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December 18, 2011

Issue 178  -  ReHypothawhat?
That's a picture of Jon Corzine, former governor and senator of New Jersey.  He also was CEO of Goldman Sachs and the now infamous MF Global.  MF Global is the firm that has "lost" their customers money because it was used for other purposes.  I thought I'd take this week and try to explain what happened to the best of my ability.
The main term that needs to be understood is rehypothecation.  When you hypothecate, you put up collaterol for a loan of some variety.  Your house is hypothecated for the mortgage you receive.  "Hypothetically, the lender owns the collateral.  This is common and there is nothing out of the ordinary in this process.  The problem comes in when the lender rehypothecates the collateral.  In that case the lender uses your house (or whatever) as a collateral for HIS loan.  This is illegal in the United States.  So how did MF Global get into this mess.  Well, believe it or not, rehypothecation is legal in Great Britain.  So guess what?  Every major firm has an entity that is based in London.  That way they can get around the U.S. laws.  What does this mean?   Here is an explanation from Zerohedge of the worse type of outcome:  (this is real long article which I highly recommend you read, however, I have highlighted in blue the most important passages)

"In an oddly prescient turn of events, yesterday we penned a post titled "Has The Imploding European Shadow Banking System Forced The Bundesbank To Prepare For Plan B?" in which we explained how it was not only the repo market, but the far broader and massively unregulated shadow banking system in Europe that was becoming thoroughly unhinged, and was manifesting itself in a complete "lock up in interbank liquidity" and which, we speculated, is pressuring the Bundesbank, which is well aware of what is going on behind the scenes, to slowly back away from what will soon be an "apocalyptic" event (not our words... read on). Why was this prescient? Because today, Reuters' Christopher Elias has written the logical follow up analysis to our post, in which he explains in layman's terms not only how but why the lock up has occurred and will get far more acute, but also why the MF Global bankruptcy, much more than merely a one-off instance of "repo-to-maturity" of sovereign bonds gone horribly wrong is a symptom of two things: i) the lax London-based unregulated and unsupervised system which has allowed such unprecedented, leveraged monsters as AIG, Lehman and now as it turns out MF Global, to flourish until they end up imploding and threatening the world's entire financial system, and ii) an implicit construct embedded within the shadow banking model which permitted the heaping of leverage upon leverage upon leverage, probably more so than any structured finance product in the past (up to and including synthetic CDO cubeds), and certainly on par with the AIG cataclysm which saw $2.7 trillion of CDS notional sold with virtually zero margin. Simply said: when one truly digs in, MF Global exposes the 2011 equivalent of the 2008 AIG: virtually unlimited leverage via the shadow banking system, in which there are practically no hard assets backing the infinite layers of debt created above, and which when finally unwound, will create a cataclysmic collapse of all financial institutions, where every bank is daisy-chained to each other courtesy of multiple layers of "hypothecation, and re-hypothecation." In fact, it is a link so sinister it touches every corner of modern finance up to and including such supposedly "stable" institutions as Jefferies, which as it turns out has spent weeks defending itself, however against all the wrong things, and Canadian banks, which as it also turns out, defended themselves against Zero Hedge allegations they may well be the next shoes to drop, as being strong and vibrant (and in fact just announced soaring profits and bonuses), yet which have all the same if not far greater risk factors as MF Global. Yet nobody has called them out on it. Until now.

But first, a detour to London...

As readers will recall, the actual office that blew up the world the first time around, was not even based in the US. It was a small office located on the top floor of 1 Curzon Street in London's Mayfair district, run by one Joe Cassano: the head of AIG Financial Products. The reason why this office of US-based AIG was in London, is so that Cassano could sell CDS as far away from the eye of Federal regulators as possible. Which he did. In fact he sold an unprecedented $2.7 trillion worth of CDS just before the firm collapsed due to one small glitch in the system - the assumption that home prices could go down as well as up. Yet the real question is why he sold so much CDS? The answer is simple - in a world of limited real assets, the only way to generate a practically limitless cash flow annuity would be to sell synthetic insurance on a virtually infinite amount of synthetic underlying. Which he did. Only when it came time to pay the claims, AIG blew up, forcing the government to bail it out, and set off the chain of events where we find ourselves now, where every day could be the developed world's last if not for the ongoing backstops, guarantees and bailouts of the central banking regime.

What is greatly ironic is that in the aftermath of the AIG collapse, the UK was shamed into admitting that it was its own loose, lax and unregulated system that allowed such unsupervised insanity to continue for as long as it did. As the Telegraph reminds us, "Conservative Party Treasury spokesman Philip Hammond called for a public inquiry into the FSA’s oversight of AIG Financial Products in Mayfair. “We must not allow London to become a bolthole for companies looking for a place to conduct questionable activities,” he said. “This sounds like a monumental cock-up by the FSA,” said Lib Dem shadow chancellor Vince Cable. “It is deeply ironic,” he added, that Brown was in Brussels last week calling for tougher global financial regulation just as the scandal over the FSA’s role in one of the key regulatory failures at the root of the global panic emerged as an international issue." It is ironic because the trail in the MF Global collapse, where it is yet another infinitely leveragable product that once again comes to the fore, once again goes straight to that hub for "questionable activities" - London.

