Foreclosures - Represent Consumers

Failed policies fuel phony housing recovery

In his State of the Union speech, President Obama cited the recovery of the housing market as evidence the economy is getting stronger.

If by “recovery,” the president meant a fabulous bargain-shopping opportunity for flush hedge funds, he was spot on.

If was he was talking about what most people understand by “recovery” – restoring families’ stability, healthy communities and a sense of economic well-being – not so much.

While the president paid lip service to bolstering the middle class, four years of his administration’s failed policies have set the stage for the financial industry’s further plundering of one of our basic needs – housing.

Before the financial crisis the wizards of high finance figured out how to turn our homes into complex investment vehicles that made them billions – before they crashed the economy. Now the financial geniuses how figured out how to make a killing picking over the carcass of the collapsed housing boom.

Certainly housing prices appear to be going up, but a large reason for that is the hedge funds that are swooping in to take advantage of the low, low prices. CNN Money reports that Blackstone Group spent $2.7 billion to buy 17,000 single-family homes. Bloomberg reported that Blackstone was spending $100 million a week to buy distressed homes to rent and hold until prices rise.The buyout firm GTIS Partners said it plans to spend $1 billion through 2016 buying single-family properties and converting them to rentals, while Oaktree Capital Management of Los Angeles started a fund that would buy $450 million worth of single-family homes, the Los Angeles Times reported. Also here in Southern California, G8 Capital of Ladera Ranch bought several portfolios of distressed properties to rent.

The real estate investment firm McKinley Capital Partners of Oakland has purchased hundreds of homes in the San Francisco Bay Area. The Urban Strategies Council reported that in Oakland, speculators had bought 42 percent of all properties that went through foreclosure.

“This is an outrage,” Oakland Councilwoman Desley Brooks told the Oaklandlocal.com nonprofit news site. “People in Oakland typically (buy a home) and put in roots in a neighborhood and stay there and this strategy with investors is doing away with that. It's taking away from our ability to have neighborhoods where people know each other ... we need that in Oakland.”

While interest rates are at record lows, many individual buyers in hard-hit areas don’t have the savings, credit or income to buy.

Is this just the marketplace at work? I don’t think so. The Obama administration insisted that it was implementing policies to ease the foreclosure crisis, putting in place incentives to ensure banks would help homeowners through loan modifications and principal reductions for underwater homes.

But in contrast to the massive, no questions asked shoveling of money to prop up the big banks in the bailout, help for homeowners was late, inadequate and tepid. The incentives were too small and the policies lacked teeth to hold bankers accountable when they didn’t take action or when they foreclosed using fraudulent or forged documents.

A particularly damning admission about these policies came from the mouth of former Treasury Secretary Tim Geithner, as quoted by Neil Barofsky, former special inspector-general of Troubled Asset Relief Fund, aka the bailout. In his book,”Bailout,” Barfosky contends Geithner acknowledged that the foreclosure relief programs weren’t really intended to help homeowners but instead, to help banks manage their foreclosure portfolios, or in Geithner’s colorful words, to “foam the runway for the banks.”

The president has yet to make any such acknowledgement, and wants us to believe that his policies have helped middle-class Americans regain a foothold. Nothing could be further from the truth. It looks like these policies have facilitated a massive takeover of the affordable U.S. housing market by the same speculators who brought it down.

Former bank regulator profits from foreclosure fiasco

While the foreclosure crisis has brought devastation to millions of Americans, for a few Washington insiders it’s proved quite lucrative.

One of the most recent to cash in is Eugene Ludwig, former comptroller of the currency in the administration of his one-time Yale Law School pal, former President Bill Clinton.

While it’s supposed to regulate banks, the comptroller of the currency’s office has consistently suffered from a reputation for being too compliant to those it is supposed to oversee.

Ludwig, after his government service, formed a private global financial consulting and lobbying firm named Promontory Financial, working directly for banks and other financial firms. The company’s roster is filled with a mix of veterans of financial regulatory agencies, top banks and the law firms that represent them.

Ludwig, to say the least, has done well serving the financial industry. According to Washingtonian magazine, Ludwig owns one of the most expensive homes in Washington, a 13,000 square foot, 5-bedroom stone and shingle estate just down the street from the Spanish ambassador’s residence.

Lately, Ludwig’s firm has found itself in the middle of the Obama administration’s latest botched attempt to sort out the foreclosure fraud scandal.

