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While Wronged Homeowners Got $300 Apiece in Foreclosure Settlement, Consultants Who Helped Protect Banks Got $2 Billion

POSTED:
Senator Elizabeth Warren
Senator Elizabeth Warren
Andrew Harrer/Bloomberg via Getty Images

The obscene greed-and-arrogance stories emanating from Wall Street are piling up so fast, it's getting hard to keep up. This one is from last week, but I missed it – it's about the foreclosure/robo-signing settlement that was concluded earlier this year.

The upshot of this story is that in advance of that notorious settlement, the government ordered banks to hire "independent" consultants to examine their loan files to see just exactly how corrupt they were.

Now it comes out that not only were these consultants not so independent, not only did they very likely skew the numbers seriously in favor of the banks, and not only were these few consultants paid over $2 billion (over 20 percent of the entire settlement amount) while the average homeowner only received $300 in the deal – in addition to all of that, it appears that federal regulators will not turn over the evidence of impropriety they discovered during these reviews to homeowners who may want to sue the banks.

In other words, the government not only ordered the banks to hire consultants who may have gamed the foreclosure settlement in favor of the banks, but the regulators themselves are hiding the information from the public in order to shield the banks from further lawsuits.

Secrets and Lies of the Bailout

To recap: in the foreclosure deal, 13 banks agreed to pay a total of $9.3 billion to settle their liability in a number of areas, including robo-signing, which is just a euphemism for mass-perjury – robo-signing is the practice of having low-level bank employees sign documents attesting to full knowledge of case files in court foreclosure actions, when in fact they were signing hundreds of files per day, often having no idea whether the paperwork was correct or not.

It was done across the industry and turned housing cases across America into nightmares of jumbled and/or forged paperwork, in which even people who did not deserve to be thrown out of their homes were uprooted thanks to systematic errors by faceless bureaucrats who cut legal corners purely to save money.

All the major banks were guilty on a mass scale, but they worked with federal regulators like the Fed and the Office of the Comptroller of the Currency to secure this wide-ranging, industry-saving settlement, which not only covered the robosigning epidemic but a host of other bad or illegal practices, like the wrongful denial of modifications and the improper levying of (often hidden) fees.

Minus this crucial settlement, banks would have faced enormous uncertainty about their legal liability going forward, and getting a deal that not only gave these companies some legal closure but allowed them to pay pennies on the dollar for their illegal activity was a massive coup for the whole finance sector.

Only $3.6 billion was earmarked for cash payments to the nearly 4 million homeowners covered in the settlement. Most of the remainder of the deal was in other forms of non-cash relief, i.e. modifications or principal reductions.

Now, at the time of the deal, press releases by the Fed and the OCC stated that part of the reason they'd fixed on that particular settlement amount was that regulators had uncovered that banks had made errors or committed illegal acts in about 6.5 percent of the mortgage files reviewed. In other words, the error rate was an important component of this calculation.

But it turned out that this error rate had been calculated with the help of several consultant firms regulators had ordered the banks to hire. Regulators had mandated the hiring of these "independent" consultants back in 2011, and the list of companies included Promontory Financial Group, PricewaterhouseCoopers, Ernst & Young, and Deloitte & Touche. These private firms were hired to review the banks' loan files in search of errors, and collectively were paid by the banks over $2 billion, a staggering sum which ultimately worked out to over $20,000 per file.

With such highly-paid help, it would seem impossible that these consultants could screw up so simple a task as figuring out how many of these mortgage files were corrupt. Regulators came up with the 6.5 percent number this past January, then shortly afterward revised the number downward, saying that only 4.2 percent of some 100,000 mortgage files reviewed were compromised.

But that low number stank so badly that even the Wall Street Journal was moved to check it out, and in late February, in a story called "Foreclosure Files Detail Error Gap," the paper discovered that the error numbers were almost certainly very much higher. From that piece:

A breakdown of the information provided to the regulator shows that more than 11% of files examined for Wells Fargo WFC +0.39% & Co. and 9% of those for Bank of America Corp. had errors that would have required compensation for homeowners, said people who have reviewed the figures. A narrower sample of files – representing cases selected by outside consultants – showed error ratios of 21% for Wells Fargo and 16% for Bank of America, the people said.

