By Pam Martens and Russ Martens: June 2, 2023 ~

Last week, on Tuesday, May 23, the Federal Reserve and California Department of Financial Protection and Innovation (the state banking regulator) hit the collapsed federally-insured bank, Silvergate Bank, and its parent, Silvergate Capital Corporation, with an enforcement action called a “Cease and Desist Consent Order.” The action was not announced to the public until yesterday.

A Consent Order is meant to function along the lines of a legal settlement, with the bank agreeing to the detailed terms of the Consent Order and waiving its right to judicial review. The individual signing the Consent Order on behalf of the bank was its controversial CEO, Alan Lane, who had allowed his federally-insured bank to get in bed with Sam Bankman-Fried’s house of frauds, including the FTX crypto exchange and Bankman-Fried’s hedge fund, Alameda Research. Lane also had allowed his deposit base to become heavily involved with other crypto-related companies.

When details of the Bankman-Fried relationship with Silvergate Bank came out in the news, a run on deposits commenced. On January 5, Silvergate reported in a filing with the Securities and Exchange Commission (SEC) that its “total deposits from digital asset customers declined to $3.8 billion” as of December 31, 2022 (down from the previously reported $11.9 billion on September 30, 2022.) That’s a 68 percent drop in deposits in one quarter.

The primary regulator of Silvergate Bank was, embarrassingly, the Federal Reserve, which had farmed out the examinations of the bank to the San Francisco Fed. The San Francisco Fed was also the primary supervisor for Silicon Valley Bank, which failed on March 10 and was put into FDIC receivership. (See our report: Silicon Valley Bank Was a Wall Street IPO Pipeline in Drag as a Federally-Insured Bank; FHLB of San Francisco Was Quietly Bailing It Out.)

Silvergate announced on March 8 that it was going to voluntarily wind down and liquidate itself. That announcement included this statement on its deposits: “The Bank’s wind down and liquidation plan includes full repayment of all deposits.” (We thought to ourselves at the time, do federal bank regulators really want to trust a bank with this dubious history to make its depositors whole?)

By March 29, Wall Street On Parade had serious questions about how Silvergate’s wind down and liquidation were proceeding. We wrote:

Silvergate Capital, the parent of Silvergate Bank – which has lost 90 percent of its share price year-to-date and announced it is winding down and liquidating — is still running a website that is putting a rosy glow on the bank’s operations. For example, under the heading of “Banking for the future,” the Silvergate website shares this:

“Silvergate Bank has served entrepreneurs in unique and niche industries for over 20 years. Recognizing digital currency’s potential during the sector’s infancy, we built strong relationships with pioneers who were turned away by traditional banks. This solidified our position as industry-leading partners and innovators which remains true today.”

On the date that we accessed the above statement on the public website of Silvergate Bank, it was a collapsing institution, its depositors in the digital currency field had mostly fled, and the bank was under an investigation by the U.S. Department of Justice. Adding to its troubles, Silvergate’s March 1 filing with the Securities and Exchange Commission indicated that record-keeping at the bank was in such shambles that it couldn’t even file its annual report for the full year of 2022 (Form 10-K) on time and it required more time to “record journal entries.”

Silvergate also noted in the SEC filing that “its independent registered public accounting firm” will require more time “to complete certain audit procedures, including review of adjustments not yet recorded and the evaluation of the effectiveness of the Company’s internal control over financial reporting.”

Last week, on May 22, Silvergate made another filing with the SEC, indicating that it has fired its independent public accounting firm, Crowe LLP, and won’t be filing any annual report for the year ended December 31, 2022 – ever. (Seriously, is this any way to garner public confidence in the U.S. banking system?)

But the most troubling SEC filing by Silvergate arrived on May 11, which likely freaked out the Fed and the Federal Deposit Insurance Corporation (FDIC) that insures deposits in U.S. banks. The filing included this statement, raising doubts about Silvergate Bank’s ability to make its depositors whole:

“As of May 9, 2023, the Company had cash and cash equivalents in excess of the amounts required to fully repay all remaining deposit liabilities of the Bank. However, the Company has potential contingent liabilities related to, among other things, the regulatory and other inquiries and investigations that are pending with respect to the Company and the Bank, the various litigation with respect to the Company (including private litigation) and other expenses to be incurred in connection with operating the Bank through the Bank Liquidation (including expenses necessary for the operation of the Company and/or the Bank, employee benefits and compensation and fees and expenses of professionals retained by the Company in connection with the Bank Liquidation) and is unable to quantify such amounts at this time.”

You are likely thinking, who (in their right mind) would still be maintaining deposits in this bank. It turns out that Silvergate was involved with brokered CDs and there may be folks out there who bought a federally-insured Certificate of Deposit from their brokerage firm and haven’t yet figured out that their CD is with this deeply-troubled, liquidating bank.

A notice on Silvergate’s website yesterday has this Q&A:

“Who do I contact if I have questions about my Certificate of Deposit (Brokered CD)?”

“Please contact your Broker. Brokered CDs will remain active until the maturity date, at which time they will be remitted according to the agreement.”

Silvergate Bank is being sued by multiple litigants over its involvement with Sam Bankman-Fried’s companies. There are going to be heavy litigation expenses. The most recent lawsuit comes from the Texas-based Word of God church.

According to the lawsuit, Word of God church lost $25 million of the deposits it placed with Bankman-Fried’s FTX, which it says were mishandled by Silvergate Bank. The lawsuit shares this:

“Silvergate Bank and Silvergate Capital Corporation (jointly, ‘Silvergate’), and their CEO, Alan Lane, are being sued for their role in the fraudulent scheme. Silvergate maintained both FTX and Alameda’s bank accounts and thus, had unparalleled knowledge of the rampant fraud and corporate malfeasance. Rather than flag, report, or investigate the suspicious activity, as required by federal banking regulations, Silvergate substantially assisted FTX by allowing FTX’s continued use of its services and processing new customer deposits and transfers. Silvergate further bolstered the legitimacy of FTX by consistently touting its enhanced due diligence processes, designed to weed out customers such as FTX engaging in fraud or other financial crimes…

“Plaintiff was one of millions of investors who fell victim to this scheme, losing $25,000,000 that it had deposited in an FTX bank account maintained by Silvergate just two months before the fraud was uncovered by the public….”

Given this background, it becomes clearer why the Fed felt it needed to get a Cease and Desist Consent Order signed by the CEO of Silvergate Bank. Among other things, the order requires the bank to:

Within 10 days, “submit a plan acceptable to the Supervisors that provides for the implementation of the Bank’s voluntary decision to self-liquidate and the orderly wind down of its operations”;

“The Self-Liquidation Plan shall be designed to protect the Bank’s depositors and the Deposit Insurance Fund to the fullest extent possible”;

“monetize and recover on its loans, securities, and other assets in a manner that prioritizes and protects depositors’ funds”;

“ensure that the books and records of the Bank are adequately maintained” – (that horse has, apparently, already left the barn);

“Effective immediately, the Company and the Bank shall preserve their respective cash assets and shall not dissipate those assets, including with respect to executive compensation and severance payments, without prior written approval from the Supervisors….”

On August 1 of last year, we penned this headline: Brace Yourself for Federally-Insured Bank Failures Caused by Crypto. We specifically discussed the problems at Silvergate Bank and Signature Bank. Silvergate Bank announced on March 8 its intention to liquidate; Signature Bank failed on March 12 and was put into FDIC receivership.

If we saw the dangers of letting crypto get anywhere near a federally-insured bank in August, why did federal banking regulators continue to allow these toxic combinations?