based upon your
collective input.” 1215
An S&P employee who received this announcement wrote to a colleague: “Should have been
doing this all along.” 1216
S&P later decided that its analysts would also review specific loan originators that
supplied loans for the pool. Loans issued by originators with a reputation for issuing poor
quality loans, including loans marked by fraud, would be considered a greater credit risk and
ratings for the pool containing the loans would reflect that risk. S&P finalized that policy in
November 2008. 1217 As part of its ratings analysis, S&P now ranks mortgage originators based
on the past historical performance of their loans and factors the assessment of the originator into
credit enhancement levels for RMBS. 1218
1213

“Moody’s: They Lied to Us,” New York Times (1/25/2008),
http://norris.blogs.nytimes.com/2008/01/25/moodys-they-lied-to-us/.
1214
11/28/2007 “The Impact of Poor Underwriting Practices and Fraud in Subprime RMBS Performance,” report
prepared by Fitch Ratings, at 4, Hearing Exhibit 4/23-100.
1215
11/15/2007 email from Thomas Warrack to Michael Gutierrez, and others, Hearing Exhibit 4/23-34.
1216
11/15/2007 email from Robert Mackey to Michael Gutierrez, and others, Hearing Exhibit 4/23-34.
1217
6/24/2010 supplemental letter from S&P to the Subcommittee, Exhibit W, Hearing Exhibit 4/23-108
(11/25/2008 “Standard & Poor’s Enhanced Mortgage Originator and Underwriting Review Criteria for U.S.
RMBS,” S&P’s RatingsDirect).
1218
Id.

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In September 2007, Moody’s solicited industry feedback on proposed enhancements to
its evaluation of nonprime RMBS securitizations, including the need for third-party due
diligence reviews of the loans in a securitization. Moody’s wrote: “To improve the accuracy of
loan information upon which it relies, Moody’s will look for additional oversight by a qualified
third party.” 1219 In November 2008, Moody’s issued a report detailing its enhanced approach to
RMBS originator assessments. 1220

E. Preventing Inflated Credit Ratings
Weak credit rating agency performance has long been a source of concern to financial
regulators. Many investors rely on credit ratings to identify “safe” investments. Many regulated
financial institutions, including banks, broker-dealers, insurance companies, pension funds,
mutual funds, money market funds, and others have been required to operate under restrictions
related to their purchase of “investment grade” versus “noninvestment grade” financial
instruments. When credit agencies issue inaccurate credit ratings, both retail investors and
regulated financial institutions may mistakenly purchase financial instruments that are riskier
than they intended or are permitted to buy. The recent financial crisis has demonstrated how the
unintended purchase of high risk financial products by multiple investors and financial
institutions can create systemic risk and endanger, not only U.S. financial markets, but the entire
U.S. economy.

(1) Past Credit Rating Agency Oversight
Even before the recent financial crisis, the SEC and Congress had been reviewing the
need for increased regulatory oversight of the credit rating industry. In 1994, for example, the
SEC “issued a Concept Release soliciting public comment on the appropriate role of ratings in
the federal securities laws, and the need to establish formal procedures for recognizing and
monitoring the activities of [credit rating agencies].” 1221
In 2002, the Senate Committee on Governmental Affairs examined the collapse of the
Enron Corporation, focusing in part on how the credit rating agencies assigned investment grade
credit ratings to the company “until a mere four days before Enron declared bankruptcy.” 1222
The Committee issued a report finding, among other things, that the credit rating agencies:

1219

“Moody’s Proposes Enhancements to Non-Prime RMBS Securitization,” Moody’s (9/25/2007).
“Moody’s Enhanced Approach to Originator Assessments for U.S. Residential Mortgage Backed Securities
(RMBS),” Moody’s, Hearing Exhibit 4/23-106 (originally issued 11/24/2008 but due to minor changes was
republished on 10/5/2009).
1221
1/2003 “Report on the Role and Function of Credit Rating Agencies in the Operation of the Securities Markets,”
prepared by the SEC, at 5.
1222
10/8/2002 “Financial Oversight of Enron: The SEC and Private-Sector Watchdogs,” prepared by the U.S.
Senate Committee on Governmental Affairs, at 6. See also “Rating the Raters: Enron and the Credit Rating
Agencies,” before the U.S. Senate Committee on Governmental Affairs, S.Hrg. 107-471 (3/20/2002). The
Committee has since been renamed as the Committee on Homeland Security and Governmental Affairs.
1220

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“failed to detect Enron’s problems – or take sufficiently seriously the problems they were
aware of – until it was too late because they did not exercise the proper diligence. …
[T]he agencies did not perform a thorough analysis of Enron’s public filings; did not pay
appropriate attention to allegations of financial fraud; and repeatedly took company
officials at their word … despite indications that the company had misled the rating
agencies in the past.” 1223
The report also found the credit rating “analysts [did] not view themselves as accountable for
their actions,” since the rating agencies were subject to little regulation or oversight, and their
liability for poor quality ratings was limited by regulatory exemptions and First Amendment
protections. 1224 The report recommended “increased oversight for these rating agencies in order
to ensure that the public’s trust in these firms is well-placed.” 1225
In 2002, the Sarbanes-Oxley Act required the SEC to conduct a study into the role of
credit rating agencies in the securities markets, including any barriers to accurately evaluating
the financial condition of the issuers of securities they rate. 1226 In response, the SEC initiated an
in-depth study of the credit rating industry and released its findings in a 2003 report. The SEC’s
oversight efforts “included informal discussions with credit rating agencies and market
participants, formal examinations of credit rating agencies, and public hearings, where market
participants were given the opportunity to offer their views on credit rating agencies and their
role in the capital markets.” 1227 The report expressed a number of concerns about CRA
operations, including “potential conflicts of interest caused by the [issuer-pays model].” 1228
The Credit Rating Agency Reform Act, which was signed into law in September 2006,
was designed to address some of the shortcomings identified by Congress and the SEC. The Act
made it clear that the SEC had jurisdiction to conduct oversight of the credit rating industry, and
formally charged the agency with designating companies as NRSROs. 1229 The statute also
required NRSROs to meet certain criteria before registering with the SEC. In addition, the
statute instructed the SEC to promulgate regulations requiring NRSROs to establish policies and
procedures to prevent the misuse of nonpublic information and to disclose and manage conflicts
of interest. 1230 Those regulations were designed to take effect in September 2007.
In the summer of 2007, after the mass downgrades of RMBS and CDO ratings had begun
and as the financial crisis began to intensify, the SEC initiated its first examinations of the major
1223

10/8/2002 “Financial Oversight of Enron: The SEC and Private-Sector Watchdogs,” prepared by the U.S.
Senate Committee on Governmental Affairs, at 6, 108.
1224
Id. at 122.
1225
Id. at 6.
1226
Section 702 of the Sarbanes-Oxley Act of 2002.
1227
1/2003 “Report on the Role and Function of Credit Rating Agencies in the Operation of the Securities Markets,”
prepared by the SEC, at 4.
1228
Id. at 19.
1229
9/3/2009 “Credit Rating Agencies and Their Regulation,” report prepared by the Congressional Research
Service, Report No. R40613 (revised report issued 4/9/2010).
1230
Id.