The OCC findings appear skewed by the outsize contribution of one bank, J.P. Morgan Chase JPM -0.39% & Co., which reported an error rate far below rivals that oversaw a much larger universe of loans.

J.P Morgan was responsible for more than half of the completed files counted in the OCC review and reported compensation-worthy errors in just 0.6% of cases, according to people familiar with the figures.

So you have numbers from all of these other banks coming in at 9 percent, 11 percent, even 21 percent, and yet somehow J.P. Morgan Chase came in at 0.6 percent. The OCC just took the Chase numbers and averaged them together with the rest and ultimately came up with the 4.2 percent number.

So how did Chase come out so squeaky clean? Well, it seems they developed quite a rapport with the government-mandated consultants who were hired to review their loan files. This is from that WSJ report:

Two Deloitte employees who performed the review for J.P. Morgan in a Brooklyn office building said workers were encouraged by supervisors to examine pools of loans they knew would be less time-consuming or error-prone as they tried to hit loan quotas.

One of these employees said that at an event last year known in the Brooklyn office as "March Madness," Deloitte officials encouraged reviewers to avoid problematic loans originated by EMC Mortgage, a troubled mortgage lender J.P. Morgan acquired in 2008.

So basically Chase allegedly warned the consultants off their problem loans and incentivized the consultants to examine the less-fucked-up loans. Employees of another of Chase's auditors, Promontory, were reportedly given gift cards of up to $500 for "completing a certain number of files quickly."

The whole thing was a joke. Government orders banks to hire auditors to investigate robosigning, then banks induce said auditors to robosign the investigation! Because that's exactly what that would mean, if there were financial incentives to finish masses of files quickly. It's horrible, obviously, but on another level, it's so ingeniously corrupt, one almost has to tip a cap to whoever thought of it.

Incidentally, what were Chase's real numbers? I mean, if it hadn't been a consulting firm hired by Chase for buttloads of cash to do the study, what might an auditor have concluded? Well, as reported by (among others) David Dayen at Naked Capitalism, we got a glimpse into one possible truth when the HUD Inspector General released a report that included an ad-hoc survey of Chase loans:

For Chase, we also reviewed 36 affidavits for foreclosures in judicial States to determine whether the amounts of borrowers' indebtedness were supported. Chase was unable to provide documentation to support the amounts of borrowers' indebtedness listed on the affidavits for all except four. When we reviewed the four affidavits, three were inaccurate. Specifically, the amounts of the borrowers' late charges and accumulated interest did not reconcile with the information in Chase's mortgage servicing system.

As Dayen jokingly pointed out, that means the gap in the stats was relatively small – Chase's loans were either 97.2 percent fucked (as HUD found), or 0.6 percent (as Chase/OCC found). Somewhere in between there.

Anyway: In March, a Washington law firm called Williams and Connolly sued the OCC for failing to properly ensure that the auditors would be truly "independent." The firm declined to say on whose behalf it was suing. Around the same time, members of congress like the House's Elijah Cummings and new Massachusetts Senator Elizabeth Warren started to become interested in these consulting arrangements, expressing concern that perhaps the settlement number had been reached in error.

Fast forward a few weeks. It's April 11th, and Warren, along with Sherrod Brown and Jack Reed, held hearings on this whole issue, bringing in officials from the OCC along with some of these consultants to get to the bottom of a number of issues, including, most importantly, how the settlement was calculated, and who decided who would receive how much compensation.

There were two major revelations from these hearings, in addition to the ongoing revelation that the suits who people the country's financial regulators are sniveling, obfuscatory weasels who clearly view the banks they're supposed to be regulating as a bunch of stand-up dudes while the taxpayers who are always demanding this or that (and the politicians who represent them) are humorless pains in the ass.

