The foreclosure fraud settlement has been filed in federal court in Washington. The Justice Department has provided the relevant documents, over a month after the settlement was announced. So now we can finally begin to assess the settlement and what it will mean for housing policy.
It’s going to take a while. The documents are long and the rules dense. I don’t expect to get a handle on it for the next several days. But we can make some quick points.
First of all, as we’ve been documenting, these are larger releases from liability than at first contemplated. It’s not just a “robo-signing” settlement. Among the elements released in the settlement include foreclosure fraud, numerous instances of varied servicer abuse, violations of the Servicemembers Civil Relief Act, whistleblower claims of fraud in HAMP, origination errors, false documentation in court, violations of the False Claims Act, appraisal fraud at Countrywide, fair lending violations, underwriting inaccuracies on FHA loans, and more. Here’s just one list from the complaint of servicing abuses found by the government:
a. failing to timely and accurately apply payments made by borrowers and failing to maintain accurate account statements;
b. charging excessive or improper fees for default-related services;
c. failing to properly oversee third party vendors involved in servicing activities on behalf of the Banks;
d. imposing force-placed insurance without properly notifying the borrowers and when borrowers already had adequate coverage;
e. providing borrowers false or misleading information in response to borrower complaints; and
f. failing to maintain appropriate staffing, training, and quality control systems.
This is one portion of what is being released in the settlement. And here’s another list on loan modification noncompliance (which in the case of FHA and other loans, is mandatory):
a. failing to perform proper loan modification underwriting;
b. failing to gather or losing loan modification application documentation and other paper work;
c. failing to provide adequate staffing to implement programs;
d. failing to adequately train staff responsible for loan modifications;
e. failing to establish adequate processes for loan modifications;
f. allowing borrowers to stay in trial modifications for excessive time periods;
g. wrongfully denying modification applications;
h. failing to respond to borrower inquiries;
i. providing false or misleading information to consumers while referring loans to foreclosure during the loan modification application process;
j. providing false or misleading information to consumers while initiating foreclosures where the borrower was in good faith actively pursuing a loss mitigation alternative offered by the Bank;
k. providing false or misleading information to consumers while scheduling and conducting foreclosure sales during the loan application process and during trial loan modification periods;
l. misrepresenting to borrowers that loss mitigation programs would provide relief from the initiation of foreclosure or further foreclosure efforts;
m. failing to provide accurate and timely information to borrowers who are in need of, and eligible for, loss mitigation services, including loan modifications;
n. falsely advising borrowers that they must be at least 60 days delinquent in loan payments to qualify for a loan modification;
o. miscalculating borrowers’ eligibility for loan modification programs and improperly denying loan modification relief to eligible borrowers;
p. misleading borrowers by representing that loan modification applications will be handled promptly when Banks regularly fail to act on loan modifications in a timely manner;
q. failing to properly process borrowers’ applications for loan modifications, including failing to account for documents submitted by borrowers and failing to respond to borrowers’ reasonable requests for information and assistance;
r. failing to assign adequate staff resources with sufficient training to handle the demand from distressed borrowers; and
s. misleading borrowers by providing false or deceptive reasons for denial of loan modifications.
You might ask why any industry with this kind of performance record would be allowed to stay in business. It would be a good question.
The broad outlines of the settlement are familiar. It will cost five major banks – Bank of America, Wells Fargo, Citi, JPMorgan Chase and Ally Financial (previously GMAC Mortgage) – $25 billion to resolve claims. Only it will not actually cost that much. Only $5 billion comes in hard dollars to the federal government and the states ($1.5 billion of that will go toward those $2,000 checks for foreclosure victims). The other $20 billion is divvied up, with $3 billion for refinancings, and $17 billion for a variety of other measures, including principal reduction. But we have learned that $1.7 billion of that, or 10%, could go toward waiving deficiency judgments that banks were unlikely to pursue anyway. Another 5% could go toward moving assistance for foreclosure victims. And Bank of America could wriggle out of as much as $850 million by engaging in deeper principal reductions for a smaller universe of borrowers. Plus, servicers get a 25% credit for principal reductions in the first year, to push near-term relief. But of course, this reduces the total cost to the banks even further.
