Mish's Global Economic Trend Analysis

Common Sense from Eurozone Member Estonia: "Illogical to Exclude the Possibility of Bankruptcy"
Devil at My Doorstep; Obama Buys Votes from Big Labor at Enormous Cost to Nation
MERS Addendum: Circuit Court Ruling has Broad Implications Far Beyond Arizona
Germany Prepares "Plan B" Default; Top ECB Official Resigns; German-Italy Bond Spreads Widen Again; Dollar Soars, European Equities Hammered
9th Circuit Court Ruling Legitimizes MERS

Common Sense from Eurozone Member Estonia: "Illogical to Exclude the Possibility of Bankruptcy"

Posted: 09 Sep 2011 05:39 PM PDT

Common sense sometimes turns up in unexpected places, in this case, Estonia.

Please consider Eurozone: "illogical" to exclude bankruptcy countries, says the Estonian Minister of Finance

The economy minister of Estonia, member of the euro area since January, said it was "illogical" to exclude the possibility of bankruptcy, in an interview published Friday.

"I still do not understand how a failure to pay (heavily indebted countries) can be avoided," said Juhan Parts in German daily Financial Times Deutschland. "In a market economy, this should be an option. It is illogical to want to avoid this issue," he added.

His comments came as doubts about the ability of Greece to implement promised reforms, and on which the financial assistance of its partners are increasingly keen among Europeans.

Estonia, which had to implement stringent economic reforms in the past, has the lowest debt level in the EU, 6, 6% of gross domestic product (GDP) in 2010.
M. Parts rejected the idea of an economic government of the euro area, put forward by French President Nicolas Sarkozy and German Chancellor Angela Merkel. "What is it is supposed to be?" He asks. "With the Stability and Growth Pact, there is already a clear agreement. And we do not know how we can force the Italians to apply [comply],".

I applaud the comments on market forces as opposed to illogical demands and statements from ECB president Jean-Claude Trichet.

Given the size and economic unimportance of Estonia, one's first thought might be to exclude anything they say regarding Eurozone matters. However, sentiment is important. One by one, countries will embrace the obvious (Greece is bankrupt), because there simply is no other choice.

Finland, Austria, Slovakia, and the Netherlands have all raised collateral concerns. Given the market has priced in virtual certain bankruptcy for Greece, one would have to be nuts to not demand collateral. Do German banks need more defaults (or German taxpayers more transfer payments?) That is guaranteed to happen unless Germany too demands collateral.

Looking ahead, Estonia makes a general case for bankruptcy, not just a "Greek bankruptcy". This is not the kind of talk Trichet, the ECB, the IMF, or the EU wants to hear.

Tough luck Mr. Trichet. Market forces have overpowered your blind arrogance and untenable dogma.

At this stage, the only conceivable reason for the EU or IMF to pay Greece the next tranche of money is to give the EU another month trying to figure out the aftermath of default.

The critical mission for the EU is to put in place a mechanism for exit in general, before the market itself forces it.

Mike "Mish" Shedlock
http://globaleconomicanalysis.blogspot.com
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Devil at My Doorstep; Obama Buys Votes from Big Labor at Enormous Cost to Nation

Posted: 09 Sep 2011 02:48 PM PDT

Rebates on social security taxes will not create any jobs, let alone the 1.5 million to 2 million that is projected. To create jobs in private business we need structural reforms that will permanently make businesses more competitive such as health care reform and scrapping numerous union work rules.

When it comes to public work projects, assuming the projects are needed, the goal should be to get the most work done as possible for the least cost. For example, it would be far better to hire two or three workers for $13 an hour than 1 person for $39 an hour, assuming equal skills.

Given so many skilled laborers are out of work, even $10 an hour would find many takers.

GDP Perversion

Government spending adds to GDP regardless of what is produced or how much, so fixing 1 bridge or 3 adds the same GDP. If you waste enough money you can have a positive GDP, whether anything is really produced or not.

Most of the first stimulus was squandered and should Obama win approval for his $447 billion plan, most of that will be squandered as well. Tax cuts will help corporate profits but do little for permanent hiring, and prevailing wage laws and union work rules ensure we will massively overpay for infrastructure projects.

