The “new” details of the proposed foreclosure fraud settlement, now alleged to be “just around the corner” for the ninth straight month, have mostly been revealed before by Shahien Nasiripour of the Financial Times or others. Under the proposed agreement, between $19 and $25 billion (depending on California’s inclusion, which is unlikely, so I’d expect the smaller number) would be distributed from the banks, in three separate areas:
1) cash payments to individuals, states and the federal government, totaling around $5 billion. This would include the “sorry we foreclosed on your home without the proper information, here’s a check” payment in the amount of around $1,500 to wrongfully foreclosed borrowers. The rest would go to state and federal foreclosure mitigation programs, like legal aid services, housing counseling and mandatory mediation.
2) refinancing of underwater mortgages. Somehow this is seen as a penalty for the banks, to force them to refinance people deeply underwater. Keep in mind that many of these borrowers, without the ability to access low mortgage rates like their counterparts, would fall into default, at which point the bank would make much less on the mortgage over the long term. Refinancing is not a penalty in any respect. What’s more, only those who have been current for several months would be eligible. What’s MORE, there’s already an existing program extending refis to underwater borrowers through Fannie and Freddie; this just adds on to that program for bank-owned underwater homes, a very small subset of the population.
3) Principal reduction. This is where most of the money would get targeted, but again we’re talking credits – banks would do loan modifications reducing principal and get dollar-for-dollar credits toward the target. The numbers here are still not really enough to deal with the morass of underwater and troubled loans in America, even if you think the book value of the write-down would be higher than the scheduled amount.
And then there’s this:
In return for the $5 billion in cash and the $20 billion in credits, the banks would be released from claims against them for servicing and foreclosure abuses that might be brought against them by the states and the federal government. The states also release the banks from origination claims, that is, claims they might face for all the fraud and duplicity they engaged in when they made bad loans at the height of the housing craze. The banks do not get immunity or a release of for individual claims by homeowners–just a release from past practices State- and Federal-initiated claims. They also don’t get released for securitization abuses of the kind Citibank and Goldman Sachs have been investigated for.
The releases, then, are pretty comprehensive, on servicing, foreclosure and origination. Homeowners can sue, but the banks know well that they can outgun individuals in court much more easily than an entire state. Securitization abuses would still be fair game for the states, and this is seemingly being done to entice AGs like Eric Schneiderman into the fold, though that seems unlikely. Still, even with securitization fraud available, you’re talking about the AGs only able after the settlement to go to bat for rich investors, not individual homeowners fleeced by banks. And despite no meaningful investigations, all this would be given away for a relative pittance.
The government could point to the Office of the Comptroller of the Currency foreclosure reviews as another avenue for relief for homeowners, but these are almost certainly complete shams, designed to get the banks off the hook for systematic abuses. The banks got to choose the “independent” reviewers themselves, and they pay their salaries. And these reviewers are completely conflicted:
Michael Olenick, a specialist in mortgage research, said he spotted a conflicted consultant after one hour of digging. Allonhill, a smallish firm appointed by Aurora Bank, a mortgage servicer, is headed by Sue Allon, whose previous small firm acted as credit risk manager in a 2003 mortgage pool for which Aurora oversaw the loans’ servicing. The prospectus on that deal noted that Murrayhill, Ms. Allon’s former firm, would “monitor and advise the servicers with respect to default management of the mortgage loans.” It also said that Murrayhill would make recommendations to the servicers regarding delinquent loans.
Now, under the comptroller office’s program, Ms. Allon’s firm may be analyzing the treatment of borrowers on whose loans it acted as credit risk manager. “This conflict is so deep and so obvious, how could anybody have missed it?” Mr. Olenick asked.
Incidentally, the years under review by the “independent” consultants are 2008 and 2009, well after the bubble years ended. And borrowers would lose the ability to challenge their loans under the OCC reviews, leaving them unable to collect down the road. The bank can still take an individual’s home, but the individual cannot sue on the origination fraud or break in the chain of title.
To be clear, I still don’t believe there’s any imminent settlement coming. Too many states would exempt themselves from this deal for the banks to find it worthwhile. We’ve crossed too many “imminent” deadlines before.