Announced with great fanfare in 2011, the review of bank foreclosures in the wake of robo-signing scandal was supposed to be led by the current Office of the Controller of the Currency and the Federal Reserve.

Because the government doesn’t have the resources to scrutinize the banks itself, under the terms of the investigation, the banks hired consultants including Ludwig’s Promontory and accounting giants PwC (formerly PriceWaterhouseCooper) and Deloitte to examine individual foreclosures to determine which ones contained fraud in the process.

The investigation was troubled from the start. Homeowners’ advocates questioned how consulting firms like Promontory, with close long-standing financial ties to the banks, could do any kind of objective analysis of their foreclosures.

But that was just the beginning. Not only were the consultants often relying on the banks’ own evaluations of their foreclosures to make determinations about the validity of foreclosures, outreach was inadequate, the investigations were poorly designed and overly cumbersome and took much longer than expected. Meanwhile the consultants’ fees skyrocketed.

“This was never a well thought out process,” the National Consumer Law Center's Diane Thompson told American Banker in November. “The [lack of] independence is just one aspect of its crappiness.”

Finally, in December, the authorities ditched the entire investigation and announced an $8.5 billion settlement with the banks, with $3.3 billion in direct payments spread around between homeowners who claimed to have been the victims of fraudulent foreclosures, and promises to complete more loan modifications.

Ludwig’s firm and the other consultants didn’t suffer financially, however. They walked away from the debacle splitting a whopping $2 billion in fees.

But the stink from the settlement has attracted some attention, prompting the New York Times to scrutinize Promontory and other financial consulting firms’ role in facilitating bank misbehavior, not just in the foreclosure scandal, but in other unsavory bank business, such as drug money laundering, as well.

Several congresspeople, including Elizabeth Warren, D-Mass., Carolyn Maloney, D-New York, and Rep. Maxine Waters, D-Los Angeles, top Democrat on the House Banking Committee, are now seeking investigations into the foreclosure review and the consultants role.

The foreclosure review highlights a sad fact: more than four years after the financial collapse should have taught us the fallacy of deregulation, we’re still relying on bankers, and their former colleagues on the other side of the revolving door, to crack down on themselves.

Foreclosures / Martin Column / Revolving door - 02/06/2013

Blame game won't help distressed homeowners

There’s a big pile-on, calling for President Obama to fire the housing bureaucrat who’s blocking the latest administration housing initiative to reduce principal for underwater homeowners.

Ed DeMarco, who heads the Federal Housing Finance Agency, which oversees Fannie Mae and Freddie Mac, is a Republican holdover appointed by President Bush.

Though DeMarco is supposed to be only acting head of the agency, President Obama has never replaced him.

Now DeMarco is refusing to allow Fannie and Freddie to implement a recent initiative that would offer principal reduction to homeowners who owe more or their mortgages than their homes are worth since the housing bubble burst.

DeMarco’s position is full of holes: he’s worried that if the government doles out principal reductions to some homeowners, homeowners who don’t qualify will lower their incomes and get behind on the their mortgages just to get in line for a principal reductions. And DeMarco claims that principal reduction would be bad for taxpayers, even though his own agency’s research proves him wrong.

Lots of smart folks, including the New York Times’ Paul Krugman, are calling on the president to fire DeMarco. For Krugman and the Democrats, it’s just the latest example of Republicans blocking the President and the Democrats at every step from fixing the economy.

It’s certainly true that Republicans have done nothing themselves to get the economy going and focused solely on demonizing the president and the Democrats.

But do you remember that fiery speech the president gave blasting the presumed Republican presidential candidate, Mitt Romney, for his do-nothing approach to the foreclosure crisis?

Do you remember the president’s strong speeches blasting Republicans’ efforts to blame the foreclosure crisis on borrowers rather than the big banks?

Neither do I.

Is it the Republicans’ fault that the president and his administration have pursued one failed strategy after another that propped up too big to fail banks while not substantially helping homeowners?

Is it Republicans’ fault that the president abandoned one of his campaign promises and failed to push for what could have been one of the most effective strategies to force intransigent banks to renegotiate with strapped borrowers – so-called judicial cram-downs of mortgage debt in bankruptcy court.

That would have allowed bankruptcy judges to reduced mortgage debt as they can other kinds of debt. But it would have accomplished the larger purpose of encouraging bankers to renegotiate with borrowers before they ever got to bankruptcy court.

