HARP and Traditional Refinance

Refinancing your mortgage may seem ideal and particularly pressing when you are contacted by a “HARP specialist” anxious to point out that the rates are better than ever and the deadline to apply fast approaching. If you are considering such a move, let us first check to see if refinancing makes sense AND if you even qualify for or should use the HARP program.

Let’s begin by reviewing when and why we would take the time, make the effort, and incur the cost of a refinance. Refinancing is often done with the intention to lower interest paid, lower the monthly payments, or to change the terms of the mortgage. You may not realize that refinancing also restarts your amortization and could cost you in hidden ways by having you pay more interest over the mortgage period. A refinance is really a new mortgage where the new mortgage pays off your old mortgage and you work with the new product. The refinance may be ideal for the lender, but not always appropriate for you.

Traditionally refinanced mortgages are either for the balance of the previous mortgage OR for a higher balance by taking cash out. These are referred to as a “simple” or a “cash out” refi. Every time you do a refinance, your finances have to be in tip-top shape and you must select the right lender. Too often clients, for convenience, will use their current bank to refinance their mortgage, which may not offer the best terms or the easiest process. Regardless, you will be asked to verify your income. Moreover, you must have at least 20% equity (home-to-loan value, or LTV) if you don’t want to pay the mortgage insurance. The process for ALL refinancing will require that you gather documents and find the right lender, then submit an application, which the lender must respond to within 3 days with a good faith estimate (citing all costs). Once you accept, it may feel like ‘hurry up … and wait’ since the lender now has 2-3 months to respond. They will often come back to you for more information or clarification, so it turns into a back-and-forth experience. Eventually, you’ll lock-in a rate for another 30 days while verifying the final paperwork.

In the 2008-9 crisis, properties were valued lower (in most areas) and in some cases homes were worth less in the market than the mortgage debt (i.e., “underwater”). Since this was only a paper lose, it was only a problem for families with high-rate mortgages, an immediate need to sell, and with strained budgets. Sadly, these home owners were often denied a refinance to take advantage of much lower interest rates, reduce monthly mortgage costs or provide a more stable fixed-interest mortgage. It was to address this stressful financial situation that several programs were created. One, discussed below, is the HARP program.

“HARP” is the Home Affordable Refinance Program, a federal-government program established after the last housing crisis to assist homeowners with refinance (at today’s lower mortgage rates) even if their current mortgage is underwater. The goal of the program is to allow borrowers to refinance into a more affordable or sometimes a more stable mortgage product.

The HARP program ends December 31, 2016 and, as happens often before a deadline, we find an increased flurry of lenders trying to convince every home owner that they are the ideal candidate for this government program. HARP mortgages are not for everyone.

The first version of HARP had too many limits and in 2012 the HARP 2.0 program was created eliminating some of those limits. Notably, the underwater limits were removed, appraisals no longer needed, the refinance process streamlined, some fees for being ‘underwater’ eliminated, and allowance made for less stringent verification of income (to include not just W2 statements but also 12 months of saved mortgage payments).

The biggest difference between the traditional and HARP mortgages is that you don’t have to have an LTV ratio lower than 125%—the HARP program eliminated this limit. You could obtain a lower rate mortgage even if your home is still worth much less than your own mortgage.

As I’ve stated, HARP is often used to reduce mortgage interest and reduce monthly payments, but others use HARP to convert adjustable rate mortgages (also referred to as ARM-loan) into a more predictable, fixed-loan program (usually 30 years) or if it fits within your budget, a 15- year mortgage that helps you build equity faster.

HARP was never intended for individuals who are near bankruptcy or who have not paid or can’t pay their mortgages. Rather, it is intended for those who have managed to stay current on their mortgage payments, and yet, are not able to change to lower rates since they no longer qualify for a traditional refinance either because of lower income or decreased equity.