Unless and until we fix structural issues, we can expect no job creation, no matter how much money Keynesian clowns want to throw around.

Devil at my Doorstep

Obama's proposals are 180 degrees wrong. Obama wants to drive up labor costs, not because it makes economic sense, but because it is the only way he can possibly be reelected.

What follows is a post written by David A. Bego, President and CEO of EMS, an industry leader in the field of environmental workplace maintenance, employing nearly 5000 workers in thirty-three states.

Bego is also the author of "The Devil at My Doorstep," a book based on his experiences fighting back against one of the most powerful unions in existence today.

As a guest, post, by permission from Bego, I will dispense with my normal style of blockquotes. Bego's article was written September 5th, ahead of Obama's speech, originally appeared on Union Watch.

Unprecedented NLRB Rulings to Aid Unions by Dave Bego

President Obama will unveil his jobs bill this Thursday on national television. With unemployment hovering around 9 % for the last two years it begs the question, "Mr. President, what has taken you so long?" The reality is that the President does not need a jobs bill nor does he want true recovery. If he was sincere he would get out of the way and rescind the overburdening regulatory state he has created (see blog, "Rule by Fiat"). Unfortunately, he has no intention of doing so, as this would interfere with political paybacks to big labor, thereby hindering his 2012 re-election chances, as well as his desire to press his socialistic agenda.

Last week the National Labor Relations Board (NLRB) took its first major step in making a reality the prediction of recess appointee and former SEIU attorney, Craig Becker. Mr. Becker has previously written that the goals of "card check" could be obtained through the passage of regulatory action. The NLRB issued a Final Rule requiring most employers to post an "11 by 17″ notice advising employees of their right to organize under the National Labor Relations Act (NLRA) (see Labor Relations Board Rule Would Require Businesses to Alert Workers to Union Rights).

Employers will also be required to post the notice on company intranet or internet sites if such sites are normally used for posting company personnel policies. The Final Rule is scheduled to be posted in the Federal Register on August 30, 2011 and take effect 75 days later on November 14, 2011. As described in my previous blog, A Death Penalty for Employees and Employers, this is just the first of many proposed regulations/rulings the NLRB intends to enact to achieve big labor's agenda. The objective as mentioned in Card Check through Regulation vs. Legislation is to provide big labor the tools it needs to exercise corporate campaigns against employers (see EFCA Through the Backdoor. and Corporate Campaigns: Vehicle to Forced Unionism and Political Payback).

Despite the fact that Obama publicly proclaims himself as pro-business and seems sincere with his favorable announcement this week rescinding the The Latest Job Killer From the EPA, it is yet another smokescreen to protect his big labor buddies' cover up of the most damaging regulations in history quietly being thrust on employers and employees behind the scenes (see Obama Urges Independent Agencies To Shed Burdensome Rules and Obama Asks EPA to Pull . Ozone Rule).

In fact, NLRB president Wilma Liebman's last two weeks in office were quite troublesome as the board overturned the Dana ruling allowing employees to petition for an election within 45 days after they were force-unionized through a Neutrality Agreement, and also overturned the UNICCO ruling concerning successor ship, which protects unions when companies are sold, and the Specialty Healthcare ruling which will allow unions to gerrymander employers by organizing only certain employees in a business.

The Department of Labor (DOL), proposed a rule New Rule Proposed On Employers' Use Of Union Consultants exempting big labor and its consultants/attorneys from the definition of employer so they are not required to report actions or contributions (see Union Bailout Update). These don't even include a Plan to Ease Way for Unions through shortened elections and a proposal that Union Bosses Go After Property Holders, Businesses & Girl Scouts, which are still on the NLRB docket. If the President is sincere about easing government regulation on business, why not have his NLRB cronies rescind these regulations now?

The fact is that Obama faces an uphill battle to win a second term in 2012, which certainly is not possible without the support of big labor, hence the urgency for the NLRB to enact the plethora of rule/regulation changes it has promulgated since Becker was appointed. It is very simple; Obama needs big labor's money and foot soldiers. The only way he can provide the Gasping Dinosaurs with the ammo to help him win in 2012 is to provide big labor the means to force-unionize employees rapidly. The ammo is union friendly NLRB rule/regulation changes that allow big labor to effectively and quickly prosecute corporate campaigns against employers to force them to capitulate and sign the coveted Neutrality Agreement, which enacts the card check scenario.

