Matthew Yglesias is on vacation.
Yesterday a jury found Bank of America liable for mortgage fraud. Bank of America had deliberately gutted its system for detecting bad loans in a program officially known as the High Speed Swim Lane, or “Hustle.” An internal review in 2008 found that 57 percent of Hustle loans defaulted, according to prosecutors.
Through Hustle, Countrywide (which Bank of America now owns) pushed through a large number of risky loans, which in turn were backed by Fannie Mae and Freddie Mac. According to the government, Fannie and Freddie suffered $850 million in gross losses and net losses of $131 million. Meanwhile, the government says that Countrywide made $165 million.
More interesting, however, is that the jury also found Rebecca Mairone, a Countrywide-turned–Bank of America executive, liable for fraud. How did she earn such an ignominious award? The most damning piece of evidence is an email that Countrywide’s head of underwriting sent to then-senior-executive Mairone listing concerns from employees about Hustle. (I’m guessing it started with: “The name ‘Hustle’ probably won’t play well in front of a jury.”)
Both findings of liability underline a few unpleasant facts about the current justice system. Fact no. 1 is that companies settle whenever possible, which usually means they don’t have to admit fault. Reuters says this is the "first financial–crisis related case against a bank by the Justice Department to go to trial under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA)," a law born from the 1980s savings-and-loans scandals. Bank of America reached a $10 billion settlement with Fannie Mae earlier this year. More of that may be on the way. The government’s thinking is that this helps conserve funds and avoids risking a loss at trial. Too bad it looks like large companies getting preferential treatment from a revolving door.
No. 2 is that, considering how few people have been held responsible for the mortgage crisis, liability for fraud appears to require a pretty big smoking gun: First you need to screw up, then you have to be informed that you're screwing up, then you need to keep screwing up, and then you have to get caught.
No. 3 is that problems aren’t going away. Mairone is now at J.P. Morgan Chase & Co. At first, she was working at their Independent Foreclosure Review (though a J.P Morgan spokesperson said she’s now in a different unit, and that they are reviewing the decision). The Independent Foreclosure Review is a government-mandated program that requires banks to compensate borrowers they harmed through wrongful foreclosure. In other words, it seems as though Mairone had just the skill set a bank would be looking for.
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