Only now, after more than three years, when there is a real, live Republican to blame, has Treasury Secretary Timothy Geithner come out swinging – not with aggressive new policies, but against DeMarco.

Two astute observers of government response to the foreclosure crisis, David Dayen at Firedoglake and Yves Smith of Naked Capitalism have pointed out that the Obama administration has been slow to embrace principal reduction in the first place or to convince the public that it’s needed.

In addition, the administration needs to do more to overcome another huge hurdle: under the tax law, the amount of principal reduction will be taxable when a temporary exemption expires at the end of the year.

By all means, the president should fire DeMarco. He should embrace a fight with Republicans when they try to block a permanent appointment to the post. But that should only be the beginning. He should also fire Tim Geithner, who has directly overseen so many of the administration’s previous attempts to deal with housing, which range from the merely feeble to incompetent and downright disastrous. As Neil Barofsky points out, it’s Geithner himself who has stood in the way of principal reductions previously.

If the president and the Democrats are just interested in politics, using DeMarco as a scapegoat will probably help them score some points. But if they’re serious about using principal reductions, the president needs to tackle the opposition directly and convince the public that principal reduction can be a useful tool. And President Obama needs to confront the arguments against them forcefully, whether those arguments come from foot-dragging bankers and investors or dug-in Republicans.

Foreclosures / Martin Column - 08/06/2012

Underwater secrets

Local governments' have often stirred controversy with their use of eminent domain. While it's supposed to be used for the public good, too often it has been used to profit developers, while the public just feels ripped off.

Still, the idea of local governments using eminent domain as a tool to stabilize home prices in some of Southern California’s hardest hit communities is an intriguing one.

It’s the kind of bold action that’s been missing in the government’s limp response to the foreclosure crisis.

But the scheme that’s unfolding in Southern California’s Inland Empire, rated as the one of the most underwater in the nation, is a step in the wrong direction.

It smacks of politically-connected high-finance types, boasting of their access to politicians as their “secret formula,” wheeling and dealing in secret.

A san Francisco venture capital firm is cooking up a scheme in San Bernardino to use the government’s eminent domain power to seize some underwater mortgages from investors who own them and have been unwilling to offer borrowers principal reduction that would allow them to stay in their homes.

The firm’s idea, apparently, is to for San Bernardino County and other local government’s form a joint powers authority that would allow those government to act together to use eminent domain to seize mortgage loans, not the property, of underwater homeowners who were not behind on their payments at “market value.”

Then, according to the scheme, the firm would find investors to issue new mortgages to the homeowners at that lower, more affordable “market value.”]

The plan was hatched by San Francisco-based Mortgage Resolution Partners. That’s the firm originally headed by Phil Angelides, former state treasurer, real estate developer and venture capitalist best known recently for leading a congressionally-appointed investigation into the financial crisis.

After issuing a report highly critical of the banks, Angelides didn’t stump the country to put pressure on authorities to follow up on his report with prosecutions.

He went into the mortgage business himself, swaddling his efforts to make profits from distressed mortgages in good intentions of finding solutions to the foreclosure crisis.

It was Angelides who boasted in a letter to potential investors that his firms’ secret formula was its connections to public officials. Reuters reported that Angelides told potential investors they could generate 20 percent profits.

After Angelides’ involvement in the firm was publicized earlier this year, he stepped aside. Replacing him was Steven Gluckstern, a hedge fund veteran who was one of President Obama’s major bundlers in the 2008 election.

According to published reports, Mortgage Partners would make its profit charging a fee on every mortgage seized. How much will it be paid and how? That hasn’t been disclosed. But according to Naked Capitalism, its sources say that the firm expects to make a 5.5 percent fee on each mortgage – paid for by having the government seize the mortgages at a discount and sell them back to the homeowner for a profit.

The most serious general flaw in the scheme is that has unfolded behind the cloak of confidentiality agreements between government officials and Mortgage Resolution Partners, with no public disclosure or debate on the concept or details, giving the whole deal the stink of a sweetheart deal, not a solution.

When the Riverside Press-Enterprise sought written records of communication between county officials and the mortgage firm, they were told there were none.

The use of eminent domain is highly controversial because it has often been justified as benefiting the public when it ends up benefiting real estate developers. In this case, investors who own the mortgage loans have already weighed in opposing the plan. Though the plan’s backers say eminent domain has been used to seize intangible goods, they acknowledge it hasn’t been used to seize mortgage loans before. So investors are likely to challenge the process in court.