Similar sleight of hand can be seen throughout the document. The press release claims that “The court documents filed today also provide detailed new servicing standards that the mortgage servicers will be required to implement. These standards will prevent foreclosure abuses of the past, such as robo-signing, improper documentation and lost paperwork, and create new consumer protections.” This neglects the fact that the servicing standards will only stay in place for the 3 1/2 years of the settlement, and that the Consumer Financial Protection Bureau has authority to enact servicing standards themselves, without the need for the settlement to do so.
Further, there’s this nugget from the opening page on the “consumer relief requirements”:
Servicer shall not, in the ordinary course, require a borrower to waive or release legal claims and defenses as a condition of approval for loss mitigation activities under these Consumer Relief Requirements. However, nothing herein shall preclude Servicer from requiring a waiver or release of legal claims and defenses with respect to a Consumer Relief activity offered in connection with the resolution of a contested claim, when the borrower would not otherwise have received as favorable terms or when the borrower receives additional consideration.
Wow. In other words, servicers can force borrowers to sign away their due process rights for accepting principal reductions associated with the settlement.
As expected, the monitoring elements of the settlement include a quarterly self-report by the banks, after which an independent monitor can scrutinize the reports. So the banks are essentially policing themselves here, while the monitor has to wait several months to review their work and see if they are not according themselves properly. This is an invitation to abuse.
I will definitely have more when I find time to dig into the documents further.




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Thanks for all our efforts David.
You’re a wonder, David, and thank you. Is there any remote possibility that either an investor group or some public interest group could formally oppose the settlement in court? It is really awful.
Ah, the release of the “details” of the multifarious “RELEASES” from responsibility, accountability, and the Rule of Law.
For the record:
Pulitzer for David Dayen!!!
The Rule of Law for everyone.
Again my profound thanks to you, DDay.
I look forward with true anticipation to your gleanings and well-grasped interpretations of what this “ALL” means, on many levels, and especially its impact on that silly Rule of Law thingy … far into the distant future.
Off to read, that I may discuss and cuss … anon.
DW
The “independent Settlement monitor” will be Joseph A, Smith Jr.
We find this information to be available, at the present time.
http://www.nytimes.com/2010/11/13/business/13housing.html
http://nationalmortgageprofessional.com/joseph-smith-jr
DW
The “independent Settlement monitor” will be Joseph A. Smith Jr.
We find this information to be available at the present time:
http://www.nytimes.com/2010/11/13/business/13housing.html
and
http://nationalmortgageprofessional.com/joseph-smith-jr
Dw
The “independent Settlement Monitor” will be Joseph A. Smith Jr.
We find this information to be available at the present time.
http://www.nytimes.com/2010/11/13/business/13housing.html
and
http://nationalmortgageprofessional.com/joseph-smith-jr
DW
There appears to be some difficulty in making comments on this post.
The “independent Settlement Monitor” will be Joseph A. Smith Jr.
When it is possible to, once again, make comments here, I shall add links that discuss his history and record.
On edit:
http://www.nytimes.com/2010/11/13/business/13housing.html
and
http://nationalmortgageprofessional.com/joseph-smith-jr
DW
This is so fucked.
David,
One thing I noticed with a quick scan through of the complaint filed is that MERS is not listed as a defendant or mentioned in the complaint. ( If I missed it could someone point me to the correct PDF please.)
The only relevant dollar amount is how much these banks promised to donate to Obama’s re-election campaign, the rest is window dressing.
It appears that we are well and truly fucked. Perhaps this is the time to ‘reach out’ to the NRA — one gun, one vote. The current system seems to be seriously not working.
What to do? I am over 60, with my genetics have another 10 yrs, maybe less. What should I do with the years I have leftÉ
This joke of a settlement unleashes a storm of emotion. Rage, sadness, disappointment, and too many to list.
I too am alternating between being angry, being ashamed for my country, and being deeply disappointed.
I think the biggest realization for me right now is that our Federal Government is impotent and pathetic. A far cry from what my children are being taught in school each day.
Well, now we see that it is the total sellout that the realists among us expected all along. Yawn. Wake me up when it becomes legal to start executing the bad people.
It’s always darkest before everything goes completely black.