Through the filing of multiple claims of unfair labor practices (ULP's) during corporate campaigns big labor can quickly wear down the target financially and psychologically, thereby forcing it to sign the Neutrality Agreement. Obviously, if the NLRB imposes more regulations, it provides big labor more areas to probe and file ULP's against the target employer. As chronicled in The Devil at My Doorstep it is simply the proverbial game of throwing a multitude of spitballs against the wall knowing some will stick and the target will give up. Obama and big labor understand that most businesses cannot afford the heavy legal burden of defending themselves and that most cannot stand the perceived public embarrassment.

Now we have a perfect storm where the President is in jeopardy of not being elected for a second term and desperately needs the support of big labor to have any chance in 2012. The NLRB is determined to be Obama's white knight and ride to the rescue to make sure that big labor has the tools it needs to achieve mass forced unionism of companies of all sizes so big labor has the money from dues available to re-elect its beloved President. Wake up Americans: Beware of Rogue NLRB.

You would think a President would care more about the future of his country than his own political aspirations and philosophical agendas. Please do the right thing, Mr. President, and dismiss the NLRB regulations as you did the EPA regulations this past week. Show America you care more about our future and American jobs and freedoms than your re-election. Unfortunately, President Obama will do none of this and instead will play the worn out blame game and "poor me" cards.

END Dave Bego

Bego's excellent article and actual experiences go hand in hand with labor reforms I think are mandatory if the goal is really to get America working again as opposed to getting politicians elected again.

My 12 structural reforms, many of which involve labor, would create far more hobs than $1 trillion in stimulus without reforms. Please see Dissecting the Lies in Obama's $447 Billion "Shock-and-Awe" Reelection Ploy; Dead-on-Arrival in Congress? Alternative Proposal Will Not Cost a Dime for a discussion.

Mike "Mish" Shedlock
http://globaleconomicanalysis.blogspot.com
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MERS Addendum: Circuit Court Ruling has Broad Implications Far Beyond Arizona

Posted: 09 Sep 2011 10:36 AM PDT

The original title of my post Arizona Circuit Court Ruling Legitimizes MERS is misleading. The title of that post been changed and I added this addendum to explain the change:

Addendum:

The original title of this post was Arizona Circuit Court Ruling Legitimizes MERS. The title is misleading. It should say 9th Circuit Court.

A lawyer friend writes ...

The 9th Circuit takes appeals from Arizona, California, Hawaii, Montana, Nevada, Idaho, Oregon, and Washington. It's one of 11 federal courts of appeal and is headquartered in San Francisco. It's not an "Arizona" Circuit court. This is a more important decision than you indicate.

Moreover, Republican Callahan was joined by two Clinton Democrats, Tallman and Rawlinson. Tallman is very highly respected.

All are viewed as moderates. This appears to be a real, non-political "bipartisan" decision.

Mike "Mish" Shedlock
http://globaleconomicanalysis.blogspot.com
Click Here To Scroll Thru My Recent Post List

Germany Prepares "Plan B" Default; Top ECB Official Resigns; German-Italy Bond Spreads Widen Again; Dollar Soars, European Equities Hammered

Posted: 09 Sep 2011 09:54 AM PDT

Once again news from Europe resonates in the markets. The 2-day stock rally led by the German court ruling has been nearly wiped out.

European Equities

The German DAX is near but not quite at a fresh low.

Germany Prepares "Plan B" Default

Bloomberg reports Germany Said to Ready Plan to Help Banks If Greece Defaults

Chancellor Angela Merkel's government is preparing plans to shore up German banks in the event that Greece fails to meet the terms of its aid package and defaults, three coalition officials said.

The emergency plan involves measures to help banks and insurers that face a possible 50 percent loss on their Greek bonds if the next tranche of Greece's bailout is withheld, said the people, who spoke on condition of anonymity because the deliberations are being held in private. The successor to the German government's bank-rescue fund introduced in 2008 might be enrolled to help recapitalize the banks, one of the people said.