But I wouldn’t shed too many tears for the investors, who have stood in the way of principal reductions or any other means of helping homeowners.

Another question raised by the current plan: why is only Mortgage Resolutions Partners being considered as a partner for the joint powers authority? The idea should be put out for an open bid. Maybe other firms would have even better plans and offer a better deal.

And there are plenty of other issues surrounding the plan. Walter Hackett is a former banker who is now lead attorney in the Legal Aid Riverside’s branch near San Bernardino. While he likes the idea of using eminent domain as a tool to stabilize home prices,

he questions why eminent domain would be used to seize mortgage loans – which are more difficult to set a price on – rather than property itself. Seizing the property and paying the investor for the fair market value of the property, rather than the mortgage, would extinguish the old mortgage and the new investors could then issue a new one to the borrower at the market value.

Hackett also questions why eminent domain would be used only on mortgages deemed current, so-called performing loans, rather than including properties that have already fallen into foreclosure that are still owned by investors. “Former owners, or others might be able to afford reduced payments once the properties are priced at market value, rather than at the price of the underwater mortgage,” Hackett said.

Hackett’s unusual background, having been a banker and represented homeowners in foreclosure, would be invaluable in redesigning such a proposal. It should not be left only to the venture capitalists and the county politicians.

I’m not suggesting that local governments shouldn’t find a way to use eminent domain or find other creative solutions to help struggling homeowners. But we also need to stop assuming that when the financiers and politicians go into the back room, they come out with something that’s in our interest – even if they say it is.

We learned from the bailout and the government’s subsequent coddling of the financial industry how the secrecy and lack of transparency undermine trust in both our financial system and our government.

However inconvenient to the bankers and hedge fund honchos, such proposals must be hammered out with full public participation and debate. We don’t need any more secret formulas” brewed with corporate cash and political connections in back rooms with you and me kept out.

Foreclosures / Martin Column - 07/12/2012

That incredible shrinking foreclosure settlement

I checked in with Citibank the other day to see how they were doing on their promise to reduce principal on loans for qualified underwater borrowers.

The bank had made that promise as part of a highly touted national settlement of foreclosure fraud charges with state attorneys general back in February.

One thing the bank did not agree to, apparently, was any sense of urgency.

A bank representative told me they had taken a couple of months to get set up and were now in the process of reviewing their borrowers’ files.

He said he thought they would be done by mid-August.

One thing we know for certain: without a tough independent monitor to track what the banks are doing, and not doing, they’ll take their time to produce little help for troubled borrowers.

We know that from the banks’ past poor performance in the administration’s various foreclosure aid programs.

But now state politicians are threatening to grab the cash that banks paid as part of the settlement – money that was supposed to be used to pay monitors to oversee the banks’ compliance with the settlement, along with hiring more housing counselors that could guide homeowners to assistance where it was available and providing legal advice.

At issue is the relatively small amount of cash penalties the banks actually had to turn over in the $25 billion settlement– about $5 billion– with half of that supposed to go to state attorneys general for new foreclosure assistance.

Another $20 billion consists of a dubious and highly complex system of credits given to the banks for taking actions to help homeowners, some of which they were already supposed to be doing.

The national mortgage settlement has always been mainly a PR stunt for the state attorneys general and the Obama administration, to try to make up for their shameful collective failures to protect homeowners from the bankers’ continuing fraud and sloppiness in the foreclosure process, or to hold bankers accountable.

The investigative outfit Pro Publica delved into what they called the “billion-dollar bait and switch,” with states planning to divert $974 million from the settlement to their general funds to cover serious budge deficits arising, ironically, from the Great Recession, which was caused by the bankers’ out of control speculation.

Among those that are looting money that was supposed to be targeted at helping those facing foreclosure are states that have been particularly hard hit by foreclosures, including California and Arizona. Those states got more money from the settlement to compensate for their residents’ victimization by the biggest banks in the foreclosure process.

In California, Governor Jerry Brown now intends to use the state’s $411 million settlement proceeds to help plug a severe budget gap, in particular to pay for existing housing programs, but no new foreclosure assistance initiatives.

You would think diverting the proceeds of a legal settlement would be illegal. But apparently states have the power to raid the settlement funds, having done so in 2003 with fancy financing schemes to get state officials’ hands on funds that were supposed to be targeted for health care costs from a 1998 settlement with tobacco companies, the San Francisco Chronicle reported.