Our federal government, all three “branches” of “it”, is illegitimate, as it is in no way, concerned nor interested in the CONSENT of the governed, Kris.
And “we” are NOT … ALL equally to blame.
The Declaration of Independence speaks to our plight, to our reality, and to our obligation … to ourselves AND to our posterity.
From now on … “it” is up to us, to “the people” …
DW
Lemme see if I can get this straight. I ask my respected colleagues to correct me if I am wrong. So, President Obama’s statement that “The banks did nothing illegal” was, perhaps, somewhat inaccurate and premature??????
I saw some numbers the other day…..”they” (the banksters) have been pretty generous. Betcha somebody here has the actual numbers.
Didn’t use to be this way.
Being a baby-boomer, I am very dismayed this has all happened on “our watch”.
No, it was akin to Obama’s proclamation that Bradley Manning was “guilty” before trial or conviction.
Consider it a hint of what is(was) to come, ncg (the hint implies, “… and, if you know what’s good for you … then you will ‘get’ it …”, got it?)
Term it a “tell”.
DW
Every single day we are hit with stories about:
govt collusion/corruption
rule of law being trampled
whistleblowers being prosecuted
FOI requests being fought
NDDA
Patriot Act
Now protests where secret service nearby will be a felony
banks paying pennies for fines
John Corzine and co walking free
police tazsering kids at school
a guy selling raw milk arrested in jail for ten days and beaten
protestors beaten arrested and prosecuted
protest violently shut down
What the hell can we do? Sign petitions, protest, write letters, post information, attend council meetings. None of it is working because the level we are being hit at is overwhelming. That is why they don’t care as they know we can’t do much and when we do they will use violence to shut us down.
We know revolutions do not work they just rearrange deck chairs
We know protests do not work at best you might win a minor victory but overall it will make little change
electing x will not work as would need multiple x’s before they could form a strong enough opposition to all the corruption. Reaching such a critical mass even if possible would take years and that does not take into account the ability to fix the votes, and various other tactics used to stall this process
Does anyone have any new ideas that might work?
Shit man, most of our cohort was (deliberately) lookin’ the “other” way …
What REALLY matters, truth and justice … or a plump “portfolio”?
Karma “is” that the portfolio groupies mostly got gescrewerated … and the Big Shit ain’t even hit the “fan” … yet … wait until the crackdown begin in earnest … and then watch out when the war comes “home” to the “Homeland”.
It is one thing, ncg, to lose your home to a bank, or even to a tank … but the bomb, hoo, brother, THAT is when you really “get” the picture and karma comes home with a vengeance … as it is bound to …do … sooner … or … later.
I know, it’s just not fair … but that’s life and death, and “we” sell everyone else’s awfully goddamned cheaply … SNAP!!! Let Gawd sort us “out”.
Karma is a bitch …
And “we” have some comin’ …
DW
Lets bitch about the Republicans and how stupid they are.
Lets all be outraged at the latest outrage.
What you mean? Are you suggesting that “we” think ahead?
To actually consider what MUST be done?
You must be out of your mind, mswinkle!!!
Jeez.
;~DW
It has always been this way. The curtain is just falling faster than some could have ever imagined. The need for the curtain(the rule of law and accountability) is becoming irrelevant as we humans are becoming locked into a system of rapacious capitalism where we are nothing more than units of production and consumers.
In simpler terms, let’s ignore all the real estate and contract laws while Bush and Obama are president.
LOL. While we are busy bitching and not thinking about what we can do it seems those in charge have made another bold move to make sure those coming behind will not even be able to think.
It appears that as part of its reenactment of Goebbels “economic education” curriculum, the Fed will now directly appeal to K 8-12 student, in which it will elucidate on the premise of “Constitutionality of a Central Bank.” You know – just in case said young (and soon to be very unemployed) minds get ideas that heaven forbid, the master bank running the US is not exactly constitutional – you know, that whole thing between Andrew Jackson and the Second Bank of the United States…
And in case one is wondering what dogmatic propaganda their childredn will be filled with, here is tje course outline.