The existence of a "Plan B" underscores German concerns that Greece's failure to stick to budget-cutting targets threatens European efforts to tame the debt crisis rattling the euro. German lawmakers stepped up their criticism of Greece this week, threatening to withhold aid unless it meets the terms of its austerity package, after an international mission to Athens suspended its report on the country's progress.

Greece is "on a knife's edge," German Finance Minister Wolfgang Schaeuble told lawmakers at a closed-door meeting in Berlin on Sept. 7, a report in parliament's bulletin showed yesterday. If the government can't meet the aid terms, "it's up to Greece to figure out how to get financing without the euro zone's help," he later said in a speech to parliament.

Longer term, euro countries will "only preserve the common currency if there is more integration" in the European Union, Merkel said in a speech in Berlin today. The EU "won't be able to avoid treaty change." While intensive discussions lie ahead and the path won't be easy, policy makers "shouldn't be afraid" of tackling the challenge, she said.

Discussion of Eurozone Breakup

Merkel's statements admitting the possibility of a Eurozone breakup are the first by a major figure from Germany, France, the EU, or ECB.

Note how throwing money at Greece made the problem far worse for everyone, including Greece. A Greek default a year ago may have cost in the range of $25-50 billion, now it may be triple that.

Thank ECB president Jean-Claude Trichet who emphatically and repeatedly stated "We say no to default". Central bank arrogance cannot override markets.

Top ECB Official Abandons Ship

Yahoo! Finance reports Top ECB official Stark resigns unexpectedly

The European Central Bank says that top official Juergen Stark is resigning well before the end of his term, removing a key voice for tougher rate policy and raising questions about the bank's course during Europe's debt crisis.

The ECB said Friday that, Stark, 63, is leaving "for personal reasons" almost three years before the end of his eight-year term.

European stock markets and the euro fell sharply amid uncertainty over leadership at the eurozone's top monetary authority.

Stark is a former official with Germany's Bundesbank and is regarded in central bank jargon as a "hawk" -- an advocate of higher interest rates to fight inflation and less expansionary monetary policy.

His departure is the second unexpected personnel change at the ECB this year, after governing council member and Bundesbank head Axel Weber, regarded as front runner to succeed bank President Jean-Claude Trichet, dropped out of the running and did not seek another term.

Bond Yields

Italian 10-Year Government Bonds

German 10-Year Government Bonds

That is a new all-time record low yield on 10-year German government bonds.

Moreover, the US dollar index is up a full point to 77.72 and the Euro down .0234 to 136.46.

Anyone who sees inflation in this mess is (at a minimum) not thinking clearly. Anyone calling for hyperinflation is certifiably in Fantasyland.

I repeat the case Yes Virginia, U.S. Back in Deflation; Inflation Scare Ends; Hyperinflationists Wrong Twice Over

Mike "Mish" Shedlock
http://globaleconomicanalysis.blogspot.com
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9th Circuit Court Ruling Legitimizes MERS

Posted: 09 Sep 2011 08:53 AM PDT

A ruling from the 9th Circuit Court - Cervantes vs. Countrywide gives legitimacy to MERS and deals a major blow to many of the arguments that attorneys representing homeowners try to make.

The 9th Circuit takes appeals from Arizona, California, Hawaii, Montana, Nevada, Idaho, Oregon, and Washington.

Patrick Pulatie at LFI Analytics shared his opinions on the case via email and I wish to pass them along....

Hello Mish

Cervantes vs. Countrywide is an Arizona case appealed to the 9th Circuit after the Arizona District Court Ruled against the homeowners without leave to amend the complaint.

The primary argument of Cervantes were the MERS operation was fraudulent and unlawful, and that use of MERS split the Deed and Note. Other issues were addressed, but the most important parts are in regards to MERS.

Here are the key points and court rulings ...

Homeowners Claim: The homeowners claimed that MERS was a "sham beneficiary" and use of MERS was unlawful and misrepresentative.

Ruling: The Court found that the MERS operation had been disclosed in detail to the borrowers through the Deed of Trust. Therefore, there was no misrepresentation. This is especially important in that it destroys arguments for fraud on the part of MERS.

Note: This does not cover loans originated in the name of the lender and later transferred to MERS. However, since a Deed of Trust generally states that the Note and Deed can be transferred, a later transfer to MERS will be difficult to argue, though no MERS information would be present.

