fbop corporation
the nine banks were subsidiaries of fbop corporation, oak park, illinois. fbop corporation was not closed and was not subject to today' s actions .
pension benefit guaranty corporation, intervenor plaintiff, represented by colin b. albaugh, pension benefit guaranty corporation & simon j. torres, pension benefit guaranty corporation .
federal deposit insurance corporation v. fbop corporation et al, no. 1: 2014cv04307 - document 205 (n. d. ill. 2017 )
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federal deposit insurance corporation v. fbop corporation et al, no. 1: 2014cv04307 - document 205 (n. d. ill. 2017): : justia
fbop corporation, defendant, represented by edward c. fitzpatrick, faegre baker daniels & kate e middleton, faegre baker daniels llp .
fbop corporation was a great company with lots of good people working there. unfortunately, it was taken over by the fdic and is no longer in business .
— california national bank is a consumer and business bank in the southern california area. overviewcal national bank originally began in 1996 when fbop corporation acquired torrance bank. two years later, fbop acquired five branches of topa… …
but this friday was also a bit different, because all nine banks were subsidiaries of the same company, fbop corporation. us bank of minnesota gobbled up all of fbop' s deposits and almost all of its assets .
fbop charges that claims made by the pbgc that they are abandoning their pension plan are
knowingly false
and based on facts that the government corporation has admitted are wrong .
the fdic assessed cross - guaranty liability against, and demanded immediate payment from, park national bank and citizens national bank as a result of the failure of affiliated banks in fbop corporation .
a failed oak park bank corporation is trading lawsuits with a government agency, a year and a half after it was shut down .
federal deposit insurance corporation, as a separate and distinct receiver of bank usa, n. a. , california national bank, citizens national bank of teague, madisonville state bank, north houston bank, pacific national bank, park national bank, and san diego national bank, plaintiff, v. fbop corporation, et al. , defendants .
yesterday, the fdic entered into a purchase and assumption agreement with u. s. bank, n. a. , headquartered in minneapolis, minnesota, to assume all of the deposits of nine failed banks. the nine banks were subsidiaries of fbop corporation, headquartered in oak park, illinois .
fbop was still in good shape as the second quarter of 2008 ended. just over a month later, fannie and freddie were seized, reducing the value of some $ 885 million in securities to zero overnight. several weeks later, fbop lost another $ 100 million when wamu failed. fbop had purchased wamu paper when it was rated investment grade. in less than a month, fbop had lost 63 percent of its tier 1 capital .
fbop' s financial woes extended to its owner as well. on september 30, 2009, michael kelly (
kelly
), fbop' s president and sole shareholder, caused fbop to lend him $ 6. 5 million at an interest rate of 3. 25% per year. (id. ¶¶ 335 - 36. )
with the corporation carrying such a massive debt load and soon to be out of existence, the pbgc believes it won' t be able to make payments to the 2, 589 retirees in its pension system .
fbop, in exchange for the liens and its efforts to claim the banks' tax refunds, received the following: (i) jpmc agreed to acquire and forgive the $ 6 million kelly lent himself on behalf of fbop; (ii) jpmc and bmo permitted fbop to pay approximately $ 13. 7 million in deferred compensation owed to former officers of the banks and fbop; and (iii) jpmc and bmo waived any potential claims they had against kelly and fbop' s former officers. (am. compl. ¶¶ 351 - 53; dkt. no. 70 at 4. )
in addition, substantially all loans are subject to a loss sharing agreement with the fdic. u. s. bank will not acquire any additional assets or liabilities of the banks’ parent holding company, fbop corporation. this acquisition is expected to meet or exceed the company’s internal financial hurdles for internal rate of return and earnings per share accretion .
fbop remained in existence as a legal entity, albeit as a bank holding company without subsidiary banks. during the two years following the banks' failure, fbop received approximately $ 275. 6 million in tax refunds (the
tax refunds
) attributable to taxes paid by the banks during the 2004 - 2009 tax years. (am. compl. ¶¶ 124 - 31 .) fbop did not return the tax refunds to the banks or to the fdic - r. instead, at the urging of its creditors and in exchange for financial benefits to fbop insiders, fbop asserted ownership over the tax refunds and pledged its asserted rights to its various creditors to the detriment of the original taxpayers: the banks. (id. ¶¶ 345, 346, 358, 385, 388 .) the fdic - r objected to fbop' s actions and demanded that fbop transfer the banks' tax refunds to the fdic - r. fbop refused, and the ownership of the tax refunds is now the subject of this lawsuit .
