There was a deluge of news about banking and foreclosure fraud over the weekend much of it going unnoticed because of the Super Bowl. There was the revelation that Fannie Mae has known about mortgage and foreclosure fraud for 10 years, knew it was fraud but did nothing to stop it. This morning there was another surge with the news about the state attorneys general agreement. It looks like two of the biggest holdouts, New York and California, may sign the agreement even though public details are still very vague. I suspect that the secrecy about the final agreement may be because it let the banks off the hook for the biggest fraud ever perpetrated on investors, robosigning.
Here’s what we know:
New York AG Eric Schneiderman filed a law suit in NY State Court in Brooklyn on Friday charging them with deceptive and fraudulent practices that harmed homeowners and undermined the judicial foreclosure process. David Dayen at FDL thinks this is a “carve out” that paved the way for other state AG’s to do the same and still be able to sign onto the federally negotiated agreement:
The answer is, according to what I’ve learned, is that it’s a carve-out. Schneiderman can pursue this case and also theoretically join a settlement. This may or may not be true of other cases with other AGs. The timing of Illinois’ lawsuit against Nationwide Title Clearing yesterday seems significant in that regard; perhaps Lisa Madigan also secured a carve-out for her case. It’s plausible to think that AGs are being told to get out their lawsuits now, prior to a settlement, and they would be allowed in the event of a settlement. Schneiderman still hasn’t agreed to the settlement, but in the event that he does, the case dropped today would be able to go forward. [..]
Like me, Dayen doesn’t see the advantage for the banks to sign off on the agreement if they can’t stop suits like Schneiderman’s and others in Illinois, Massachusetts and Nevada. There are a lot of questions.
Late last night, during the Super Bowl, the story broke in the New York Times that the deal with the states was about to be closed:
The biggest remaining holdout, California, has returned to the negotiating table after a four-month absence, a change of heart that could increase the pot for mortgage relief nationwide to $25 billion from $19 billion.
Another important potential backer, Attorney General Eric T. Schneiderman of New York, has also signaled that he sees progress on provisions that prevented him from supporting it in the past.
The potential support from California and New York comes in exchange for tightening provisions of the settlement to preserve the right to investigate past misdeeds by banks, and stepping up oversight to ensure that the financial institutions live up to the deal and distribute the money to the hardest-hit homeowners.
The settlement would require banks to provide billions of dollars in aid to homeowners who have lost their homes to foreclosure or who are still at risk, after years of failed attempts by the White House and other government officials to alter the behavior of the biggest banks.
Yves Smith at naked capitalism was not surprised and expressed her doubts about Schneiderman’s ability to beat the Obama administration’s protectionism:
Kamala Harris, the California AG, was widely seen as “political” and therefore was not seen as a solid holdout. I remain disappointed by the conduct of our attorney general Eric Schneiderman, who is also now participating in the talks. His decision to join a Federal task force undermined the opposition to the settlement and looks to have cleared the way for the Administration to craft a win on this deal (note it is still possible it will not get done, but the odds were low as of last week and appear to be sinking further).
Assuming a deal is inked, Schneiderman and new partners in the Administration will no doubt contend that his involvement in the negotiations resulted in an improvement in terms for homeowners and states. I’m also told that he sincerely believes he can get a serious investigation underway and take advantage of Federal statutes with longer statutes of limitations than most state level ones.
Schneiderman may think he can beat the Administration at its own game, and if he can, more power to him, but I would not bet on him coming out on top.
It is too late (it was probably too late when Schneiderman sat in Michelle Obama’s box during the State of the Union address) but if you are in California or New York, you might as well call or e-mail your AG and give them a piece of your mind. Keeping the pressure on Schneiderman and Harris, and supporting AGs like Beau Biden of Delaware, Catherine Cortez Masto of Nevada, and Martha Coakley of Massachusetts, are the best hope we have at this point.
For New York, call 800 771-7755, 212 416-8000 or 518 474-5481 use the web form here or at his fundraising office. For Kamala Harris, call 916 445-9555 or this web form.
There are also questions about who will actually pay for this bank bailout which in actuality amounts to only $5 billion in cash and the rest in mortgage modifications. It does nothing to correct or compensate homeowners who have already been foreclosed on or who are so underwater that they don’t qualify for modification. Again Yves Smith explains the role of second liens in this bank bailout
To give a brief recap of the post: both a small group discussion with Shaun Donovan (reported by Dave Dayen of Firedoglake and separately by Shahien Nasirpour of the Financial Times) and the Schneiderman MERS lawsuit on Friday confirm our previously-stated hypothesis that the settlement is really a transfer from mortgage investors to banks. That is why the banks remain willing to participate as the release has been whittled down to appease the formerly dissenting attorneys general (remember, the old reason for the banks to go along was that it was a cash for release deal: the banks were willing to pay hard money to get a significant waiver of liability).
