Big Banks See Fines and Penalties Coming

Bloomberg reported on Saturday that Bank of America and Wells Fargo/Wachovia, the biggest mortgage lenders, are anticipating significant fines, penalties, and legal costs to come from the many current investigations into questionable mortgage lending and foreclosure practices.  This news comes as the "Homeowner's Bottom Line" campaign has been meeting with states' attorneys general across the country to press for justice in the foreclosure crisis.

Of course, the devil is in the details.  What will and will not be addressed in the results of the foreclosure investigation has yet to be seen.  However, these big banks see enough significant impact coming that they felt the need to inform the public in a recent report filed with the Securities and Exchange Commission.

Foreclosure Fraud 3: Clear and Unequivocal Communication

When a bank working on a possible mortgage modification tells a borrower to stop making payments in order to allow the modification to proceed, usually in another office of the bank a red flag flies up to say that the foreclosure clock must start ticking.  One mouth says stop making payments and become delinquent in order to get paperwork moving.  Another says don't stop payments unless you want another set of paperwork to start moving.  Case after case in the past year has found homeowners receiving notification of a modification offer almost simultaneously with notification of a foreclosure sale.  By now you are all thinking about an old saying having to do with a left hand and a right hand.

This kind of carelessness and lack of concern for customers has characterized the current foreclosure crisis.  Admittedly, banks do not traditionally have enough staff to handle the current volume of potential loan modifications or the current volume of potential foreclosures.  In trying to ramp up while also keeping staffing numbers down, the result has been libraries of lost paperwork, constant restarting of the process, and a different answer from the servicer every time a homeowner makes contact.  Getting the banks to clean this up would seem to be in their interest, but when banks are as large as Wells Fargo and Bank of America, there is also a kind of internal struggle over which departments get to do what they should and which ones just do what they can.  We think that it is more than reasonable for homeowners to expect better.  What follows is a second part of what we are asking the Attorneys General to do.

Problem: Servicers proceed with the foreclosure process at the same time as they are conducting a loss mitigation process. This leads to borrower confusion and further complicates the process and the communication between borrower and servicer. It also leads to unjust foreclosures before due diligence is completed in the loan modification process.

Solution:

Mandatory and Standard Loan Modification Review

Foreclosures should not be initiated until the servicer does a complete review of a borrower's file. If the borrower is already in foreclosure when he or she requests a review, the foreclosure process (and not just the final sale) must be suspended until the review is completed.

a. This review must include the complete payment history; the contact log; and any other relevant information to determine whether the borrower is actually in arrears.

b. This review must include a determination that all loss mitigation requirements (as set out by HAMP, investors, FHA, GSE's, etc.) have been met, and the servicer must disclose to the customer all inputs and calculations done to establish qualification for a loan modification (see NPV transparency above).

c. Servicers must develop a protocol for evaluating Pooling and Servicing Agreements for investor restrictions and must seek a waiver if necessary.

Written Confirmation of Review to Borrower

If a borrower is not offered a loan modification, the servicer must provide a sworn affidavit to the borrower, disclosing the reasons for denial, including

a. any calculations done to determine loan modification eligibility; and

b. if the denial is due to investor-imposed restrictions, the specific language in the PSA prohibiting the modification, instructions on how the borrower can view the full PSA, and a written log of the servicer's efforts to obtain a waiver of this restriction.

Borrower Appeals Process

The denial letter must provide the borrower with an opportunity to appeal this determination to a neutral party. Foreclosure can only be resumed after written denial has been provided and time for an appeal has passed. If an appeal is pending, no foreclosure can be resumed.

No Legal Foreclosure Without Proof of Due Diligence

Servicers should be required to file a certification of loan modification procedures as a precondition to a foreclosure sale. In the case of a non-judicial foreclosure, the government official responsible for recording deeds and other transfers of property in the jurisdiction in which the property is located shall not permit the recordation of a deed transferring title after a foreclosure without certifying that the party conducting the sale has demonstrated that the requirements of this section have been met. A sale of property in violation of this subsection is void.

Consistent Communication with Consistent Staff

Upon contacting the servicer, the borrower must be assigned a case manager that will remain with that borrower throughout their loss mitigation experience. This case manager will have decision-making authority and access to the highest levels of management in the company. It is permissible for additional line staff to assist the case manager, as long as the case manager is always accessible to the borrower.  If a servicer is temporarily incapable of providing this adequate staffing level, the servicer must refer to a licensed special servicer until adequate staffing levels are reached.

The next post will deal with the imbalance of power that leads banks to multiply additional fees and get by with ignoring the law.

Why 10% in 10% Is Enough?