the seventh circuit' s holding in sentinel is directly applicable to the facts alleged in the fdic - r' s amended complaint, which the court must accept as true as this stage of the case. fbop, like sentinel, improperly pledged others' assets to satisfy its own creditors. in sentinel, those assets were (supposedly) segregated client funds; in this case, the assets were the tax refunds that fbop repeatedly represented to regulators as belonging to the banks. fbop, as the banks' designated tax agent, controlled those assets much like sentinel controlled its clients' funds. and fbop used its position as the banks' tax agent to improperly pledge the tax refunds to satisfy its own debts, much like sentinel pledge its clients' assets to meet bny' s collateral demand. fbop and its creditors erected a web of liens and side agreements to benefit all of fbop' s creditors except the fdic - r, and subsequently conspired to subject the banks' tax refunds to the provisions of the liens and side agreements, rather than immediately transferring the tax refunds to the banks as fbop had done in the past. furthermore, unlike sentinel, fbop did not pledge the banks' tax refunds as part of a desperate attempt to stay in business. fbop had been insolvent for nearly one year by the time fbop granted the liens to jpmc and bmo, and the settlement agreements expressly called for fbop to be liquidated following the distribution funds to its creditors. fbop' s motivation, according to the amended complaint, was to grant its creditors access to the banks' tax refunds in exchange for the creditors' agreement to forgive the $ 6. 5 million kelly caused fbop to loan him and to pay certain deferred compensation benefits to fbop insiders. jpmc' s and bmo' s arguments that they
inevitably
would have obtained the same liens had fbop not entered into the settlement agreements is irrelevant to the court' s determination of whether the fdic - r has sufficiently alleged that fbop acted with actual fraudulent intent. there was no suggestion in sentinel that bny' s lien on sentinel' s assets was improper. in sentinel, the fraud arose from sentinel improperly subjecting its clients' assets to bny' s otherwise valid lien on sentinel' s assets. here, the fraud arises from fbop improperly subjecting the banks' tax refunds to the jpmc' s and bmo' s otherwise valid liens on fbop' s assets .
— infobox company company name = fulton financial corporation company company type = public (nasdaq | fult) company slogan = a balanced design for growth foundation = 1982 location = lancaster, pennsylvania, usa key people = r. scott smith, jr. ceo… …
on october 31, 2007, fbop and the banks entered into an agreement to allocate consolidated federal and state income tax liabilities (the
2007 tax allocation agreement
). (am. compl. ¶ 238 .) the purpose of the 2007 tax allocation agreement was to allow fbop and the banks to continue filing taxes as a consolidated group, as they had done since 2004, with fbop acting as the banks' agent for filing tax returns, paying taxes, and seeking refunds. (id. ¶ 59, 60, 239, 241 .) since 2004, each bank had paid its own tax liability by transferring funds to fbop. fbop then transferred the banks' tax payments to the irs. (id. ¶ 65 .) fbop likewise transferred any tax refunds attributable to banks' earnings back to the banks upon receiving the refunds from the irs. fbop and the banks envisioned the same arrangement under the 2007 tax allocation agreement and, until the banks failed in 2009, all of the parties acted as though the banks' tax refunds belonged to the banks, not fbop. (id. ¶¶ 242 - 43, 378. )
patrick d. cavanaugh, of high ridge partners, inc. not individually, but solely as trustee - assignee under fbop corporation' s turst agreement and assignment for the benefit of creditors, defendant, represented by thomas p. cimino, jr. , vedder price p. c. , douglas joseph lipke, vedder price p. c. & william w. thorsness, iii, vedder price p. c. .
to those unfamiliar with the institution, park national bank was the name used by the 30 - odd local branches owned by fbop corp. first bank of oak park grew up in our backyard, made smart investments in rtc (resolution trust corporation) - seized assets and banks, and put the money to use in expanding a branch network that worked in many urban areas where banking services are scarce. previously, the branches had used the names of the various institutions that fbop had cobbled together when they acquired banks usually at the government' s urging. names like pullman, cosmopolitan and regency savings. fbop also owned banks in three other states; its three california banks were each as big as park national was locally. it made loans across the united states. fbop corp. had recently moved into the top 100 in banking size nationally, and it was the largest privately held banking group in the country. locally, fbop - owned banks were historically in the very top tiers of banks in profitability, safety and community lending .
) - - u. s. bancorp (nyse: usb) announced today that, effective immediately, its lead bank, u. s. bank national association, has acquired the banking subsidiaries of fbop corporation of oak park, illinois, from the federal deposit insurance corporation. this transaction includes nine different banks with more than $ 18 billion in total assets and 150 branches in california, illinois, arizona and texas. the nine banks that are part of this acquisition are: bankusa, n. a. ; california national bank; citizens national bank; madisonville state bank; north houston bank; pacific national bank; park national bank; san diego national bank; and community bank of lemont .
on february 8, 2010, another one of fbop' s creditors—bmo—sued fbop in the circuit court of cook county, illinois seeking payment of a $ 43. 6 million debt arising out of fbop' s aborted acquisition of pff bank & trust (
pff b & t
) in 2008. (id. ¶ 328 .) in june 2008, fbop entered into an agreement to acquire pff b & t from its parent company, pff bancorp, inc. (
pff bancorp
). (id .) fbop agreed as part of the purchase to assume a roughly $ 44 million debt pff bancorp owed to bmo, but only if pff bancorp could not repay the debt itself by june 16, 2009. (id. ¶ 330; dkt. no. 68 at 2 .) on november 21, 2008, pff b & t failed and fbop terminated the acquisition agreement. (am. comp. ¶¶ 331 - 32 .) fbop likewise refused to assume pff bancorp' s debt to bmo after pff bancorp failed to repay the debt itself by the june 16, 2009 deadline .