In my experience, HARP is a difficult option to pursue because the home owner not only needs to be current on their mortgage, the mortgage needs to be under Fannie Mae or Freddy Max and therefore must be “conforming.” Conforming loans have maximum limits of $415K to $625.5K depending on the location of the single family dwelling. Most Bay Area homes have mortgages that easily exceed these values. They are also only valid if the mortgage was acquired by Freddie Mac or Fannie Mae before June 1, 2009 (an arbitrary date stemming from the crisis).

Because the regulations are rather document heavy and include many exceptions, some lenders have adopted their own versions, so you may need to change your lender to obtain the best HARP loan. Even though the process was to be streamlined, implementation fell far below expectations. The lender’s representative often lack enough knowledge, causing a great deal of frustration to an already stressed individual/family. For example, clients thought they had to use the same lender and that it only applied to their primary home—this is not the case. You can use any lender and HARP can be used on any mortgage that is backed by Fannie Mae and Freddie Mac. The goal is to support those underwater because of the 2008-9 crisis.

Regardless of whether you are considering refinancing through HARP, other government programs or a private lender, you must always examine the total costs AND the purpose for the refinance. If you’ve recently completed a refinance then you need to have a really compelling reason before considering yet another refinance. If you need to increase cash flow then look for low closing costs but expect you’ll pay more interest in the long term. BUT if your purpose for the refinance is to cash out equity or to change some other aspect of your mortgage, then the upfront closing costs may be acceptable. At times, clients appear interested in refinance every few years largely because of lender contacts or advertising. Refinancing every few years can be a costly mistake. It is important to remember that each time you refinance you are starting with a brand new mortgage which will restart the amortization. Restarting amortization is good for the lender, but, not always good for you.

There are a couple of lessons here. First, to truly take advantage of opportunities like HARP you need to be on top of your finances. You also need to understand the product/plan that is offered. Ask yourself is this good for my financial situation? If unsure, drops us a line and we’ll check out the product and provide you with a product neutral opinion that is appropriate for your financial plan.

Edi Alvarez, CFP®
BS, BEd, MS

www.aikapa.com

Identifying Your “Retirement Paradise”

For most of our clients their ideal retirement location or “Retirement Paradise” is in the Bay Area (or other high cost areas), near family and friends and a stimulating environment, but high taxes and the cost of living cause many to re-evaluate.
For those choosing to remain in the Bay Area, the purchase of a smaller home (downsizing) is often used as a way to reduce expenses or to make their home better suited for independent at-home aging.  To remain in the Bay Area (or other high cost areas) retirement saving goals must be very aggressive and fully funded to support the same lifestyle during retirement.

Some consider moving to lower cost US states and even overseas. The idea of downsizing away from California (or your home state), as a way to reduce expenses and bolster available retirement funds may not be as easy as selecting the lowest tax or lowest cost location.  Keeping in mind that retirement is not one uniform event, but a series of phases, let’s cover a few of the financial implications.

Relocating may indeed reduce some costs, but there are ramifications that are often overlooked.  For example, moving away from higher cost areas can reduce income taxes, but this may not offset the increased cost of travel, other taxes (such as real estate), services, and costs associated with changes to lifestyle.

We suggest that you give the town, state or country that you intend to relocate to a try for extended periods of time and at various seasons of the year with an eye toward evaluating how you will spend your retirement and what costs will be incurred. How does it feel to revisit the same place over several years? Can you see yourself developing the supporting network you’ll need as you grow older? How will your budget be changed?

Don’t underestimate the value of a community that can provide stimulating events that you would be interested in attending (the opera, symphony, music, college courses).  What about your family and friends? Will you want to be close to them while you age? What healthcare do you need and how does your future community support it?  Some areas have low taxes, but do they provide the services that you’ll need as you age?

