Foreclosure-Gate 4.0  " the get outta Jail free card"
via: Yves Smith @ Naked Capitalism

Mortgage Fraud Whitewash: $20 Billion “Get Out of Jail Free” Settlement Floated Posted: 24 Feb 2011 02:19 AM PST American leadership is reliable in one respect: it consistently undershoots my already low expectations. Or maybe I have it backwards because I keep forgetting who the authorities are really serving, and it clearly isn’t you and me. As we will discuss below, the latest scam is that the banking regulators are finalizing a mortgage “breakdown” settlement, and they’ve evidently decided to let the industry off the hook for a mere $20 billion. In Saudi Arabia, the royal family has just offered $36 billion worth of concessions in an effort to placate an increasingly unruly public (this appears to be in addition to pledges to spend $400 billion on education, health care, and infrastructure by 2014). This is in a country with a population just under 26 million, including over 5 million non-nationals who presumably aren’t eligible. Now you can easily pooh pooh this comparison, since Saudi Arabia is an autocratic country desperately throwing around money to buy off dissidents, right? But this is the kind of money a leadership group will shell out when pressed to defend an existing order. And the US was very quick to hand out funds right, left, and center during the financial crisis. It’s continuing to do so now in less obvious ways, by continued life support for the mortgage market through Fannie and Freddie, the Fed’s super low interest rates and QE2, and non-monetary measures, most important its refusal to make any sort of serious investigation into what happened in the crisis and prosecute key actors. Most observers, yours truly included, had expected very little from the multi-regulator “foreclosure task force” announced last year. It was clearly designed to be an even more cosmetic exercise than the stress test charade, which does take a certain amount of brazenness (or more likely, confidence in the public’s inability to follow the three card monte). But a bad situation devolved; the Treasury had appeared to be in charge, and that department at least tries to put a minimum level of professional spit and polish into its charades. When OCC acting chair and chief bank enabler John Walsh got up to speak in an official capacity about the process in last week’s Senate Banking Committee hearings, it was evident there was not even going to be an effort to pretend that this was a serious undertaking. Even so, the mortgage “settlement” trial balloon floated in the Wall Street Journal this evening is an offense to common sense and decency. Notice how the word “fraud” is pretty much verboten in the MSM; the latest code word for what went awry is “breakdown”. This implies a benign sort of neglect, simply of not doing sufficient maintenance which led fussy machinery to quit working. It is mean to avoid contemplating, let along uncovering, Pinto-type decisions of weighing the costs of making the vehicle safer versus the litigation losses resulting from incineration by exploding gas tanks. The magic number across the industry is a mere $20 billion in civil fines or payments to fund loan mods. We know from BP not to have a great deal of confidence in settlement funds. It is not yet clear what scope of activities get a free pass (fraudulent servicer charges and impermissible compounding fees? failure to convey notes to mortgage trusts as stipulated in the PSA? foreclosing on home where HAMP mods had been promised?) but the industry will want any waiver to be as broad as possible. But in any kind of settlement of fraud, like securities fraud charges, various responsible parties are also barred from working in the industry, sometimes for life. None of that is on the table. The plan involves having servicers give borrowers principal mods, but obviously only to the extent of the fund amount. The WSJ story announces that mortgage investors will suffer no losses. This shows how backwards the logic here is. Investors would LOVE principal mods to qualified borrowers; it’s far better than taking 70%+ losses on foreclosures. So saving RMBS investors any pain should never have been a feature of the plan design. And that means it is really a fig leaf for avoiding writedowns on second liens, which are heavily concentrated in the four biggest TBTF banks. The officialdom is taking the stance that only a small number of borrowers suffered wrongful foreclosures. The HAMP fiasco alone makes that patently untrue. And the regulators’ failure to compare servicer records with borrower records (the short time frame of the task force effort guarantees that did not take place) makes this a garbage in, garbage out exercise. And that’s before you get to the question of fraudulent servicer charges, which foreclosure defense lawyers say represent 50% to 70% of the cases they handle (it’s easier to win based on standing so court records do not reflect the borrower reason for choosing to fight the foreclosure). Without an audit of servicer software, this regulatory assessment was a simple “see no evil” exercise. Nor do I see any mention