although fbop had been insolvent since the banks failed in october 2009, its financial condition hit rock bottom in the summer of 2010. first, on july 19, 2010, judge guzman struck all of fbop' s affirmative defenses to jpmc' s federal collection action, leaving fbop with no plausible basis to avoid its $ 247. 5 million debt to jpmc. see jpmorgan chase bank, no. 09 c 3720 (dkt. no. 80). second, on august 2, 2010, the illinois state court granted bmo a judgment against fbop in the amount of $ 43. 3 million. (am. compl. ¶ 340. )
consistent with fbop' s and the banks' larger tax scheme, the banks treated deferred tax assets—when such assets existed—as their own. (am. compl. ¶ 139 .) fbop apparently understood the same, because in coordinating the banks' policies for calculating their individual capital ratios, fbop treated the banks' deferred tax assets as property of the banks. (id. ¶ 136 .) the understanding persisted even after the banks suffered massive gse - related losses and the prospect of sizable deferred tax assets became apparent. 3 throughout 2008 and 2009, as fbop sought special treatment for the banks' deferred tax assets as a means of keeping the banks capitalized and staving off seizure, fbop repeatedly told the occ that the banks' deferred tax assets, including the right to claim tax refunds, belonged to the banks—not fbop. (id. ¶¶ 163, 166 - 68 .) fbop made the same representation when it applied for tarp funds in 2008. (id. ¶¶ 169 - 71 .) and in each quarterly
call report ,
a type of financial health report banks must submit to regulators under 12 u. s. c. § 1817 (a) (3), each bank—under the direction of fbop—claimed ownership of its respective deferred tax assets through october 2009. (id. ¶¶ 172 - 233. )
on june 10, 2014, the federal deposit insurance corporation (
fdic - r
), as a separate and distinct receiver for eight failed banks, filed a complaint against the banks' former parent company, defendant fbop corporation (
fbop
), as well as fbop' s trustee - assignee and a number of fbop' s creditors to determine the ownership of a multi - million dollar tax refund currently residing in escrow. (dkt. no. 1 .) on august 12, 2014, the fdic - r filed an amended complaint (
amended complaint
) (dkt. no. 35 (
am. compl .
)) seeking, among other relief, a judgment avoiding security interests that fbop granted to two of its creditors, defendants jpmorgan chase bank, n. a. (
jpmc
) and bmo harris bank n. a. (
bmo
), because the security interests were actual or constructive fraudulent transfers under illinois and federal law. the fdic - r' s amended complaint also asks the court to impose a constructive trust on any portion of the tax refund fbop has already provided to its creditors, including jpmc and bmo. jpmc and bmo have moved to dismiss (dkt. nos. 36, 40) the fraud claims against them (counts ix through xiv) and the fdic - r' s
claim
for a constructive trust (count xxiv) pursuant to federal rule of civil procedure 12 (b) (6). for the reasons stated below, jpmc' s and bmo' s motions (dkt. nos. 36, 40) are granted in part and denied in part .
in june 2009, eight months after fhfa placed the gses into conservatorship, fbop and the banks remained open but were struggling to meet the demands of creditors and regulators. on june 19, 2009, one of those creditors, jpmc, filed a collection action against fbop seeking payment of an overdue loan. (am. compl. ¶¶ 325, 334); see also jpmorgan chase bank, n. a. v. fbop corp. , no. 09 c 3720 (n. d. ill .). jpmc acted as the agent for a syndicated lending group that made revolving loans to fbop under a longstanding credit agreement. (id .) fbop failed to make a payment by the due date, causing jpmc to accelerate the payment terms and effectively call in the entire $ 247. 6 million loan. (am. compl. ¶¶ 182, 326. )
along the way, fbop distinguished itself by doing good. nearly one - third of its 150 branches were in low - to - moderate income areas. six of the banks, including all of the big ones, received
outstanding
cra designations. in 2007 and 2008, fbop banks made $ 55 million in
community donations and investments ,
kelly testified .
calls and emails to the attorneys representing fbop were not returned immediately. a spokesman for the pbgc declined to comment, but referred wednesday journal to a court filing made on april 29. the filing basically restates their belief that fbop won' t be able to fund the plan after it liquidates, and that their tax refund should be used to cover the unfunded liabilities .
the $ 18. 3 billion - asset fbop had more than half of its balance sheet invested in the preferred stock of fannie mae and freddie mac - a capital strategy that was approved, some would even say encouraged, by federal regulators. when the treasury department abruptly placed the government - sponsored mortgage giants into conservatorship in september 2008, fbop' s capital levels plunged .
the fdic' s board of directors issued notices of assessment of cross guaranty liability against park national bank and citizens national bank. under statutory authority, the fdic may assess affiliated banks for losses incurred by the deposit insurance fund (dif) from the failure of other banks, such as those owned by fbop corporation. congress granted the fdic authority in 1989 to reduce the cost to the dif for the resolution of affiliated institutions owned by the same company. the two banks were unable to pay the amounts assessed and were closed by their chartering authorities .