If you enjoy particular hobbies, you’ll probably want to check out the ease of access to your interests, but don’t neglect other priorities such as transportation and communication. As you age, travel becomes more difficult, especially if you develop special needs. Give thought to public transit and convenience to major airports or rail lines. In our experience, clients will deliberately choose a populated community to move to (later in retirement) with well developed public transit.  Access to quality internet is also your lifeline to friends and family and to future independence.

Some states do not tax retiree income and some states provide extensive retiree services. Look to see which location provides benefits that you will need. Often states that do not tax an individual’s income have higher sales and property taxes, so you must do the numbers. Be mindful of Medigap policy costs and Medicare Part D (drug coverage) in your potential retirement paradise. Premiums can be lower in areas that have a lower cost of living or more retirees. The prohibitively high cost for healthcare and lack of services in some counties will likely surprise you.

It may seem a little pre-mature, but you should give some thought and consideration during the process of making your first retirement move to the possibility of a later move in life to be near loved ones or to an assisted-living facility. As we age, the process of moving becomes more challenging – though early in retirement it can be very exciting. You’ll find this stress can be reduced or avoided with some early planning and coordination.

A few words now about moving to a foreign country for some or all of your retirement years.  It is likely that you can find countries with a lower cost of living than the US and where you can maintain or enlarge your lifestyle, but you’d be well advised to examine this option over several extended trips.  If you are planning to remain abroad through only part of your retirement, you will need to determine how to fund your eventual return, or else how you will handle all retirement phases if you intend to remain permanently out-of-country.

All US “persons” (that’s the legal term for anyone deemed subject to US taxation authority) must file taxes annually. Typically the US has a treaty with other countries so that your earnings will not be double taxed, but most retirees do not work so double taxation is not a large concern. There are rules on what is or is not taxable to you as a resident of the foreign country and what is payable to the IRS. Consider that you will have to pay taxes on all pre-tax accounts, social security, pensions even while living overseas but you will likely avoid state tax. As a US person, you will have annual administrative financial filings (known as FBAR) while not residing in the US.  Healthcare is often an issue later in retirement (Medicare does NOT cover foreign health care costs) unless you verify that the services and specialties needed as you age are easily available in your new home.  Finally, currency differences will provide you with more purchasing power while the dollar is high. However, when the dollar drops, there may be a need to return to the US or find some other way to make up the shortfall.  These contingencies need to be planned for early so that you’ll have a framework regarding your choices later in retirement.

When planning for your retirement paradise, bear in mind the most important principle—to think beyond today and prepare as best you can for contingencies throughout all phases in retirement. As always, we’re here to listen and to help outline the implications of your choices for the various stages of retirement. Working together, we can examine financially realistic options so that you can make the best choices today while preparing for the realities of your “Retirement Paradise”.

Edi Alvarez, CFP®
BS, BEd, MS

www.aikapa.com

Building Wealth: Your Real Estate Asset

Real estate is often purchased as a lifestyle asset (to live in) or as a commercial investment (to generate rental income). It’s also quite common for people to think of their home as both lifestyle and an investment. Certainly, the most common near-term goal for families is home ownership – many think it amounts to a “no brainer” investment (meaning they think their home is a great investment) when it actually costs them much more than they realize.

In our examination of annual return rates on residential and commercial real estate we find that real estate is by no means a no brainer investment. Real estate assets can indeed contribute to wealth creation if the purchaser buys for value, carefully manages maintenance/renovation costs, and the sale is handled with an eye to minimizing taxes on gain from the sale.

Your residence has the potential to be a large part of your wealth, particularly in the Bay Area, but it can also be your largest liability.

Lending institutions have different requirements when lending for an owner occupied residence than for commercial real estate. A primary residence can often be purchased with lower down payments and lower mortgage rates than non-owner occupied real estate. In addition, on the sale of the owner occupied residence the gain will often fall under the capital gain exclusion rules which allow couples to exclude $500K from their income, tax free. This is one of the few opportunities to realize gain completely tax free. Couples who want their residence to be an investment rather than a lifestyle asset should consider selling their home once the gain (market value above basis) in their home approaches the $500K cap gain exclusion. This doesn’t mean you have to buy bigger or smaller or move away from your neighborhood but it does mean that you must sell a property to capture this tax free gain.