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credit rating agencies. According to the SEC, “[t]he purpose of the examinations was to develop
an understanding of the practices of the rating agencies surrounding the rating of RMBS and
CDOs.” 1231 The examinations reviewed CRA practices from January 2004 to December 2007.
In 2008, the SEC issued a report summarizing its findings. The report found that “there was a
substantial increase in the number and in the complexity of RMBS and CDO deals,” “significant
aspects of the ratings process were not always disclosed,” the ratings policies and procedures
were not fully documented, “the surveillance processes used by the rating agencies appear to
have been less robust than the processes used for initial ratings,” and the “rating agencies’
internal audit processes varied significantly.” 1232 In addition, the report raised a number of
conflict of interest issues that influenced the ratings process, noted that the rating agencies failed
to verify the accuracy or quality of the loan data used to derive their ratings, and raised questions
about the factors that were or were not used to derive the credit ratings. 1233

(2) New Developments
Although the Credit Rating Agency Reform Act of 2006 strengthened oversight of the
credit rating agencies, Congress passed further reforms in response to the financial crisis to
address weaknesses in regulatory oversight of the credit rating industry. The Dodd-Frank Act
dedicated an entire subtitle to those credit rating reforms which substantially broadened the
powers of the SEC to oversee and regulate the credit rating industry and explicitly allowed
investors, for the first time, to file civil suits against credit rating agencies. 1234 The major
reforms include the following:
a. establishment of a new SEC Office of Credit Ratings charged with overseeing the
credit rating industry, including by conducting at least annual NRSRO examinations
whose reports must be made public;
b. SEC authority to discipline, fine, and deregister a credit rating agency and associated
personnel for violating the law;
c. SEC authority to deregister a credit rating agency for issuing poor ratings;
d. authority for investors to file private causes of action against credit rating agencies
that knowingly or recklessly fail to conduct a reasonable investigation of a rated
product;
e.

1231

requirements for credit rating agencies to establish internal controls to ensure high
quality ratings and disclose information about their rating methodologies and about
each issued rating;

7/2008 “Summary Report of Issues Identified in the Commission Staff’s Examinations of Select Credit Rating
Agencies,” prepared by the SEC, at 1. The CRAs examined by the SEC were not formally subject to the Credit
Rating Agency Reform Act of 2006 or its implementing SEC regulations until September 2007.
1232
Id. at 1-2.
1233
Id. at 14, 17-18, 23-29, 31-37.
1234
See Title IX, Subtitle C – Improvements to the Regulation of Credit Rating Agencies of the Dodd-Frank Act.

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f. amendments to federal statutes removing references to credit ratings and credit rating
agencies in order to reduce reliance on ratings;
g.

a GAO study to evaluate alternative compensation models for ratings that would
create financial incentives to issue more accurate ratings; and

h.

an SEC study of the conflicts of interest affecting ratings of structured finance
products, followed by the mandatory development of a plan to reduce ratings
shopping. 1235

The Act stated that these reforms were needed, “[b]ecause of the systemic importance of
credit ratings and the reliance placed on credit ratings by individual and institutional investors
and financial regulators,” and because “credit rating agencies are central to capital formation,
investor confidence, and the efficient performance of the United States economy.” 1236

(3) Recommendations
To further strengthen the accuracy of credit ratings and reduce systemic risk, this Report
makes the following recommendations.
1. Rank Credit Rating Agencies by Accuracy. The SEC should use its regulatory
authority to rank the Nationally Recognized Statistical Rating Organizations in terms
of performance, in particular the accuracy of their ratings.
2. Help Investors Hold CRAs Accountable. The SEC should use its regulatory
authority to facilitate the ability of investors to hold credit rating agencies accountable
in civil lawsuits for inflated credit ratings, when a credit rating agency knowingly or
recklessly fails to conduct a reasonable investigation of the rated security.
3. Strengthen CRA Operations. The SEC should use its inspection, examination, and
regulatory authority to ensure credit rating agencies institute internal controls, credit
rating methodologies, and employee conflict of interest safeguards that advance
rating accuracy.
4. Ensure CRAs Recognize Risk. The SEC should use its inspection, examination, and
regulatory authority to ensure credit rating agencies assign higher risk to financial
instruments whose performance cannot be reliably predicted due to their novelty or
complexity, or that rely on assets from parties with a record for issuing poor quality
assets.

1235

See id. at §§ 931-939H; “Conference report to accompany H.R. 4173,” Cong. Report No. 111-517 (June 29,
2010).
1236
See Section 931 of the Dodd-Frank Act.

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5. Strengthen Disclosure. The SEC should exercise its authority under the new Section
78o-7(s) of Title 15 to ensure that the credit rating agencies complete the required
new ratings forms by the end of the year and that the new forms provide
comprehensible, consistent, and useful ratings information to investors, including by
testing the proposed forms with actual investors.
6. Reduce Ratings Reliance. Federal regulators should reduce the federal government’s
reliance on privately issued credit ratings.

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VI. INVESTMENT BANK ABUSES:
CASE STUDY OF GOLDMAN SACHS AND DEUTSCHE BANK
A key factor in the recent financial crisis was the role played by complex financial
instruments, often referred to as structured finance products, such as residential mortgage backed
securities (RMBS), collateralized debt obligations (CDOs), and credit default swaps (CDS),
including CDS contracts linked to the ABX Index. These financial products were envisioned,
engineered, sold, and traded by major U.S. investment banks.
From 2004 to 2008, U.S. financial institutions issued nearly $2.5 trillion in RMBS
securities and over $1.4 trillion in CDOs securitizing primarily mortgage related products.1237
Investment banks charged fees ranging from $1 to $8 million to act as the underwriter of an
RMBS securitization,1238 and from $5 to $10 million to act as the placement agent for a CDO
securitization.1239 Those fees contributed substantial revenues to the investment banks which set
up structured finance groups, and a variety of RMBS and CDO origination and trading desks
within those groups, to handle mortgage related securitizations. Investment banks placed these
securities with investors around the world, and helped develop a secondary market where private
RMBS and CDO securities could be bought and sold. The investment banks’ trading desks
participated in those secondary markets, buying and selling RMBS and CDO securities either for
their customers or for themselves.
Some of these financial products allowed investors to profit, not only from the success of
an RMBS or CDO securitization, but also from its failure. CDS contracts, for example, allowed
counterparties to wager on the rise or fall in the value of a specific RMBS security or on a
collection of RMBS and other assets contained or referenced in a CDO. Major investment banks
also developed standardized CDS contracts that could be traded on a secondary market. In
1237

3/4/2011 “U.S. Mortgage-Related Securities Issuance” and 1/1/2011 “Global CDO Issuance,” charts prepared
by Securities Industry and Financial Markets Association, www.sifma.org/research/statistics.aspx. The RMBS total
does not include about $6.6 trillion in RM BS securities issued by government sponsored enterprises like Fannie Mae
and Freddie Mac.
1238
See, e.g., 2/2011 chart, “Goldman Sachs Expected Profit from RM BS Securitizations,” prepared by the U.S.
Senate Permanent Subcommittee on Investigations using Goldman-produced documents for securitizations from
2005-2007 (underlying documents retained in Subcommittee file); 3/21/2011 letter from Deutsche Bank counsel,
PSI-Deutsche_Bank-32-0001.
1239
See “Banks’ Self-Dealing Super-Charged Financial Crisis,” ProPublica (8/26/2010),
http://www.propublica.org/article/banks-self-dealing-super-charged-financial-crisis (“A typical CDO could net the
bank that created it between $5 million and $10 million – about half of which usually ended up as employee bonuses.
Indeed, W all Street awarded record bonuses in 2006, a hefty chunk of which came from the CDO business.”). Fee
information obtained by the Subcommittee is consistent with this range of CDO fees. For example, Deutsche Bank
received nearly $5 million in fees for Gemstone 7, and the head of its CDO Group said that Deutsche Bank received
typically between $5 and 10 million in fees, while Goldman Sachs charged a range of $5 to $30 million in fees for
Camber 7, Fort Denison, and the Hudson Mezzanine 1 and 2 CDOs. 12/20/2006 Gemstone 7 Securitization Credit
Report, DB_PSI_00237655-71 and 3/15/2007 Gemstone CDO VII Ltd. Closing Memorandum, DB_PSI_0013353641; Subcommittee interview of Michael Lamont (9/29/2010); and Goldman Sachs response to Subcommittee QFRs
at PSI-QFR-GS0249.