the purpose of fbop' s claim to the banks' tax refunds was to divert the tax refunds from the fdic - r and bring them into the pool of money available to fbop' s creditors. (am. compl. ¶ 381 .) once the tax refunds became part of the creditors' pool, the liens would ensure that jpmc and bmo received first access to the tax refunds. the fdic - r, by contrast, would merely hold a subordinate (and ultimately worthless) claim against fbop for the value of the diverted tax refunds. (id. ¶ 380. )
here, the fdic - r has alleged that the only possible value bmo offered to fbop in exchange for the lien was its agreement to forbear against pff bancorp, which owed bmo a $ 44 million debt that fbop ill - advisedly assumed as part of its failed pff b & t acquisition, but only if pff bancorp were unable to pay the debt itself. bmo won a judgment against fbop in illinoi state court, but fbop' s settlement agreement with bmo expressly states that bmo may seek to recover its $ 44 million from both fbop and pff bancorp. accordingly, any assessment of the value of bmo' s forbearance must include a factual determination of bmo' s ability to recover from both fbop and pff bancorp. although there are a number of other factors the court must consider in determining reasonable equivalence, the example discussed above illustrates why such a determination is not appropriate at the motion to dismiss stage: assessing reasonable equivalence is an exercise in valuation that relies heavily on facts the court—and often the parties—do not yet have before fact discovery has been undertaken. bmo' s motion to dismiss the fdic - r' s claim for constructive fraudulent conveyance in counts xiii and xiv is therefore denied .
at issue is whether oak park - based fbop corp. — whose nine banks were seized by the fdic in october 2009 — can make the required payments under its employee pension plan, which has been in place since 1952. on one side, the government agency that insures pension plans says no way, and wants an immediate payment of almost $ 52 million to help pay fbop' s retirees .
the cause of the
failure
of the bank was the take over of fannie mae and freddie mac making the fbop in those companies' stock worthless. at about the same time the federal government took over gm, later selling new shares. if fannie & freddie are to be again privatized why not repay the original stockholders like fbop and then they can meet their pension obligations and not declare bankruptchy ?
all together, fbop was a sizable bank - holding company, the 46th biggest in the country, according to the federal reserve. it had $ 19. 4 billion in assets as of sept. 30 .
over the next two years or so, fbop is selling off its remaining assets — which include real estate and a car wash, according to a lawsuit, filed april 26 in federal court by the pbgc .
fbop was purchased by us bank in 2007. the job was a challenge as there were monthly audits of the department which strengthened my organizational, paperwork skills. workpace environment was professional and good people to work with .
later that same day, fbop' s nine subsidiary banks - including the $ 4. 7 billion - asset park national - were seized by regulators and sold to u. s. bancorp at a steep discount .
congress created the federal deposit insurance corporation in 1933 to restore public confidence in the nation' s banking system. the fdic insures deposits at the nation' s 8, 195 banks and savings associations and it promotes the safety and soundness of these institutions by identifying, monitoring and addressing risks to which they are exposed. the fdic receives no federal tax dollars – insured financial institutions fund its operations .
on the other side, fbop says it hasn' t missed any pension payments since the company was taken over in 2009, and any accusations that it can' t fund the pension plan are
arbitrary and capricious .
the federal deposit insurance corporation (fdic) entered into a purchase and assumption agreement with u. s. bank, na, of minneapolis, minnesota, a wholly - owned subsidiary of u. s. bancorp, to assume all of the deposits and essentially all of the assets of nine failed banks. the nine banks were closed this evening by federal and state bank regulators, which appointed the fdic as receiver .
the dispute started on april 20, when the pension benefit guaranty corp. — a government agency that oversees and insures certain defined - benefit pension plans — sent a letter to fbop, demanding that it immediately end its retirement account .
fbop didn' t get involved in subprime mortgage lending, but did have a knack for turnaround situations and working out troubled loans. attempts to reach kelly for this story were unsuccessful, but in his congressional testimony he noted that the company posted record profits for 25 straight years, and had historical net loan losses that were about one - quarter the industry averages. in their 2008 examinations, all nine fbop banks were well - capitalized with solid regulatory ratings, he added .
around the same time, in the fall of 2009, fbop was attempting to convince the banks' regulators, the occ and tdb, to refrain from seizing the banks until president obama signed the workers, homeowners, and business assistance act of 2009 (
whbaa
). the whbaa eventually extended the two - year limitation on
carry back
nols to five years for banks and other institutions whose losses stemmed from the gses' failures. if fbop' s banks had survived long enough to take advantage of the whbaa' s extended
carry back
allowance, fbop contends that its nols would have provided an additional $ 200 million to support the banks' capital ratios and potentially avoid seizure. (am. compl. ¶¶ 122, 128 .) but the occ and tdb ultimately refused fbop' s request to wait. the regulators seized the banks on october 30, 2009—one week before president obama signed the whbaa—and appointed the fdic - r as receiver. (am. compl. ¶¶ 42, 44 .) at the time of the banks failure, and probably well before, fbop was insolvent with no ability to pay its creditors. (id. ¶ 7. )
item 5. other events on april 19, 2001, pboc holdings, inc. (the
company
) issued a press release (the
press release
) announcing that on the same date its shareholders had approved the agreement and plan of merger, as amended, between pboc, fbop corporation and fbop acquisition company. item 7. financial statements, pro forma financial information and exhibits (a) not applicable. (b) not applicable. (c) the following exhibits are included with this report: exhibit 99. 1 press release dated april 19, 2001. signatures pursuant to the requirements of the securities exchange act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. pboc holdings, inc. by: / s / rudolf p. guenzel rudolf p. guenzel president and chief executive officer date: april 20, 2001 .
