Chatter increased over the weekend on a long-awaited foreclosure fraud deal between top banks and state and federal regulators, led by the Justice Department and HUD. Yves Smith provides additional details today, including a Constitutional issue over servicers providing modifications on investor-owned mortgages without their consent, a violation of the takings clause of the 5th Amendment. A meeting today in Chicago with representatives of Democratic AGs could be determinative, or a tactic to fake progress without the holdouts – New York, Delaware, California, Massachusetts, Nevada – agreeing to terms. Whatever the case, there is no doubt that we are closer to a settlement than ever before.
Late on Friday I spoke with Simon Johnson, the former chief economist of the IMF and a professor at MIT, who also writes the Baseline Scenario blog with James Kwak. Johnson has been skeptical of the foreclosure fraud settlement. A lightly edited transcript follows:
DD: So we’ve heard about an imminent settlement for a while now. Why do you think we’re in such a crucial stage now?
SJ: I’ve been writing about this for about four or five months. But I do get the sense that the Administration wants to bring closure to this issue now. There’s a chance we’ll see a mention of it in the State of the Union Address, I understand. And my fear is that the Administration wants to go small. The key to this is exempting the banks from legal action. And the dollar amounts thrown around, $20 billion, $25 billion, are too small to give up that level of release from liability.
DD: Talk about that, because it’s hard to explain to someone that $20 billion represents a pittance sum, even though in the grand scheme of the housing market, it truly is.
SJ: Well, just compare it to profits. The banks made hundreds of billions of dollars during the boom phase by ripping people off. Any settlement of this type, you pay over time, over years. The tobacco settlement was structured this way, on an ongoing basis. So you have hundreds of billions made initially, and the $20 billion spread over time coming out of continued profits. I’m not suggesting that the settlement take a certain percentage of profits from the banks. I’m suggesting that you need to have an investigation of the damage caused, and why go small when you have such a strong case for fraud?
DD: Sen. Sherrod Brown made a powerful argument the other day, that much of the settlement would be paid out with other people’s money, because investors in mortgage-backed securities would see their loans modified down, without their consent. These include investors in pension funds and other MBS holders. How do you look at that argument?
SJ: Any time you make a company pay a fine, you’re really hitting the shareholders. You’re certainly not taking the money from the individuals who walked away with cash. There’s no easy mechanism here. This is the trouble we always have with big cases like this.
DD: What about the fact that in 2008, state AGs reached a settlement on Countrywide loans over origination fraud, where Bank of America, its parent, promised to make loan modifications, and as Nevada AG Catherine Cortez Masto put it in an August 2011 lawsuit, BofA almost immediately violated the terms of the settlement, failing to do the mods and continuing to harm borrowers?
SJ: I totally agree. The track record and culture at the large banks is not one of trying to help the customer. In fact, the track record is more along the lines of being abusive. These banks have been damaging to many Americans. We need the people in charge to take a more skeptical view of what the banks will actually deliver, not just what they promise.
DD: Would CFPB be able to play a role in the enforcement, even though this is a state action at the root?
SJ: They can play a coordinating role. But it’s really up to the AGs in the states. Anyway, CFPB has a very defined agenda, and I’d prefer to see them stay on that path. And this isn’t really an issue of consumer protection, but an issue of law enforcement. That’s who should take the lead.
DD: I am reminded in seeing this settlement of your Atlantic article The Quiet Coup, where you talked about a financial oligarchy ruling in America. Does this really reinforce that?
SJ: You know, when I wrote that a couple years ago, people were skeptical of my characterization. Now I get more people coming up to me saying, “You know you had a point.” I mean, just look at how the new White House Chief of Staff is a former Citigroup executive, and he’s replacing a fomer JPMorgan Chase executive, and he replaced a former Fannie Mae executive. The dominance and power of the financial sector is just out of control. They are treated like no other sector in the country. And it has to stop.
I feel like the Administration is arrogant on these issues. We’ll see if it catches up with them in the election. A lot of these swing states have major housing issues. I think the Obama campaign should think about that.




27 Comments

Support this site!