319
addition, they established the ABX Index which allowed counterparties to wager on the rise or
fall in the value of a basket of subprime RMBS securities, and which could be used to reflect the
state of the subprime mortgage market as a whole.
Investment banks sometimes matched up parties who wanted to take opposite sides in a
structured finance transaction, and other times took one or the other side of a transaction to
accommodate a client. At still other times, investment banks used these financial instruments to
make their own proprietary wagers. In extreme cases, some investments banks set up structured
finance transactions which enabled them to profit at the expense of their clients.
Two case studies, involving Goldman Sachs and Deutsche Bank, illustrate a variety of
troubling and sometimes abusive practices involving the origination or use of RMBS, CDO,
CDS, and ABX financial instruments. Those practices included at times constructing RMBS or
CDOs with assets that senior employees within the investment banks knew were of poor quality;
underwriting securitizations for lenders known within the industry for issuing high risk, poor
quality mortgages or RMBS securities; selling RMBS or CDO securities without full disclosure
of the investment bank’s own adverse interests; and causing investors to whom they sold the
securities to incur substantial losses.
In the case of Goldman Sachs, the practices included exploiting conflicts of interest with
the firm’s clients. For example, Goldman used CDS and ABX contracts to place billions of
dollars of bets that specific RMBS securities, baskets of RMBS securities, or collections of assets
in CDOs would fall in value, while at the same time convincing customers to invest in new
RMBS and CDO securities. In one instance, Goldman took the entire short side of a $2 billion
CDO known as Hudson 1, selected assets for the CDO to transfer risk from Goldman’s own
holdings, allowed investors to buy the CDO securities without fully disclosing its own short
position, and when the CDO lost value, made a $1.7 billion gain at the expense of the clients to
whom it had sold the securities. While Goldman sometimes told customers that it might take an
adverse investment position to the RMBS or CDO securities it was selling them, Goldman did
not disclose that, in fact, it already had significant proprietary investments that would pay off if
the particular security it was selling or if RMBS and CDO securities in general fell in value. In
another instance, Goldman marketed a CDO known as Abacus 2007-AC1 to clients without
disclosing that it had allowed the sole short party in the CDO, a hedge fund, to play a major role
in selecting the assets. The Abacus securities quickly lost value, and the three long investors
together lost $1 billion, while the hedge fund profited by about the same amount. In still other
instances, Goldman took on the role of a collateral put provider or liquidation agent in a CDO,
and leveraged that role to obtain added financial benefits to the fiscal detriment of the clients to
whom it sold the CDO securities.
In the case of Deutsche Bank, during 2006 and 2007, the bank’s top CDO trader, Greg
Lippmann, repeatedly warned and advised his Deutsche Bank colleagues and some of his clients
seeking to buy short positions about the poor quality of the RMBS securities underlying many
CDOs, describing some of those securities as “crap” and “pigs.” At one point, Mr. Lippmann

320
was asked to buy a specific CDO security and responded that it “rarely trades,” but he “would
take it and try to dupe someone” into buying it. He also disparaged RMBS securities that, at the
same time, were being included in Gemstone 7, a CDO being assembled by the bank for sale to
investors. Gemstone 7 included or referenced 115 RMBS securities, many of which carried
BBB, BBB-, or even BB credit ratings, making them among the highest risk RMBS securities
sold to the public, yet received AAA ratings for its top three tranches. Deutsche Bank sold $700
million in Gemstone securities to eight investors who saw their investments rapidly incur
delinquencies, rating downgrades, and losses. Mr. Lippmann at times referred to the industry’s
ongoing CDO marketing efforts as a “CDO machine” or “ponzi scheme,” and predicted that the
U.S. mortgage market as a whole would eventually plummet in value. Deutsche Bank’s senior
management disagreed with his negative views, and used the bank’s own funds to make large
proprietary investments in mortgage related securities that, in 2007, had a notional or face value
of $128 billion and a market value of more than $25 billion. At the same time, Deutsche Bank
allowed Mr. Lippmann to develop for the bank a $5 billion proprietary short position in the
RMBS market, which it later cashed in for a profit of approximately $1.5 billion. Despite that
gain, in 2007, due to its substantial long investments, Deutsche Bank incurred an overall loss of
about $4.5 billion from its mortgage related proprietary investments.
The two case studies illustrate how investment banks engaged in high intensity sales
efforts to market new CDOs in 2007, even as U.S. mortgage delinquencies climbed, RMBS
securities incurred losses, the U.S. mortgage market as a whole deteriorated, and investors lost
confidence. They demonstrate how these investment banks benefitted from structured finance
fees, and had little incentive to stop producing and selling high risk, poor quality structured
finance products. They also illustrate how the development of complex structured finance
products, such as synthetic CDOs and naked credit default swaps, amplified market risk by
allowing investors with no ownership interest in the “reference obligations” to place unlimited
side bets on their performance. Finally, the two case histories demonstrate how proprietary
trading led to dramatic losses in the case of Deutsche Bank and to conflicts of interest in the case
of Goldman Sachs.
Investment banks were a major driving force behind the structured finance products that
provided a steady stream of funding for lenders to originate high risk, poor quality loans and that
magnified risk throughout the U.S. financial system. The investment banks that engineered, sold,
traded, and profited from mortgage related structured finance products were a major cause of the
financial crisis.

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A. Background
(1) Investment Banks In General
Historically, investment banks helped raise capital for business and other endeavors by
helping to design, finance, and sell financial products like stocks or bonds. When a corporation
needed capital to fund a large construction project, for example, it often hired an investment bank
either to arrange a bank loan or to raise capital by designing, financing, and marketing an issue of
shares or corporate bonds for sale to investors. Investment banks performed these services in
exchange for fees.
Today, investment banks also participate in a wide range of other financial activities,
including providing broker-dealer and investment advisory services, and trading commodities
and derivatives. Investment banks also often engage in proprietary trading, meaning trading with
their own money and not on behalf of a customer. Many investment banks are structured today
as affiliates of one or more banks.
Under the Glass-Steagall Act of 1933, certain types of financial institutions had been
prohibited from commingling their services. For example, with limited exceptions, only brokerdealers could provide brokerage services; only banks could offer banking; and only insurers
could offer insurance. Each financial sector had its own primary regulator who was generally
prohibited from regulating services outside of its jurisdiction.1240 Glass-Steagall also contained
prohibitions against proprietary trading.1241 One reason for keeping the sectors separate was to
ensure that banks with federally insured deposits did not engage in the type of high risk activities
that might be the bread and butter of a broker-dealer or commodities trader. Another reason was
to avoid the conflicts of interest that might arise, for example, from a financial institution
pressuring its clients to obtain all of its financial services from the same firm. A third reason was
to avoid the conflicts of interest that arise when a financial institution is allowed to act for its
own benefit in a proprietary capacity, while at the same time acting on behalf of customers in an
agency or fiduciary capacity.
Glass-Steagall was repealed in 1999, after which the barriers between banks, brokerdealers, and insurance firms fell. U.S. financial institutions not only began offering a mix of
financial services, but also intensified their proprietary trading activities. The resulting changes
in the way financial institutions were organized and operated made it more difficult for regulators
to distinguish between activities intended to benefit customers versus the financial institution
itself. The expanded set of financial services investment banks were allowed to offer also
contributed to the multiple and significant conflicts of interest that arose between some
investment banks and their clients during the financial crisis.

1240

Federal law has never established a “super-regulator” with jurisdiction to police compliance and conduct across
banking, brokerage, investment advisory, and insurance sectors, and that remains the case today.
1241
See Section 16 of the Banking Act of 1933, Pub. L. 73-66 (also known as the Glass-Steagall Act).

