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June 4, 2012

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Letter to the editor:

Bailout subverted our rule of law

Friday, Feb. 10, 2012 | 2:01 a.m.

In response to Ken Hamm’s Feb. 5 letter “Bailout should be seen as a good thing,” extolling the virtues of the auto company bailouts, he neglects to address the fundamental legal precedent set by the bailouts.

When both Chrysler and GM entered bankruptcy, they were “fast tracked” through the process. The fast track shredded existing bankruptcy law and permitted the companies to make quick exits.

Under normal bankruptcy proceedings, secured creditors are at the head of the line in negotiating any settlements and a bankruptcy exit. In the auto bankruptcies, secured creditors were completely ignored and their property rights squashed. They got nothing.

This has set a dangerous precedent where the federal government can take a favored constituency and flout the law. Individual property rights can be ignored. The rule of law is one of the pillars that make our American society and economy stable. Ignoring existing laws tells investors that if you are

not a favorite of the administration, you best invest your capital elsewhere because it’s not safe here.

I’m pleased that these American companies are doing well but their trip through bankruptcy was politically motivated to favor the United Auto Workers over secured creditors, contrary to all existing laws.

Discussion: 42 comments so far…

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  1. Amen to William W. Moreland!!! You should have been a combat aviator. For, you can see right through all the clouds and storms and picture exactly what our political adversaries are undertaking and exploiting. An incredibly and extraordinarily well written concise letter to the editor.

  2. William,

    That's an excellent point and it provides just one more example of the dangers of a very powerful and far reaching Federal Government. Our Founders saw these dangers and constructed our Constitution to limit the power of the Federal Government. Unfortunately, too many Americans no longer recognize the danger.

    It stuns me every day that Americans operate in the small sphere of their everyday lives, (which in many cases are going just fine) and ignore the fact that our Federal Government has amassed a debt that is larger than our entire GDP, that we add 1 trillion dollars every year and that the government is doing nothing about it.

    As happened in the Depression in the 1930's, when our financial train finally runs off the tracks, I wonder how many Americans, who lose everything, as favored people, business and groups are spared, and normal rules are ignored, are going to ask 'how did this happen' and 'why couldn't I see this coming'?

    Michael

  3. William,

    A couple of other points about your excellent letter:

    1) GM and Chrysler would not have dissappeared under a normal bankruptcy, as those pushing the bailout claimed. They would have been re-organized under a Chapter 11 bankruptcy and continued. They would have been forced however, to evaluate their labor costs, and adjust them accordingly. The secured creditors would have received preference, which is what the 'law' says is supposed to happen.

    2) What do we all think is now quite possible the next time a giant concern like GM (that has ties to the Federal Government and highly paid lobbyists) gets into financial trouble? The awnser is that it is now possible, even probable that this powerful and far reaching Federal Government will be lobbied to again change the rules to benefit the concern in trouble at the expense of others. COUNT ON IT!

    Michael

  4. Where are the usual quick triggers on this issue? Dennis, Gmag, Fosimmons, Mark, GOPsux, etc, come on and weigh in...

    Michael

  5. billy; you forgot about wall street being bailed out. we should have let them collapse too but our great system of capitalism had to be saved at all costs. some words of wisdom : BIN LADEN is dead, GM is alive! that wouldnt have happened with republicans in charge.

  6. Consider the alternative: everything goes smash, GM and Chrysler do not continue to operate, and the auto parts suppliers and materials companies supplying them do not get paid, cannot follow them, and also cannot continue to operate. GDP falls, claims on the "safety net" increase, and tax revenues (that fund the safety net and government operations) fall, further increasing the Deficit. How would the secured creditors have fared then? Rather than nothing the secured creditors got 10 cents on the Dollar plus 15% in warrants to purchase shares in the new GM. In investing, they put their capital at risk. Think of what they got as the equivalent of a "safety net."

  7. Hey!!! "FrankieDemocraticDumboDuck" !!! Don't you care about Grandma's safety? You said she is a good judge of character. Is she??? Do you think Grandma could read the character of the Chevy Volt? Or would she put herself at great risk of being electrocuted by driving one of those, "hunks of green junk"?

  8. That's odd...I thought the bailout precedent was set with Chrysler a few decades ago. Oh well, just another uninformed letter writer.

  9. Indeed, the "Bailout subverted our rule of law." Leric Goodman suggested the justification of this act with, "Consider the alternative: everything goes smash, GM and Chrysler do not continue to operate, and the auto parts suppliers and materials companies supplying them do not get paid, cannot follow them, and also cannot continue to operate." The decision was about chosing the lesser of evils I believe.