Subscribe to the newsletter
Advertise on Firedoglake
Send
us your tips
Make us your homepage
About FDL News Desk
Excellent interview, David. Many thanks.
“I feel like the Administration is arrogant on these issues. We’ll see if it catches up with them in the election. A lot of these swing states have major housing issues…”
The only thing voters can do to Obama is throw him out and put a GOP prez in his place, which of course wouldn’t solve anything. This is why US elections are a joke. They’re just kabuki for the rabble. The elites sit back and laugh knowing they’ll win either way.
I still hope and pray that the “law enforcement” portion of this happens. It is so invalidating to hear Obama say that was just ethics violations. It isn’t not on the macro or micro scale. And it will never stop if the word doesn’t get out about these illegal behaviors.
Yes, this is a law enforcement issue, which is backed up behind the inoperative/criminal conspiracy DOJ. (take your pick, inop is being generous on my part)
We are no longer a nation of laws.
Sigh.
There is no law. None. NONE.
The multi-front coup d’état by the “finance”/war complex is complete and they will do what they will and nothing will stop them.
But who knows, something always does stop hubris. Funny how the ancient Greeks taught us this – and how gripping now to see their descendants fighting the latest version of hubristic terror –
gah, what sad and pointless human tides
I don’t see why Obama wouldn’t let the banks off the hook when he let the telecoms off before he was even elected.
Saying he’s “putting this issue behind him” is the equivalent of Pilate washing his hands while the rest of US hang bleeding.
Unless, of course, he’s going to put a moratorium on foreclosures? No?
And let’s not forget this:
Obama to Use Pension Funds of Ordinary Americans to Pay for Bank Mortgage “Settlement”
I loved Lambert’s headline on this topic at correntewire.com:
“Ds collaborate with banksters to fund fake mortgage settlement by looting your pension so The Droner looks good at the SOTU”
Obama et al believe they can bamboozle enough of the voters long enough to get reelected. And then they’ll just go back to fellating the Banksters and other Big Corporations, Big Money. They do have to prepare for their post-administration lives of, they hope, megawealth.
Don’t forget Cynthia Kouril’s post on Friday, in which she mentioned Attorney General Eric Holder’s conflict of interest that might explain why he has zero interest in investigating the banks for the most massive criminal fraud ever known to have been committed.
His former law firm, Covington & Burling, for whom he worked at the time, issued a legal opinion letter to the banks advising them that it was lawful to use MERS to keep track of mortgages, instead of recording mortgages and deeds at the county courthouses where the real estate properties are located.
She said that not even a 1L (i.e., first year law student) would be so ignorant of the law as to render such an opinion. I agree.
Holder has a strong interest in preserving Covington & Burling’s reputation and protecting its principals. It is the largest and most powerful law firm inside the Beltway and I imagine that the last thing he wants to do as AG is to investigate his old firm and friends for signing off on the biggest fraud ever perpetrated. For all we know, he might have signed off on the letter, or maybe Lanny Breuer, the Chief of the Criminal Division at DOJ, who also worked at Covington & Burling at that time, may have signed off on it. Hell, maybe both of them did.
Here’s the link to her article:
http://my.firedoglake.com/cindykouril/2012/01/20/holder-breuer-mers-bombshell/
I don’t think that anyone that read here regularly was skeptical.
This is the optic they were hoping will work for the banks.
What about going around the bank owned government with some kind of class-action suit?
“The rule of law is dependent upon a government that is willing to abide by the law.”
Tim DeChristopher
On July 26, 2011
Are the AG’s that are holding out just another way to delay the process and have the statue of limitations for criminal charges run out? In other words, have they covered all of the bases to cover the butts of the banksters?
Thank you for linking to the Yves Smith article, David. Everyone who is thinking of listening to Obama’s State of the Union address should read this first. And I am thinking, what is Obama’s mission (should he accept it and he did) for his one term of office according to the PTB? Why, it is to make all the illegal things that Bush did in his two terms legal. And then some.
As Yves says:
“The president seems to labor under the misapprehension that crimes by members of the elite must be swept under the rug because prosecuting them would destablize the system.”
