BankAtlantic Charges Won't Stick, and the SEC Knows It

NEW YORK ( TheStreet) -- The Securities and Exchange Commission's charges that BankAtlantic Bancorp ( BBX) and its CEO Alan B. Levan made misleading statements and committed accounting fraud are unlikely to stick, and investors know it.

Shares of BankAtlantic Bancorp were up 3% in late morning trading ,to $3.11, after the SEC announced its lawsuit against the company and Levan after Wednesday's market close.

Two class-action lawsuits making similar charges against the company and its executives were thrown out last year.

BankAtlantic Bancorp has a deal in place to sell its main thrift subsidiary to BB&T ( BBT) for a premium of $301 million.

The SEC alleged that the company and Levan "made misleading statements in public filings and earnings calls in order to hide the deteriorating state of a large portion of the bank's commercial residential real estate land acquisition and development portfolio in 2007," and "then committed accounting fraud when they schemed to minimize BankAtlantic's losses on their books by improperly recording loans they were trying to sell from this portfolio in late 2007."

The regulator's charges came more than three years after the SEC subpoenaed "a broad range of documents relating to, among other matters, recent and pending litigation to which the Company is or was a party, certain of the Company's non-performing, non-accrual and charged-off loans, the Company's cost saving measures, BankAtlantic Bancorp's recently formed asset workout subsidiary and any purchases or sale of the Company's common stock by officers or directors of the Company," according to BankAtlantic Bancorp's third-quarter 2008 10-Q filing.

Levan said in a statement that "it is first important to note that this action is directed towards the holding company, BankAtlantic Bancorp, not its banking subsidiary, BankAtlantic, and in no way impacts BankAtlantic or its operations."

This implies that the BB&T deal will be unaffected.

Levan also said that BankAtlanic Bancorp "publicly disclosed problems we were seeing in financial markets a good year before the government publicly acknowledged the problems with the economy," and that the company "worked tirelessly to manage our criticized assets and our business and our activities have been appropriately and correctly reported."

The CEO went on by trashing the SEC, saying that the regulator's "credibility as a neutral enforcer of securities laws will be tarnished as the case is unsupportable and the use of public resources has been squandered."

BankAtlantic Bancorp has been rather successful in fighting two related lawsuits:

In November of 2010, a jury awarded BankAtlantic Bancorp shareholders who held the stock from April 26, 2007 to Oct. 26, 2007 and "retained those shares until the end of the period" $2.41 a share, in a verdict on a class action lawsuit alleging that the company and executives "knowingly and/or recklessly made misrepresentations of material fact regarding BankAtlantic and specifically BankAtlantic's loan portfolio and allowance for loan losses," according to the company's third-quarter 10-Q filing.

According to the filing, "on April 25, 2011, the Court granted defendants' post-trial motion for judgment as a matter of law and vacated the jury verdict, resulting in a judgment in favor of all defendants on all claims," and the plaintiffs were appealing that decision.

A lawsuit filed in July of 2008 accusing the company and its executives "did not fully disclose the risks associated with the Commercial Real Estate Loan Portfolio," was dismissed in July 2011.

In its complaint on Wednesday, the regulator said that "BankAtlantic and Levan knew that a large portion of the loan portfolio -- which consisted primarily of loans on large tracts of lands intended for development into single family housing and condominiums -- was deteriorating in early 2007 because many of the loans had required extensions due to borrowers' inability to meet their loan obligations," and that "some loans were kept current only by extending the loan terms or replenishing the interest reserves from an increase in the loan principal."

Interest reserves are a very commonly feature in commercial real estate loan deals, reducing developers' "skin in the game," by having the lender set aside money to cover the borrower's required interest payments during the development of construction period. The lender, in effect, books interest as revenue, even though the money being paid as interest was actually lent to the borrower.

While interest reserves are a questionable lending practice, the fact is, they have been allowed by bank regulators for years.

SEC Miami regional office director Eric Bustillo said that "BankAtlantic and Levan publicly minimized the risks in the bank's commercial residential loan portfolio when in reality, they had significant concerns about the borrowers' ability to pay."

The SEC said that in its filings during the first half of 2007, BankAtlantic Bancorp "ade only generic warnings of what may occur in the future if Florida's real estate downturn continued," and that "during earnings calls in the same time period, Levan made further misleading statements to investors about the portfolio."

When "BankAtlantic finally acknowledged the problems in the third quarter of 2007 by announcing a large unexpected loss," the "investing public did not expect a loss of that magnitude, and BankAtlantic's share price immediately dropped 37 percent," the SEC said.

In its complaint, the SEC seeks financial penalties against the company and Levan, and "also seeks an officer and director bar against Levan."

Following the long delay since the regulator's October 2008 subpoena, it seems doubtful that the SEC's case will have any legs, since the other to civil cases have been tossed.

Interested in more on BankAtlantic Bancorp? See TheStreet Ratings' report card for this stock.

-- Written by Philip van Doorn in Jupiter, Fla.

To contact the writer, click here: Philip van Doorn.

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Philip W. van Doorn is a member of TheStreet's banking and finance team, commenting on industry and regulatory trends. He previously served as the senior analyst for Ratings, responsible for assigning financial strength ratings to banks and savings and loan institutions. Mr. van Doorn previously served as a loan operations officer at Riverside National Bank in Fort Pierce, Fla., and as a credit analyst at the Federal Home Loan Bank of New York, where he monitored banks in New York, New Jersey and Puerto Rico. Mr. van Doorn has additional experience in the mutual fund and computer software industries. He holds a bachelor of science in business administration from Long Island University.

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