But before we explain why London is once again to blame for what was not only the immediate reason of the MF Global collapse, but could well precipitate the next global collapse, a quick look at rehypothecation.

As Reuters points out, it was not so much the act of creating "repos-to-maturity" that imperiled MF Global, but what is a secret gold mine for those privy to it - the process of re-hypothecation of collateral.

[h]ypothecation is when a borrower pledges collateral to secure a debt. The borrower retains ownership of the collateral but is “hypothetically” controlled by the creditor, who has a right to seize possession if the borrower defaults.

In the U.S., this legal right takes the form of a lien and in the UK generally in the form of a legal charge. A simple example of a hypothecation is a mortgage, in which a borrower legally owns the home, but the bank holds a right to take possession of the property if the borrower should default.

In investment banking, assets deposited with a broker will be hypothecated such that a broker may sell securities if an investor fails to keep up credit payments or if the securities drop in value and the investor fails to respond to a margin call (a request for more capital).

Re-hypothecation occurs when a bank or broker re-uses collateral posted by clients, such as hedge funds, to back the broker’s own trades and borrowings. The practice of re-hypothecation runs into the trillions of dollars and is perfectly legal. It is justified by brokers on the basis that it is a capital efficient way of financing their operations much to the chagrin of hedge funds.

So far so good, assuming there was regulation, and assuming if regulation failed, that the firms that blew up as a result of their greed would truly blow up, instead of being resurrected as TBTF zombies by a government in dire need of rent collection and lobby cash (because with or without regulation, if those who fail are not allowed to fail, then the whole point of capitalism is moot). But... there is always a snag.

Under the U.S. Federal Reserve Board's Regulation T and SEC Rule 15c3-3, a prime broker may re-hypothecate assets to the value of 140% of the client's liability to the prime broker. For example, assume a customer has deposited $500 in securities and has a debt deficit of $200, resulting in net equity of $300. The broker-dealer can re-hypothecate up to $280 (140 per cent. x $200) of these assets.

But in the UK, there is absolutely no statutory limit on the amount that can be re-hypothecated. In fact, brokers are free to re-hypothecate all and even more than the assets deposited by clients. Instead it is up to clients to negotiate a limit or prohibition on re-hypothecation. On the above example a UK broker could, and frequently would, re-hypothecate 100% of the pledged securities ($500).

This asymmetry of rules makes exploiting the more lax UK regime incredibly attractive to international brokerage firms such as MF Global or Lehman Brothers which can use European subsidiaries to create pools of funding for their U.S. operations, without the bother of complying with U.S. restrictions.

In fact, by 2007, re-hypothecation had grown so large that it accounted for half of the activity of the shadow banking system. Prior to Lehman Brothers collapse, the International Monetary Fund (IMF) calculated that U.S. banks were receiving $4 trillion worth of funding by re-hypothecation, much of which was sourced from the UK. With assets being re-hypothecated many times over (known as “churn”), the original collateral being used may have been as little as $1 trillion – a quarter of the financial footprint created through re-hypothecation.

So let's see: a Prime Broker taking posted collateral, then using the same collateral as an instrument for hypothecation with a net haircut, then repeating the process again, and again... Ring a bell? If you said "fractional reserve lending" - ding ding ding. In essence what re-hypothecation, and subsequent levels thereof, especially once in the shadow banking realm, allows Prime Brokers is to become de facto banks only completely unregulated and using synthetic assets as collateral. Curiously enough it was earlier today that we also penned "ECB Confirms Shadow Banking System In Europe In Tatters" in which we explained that since ECB has to expand the eligible collateral it will accept, there is no real collateral left, meaning the re-hypothecation process in Europe has experienced terminal failure. Yet the kicker is that the "safety haircut" only occurs in the US. Not in the UK. And therein lies the rub. In the UK, the epic failure of supervision has allowed banks to become de facto monsters of infinite shadow banking fractional reserve leverage - every bank's wet dream! Naturally, Prime Brokers have known all about this which explains the quiet desire to conduct re-hypothecation out of London-based offices for every US-based (and Canadian) bank. Reuters explains:

Keen to get in on the action, U.S. prime brokers have been making judicious use of European subsidiaries. Because re-hypothecation is so profitable for prime brokers, many prime brokerage agreements provide for a U.S. client’s assets to be transferred to the prime broker’s UK subsidiary to circumvent U.S. rehypothecation rules.

Under subtle brokerage contractual provisions, U.S. investors can find that their assets vanish from the U.S. and appear instead in the UK, despite contact with an ostensibly American organisation.