the bank failures, estimated to cost the deposit insurance fund $ 2. 5 billion, set off a controversy in chicago, where fbop founder and chief executive michael kelly worked closely with local leaders on all sorts of community - development projects. david pope, president of oak park, ill. , fbop' s hometown, has called the firesale of the local franchise to a regional giant headquartered 400 miles away
the largest bank robbery in the history of the united states .
on january 10, 2011, fbop brought the sub - debt holders into the fold with similar forbearance and settlement agreements (the
sub - debt agreements
). (id. ¶ 356 .) the sub - debt agreements purport to grant the sub - debt holders liens on certain assets, including the banks' tax refunds. (id. ¶ 358 .) and unlike the jpmc and bmo settlement agreements, the sub - debt agreements explicitly memorialize fbop' s obligation to
use commercially reasonable efforts to minimize the value of any payments made to the fdic - receiver on account of its interest in the bank tax refund [ s ] .
( id. ¶ 359 .) although the sub - debt holders remain subordinate to jpmc and bmo, jpmc and bmo have agreed to reserve up to $ 10, 150, 000 for the sub - debt holders if fbop successfully retains the tax refunds. (dkt. no. 70 at 4 .) by early 2011, fbop and its creditors had erected a web of settlement agreements, the effect of which was to ensure that jpmc, bmo, and the sub - debt holders—not the fdic - r—would receive the tax refunds if fbop were successful in asserting ownership .
people' s preferred capital corporation part ii. other information item 1: legal proceedings none item 2: changes in securities none item 3: defaults upon senior securities none item 4: submission of matters to a vote of security holders none item 5: other information none item 6: exhibits and reports on form 8 - k. no reports on form 8 - k have been filed during the quarter ended june 30, 2001. exhibit index exhibit description none 16
kelly and his team immediately committed to raising enough money to get fbop' s individual banks back to well - capitalized status. at the time, the company' s credit quality still looked relatively good, and there was serious investor interest in the company .
on september 28, 2011, fbop, as agent for the banks and with the fdic - r' s consent, submitted to the irs a form 1120x for each of the carryback years to claim the banks' tax refunds. (am. compl. ¶ 128 .) on september 30, 2011, two days later, fbop and the fdic - r entered into an escrow agreement, under which the tax refunds will remain in an escrow account until the ownership can be resolved. (id. ¶¶ 414 - 423 .) the fdic - r later learned that on march 12, 2010, the irs issued an overpayment refund to fbop for the banks' 2009 estimated tax payment in the amount of $ 10, 303, 000. (am. compl. ¶¶ 28, 116 .) although the fdic - r believes that the $ 10, 303, 00 overpayment refund belongs to the banks, fbop has refused to place the overpayment refund into the escrow account. 4 on june 10, 2014, following the parties unsuccessful attempts to resolve the dispute through good faith settlement discussions, (id. ¶ 14), the fdic - r followed this lawsuit to adjudicate the ownership of the tax refunds. fbop' s two largest creditors, jpmc and bmo, have now moved to dismiss the fdic - r' s claims against them .
regulators have acknowledged the role of the gse conservatorships in the failures of fbop and some other institutions, but say rules are rules, and the fdic' s primary mandate is clear: maintain the system' s stability, while minimizing the costs to the deposit insurance fund .
if a federal judge agrees to terminate fbop' s pension plan, the pbgc — which is funded by premiums, and the assets of the plans it takes over — would continue making payments of up to $ 54, 000 a year to the 2, 589 retirees .
fbop' s troubles began in late 2007, as the crisis was gaining traction. in her congressional testimony, jennifer kelly described a series of
strategic decisions that, in retrospect, diminished the company' s financial flexibility and exposed the banks in the company to failure .
fbop will no longer exist after liquidating all of its assets, and will end up having $ 882 million in liabilities versus $ 281 million available to creditors after liquidation, pbgc said. the former bank holding company is also expected to receive a $ 200 million federal tax return in june .
the determinations to place the fbop banks into receivership were consistent with, or required by, the statutory scheme congress put in place to resolve banks... at the least cost to the deposit insurance fund ,
senior deputy comptroller of the currency jennifer kelly testified during the january hearing .
under the terms of these transactions, u. s. bank will receive approximately $ 18. 4 billion of assets and assume approximately $ 18. 3 billion of liabilities, including $ 15. 4 billion of both insured and uninsured deposits, of the nine different banks that are part of fbop .
by 2008, fbop' s three california banks - california national bank in los angeles, pacific national bank in san francisco and san diego national bank - had almost $ 700 million of fannie and freddie stock on their balance sheets; park national' s tally was about $ 100 million, watts recalls .
but fbop had large holdings of freddie mac and fannie mae preferred stock and was hit hard when the government essentially nationalized the two companies last year. fbop made a number of attempts to save itself. first it applied for $ 500 million in tarp money, but was turned down. lately, the illinois - based company has been petitioning the fdic for just a little more time. as the chicago tribune reports, the bank got help in the effort from reps. bobby rush (d - ill .) and danny davis (d - ill .) and sen. roland burris (d - ill .) .