State budget problems brought on by the 2008 financial collapse are enormous, but no more compelling than the continuing failure of our elected officials to grapple with the foreclosure crisis. That failure is now underscored by the hollow ring of the state AGs’ promises, and compounded by governors’ betrayal of those promises.

California Attorney General Kamala Harris / Foreclosures / Martin Column - 06/01/2012

With friends like these...

Who would squawk about giving California homeowners a little more protection against bankers, who have paid billions to settle charges of outright fraud in the foreclosure process?

Well, bankers of course.

You expect bankers to fight back when state officials take steps to rein in their illegal and improper practices.

That’s not a surprise.

Even though we bailed out the banks to help them survive, we have grown accustomed to their absolute devotion to their own interests at the expense of everybody else.

But why would an Obama administration federal regulator step in to interfere in a state’s business – on the banks’ behalf?

That’s what’s happened in California, where a proposal for a “homeowners’ bill of rights” by the state’s attorney general, Kamala Harris, has faced tough opposition from the bankers.

You would think that the Obama administration, if it were going to take a side, would want to be on the side of the state’s homeowners, not to mention Harris, who has been a co-chair of the president’s campaign and one of his strongest allies.

After all, President Obama, in his populist campaign mode, has paid strong lip service to homeowners and holding banks accountable. But that’s not what happened.

Instead, the general counsel of the Federal Home Financing Administration, Alfred Pollard, weighed in with a condescending letter to Democratic legislators fighting for the homeowners measure, warning that the legislation would “restrict mortgage credit and hamper necessary home seizures.”

Harris’s proposal sounds dramatic enough, a collection of six bills calling itself a “bill of rights.” But it’s actually a modest set of common-sense protections: for example, establishing civil penalties if banks continue their illegal practice of robo-signing in the foreclosure process, giving homeowners the right to challenge a foreclosure in court if banks don’t follow proper procedure, and prohibiting so-called “double-tracking,” in which banks foreclose while they’re negotiating a loan modification with the homeowner.

Banks have already promised to stop having their employees forge other people’s signatures on documents or verify that documents are accurate when in fact they haven’t even read them. The banks got off with barely a wrist slap for robo-signing and other foreclosure fraud in the recent “settlement” with state attorneys general and the feds. The settlement only costs the big banks $5 billion out of pocket while they negotiated another $20 billion in credits for taking a variety of remedial actions, some of which the banks were doing anyway – even without getting credit.

You might think that Pollard and his FHFA colleagues, who are responsible for overseeing Fannie Mae and Freddie Mac, might be more circumspect in lecturing others about screwing up the housing market.

During the housing bubble, Fannie and Freddie, which were originally set up by the government to support the housing market but went private in 1968, adopted all the bad behavior of the big banks, cooking its books, taking too much risk, throwing around their political muscle through lobbying and political contributions to stave off questions about their business shenanigans.

Then the government placed them in conservatorship, under the supervision of FHFA. Since the financial collapse, the agencies have not exactly put much muscle into helping homeowners facing foreclosure. The head of FHFA, a Bush Administration holdover named Ed DeMarco, has been particularly insistent that helping homeowners avoid foreclosure through principal reduction would be bad for taxpayers. But it turns out that in 2010, according to internal documents, Fannie Mae was about to launch a principal reduction program that its research showed said would save not only homes, as well as taxpayers hundreds of millions of dollars, before it was abruptly cancelled.

The principal reduction program was based on a model of “shared equity,” in which if the value of the home later rose, a homeowner would share any gains with the bank.

While the recent foreclosure fraud settlement with the big banks commits them to do some principal reduction, that agreement specifically excludes Fannie Mae and Freddie Mac.

A couple of Democratic congressman, Elijah Cummings of Maryland and John Tierney of Massachusetts, have written to DeMarco demanding an explanation.

“Based on the documents we have obtained, it appears that the shared equity principal reduction pilot program should have been implemented years ago, and the failure to do so may have resulted in unnecessary losses to U.S. taxpayers,” Cummings and Tierney wrote. “This was not merely a missed opportunity, but a conscious choice that appears to have been based on ideology rather than Fannie Mae's own data and analyses.”

Even for an administration that has been kowtowing to the banks from day one, FHFA’s failures, and its lame venture into California’s legislative process, represent a new low.