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(2) Roles and Duties of an Investment Bank:
Market Maker, Underwriter, Placement Agent, Broker-Dealer
Investment banks typically play a variety of significant roles when dealing with their
clients, including that of market maker, underwriter, placement agent, and broker-dealer. Each
role brings different legal obligations under federal securities law.
Market Maker. A “market maker” is typically a dealer in financial instruments that
stands ready to buy and sell for its own account a particular financial instrument on a regular and
continuous basis at a publicly quoted price.1242 A major responsibility of a market maker is
filling orders on behalf of customers. Market markers do not solicit customers; instead they
maintain, buy, and sell quotes in a public setting, demonstrating their readiness to either buy or
sell the specified security, and customers come to them. For example, a market maker in a
particular stock typically posts the prices at which it is willing to buy or sell that stock, attracting
customers based on the competitiveness of its prices. This activity by market makers helps
provide liquidity and efficiency in the trading market for the security.1243 It is common for a
particular security to have multiple market makers who competitively quote the security.
Market makers generally use the same inventory of assets to carry out both their marketmaking and proprietary trading activities. Market makers are allowed, in certain circumstances
specified by the SEC, to sell securities short in situations to satisfy market demand when they do
not have the securities in their inventory in order to provide liquidity. Market makers have among
the most narrow disclosure obligations under federal securities law, since they do not actively
solicit clients or make investment recommendations to them. Their disclosure obligations are
generally limited to providing fair and accurate information related to the execution of a particular
trade.1244 Market makers are also subject to the securities laws’ prohibitions against fraud and
market manipulation. In addition, they are subject to legal requirements relating to the handling
of customer orders, for example using best execution efforts when placing a client’s buy or sell
order.1245
Underwriter and Placement Agent. If an investment bank agrees to act as an
“underwriter” for the issuance of a new security to the public, such as an RMBS, it typically

1242

Section 3(a)(38) of the Securities Exchange Act of 1934 states: “The term “market maker” means any specialist
permitted to act as a dealer, any dealer acting in the capacity of block positioner, and any dealer who, with respect to
a security, holds himself out (by entering quotations in an inter-dealer communications system or otherwise) as being
willing to buy and sell such security for his own account on a regular or continuous basis.” See also SEC website,
http://www.sec.gov/answers/mktmaker.htm; FINRA website, FAQs, “W hat Does a Market Maker Do?”
http://finra.atgnow.com/finra/categoryBrowse.do.
1243
See SEC website, http://www.sec.gov/answers/mktmaker.htm; FINRA website, FAQs, “W hat Does a Market
Maker Do?” http://finra.atgnow.com/finra/categoryBrowse.do.
1244
1/2011 “Study on Investment Advisers and Broker-Dealers,” study conducted by the U.S. Securities and
Exchange Commission, at 55, http://www.sec.gov/news/studies/2011/913studyfinal.pdf.
1245
See Responses to Questions for the Record from Goldman Sachs at PSI_QFR_GS0046.

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purchases the securities from the issuer, holds them on its books, conducts the public offering, and
bears the financial risk until the securities are sold to the public. By law, securities sold to the
public must be registered with the SEC. Underwriters help issuers prepare and file the registration
statements filed with the SEC, which explain to potential investors the purpose of a proposed
public offering, the issuer’s operations and management, key financial data, and other important
facts. Any offering document, or prospectus, given to the investing public in connection with a
registered security must also be filed with the SEC.
If a security is not offered to the general public, it can still be offered to investors through
a “private placement.” Investment banks often act as the “placement agent,” performing
intermediary services between those seeking to raise money and investors. Placement agents
often help issuers design the securities, produce the offering materials, and market the new
securities to investors. Offering documents in connection with private placements are exempt
from SEC registration and are not filed with the SEC.
In the years leading up to the financial crisis, RMBS securities were registered with the
SEC, while CDOs were sold to investors through private placements. Both of these securities
were also traded in a secondary market by market makers. Investment banks sold both types of
securities primarily to large institutional investors, such as other banks, pension funds, insurance
companies, municipalities, university endowments, and hedge funds.
Whether acting as an underwriter or placement agent, a major part of the investment
bank’s responsibility is to solicit customers to buy the new securities being offered. Under the
securities laws, investment banks that act as an underwriter or placement agent for new securities
are liable for any material misrepresentation or omission of a material fact made in connection
with a solicitation or sale of those securities to investors.1246
The obligation of an underwriter and placement agent to disclose material facts to every
investor it solicits comes from two sources: the duties as an underwriter specifically, and the
duties as a broker-dealer generally. With respect to duties relating to being an underwriter, the
U.S. Court of Appeals for the First Circuit observed that underwriters have a “unique position” in
the securities industry:

1246

See Sections 11 and 12 of Securities Act of 1933. See also Rule 10b-5 of the Securities Exchange Act of 1934.
See also, e.g., SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 201 (1963) (“Experience has shown that
disclosure in such situations, while not onerous to the advisor, is needed to preserve the climate of fair dealing which
is so essential to maintain public confidence in the securities industry and to preserve the economic health of the
country.”). See also SEC Study on Investment Advisers and Broker-Dealers at 51 (citations omitted) (“Under the socalled ‘shingle’ theory … , a broker-dealer makes an implicit representation to those persons with whom it transacts
business that it will deal fairly with them, consistent with the standards of the profession. … Actions taken by the
broker-dealer that are not fair to the customer must be disclosed in order to make this implied representation of
fairness not misleading.”).

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“[T]he relationship between the underwriter and its customer implicitly involves a
favorable recommendation of the issued security. … Although the underwriter cannot be
a guarantor of the soundness of any issue, he may not give it his implied stamp of approval
without having a reasonable basis for concluding that the issue is sound.”1247
In addition, Section 11 of the Securities Act of 1933 makes underwriters liable to any
investor in any registered security if any part of the registration statement “contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.”1248
Broker-Dealer. Broker-dealers also have affirmative disclosure obligations to their
clients. With respect to the duties of a broker-dealer, the SEC has held:
“[W]hen a securities dealer recommends a stock to a customer, it is not only obligated to
avoid affirmative misstatements, but also must disclose material adverse facts to which it
is aware. That includes disclosure of ‘adverse interests’ such as ‘economic self interest’
that could have influenced its recommendation.”1249
To help broker-dealers understand when they are obligated to disclose material adverse
facts to investors, the Financial Industry Regulatory Authority (FINRA) has further defined the
term “recommendation”:
“[A] broad range of circumstances may cause a transaction to be considered
recommended, and this determination does not depend on the classification of the
transaction by a particular member as ‘solicited’ or ‘unsolicited.’ In particular a
transaction will be considered to be recommended when the member or its associated
person brings a specific security to the attention of the customer through any means,
including, but not limited to, direct telephone communication, the delivery of promotional
material through the mail, or the transmission of electronic messages.”1250
There is no indication in any law or regulation that the obligation to disclose material
adverse facts is diminished or waived in relation to the level of sophistication of the potential
investor.1251

1247

SEC v. Tambone, 550 F.3d 106 (1st Cir. 2008) [citations omitted].
Section 11 of the Securities Act of 1933, codified at 15 U.S.C. § 77a.
1249
In the Matter of Richmark Capital Corporation, Securities Exchange Act Rel. No. 48758 (Nov. 7, 2003) (citing
Chasins v. Smith Barney & Co., Inc., 438 F.3d 1167, 1172 (2d Cir. 1970) (“The investor … must be permitted to
evaluate overlapping motivations through appropriate disclosures, especially where one motivation is economic selfinterest”)).
1250
FINRA Notice No. 96-60.
1251
See FINRA Rules 2210(d)(1)(A) and 2211(a)(3) and (d)(1) (by rule all institutional sales material and
correspondence may not “omit any material fact or qualification if the omission, in the light of the context of the
material presented, would cause the communications to be misleading.”) . See also FINRA Rule 2310 and IM-23101248