Potentially as simple as having MF Global UK Limited, an English subsidiary, enter into a prime brokerage agreement with a customer, a U.S. based prime broker can immediately take advantage of the UK’s unrestricted re-hypothecation rules.

While we already mentioned AIG as an example of the lax UK-based regulatory regime, it is another failed bank that is perhaps the best example of levered failure but in the specific re-hypothecation context: Lehman Brothers itself.

This is exactly what Lehman Brothers did through Lehman Brothers International (Europe) (LBIE), an English subsidiary to which most U.S. hedge fund assets were transferred. Once transferred to the UK based company, assets were re-hypothecated many times over, meaning that when the debt carousel stopped, and Lehman Brothers collapsed, many U.S. funds found that their assets had simply vanished.

A prime broker need not even require that an investor (eg hedge fund) sign all agreements with a European subsidiary to take advantage of the loophole. In fact, in Lehman’s case many funds signed a prime brokerage agreement with Lehman Brothers Inc (a U.S. company) but margin-lending agreements and securities-lending agreements with LBIE in the UK (normally conducted under a Global Master Securities Lending Agreement).

These agreements permitted Lehman to transfer client assets between various affiliates without the fund’s express consent, despite the fact that the main agreement had been under U.S. law. As a result of these peripheral agreements, all or most of its clients’ assets found their way down to LBIE.

And now we get back to the topic at hand: MF Global, why and how it did precisely what Lehman did back then, why it did this in London, and why its failure is a symptom of something far more terrifying than merely investing money in collapsing PIIGS bonds.

MF Global’s Customer Agreement for trading in cash commodities, commodity futures, security futures, options, and forward contracts, securities, foreign futures and options and currencies includes the following clause:

 “7. Consent To Loan Or Pledge You hereby grant us the right, in accordance with Applicable Law, to borrow, pledge, repledge, transfer, hypothecate, rehypothecate, loan, or invest any of the Collateral, including, without limitation, utilizing the Collateral to purchase or sell securities pursuant to repurchase agreements [repos] or reverse repurchase agreements with any party, in each case without notice to you, and we shall have no obligation to retain a like amount of similar Collateral in our possession and control.”

 In its quarterly report, MF Global disclosed that by June 2011 it had repledged (re-hypothecated) $70 million, including securities received under resale agreements. With these transactions taking place off-balance sheet it is difficult to pin down the exact entity which was used to re-hypothecate such large sums of money but regulatory filings and letters from MF Global’s administrators contain some clues.

 According to a letter from KPMG to MF Global clients, when MF Global collapsed, its UK subsidiary MF Global UK Limited had over 10,000 accounts. MF Global disclosed in March 2011 that it had significant credit risk from its European subsidiary from “counterparties with whom we place both our own funds or securities and those of our clients”.

It gets even worse when one considers that over the years the actual quality of good collateral declined, meaning worse and worse collateral was to be pledged in these potentially infinite recursive loops of shadow banking fractional reserve lending:

Despite the fact that there may only be a quarter of the collateral in the world to back these transactions, successive U.S. governments have softened the requirements for what can back a re-hypothecation transaction.

Beginning with Clinton-era liberalisation, rules were eased that had until 2000 limited the use of re-hypothecated funds to U.S. Treasury, state and municipal obligations. These rules were slowly cut away (from 2000-2005) so that customer money could be used to enter into repurchase agreements (repos), buy foreign bonds, money market funds and other assorted securities.

Hence, when MF Global conceived of its Eurozone repo ruse, client funds were waiting to be plundered for investment in AA rated European sovereign debt, despite the fact that many of its hedge fund clients may have been betting against the performance of those very same bonds.

At this point flashing red lights should be going though the head of anyone who lived through the AIG cataclysm: in effect the rehypothecation scenario affords the same amount of leverage, and potentially even less supervision that the CDS market. Said otherwise, the counteparty risk of daisy chaining defaults is on par with that in the case of AIG.

As well as collateral risk, re-hypothecation creates significant counterparty risk and its off-balance sheet treatment contains many hidden nasties. Even without circumventing U.S. limits on re-hypothecation, the off-balance sheet treatment means that the amount of leverage (gearing) and systemic risk created in the system by re-hypothecation is staggering.

Re-hypothecation transactions are off-balance sheet and are therefore unrestricted by balance sheet controls. Whereas on balance sheet transactions necessitate only appearing as an asset/liability on one bank’s balance sheet and not another, off-balance sheet transactions can, and frequently do, appear on multiple banks’ financial statements. What this creates is chains of counterparty risk, where multiple re-hypothecation borrowers use the same collateral over and over again. Essentially, it is a chain of debt obligations that is only as strong as its weakest link.

