foreclosure help

Via David Dayen, at least one federal regulator wants to do something about the foreclosure crisis. Federal Deposit Insurance Commission Chair Sheila Bear has proposed implementing rigid standards for mortgage services in the financial reform regulatory rulemaking. She's advocating the idea of a claims commission for homeowners.

Federal Deposit Insurance Corp. Chairman Sheila Bair wants a foreclosure claims commission set up, similar to the one established during the oil spill crisis in the Gulf of Mexico last year, to help homeowners victimized by improper foreclosures....

Lenders and servicers have restarted foreclosures from the robo-signing scandal and have begun refiling thousands of affidavits. Chase said it would mail out $2 million in refunds to those families.

But Bair wants to consider more in compensation and in new regulation.

"The mortgage servicing industry is fundamentally flawed and in desperate need of reform. It does not provide significant incentives to provide borrowers enough loss mitigation needs," Bair said.

She added that some servicers have become too big to succeed. Since 2000, the five largest servicers grew their market share from 32% to more than 60% today, Bair said, adding that these companies were either incapable of or reluctant to commit the resources necessary to implement effective loss mitigation practices.

As the 50 state attorneys general continue their investigation into the servicing industry, Iowa AG Tom Miller has said a fund to compensate borrowers victimized by robo-signers is on the table, but not necessarily pending.

It's good as far as it goes for those who've already been victimized by the mortgage servicing industry, but there's an immediate need to stop these unwarranted foreclosures and prevent their being further victims. Dday:

A nationwide compensation fund is fine, but in the end it’ll probably end up as just a payoff, the cost of doing business for the banks. You have to add to that real modifications with principal reductions, to reset the entire housing market and stabilize it. And you have to provide consequences for illegal behavior, which is in the background of virtually every foreclosure action over the past several years. Judge Arthur Schack is taking on foreclosure lawyers because they are lying in his court and breaking the law. The remedy for that is to throw those people in jail, and that needs to go all the way to the top. “I’m not going after lawyers, I’m out to do justice,” Judge Schack said. “We have something called due process of the law.” And there’s no justice without actual sanctions for criminal behavior. “We’re not Animal House,” concluded Judge Schack. “Some animals, like banks, are not more equal than others, to bring George Orwell into this.” It was Animal Farm, but have I mentioned that I love Judge Schack?

It's a start, and a good thing that someone in the administration is talking about doing something, anything on this issue. But it is just a start.

We were early to warn readers that Iowa Attorney General Tom Miller, who is heading the 50 state probe into mortgage abuses, was unlikely to take as tough a stand with banks as his early sabre-rattling suggested.

Now other close observers of the 50 state AG probe, like Marcy Wheeler of FireDogLake, have pointed out that expectations for this group were probably too high, given that some of the AGs had been opposed to the effort before, and they’d hobble the effort from the inside. But even though true, that observation still gives Miller more of an out than he deserves.

The fact is that Miller had decided, before any investigation was undertaken, that his group was not going to take any action that might allow investors to recover for losses. Why? Some of the parties in a position to recover would not be Americans. This came by e-mail before the December meeting at which Miller promised to “put people in jail” as well as obtain deep principal mods and compensation for defrauded homeowners:

The homeowners off to meet Tom Miller is a setup for a photo-op to imply buy-in. I was w/ a European documentary maker this weekend who spoke to Miller a few days ago and said Miller relayed the fraud isn’t so bad, everything will be worked out .. the standard line; he’s already made up his mind. He doesn’t want those European governments demanding their money back. The meeting is a photo-op setup because the too-big-to-fail crowd is scared of put-back liability and shorts; they’re working hard to make it appear they’re doing something to quiet everybody down.

So get this: so keen is a state attorney general to protect the wallets of big banks that he’s decided there wasn’t much fraud before doing any serious forensics. And his reason was to deny payouts to investors because they are foreign (China, are you taking notes?). But to prevent that outcome, he also has to throw US investors and wronged homeowners under the bus.

Welcome to equal protection under the law, circa 2011. No wonder gun sales are skyrocketing.

Thus Miller’s retreat is entirely predictable, and we can plot its trajectory. Following his “get tough with crime” mid-December declaration, Miller took criminal investigations off the table on January 4. From Bloomberg:

The five largest loan servicers, including Bank of America Corp. and JPMorgan Chase & Co., may be the first to settle with the 50 state attorneys general probing foreclosure practices, Iowa Attorney General Tom Miller said…..The group isn’t pursuing a criminal investigation, Miller said. “Our focus is to reform the servicing process and that’s inherently civil, not criminal,” he said.

One of our readers, who is a seasoned litigator, disagreed vehemently with Miller’s “this can only be a civil investigation” and provided examples of criminal prosecutions for analogous misconduct.

The latest step backwards by Miller is a softening in his stance and a refusal to reaffirm his earlier commitments. From Iowa CCI’s press release about its meeting yesterday with Miller:

Following their December 14th meeting with Iowa Attorney General Tom Miller, who is leading the 50-state investigation of the “foreclosure-gate” scandal, 200 members of Iowa CCI met with him again on Tuesday to continue the push for a settlement that will help millions of Americans stay in their homes. Iowa CCI is part of a coalition of community groups across the country fighting to end the foreclosure crisis.

“Tuesday’s meeting felt a lot different than the meeting in December,” said Iowa CCI Director Hugh Espey, “In our first meeting with Attorney General Miller we felt like we had a champion that was ready to go toe to toe with the big banks. We left this meeting wondering if the big banks had knocked the wind out of our state’s top law enforcer.”

“In many cases a loan modification is in everybody’s best interest – the homeowner, the investor, servicer and the national economy,” Miller had said in a statement following the December meeting. “… I know it’s worth our best efforts to save as many homes as we can.”

In Tuesday’s meeting The Attorney General was less forthcoming about the intended outcome of the settlement. He did not repeat previous commitments to aim for a settlement that would keep people in their homes, nor to press criminal charges against bank officials where evidence of fraud and criminal wrongdoing is found. The Financial Crisis Commission has recently referred several cases to the states for further criminal investigation.

As more aggressive AGs, like the ones in Arizona and Nevada, file suits against banks, perhaps their complacent peers like Miller will be embarrassed into acting. But until then, this “see no evil, hear no evil, speak no evil” by top enforcement officials appears likely to remain the norm.

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