    But WHERE is the justice? Has a single Bankster or Wall Street criminal faced prosecution or imprisonment? Has the everyday, little guy citizen been "bailed out"?

    Blessings and Peace,
    Star

  10. "Star" strongly hints that the "little guy" has not been bailed out. Really??? All the refinancing mortgage programs that President Obama has put in place!!! No bailouts??? What about extended unemployment benefits, payroll tax cuts?

    And, speaking of criminals. What about all the homeowners that could make their monthly mortgage payments, and walked away from their financial obligations on the sole premise that their property values had fallen? What a philosophy that is. They think, "I don't have to worry about losing in my gamble to buy an overpriced house because if I don't make the equity gains I'll just walk away from my debts." And this, is not actual criminal behavior? If you think its not, you should read the legal aspects of "civil liability v. criminal liability". Where is this accountability for these "deadbeat homeowners"?

    Give the whole picture Star. Just not a slice of what supports your biased opinions for a particular socioeconomic group of your choosing.

  11. "Where is this accountability for these "deadbeat homeowners"?"

    It's called a judicial foreclosure, in which a bank is free to sue the when the proceeds of a foreclosure or short sale do not cover the deficiency. It's the law in Nevada.

    If banks want to go after the borrowers, they're free to use their mobs of lawyers to sue them.

  12. Well, it took longer than normal but the usual suspects did make an appearance.

    Taxpayer provided bailouts are never a 'good' option whether they be Chrysler in the 1980's (to Mark's point) or those of 2008. The bigger problem here though, is not the bailouts but what those on the left don't address.

    We have in law a procedure for distressed companies to use. It is called a Chapter 11 bankruptcy reorganization. Under the law 'secured' creditors are addressed first.

    GM, likely was going to need some taxpayer money to survive, even in a normal Chapter 11. If the Federal Government provided that money and the tax payers didn't like it, they could fire the legislators and President who approved the bailout.

    But here is where the real problem was. The Frederal Government (ie those in office at the time) wanted to look as good as possible and reward their supporters when dealing with GM. So rather than allow a traditional Chapter 11 bankruptcy and provide taxpayer money for GM, the government stepped in and said 'no, this time the bankruptcy law as written does not apply'. In order to keep the wage and benefit concessions to a minimum, keep as many people employed as possible and help the union remain strong, we are going to change the rules, place secured creditors and bondholders 2nd and give them alot less than the 'law' says they are entitled to.

    You are going to think that is great as long as the Federal Government breaks the law and you benefit, but you are going to hate it when you end up on the wrong side.

    We are all ceeding more and more of our power and our rights to the Federal Government, and they will be no more benevolent than any other 'power' when push comes to shove. They will reward and advantage their friends and everyone else will suffer.

    Those on the left always point out that business is no friend of the masses and that is true. Likewise, government is no friend to the masses. Both government and business are friends to the people with the money, and that isn't most of us.

    Something for all those big government supporters to keep in mind going forward.

    Michael

  13. Kevin,

    The law in Nevada also provides for Chapter 7 bankruptcy, in which homeowners are allowed to either return their homes to the lender and not owe anything or after a foreclosure, to claim a Chapter 7 and prevent the lender from pursuing a deficiency judgment. I prepare these bankruptcies everyday so I know.

    A portion of the states are what is called non recourse states and in those states, lenders usually cannot take any collection action after a mortgage borrower stops paying.

    The home crisis is an admittedly tough issue because some homeowners probably deserve a break and others don't. Trying to determine which is which is some thing the government isn't equiped or willing to do.

    Michael

  14. Nothing like trying to beat the head of "cracked clay".

    First, mortgage fraud is a criminal offense. Can you possibly comprehend that?

    Second, taking items or doing damage to a foreclosed home is a criminal offense. Can you possibly comprehend that?

    What kind of "DumbocraticDuck" malarkey you going to hand me now? Don't even bother to respond. I ignore people who make these farcical statements.

  15. A few things:

    First, I honestly don't think GM/Chrysler would have been given the same accommodation had the economy not been in freefall. When the bailout was structured, under the George W. Bush administration, even Bush was able to see the writing on the wall: with banks failing, GDP shrinking at a near-depression level rate, to allow two giant employers like GM and Chrysler to go under would've further undermined the economy, raising the unemployment rate even further and faster. So when Mike points this at "some on the left," I just have to chuckle.