Lesson Description
The Constitution of the United States outlines the basic principles of the U.S. government. This lesson focuses on the express and implied powers of Congress and the power of the Supreme Court to decide whether a law is unconstitutional. In this lesson, students learn about McCulloch v. Maryland, a case decided in 1819 over (1) whether the state of Maryland had the right to tax the Second Bank of the United States and (2) whether Congress had violated the Constitution in establishing the Bank. Students also review the expressed powers of Congress identified in the Constitution and analyze how Congress implements the necessary and proper (elastic) clause to enact its expressed powers. Finally, students use their knowledge of McCulloch v. Maryland and the necessary and proper clause to consider the constitutionality of the Federal Reserve System.
Concepts
Expressed powers
Federal Reserve Act
Fiat money
Implied powers
Necessary and proper (elastic) clause
Precedent
Value of money [ZH: lol]
http://www.zerohedge.com/news/fed-take-propaganda-schoolroom-will-teach-k-8-12-students-about-constitutionality-fed
There’s a simpler statement .
I know. Let’s all kill ourselves on the same day, and maybe we’ll be re-activated as zombies, and we will be able to grab some bad guys and eat them raw.
I gave my watch away decades ago because I anticipated that when we got to this point I would want to refuse to be held responsible for this mess.
The need of a functioning Rule of Law is CENTRAL to civil society, and to suggest that the Rule of Law is “irrelevant” is simply and utterly absurd, ironcomments.
We have a legal system and a legal profession (the second oldest “profession” in the world Cicero claimed) that are behaving just as you suggest, both PRETEND that everything is fine … when it manifestly is NOT.
Without a Rule of Law, we have TYRANNY ….
And THAT is precisely WHAT “we”, “the people” are facing.
If we do not stand for the rule of law,insist upon a rule of law, then a neofeudal system, as you describe … will prevail.
If you want to accept that, then that is YOUR choice … it is NOT my choice … if you wish to bow down, to knuckle under, then that is also YOUR choice … and you DO have a choice, surrender or fight.
But do NOT give MY world away to the bastards or you are aligning YOURSELF with THEM … and, iron curtains, coming up or falling down are NOT the issue, yes the MASK has slipped and the ever-grinning face of death has turned its empty eyes toward us, and if that, alone, unnerves you, then so be it … but do not condemn the rest of us to your darkness, even in your understandable despair, disgust, and hopelessness …
DW
I am not suggesting that anyone gives up the good fight. Just pointing out that the problems and struggles of our age is a continuum from our past. Of course the rule of law and the egalitarian application of it, is central to a civil society, therefore I long for it just as much as you do because we are humans and not units of production. In order to move forward as a society we must first recognize and fully appreciate the situation we find ourselves in. Just as one is using a map to create a route to get from point a to point b, the person must first accurately gain their bearings and accurately assess the situation.
Even for those like myself who were deeply skeptical of Obama prior to his inauguration, I would think that the events of the last month or so — passage of the NDAA, HR 347, Holder’s “defense” of extra-judicial killings, and now this bankster pardon — complete our disgust and disillusionment.
I would think this is particularly true of David Dayen. For months he held out hope, even predicted, that the global bank settlement would not get done. Then Selloutneiderman caved and everyone fell into line. As someone who ancestors were officers in the Revolutionary Army the depth of my astonishment, despair, and disgust at what has happened to this country is beyond adequate description.
I never lost faith in you. And I agree that we need to lose all the illusions and acknowledge we’ve “hit bottom” before the People can be expected to bestir themselves and actually commit themselves to bringing about a real change for the better. That will only happen when it is clear to all that the “system” as it is will produce nothing but continued injustice from now on.
Michael C. Ruppert advised, “Make the minimum required payments on your credit cards, start growing your own food and living self-sustainingly, then hunker down for the inevitable meltdown that’s coming.”
Agreed.
DW
That, rc, is a BINGO!!!
DW
Smoking is a killer, but at least it slowly killed people over many decades. The banks ruined millions of lives overnight and nearly destroyed the entire worldwide economy.
It’s simply amazing that the DoJ could get the tobacco settlement so right… and this one so wrong. If anything, this settlement should have been much bigger than the one we got with Big Tobacco in the 90s.
This settlement with the banks wasn’t just not enough, it was insulting. We’d have been better off if we just let the states deal with this alone, but then again the banks, Obama and the states all knew that…