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(3) Structured Finance Products
Over time, investment banks have devised, marketed, and sold increasingly complex
financial instruments to investors, often referred to as “structured finance” products. These
products include residential mortgage backed securities (RMBS), collateralized debt obligations
(CDOs), and credit default swaps (CDS), including CDS contracts linked to the ABX Index, all of
which played a central role in the financial crisis.
RMBS and CDO Securities. RMBS and CDO securities are two common types of
structured finance products. RMBS securities contain pools of mortgage loans, while CDOs
contain or reference pools of RMBS securities and other assets. RMBS concentrate risk by
including thousands of subprime and other high risk home loans, with similar characteristics and
risks, in a single financial instrument. Mortgage related CDOs concentrate risk even more by
including hundreds or thousands of RMBS securities, with similar characteristics and risks, in a
single financial instrument. In addition, while some CDOs included only AAA rated RMBS
securities, others known as “mezzanine” CDOs contained RMBS securities that carried the riskier
BBB, BBB-, and even BB credit ratings and were more susceptible to losses if the underlying
mortgages began to incur delinquencies or defaults.
Some investment banks went a step farther and assembled CDO securities into pools and
resecuritized them as so-called “CDO squared” instruments, which further concentrated the risk in
the underlying CDOs.1252 Some investment banks also assembled “synthetic CDOs,” which did
not contain any actual RMBS securities or other assets, but merely referenced them. Some
devised “hybrid CDOs,” which contained a mix of cash and synthetic assets.
The securitization process generated billions of dollars in funds that allowed investment
banks to supply financing to lenders to issue still more high risk mortgages and securities, which
investment banks and others then sold or securitized in exchange for still more fees. This cycle
was repeated again and again, introducing more and more risk to a wider and wider range of
investors.
Credit Default Swaps. Some investment banks modified still another structured finance
product, a derivative known as a credit default swap (CDS), for use in the mortgage market.
Much like an insurance contract, a CDS is a contract between two parties in which one party
guarantees payment to the other if the assets referenced in the contract lose value or experience a
negative credit event. The party selling the insurance is referred to as the “long” party, since it
profits if the referenced asset performs well. The party buying the insurance protection is referred
to as the “short” party, because it profits if the referenced asset performs poorly.

3 (suitability obligation to institutional customers).
1252
CDO squared transactions will generally be referred to in this Report as “CDO 2.” Some Goldman materials also
use the term “CDO^2.”

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The short party, or CDS buyer, typically pays periodic premiums, similar to insurance
premiums, to the long party or CDS seller, who has guaranteed the referenced assets against a loss
in value or a negative credit event such as a credit rating downgrade, default, or bankruptcy. If the
loss or negative credit event occurs, the CDS seller is required to pay an agreed upon amount to
the CDS buyer. Many CDS contracts also tracked the changing value of the referenced assets
over time, and required the long and short parties to post cash collateral with each other to secure
payment of their respective contractual obligations.
CDS contracts that reference a single, specific security or bond for protection against a
loss in value or negative credit event have become known as “single name” CDS contracts. Other
CDS contracts have been designed to protect a broader basket of securities, bonds, or other assets.
By 2005, investment banks had standardized CDS contracts that referred to a “single
name” RMBS or CDO security. Some investment banks and investors, which held large
inventories of RMBS and CDO securities, purchased those single name CDS contracts as a hedge
against possible losses in the value of their holdings. Other investors, including investment banks,
began to purchase single name CDS contracts, not as a hedge to offset losses from the RMBS or
CDO securities they owned, but as a way to profit from particular RMBS or CDO securities they
predicted would lose value or fail. CDS contracts that paid off on securities that were not owned
by the CDS buyer became known as “naked credit default swaps.” Naked CDS contracts enabled
investors to bet against mortgage related assets, using the minimal capital needed to make the
periodic premium payments and collateral calls required by a CDS contract.
The key significance of the CDS product for the mortgage market was that it offered an
alternative to investing in RMBS and CDO securities that would perform well. Single name CDS
contracts instead enabled investors to place their dollars in financial instruments that would pay
off if specific RMBS or CDO securities lost value or failed.
ABX Index. In January 2006, a consortium of investment banks, led by Goldman Sachs
and Deutsche Bank, launched still another type of structured finance product, linked to a newly
created “ABX Index,” to enable investors to bet on multiple subprime RMBS securities at once.
The ABX Index was administered by a private company called the Markit Group and consisted of
five separate indices, each of which tracked the performance of a different basket of 20 designated
subprime RMBS securities.1253 The values of the securities in each basket were aggregated into a
single composite value that rose and fell over time. Investors could then arrange, through a
broker-dealer, to enter into a CDS contract with another party using the ABX basket of subprime
RMBS securities as the “reference obligation” and the relevant ABX Index value as the agreed
1253

Each of the five indices tracked a different basket of subprime RM BS securities. One index tracked a basket of
20 AAA rated RMBS securities; the second a basket of AA rated RMBS securities; and the remaining indices
tracked baskets of A, BBB, and BBB- rated RMBS securities. Every six months, a new set of RM BS securities was
selected for each index. See 3/2008 Federal Reserve Bank of New York Staff Report No. 318, “Understanding the
Securitization of Subprime Mortgage Credit,” at 26. Markit Group Ltd. administered the ABX Index which issued
indices in 2006 and 2007, but has not issued any new indices since then.

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upon value of that basket. For a fee, investors could take either the “long” position, betting on the
rise of the index, or the “short” position, betting on the fall of the index, without having to
physically purchase or hold any of the referenced securities or raise the capital needed to pay for
the full face value of those referenced securities. The index also used standardized CDS contracts
that remained in effect for a standard period of time, making it easier for investors to participate in
the market, and buy and sell ABX-linked CDS contracts.
The ABX Index allowed investors to place unlimited bets on the performance of one or
more of the subprime RMBS baskets. It also made it easier and cheaper for investors, including
some investment banks, to short the subprime mortgage market in bulk.1254 Investment banks not
only helped establish the ABX Index, they encouraged their clients to enter into CDS contracts
based upon the ABX Index, and used it themselves to bet on the mortgage market as a whole.
The ABX Index expanded the risks inherent in the subprime mortgage market by providing
investors with a way to make unlimited investments in RMBS securities.
Synthetic CDOs. By mid-2006, there was a large demand for RMBS and CDO securities
as well as a growing demand for CDS contracts to short the mortgage market. To meet this
demand, investment banks and others began to make greater use of synthetic CDOs, which could
be assembled more quickly, since they did not require the CDO arranger to find and purchase
actual RMBS securities or other assets. The increasing use of synthetic CDOs injected even
greater risk into the mortgage market by enabling investors to make unlimited wagers on various
groups of mortgage related assets and, if those assets performed poorly, expanding the number of
investors who would realize losses.
Synthetic CDOs did not depend upon actual RMBS securities or other assets to bring in
cash to pay investors. Instead, the CDO simply developed a list of existing RMBS or CDO
securities or other assets that would be used as its “reference obligations.” The parties to the CDO
were not required to possess an ownership interest in any of those reference obligations; the CDO
simply tracked their performance over time. The performance of the underlying reference
obligations, in the aggregate, determined the performance of the synthetic CDO.
The synthetic CDO made or lost money for its investors by establishing a contractual
agreement that they would make payments to each other, based upon the aggregate performance
of the underlying referenced assets, using CDS contracts. The “short” party essentially agreed to
make periodic payments, similar to insurance premiums, to the other party in exchange for an
agreement that the “long” party would pay the full face value of the synthetic CDO if the
underlying assets lost value or experienced a defined credit event such as a ratings downgrade. In
essence, then, the synthetic CDO set up a wager in which the short party bet that its underlying
assets would perform poorly, while the long party bet that they would perform well.