For a start, California legislators should ignore Pollard and his FHFA’s cronies lame advice. Even better, the president should pitch him and FHFA’s entire leadership out of the administration and replace them with people who know how to support the housing market, not just bankers.

Foreclosures / Martin Column / President Barack Obama - 05/24/2012

Homeowners' rights face tough fight

California’s bankers have decided that the state’s homeowners don’t need any bill of rights after all, and state legislators show signs of going along with the banks.

In February, California’s attorney general, Kamala Harris, garnered publicity for packaging several modest foreclosure reform measures together as a homeowners’ bill of rights.

Harris was attempting to get state legislators to permanently outlaw several of the most noxious of the banks’ practices during the foreclosure process, which about a half a million Californians now face.

Among the measures was one that would have outlawed the widespread practice of “double-tracking,” in which banks foreclose on homeowners while they are in the process of working out loan modifications. Another measure would have banned the widespread practice of “robo-signing,” in which the bankers hired low-level employees to sign off on stacks of key foreclosure documents without reading them or verifying their accuracy – a practice which the big bankers have supposedly already agreed to stop as part of a 49-state settlement of foreclosure fraud charges against the biggest banks.

But the settlement apparently only requires the biggest bankers to quit their robo-signing ways for three years; Harris’ proposal would make the ban on robo-signing permanent and apply it to other financial institutions not covered by the settlement.

Other parts of the “bill of rights” package would have imposed a $25 fee on banks when they file a default and required banks to establish a single point of contact for homeowners seeking a loan modification.

Harris, a close ally of President Obama, has even been touted as a possible choice for a U.S. Supreme Court. But she’s been overmatched by the combined forces of the California Bankers’ Association and the California Chamber of Commerce, which has labeled some parts of the package “job killers.” They’ve also spread a lot of cash around the legislature over the past 5 years, more than $33 million, so they’ve got legislators pretty well trained.

It would hardly be the first time that California’s legislators have balked at enacting sensible measures to protect homeowners, as well as taxpayers, from bearing the costs of bankers’ misdeeds during the state’s foreclosure crisis. In recent years, legislators also failed to enact proposals that would have required bankers to mediate with homeowners before foreclosure, and another that would have required banks to post a $20,000 for each foreclosure they file, to cover the costs to communities of abandoned, bank-owned property.

Harris was scheduled to testify before a legislative committee on the bills earlier this week when the head of the committee, Assemblyman Mike Eng, a Democrat, withdrew the bills.

The Sacramento Bee reports that the legislation is now headed for a conference committee made up of legislators from the state Assembly and Senate.

According to the Bee, this is a maneuver to get a vote on the legislation without having to go through Eng’s committee, Assembly Banking and Finance, which is apparently split on it.

If you live in California, now would be a good time to call your legislator and remind them that they don’t work for the bankers and the chamber. They work for you.

Action / California Attorney General Kamala Harris / Foreclosures / Martin Column - 04/19/2012

The Truth About the AG Mortgage Settlement...."Coming Soon"

The "settlement agreement" between state attorneys-general, the Obama Administration and five large banks over unlawful home foreclosures was front-page news everywhere this morning. Only one problem: you can't get a copy of the agreement itself. All we have is a few hand picked details promising "relief" to defrauded borrowers, and pledges by the banks that they'll obey the law from now on.

Check out the special web site, which proudly trumpets the "landmark settlement," the "historic"agreement and the "landmark relief," but offers only a factsheet entitled "Servicing Standards Highlights" that purports to summarize the deal, and a bunch of phone numbers for the banks and the AGs.

Everything else is "coming soon."

This is an outrage, and frankly, the news media and all the rest of the pundits out there ought to have demanded the full and complete document before heralding the settlement as a major event. To my astonishment, most of the reports I read today failed to note that the actual settlement agreement has not been released to the public.

Ever heard of the lawyer's favorite maxim, "the devil's in the details"? The banks here were accused of failing to comply with legal technicalities like proving that they actually held the mortgage to the homes they foreclosed on. When it comes to themselves, the bankers know those details matter: You can be sure that their lawyers have negotiated and reviewed every single comma. Shouldn't American taxpayers and homeowners, who have borne the terrible brunt of these banks' gross irresponsibility and greed for the last three years, had a chance to review the proposal before our elected officials signed on the dotted line?

