So Eric Schneiderman’s team is a little upset with me, I assume, over this post. I can only assume that, because I haven’t had any direct contact. But indirectly, I’ve heard accusations of “misinformation and outright misrepresentations” lodged at me. I guess I’m not on the good guys team to get a phone call anymore. Ah well.
Nevertheless, gracious sort that I am, let me allow Schneiderman’s office to explain themselves, without a filter. Here’s the set of talking points passed my way that lays out what happened and where we go from here. I’m happy to post this in full without alteration. I’ll be back at the end for a few comments.
What the MERS agreement does?
• Required multistate settlement release to explicitly carve out all of AG’s claims in the pending MERS suit against Chase, Wells, and Bank of America, as well as similar claim that may be asserted in the future against Citi and Ally.
• AG agrees to not pursue certain monetary claims (primarily penalty claims under NY General Business law) in exchange for payment of $25 million in cash. (The allocation of the payments among the 5 banks is set forth in Para. 5 of agreement.)
• The agreement is not part of the multistate settlement. The banks chose to submit the agreement to the DC Court because it has some relationship to the multistate agreement, in that it narrowed the claims NY was releasing.
What the MERS agreement does not do?
• AG still may pursue claims for damages suffered by borrowers, homeowners, or consumers as a result of illegal conduct alleged in the MERS suit. There is a very narrow exception – the State may not recover damages if the only evidence it can ultimate show of unlawful conduct is “robo-signing,” a very small portion of the MERS suit which focuses primarily on other foreclosure-related practices.
• AG may still pursue injunctive relief against banks (i.e., court order directing banks to reform ways they use MERS system, stopping illegal and deceptive foreclosure filing practices, including filing foreclosure actions where party lacks authority to sue, and directing banks to take all necessary actions to cure any title defects and improper liens resulting from illegal and deceptive practices). The only “injunctive relief” the AG agrees not to pursue is a court order specifically vacating foreclosure judgments already entered into before MERS suit was filed – relief that the AG did not ask for in the suit and did not intend to seek.
• AG may still pursue declaratory relief against banks and obtain a court decision that the practices alleged in the complaint violate the law.
• AG did not release any claims against MERSCORP, Inc., including penalty claims. The banks own MERSCORP and thus may indirectly be responsible for penalties imposed against MERCORP.
Why the settlement is good for New York?
• New York obtains an additional $25 million that can be used help distressed homeowners in NY. By getting this money now as opposed to years from now in a court judgment, we can help people now.
• Initially, New York could not join the multistate agreement and receive the $107 million and benefits for homeowners (i.e., loans mods, refinancing, etc.) and pursue the MERS suit because the types of claims raised against the banks in the MERS suit are waived by other states. We were able to successfully negotiate a path to obtain the benefits of the multistate agreement while still being able to pursue the MERS lawsuit claims against the banks – something no other state can do because they released these claims. (except Delaware which negotiated a substantially similar agreement but current has no pending lawsuit against the banks targeting MERS-related conduct)
• There are substantial legal restrictions on how much penalties we could recover from the banks. First, the legal cap on penalties is $5000 per violation. Second, we only could obtain penalties going back 3 years to Feb. 2009 – the pace of foreclosure filings dramatically dropped starting in late 2010. Taking into account these very real legal restrictions, receiving $25 million is a very good deal.
• We can continue to pursue the primary goals of the MERS lawsuit: a) obtaining a court order directing the banks and MERS to stop engaging in illegal practices and dramatically reform their conduct; b) obtaining a court order requiring the banks and MERS to take all remedial actions to resolve any title problems created by their prior illegal practices (i.e., clean up the mess they made); and c) obtaining a court ruling declaring the practices set forth in the complaint illegal.
OK, that’s their argument. Fair enough. I never said it was a full settlement, and mentioned that Schneiderman can still pursue claims for damages suffered by borrowers. It’s interesting that the language used here — “clean up the mess they made”– mirrors the language in the Jeff Thigpen suit just released.
I guess I have a few questions. One, if the constraints on the suit as far as penalties were well-known, why engage in that part of the suit? Two, if the suit was always meant to be forward-looking, what will constitute the evidence to get MERS to change their practices? Three, if MERSCORP, a shell corporation, declares bankruptcy as a result of its legal exposure, how do you expect to ever acquire penalties?
I have more questions, but my hope is that there can be a dialogue on these issues rather than a dictation. And ultimately, I’m going to look to results to guide my opinions on Schneiderman and his relative success. Given not only the outcome of this lawsuit, but the relative quiet of the task force, and most important, signing on to a settlement that looks increasingly disappointing, we’re not off to the best start.





20 Comments


Support this site!
Subscribe to the newsletter
Advertise on Firedoglake
Send
us your tips
Make us your homepage
About FDL News Desk
IMHO, Schneiderman spent a lot of time and effort convincing everyone that he was going to fight this settlement until it was a good deal for the people, so it is up to time to spend an equal amount of time and effort telling us exactly what it does, doesn’t do, where there is immunity and where there is none. And that includes answering questions. Same with the other AGs who made a reputation for themselves as Justice Democrats. Personally I am not seeing much justice for the people here.
No cocktail weenies for David.
Q. How does $25 million compare to the losses over the years, because MERS was used,
of all those recording fees due to counties in NYS?