1254

Subcommittee Interview of Joshua Birnbaum (4/22/2010); Subcommittee Interview of Rajiv Kamilla
(10/12/2010).

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Synthetic CDOs provided still another vehicle for investors looking to short the mortgage
market in bulk. The synthetic CDO typically referenced a variety of RMBS securities. One or
more investors could then take the “short” position and wager that the referenced securities as a
whole would fall in value or otherwise perform poorly. Synthetic CDOs became a way for
investors to short multiple specific RMBS securities that they expected to incur delinquencies,
defaults, and losses.
Synthetic CDOs magnified the risk in the mortgage market because arrangers had no limit
on the number of synthetic CDOs they could create. In addition, multiple synthetic CDOs could
reference the same RMBS and CDO securities in various combinations, and sell financial
instruments dependent upon the same sets of high risk, poor quality loans over and over again to
various investors. Since every synthetic CDO had to have a “short” party betting on the failure of
the referenced assets, at least some poor quality RMBS and CDO securities could be included in
each transaction to attract those investors. When some of the high risk, poor quality loans later
incurred delinquencies or defaults, they caused losses, not in a single RMBS, but in multiple cash,
synthetic, and hybrid CDOs whose securities had been sold to a wide circle of investors.1255
Conflicts of Interest. Investment banks that designed, obtained credit ratings for,
underwrote, sold, managed, and serviced CDO securities, made money from the fees they charged
for these and other services. Investment banks reportedly netted from $5 to $10 million in fees
per CDO.1256 Some also constructed CDOs to transfer the financial risk of poorly performing
RMBS and CDO securities from their own holdings to the investors they were soliciting to buy
the CDO securities.1257 By selling the CDO securities to investors, the investment banks profited
not only from the CDO sales, but also eliminated possible losses from the assets removed from
their warehouse accounts. In some instances, unbeknownst to the customers and investors, the
investment banks that sold them CDO securities bet against those instruments by taking short
positions through single name CDS contracts. Some even took the short side of the CDO they

1255

See, e.g., “Senate’s Goldman Probe Shows Toxic Magnification,” W all Street Journal (5/2/2010) (showing how
a single $38 million subprime RMBS, created in June 2006, was included in 30 CDOs and, by 2008, had caused
$280 million in losses to investors).
1256
See “Banks’ Self-Dealing Super-Charged Financial Crisis,” ProPublica (8/26/2010),
http://www.propublica.org/article/banks-self-dealing-super-charged-financial-crisis (“A typical CDO could net the
bank that created it between $5 million and $10 million – about half of which usually ended up as employee bonuses.
Indeed, W all Street awarded record bonuses in 2006, a hefty chunk of which came from the CDO business.”). Fee
information obtained by the Subcommittee is consistent with this range of CDO fees. For example, Deutsche Bank
received nearly $5 million in fees for Gemstone 7, and the head of its CDO group said that Deutsche Bank received
typically between $5 and 10 million in fees, while Goldman Sachs charged a range of $5 to $30 million in fees for
Camber 7, Fort Denison, and the Hudson Mezzanine 1 and 2 CDOs. 12/20/2006 Gemstone 7 Securitization Credit
Report, DB_PSI_00237655-71 and 3/15/2007 Gemstone CDO VII Ltd. Closing Memorandum, DB_PSI_0013353641; Subcommittee interview of Michael Lamont (9/29/2010); and Goldman Sachs response to Subcommittee QFRs
at PSI-QFR-GS0249.
1257
See, e.g., discussion of the Hudson CDO, below; Subcommittee interview of Daniel Sparks (4/15/10) (Goldman
tried selling subprime loans but could not; it was easier and more efficient to securitize them and then sell the
securitized product to transfer loans in bulk; it was also easier to sell CDOs than individual underlying positions).

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constructed, and profited when the referenced assets lost value, and the investors to whom they
had sold the long side of the CDO were required to make substantial payments to the CDO.
The following two case studies examine how two investment banks active in the U.S.
mortgage market constructed, marketed, and sold RMBS and CDO securities; how their activities
magnified risk in the mortgage market; and how conflicts of interest negatively impacted investors
and contributed to the financial crisis. The Deutsche Bank case history provides an insider’s view
of what one senior CDO trader described as Wall Street’s “CDO machine.” It reveals the trader’s
negative view of the mortgage market in general, the poor quality RMBS assets placed in a CDO
that Deutsche Bank marketed to clients, and the fees that made it difficult for investment banks
like Deutsche Bank to stop selling CDOs. The Goldman Sachs case history shows how one
investment bank was able to profit from the collapse of the mortgage market, and ignored
substantial conflicts of interest to profit at the expense of its clients in the sale of RMBS and CDO
securities.

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B. Running the CDO Machine:
Case Study of Deutsche Bank
This case history examines the role of Deutsche Bank USA in the design, marketing, and
sale of collateralized debt obligations (CDOs) that incorporated or referenced residential
mortgage backed securities (RMBS).
From 2004 to 2008, U.S. financial institutions issued over $1.4 trillion worth of CDO
securities. At first, this complex structured finance product proved highly profitable for
investment banks which established CDO departments and trading desks to create and market the
securities. By early 2007, however, due to declining housing prices, accelerating mortgage
delinquencies, and RMBS losses, investor interest in CDOs began to drop off sharply. In July
2007, the major credit rating agencies began lowering credit ratings for many CDO securities, at
times eliminating the investment grade ratings that had supported CDO sales. Despite waning
investor interest, U.S. investment banks continued to issue new mortgage related CDOs
throughout 2007, in an apparent effort to sustain their fees and CDO departments. Some
investment banks supported the CDO market by purchasing existing CDO securities for
inclusion in new, even more complex CDOs, seeking customers in Europe and Asia, or retaining
risky CDO securities on their own books.
Deutsche Bank was a major player in the CDO market, both in creating new CDO issues
and trading these securities in the secondary market. Deutsche Bank’s top global CDO trader,
Greg Lippmann, began to express concerns that the CDO market was unsustainable. By the
middle of 2006, Mr. Lippmann repeatedly warned and advised his Deutsche Bank colleagues and
some of his clients seeking to buy short positions about the poor quality of the assets underlying
many CDOs. He described some of those assets as “crap” and “pigs,” and predicted the assets
and the CDO securities would lose value.
At one point, Mr. Lippmann was asked to buy a specific CDO security and responded
that it “rarely trades,” but he “would take it and try to dupe someone” into buying it. He also at
times referred to the industry’s ongoing CDO marketing efforts as a “CDO machine” or “ponzi
scheme.” Deutsche Bank’s senior management disagreed with his negative views, and used the
bank’s own funds to make large proprietary investments in mortgage related securities that, in
2007, had a notional or face value of $128 billion and a market value of more than $25 billion.
Despite disagreeing with his negative views on the mortgage market, Deutsche Bank
allowed Mr. Lippmann, in 2005, to develop a large proprietary short position for the bank in the
RMBS market. Since carrying that short position required the bank to pay millions of dollars in
premiums, senior management also required Mr. Lippmann to defray or eliminate those costs by
convincing others to take short positions in the mortgage market, thereby generating fees for the
bank from arranging those shorts. In 2006, Mr. Lippmann generated an estimated $200 million
in fees by encouraging his clients, such as hedge funds, to buy short positions. Simultaneously,
Mr. Lippmann increased the size of the bank’s short position by taking the short side of credit
default swaps (CDS) referencing individual RMBS securities, an investment strategy often