And the kicker:

With collateral being re-hypothecated to a factor of four (according to IMF estimates), the actual capital backing banks re-hypothecation transactions may be as little as 25%. This churning of collateral means that re-hypothecation transactions have been creating enormous amounts of liquidity, much of which has no real asset backing.

It turns out the next AIG was among us all along, only because it was hidden deep in the bowels of the unmentionable shadow banking system, out of sight (by definition) meant out of mind. Only it was not: and at last check there was $15 trillion in the shadow banking system in the US alone, where the daisy chaining of counteparty risk meant that any liquidity risk flare up would mean the AIG bankruptcy was not even a dress rehearsal for the grand finale.

But where does one look for the next AIG? Who would be stupid enough to disclose the fact that they have essentially the same risk on their off-balance sheet books as AIG had on its normal books? Once again, we turn to Reuters:

The lack of balance sheet recognition of re-hypothecation was noted in Jefferies’ recent 10Q (emphasis added):

 “Note 7. Collateralized Transactions
We pledge securities in connection with repurchase agreements, securities lending agreements and other secured arrangements, including clearing arrangements. The pledge of our securities is in connection with our mortgage?backed securities, corporate bond, government and agency securities and equities businesses. Counterparties generally have the right to sell or repledge the collateral.Pledged securities that can be sold or repledged by the counterparty are included within Financial instruments owned and noted as Securities pledged on our Consolidated Statements of Financial Condition. We receive securities as collateral in connection with resale agreements, securities borrowings and customer margin loans. In many instances, we are permitted by contract or custom to rehypothecate securities received as collateral. These securities maybe used to secure repurchase agreements, enter into security lending or derivative transactions or cover short positions. At August 31, 2011 and November 30, 2010, the approximate fair value of securities received as collateral by us that may be sold or repledged was approximately $25.9 billion and $22.3 billion, respectively. At August 31, 2011 and November 30, 2010, a substantial portion of the securities received by us had been sold or repledged.

We engage in securities for securities transactions in which we are the borrower of securities and provide other securities as collateral rather than cash. As no cash is provided under these types of transactions, we, as borrower, treat these as noncash transactions and do not recognize assets or liabilities on the Consolidated Statements of Financial Condition. The securities pledged as collateral under these transactions are included within the total amount of Financial instruments owned and noted as Securities pledged on our Consolidated Statements of Financial Condition.

 According to Jefferies’ most recent Annual Report it had re-hypothecated $22.3 billion (in fair value) of assets in 2011 including government debt, asset backed securities, derivatives and corporate equity- that’s just $15 billion shy of Jefferies total on balance sheet assets of $37 billion.

Oh Jefferies, Jefferies, Jefferies. Barely did you manage to escape the gauntlet of accusation of untenable gross (if not net) sovereign exposure, that you will soon, potentially as early as tomorrow, have to defend your zany rehypothecation practices. One wonders: will Sean Egan downgrade you for this latest transgression as well? All the better for Leucadia though: one more million shares that Dick Handler can sell to Ian Cumming.

Yet Jefferies is just the beginning. It gets much, much worse.

With weak collateral rules and a level of leverage that would make Archimedes tremble, firms have been piling into re-hypothecation activity with startling abandon. A review of filings reveals a staggering level of activity in what may be the world’s largest ever credit bubble.

 Engaging in hyper-hypothecation have been Goldman Sachs ($28.17 billion re-hypothecated in 2011), Canadian Imperial Bank of Commerce (re-pledged $72 billion in client assets), Royal Bank of Canada (re-pledged $53.8 billion of $126.7 billion available for re-pledging), Oppenheimer Holdings ($15.3 million), Credit Suisse (CHF 332 billion), Knight Capital Group ($1.17 billion),Interactive Brokers ($14.5 billion), Wells Fargo ($19.6 billion), JP Morgan($546.2 billion) and Morgan Stanley ($410 billion).

And people were wondering why looking through the balance sheet of Canadian banks revealed no alert signals. It is because all the exposure was off the books! Hundreds of billions of dollars worth. As for JPM and MS amounting to nearly a trillion in rehypothecation... well, we are confident the market will be delighted to start pricing that particular fat-tail risk as soon as tomorrow.

Yet it is Reuters' conclusion that strikes home, and is identical to what we said last night about the liquidity lock up in Europe and what it means for the shadow banking system, although from the perspective of an inverted cause and effect:

The volume and level of re-hypothecation suggests a frightening alternative hypothesis for the current liquidity crisis being experienced by banks and for why regulators around the world decided to step in to prop up the markets recently. 
That's precisely right: the shadow banking system, so aptly named because its death rattle can never be seen out in the open, is slowly dying. As noted yesterday. But lest we be accused of hyperventilating, this time we will leave a respected, non-fringe media to bring out the big adjective guns:

To date, reports have been focused on how Eurozone default concerns were provoking fear in the markets and causing liquidity to dry up....Most have been focused on how a Eurozone default would result in huge losses in Eurozone bonds being felt across the world’s banks. However, re-hypothecation suggests an even greater fear. Considering that re-hypothecation may have increased the financial footprint of Eurozone bonds by at least four fold then a Eurozone sovereign default could be apocalyptic.