of imposing new servicing standards on banks, another massive oversight. The servicers, as well as Fannie and Freddie, would be required to provide principal mods. But given the meager settlement amount, this is a complete and utter joke. The mods will be too shallow and too few in number to help either borrowers or the housing market. Both J.C. Flowers and Wilbur Ross, both very tough minded investors, have found deep principal mods work, and research supports their views. Why are borrowers going to struggle to make home payments when they still face a loss and/or a big tax bill when they try to sell the home? If you assume a combined first and second mortgage balance of $200,000 and a mod of 10%, or $20,000, which is too low to make much difference to borrowers and well short of what investors would accept (given 70%+ expected losses on a foreclosure, 25% to even 50% is a no brainer), you only get 100,000 mods. And as Marcy Wheeler correctly points out, this program is really HAMP 2.0. When a small group of bloggers visited the Treasury last August, HAMP was such an obvious failure that the staff didn’t even try hard to defend it. One of the excuses offered by Geither was that Treasury lacked authority over servicers (a point I disputed, since Treasury has plenty of leverage at its disposal). So there isn’t even any reason to believe the banks (ex perhaps the Fannie and Freddie loans) will live up to their commitment do a paltry number of mods. As Marcy noted: …basically, it sounds like HAMP II–a “plan” that still lets banks decide how to implement that “plan”–with the sole improvement on HAMP I that it requires 2nd Liens to be “reduced” (but not eliminated) in the process of modifying the first liens. The deal wouldn’t create any new government programs to reduce principal. Instead, it would allow banks to devise their own modifications or use existing government programs, people familiar with the matter said. Banks would also have to reduce second-lien mortgages when first mortgages are modified. The good new is it does not sound like there is a deal agreed. The powers that be have yet to corral the state AGs (since when were they going to be part of this scheme?) and the servicers themselves. So readers can help create heat on the officialdom. It would be very useful to come up with estimates of various types of damages (and it needs to be bottoms up, not “the global financial crisis cost X trillion and at least 25% is the fault of these clowns). First would be a list of types of damage done, and it should be mutually exclusive, and ideally collectively exhaustive. Next are any factoids that would help dimension the level of overall damage per category. For instance, some readers yesterday started using the Massachusetts lost recording fee estimate to try to ballpark the recording fees lost to MERS on a national basis. Having the level of damages (which would certainly wipe out the banks, but we want everyone reminded of that fact, that any “settlement” is yet another gimmie) then serves as a basis for talking about monetary settlements and other required behavioral changes. The adverse reaction to the Center for American Progress’ Fannie and Freddie “reform” trial ballon apparently did put the powers that be on the back foot; reader information gathering and ideas here would be of great value in putting forward an even more forceful rebuttal to this disgraceful proposal.

Daniel Pennell: MERS Counsel Calls Me Posted: 23 Feb 2011 11:52 PM PST By Daniel Pennell, a systems expert who has testified before the Virginia House of Representatives on MERS I wonder if solar flares or something in the ether is prompting officials under attack to have unusually open conversations with people in the opposition. We’ve just had Governor Walker speak to “David Koch”, and I had a mini version of the same experience with MERS’ general counsel, except in my case, I was the recipient of the phone call. But the underlying assumptions of MERS and the Wisconsin executive were similar, in that each is confident of support from powerful allies. Given that I am a vocal MERS critic, though testimony I have given, opinion pieces I have written and the work on legislation I have done over the last year decrying the legal standing and operational sloppiness of MERS, I was more than a little taken aback to get a call from Richard Anderson of the MERS legal team yesterday. Our conversation cast some light on the thinking and culture of MERS as it fights for its life against a barrage of legal challenges. Mr. Anderson was in fact calling in response to an email I had sent to MERS last week (see below) asking how MERS intended to manage its response to the Agard case in N.Y. where judge Grossman clearly said (or in Mr. Anderson’s words “opined from the bench”) that MERS did not have the legal standing to assign mortgages. Our conversation covered three areas of interest to those of us who have followed the foreclosure crisis and MERS saga, the effect of the Agard case, the MERS announced changes to their membership agreements and the ongoing OCC investigation. As regards the Agard case in N.Y, Mr. Anderson first