I’ve taken a closer look at the US Attorney from the Southern District of New York’s $1 billion lawsuit against Bank of America – particularly their subsidiary Countrywide – for “the hustle,” the program of selling mortgages with practically no underwriting and passing them on to Fannie Mae and Freddie Mac. And there’s something interesting right on the first page. The lawsuit isn’t called “The US v. Countrywide Financial Corp.,” but “The US, ex rel. Edward O’Donnell v. Countrywide Financial Corp.”
Who’s Edward O’Donnell? He’s a former Countrywide Home Loans executive vice president, who blew the whistle on the company for their fraudulent mortgage practices with a qui tam lawsuit in February. The lawsuit from SDNY yesterday builds on O’Donnell’s whistleblower claim, and gives him a chance to cash in. Eight months later, the government picked up on O’Donnell’s False Claims Act allegations and put them into action.
Alison Frankel believes this is faster than the normal practice of intervening in a qui tam claim, in part because of the pressure on the government to derive some accountability for the housing crash. She also thinks we should be happy about this:
The result is a complaint that features inside allegations from O’Donnell about Countrywide’s so-called “Hustle” program to funnel increasingly deficient loans to Fannie Mae and Freddie Mac alongside inside information that government investigators presumably obtained from Fannie and Freddie officials. The combination makes for a compelling case that Countrywide systemically deceived the government-sponsored entities about the loans it was selling them, then refused to live up to contractual obligations to repurchase deficient loans. (As Reuters reported Monday, Bank of America said accusations that it failed to repurchase loans are “absolutely false.”)
The U.S. Attorney’s allegations go much deeper than O’Donnell’s initial suit, which suggests that the government has been busily investigating in the months since O’Donnell initiated the case. According to the complaint filed Wednesday, in 2007 — with fewer MBS sponsors in the market for the subprime loans that had been Countrywide’s specialty — the bank was increasingly desperate to sell supposedly better-quality mortgages to Fannie Mae and Freddie Mac. To speed up the process of approving loans, Countrywide’s Full Spectrum Lending unit instituted “the Hustle” (or HSSL, for High Speed Swim Lane) program, which stripped away underwriter review for loans that were deemed acceptable by the bank’s automated mortgage review system. But that automated system, according to the complaint, depended on information supplied by the borrower and input by a loan processor. There were few to no controls in the Hustle approval process; according to the feds, even loans in which the borrower’s income wasn’t independently verified went unreviewed by underwriters.
It sounds to me like the government combined O’Donnell’s insider information, and the FHFA’s existing, year-old lawsuits against banks who passed deficient loans to the GSEs, and the refusals by BofA to repurchase the bad mortgages, into one super-case that exposes the origination fraud and how corrupt lenders and Wall Street banks joined forces on the project, inflating the bubble all the while.
But while specific executives at Countrywide are named in the suit, none of them will face criminal charges. And in the end, the US Attorney seeks $1 billion in damages, a paltry sum for a mega-bank (and that’s an opening bid). BofA has settled similar cases in the past, including one over almost precisely the same fraud run on the Federal Housing Administration. But it’s the cost of doing business – more precisely, the cost of buying Countrywide – and life will go on. Frankel believes that a settlement in this case could break loose over $12 billion in Countrywide repurchases demanded by Fannie Mae and Freddie Mac, and volume like that could make a difference for BofA, especially if they are found liable for Countrywide’s breaches of representations and warranties. But that’s a ways off, and it’s not clear how many of those outstanding repurchases fall under “The Hustle” program.
So to me, this again shows the reluctance of law enforcement to actually hold executives who committed fraud personally accountable for fraud. And it takes a whistleblower with iron-clad information to actually get them to act at all.




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It’s a fraud case, not a repurchase case. Under the 2009 fraud statute the DOJ is relying on, DOJ can demand treble damages, so the opening “bid” is not one billion dollars, it’s three billion dollars.
I’m not sure why DOJ is bothering with the causes of action under the 1989 FIRREA statute, except for the longer statute of limitations. Under FIRREA, DOJ is demanding civil fines for criminal conduct (mail fraud & wire fraud) of only a million bucks a day for the continuing violations, or five million bucks total, whichever is less.
But it is a distinctly different case than all the other lawsuits against BofA, because it originated as a Qui Tam (false claims) action by a whistleblower. Like the claims brought by the wonderful whistleblower lady in Florida who won $31 million from JPMorgan Chase.