federal deposit insurance corporation, as a separate and distinct receiver of bank usa, n. a. , california national bank, citizens national bank of teague, madisonville state bank, north houston bank, pacific national bank, park national bank, and san diego national national bank, and san d, plaintiff, represented by eric r goodman, baker & hostetler llp, karin scholz jenson, baker & hostetler llp, adam l. fletcher, baker & hostetler llp, erin bolan hines, baker hostetler llp & joseph f. hutchinson, baker & hostetler llp .
when a private - company option became available in mid - november, the office of the comptroller of the currency recommended to the interagency council overseeing applications that fbop be approved. but that council requested additional information. in the interim, the company' s loan quality began to deteriorate precipitously, and the occ withdrew its support .
while the nation' s largest banks were allowed almost unfettered access to tarp (troubled asset relief program) funds to cover greed and mismanagement that ran rampant through their organizations, fbop corp. was denied these funds. denied when their sin was not one of their own making, as could be argued was the case with bank of america, with citibank, with wells fargo. even u. s. bank, fbop' s new owner, took tarp money for god' s sake (they were persuaded to and quickly repaid it). most banks fail because they overreached and imprudently lent money that caused their own downfall. that was not the case here .
with that in mind, fbop began shifting its capital into a more
safe, liquid form ,
that could be sold quickly if the right chances emerged, watts says. that turned out to be fannie and freddie preferred shares, which had a better yield than treasury securities and were rated aaa - minus by the ratings agencies .
i thought that if and when the moment came i would be sad. resigned. depressed. and yet when the news really sank in saturday morning, i became furious. raging. apoplectic. park national bank and its parent corporation, first bank of oak park corp. , had been shut down by the federal deposit insurance corp. regulators swooped in friday night and branches were re - opened saturday under the u. s. bank flag. fdic officials and u. s. bank employees were on hand to calm fears, answer questions and put on a good front for customers and bank staff alike .
after receiving the letter, fbop fired back in its own federal lawsuit on april 26. they claim they' ve never missed payments to any of their retirees and have hit all the minimum funding obligations, as required by law. they' ve worked with investment advisors, according to the complaint, and believe that earnings will allow them to make all payments .
the tribune also notes an unfortunate coincidence for the administration - - and, you might say, a sign of the times we live in. on the morning that fbop was seized, the community development arm of one of its subsidiaries, park national bank, received a $ 50 million award through a treasury department tax credit program, funded in part by stimulus dollars .
all of the banks, especially park national, were reflections of kelly' s values, and he clearly liked calling the strategic shots. he owned 100 percent of fbop, and sold only debt - mostly trust - preferred securities - but never equity, to maintain control. he also ran at a very low tangible equity ratio, providing relatively less room for error .
court description: memorandum opinion and order: for the reasons set forth in the attached memorandum opinion and order: (1) the fbop defendants' motion for partial judgment on the pleadings as to counts i - ii, iii - vii, and xix - xxii of the fdic' s complaint [ 139 ], is denied; (2) the fdic' s motion for partial judgment on the pleadings on counts i and ii, 150, is entered and continued; and (3) the fbop defendants' motion for judgment on the pleadings as to pbgc' s intervenor complaint, 162, is denied without prejudice as moot. signed by the honorable thomas m. durkin on 5 / 12 / 2017: mailed notice (srn, )
the largest privately held banking group in the nation, the best community bank operation around, had been taken over. and more than $ 2. 5 billion of taxpayer money is now at risk in support of one of the nation' s largest banks as they swallowed whole an operation that was shut down not by bad lending, not upper - management malfeasance, not employee theft, nor by any ponzi scheme. no, fbop corp. was felled by its investments in quasi - governmental fannie mae and freddie mac. the common banking industry practice of investing short - term assets, 30 - or 60 - day money in fannie and freddie, lost fbop the majority of its capital base virtually overnight and allowed the government to claim the bank was seriously undercapitalized .
the company grew its loan portfolio 35 percent during the year ended in the third quarter of 2008, filling a gap in a commercial real estate market that other banks thought too risky. it also bumped up loan participations among its various banks. in hindsight, such moves
limited fbop' s financial flexibility and ability to absorb losses ,
the occ' s jennifer kelly testified .
whether fbop is a good choice for the role of industry martyr is another matter of debate. the company made its share of strategic mistakes, before and during the crisis, and got some help from nongovernmental sources. an ongoing lawsuit, for instance, accuses jpmorgan chase & co. of sabotaging the company' s capital - raising efforts last may by calling a $ 246 million loan prematurely .
ely also is unmoved by the capital woes of fbop and other banks snared by collapses of fannie and freddie. while the regulators had approved the holdings, the gses' potential demise had been rumored for months .
the question should be,' why were they so heavily invested in the stocks of those two companies?'
he asks .
you can' t let the regulators make decisions for you .
