Feds say Wilmington Trust officials victims of own arrogance

WILMINGTON, Del. — As plans for strip malls and new residential communities stalled in the wake of the 2008 financial crisis, with weeds instead of houses sprouting in former farm fields, developers in Delaware were having a hard time paying off millions of dollars in construction loans owed to Wilmington Trust.

But their cozy relationships with the bank's loan officials, called "relationship managers," meant the money kept flowing.

"Send $1,000,000 ASAP I have to pay my bar tab," Dover developer Michael Zimmerman wrote to loan officer Joseph Terranova in 2008. Zimmerman got the money.

Terranova is awaiting sentencing after pleading guilty to conspiracy to commit bank fraud. Zimmerman was charged with conspiracy, money laundering and making false statements to a financial institution, but he died before his case went to trial.

On Thursday, following a six-week trial at which Terranova was a star prosecution witness, four former executives for Wilmington Trust, the only financial institution to be criminally charged in connection with the federal bank bailout program, were convicted on fraud and conspiracy charges.

Former bank president Robert Harra Jr., former chief credit officer William North, former chief financial officer David Gibson and former controller Kevyn Rakowski were found guilty on charges of fraud, conspiracy and making false statements to federal regulators. No sentencing date has been set.

Prosecutors alleged that in the wake of the financial crisis, bank executives misled regulators and investors about Wilmington Trust's massive amount of past-due commercial real estate loans before the bank was hastily sold in 2011 while bordering on collapse. Founded by members of the DuPont family in 1903, the bank imploded despite receiving $330 million from the federal government's Troubled Asset Relief Program.

"The defendants were a victim of their own arrogance," said U.S. Attorney David Weiss.

The bank itself reached a $60 million settlement with prosecutors last year, without acknowledging any liability, just as a trial was set to start.

Several of the offenses for which the executives were convicted carry maximum prison terms of 30 years, but it's unclear whether any of the four will spend time behind bars.

"This isn't over yet," said Ken Breen, an attorney for Gibson.

Instead of reporting the true amount of past due loans, bank officials "waived" millions of dollars in matured loans from reporting requirements if the loans were designated as "current for interest" and in the process of being extended, even if the necessary paperwork had not been done. To ensure that loans well past their repayment dates were current for interest and thus purportedly exempt from reporting requirements, the bank lent even more money to struggling developers just so they could make the interest payments on the underlying loans.

Meanwhile, before the 2011 fire sale to M&T Bank, Wilmington Trust raised $287 million in a 2010 stock offering, intended in part to help repay the TARP funds, while concealing the truth about its shaky financial condition from investors, prosecutors said.

"Bankers across the nation told the truth about the financial state of banks they led," said Christy Goldsmith Romero, the TARP's special inspector general. "But these four executives at TARP recipient Wilmington Trust turned the bank's books into a house of cards where past due loans were waived. The house of cards eventually collapsed."

Defense attorneys argued that the waiver practice had been in place for decades and was no secret.

"We have always maintained, and continue to maintain, that it was fundamentally unfair to allow a criminal prosecution for false public reporting, where the prosecution's focus was upon the bank's decades-old process for public reporting," said David Wilks, an attorney for North. "In that context, we have always feared that the case presented a slippery slope and potential for confusion to any jury in assigning criminal culpability."

Prosecutors said Wilmington Trust officials deliberately concealed the quantity of past due loans on their books from October 2009 through November 2010, failing to disclose the waiver practice to regulators, even after federal officials found serious problems during a 2009 examination. The examination resulted in a memorandum of understanding in October 2009 requiring the bank, among other obligations, to submit past-due loan information monthly, instead of quarterly.

In the fourth quarter of 2009, Wilmington Trust officials reported only $10.8 million in commercial loans as 90 days or more past due, concealing more than $316 million in past due loans subject to the waiver practice, according to prosecutors.

Two other former Wilmington Trust officers, Delaware Market Officer Brian Bailey and loan officer Peter Hayes, also have pleaded guilty and are awaiting sentencing.

Two other co-conspirators, including a business partner of Zimmerman, already have been sentenced.