Bank of A….??Hmm. Bank of A.?? Hmmm. okay. I think Bank of A has signed on to lower their own tax rates and to broaden taxes on the middle class, and to ‘claw back those excessive MA, SS, and Medicaid benefits”….Nov. 7th.
HERE.
Des.potic Plu-tocrats!
I misread this (as I often do). I thought the case (and aren’t there a couple of more that just been announced?) was a shot over the banksters’ bow with respect to the coming election, to the effect that ‘if you double-cross us’ we can always come after you.’ It would be nice, if the banksters’ actually had to pay protection money for protection, but I suspect nothing more than a wet dream.
Business Week also has insights about the case Dday is talking about.
The idiots at BofA allowed Countrywide to continue this greedy racket even after a new preznit was elected and the Dems retook control of both Houses of Congress. So, BofA was still encouraging the racketeering while Congress passed a law in 2009 specifically targeted at it. So now DOJ can sue BofA for 2009 violations of the 2009 law. BofA are just stupid, greedy criminals. Time to end them.
Is there any evidence that in the original negotiations to get B of A to buy Countrywide that limited liability was guaranteed? It seems like everything points to criminal behavior at Mozillo’s Mortgage Emporium but slap on wrist fines are the order of the day.
Ah, the Reluctant Drag-Ons …
You have well and truly called them “out”.
Though I do wonder if Knut, @ 3, might not be closer to the deeper “intent”?
A paltry fine might be simply the cost of “doing business”, however enough “bad” publicity is, actually, bad … and the mood of the public is not rosy and nice … and as this “thing”, the fraud and its “aftereffects” goes on, and it will, both the political class and their banking buddies are going to be considered not so much doing gawd’s work, but continuing to stick the invisible paw into the public till.
Despite the happy festivities of the election season, the public mood grows, reasonably, ever more pensive … closer to “ugly”, truth be told, and while Rmoney might be given so “leeway”, Obama is considered to have already been given quite enough “rope”.
Doubtless, it is hoped, by politician and banker alike, that a show trial or two, much ballyhooed, will suffice and serve to restore the semblance of order and respect for the “adults” in the room … a lot is riding on appearances these days, on multiple “fronts”.
Unfortunately, it is not great theater, merely popcorn Kabuki … and few trust the popcorn machines, any longer, to deliver anything other than buttered-up, empty calories.
Such is progress.
Thank you, DDay, for not dancing jigs of joy in the streets … which, for some reason, seem full of pot-holes of late.
DW
Local loan brokers have gone to jail for fraud when they faked loan applications. So far the big banks walked free for the same fraud when they had their garbage loans rated AAA and funded loans without normal underwriting. When we have the same legal system applied to both the bottom and the top, we will have returned to a legal system worth the name “legal”.
Interesting, and it may warm the cockles. But could it all be for show?
http://online.wsj.com/article/SB10001424052970204530504578076680514724050.html
“. . . Bank of America said it “has stepped up and acted responsibly to resolve legacy mortgage matters. At some point, Bank of America can’t be expected to compensate every entity that claims losses that actually were caused by the economic downturn.”
“. . . The government is suing Bank of America under the federal False Claims Act, which has become a popular tool for prosecutors seeking to hold banks accountable for alleged mortgage misdeeds. The act calls for triple damages when the government can show taxpayers were ripped off.
“. . . The False Claims Act allows the government to go after parties that submit false records to either receive payment from a government agency or to avoid making payment to a federal agency. While Fannie and Freddie have been propped up on government life support, they aren’t considered federal agencies—or even wholly government-owned companies—by the U.S. Resolving that murky legal status could be a key challenge for government lawyers because Fannie and Freddie’s own regulator, along with the Department of Justice, have argued in other cases that Fannie and Freddie aren’t federal entities.
“. . .This is a real stretch,” said Adam Feinberg, head of the litigation department at Miller & Chevalier Chartered. ‘The biggest problem is that Fannie and Freddie are not federal agencies and do not receive federal dollars in the normal sense of the word.’ ”
Not advocating anything here, and am flummoxed. Is this even the same case they’re talking about?
This is all well and good but a perp walk by Angelo Mozillo and Ken Lewis would be even better. Counting the minutes ’til this is forgotten by everyone in 3…2..1……………..