If a couple bought a home for $600K, made no renovations and 5-10 years later it is worth $1M they could choose to sell their home and retain the $400K gain tax free. They could repeat this process several times in a couple’s lives and each time a sale is completed the gain can be retained tax free. At the end of 3 rounds (there are residence requirements for each exclusion to be allowed) this couple could have managed to clear (net) well over $1M tax free. Despite this unparalleled opportunity to build tax free wealth, most home owners will buy one home and live in it until retirement. A well purchased property will still yield gain but much of it will be taxed. A home purchased at $600K that sells for $1.8M in retirement will have $500K of the gain tax free but $700K will be taxed at capital gain rates federally and at regular income rates by the state.

A residence can turn into a large liability when the debt burden is too high, when the home renovations do not yield increased value for resale, when the home requires a lot of maintenance, and when the location is no longer appealing (loss of home value appreciation).

Unlike residential home purchases, real estate purchased for investment is first valued on its ability to generate sufficient income and not as much on its appreciation. Before buying an investment property the property is thoroughly analyzed from various perspectives. An APOD (Annual Property Operating Data) is the principal tool to understand the cash flow, return rate, and profitability that can be expected from a prospective property. Once a property passes the APOD test (primarily for risk assessment) then the tax shelter provided by such an investment and the impact of the time value can be used to determine if this is an appropriate investment. Not surprisingly, much of the success of these investments stem from proper usage of tax rules. The value of the annual depreciation (using Schedule E) is well known. An equally important tax tool is a 1031 exchange. In a 1031 exchange the value of the investment property you own can be used to buy a second investment property of the same or greater market value while deferring tax payments on the gain.

In short, both residential and non-owner occupied real estate can be part of your investment plan. Unlike market investments it is more difficult to identify and protect against unexpected events and the illiquid nature of ‘real’ assets. Managing real estate to attain investment value requires thoughtful deliberate actions that may not always be aligned with your personal wishes (far from being a “no brainer”). Investing in real estate can reap big rewards, but entails doing a lot of meticulous research, taking only risks that are necessary, covering for contingencies, working with an experienced team, and then allowing time to do the work.

If you need help deciding whether a real estate purchase fits with your long term goals, give Aikapa a call.

Edi Alvarez, CFP®
BS, BEd, MS

www.aikapa.com

When does it make sense to payoff your mortgage before retirement?

It is relatively easy to make paying off your mortgage a goal, largely because you think it will “feel good” or because you imagine that it will be “liberating” to throw a mortgage burning party. But be careful that you are not mixing a critical financial decision with an emotional reaction. It may seem illogical, but there are many reasons why it is sometimes a better financial decision not to pay off your mortgage. That said, there are also some very good reasons for paying off your mortgage prior to retirement. The balance is often tipped by the amount the client spends on their lifestyle budget, the amount they have saved in available non-home assets, their tax liability, the source of the money used to pay off the mortgage and what they have decided to do for unexpected expenses.

For most of our clients, a mortgage on their principal residence is a low-rate loan that can be used (since 1997) to reduced tax liability (usual tax refunds drop the effective mortgage interest rate by as much as 1-3% for our clients). A mortgage repayment is stretched out (amortized) over a long period of time (15 or 30 years are common) with most of the interest paid during the first 2/3rds of the amortized period. When combined with inflation and a healthy appreciation in real estate valuations, a mortgage provides the buyer an opportunity to expense a very low cost loan while building equity in the home with money that would otherwise (at least in part) go toward rent. A mortgage loan can also be used to maximize and grow savings pre-retirement, obviously freeing clients to use these savings later while in retirement. The argument can also be made that a diversified portfolio started with assets that might have been used to pay off a mortgage (though not guaranteed) can yield a rolling average of 6-9% (with a margin of safety) and provide assets that grow above the mortgage rate and that are available for use outside of the home asset.