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referred to as investing in “single name CDS” contracts. Over a two-year period from 2005 to
2007, Mr. Lippmann built a massive short position in single name CDS contracts totaling $5
billion. From 2007 to 2008, at the direction of the bank’s senior management, he cashed in that
position, generating a profit for his trading desk of approximately $1.5 billion, which he claims
made more money on a single position than any other trade had ever made for Deutsche Bank in
its history. Despite that gain, due to its substantial long investments, Deutsche Bank incurred an
overall loss of about $4.5 billion from its mortgage related proprietary investments. 1258
To understand how Deutsche Bank continued to issue and market CDO securities even as
the market for mortgage related securities began collapsing, the Subcommittee examined a
specific CDO in detail, called Gemstone CDO VII Ltd. (Gemstone 7). In October 2006,
Deutsche Bank began assisting in the gathering of assets for Gemstone 7, which issued its
securities in March 2007. It was the last in a series of CDOs sponsored by HBK Capital
Management (HBK), a large hedge fund which acted as the collateral manager for the CDO.
Deutsche Bank made $4.7 million in fees from the deal, while HBK was slated to receive $3.3
million. It was not the last CDO issued by Deutsche Bank. Even after Gemstone 7 was issued in
March of 2007, Deutsche Bank issued 9 additional CDOs.
Gemstone 7 was a hybrid CDO containing or referencing a variety of high risk, subprime
RMBS securities initially valued at $1.1 billion when issued. Deutsche Bank’s head global
trader, Mr. Lippmann, recognized that these RMBS securities were high risk and likely to lose
value, but did not object to their inclusion in Gemstone 7. Deutsche Bank, the sole placement
agent, marketed the initial offering of Gemstone 7 in the first quarter of 2007. Its top tranches
received AAA ratings from Standard & Poor’s and Moody’s, despite signs that the CDO market
was failing and the CDO itself contained many poor quality assets.
Nearly a third of Gemstone’s assets consisted of high risk subprime loans originated by
Fremont, Long Beach, and New Century, three lenders known at the time within the financial
industry for issuing poor quality loans and RMBS securities. Although HBK directed the
selection of assets for Gemstone 7, Mr. Lippmann’s CDO Trading Desk was involved in the
process and did not object to including certain RMBS securities in Gemstone 7, even though Mr.
Lippmann was simultaneously referring to them as “crap” or “pigs.” Mr. Lippmann was also at
the same time advising some of his clients to short some of those same RMBS securities. In
addition, Deutsche Bank sold five RMBS securities directly from its inventory to Gemstone 7,
several of which were also contemporaneously disparaged by Mr. Lippmann.
The Deutsche Bank sales force aggressively sought purchasers for the CDO securities,
while certain executives expressed concerns about the financial risk of retaining Gemstone 7
assets as the market was deteriorating in early 2007. In its struggle to sell Gemstone 7, Deutsche
Bank motivated its sales force with special financial incentives, and sought out buyers in Europe
and Asia because the U.S. market had dried up. Deutsche Bank also talked of providing HBK’s
marks, instead of its own, to clients asking about the value of Gemstone 7’s assets, since HBK’s
1258

Subcommittee interview of Greg Lippmann (10/18/2010); Net Revenues from ABS Products Backed by U.S.
Residential Mortgages, DB_PSI_C00000003.

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marks showed the CDO’s assets performing better. Deutsche Bank was ultimately unable to sell
$400 million, or 36%, of the Gemstone 7 securities, and agreed with HBK to split the unsold
securities, each taking $200 million onto its own books. Deutsche Bank did not disclose to the
eight investors whom it had solicited and convinced to buy Gemstone 7, that its global head
trader of CDOs had an extremely negative view of a third of the assets in the CDO or that the
bank’s internal valuations showed that the assets had lost over $19 million in value since
purchased. 1259
Gemstone 7 also demonstrated how CDOs magnified risk by including or referencing
within itself 115 different RMBS securities containing thousands of high risk, poor quality
subprime loans. Many of those RMBS securities carried BB ratings, which are non-investment
grade credit ratings and were among the highest risk securities in the CDO. Gemstone 7 also
included CDO securities that, in themselves, concentrated the risk of their underlying assets.
Over 75% of Gemstone’s assets consisted of RMBS securities with ratings of BBB or lower,
including approximately 33% with non-investment grade ratings, yet Gemstone’s top three
tranches were given AAA ratings by the credit rating agencies. The next three tranches were
given investment grade ratings as well. Those investment grade ratings enabled investors like
pension funds, insurance companies, university endowments, and municipalities, some of which
were required by law, regulation, or their investment plans to put their funds in safe investments,
to consider buying Gemstone securities. Eight investors actually purchased them. Within eight
months, the Gemstone securities began incurring rating downgrades. By July 2008, all seven
tranches in the CDO had been downgraded to junk status, and the long investors were almost
completely wiped out. Today, the Gemstone 7 securities are nearly worthless.
Deutsche Bank was, in Mr. Lippmann’s words, part of a “CDO machine” run by
investment banks that produced hundreds of billions of high risk CDO securities. Because the
fees to design and market CDOs ranged from $5 to $10 million per CDO, investment bankers
had a strong financial incentive to continue issuing them, even in the face of waning investor
interest and poor quality assets, since reduced CDO activity would have led to less income for
structured finance units, smaller bonuses for executives, and even the disappearance of CDO
departments, which is eventually what occurred. The Deutsche Bank case history provides a
cautionary tale for both market participants and regulators about how complex structured finance
products gain advocates within an organization committed to pushing the products through the
pipeline to maintain revenues and jobs, regardless of the financial risks or possible impact on the
marketplace.

1259

See Sections 11 and 12 of Securities Act of 1933. See also Rule 10b-5 of the Securities Exchange Act of 1934.
For a more detailed discussion of the legal obligations of underwriters, placement agents, and broker-dealers, see
Section C(6) on conflicts of interest analysis, below.

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(1) Subcommittee Investigation and Findings of Fact
As part of its investigation into the CDO market and the Deutsche Bank case study, the
Subcommittee collected and reviewed hundreds of thousands of Deutsche Bank documents
including reports, analyses, memoranda, correspondence, transcripts, spreadsheets, and email.
The Subcommittee also collected and reviewed documents from HBK Capital Management,
several financial institutions that purchased Deutsche Bank CDO securities, and the Securities
and Exchange Commission (SEC). In addition, the Subcommittee conducted 14 interviews,
including interviews with current and former Deutsche Bank and HBK executives, managers,
sales representatives, and traders; spoke with personnel from the financial institutions that
invested in Gemstone 7; and consulted with a number of experts from the SEC, academia, and
industry.
Based upon the Subcommittee’s review, the Report makes the following findings of fact.
1. CDO Machine. From late 2006 through 2007, despite increasing mortgage
delinquencies, RMBS losses, and investor flight from the U.S. mortgage market, U.S.
investment banks continued to issue new CDOs, including Deutsche Bank which
issued 15 new CDOs securitizing nearly $11.5 billion of primarily mortgage related
assets from December 2006 to December 2007.
2. Fee Incentives. Because the fees charged to design and market CDOs were in the
range of $5 to $10 million per CDO, investment banks had strong incentives to
continue issuing CDOs despite increasing risks and waning investor interest, since
reduced CDO activity meant less revenues for structured finance units and even the
disappearance of CDO departments and trading desks, which is eventually what
occurred.
3. Deutsche Bank’s $5 Billion Short. Although Deutsche Bank as a whole and through
an affiliated hedge fund, Winchester Capital, made proprietary investments in long
mortgage related assets, the bank also permitted its head CDO trader to make a $5
billion short investment that bet against the mortgage market and produced bank
profits totaling approximately $1.5 billion.
4. Proprietary Loss. By 2007, Deutsche Bank, through its mortgage department and an
affiliated hedge fund, had substantial proprietary holdings in the mortgage market,
including more than $25 billion in long investments and a $5 billion short position,
which together resulted in 2007 losses to the bank of about $4.5 billion.
5. Gemstone 7. In the face of a deteriorating market, Deutsche Bank aggressively sold
a $1.1 billion CDO, Gemstone 7, which included RMBS securities that the bank’s top
CDO trader had disparaged as “crap” and “pigs,” and which produced $1.1 billion of
high risk, poor quality securities that are now virtually worthless.

