IMHO: Sub-Prime Time

Here we go - - - again.

I’ve been in this business long enough to call to mind several big financial scandals. Not Enron and WorldCom types—ultimately, those were, to my way of thinking, pretty isolated cases, albeit driven by the motivation that seems to drive all financial scandals: greed and hubris.

However, over the past couple of weeks, retirement savings balances have been buffeted about by concerns about liquidity in the market, triggered by issues regarding institutions that have (apparently) loaned money to people that were based on property values that were projected to go up—when they haven’t. The problem, of course, isn’t just people being overextended on their mortgages (though that is a problem), or the firms that have allowed that situation to occur (though that is also a problem); it’s that the latter have created a whole category of investments that consist of those unraveling mortgage commitments—and lots of us have money tied up in those investments – or impacted by money tied up in those investments – whether we know it or not.

It’s not like we couldn’t see this coming. People have been wringing their hands about the housing bubble bursting for quite some time now. Just like we did about junk bonds (before we called them “high-yield’), derivatives (before we started referring to them as “alternative’ investments), and hedge funds (which are also sometimes called alternative investments, but here mainly because, IMHO, many have really been alternatives TO investing, à la betting against the market). Now, I’ll concede that the latter hasn’t imploded yet, at least not on a broad-scale, but the signs are all there, and we’ve already seen a couple “blow up.’ But, as for our most recent problem, let’s be honest with ourselves—those who buy into (or take on) something called “subprime’ certainly can’t plausibly say they didn’t see the potential for problems.

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None of this is inherently bad, of course. Part of the beauty of our free market system lies in its ability to create new ways for innovative minds to raise capital and make money. Where we get into trouble is (a) when everybody “catches on’ to the latest idea (thus drying up much or all of the opportunity), and (b) when “they’ do so via “leverage’—that is, spending money they don’t have. Now, leverage, too, can be an enabling thing, but when everybody is doing it, well, sooner or later, the people who lend money always seem to want to be repaid—and, generally speaking, when the collateral that supports such investments can least afford that demand.

Not that that rationalization is likely to be of much solace to the retirement plan participants whose accounts are currently taking it on the chin, however. It’s not their fault (unless, of course, they contributed to the problem by taking out a mortgage they couldn’t afford, betting on the continued rise in house prices—just another form of borrowing money you don’t have), and yet they, as investors in and beneficiaries of the investment markets, must ride out the bad as well as the good.

The current “tumult’ (we seem to be past the “crisis’ stage, at least for the moment) should serve to remind us all of the dangers. You already may be hearing questions from plan sponsors and participants—about what is going on in the markets, about what has happened to their account balances—maybe even about what you recommend they should do about it all.

Questions are good. It means people are paying attention. But wouldn’t it be nice if the people who created these crises did – – – before they got to be the people who create these crisis?

Failure to Include Loan Repayments as Income Might be Bankrpuptcy Abuse

A U.S. Bankruptcy Court judge in Ohio has ruled that a 401(k) participant can't deduct $269 in monthly repayments for three plan loans from his monthly income to meet a legal showing that the debtor is not abusing federal bankruptcy laws.

According to the opinion written by U.S. Bankruptcy Judge Mary Ann Whipple of the U.S. Bankruptcy Court for the Northern District of Ohio Timothy Whitaker had failed to show the “special circumstances” necessary to avoid the bankruptcy abuse finding.

Whipple agreed with the U.S. Trustee that the case should be thrown out, but gave Whitaker 30 days to file a motion to convert his case to Chapter 13 or the case will be dismissed.

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Whitaker filed a Chapter 7 case in October 2006, with $245,286 in debt and a monthly income of $3,643, not including his 401(k) loan repayments to a plan sponsored by General Motors Corp.

The U.S. Trustee argued that deducting loan payments to Whitaker’s 401(k) plan is improper under the Bankruptcy Abuse Protection Prevention and Consumer Protection Act (BAPCPA) means test. The trustee also argued that if the loan payments are not included as a deduction, a presumption of abuse arises.

The court had to decide whether Whitaker’s 401(k) plan loan repayments to GM were considered a proper deduction under the “Other Necessary Expenses” in the means calculation test set out in Section 707(b)(2)(A).

The Internal Revenue Manual does not include 401(k) plan loan repayments in the “Other Necessary Expenses” category, but does have a category for “Involuntary Deductions,” the court said. To qualify for this category, the expense must be a “requirement of the job,’ such as union dues, uniforms or work shoes. Whitaker said the payroll deductions for his 401(k) loan repayments were mandatory.

However, Whipple wrote that Whitaker’s decision to take out a loan against his plan account was discretionary.

The case is In re Whitaker, Bankr. N.D. Ohio, No. 06-33109, 7/25/07.

Under bankruptcy law, a Chapter 7 filing involves the liquidation of the debtor’s property and then selling it to repay his or her creditors. A Chapter 13 case, on the other hand, involves the debtor using future income to pay off debt under the court’s supervision.

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