 U.S. banks direct holding of sovereign debt is hardly negligible. According to the Bank for International Settlements (BIS), U.S. banks hold $181 billion in the sovereign debt of Greece, Ireland, Italy, Portugal and Spain. If we factor in off-balance sheet transactions such as re-hypothecations and repos, then the picture becomes frightening.

And there you have it: in this world where distraction and diversion often times is the only name of the game, while banks were pretending to have issues with their traditional liabilities, it was really the shadow liabilities where the true terrors were accumulating. Because in what has become a veritable daisy chain of linked shadow exposure, we are now back where we started with the AIG collapse, only this time the regime is decentralized, without the need for a focal, AIG-type center. What this means is that the collapse of the weakest link in the daisy-chain sets off a house of cards that eventually will crash even the biggest entity due to exponentially soaring counterparty risk: an escalation best comparable to an avalanche - where one simple snowflake can result in a deadly tsunami of snow that wipes out everything in its path. Only this time it is not something as innocuous as snow: it is the compounded effect of trillions and trillions of insolvent banks all collapsing at the same time, and wiping out the developed world and the associated 150 years of the welfare state as we know it.

In this light, it makes far more sense why, as we suggested yesterday, the sanest central bank in Europe, the German Bundesbank, is quietly making stealthy preparations to get the hell out of Dodge, as it realizes all too well, that the snowflake has arrived: MF Global's bankruptcy has already set off a chain of events which not even all the world's central banks can halt. Which is ironic for the Buba - what it is doing is "too little too late." But at least it is taking proactive steps. For all the other central banks in the Eurozone, and soon the world, unfortunately the deer in headlights image is the only applicable one. And all because of unbridled greed, bribed and corrupt regulators sleeping at their job, and governments which encourage the TBTF modus operandi as the only fall back one, which in turn gave banks a carte blanche to take essentially unlimited risk.

We are all about to suffer the consequences of all three."

Yes, this could ugly.  Very ugly.  Now of course there is no guarantee that anything this dire will happen but the chances are much higher than zero that it will.  One other interesting aspect of this whole debacle is the idea of clawback.  What is a clawback?  It's a fairly rare occurrence where money that has already been removed by the customer is taken back.  This process is now being WRITTEN into customer agreements.  Here's one from the Ticker Guy:

Mf Global’s burned commodity customers turned their ire from Jon Corzine to Jamie Dimon yesterday after MF’s creditor committee, led by Dimon’s JPMorgan Chase, objected to a plan to distribute $2.1 billion to customers who have seen their accounts frozen since Halloween.

In a Manhattan bankruptcy court filing, the creditors committee, which also includes Bank of America and hedge fund Elliott Management, said they want more assurances that the $2.1 billion is not their money.

Among their requests: They want customers to agree in writing that the money they receive could be clawed back.

Got it?

Even if it turns out that your funds as a customer were stolen through a rank violation of the segregation that is supposed to be in place, JP Morgan and Bank of America, among others, want to be able to claw back your money should their claims against the bankrupt entity prove up.

So much for the alleged "separation" that the entire premise of brokerages rest upon -- that your free cash and margin deposits are yours and are not "investments" in the underlying business of the firm you are choosing to trade with.

If you think this risk doesn't apply to you and you're in the market in any way, shape or form you're quite-simply wrong.

This sort of demand by creditors, incidentally, that allegedly-segregated funds be downgraded ex-post-facto to that of a simple creditor is an outrage.

It is my considered opinion that the firms who make such arguments, and their executives, deserve to be dismantled.

That's right, they want you to agree that even if you have taken your money out, if they go bankrupt, and can't pay THEIR bills, they want YOU to give YOUR money back.  Pretty outrageous, huh?  These thieves, and there is no other better term for them, know no bounds.  This is why I say nothing is safe except an asset in your physical possession.
But how about my FDIC and SPIC insurance, they'll protect me right?  Maybe.  Let's just review what these two insurances are and what they cover.  First the SIPC insurance which is for stock brokerages:

What SIPC Covers... What it Does Not

The cash and securities – such as stocks and bonds – held by a customer at a financially troubled brokerage firm are protected by SIPC.

Among the investments that are ineligible for SIPC protection are commodity futures contracts (unless defined as customer property under the Securities Investor Protection Act) and currency, as well as investment contracts (such as limited partnerships) and fixed annuity contracts that are not registered with the U.S. Securities and Exchange Commission under the Securities Act of 1933.It is important to recognize that SIPC does not work the same way as the Federal Deposit Insurance Corporation in terms of blanket protection of losses.
And just what does the banking FDIC insurance cover:

What does FDIC deposit insurance cover?