My friend and colleague Dan Rhodes posted an article on the "10% Is Enough" campaign over at the "Call and Response" blog of the Faith and Leadership program at Duke Divinity School. In a few paragraphs, he offered an brief overview of the campaign and some of the reasoning behind it. One comment chastised him for not providing an adequate analysis of the economics of consumer credit, its risks, and its basic operational principles. Dan gave a good response, acknowledging that in the short piece he could not cover everything. He also added some additional historical economic factors which are necessary to keep the discussion from pretending to be merely a technical discussion of "laws of economics." I am including here some comments I added to his post.

For centuries, banks were very profitable businesses operating under usury caps. Why are banks in our day so much more inept? Not all banks in the world charge high interest rates for credit. Why are US banks so much more inept at doing business?

We know that "risk" is calculated using benchmarks and tables and actuarial information based on certain assumptions. Of course, the assumptions may include demographic data and statistical probabilities that many can agree upon.

These assumption also include an assumed "cost of doing business" that includes the irrational exuberance of contemporary stockholders wanting short-term profits, the arrogance of CEOs with 8 figure packages, and big bonuses for executives known as "talent" who helped to bring about the economic crash. Consequently, none of the big banks is willing to name a rate of interest they believe to be too high. When asked by Congress if 36 % was too high, not one bank president would answer.

Wells Fargo/Wachovia recently introduced a new "product" for its customers. They will advance money at the end of the month to help a customer get through. Down the street from the bank, the little storefront calls this a "payday loan." Wells Fargo/Wachovia offers this "service" for an annual interest rate of 120%.

So if the banks want to be forthcoming about their cost of doing business, and if they will consider outside analysis of where they are spending frivolously, then we will be in a position to discuss what rate it would take to keep credit fair for customers, profitable for banks, and safe for everyone.

Bailout 10: Make Banks Accountable

Today's news reports that the Governor of Illinois has threatened to suspend state business with Bank of America. B of A is the bank which cut off credit to a window and door factory that has announced it will close, leading workers to sit in at the factory to demand the company pay them for accrued time.

Now the Governor of Illinois may in part be trying to distract attention from his other problems, such as being arrested on corruption charges today. However, it is about time leaders make this kind of decision to stand up to the banks which have become beneficiaries of one of the greatest wealth redistributions ever known. Public servants need to serve the public interest. Tax dollars are for the public interest. When tax dollars are provided to a private corporation in order to further the public interest in stabilizing the economy, then those private corporations must be held accountable.

That is why I wrote to my Representative, David Price, today to ask for increased oversight over banks and financial institutions who received "bailout" funds from the Department of the Treasury. The accountability was left too vague, and executives are retaining their expense accounts and euphemistically renamed "bonuses" while autoworkers are being demonized as overpaid for getting middle-class salaries, health care benefits, and retirement. I asked him to demand repayment from banks that refuse to make these funds available to support industry and jobs in the economy. If dramatic change can be demanded of GM, and I am all for that, then it can be demanded of Wells Fargo, Bank of America, Goldmon Sachs, J. P. Morgan Chase, Citigroup, and others.

Get rid of the $10 million Wells Fargo (see Bailout 9 post) severance package for one Wachovia executive and you can pay annual salary and benefits for over 100 of the better paid GM autoworkers who have mortgages to pay and families to support. Okay, let the Wachovia guy have the same amount as an autoworker. Bank of America's bailout money would be much better used if provided directly to struggling industrial producers.

Bailout 9: Will Obama's Advisers Learn from Their Own Mistakes?

The New York Times printed a good editorial expressing the reservations I share with many people about the President-Elect's chosen economic advisers. Larry Summers helped to craft the deregulation of derivatives. Timothy Geithner played a role in scheming the strange and problematic bailouts of financial institutions in the past couple of months. Neither one of them gave early warning of the housing bubble that has caused our current crisis. Will they do better next time? We must make sure our representatives know we are concerned, and let Mr. Obama know that he needs to be listening to more than the same people who were architects of a building in ruins.

Obama's critics jumped all over a phrase he used in a conversation with a plumber's assistant in Ohio. He remarked that everyone in financial difficulty, from top to bottom, would benefit together if we "spread the wealth around." Dean Baker points out that Secretary Paulson, Chairman Bernanke, and the Bailout planners are busy with their own plans to "spread the wealth around." Who is using government to transfer wealth from some citizens to others? Wells Fargo, a beneficiary of the bailout (announced that ten top executives of Wachovia) the bank they were able to buy because of the bailout, would be eligible to receive an average of $10 million each for severance. That money is coming from somewhere. I thought the banks were out of funds. Oh, yeah--taxpayers have to pay it. Talk to your representatives.