altogether, the plan is about 52 percent funded, according to the pbgc, with $ 106. 8 million in liabilities, and $ 55 million in assets. the pbgc is worried that the longer it waits, the worse the unfunded gap is going to get. as such, they want the plan terminated as of april 21 and a payment of $ 51. 8 million from fbop to cover the alleged shortfall .
what galls watts and other observers most is an apparent lack of flexibility on the government' s part. fbop' s franchise included seven banks in california, arizona and texas that were undercapitalized. under the so - called cross - guarantee provision of firrea, the federal deposit insurance corp. is required to seize all banks in a holding company if that appears to be the most cost - effective solution for the deposit insurance fund .
just when it was looking like the company would raise the money, however, tarp' s capital purchase program was announced. the cpp created confusion in the market, and ground most capital - raising efforts to a halt. most agree that fbop would have been a strong candidate for early tarp funding that october. but treasury didn' t have an option for private companies, because warrants were a big part of the equation .
signatures pursuant to the requirements of the securities exchange act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. people' s preferred capital corporation / s / david b. bretoi - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - david b. bretoi chief executive officer / s / gregory a. mitchell - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - gregory a. mitchell chief operating officer date: august 14, 2001 17
while fbop was bigger than the typical community bank, its tale has emerged as exhibit a in a growing national debate over washington' s handling of troubled small banks. in january, a congressional subcommittee used its collapse as the centerpiece of a hearing - subtitled
examining the failure and seizure of an american bank
- that brought testimony from kelly, several regulatory officials and west side community development leaders, some of whom bussed all the way from chicago .
in early september, the fdic began marketing the seven banks on a standalone basis and in combination with each other. to test the waters, park national and citizens were offered, without a loss - share agreement, but no takers were found. on october 20, the agency received 41 bids from 18 bidders for some or all of fbop. the best deal for the seven banks in immediate danger would have cost the dif $ 1. 85 billion .
while u. s. bancorp has pledged to meet most of kelly' s commitments in the short - run, it also has shareholders to answer to and runs an efficiency - based banking model - not better or worse than fbop' s, just different. it has announced plans to shutter some branches and likely won' t be making zero - interest loans to schools or waiving fees for nonprofits. in the end, saving the deposit insurance fund money comes at a cost, too .
as discussed above, the fdic - r has alleged that fbop pledged the banks' tax refunds to jpmc and bmo in october 2010, nearly one year after fbop became insolvent with no ability to restructure or survive. the only question that remains is whether fbop received reasonably equivalent value in exchange for the lien granted to bmo .
whether 'reasonably equivalent value' has been given is typically a question of fact .
wachovia secs. , llc v. neuhauser, 528 f. supp. 2d 834, 859 (n. d. ill. 2007) (kendall, j .) (citing in re zeigler, 320 b. r. 362, 374 (bankr. n. d. ill. 2005) ); see also in re image worldwide, ltd. , 139 f. 3d 574, 577 (7th cir. 1998) (recognizing that determination of reasonable equivalence will depend on facts of each individual case). although there is no fixed formula for assessing reasonable equivalence, other courts have used the following factors :
( 1) whether the value of what was transferred is equal to the value of what was received; (2) the market value of what was transferred and received; (3) whether the transaction took place at arm' s length; and (4) the good faith of the transferee .
neuhauser, 528 f. supp. 2d at 860 (citing image worldwide, 139 f. 3d at 577) .
park national bank was known for caring deeply about its local community. the flagship bank of fbop corp. donated 28 percent of its profits to chicago' s west side communities, made zero - interest loans to schools and, at the height of the housing crisis, committed $ 20 million to a foreclosure rescue plan. on a rainy, unseasonably warm friday last october, treasury secretary timothy geithner himself came to town and awarded the bank $ 50 million in tax credits to expand its nonprofit community development agency .
people' s preferred capital corporation june 30, 2001 report on form 10 - q table of contents page no. part i financial information item 1. financial statements 3 statements of financial condition - june 30, 2001 and december 31, 2000 3 statements of earnings - for the three months and six months ended june 30, 2001 and june 30, 2000 4 statements of cash flows - for the six months ended june 30, 2001 and june 30, 2000 5 notes to financial statements 6 item 2. management' s discussion and analysis of financial condition and results of operations 8 item 3. quantitative and qualitative disclosures about market risk 15 part ii other information item 1: legal proceedings 16 item 2: changes in securities 16 item 3: defaults upon senior securities 16 item 4: submission of matters to a vote of security holders 16 item 5: other information 16 item 6: exhibits and reports on form 8 - k 16 2
fbop had banks in illinois, california, arizona and texas, the pieces of a company built up over three decades. the largest in california was california national bank, followed by san diego national bank and pacific national bank. in texas, there was north houston bank, madisonville state bank and citizens national bank. in illinois were park national bank and community bank of lemont, and in arizona, there was just one, bank usa. all together, the fdic said the failures will cost the agency $ 2. 5 billion .
accordingly, under the seventh circuit' s recent decision in sentinel, fbop' s pledging of the banks' tax refunds to jpmc and bmo, the natural consequence of which was to render the tax refunds unavailable to the rightful owner of the tax refunds, the banks' receiver, constitutes actual intent to hinder, delay, or defraud the fdic - r. jpmc' s and bmo' s motions to dismiss the fdic - r' s actual fraudulent transfer claims, as pled in counts ix, x, xi, and xii, must be denied .