FDIC insurance covers all types of deposits received at an insured bank, including deposits in a checking account, negotiable order of withdrawal (NOW) account, savings account, money market deposit account (MMDA) or time deposit such as a certificate of deposit (CD).

FDIC insurance covers depositors’ accounts at each insured bank, dollar-for-dollar, including principal and any accrued interest through the date of the insured bank’s closing, up to the insurance limit.

The FDIC does not insure money invested in stocks, bonds, mutual funds, life insurance policies, annuities or municipal securities, even if these investments are purchased at an insured bank.

The FDIC does not insure safe deposit boxes or their contents.

The FDIC does not insure U.S. Treasury bills, bonds or notes, but these investments are backed by the full faith and credit of the United States government.

How much insurance coverage does the FDIC provide?

The standard deposit insurance amount is $250,000 per depositor, per insured bank, for each account ownership category.

The FDIC insures deposits that a person holds in one insured bank separately from any deposits that the person owns in another separately chartered insured bank. For example, if a person has a certificate of deposit at Bank A and has a certificate of deposit at Bank B, the accounts would each be insured separately up to $250,000. Funds deposited in separate branches of the same insured bank are not separately insured.

The FDIC provides separate insurance coverage for funds depositors may have in different categories of legal ownership. The FDIC refers to these different categories as “ownership categories.” This means that a bank customer who has multiple accounts may qualify for more than $250,000 in insurance coverage if the customer’s funds are deposited in different ownership categories and the requirements for each ownership category are met.

Now obviously, if there is a big systemic failure there is no way any of these "insurances" will mean squat.   But what are limitations here?  Here's more Ticker Guy:

Now look folks, I don't want to instill panic, but I'm going to relate to you what I was told years ago by someone I paid for advice when I got concerned about a broker I was doing business with back in the late 1990s. As with all such matters of a legal tenor, you either pay for advice or you have a fool as your advisor, so take this for what you think it's worth, and if you have real money on the line then seek your own counsel with someone who you pay and thus who can and will stand behind what they tell you.

But you should know this if you're a trader or investor -- and I'm willing to bet that not one trader in a hundred has an appreciation for the danger, however remote the odds may be.

My question at the time revolved around where the SIPC limits were and were not, and what was and was not actually protected. Most people know that the SIPC limit is $500,000 of which $100,000 is for cash. Most people also know that SIPC coverage only covers missing securities or money -- that is, if you manage to get wound up in something like this and during the time it takes to transfer your account somewhere the price of your stocks crater, you're exposed 100% to that loss. In other words your inability to trade due to be caught in such a trap is your problem, not their problem. Allegedly SIPC protection is there to cover active fraud -- that is, securities that are supposed to be in your account (and you were told were in your account) but actually are not.

This is part of the risks in the game. But what most people don't understand is how this works in practice and where some of the corner cases can land you as a trader or investor.

First, $500,000 sounds like a lot and it is. If you have a few million you can spread it around and get under the limit at various brokerages. If you have tens, hundreds of millions or more, not so much. But there are problems, the largest one being the $100,000 limit for cash. If you go to cash during a market downturn and the brokerage steals the funds you will lose all but $100,000 of it, not all but $500,000! Keep that in mind, because spreading a few million around sufficiently (indeed, even if the number is one million) to get under $100k is difficult or even impossible.

The second problem is more-severe: Commodity and futures brokerages may offer no protection for cash at all. You have to be very careful in relying on that coverage in such instances because it may not be there. There are additional problems and risks with trading futures in particular, which MF Global has exposed to people who didn't formerly understand them, with one of the larger ones being collateral disassociation risk.

This is not talked about at all in the risk documents you get when you open an account but it damn well should be. It bit people hard with MF Global and happens like this: When you trade futures you post margin against your trades. So if you want to trade one /ES contract (S&P futures) you currently have to post $4,000 in cash to do so. You control roughly $60,000 stock with that, so you have 15:1 leverage trading these things, and everyone who does this knows the problem leverage can cause if you're imprudent.

Now here's what happened: If you had contracts open your positions were transferred to a new firm when MF Global failed but the money you posted as margin has "disappeared" and thus was not transferred! As a consequence you got an immediate margin call from the new firm! If you couldn't meet that call your positions were immediately liquidated and if it moved against you from the time of transfer to liquidation could result in a huge debit balance in your account. Normally that debit would come off your margin deposit but in this case the margin has disappeared which means now the new broker comes after you for the money and he wants it in cash - right now!

Note that the effective impact of this event is that you had to have cash somewhere other than MF Global you could immediately tap to make that margin deposit or you were instantly dead and buried. There are many clients in this position right now.

That's bad, and most people don't understand this risk.

Now let's talk about the ugly: The potential for clawbacks. This possibility entirely eviscerates SIPC protection and renders it worthless, and it's real.

