Showdown for the Banks, Showtime for Obama

The proposed $25 billion "settlement" of the mortgage servicing mess, scheduled to be made public any moment, must be a way station to much larger reductions of mortgage principal for underwater homeowners -- and much more serious consequences for the banks and their allies, whose fraudulent actions created the mortgage meltdown. If the settlement turns out to be the final installment of relief for homeowners, it will be a colossal failure, both as economics and as justice.

 

However, while the settlement talks among state AGs, the Obama administration and bankers were in their final phase last week, New York Attorney General Eric Schneiderman filed a massive lawsuit against three of the largest players, Wells Fargo, Bank of America, and JPMorgan Chase. This bodes well for further enforcement actions, settlement or no settlement.

 

The lawsuit minces no words in alleging that the big banks fraudulently used the electronic system known as MERS to "evade county recording fees, avoid the need to publicly record mortgage transfers and facilitate the rapid sale and securitization of mortgages en masse." According to Schneiderman, the illegal scheme saved banks $2 billion directly in recording fees, and the banks could be subject to much more money in fines. Schneiderman's suit also seeks to block the ability of the banks to foreclose on some 70 million properties held in the name of MERS.

 

Much of this same fraudulent misconduct is also the subject of the proposed settlement talks. Schneiderman signed onto the talks, and to a newly activated federal task force on criminal wrongdoing in mortgage securitization. So how can he file this case without blowing up the talks?

 

The answer is that the suit does blow up the wrong kind of settlement -- one that would protect the banks from further civil and criminal liability. In fact, the settlement now taking final shape would only narrowly insulate banks from federal and state litigation directly related to fake robo-signing. Nothing in it shelters the banks from other liability, such as fraudulently claiming that trust documents contained mortgage notes that in fact weren't there. The proof of the pudding is that Schneiderman's case went forward, and there will be more such cases.