Now, this is not arrogance, though the terms and conditions are most certainly outrageous. This is doing what the masters of the universe tell you to do. And here, Republicans indeed have the opportunity to jump on the falsefront bandwagon and pretend to be on our side, though you can bet that just as Obama wasn’t they won’t be either.
Whose side are all of them on? I think we get it.
The one I have on my fridge says:
“Without the rule of law, the financial sector is no use to anyone except those who own it and the politicians they own.” – James K. Galbraith
I would add that way back during the Bush years, Talkingpointsmemo had a huge effort to examine Cheney’s (and probably Rove’s) replacement across the board of Justice Department attorneys. It was TPM’s most FDL-like moment. Obama never has reversed that.
Excellent interview.
Mortgage data, no surprise, are not so easy to find. The Fed’s Flow of Funds tables, released quarterly, are about as good as it gets for the nation as a whole.
Looking at table D.3 Credit Market Debt Outstanding by Sector in the pamphlet “Debt Growth, Borrowing, and Debt Outstanding Tables” I get around $10Trillion total mortgage debt outstanding for each of the five years from 2005 to 2010.
The number has been falling since 2007, which means that there has been less new mortgage debt created than has been retired one way or another. So, subtracting those year-over-year numbers will not tell how much new debt is loaned out each year, but it will help to scale that $20Billion by another metric in addition to Simon’s suggestion of profits.
Furthermore it looks to me as though new borrowings are reported in the previous table in the pamphlet, D.2 Credit Market Borrowing by Sector. There we see that a bubbling mortgage lending industry like that of 2000–2007 is capable of pouring out up to $three-quarterTrillion and more of new borrowing per year.
A lot of the people on the new end of that data series have objections.
There is a class action suit in progress in California.
There was also an essay that had the lead at Politico yeaterday.
http://www.politico.com/news/stories/0112/71788.html
To me, this only emphasizes the continued exasperation those of us who voted for this administration, and the flat out defiance they have for those who have believed, rightly that there was a necessity for accountability.
The standby of the president for a ‘robust’ financial sector, and a justice department that has colluded to maintain an obstruction.
How they can maintain that ‘now laws were broken’ is a perversion.
They’re starting to tout this Piece-of-Shit deal in the local papers. I live in Minnesota and this article appeared in today’s StarTribune:
http://www.startribune.com/housing/137892583.html
@MATT 4 WAtt Yes, this is a law enforcement issue, which is backed up behind the inoperative/criminal conspiracy DOJ. (take your pick, inop is being generous on my part)
@SJ: Any time you make a company pay a fine, you’re really hitting the shareholders. You’re certainly not taking the money from the individuals who walked away with cash. There’s no easy mechanism here. This is the trouble we always have with big cases like this.
Okay, NY and DE initially balked at the national settlement, …..DE Biden has filed suit in DE Chancery Court against MERS….Delaware is Corporate Headquarters of the world 900,000 corps. Is Biden attempting to compensate individual homeowners, or protect Corporations…..what is his motivation in not settling(stalling for statute of limitations?), finding Banks criminally liable and thus allowing civil suits, or spreading the penalities over to the shareholders….am I correct that NONE of these AGs are going after CEOs of the the mortgage and banking industry??? Please explain this to me , especially relative to Delaware AG Beau Biden whose father helped to bring the credit card industry into DE and the same industry then hired Beau in a mega 6 figure job right out of law school….please friend me to answer if comment period ends….greatly appreciated!!!
thx for the reference to SJ article – it was GREAT, as is almost everything he does.
mary,
I too would be interested in the answer to this question…
No, the AGs who are holding out are mostly the ones looking for a more substantial deal with real penalties and no ‘get-out-of-jail-free’ card.
The hold-outs are the good guys.
OTOH, the AGs following Iowa’s AG, Tom Miller, are the ones who’ve been bought off to give the banks less than a slap on the wrist, and immunity from future prosecution.
This settlement is intended to let the big banks off the hook, don’t let anybody tell you different.
Yes, please, everybody read that linked post. It’s a mind-blower, and explains so much of what we’ve been seeing and puzzling over.