where was the proper government oversight in fannie and freddie? why no bailout for banks who lent money to fannie and freddie as short - term investments and saw these assets frozen? why were the nation' s largest banks allowed to appropriate your money and mine to save their sorry behinds? why wasn' t the same opportunity available to fbop corp. ? and why wouldn' t the fdic give the bank the extra week they requested to raise the funds the fed claimed were absolutely needed to capitalize the operation correctly? why are taxpayer needs better served by putting us potentially on the hook for $ 2. 5 billon, rather than by giving the bank another week? would bank of america be treated the same way? why did it make sense for the federal government to give fbop $ 50 million on friday morning to help it continue its wonderful investment in the west side and then shut down the operation on friday night? will u. s. bank follow through and use these funds for local initiatives? fdic officials i spoke to at the main branch on saturday claimed answers to such questions
were above their pay grade .
great. just wonderful. accountability at its finest .
some outside consultants, and even some bankers, don' t have much sympathy for fbop' s position, or the bigger argument that smaller banks aren' t getting a fair shake .
i don' t understand what the gripe is ,
says bert ely, a regulatory analyst in alexandria, va .
if you' re insolvent, you' re insolvent... . just because some companies are too - big - to - fail and no one can figure out what to do with them doesn' t mean that you compound the problem by bailing out community banks .
this press release contains forward - looking statements about u. s. bancorp. statements that are not historical or current facts, including statements about beliefs and expectations, are forward - looking statements and are based on the information available to, and assumptions and estimates made by, management as of the date made. these forward - looking statements cover, among other things, anticipated future revenue and expenses and the future plans and prospects of u. s. bancorp. forward - looking statements involve inherent risks and uncertainties, and important factors could cause actual results to differ materially from those anticipated. global and domestic economies could fail to recover from the recent economic downturn or could experience another severe contraction, which could adversely affect our revenues and the values of our assets and liabilities. global financial markets could experience a recurrence of significant turbulence, which could reduce the availability of funding to certain financial institutions and lead to a tightening of credit, a reduction of business activity, and increased market volatility. stress in the commercial real estate markets, as well as a delay or failure of recovery in the residential real estate markets, could cause additional credit losses and deterioration in asset values. in addition, our business and financial performance could be impacted as the financial industry restructures in the current environment, by increased regulation of financial institutions or other effects of recently enacted legislation, and by changes in the competitive landscape. our results could also be adversely affected by continued deterioration in general business and economic conditions; changes in interest rates; deterioration in the credit quality of our loan portfolios or in the value of the collateral securing those loans; deterioration in the value of securities held in our investment securities portfolio; legal and regulatory developments; increased competition from both banks and non - banks; changes in customer behavior and preferences; effects of mergers and acquisitions and related integration; effects of critical accounting policies and judgments; and management’s ability to effectively manage credit risk, market risk, operational risk, legal risk, and regulatory and compliance risk. finally, there can be no assurance that we will realize the anticipated benefits of the acquisition of the banking subsidiaries of fbop corporation.
fbop corporation was a financial services company based in oak park , illinois , united states . as of mid-2009 , it had $ 18.5 billion in assets and was the 46th largest bank holding company in the united states . on october 30 , 2009 , fbop 's banking subsidiaries were closed by their chartering agencies and the federal deposit insurance corporation was appointed as their receiver . the company had over 4064 employees . the holding company began as first bank of oak park . fbop started acquiring other banks in 1990 . in 2006 , first bank of oak park merged with four other co-owned banks in illinois to create park national bank . fbop operated banks in illinois , california , texas , and arizona , prior to their closure . u.s. bancorp acquired all nine of fbop 's nine banks on the day of closure , but later sold the three texas-based banks to prosperity bancshares . 
fbop corporation was a financial services company based in oak park, illinois, united states. as of mid-2009, it had $ 18.5 billion in assets and was the 46th largest bank holding company in the united states. on october 30, 2009, fbop's banking subsidiaries were closed by their chartering agencies and the federal deposit insurance corporation was appointed as their receiver. the company had over 4064 employees. the holding company began as first bank of oak park. fbop started acquiring other banks in 1990. in 2006, first bank of oak park merged with four other co-owned banks in illinois to create park national bank. fbop operated banks in illinois, california, texas, and arizona, prior to their closure. u.s. bancorp acquired all nine of fbop's nine banks on the day of closure, but later sold the three texas-based banks to prosperity bancshares.
fbop corporation was a financial services company based in oak park, illinois, united states. as of mid-2009, it had $ 18.5 billion in assets and was the 46th largest bank holding company in the united states. on october 30, 2009, fbop's banking subsidiaries were closed by their chartering agencies and the federal deposit insurance corporation was appointed as their receiver. the company had over 4064 employees. the holding company began as first bank of oak park. fbop started acquiring other banks in 1990. in 2006, first bank of oak park merged with four other co-owned banks in illinois to create park national bank. fbop operated banks in illinois, california, texas, and arizona, prior to their closure. u.s. bancorp acquired all nine of fbop's nine banks on the day of closure, but later sold the three texas-based banks to prosperity bancshares.