Many of our clients will have reduced or no earned corporate income during their retirement years, and plan to rely primarily on portfolio, pension, and social security to support them for 30-40 years. During this time they might have lower taxable income, but that is only true if their lifestyle expenses are low enough (something that is difficult to do in the Bay Area). If not, they might increase their taxable income to support their lifestyle and would benefit from available tax deductions (including mortgage interest). Most of our clients would like to remain in their homes throughout retirement, but this adds a further complication if they do not have enough non-home assets to support their annual budget. We find that home owners are surprised that they can’t tap most of their home equity (at reasonable costs) until they sell their home.

Paying off a mortgage is sometimes worth considering when the client has sufficient assets to support retirement outside of (i.e., above and beyond) their home. As an example, consider someone with a lifestyle expense in retirement of $100K annually (after social security). We can roughly estimate that they will need about $3M in portfolio assets to support their lifestyle and to ensure that they will not be forced to sell their home to support themselves. This $3M is only an estimate since it may not be sufficient if there is no supporting plan to cover unexpected expenses. But assuming there is sufficient savings and buffer, paying off the mortgage becomes a viable option which would reduce lifestyle budget (since there should be no mortgage payments) and tax liability.

Since several clients would like to hear scenarios that highlight the advantages of paying off their mortgage prior to retirement I’ve outlined two below:

1)  When a client plans to live in a mortgaged home until they need care, have low lifestyle expenses AND enough money outside of their home asset to support their lifestyle budget, including maintenance of their home. In this situation (particularly when their tax rate will not benefit greatly from remaining Schedule A deductions) the reduced expense derived from not paying a mortgage provides measurable benefit and real financial freedom. In addition, leaving a home with little or no mortgage is popular with those who wish to provide a legacy. However, clients have to be prepared for a potential increase in taxes in retirement particularly if they need to draw more from their portfolios. There is also the possibility that they may need to sell their home to unlock equity to cover unexpected expenses.

2)  Another scenario that encourages paying off the mortgage pre-retirement applies to clients with a low taxable income, sufficient non-home assets to support their lifestyle expenses and a sudden influx of cash to cover their mortgage (this cash must be more than the amount they can contribute in a tax advantageous manner and not needed to support their lifestyle).

It has been clearly demonstrated that anyone with a fully diversified portfolio benefits most from maximizing tax-advantaged savings prior to retirement. Usage of funds that could be contributed to these types of accounts to pay off a mortgage often results in too much home and not enough cash (house rich, cash poor, as the saying goes). This is particularly the case in areas where home appreciation is high and home equity grows, but can’t be accessed cost effectively. A misconception is that a large mortgage is the best way to reduce taxes because you can minimize them through Schedule A deductions. This is patently not true. The best way to minimize your taxes is through tax-deferred savings, not deductions. Do note that in retirement, neither tax deferral nor the option to obtain a mortgage at a reasonable rate may be available.

Each person needs to consider the best way to manage their mortgage payments in retirement. In this article, I have sought to help you recognize some of the key components that factor into whether it makes sense to pay off your mortgage prior to retirement. It is important that you realize that there is no single answer for everyone and that we must balance your budget, taxable income, amortization period and plan to cover contingencies during retirement before making this decision.

Edi Alvarez, CFP®
BS, BEd, MS

www.aikapa.com

Introduction to the hazards of nontraded REITs as a real estate proxy

Nontraded REIT (real estate investment trusts (REITs))

Nontraded real estate investment trust are having difficulty based primarily on debt load and poor occupancy. A sharp decline in tenant occupancy has hammered this REIT: Tenant occupancy of the REIT’s retail properties was 69% at the end of last year, compared with 92% at the end of 2008. Investors in this Cornerstone Core Properties REIT Inc. were told this month by the company that the shares, once valued at $8, are now worth $2.25 – plunging nearly 72%.