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(2) Deutsche Bank Background
CDOs In General. According to the Securities Industry and Financial Markets
Association, $1.4 trillion worth of CDOs were issued in the United States from 2004 through the
end of 2007. 1260 The following chart depicts the dramatic rise and fall of the U.S. CDO market
over the last ten years, with total CDO issuance reaching its peak in 2006 at $520 billion, and
then falling to a low of $4 billion in 2009. 1261
Total Annual CDO Issuance
2000-2009
Year

Total CDO Issuance
($ in billions)

2000

67.99

2001

78.45

2002

83.07

2003

86.63

2004

157.82

2005

251.27

2006

520.64

2007

481.60

2008

61.89

2009

4.34

In 2006 and 2007, investment banks created around half a trillion dollars in CDO
securities each year, even as U.S. housing prices began to stagnate and decline, subprime
mortgages began to default at record rates, and RMBS securities began to incur dramatic losses.
By the middle of 2007, due to the increasing risks, U.S. institutional investors like pension funds,
hedge funds, and others began to purchase fewer CDO securities, and investment banks turned
their attention increasingly to European and Asian investors as well as the issuers of new CDOs
who became the primary buyers of CDO securities. 1262 In 2007, U.S. investment banks kept
issuing and selling CDOs despite slowed sales, which meant that investment banks had to retain
an increasing portion of the unsold assets on their own balance sheets. 1263
1260

10/15/2010 “Global CDO Issuance,” Securities Industry and Financial Markets Association,
http://www.sifma.org/research/statistics.aspx.
1261
Chart prepared by the Subcommittee using data from 10/15/2010 “Global CDO Issuance,” Securities Industry
and Financial Markets Association, http://www.sifma.org/research/statistics.aspx. By 2004, most, but not all, CDOs
relied primarily on mortgage related assets such as RMBS securities. Subcommittee interview of Gary Witt, former
Managing Director of Moody’s RMBS Group (10/29/2009).
1262
See 7/12/2007 email from Michael Lamont to Boaz Weinstein at Deutsche Bank, DBSI_01201843; “Banks’
Self-Dealing Super Charged Financial Crisis,” ProPublica (8/26/2010), http://www.propublica.org/article/banksself-dealing-super-charged-financial-crisis; and “Mortgage-Bond Pioneer Dislikes What He Sees,” Wall Street
Journal (2/24/2007).
1263
“Banks’ Self-Dealing Super Charged Financial Crisis,” ProPublica (8/26/2010).

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The credit rating agencies marked a “sea change” in the CDO market in 2007, in which
investment banks issued CDOs at near record levels in the first half of the year, but then sharply
reined in their efforts after the mass rating downgrades of RMBS and CDO securities began in
July 2007:
“[The CDO] market in the U.S. was very active in terms of issuance throughout the first
half of 2007. … The year 2007 saw a sea change for the CDO market. Moody’s rated
more than 100 SF [structured finance] CDO transactions in each of the first two quarters,
but the number fell sharply to 40 in the third quarter and to just eight in the fourth quarter
as the sheer speed and magnitude of the subprime mortgage fallout significantly
weakened investors’ confidence.” 1264
In the years leading up to the financial crisis, the typical size of a CDO deal was between
$1 and $1.5 billion, 1265 and generated large fees for investment banks in the range of $5 to $10
million per CDO. 1266 To handle these transactions, a number of large investment banks
established CDO departments and trading desks charged with designing, underwriting, selling, or
trading CDO securities. The CDO origination desks typically worked with the investment
banks’ structured finance sales force to sell the resulting CDO securities. This structure meant
that stopping the issuance of CDO securities would require the investment banks to lose out on
the fees, prestige, and market share tied to CDO sales. In addition, whole CDO departments,
with their dedicated bankers, traders, and supervisors, would have to disappear, which is
eventually what happened after the CDO market crashed.
CDOs at Deutsche Bank. From 2004 to 2008, Deutsche Bank issued 47 asset backed
CDOs for a total securitization of $32.2 billion.1267 According to analysts, in both 2006 and
2007, Deutsche Bank ranked fourth globally in issuing asset backed CDOs, behind Merrill
Lynch, JPMorgan Chase, and Citigroup. 1268
1264

Moody’s 2008 Global CDO Review (3/3/2008).
“Wall Street’s money machine breaks down,” CNNMoney.com (11/12/2007),
http://money.cnn.com/magazines/fortune/fortune_archive/2007/11/26/101232838/index.htm.
1266
See “Banks’ Self-Dealing Super-Charged Financial Crisis,” ProPublica (8/26/2010),
http://www.propublica.org/article/banks-self-dealing-super-charged-financial-crisis (“A typical CDO could net the
bank that created it between $5 million and $10 million – about half of which usually ended up as employee
bonuses. Indeed, Wall Street awarded record bonuses in 2006, a hefty chunk of which came from the CDO
business.”). Fee information obtained by the Subcommittee is consistent with this range of CDO fees. For example,
Deutsche Bank received nearly $5 million in fees for Gemstone 7, and the head of its CDO Group said that Deutsche
Bank received typically between $5 and 10 million in fees per CDO, while Goldman Sachs charged a range of $5 to
$30 million in fees for its Camber 7, Fort Denison, and Hudson Mezzanine 1 and 2 CDOs. 12/20/2006 Gemstone 7
Securitization Credit Report, DB_PSI_00237655-71; undated Gemstone 7 Securitization Credit Report,
MTSS000011-13; 3/15/2007 Gemstone CDO VII Ltd. Closing Memorandum, DB_PSI_00133536-41;
Subcommittee interview of Michael Lamont (Deutsche Bank) (9/29/2010); 3/21/2011 letter from Deutsche Bank’s
counsel to the Subcommittee, PSI-Deutsche_Bank-0001-04; Goldman Sachs response to Subcommittee QFRs at
PSI-QFR-GS0249.
1267
Chart, ABS CDOs Issued by DBSI (between 2004 and 2008), PSI-Deutsche_Bank-02-0005-23.
1268
See “Global ABS CDO Issuance” chart, Reuters (4/20/2010),
http://graphics.thomsonreuters.com/10/04/GLB_GCDOV0410.gif; “Banks in Talks to End Bond Probe,” Wall Street
Journal (12/2/2010),
1265

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At Deutsche Bank, five different parts of the Securitized Product Group played key roles
in its CDO business. They were the CDO Group (North America); the CDO sales force,
formally called Securitized Products; the CDO Syndication Desk which helped promote and
track CDO sales; the mortgage department; and the CDO Trading Desk, formally called ABS
(Asset Backed Security) Trading, CDO Trading, and ABS Correlation Trading.
The CDO Group had two co-heads, Michael Lamont and Michael Herzig, and
approximately 20 employees. The heads of the group reported to Richard D’Albert, Global Head
of Deutsche Bank’s Securitized Product Group. The CDO Group designed and structured the
bank’s CDOs, analyzed the assets that went into the CDOs, monitored the purchasing and
warehousing of those assets, obtained CDO credit ratings, prepared CDO legal documentation,
acted as the CDO underwriter or placement agent on behalf of Deutsche Bank, and oversaw the
issuance of the CDO securities. 1269
The CDO sales force sold the resulting CDO securities for Deutsche Bank. It received
assistance from the CDO Syndication, sometimes called the “syndicate,” which helped promote
the deals with investors an