I've seen this kind of stunt many times before - for example, a settlement of a lawsuit that was described by the parties in a press release as returning $500 million in overcharges to insurance customers. Months later, the settlement agreement itself is quietly filed with the court, and surprise! You had to fill out a ten page claim form to get your money, and the insurance company got to keep whatever's left. (As a lawyer for one of the policyholders, I joined with Consumer Watchdog in an objection to the settlement.)

It is no little irony that many people lost their homes because they didn't read the fine print of the loans, or couldn't understand what it meant. But when it comes to the settlement of the fiasco, no one can read it even if they want to. We have nothing in print, fine or otherwise, beyond the press materials.

Remember you heard it first here: there'll be lots of surprises when we finally get to look at the details of this deal.

Foreclosure / Foreclosures / Harvey Column - 02/10/2012

Task Force Deja Vu

MoveOn.org and other groups are declaring President Obama’s announcement of a new task force to investigate foreclosure fraud a significant victory.

These groups deserve credit and thanks for mobilizing people to call the White House and state attorneys general and organizing protests to push back against a weak proposed settlement of foreclosure fraud charges against big banks, without having first fully investigated the allegations.

But before we get too carried away with the celebrations, I think it’s worth examining the president’s announcement with a healthy dose of skepticism.

Because we’ve heard it all before.

In 2009, the Obama administration convened, with great fanfare, the “”Financial Fraud Enforcement Task Force,” which included officials from the Justice Department, Treasury, Housing and Urban Development, and the Securities and Exchange Commission.

Announcing the task force, U.S. Attorney General Eric H. Holder said it mission was to the mission was to prosecute the financial fraud that led to the 2008 economic collapse.

“Mortgages, securities and corporate fraud schemes have eroded the public's confidence in the nation's financial markets and have led to a growing sentiment that Wall Street does not play by the same rules as Main Street,” Holder said.

State attorneys general then formed their own mortgage fraud working group to work with federal authorities.

These previous efforts haven’t produced noteworthy results – no criminal charges have been brought against major bank executives, and no major policy changes have been put in place to force banks to help homeowners.

The 2009 task force was not exactly targeting the titans of Wall Street. As these high-profile task forces like to do, this one gave its “operations” hokey names like Operation Stolen Dreams and Operation Broken Trust that make everybody but the prosecutors cringe.

Touting Operation Broken Dreams in 2010, prosecutors bragged that it had netted 330 convictions related to mortgage fraud – but it focused on borrower, not bank fraud. While Operation Broken Trust focused on investment fraud, among its 343 criminal cases, it focused on lower-level fraudsters.

There was not a single case against a Wall Street banker.

While prosecutors often build cases against higher-ups using those lower in the food chain, that doesn’t seem to be the case with the 2009 task force.

In other words, the 2009 task force hasn’t done anything that would interfere with the flow of political contributions from Wall Street.

Evaluating the task force’s work, the Columbia Journalism Review found it more publicity stunt that real prosecution effort.

Meanwhile, the state AG’s efforts stirred MoveOn.org and other organizations to action. A handful of state AGs are balking at the inadequate proposed settlement, and California’s attorney general, Kamala Harris has joined with Nevada’s attorney general in walking away from the proposed settlement and pledging a real investigation into the foreclosure mess.

There are plenty of other reasons to be skeptical of the President’s newly- anointed task force, rounded up here by Dave Dayen on Firedoglake. While one of its co-chairs, New York Attorney General Eric Schneiderman, appears to be the genuine deal in his intention to crack down on financial crime, he’s being babysat (co-chaired) by two administration lawyers with dubious backgrounds when it comes to getting tough on bankers.

Robert Khuzami, head of enforcement at the SEC, used to be general counsel at Deutsche Bank, overseeing its huge risky investments in mortgages. Shouldn’t Deutsch Bank be a prime target of the task force?

At the SEC, he’s presided over several settlements that appeared to be overly generous to banks. Another other co-chair is the head of Justice’s criminal division, Lanny Breuer, who has been apologist in chief for the agency’s lack of aggressiveness in going after too big to fail bankers.

As a private lawyer, Breuer worked at the Washington D.C. law firm Covington & Burling, which represented too big to fail banks Bank of America, Well Fargo, Citgroup and JPMorgan Chase as well as MERS, the Mortgage Electronic Registration Service, a concoction of the real estate finance industry that runs a vast computerized registry of mortgages that has been at the center of complaints about false and fraudulent documents in the foreclosure process.

Breuer and Khuzami both played prominent roles in the president’s previous financial fraud task force, as members of its securities and commodities fraud working group.