    Second, let's not forget: TARP and the auto bailouts was a Bush-era construct (and supported by some Democrats), and even right-wing ideologues like Paul Ryan supported it with aplomb. So when people say things like they were "rewarding their supporters" by passing TARP, I have to ask: do unions support Paul Ryan? Did Bush garner a large amount of support from the auto unions? Was he trying to "pay back" his supporters in the auto industry?

    Third, while the right continuously whines about "picking the winners," they also, historically, have been guilty of doing just that. Look at Santorum's plan to give manufacturers a 0% tax rate. Where's the outrage from the right-wing on that plan? Look at their unyielding support of oil subsidies. Add to the list: ethanol subsidies, farm subsidies, natural gas subsidies.

    It might be easier to take them seriously were they not serial supporters of subsidies for any number of their own constituencies.

  16. There is plenty to reasons for the average American taxpayer to be angry and frustrated with the bailouts of wall street ,Big banks and the automotive industry. Not in the very least that the average taxpayer sinks or swims on there own merit, and none of the key players involved in wrecking our economy suffered any degradation of there high living standards. Unfortunately as distasteful and disgusting as it was bailing those dysfunctional businesses out it was necessary, almost every economist conservative, liberal or independent have agreed to this point. And one of the many negatives of these action in bailing these banks out of there financial responsibilities is how can you expect the underwater homeowners in Las Vegas to hold the bag and bear the full load of responsibility for the financial meltdown of 2008.

  17. Mike, Brad wasn't talking about those who file Chapter 7. Reread his diatribe:

    "And, speaking of criminals. What about all the homeowners that could make their monthly mortgage payments, and walked away from their financial obligations on the sole premise that their property values had fallen? What a philosophy that is. They think, "I don't have to worry about losing in my gamble to buy an overpriced house because if I don't make the equity gains I'll just walk away from my debts." And this, is not actual criminal behavior? If you think its not, you should read the legal aspects of "civil liability v. criminal liability". Where is this accountability for these "deadbeat homeowners"?"

    He's talking about those who could afford the homes but walked away because they were under water, not those who would file for Chapter 7, as I don't know a judge who would allow that past the means test. Nor did Brad mention mortgage fraud or damaging a home in that ranting, but I'll just point out that there are legal recourse for these situations, as well. If the banks are too lazy to avail themselves of these, so be it.

  18. Many affluent people fled to England prior to the revolution because of the dangerous precedent of defying the king. People have been saying these things for hundreds of years.
    There are only a hand full of bankruptcy courts and millions of bankruptcies. Streamlining the process for a huge company that employs vast numbers of people is hardly dangerous.

  19. Lobbying for preferential treatment is the way our system works. That is why there is a gun under every pillow and 9 out of the 10 highest paying professions are doctors. Every industry pays for lobbying assistance. Why not the car companies?

  20. Kevin,

    I am not someone who assails Bush or Obama for the bailouts, as I think they were necessary. I don't like that the government subverted the bankruptcy laws to reward supporters and deal unfairly with the secured creditors. That's my point and another reason I do not favor ever expanding government. Whether it be business or government, the more powerful it becomes the more it feels it has a 'right' to do whatever it pleases. That's always dangerous.

    Michael

  21. My so-called rants were not circuitous. I made my point to Star that there is more criminals that just the bankers and Wall Street.

    You refuted my points as nothing more than a paragraph of diatribe. But, the subject here is bailouts. And since it is rightfully claimed in this forum that banks are not doing what they should to have authorities prosecute these "deadbeat homeowners", it proves my point to Star that the banks are now giving bailouts, per se, to the little guy. End of diatribe""""".

  22. There are close to 30 million businesses in the US. How many have been bailed out in the last 100 years...12..... A dangerous precedent? Hardly. All 12 are doing fine. Even the railroad industry has come back. This was one of the first industries to get assistance.

  23. Victor,

    If you read the following article,

    http://www.nationalaffairs.com/publicati..., or several other articles...

    you will see that the GM and Chrysler bankruptcies under section 363 were handled in an unprecedentened manner, both in how the secured and unsecured creditors, respectively were handled and in the rights of the creditors to have a say in the sale of the old GM to the new GM.

    You can claim none of this is true and that decisions were not politically motivated based on who had more pull with the government if you wish.

    I'll choose not to be that naive.

    Michael

  24. chuck; sorry, what part of the BIN LADEN dead, GM is alive! are you hung up on? it makes sense to me, but i dont hang with the nutjobs on the extreme right of the political spectrum.

