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01-12-2009 01:44 WSJ(12/1) WaMu Is Gone But The Parent Is Fighting On
(From THE WALL STREET JOURNAL)
By Dan Fitzpatrick
Washington Mutual sank more than a year ago in the biggest bank failure in U.S. history. A fight still is raging over the carcass of its parent company.
A federal bankruptcy judge is expected to rule soon on who owns about $4 billion claimed by both J.P. Morgan Chase & Co., which bought the doomed financial institution from the Federal Deposit Insurance Corp., and the Seattle thrift's holding company, Washington Mutual Inc.
The holding company's tumble into bankruptcy in September 2008 marked the first time during the credit crisis when bondholders were left unprotected by government regulators. The $1.9 billion paid by J.P. Morgan got the New York bank $118 billion in deposits, 2,239 branches, 4,932 automated-teller machines and 43,198 employees. But holders of senior and subordinated debt in Washington Mutual's parent company were marooned.
The court fight also has turned into a venue for conspiracy theories about the dying days of Washington Mutual, which was hit by bad mortgages and credit-rating downgrades, then suffered a 10-day run when nervous customers withdrew $16.7 billion in deposits.
"What happened wasn't right," said Hans Brost, a Washington Mutual shareholder who launched a Web site supportive of the view that the bank was wrongfully seized. "There is a lot of smoke. Somewhere there has got to be a fire."
While the FDIC arranged the sale through a secret auction, "the process worked" exactly as was intended, FDIC spokesman Andrew Gray said. To bail out unsecured creditors and shareholders would have exposed the [deposit-insurance fund] to losses and would have violated the statutory mandate to resolve insured institutions in the least costly way." He wouldn't comment on the legal tangle.
J.P. Morgan, Washington Mutual and creditors of the holding company declined to comment. The U.S. trustee in the bankruptcy case also wouldn't comment. In late October, U.S. Bankruptcy Court Judge Mary Walrath said she would rule "promptly," according to people familiar with her comments.
J.P. Morgan has argued that it owns the disputed $4 billion, which it views as a capital contribution to Washington Mutual's banking operations from its holding company. The holding company's lawyers have said the $4 billion represented deposits made by the parent and should be used to repay creditors.
The holding company still has its official headquarters at 1301 Second Ave. in downtown Seattle. But the building was sold earlier this year by J.P. Morgan, and the holding company's president, Robert Williams, works as a treasurer for Occidental Petroleum Corp.
As of Sept. 30, the company had $6.9 billion in assets, including $4.5 billion in cash and cash equivalents, according to a report filed with the bankruptcy court. In addition to the deposits, the company and J.P. Morgan are dueling for ownership of trust-preferred securities valued at $4 billion, federal tax refunds valued at $3 billion, a pension fund for thousands of employees and rights to the Washington Mutual name.
In addition, the holding company had one piece of art on its balance sheet at the time of the seizure valued at $24,866. In a recent court filing, the company said it reserves the right to assert an ownership claim to 2,499 other pieces of art held by the parent, its former banking unit and other subsidiaries.
In a separate civil lawsuit pending in federal court, the company has argued that liquidating the banking operations would have produced more for creditors, who instead suffered as a result of the "fire sale" to J.P. Morgan. J.P. Morgan and FDIC have defended the sale in various court filings.
In a sign of the heat felt by the FDIC over its role in Washington Mutual's seizure, FDIC Chairman Sheila Bair wrote in a September 2008 email that she was "getting a lot of these," a reference to outside criticism that poured in after the failure. "Could someone do a form email for me to respond?" she wrote to a colleague.
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