Let's assume you detected the problem at MF Global by your own analysis and moved your money somewhere else. If fraud is later discovered -- that is, you were right -- it is possible for the bankruptcy trustee to file a clawback action and attempt to force your money back into the firm to pay the creditors of the estate!

If that didn't send a shiver up your spine you're not very bright.

It appears that there's exactly one place you can stick money where this risk doesn't exist: US Treasuries via a Treasury Direct account. Yeah, if you're in short-term instruments they earn zero, so you might as well buy a 4 week bill and let it roll to a "CofI" (which earns no interest and is basically a cash park at Treasury); if the Treasury is unable to pay you then your concerns are of a more-immediate nature than money.

I don't want to overstate this case, because the risk of a clawback action (especially a successful one) is not very high. But it does exist, and those who claim it doesn't are wrong. It happened in the Madoff case and it can happen here. Remember that in the Madoff case people had statements claiming investments were bought that turned out to be frauds. You'd think the SIPC would cover this case, at least up to $500,000 in securities, since they were "missing" due to fraudulent activity. But the potential for a clawback action means you're wrong about this alleged "protection" -- there may in fact be NO protection at all in the event of fraud.

The success of such an action is by no means certain but what this ultimately means is that detecting fraud and attempting to protect yourself from it by running away from the fraudulent entity may be futile as the trustee can try to forcibly return your money back to him so he can pay creditors with it.

That's nice, huh?  Your funds are backing their problems.  To have such a deal.  The system is very fragile and there is just no getting around that there is a high degree of risk in the markets and in YOUR accounts.  
I received a video link from Craig this week and it shows the absolute lunacy of the United States debt problem in a real world scenario.  The "show" in congress is shown to be merely a distraction when put into this framework:
The amounts of the "cuts" our country is taking is just about nil.  Doesn't matter, no effect.  Just delaying the inevitable.....forced cuts, from our creditors, its only a matter of "when."  This will come to a head someday and our "insurance" will turn out to be nothing more than paper promises.  Even if they "make good" on our losses, the devalued "money" will be practically worthless. 
The bottom line is that there is no free lunch.  Money held in a bank is NOT guaranteed.  You must protect yourself.  But you knew that already didn't you?  You have your own insurance in your grubby little hands right?  Right..........???????
GORO (closed $21.74, up $.95, average price paid $6)
Mexus Gold (closed $.068, down $.002, average price paid, $.22)
AXU (closed $7.50, up $.25, recommended at $7.90)
MBI (closed $11.85, up $.59, recommended at $10.58) 
MBI had good news this week:

Morgan Stanley settles with MBIA, sets $1.8 billion charge

Tue, Dec 13 2011

By Lauren Tara LaCapra

(Reuters) - Morgan Stanley (MS.N: Quote, Profile, Research, Stock Buzz) agreed to give up insurance claims against MBIA Inc (MBI.N: Quote, Profile, Research, Stock Buzz) in exchange for a $1.1 billion payment from the ailing insurer, ending a two-year legal fight over guarantees on mortgage bonds.

The deal, announced on Tuesday, is the latest move by Morgan Stanley Chief Executive James Gorman to clear away vestiges of the financial crisis and put the Wall Street bank on a more stable path.

The settlement will cause Morgan Stanley to take a $1.2 billion charge in the fourth quarter after accounting for a tax benefit, but it will also remove risky assets from company's balance sheet that have led to big swings in its quarterly earnings over the past four years.

Additionally, the deal will shore up Morgan Stanley's capital levels under tougher rules that start coming into effect in 2013.

In a statement, Gorman said the settlement had been a "top priority" for Morgan Stanley this year, "consistent with our efforts to build capital and de-risk the balance sheet."

The settlement stems from credit-default swaps (CDS) that Morgan Stanley had entered with MBIA several years ago to protect against losses on mortgage bonds.

MBIA, a bond insurer, historically focused on municipal bonds but as the U.S. real-estate market heated up last decade, it sold large numbers of CDS on mortgage-backed securities and other structured finance products.

MBIA's bets on CDS started souring as the financial crisis ramped up, leading the company to split itself into two parts: a municipal guarantee business and a structured finance unit. MBIA announced the restructuring in 2009 after receiving approval from state insurance regulators.

A group of 18 banks, including Morgan Stanley, objected to the restructuring in court, arguing that it might leave the insurer unable to pay out its structured finance obligations.

As part of the settlement, Morgan Stanley agreed to end its legal objections to MBIA's restructuring, and MBIA agreed to drop a lawsuit pertaining to the quality of the bonds underlying the CDS contracts.

MBIA will pay Morgan Stanley $1.1 billion to settle legal claims, a person familiar with the matter told Reuters.

The insurer's structured finance division, known as MBIA Insurance, will pay the settlement using a loan from its municipal bond division called National Finance, according to another person familiar with the deal.