In terms of new revelations, the first was this one, a real shocker: that apparently, it was not even the obscenely overpaid, lapdog consultants who made the final decisions about which homeowners fell into which boxes in terms of settlement compensation. Incredibly, it appears that the banks themselves were allowed to do that sorting process!

This came out when Warren was interviewing private consultants from PriceWaterhouseCoopers, Promontory, and Deloitte and Touche:

Senator Warren: I just want to take a look at the Independent Foreclosure Review Payment Agreement details. I think you've probably all seen this one page agreement that lists all of the things that the banks did wrong and then boxes for how many people fall into each category and how much money they're going to be paid. Is that right? You've all seen this? [Panel indicates they have seen it.] And this was put out – who put this out? I think this is put out by the OCC and Federal Reserve. Is that right? As part of the settlement details.

In the settlement there is a one-page document that lists all the various misdeeds the banks engaged in during the foreclosure process, then goes on to list how many homeowners were victimized by each activity. Warren is showing this document to these consultants and she's asking them, did you prepare these statistics? She goes on – listen to the answers from the auditors:

Senator Warren: So I just want to ask you about this. It has some pretty amazing categories here. The first category is about service members who were protected by Federal law whose homes were unlawfully foreclosed. It's got people who were current on their payments whose homes were foreclosed. It's got people who were performing all of the requirements under a modification who lost their homes to foreclosure. And it tells how many people fall into each category and how much money the people in that category will receive. And, it ultimately resolves what will happen to 3,949,896 families. So the question I have is having resolved this for nearly 4 million families, who put the people, the families, into each of these boxes. Is that what your firms did, Mr. Ryan? 

Owen Ryan, Partner, Deloitte & Touche LLP: No, Senator, we did not. 

Senator Warren: So who put them in?

Ryan: I'm not sure how that schedule is prepared. I saw it for the first time yesterday. 

Senator Warren: Mr. Flanagan? 

James Flanagan, Leader, U.S. Financial Services Practice, Pricewaterhouse Coopers LLP: Same response. We were not involved in the accumulation of that information. 

Senator Warren: Mr. Alt? 

Konrad Alt, Managing Director, Promontory Financial Group: Senator, I've seen the schedule but I'm not familiar with the basis for its preparation. 

Having established that the consulting firms did not do this sorting, Warren presses toward the obvious conclusion:

Senator Warren: So that leaves us with the banks that broke the law, were then the banks that decided how many people lost their homes because of their lawbreaking. And, as a result, how many people would collect money in each of these categories. Is that right,Mr. Alt? 

Alt: Senator, I'm not familiar with the basis for the scheduling. 

Senator Warren: So far as you know, there's no independent review of the banks' analysis . . . You looked at 100,000 cases, and the banks have now put 4 million people into categories and resolved finally how much they will get from this review by the OCC and the Federal Reserve.   

So that's bombshell Number One – it wasn't the auditors who decided which homeowners fell into which categories, it appears to have been the banks themselves. Bombshell Number Two? The representatives of the OCC and the Fed – remember, federal regulators whose job it is supposedly to protect ordinary people – flatly refused to give any information about the real results of their surveys, i.e. their inquiries into what the real error rates were.

Even worse, when pressed on the question of whether they would deliver any evidence of wrongdoing they uncovered to private parties who might want to sue, they hedged.

In these exchanges, Warren questions Daniel Stipano, deputy chief counsel from the OCC, and Richard Ashton, Associate General Counsel for the Board of Governors at the Fed. There are two key sequences.

In the first, Warren asks both men if they will make public what they know about the extent of the illegality and errors – whether the real error rate was, as she put it, 1 percent or 90 percent. But the two officials respond in gibberish legalese (if you watch the video, Ashton in particular seems to take pleasure in dicking the Senate around with his verbose non-answers), repeatedly forcing Warren to pin him down to their actual concrete position, which turns out to be, "Fuck you." For example:

Senator Warren.  So let me just make sure I understand this completely. I want to know on a bank-by-bank basis the number of families that were illegally foreclosed on. Will you give me that information?