  25. It's a great read if one cares about the opinion of Todd Zywicki. The bankruptcies were handled in an unprecedented manner because the crisis was unprecedented. It's always easy to analyze these things after the fact and be critical.

  26. Victor,

    To answer your question, I am not an attorney, but I have prepared Chapter 7 bankruptcies for over 10 years so I am familiar with them. I'm not an expert in Chapter 11 Bankruptcies.

    That said, we agree that while the economy might have withstood a Chrysler collapse, Chrysler and GM together would have been risky to the entire economy. And yes, I do understand the supply, dealer, manufacturer chain and interrelation. My dad was in the automotive business for over 30 years.

    I don't object to the bankruptcy or the bailout. But you are just wrong in claiming that the government did not alter the normal bankruptcy rules in the case of GM and Chrysler. Those rules were altered and the result was a better deal for unions and worse deal for secured creditors.

    Let's face it that the difference between getting 25 cents on the dollar (secured creditors) versus 40 cents on the dollar for unions isn't all that much and basically stinks all around. However, under normal bankruptcy rules, the secured creditors would have made out better than the unions and that all the creditors would have had a say in the plan to sell assets to a new company. That didn't happen because the government combined a Chapter 11 bankruptcy with a bailout and made up the rules for this new hybrid contraption.

    I'm just pointing out that when government does this stuff and forgoes traditonal rules, whether it be R's or D's, it becomes political and friends and favored groups are going to be advantaged. That's what happened here and it happened to be under a D administration. Do I believe that something similar but different would not have happened under an R administration? No.

    All this just bolsters my argument against a giant Federal Government that can make rules in almost any area as it chooses.

    Michael

  27. Under President Obama's implementation of the GM bailout the government took a majority ownership position. Right? Isn't government ownership/control of the means of production a hallmark of socialism and/or communism?

    It was one thing to give Chrysler a loan back in the day for its first bailout, but this time the government went much further down a path that runs counter to American values. That is what has so many people so upset about it.

  28. botx; what people are upset with is the government bailing out wall street and the banks and not proscecuting any of these greedy bastards. meanwhile the typical american homeowner is stuck in an underwater home or worse, foreclosed upon without any relief.

  29. Dennis, that is also correct, but that is a different topic than this one.

  30. Botfx,

    Considering the amount of the GM bailout, I really don't see how the government could have provided the money 'without' taking an ownership position in GM. To do otherwise would have been to make us all one giant unsecured creditor.

    I don't blame Obama for that but the government did alter the Chapter 11 rules so the secured creditors did worse than they would have and the unions and the pension funds did better than they would have. That is a real problem and a terrible precedent... as is the whole bailout.... to be honest.

    Unfortunately, it was probably necessary.

    Michael

  31. Star: If you want me to admit that life isn't fair, I admit it. Another way of dealing with the biggest economic crisis since the Great Depression might have been to give every American $50,000. That would have bailed almost everyone out, including GM (Everyone could have bought a "welfare Cadillac"). But that wasn't going to happen.

    Michael: in a Reorganization in Chapter XI of the Bankruptcy Act, the Debtor gets the first shot at a Plan of Reorganization. GM's management wanted the company to survive, the suppliers wanted GM to survive, the UAW wanted GM and the suppliers to survive, and the secured creditors could have insisted on their rights as secured creditors, but voted otherwise and took 10% and their warrants. Whether this was a good deal for the taxpayers or not depends on what you count and when you count it.

    When the old Chrysler bailout was arranged, everyone said it was a horrible deal, Chrysler would never survive, it was just the government throwing good money after bad, etc. And at first that seemed right, and then Chrysler recovered, and paid back the money, and became successful.... (and much later went private using debt financing which seemed like a good idea at the time, but strangled the company as interest rates rose.) Now GM & Chrysler seem to be on the mend again, and time will tell ....

    But the secured creditors can't complain if they voluntarily accepted the deal they got. They made a choice between losing everything or taking a deal with some upside potential. They took the deal with some upside potential. In other words, they took a risk -- which is what they did when they originally invested in GM. Risk taking is what people do in capitalist systems. We might assume that stock prices, like house prices, only go up, but experience teaches us that prices of stocks and houses -- like all prices -- can move in both directions in market economies.

  32. Victor,

    Before you knee jerk react because I am 'on the other side', try reading 'carefully' what I actually said, which was:

    Do I believe that something similar but different would not have happened under an R administration? No.