pointed out that MERS has 300 plus cases that support its legal position. He then went on to tell me that Judge Grossman did not understand or chose to ignore the laws of N.Y. and that his comments regarding MERS were nothing more than his “opining from the bench” and therefore had no legal relevance and because it was nothing more than an “opining” that there was nothing for MERS to appeal. When I pointed out that the MERS announced changes to its membership agreements that followed so quickly on the heels of the Agard decision seemed to align almost exactly with the comments made by Judge Grossman, Mr. Anderson said that it was just a “coincidence of timing” and that the changes were just intended to avoid any potential legal issues and to improve and secure the MERS business process. It’s interesting in light of Mr. Anderson’s remarks that a Naked Capitalism reader reported yesterday that banks have been settling cases where MERS is at risk of getting an unfavorable judgment. As he wrote: That’s not unexpected behavior–better to cave with small dollars than to lose plus have adverse law become embedded in the case law for an entire federal district. That makes it appear to non-specialists that the jurisprudence in favor of lenders/MERS is static. I then asked Mr. Anderson about the OCC investigation. I pointed out that the reports I had read, including those in the Wall Street Journal, said that the OCC was nearly complete with its investigation of the servicers and that although MERS was originally part of that investigation, it appeared that the investigation into MERS was being parsed out and put on a separate and ongoing track. Mr. Anderson said that he could not comment on the OCC investigation or actions but then went on to say that no administration would allow, nor would it allow a judge’s ruling, to threaten the legal standing of a MERS member to take a home. He pointed out that MERS has some relationship with 60% of the mortgages in the country worth in the trillions of dollars. In other words, in his opinion, regardless of the law or the findings of the OCC, MERS is too important because of the dollars associated with its operation to be allowed to be found to be acting illegally. In short, this man, who from his position as legal counsel for the party under investigation has inside knowledge of the OCC investigation, is confident that the government will do all it can in its power, regardless of the evidence, to assure that MERS and its members are allowed to proceed as they wish because of the potential financial costs. I found a few things about this phone encounter interesting. First, one would think that a member of the MERS legal team would think to check their membership lists before responding to such sensitive questions. That however would assume that they actually know who all their members and member contacts and given what we know of the MERS system that might be giving them too much credit. Second, I was struck by the, not quite contemptuous, disregard of the opinion of Judge Grossman. Mr. Anderson’s use of the word “opining” and his tone implied to me his general dismissal of the judge and his opinion. Third, the willingness of Mr. Anderson to so readily express his opinion, an opinion that must be at least partially based on inside knowledge, that the OCC and the administration would do all it could to protect the standing of MERS members. These three things tell us something of the MERS culture and what they are thinking internally. Although the words, descriptions and tone were those of Mr. Anderson communicating with what he must have assumed was a MERS member, one has to suppose that his thoughts and attitude, if so blatantly displayed must reflect the thinking and attitude of the larger organization. And that thinking was clear: that MERS is too big to fail, and hence will never have to worry about having to account for its sloppiness and misconduct. But is this confidence well founded? As much as MERS believes it has bank regulators firmly in its camp, its reach into courtrooms all over America is quite another matter. I’d like to think that one reason Anderson was so keen to dismiss the judge’s decision in Agare is that he, and increasingly other judges, do not accept that financial services industry players are above the law. From his ruling: The Court recognizes that an adverse ruling regarding MERS’s authority to assign mortgages or act on behalf of its member/lenders could have a significant impact on MERS and upon the lenders which do business with MERS throughout the United States….This Court does not accept the argument that because MERS may be involved with 50% of all residential mortgages in the country, that is reason enough for this Court to turn a blind eye to the fact that this process does not comply with the law.

Bill Fleckenstein and Dylan Ratigan Discuss Commodities and “Individually Smart, Collectively Stupid” Regulators Posted: 23 Feb 2011 11:00 PM PST This is a particularly crisp and straightforward discussion between money manager Bill Fleckenstein and Dylan Ratigan about central bank actions and commodities inflation. Enjoy!