All but five banks have settled with MBIA, including HSBC Holdings PLC (HSBA.L: Quote, Profile, Research, Stock Buzz), Royal Bank of Scotland PLC (RBS.L: Quote, Profile, Research, Stock Buzz) and Wells Fargo & Co (WFC.N: Quote, Profile, Research, Stock Buzz). Those still pursuing claims include Bank of America Corp (BAC.N: Quote, Profile, Research, Stock Buzz) and UBS AG (UBSN.VX: Quote, Profile, Research, Stock Buzz).

An MBIA spokesman confirmed that there was a settlement with Morgan Stanley, but declined to comment on the $1.1 billion settlement figure.

"We are continuing to work toward resolving all the litigation," said Kevin Brown, a spokesman for MBIA. "We're talking to most, but not all, the parties."

Robert Giuffra Jr, a partner at Sullivan & Cromwell and lead counsel for banks that are still suing MBIA, said the plaintiffs will continue to fight its restructuring.

Benjamin Lawsky, financial services superintendent for the state of New York, said his agency will continue to work with the remaining companies and MBIA to seek resolutions.


The Morgan Stanley-MBIA settlement will benefit both parties, investors said, though it may represent a bigger win for MBIA.

MBIA shares closed up 0.7 percent on Tuesday at $11.48, having hit $12.60 after the deal announcement. Morgan Stanley fell 1.4 percent to end the day at $15.17, but had risen as high as $16.55 earlier in the day.

The settlement will remove a big swing factor from Morgan Stanley's quarterly earnings results. Because the CDS contracts turned MBIA into a major counterparty of the bank, the widening or narrowing of its credit spreads resulted in big non-cash losses and gains.

Getting rid of MBIA exposure will free up $5 billion worth of capital for Morgan Stanley and improve its Tier 1 common capital ratio by 75 basis points under upcoming rules. Under existing rules, it will reduce Morgan Stanley's Tier 1 common ratio by 30 basis points.

Gorman has been on a mission to improve Morgan Stanley's balance sheet this year, in part to ease investor concerns about the bank's exposure to the European sovereign debt crisis.

In April, Gorman struck a deal with Mitsubishi UFJ Financial Group, a major investor and partner, to convert 7.8 million Morgan Stanley preferred shares into 385.5 million shares of common stock. That move lifted Morgan Stanley's capital ratios.

Gorman has also overseen the dismantling of risky trading operations to comply with a new financial reform rule, wound down other risky assets and implemented higher pricing for over-the-counter derivatives products to reflect higher risk and cost. He has also adjusted Morgan Stanley's funding model to reduce its exposure to riskier, short-term lending.

Still, its shares are down 43 percent so far this year, compared with a 32 percent decline for the NYSE Arca Securities Broker/Dealer Index.

Walter Todd, a portfolio manager at Greenwood Capital, said Gorman's efforts have been noticed but that concerns remain over Europe and the business model of large investment banks. Todd exited his firm's Morgan Stanley position last week to reduce volatility in the portfolio.

"I think it's nice to get this behind them and check it off as something not to worry about anymore , but I wouldn't go out and buy the name because of this agreement," he said.

For MBIA's part, the deal removes a big hurdle standing in the way of its restructuring, at a lower cost than if Morgan Stanley had pursued its claims in full.

Morgan Stanley had $2.7 billion worth of net exposure to MBIA's derivative contracts as of September 30, according to a quarterly regulatory filing. The bank is writing off $1.8 billion worth of the underlying debt, which will lead to the $1.2 billion charge after taxes.

But Manal Mehta, a founding partner of the hedge fund Branch Hill Capital, which owns MBIA shares, estimates that the total notional amount of the underlying securities was more than $10 billion -- meaning that MBIA's $1.1 billion settlement may represent just 10 percent of the potential cost.

"This is a fantastic deal for MBIA," said Mehta.

There are now 4 banks that still have lawsuits against MBI.  There were originally 19.  Each bank is dropping out and settling for a small percentage.  If Bank of America, the biggest bank still in the suit, drops out, the stock should go much higher.  Still holding.  As a side note, I would recommend that if you have this stock that you put in sell orders at much higher levels just in case there is a short squeeze.  There would be nothing worse than having this stock shoot up to $22 one day, drop back to $13 within hours and you being at a meeting.  The short squeeze could be very short.  You need to put in sell orders.  I have them at $16, $20, and $25.  1/3 of my shares at each price.  Sure you might lose out of the grand slam, but making 25% in a couple hours should not be sneezed at.  Then again there may never be a squeeze. 
Stocks (Current status, out)
I have no stocks in any of my retirement accounts, mostly cash with some MBI.
Physical Gold (Closed $1594, down $115, average price paid $395)
Physical Silver (Closed $29.78, down $2.22, average price paid $5.31)
This week's video is for the season.  Have a great week!