The Cornerstone REIT raised only $172.7 million between 2006 and 2009, making it a relatively small player in a marketplace in which the largest players have raised and deployed billions of dollars. Still, other nontraded REITs or real estate funds sold by REIT sponsors recently have seen dramatic declines in value, eating away at investors’ portfolios and making life difficult for the brokers who sold the products.

Another example at the end of December, when investors in the Behringer Harvard Short-Term Opportunity Fund I LP, which had about $130 million in total assets, saw its valuation drop to 40 cents a share, down drastically from $6.48 a share Dec. 31, 2010. And the Behringer Harvard Opportunity REIT I Inc. saw its estimated value decline to $4.12 a share at the end of last year, from $7.66 a year earlier.

Edi Alvarez, CFP®
BS, BEd, MS

www.aikapa.com

What do you do if your mortgage is denied?

How do you prepare for a mortgage application? What do you do if your mortgage application is denied?

As of August of 2011 lenders rejected about 50% of received applications for mortgage refinance (according to the Mortgage Bankers Association).

We recommend to always know and improve your credit history before you apply for a mortgage or refi. – the key is to improve your credit score.  If the mortgage is still rejected then we look at the lender – was this because they are the wrong type of lender or is there something else going on?

Why might you not qualify for a mortgage?

If your mortgage application is denied, always find out exactly why the lender turned you down.  The law states that you have the right to receive a disclosure letter – but you want more than those general letters – so use the fact that you have the right of disclosure to find out the ‘real’ reason from the front person you worked with.

The best way is to take the disclosure letter to your loan officer and ask for an explanation that makes sense to you, something that you can do something about.  The front person is a great source of answers as to how your loan is perceived at that institution.

What reasons are there for rejecting a mortgage application:

1) Appraisal was too low to back the amount of loan requested – declined due to LTV (loan-to-value). Lowball appraisals kill many purchases and refinances, but if you are certain that it is a low appraisal it is worth reapplying with a different lender.  Try to find a mortgage lender that is local and uses local appraisals to ensure that they know the market value for your home.  One of our clients had an appraisal at $1.2M and yet it came in at $2.1M with a local appraisal – not a small discrepancy between appraisals!

2) Credit history problems should always be resolved before you apply because some credit fixes can take time (6-12 months).  If your credit score is slightly lower there may be quick fixes like paying off credit card balances but even they will take 3 months before they show up in all three credit scores.

Some lenders will do a rapid rescore to get a new score soon after you know that the three credit history companies receive your changes – but this can still take time.

3) A too high Debt-to-income ratio will require that you pay off debt so that your monthly payment obligations are low enough compared to the income you earn.  Although unusual some times we find that clients have not included all of their income. In most cases, we help clients select the best assets that will be sold to pay off debt and lower their monthly debt payments.

Most lenders follow Fannie Mae (45%) and Freddie Mac guidelines some have more stringent requirements (35-38%).  Forty-five percent is a very high DTI and we recommend that despite the allowed DTI you not exceed 35% DTI.  If you are trying to get a mortgage with a DTI above 35% consider carefully if you have the capacity to maintain this debt load if  you have an emergency or unexpected financial shortfall.

4) When selecting your mortgage consider the size of the lending institution.  Often we find that community banks and credit unions have more flexible underwriting standards.  This is particularly important for those who are self-employed.

5) Do not take mortgage rejection personally.  At times it is not ‘the right time for you’ to refinance or purchase a home.  It will be the right time for you if you take the opportunity to manage your finances, pay off debt responsibly and keep adding to your earning history.  Always get your finances in order 6 to 12 months ahead if you are planning to buy a home.  For many, this is their largest debt they will obtain in their lives.