Mr. Stipano. Eventually, we are going to issue a statement to the public where we provide additional information, but if we go through the processes that I described previously, we can share it to Congress in its oversight capacity.

Huh? I have no idea what that means, but it sounds positive – it did to Warren, too:

Senator Warren. So you are saying you will make that information publicly available?

Mr. Stipano. I did not say that. I said that we are planning on issuing a public statement that wraps up the IFR that provides additional information . . .

Ultimately, both the Fed and the OCC turned out to be united on the issue. They'll release something, but it won't be the real numbers. Frustrated, Warren asked them where the public is supposed to get the numbers, if not from them. Their answer is, well, they can maybe pull it out of their butts, if they get lucky – not our problem:

Mr. Stipano. Well, sometimes you get information through third parties, through outside sources. But in this case, that is not the case.

Senator Warren. So unless someone throws a rock through the window with this information tied to it, you will not release it, is that what you are saying?

Stipano here replies with more gibberish:

Mr. Stipano. To the extent that the information is confidential supervisory information derived from the exam process, it is subject to privilege.

From there, Warren asks a more specific question. What if someone wants to sue a bank for illegally tossing them out of their home? And what if you have evidence in such a case? Wouldn't such evidence be, you know, helpful to those people? Stipano helpfully agrees, yes, it would be helpful:

Senator Warren. All right. So let me ask it from the other point of view. You now have evidence in your files of illegal activity, I take it, for some of these banks.   I get that from the evidence you have released about the charts, who is going to get paid what.         So if someone believes that they have been illegally foreclosed against, will they still have a right under this settlement to bring a lawsuit against the bank?

Mr. Stipano. Yes.

Senator Warren. All right. Now, if a family wants to bring a lawsuit--you are both lawyers--would it be helpful, if you are going against one of these big banks, would it be helpful for these families to have the information about their case that is in your files? Mr. Ashton?

Mr. Ashton. It would be helpful, obviously, to have information related to the injury. Yes, it would.

Which leads to the next question – having acknowledged that it would be helpful, will you help?

This seems like it should be an easy answer, but it isn't:

Senator Warren. Okay. So do you plan to give the families this information? That is, those families that have been victims of illegal foreclosures, will you be giving them the information that is in your possession about how the banks illegally foreclosed against them? Mr. Ashton?

Mr. Ashton. I think that is a decision that we are still considering. We have not made a final decision yet.

Senator Warren. So you have made a decision to protect the banks but not a decision to tell the families who were illegally foreclosed against?

Mr. Ashton. We have not made a decision about what information we would provide to individuals, that is true. Yes.

Senator Warren. Mr. Stipano?

Mr. Stipano. We are in the same position.

Obviously these guys can't come out and say, "We're not giving anybody anything. Blow us." That would cause too much of an uproar. So they just say they haven't decided, and we all know what that means. Warren tries to frame the issue in the most embarrassing way possible, but the witnesses prove immune to such embarrassment:

Senator Warren.  So I want to just make sure I get this straight. Families get pennies on the dollar in this settlement for having been the victims of illegal activities or mistakes in the banks' activities. You let the banks, and you now know individual cases where the banks violated the law and you are not going to tell the homeowners, or at least it is not clear yet whether or not you are going to do that?

Mr. Stipano. We have not made a decision on what we are going to tell the homeowners.

All of this just confirms what we already suspected about the foreclosure settlement. This whole enterprise was conceived by the government solely as a means of dealing with the explosive problem of containing the private liability of these "systemically important" companies. Not only are we not prosecuting these firms anymore, we're also actively in the business of protecting them from litigation.

No other conclusion is possible from this testimony, which shows that our two primary regulators not only withheld information about bank illegality and errors prior to the settlement, but plan on continuing to do so going forward. There can be only one reason for concealing that information from the people affected by those "errors."

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Matt Taibbi

Matt Taibbi is a contributing editor for Rolling Stone. He’s the author of five books and a winner of the National Magazine Award for commentary. Please direct all media requests to taibbimedia@yahoo.com.

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