That statement (from the AG’s office?) is pretty pathetic. First, it’s incoherent; apparently no one there can explain what they’re doing. Second, much of it merely restates what we knew and David had reporterd before: NY had a carve out from the settlement to allow him to pursue the MERS suit. Three of the bullets repeat the same point, but don’t explain why it was necessary for this settlement to restate that, when that’s supposed to be in the larger settlement. Perhaps this MERS piece is the carve out and was meant only to confirm what they had agreed to, but did not include in language in the major settlement? How hard is that to explain?
It’s distressing that the AG’s office can’t put the penalties in context: what size penalties might they have recovered on different aspects of the suit, and which of those have they now settled? And how large a potential did those represent? In other words, what did they give up to get the “paltry” $25,000,000? And it is paltry; to suggest that somehow this materially helps a lot of homeowers is silly. It’s trivial.
I’m left wondering what they think they’re doing, and that’s after reading their clarifying statement twice. (and I ain’t no dummy, either.)
“Personally I am not seeing much justice for the people here.” I agree. No justice, no way!
“…time to spend an equal amount of time and effort telling us exactly what it does, doesn’t do, where there is immunity and where there is none.”
This is hailed as a settlement? Sure! It is nothing short of delusional protectionism, for the rapist? Protect the rapist and to hell with the victim? Disgusting, vile as usual.
Conclusion: You’re doing your job. Go D-Day.
And hey Schneiderman’s Office:
If, as you say, you “may still” this, that and the other thing, then that’s just fine – as far as it goes. Walking that talk is quite another matter, however. So?
And, by the by, $25 Million in this context doesn’t even qualify as chump change, and anyone with even the most rudimentary grasp of arithmetic can figure that one out. $25 Million? Seriously? As the auditors might say, “Immaterial. Pass.” Indeed.
O’Bummer and the rest of these ass-hats are very good at telling us all what they can’t do and what their restrictions and limitations are. There is no virtue in stating the obvious. What I want to see is a clear, concise, and concrete explanation of what they are going to do.
Might be worth reading this OpEd from the NYTimes. Goldman Sachs exec resigns.
http://www.theblaze.com/stories/goldman-sachs-exec-resignaiton-in-scathing-nytimes-op-ed/
Well, do it already. If he can do it, go right ahead! Please!
AG may still pursue injunctive relief against banks (i.e., court order directing banks to reform ways they use MERS system, stopping illegal and deceptive foreclosure filing practices, including filing foreclosure actions where party lacks authority to sue, and directing banks to take all necessary actions to cure any title defects and improper liens resulting from illegal and deceptive practices)
Am I remembering correctly that this settlement was agreed to before the AGs had investigated and fully determined the banks and MERS’s potential liability?
David Dayen, when you have “authority” on the defensive … then you are doing EXACTLY what is necessary and required … when “authority” is compelled to explain itself, then it realizes, fully, that it has obligations to the truth, to the people and, as well, to the Letter and the Spirit of the Rule of Law, that “authority”, itself is being examined and shall be held to strict and proper account.
Good on you, DDay, and a Pulitzer as well.
DW
Please read:
Bank of America: Too Crooked to Fail
The bank has defrauded everyone from investors and insurers to homeowners and the unemployed. So why does the government keep bailing it out?
Read more: http://www.rollingstone.com/politics/news/bank-of-america-too-crooked-to-fail-20120314#ixzz1p7uhglQy
David Send this to all 50 AGs
Dennis
DW –
Looked into the Pulitizers. We missed the deadline for this year (Jan 25th) which covered reporting in the year 2011, which is when DDay did so much good work. However, looking forward, we can still nominate him in Jan of next year for his work this year. The fee is only $50, which I’ll be glad to pay. All nominations must now be filed electronically and there is an array of PDFs on the Pulitizer website.
If Schneidermann thinks that he will be able to gain respect and move up in the political world if he does a pathetic half ass job of seeking payment of damages by the banks then he is living in an alternate reality. No one likes a sell out unless of course you’re a banker.
Thanks David for keeping on top of this whole thing. Glad Schneiderman’s people are “upset” with you. That means you’re hitting a nerve. He really sold his soul to the devil. What a bummer…I thought he was one of the few with integrity.
It’s a date.
I am in the group that puts more trust in what I get from David than just about anywhere else, and on a consistent basis. Wherever we turn we realize we are getting patted on the head, fed baby food and generally patronized. You are right—let’s see what takes place. When I was growing up the nuns would say: Actions, not words. So ACTIONS! From what we’ve seen so far there has been a whole lot of slop. Maybe the meat and potatoes, fresh fruits and vegetables—chocolate even!—are still to come. I’m going to work on my running, the legal work on my desk and establishing another garden while this is happening just in case it takes awhile. I’m patient, though, and I am eager to see these ACTIONS!
All this horseshit when all we really had to do was LET THEM FAIL.
I gather from this post that the people that crafted the settlements really truly believe we are all a bunch of idiots. I am sorry you upset the a.g. They really want all this MERS stuff to go away. MERS is the reason this all happened. Loans are still being closed with MERS on the docs. Thousands being added daily and who exactly is going to fix this mess. And now they can used ‘destroyed Note affidavits’ to take homes. Since no one is willing to put a moratorium on fraudclosures perhaps we the people should put a moratorium on making housepayments.
And this post probably has his office spitting nails.
Go DDay.
Scarecrow, great points, great questions.
It appears Schneiderman had his chance and muffed it.