The reason this settlement amounts to a transfer is the banks will be given credit towards the total reported value of the settlement for modifying mortgages that they do not own, meaning that economic loss will be borne by investors. Servicers have an obvious incentive to shift losses onto other parties whenever possible, and so the only principal mods they are likely to do of loans they own are one they would have done anyhow.
In addition, default rates are higher among borrowers with second liens, and second liens are almost entirely held on bank balance sheets. Which banks? Oh, the ones that happen to be the four biggest servicers: Bank of America, Citigroup, JP Morgan, and Wells. And those second lien holdings are collectively in the hundreds of billions. Were they written down to the degree that some mortgage investors argue is warranted, it would reveal that these banks were seriously undercapitalized.
As we stressed, this plan is a serious violation of property rights (not that that should be any surprise at this point). The creditor hierarchy is clear: second liens should be written off in their entirety before first liens are touched. Yet we also linked to evidence in the post from top mortgage analyst Laurie Goodman that servicers were already doing everything they could to favor their second liens over firsts. This settlement would give official sanction to this practice.
I also want to flag, a second time, an appalling throwaway comment in a New York Times update tonight:
The settlement, if all states participate, will also include $3 billion to lower the rates of mortgage holders who are current.
In other words, the agreement bails out homeowners that don’t need it while throwing those who are in the deepest trouble because of that second lien (mortgage) to the sharks. Those second liens are a big problem, as Yves notes:
As leading mortgage analyst Laurie Goodman pointed out in a late 2010 presentation, just over half of the private label (non Fannie/Freddie) securitizations have second liens behind them (overwhelmingly home equity lines of credit). Moreover, homes with first liens only have far lower delinquency rates than homes with both first and second liens. Separately, various studies have found that defaults are also correlated with how far underwater a borrower is. If a borrower is too far in negative equity territory, it makes less sense for them to struggle to stay current, no matter how much they love their home […]
[Banks] also have been modifying first liens to preserve their second liens. If you reduce the payments on the first mortgage, the borrower has more money left to pay the second lien. From the transcript of Goodman’s 2010 presentation:
“Clearly there’s a differential standard of managing second liens and securitizations versus second liens in bank portfolios. It’s very clear banks are doing all they can to get the, to keep, to get the first lien modified in order to keep the second intact, and that is just a huge conflict of interest.”
Legally, the hierarchy of payment OUGHT to be clear: a second should be wiped out before a first lien is touched. That’s how it works in a foreclosure or a bankruptcy: only after the first lien was paid in full would a second lien get anything. But that isn’t what is happening now.
Homeowners with second liens are in far more trouble. Which brings us to this revelation that Fannie Mae knew all about the wide spread mortgage abuses for 10 years and ignored it:
YEARS before the housing bust – before all those home loans turned sour and millions of Americans faced foreclosure – a wealthy businessman in Florida set out to blow the whistle on the mortgage game. [..]
What Fannie Mae knew about abusive foreclosure practices, and when it knew it, are crucial questions as Congress and the Obama administration weigh the future of the company and its cousin, Freddie Mac. These giants eventually blew themselves apart and, so far, they have cost taxpayers $150 billion. But before that, their size and reach – not only through their own businesses, but also through the vast amount of work they farm out to law firms and loan servicers – meant that Fannie and Freddie shaped the standards for the entire mortgage industry.
Almost all of the abuses that Mr.(Nye) Lavalle began identifying in 2003 have since come to widespread attention. The revelations have roiled the mortgage industry and left Fannie, Freddie and big banks with potentially enormous legal liabilities. More worrying is that the kinds of problems that Mr. Lavalle flagged so long ago, and that Fannie apparently ignored, have evicted people from their homes through improper or fraudulent foreclosures.
This is a huge financial problem that will still loom over the economy, especially if the banks, Fannie and Freddie are not being held legally and financially responsible for setting this all in motion. The likelihood that Schneiderman will have any success in prosecuting or obtaining a satisfactory restitution for the victims of this massive fraud against an administration that has protected the perpetrators is slim to none. I wish him luck but I will be truly disappointed if he signs this agreement.
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