Homeowners Claim: An attempt was made to claim that use of MERS as a beneficiary would not allow for foreclosure, since MERS was not a true beneficiary. They attempted this argument though they were procedurally incorrect in how they attempted to do so.

Court Ruling: The Court essentially dismissed this claim because Arizona law appears not to support such a claim. Furthermore, the Court looked at other jurisdictional rulings and found that courts generally did not support such claims when the borrower was in default, and damages could not be shown. Cervantes was in default, and did not allege claims of damage, so there was no "stated claim".

Homeowners Claim: MERS split the Note and Deed and that eliminated any possibility of foreclosure.

Court Ruling: The court ruled against this action. They cited that though there might have been a question of MERS being a legal beneficiary, some entity still had the right to foreclose. If MERS had been trying to foreclose, then the Court "might" have looked deeper into MERS, but the Deed had been assigned, so the foreclosure could occur.

The key element of this portion of the ruling suggests that use of MERS does not split the Note and Deed permanently, and by inference, that MERS does have an ability to execute assignments.

Note: No mention of "robo-signing" exists in this ruling. That is because when the original complaint had been filed, "robo-signing" was not commonly known to exist.

If there has been any indication of where the Court would rule on "robo-signing", it would exist in the comments about Agency. If MERS is an agent for the lender, then "robo-signing" would not be an issue, except in cases of outright forgery. Even then, the issue of "damages" would be hard show since a defaulted borrower has not been harmed, especially if the home is in a Negative Equity situation.

The "Certifying Officer" for MERS issue was not addressed either. My opinion is that as longer as it can be shown that the Certifying Officer was such by corporate resolution, then there would be no issue.

The Court also ruled that the Deed and Note might not be able to be enforced if MERS or the Trustee were not agents of the lenders. This argument is what most attorneys miss. MERS is about Agency Relationships, and what constitutes Agency under the laws of the specific state.

This ruling gives a greater legitimacy to MERS. It addresses the splitting of the Note and Deed of Trust and the argument that such prevents any foreclosure from ever occurring, and solidly denies the argument.
The ruling also gives greater credibility to MERS being an Agent for the lender, provided that MERS can prove the Agency relationship. In most cases, this is not an issue.

The OCC Consent Decree further reinforces the Agency relationship, in that it decrees that MERS is an agent of lenders, and that gave the OCC the right to include MERS in their actions. It also reinforces the argument that Certifying Officers are legitimate.

Claims against MERS for misrepresentation have been dealt a serious and potentially fatal blow. The fact that the Court identified in the Deed of Trust that MERS had been fully disclosed, and the borrower signed the Deed of Trust should prove to eliminate such arguments.

If one looks close at the ruling, he will notice that the attorneys have failed to "present a claim" or have failed to "allege" certain issues. This is something I have noticed with almost all lawsuits. Attorneys fail to state claims, or do so ambiguously, especially in fraud allegations. Such claims require a heightened level of pleading.

At this point, homeowner attorneys have been severely restricted in what they can argue. They must now rely upon trying to prove no Agency relationship between the lender and MERS exists, or that the Certifying Officer was not legitimate, primarily through forgery, or through lack of a Corporate Resolution.

Additionally, the attorney will need to show how a borrower who was in default, was harmed by the foreclosure being procedurally incorrect. This is a tough argument to make, one that I usually cannot accomplish.

Patrick Pulatie is the CEO for LFI Analytics. He is not an attorney and does not provide legal advice. He has simply provided his opinion of the important facts for this ruling.

I am not a lawyer and neither is Pulatie. However, I agree with this court ruling. Here is a key snip written by Circuit Judge Callahan in easy to understand language.

This is a putative class action challenging origination and foreclosure procedures for home loans maintained within the Mortgage Electronic Registration System (MERS). The plaintiffs appeal from the dismissal of their First Amended Complaint for failure to state a claim. In their complaint, the plaintiffs allege conspiracies by their lenders and others to use MERS to commit fraud. They also allege that their lenders violated the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq., and the Arizona Consumer Fraud Act, Ariz. Rev. Stat. § 44-1522, and committed the tort of intentional infliction of emotional distress by targeting the plaintiffs for loans they could not repay. The plaintiffs were denied leave to file their proposed Second Amended Complaint, and to add a new claim for wrongful foreclosure based upon the operation of the MERS system.

