WASHINGTON — A fight may be brewing between the Federal Deposit Insurance Corp. and Washington Mutual Inc. over claims by debt holders of the thrift holding company and its two failed subsidiaries.
At issue is $4.4 billion that Wamu deposited in its two thrifts before their Sept. 25 failure and forced sale to JPMorgan Chase & Co.
Wamu, which declared bankruptcy a day later, wants a judge to approve the transfer of the funds from JPMorgan Chase to the bankruptcy estate, which is used to compensate the holding company's creditors.
But the FDIC, in a motion filed Monday in the Delaware district of the U.S. Bankruptcy Court, asked a judge to stay the transfer. The agency said it may conclude that the funds belong in the receivership of the thrifts, not the holding company, and should be used to compensate the subsidiaries' senior unsecured debt holders. The subsidiaries' assets are controlled by the FDIC, which acts as receiver for the two thrifts.
Though the agency is not making a claim to the funds, "all the facts related to" Wamu and its "subsidiaries have not yet been established and, once these facts are determined, the FDIC may have significant claims against the debtors and to their funds," attorneys representing the FDIC wrote in the motion.
The agency was able to avert a potential crisis last month when its deal with JPMorgan Chase for Wamu's banking operations covered all depositors of the two thrifts.
But uncertainty over the holding company's large deposits poses a complication. Bond markets noted that Wamu still held such large funds a day after it declared bankruptcy, and the company's bond holders are interested in recouping a share of those assets.
"This is a big deal for the bond holders" of debt issued by the holding company, said William Longbrake, a former Wamu vice chairman and now a director at First Financial Northwest Inc. in Renton, Wash.
"There was a huge increase in the bond prices once that huge deposit was discovered. It's the largest single asset in the holding company that remains."
But Mr. Longbrake and other observers said the FDIC may be interested in the money for its receivership to satisfy claims of debt holders at the subsidiary level, who were not protected in the JPMorgan Chase deal.
"At the end of the day, this is an argument as to whether the creditors of the bank are entitled to this money, or the creditors of the holding company are entitled to it," said John Douglas, a former FDIC general counsel and now a partner at Paul, Hastings, Janofsky & Walker LLP in Atlanta.
The agency at times includes special restrictions on deposits or claims from affiliates — or "insiders" — at failed institutions, which the FDIC can then claim to offset resolution costs.
"What the FDIC may be saying is: that there is a potential claim that they would like to assert against the holding company on some theory. What the theory is I don't know. It could be an improper dividend, or violation of law, rule or regulation, or something," Mr. Douglas said.
The FDIC said it is in negotiations with Wamu's holding company to attempt to clear up the matter.
The court filing did not argue the FDIC deserved the funds, only asking for the judge to delay the transfer of funds.