The bottom line is that the new task force is only needed because of the abject failure of the administration’s previous efforts to prosecute the fraud at the heart of the financial meltdown.

According to statistics gathered by Syracuse University’s Transactional Records Access Clearinghouse, despite all the prosecutors’ puffery about their inanely named operations, financial fraud prosecutions fell to a 20-year low in 2011, continuing a decade-long downward trend.

If this new task force is not going to be a fraud itself, Khuzami and Breuer have to go. They should be replaced by real prosecutors without close ties to the big bankers.

Though you wouldn’t know it from the Obama administration, people like that do exist.

Blogger Abigail Field nominates two crackerjacks – Neil Barofsky, the tough former inspector general of the bailout, and Patrick Fitzgerald, U.S. attorney for the northern district of Illinois, who has successfully pursued several high-profile cases, including the perjury conviction of Scooter Libby, former VP Dick Cheney’s chief of staff.

So after you finish that glass of champagne celebrating the new task force, it’s time to get back on the phone. Here’s the president’s number.

Tell the president we don’t need another task force. We need prosecutors who aren’t compromised and who aren’t afraid to do their jobs.

California Attorney General Kamala Harris / Foreclosures / Martin Column / President Barack Obama / Securities and Exchange Commission (SEC) - 01/27/2012

For foreclosure relief, occupy the Legislature

Two years ago, California legislators bowed to bankers when they failed to pass legislation that would require mediation between a bank and borrower before banks could foreclose on the borrower’s home.

But a recent report by the U.S. Justice Department should cause the Legislature to take another crack at making a critical choice: Do they want to provide tools to reduce foreclosures, or do they want to keep kowtowing to bankers?

California remains among the hardest hit by foreclosures: third worst in the country.

While foreclosure rates are going down nationally, that’s more a reflection of the continuing mess in the foreclosure process itself rather than any fundamental restoration of health in the housing market.

So the problem hasn’t gone away by itself.

Federal efforts to help homeowners have been ineffective because they’re voluntary for the banks, with inadequate government oversight. For the feds, foreclosure reduction efforts have consisted mainly of offering banks modest incentives for loan modifications, incentives that are less than the profit the bank, in its role as loan servicer, makes from foreclosing on homes.

As demonstrated by the California legislators’ previous refusal to embrace mediation, government officials at all levels have so far lacked the political will to force banks to take the action needed to stem foreclosures. Two years ago, Assemblyman Pedro Nava spearheaded the foreclosure mediation effort, AB 1639, which passed the Assembly but died in the Senate under fierce banking opposition. Consultant on the bill was Los Angeles mediator Laurel Kaufer, chair of the State Bar's ADR committee.

Around the country, there have been a host of mediation programs around the country, with mixed results. ¶

Programs in Connecticut and Philadelphia successfully settled about three of every four cases, avoiding foreclosures. In Nevada, officials reported that about 42 percent of the cases in mediation settled without foreclosure. Nevada also reported another significant finding – the banks dropped many of the foreclosure attempts during the mediation process because there paperwork wasn’t in order.

But in late December, the Florida Supreme Court closed down its foreclosure mediation program after state officials determined it wasn’t working because so few cases eligible for mediation ended in settlement.

Then, just a couple of weeks later, the U.S. Justice Department issued a promising report calling for wider federal use of mediation in foreclosure and more research into how well it works.

The details of foreclosure mediation programs vary widely. The most successful programs, the Justice Department explained, are those that begin early in the foreclosure process, require mandatory participation, include some form of financial counseling for homeowners, are well publicized and require a high degree of transparency by the banks – meaning that banks have to disclose how their foreclosure process works, including the secretive, often confusing criteria by which they grant loan modifications.

Will the feds blow this opportunity to attack the foreclosure crisis, as they bungled their earlier efforts? Or will finally get a clue and start taking effective action?

In California, we shouldn’t wait to find out.

This Justice Department report should give a boost to a renewed effort to require mediation in California foreclosures, and offers some guidance to California in how to create a successful mediation program.

But it will only happen if people mobilize against the banking lobby, which is sure to oppose any attempt to weaken bankers’ complete control over the foreclosure process.

We keep hearing how the Occupy movement has changed the debate, how issues that couldn’t gain traction six months ago can now get a fuller hearing. We should seize the opportunity to give legislators the opportunity to get the bankers off our backs.

Foreclosures / Martin Column - 01/18/2012