On appeal, the plaintiffs stand by the sufficiency of some of their claims, but primarily contend that they could cure any pleading deficiencies with a newly amended complaint, which would include a claim for wrongful foreclosure. We are unpersuaded that the plaintiffs' allegations are sufficient to support their claims. Although the plaintiffs allege that aspects of the MERS system are fraudulent, they cannot establish that they were misinformed about the MERS system, relied on any misinformation in entering into their home loans, or were injured as a result of the misinformation. If anything, the allegations suggest that the plaintiffs were informed of the exact aspects of the MERS system that they now complain about when they agreed to enter into their home loans. Further, although the plaintiffs contend that they can state a claim for wrongful foreclosure, Arizona state law does not currently recognize this cause of action, and their claim is, in any case, without a basis. The plaintiffs' claim depends upon the conclusion that any home loan within the MERS system is unenforceable through a foreclosure sale, but that conclusion is unsupported by the facts and law on which they rely. Because the plaintiffs fail to establish a plausible basis for relief on these and their other claims raised on appeal, we affirm the district court's dismissal of the complaint without leave to amend.

....

The district court properly dismissed the plaintiffs' First Amended Complaint without leave to amend. The plaintiffs' claims that focus on the operation of the MERS system ultimately fail because the plaintiffs have not shown that the alleged illegalities associated with the MERS system injured them or violated state law. As part of their fraud claim, the plaintiffs have not shown that they detrimentally relied upon any misrepresentations about MERS's role in their loans. Further, even if we were to accept the plaintiffs' contention that MERS is a sham beneficiary and the note is split from the deed in the MERS system, it does not follow that any attempt to foreclose after the plaintiffs defaulted on their loans is necessarily "wrongful." The plaintiffs' claims against their original lenders fail because they have not stated a basis for equitable tolling or estoppel of the statutes of limitations on their TILA and Arizona Consumer Fraud Act claims, and have not identified extreme and outrageous conduct in support of their claim for intentional infliction of emotional distress.

Thus, we AFFIRM the decision of the district court.

I am not a fan of MERS by any means. It has deficiencies. However, there is no legal basis for broad actions based on MERS alone.

Nonetheless, I am all in favor of severe penalties in cases of genuinely faulty foreclosures such as on the wrong person, on the wrong house, or the mortgage was already paid off.

However, those few cases get all the hype and attention. Rock solid cases like this are ignored by those with an axe to grind against MERS.

FHFA Lawsuit Against 17 Banks Not Related to MERS

Please note that lawsuits based on MERS and the $196 billion lawsuit by the FHFA against 17 banks are not related. For details on the latter, please see Is it Acceptable to Present a $196 Billion Sac-O'-Sheet to Sophisticated Investors as Diamonds-in-the-Rough?

Common Sense Ruling of 9th Circuit Court

I remain steadfast that people who do not pay their mortgages should stand to lose their homes. MERS is no excuse or reason to stop such foreclosures. I applaud the well written, common sense ruling by the Arizona Circuit.

To end the housing crisis, we need more foreclosures faster, not more delays. Once home prices fall to affordable levels, buyers will step in. Delays that allow people to live in their houses for years on end without paying a mortgage will only extend the crisis.

Addendum:

The original title of this post was Arizona Circuit Court Ruling Legitimizes MERS. The title is misleading. It should say 9th Circuit Court.

A lawyer friend writes ...

The 9th Circuit takes appeals from Arizona, California, Hawaii, Montana, Nevada, Idaho, Oregon, and Washington. It's one of 11 federal courts of appeal and is headquartered in San Francisco. It's not an "Arizona" Circuit court. This is a more important decision than you indicate.

Moreover, Republican Callahan was joined by two Clinton Democrats, Tallman and Rawlinson. Tallman is very highly respected.

All are viewed as moderates. This appears to be a real, non-political "bipartisan" decision.

Mike "Mish" Shedlock
http://globaleconomicanalysis.blogspot.com
Click Here To Scroll Thru My Recent Post List