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Collectively, the banks divulged that they have “stockpiled long-term debt” within holding companies (or the parent company that owns the bank) to make their portfolios appear to be “less complex”. In other words, banks have placed their derivatives (or stockpiled long-term debt) within the main corporation that owns their subsidiaries. The only problem is that if the parent fails, so do its “children”. The bank’s assets could be placed into receivership with the intention of being split up and auctioned off; however some corporations abuse receivership and bankruptcy to make investors and creditors think they are dead in the water only to pull out at the last minute and enjoy large primary debt write-offs. This is a sort of corporate version of playing possum.

This classic con tactic would provide the unique advantage of not having to go to the Senate and demand a taxpayer bailout. The banks could simply file for bankruptcy and exert social pressure via public outcry, protests and demands of the people that Congress consider another bailout. In this scenario, the parent company gets saved and not the subsidiaries. This tactic is a reserve version of what happened after the crash in 2008. Regarding the bank’s contingency plans, JPMorgan’s “hypothetical death”would see the bank downsize by a 3rd and provide a resolve for the bank “without systemic disruption or taxpayer support”. Citigroup has proposed shrinking by selling off $300 billion in corporate assets and “cut US retail banking to about $200 billion”; as well as get rid of broker-dealers.

Mark Costigilo, spokesperson for Citigroup, explained that should Citigroup go into bankruptcy, their living will “demonstrates that we can do so without the use of taxpayer funds and without adverse systemic impact.” And Bank of America (BoA) stated that their rise out of bankruptcy would involve the unloading of $1.2 trillion in assets; as well as “shedding most of … non-bank operations”. Last year, the major banks were told to revise previously submitted living wills because their plans did not provide a “credible or clear path through bankruptcy that doesn’t require unrealistic assumptions and direct or indirect public support.” All of this adds up to a bail-in, as predicted by economic analyst Jim Sinclair who said: “Bail-ins are coming to North America without any doubt, and will be remembered as the ‘Great Leveling,’ of the ‘great Flushing’ (of Lehman Brothers). Not only can it happen here, but it will happen here. It stands on legal grounds by legal precedent both in the U.S., Canada and the U.K.”

Sinclair pointed out: “Bail-ins do not require a crisis to occur and can surface one bank at a time, spread out over years. The major situation is deposits above insurance levels in banks too big to fail. Those deposits are directly in harm’s way.”

The Moody’s downgrade spurred some of Merrill’s partners to ask that contracts be moved to the retail unit, which has a higher credit rating, according to people familiar with the transactions. Transferring derivatives also can help the parent company minimize the collateral it must post on contracts and the potential costs to terminate trades after Moody’s decision, said a person familiar with the matter. Bank of America estimated in an August regulatory filing that a two-level downgrade by all ratings companies would have required that it post $3.3 billion in additional collateral and termination payments, based on over-the-counter derivatives and other trading agreements as of June 30. The figure doesn’t include possible collateral payments due to “variable interest entities,” which the firm is evaluating, it said in the filing.

Derivatives are financial instruments used to hedge risks or for speculation. They’re derived from stocks, bonds, loans, currencies and commodities, or linked to specific events such as changes in the weather or interest rates. Dodd-Frank Rules Keeping such deals separate from FDIC-insured savings has been a cornerstone of U.S. regulation for decades, including last year’s Dodd-Frank overhaul of Wall Street regulation. The legislation gave the FDIC, which liquidates failing banks, expanded powers to dismantle large financial institutions in danger of failing. The agency can borrow from the Treasury Department to finance the biggest lenders’ operations to stem bank runs. It’s required to recoup taxpayer money used during the resolution process through fees on the largest firms.

Bank of America’s holding company -- the parent of both the retail bank and the Merrill Lynch securities unit -- held almost $75 trillion of derivatives at the end of June, according to data compiled by the OCC. About $53 trillion, or 71 percent, were within Bank of America NA, according to the data, which represent the notional values of the trades. That compares with JPMorgan’s deposit-taking entity, JPMorgan Chase Bank NA, which contained 99 percent of the New York-based firm’s $79 trillion of notional derivatives, the OCC data show.

Moving derivatives contracts between units of a bank holding company is limited under Section 23A of the Federal Reserve Act, which is designed to prevent a lender’s affiliates from benefiting from its federal subsidy and to protect the bank from excessive risk originating at the non-bank affiliate, said Saule T. Omarova, a law professor at the University of North Carolina at Chapel Hill School of Law. “Congress doesn’t want a bank’s FDIC insurance and access to the Fed discount window to somehow benefit an affiliate, so they created a firewall,” Omarova said. The discount window has been open to banks as the lender of last resort since 1914. As a general rule, as long as transactions involve high- quality assets and don’t exceed certain quantitative limitations, they should be allowed under the Federal Reserve Act, Omarova said.

In 2009, the Fed granted Section 23A exemptions to the banking arms of Ally Financial Inc., HSBC Holdings Plc, Fifth Third Bancorp, ING Groep NV, General Electric Co., Northern Trust Corp., CIT Group Inc., Morgan Stanley and Goldman Sachs Group Inc., among others, according to letters posted on the Fed’s website. The central bank terminated exemptions last year for retail-banking units of JPMorgan, Citigroup, Barclays Plc, Royal Bank of Scotland Plc and Deutsche Bank AG. The Fed also ended an exemption for Bank of America in March 2010 and in September of that year approved a new one. Section 23A “is among the most important tools that U.S. bank regulators have to protect the safety and soundness of U.S. banks,” Scott Alvarez, the Fed’s general counsel, told Congress in March 2008.

Even at face value, the reported settlement is minuscule compared to the harm caused by Bank of America companies. The on-paper cost of the deal is less than 7 percent of the value of the mortgage deals Bank of America and its subsidiaries Countrywide and Merrill Lynch made before the crisis that have since gone bad. (Bank of America bought Countrywide and Merrill Lynch at the height of the crisis.) Those three companies issued just shy of a trillion dollars in mortgage-backed securities in the run-up to the financial collapse, and $245 billion of those products have gone bad, according to Bloomberg. Bank of America had pushed for a much smaller settlement for months, arguing that it should not have to pay for the sins of the firms it bought at bargain-bin prices when the economy was reeling. But a court ruling last month regarding Countrywide’s most notorious mortgage swindle caused the bank to change its tune, according to the New York Times. Judge Jed Rakoff ordered the bank to pay about $1.3 billion for one tranch of defective mortgages sold under a program that Countrywide nicknamed “Hustle” because of its fraudulent nature. Having lost one court case over Countrywide’s notorious misdeeds, the Times says, Bank of America decided to stop resisting federal officials’ settlement demands.

After tax deductions, the settlement could easily shrink below the roughly $15 billion in profits the company has reported since 2011. And because the financial crisis sucked something like $14 trillion out of the economy and destroyed tens of trillions of dollars in wealth for homeowners, the DOJ can hardly claim to have delivered a proportional response. The department’s claims about the Bank of America settlement are likely to draw political scrutiny. A bipartisan bill from Sens. Elizabeth Warren (D-MA) and Tom Coburn (R-OK) would require government officials to state the full tax deductibility and true cost of corporate legal settlements in all public statements about them. That bill, inspired by the revelations that JP Morgan’s sweetheart deal with the DOJ didn’t come close to the portrait that Attorney General Eric Holder painted of it, was passed out of committee late last month.