But state and federal prosecutors have multiple avenues of inquiry to prosecute banks for their wide range of overlapping fraud, any of which would force much larger remuneration than what can be assumed by the AG settlement or the OCC review. But far too few law enforcement officials understand the nature of their job as being to prosecute wrongdoing, rather than facilitate it.





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“Woefully Inadequate”–for the 99%. “Just right” for the 1%.
This is a nail-biter, isn’t it? Thanks so much, again, for keeping us up-to-date on this blatant rip-off, David.
One more reminder of how thoroughly Obama/Holder are in thrall to the big banks.
Mass private lawsuits on the broken chain of title, giving thousands, even millions clear title to their homes, look more and more like the best bet. Is there an NGO that can facilitate that? Of course,it would break the banks. Good thing, too. Sort of a private anti-trust action.
Wow, what a great deal! Fifteen hundred whole dollars for stealing your home! And then the bank gets to keep the home, right? Those former homeowners/homeless people must be so grateful that the state AGs are looking out for them like that!
Saaay! Where can I pick up one of those fifteen hundred dollar homes?
Kinda stinks at the abused homeowner level. There should be a no go on this plan, which would geld any AG from further action. A resident of a state would not be able to ask for help through his/her AG when an abuse was thought to have had occurred. That would set a precedent for a lot more than the mortgage mess just now.
I wonder what other roads there may be for such homeowners to parse down to a more local level, absent a watchful state AG. There would be protective barriers for homeowners varying from state to state, county to county, etc. In theory I wonder if it could filter down even to occupancy permits at the local level.
The AG may have given up some leverage directly from the state. However, would that preclude, say, a county registrar from placing an annotation on a property record indicating the foreclosing lienholder had been awarded standing outside the officially recognized regime or that there was no supporting documentation recognized by the county, etc.?
Then a savvy buyer would take note, consider it a potentially toxic cloud, and exercise caution. Subsequent lenders might be leery. The foreclosing institution might be pressured and have a hard time unloading that property for which it had paid chump change to the state in order to skate.
I’m just ruminating here. Maybe there’s nothing to it. Yet recently I did notice some media interest in activist registrars who were genuinely interested in the integrity of their positions and their reason for being. Maybe we should cherish their instincts right away, and hope some of them will go out on a limb.
Here’s what I think happens:
This deal finally goes through.
Obama/Holder then go into federal court and argue that this deal, having a federal component, supercedes the authority of any states (NY, MA. NV, etc.) that didn’t agree to it.
Federal courts agree.
Schniederman, Matsos, Coakley, etc., also win because they can argue they tried to do the right thing, but at the same time, they didn’t actually have to prosecute anyone and thus are free to take bankster campaign contributions in the future.
A win-win for everyone except homeowners. And the (quaint) concept of justice.
Unfortunately, we know that homeowners are going to lose in the long run and the short run. Any payment will be inadequate and those who had already paid off their mortgages and had clear title but were foreclosed on probably will not get their homes back. The banks, on the other hand, will win all the way around.
When those wrongfully foreclosed are given somewhere about $250,000 each, and more if they had bought a home of higher value, then the talked can begin in earnest.
Beachpopulist has it right.
Very depressing, but probably accurate. This is a situation that calls for a million Zorros.
Dream on!
This sounds a lot like the same tactic Obama is using to skirt his lackluster effort to create jobs. He squandered his first 2 years, with a majority in the House and Senate (even with reconciliation), and now he’s acting as if his hands are tied and the Republicans are completely at fault.
Can we afford another 4 years with a conservative or conservaDem in the Oval Office?
Occupy D.C.
Besides the banksters, who is pushing for this settlement?
Let me guess … the Big O. It’s payback for his generous campaign support from Wall Street. I can’t think of the term for that right now.
Meanwhile, if anyone wonders whether Dems will continue caving in the year ahead, here is a good article that demonstrates why it’s likely:
http://www.alternet.org/story/153559/the_gop%27s_long%2C_sordid_history_of_shameless_hostage-taking/