    Let me translate for you. I believe that the Obama administration did use their leverage to change the outcome in a way that favored its friends. I believe an R administration would have done the same thing. All that would have changed would be the identity of the 'friends'.

    On both sides, so many of you are so eager to 'fight', so eager to 'attack' the other side, that you barely take time to read what someone says.

    Take a deep breath and relax. I am NOT your usual R supporter or D supporter who finds nothing wrong with one side and everything wrong with the other side.

    Michael

  33. Michael,

    I'll grant your point deserves consideration, but I would counter that we risked more money on the financial sector bailout (which I disagree with even more) without such strings.

    That said, I fully agree with you that screwing the secured creditors and handing the unions a gift in the form of an unwarranted ownership position was dead wrong.

    On a more philosophical note, the stimulus bill was a MUCH bigger bailout with no security whatsoever. And it is open to debate how that was designed to help the public sector over the private.

  34. Victor,

    What I said in response to Michael would apply in response to your comments as well.

    I'll add that even if one grants that security in the form of stocks or bonds was warranted, I would still object to the taking of a majority ownership position by the government. It is simply wrong, according to our system, for the government to be in full control of a private enterprise.

    Yes, the government can effectively control private enterprise through laws and regulations, but to actually have a controlling ownership position goes far beyond that and is a horse of a different color altogether.

  35. Is the author upset by the bank bailouts? Apparently not since his opinion is a negative view of the auto workers union. It wasn't the auto industry that tanked our economy, was it?

  36. Vernos, don't be a troll.

    The original letter that this is responding to dealt only with the auto company bailouts. It is reasonable for this letter to do the same.

    Write your own letter to the editor complaining about the financial sector bailout and I bet you get more support than disagreement, even from conservatives.

    Not only is the financial sector bailout another horse of a different color, but it might not even be a horse but more of a zebra.

  37. And if I may stretch the horse analogy to the breaking point, I hope the auto company bailouts are mules in that I hope they are infertile and can't spawn any more like them.

  38. vernos; i agree with you. the auto bailouts are peanuts compared to the financial bailouts of the banks and wall street. these guys argue over nickels and dimes like old men playing pinochle.

  39. Vernos,

    From what I can tell, the WallStreet bailout is almost universally hated. Unfortunately, as with at least GM, it was probably required.

    The same thing is wrong with both. In the case of GM, unions had alot of clout with this administration and therefore were able to carve out what was really a deal that favored them more than was fair.

    In the Wallstreet bailout, again, like with the unions, money and power spoke volumes. Wallstreet got the money, with few strings attached on how to spend it, and nobody being held responsible.

    Whether it be business or unions, due to lobbying and our paid for government, whenever the government gets involved, big, rich powerful interests with lobbyists are advantaged at the expense of others.

    You wish to make a big deal out of the advanages that business buys and others wish to make a big deal out of the the advantages that unions buy.

    Me, I'm equal opportunity. I see both and despise both... equally.

    Michael

  40. Excellent letter and terrific posts by Michael.

  41. Have read all responses and so far, none of the "all hail the federal government" class has addressed the letter writers main points. (not surprising) 1. Why was "normal" bankruptcy disallowed? It allows for operations to continue. (Station Casinos) Answer: The union contracts would have been nullified. 2. Why were the creditors given the shaft? Answer: Same.

    And that is blasphemy to the "all hail the federal government" class.

  42. 1. The 'normal' bankruptcy was disallowed because this was NOT a 'normal' bankruptcy.
    2. Creditors are usually given the shaft in a bankruptcy, so what's new here?

    The automobile INDUSTRY in it's entirety was devastated, car parts, car dealers, car repairs, all over the country, not just a single car maker such as Chrysler. The Stock market was crashing. There was nothing normal about this massive crash.

    Fast action was needed to save the jobs of millions. It is very clear that the Republicans have no concern about a person's job should they belong to a union. Many Republicans were foaming at the mouth for a chance to get at Union members even if it meant destroying the entire automobile industry.

    They are so rabid about union destruction they will tear apart their own country, then preach to us about how their religion leads them along the paths of humanity by saving single zygotes in liquid nitrogen. The reason Republicans fight for zygotes is because they don't need clothes, education or food to maintain. Zygotes are far less expensive then living beings.

    The Government's existence is upheld when it supports the common good. Any other kind should be eliminated, dissolved, aborted or smoked and not necessarily in that order. What happened was the best that could happen. I'm glad McCain wasn't in charge to screw up the works.

    Any Questions?

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