Edi Alvarez, CFP®
BS, BEd, MS

www.aikapa.com

Taxes – Unintended Consequence of Trust on Home Sale

No Capital Gain Exclusion for Residence that is Held in Family Trust

IRS recent ruling shows unintended consequence of trusts used to hold personal assets. This ruling reminds us that tax rules change after a trust can’t be changed, making trusts sometimes inflexible in dealing with changing tax opportunities.

In this case the sale of a home, in which an individual resided for many years but to which title was legally held by a family trust, did not qualify for the Tax Code’s new capital gains exclusion on the sale of the house. The exclusion would for most home owners provide a $250K per person tax free gain.  The IRS concluded that the individual’s inability to control the assets of the trust prevented her from being deemed an owner of the trust for tax purposes.  The intention was that her largest asset held in a revocable trust would give her ultimate tax advantage while protecting her on the downside – the reality is that if her trust converts to a irrevocable trust she is no longer able to sell her property and obtain the $250K tax free gain.

Family trusts are a common estate planning tool and often place assets, such as a home, into a trust. The income beneficiary has rights to any income from the trust and may even have use of the assets but has no control to sell, mortgage or dispose of the assets of the trust. Since only the trust’s designated trustees have the power to make decisions related to the encumbrance or disposal of the trust’s assets then the IRS deems that the beneficiary has preferential estate tax treatment only if they have the ability to continue living in the home.

Planning for the smooth transition of your assets to your family upon death can be complicated and can have serious tax ramifications. ALWAYS review all tax documents with financial advisor, estate planner and tax advisor.

Edi Alvarez, CFP®
BS, BEd, MS

www.aikapa.com

Judge Criticized SEC and Rejects Citi’s Mortgage Settlement

Judge Calls SEC on Allowing Settlements that do NOT address liability

— Content from Bloomberg and SEC websites

At question was Citigroup Inc.’s $285 million settlement with the U.S. Securities and Exchange Commission over mortgage-backed securities.  The federal judge rejected on grounds that he does not have enough facts.

U.S. District Judge Jed Rakoff in Manhattan rejected the settlement – he criticized the SEC’s practice of letting financial institutions such as Citigroup settle without admitting or denying liability.

The SEC claimed that Citigroup misled investors in a $1 billion fund that included assets the bank had projected would lose money. At the same time it was selling the fund to investors, Citigroup took a short position in many of the underlying assets, according to the agency.

Citigroup, the third-biggest U.S. lender, agreed last month to settle a claim by the SEC that it misled investors in a $1 billion CDO linked to subprime residential mortgage securities. Investors lost about $700 million, according to the agency. A trial could establish conclusions that investors could use against Citigroup.

“In any case like this that touches on the transparency of financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interest in knowing the truth,” Rakoff wrote in the opinion. The proposed settlement is “neither fair, nor reasonable, nor adequate, nor in the public interest,” he said.

Danielle Romero-Apsilos, a spokeswoman for Citigroup, declined to comment pending a review of the decision. SEC spokesman John Nester declined to comment immediately on the ruling.

Rakoff today consolidated the case with another SEC suit involving former Citigroup employee Brian Stoker and scheduled the combined case for trial on July 16, 2012.

Citigroup doesn’t want to formally admit liability because of the bad publicity that would follow and because an admission would give a powerful tool to investors suing the bank.

Allowing a bank to pay a fine without admitting liability allows the SEC to avoid the uncertainty of a trial and preserves resources that can be used to pursue other securities law violators.

He rejected the SEC argument that he should defer to the agency’s determination that the settlement is fair, particularly as it asked him to issue an order requiring Citigroup not to violate the securities laws in the future.

Calling Citigroup “a recidivist,” Rakoff said the SEC hasn’t tried to enforce such an order against a financial institution in the past 10 years.

Bloomberg News and SEC response at http://www.sec.gov/news/speech/2011/spch112811rk.htm

Edi Alvarez, CFP®
BS, BEd, MS

www.aikapa.com