There is much to study in the weekend's financial news but we came away with one new insight about an old problem: as public debt grows, public services decline; as public services decline, less taxable revenues are circulating, which makes the problem worse and worse. Today we see Gov. Jerry Brown, who won his tax increase, deciding how to spend it -- on services or on buying California out of debt. Or what mixture of the two? A good question because the human debt in terms of lost quality of life, opportunity, education and health also grows albeit at a different rate on compound interest on public debt. Financial bankruptcy is not the only kind of bankruptcy.
When debt becomes the top profit center in an economy, we suspect that economy is approaching its demise. The debt just keeps growing, the concentration of finance, insurance and real estate special interests keeps increasing so that fewer and fewer are reaping the rewards from the Debt Boom (untouched by corrective legislation) and, where it particularly interests us, it all brings more direct pressure on the environment and laws, regulations and agencies charged with protecting it. A stark example is in California, where the governor refers to the California Environmental Quality Act as "the Thing," and is planning to weaken it, no doubt with the help of the Democratic Party super majority in the Legislature, in the coming legislative session. Meanwhile, indicator species like the Delta smelt spiral down to extinction.
The point of posting the articles below is that they make the point that it is the political economic system as a whole that is putting so much pressure on man and beast and all the flora and fauna.
Badlands Journal editorial board.
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America's Deceptive Fiscal Cliff
The Ideological Crisis Underlying Today’s Tax and Financial Policy
by MICHAEL HUDSON
From antiquity and for thousands of years, land, natural resources and monopolies, seaports and roads were kept in the public domain. In more recent times railroads, subway lines, airlines, and gas and electric utilities were made public. The aim was to provide their basic services at cost or at subsidized prices rather than letting them be privatized into rent-extracting opportunities. The Progressive Era capped this transition to a more equitable economy by enacting progressive income and wealth taxes.
Economies were liberating themselves from the special privileges that European feudalism and colonialism had granted to favored insiders. The aim of ending these privileges – or taxing away economic rent where it occurs naturally, as in the land’s site value and natural resource rent – was to lower the costs of living and doing business. This was expected to make progressive economies more competitive, obliging other countries to follow suit or be rendered obsolete. The era of what was considered to be socialism in one form or another seemed to be at hand – rising role of the public sector as part and parcel of the evolution of technology and prosperity.
But the landowning and financial classes fought back, seeking to expunge the central policy conclusion of classical economics: the doctrine that free-lunch economic rent should serve as the tax base for economies seeking to be most efficient and fair. Imbued with academic legitimacy by the University of Chicago (which Upton Sinclair aptly named the University of Standard Oil) the new post-classical economics has adopted Milton Friedman’s motto: “There Is No Such Thing As A Free Lunch” (TINSTAAFL). If it is not seen, it has less likelihood of being taxed.
The political problem faced by rentiers – the “idle rich” siphoning off most of the economy’s gains for themselves – is to convince voters to agree that labor and consumers should be taxed rather than the financial gains of the wealthiest 1%. How long can they defer people from seeing that making interest tax-exempt pushes the government’s budget further into deficit? To free financial wealth and asset-price gains from taxes – while blocking the government from financing its deficits by its own public option for money creation – the academics sponsored by financial lobbyists hijacked monetary theory, fiscal policy and economic theory in general. On seeming grounds of efficiency they claimed that government no longer should regulate Wall Street and its corporate clients. Instead of criticizing rent seeking as in earlier centuries, they depicted government as an oppressive Leviathan for using its power to protect markets from monopolies, crooked drug companies, health insurance companies and predatory finance.
This idea that a “free market” is one free for Wall Street to act without regulation can be popularized only by censoring the history of economic thought. It would not do for people to read what Adam Smith and subsequent economists actually taught about rent, taxes and the need for regulation or public ownership. Academic economics is turned into an Orwellian exercise in doublethink, designed to convince the population that the bottom 99% should pay taxes rather than the 1% that obtain most interest, dividends and capital gains. By denying that a free lunch exists, and by confusing the relationship between money and taxes, they have turned the economics discipline and much political discourse into a lobbying effort for the 1%.
Lobbyists for the 1% frame the fiscal question in terms of “How can we make the 99% pay for their own social programs?” The implicit follow-up is, “so that we (the 1%) don’t have to pay?” This is how the Social Security system came to be “funded” and then “underfunded.” The most regressive tax of all is the FICA payroll tax at 15.3% of wages up to about $105,000. Above that, the rich don’t have to contribute. This payroll tax exceeds the income tax paid by many blue-collar families. The pretense is that not taxing these free lunchers will make economies more competitive and pull them out of depression. The reality is the opposite: Instead of taxing the wealthy on their free lunch, the tax burden raises the cost of living and doing business. This is a major reason why the U.S. economy is being de-industrialized today.
The key question is what the 1% do with their revenue “freed” from taxes. The answer is that they lend it out to indebt the 99%. This polarizes the economy between creditors and debtors. Over the past generation the wealthiest 1% have rewritten the tax laws to a point where they now receive an estimated 66% – two thirds – of all returns to wealth (interest, dividends, rents and capital gains), and a reported 93% of all income gains since the Wall Street bailout of September 2008.
They have used this money to finance the election campaigns of politicians committed to shifting taxes onto the 99%. They also have bought control of the major news media that shape peoples’ understanding of what is happening. And as Thorstein Veblen described nearly a century ago, businessmen have become the heads most universities and directed their curriculum along “business friendly” lines.
The clearest way to analyze any financial system is to ask Who/Whom. That is because financial systems are basically a set of debts owed to creditors. In today’s neo-rentier economy the bottom 99% (labor and consumers) owe the 1% (bondholders, stockholders and property owners). Corporate business and government bodies also are indebted to this 1%. The degree of financial polarization has sharply accelerated as the 1% are making their move to indebt the 99% – along with industry, state, local and federal government – to the point where the entire economic surplus is owed as debt service. The aim is to monopolize the economy, above all the money-creating privilege of supplying the credit that the economy needs to grow and transact business, enabling them to extract interest and other fees for this privilege.
The top 1% have nearly succeeded in siphoning off the entire surplus for themselves, receiving 93% of U.S. income growth since September 2008. Their control over the political process has enabled them to use each new financial crisis to strengthen their position by forcing companies, states and localities to relinquish property to creditors and financial investors. So after monopolizing the economic surplus, they now are seeking to transfer to themselves the economic infrastructure, land and natural resources, and any other asset on which a rent-extracting tollbooth can be placed.
The situation is akin to that of medieval Europe in the wake of the Nordic invasions. The supra-national force of Rome in feudal times is now situated in Washington, with Christianity replaced by the Washington Consensus wielded via the IMF, World Bank, WTO and its satellite institutions such as the European Central Bank, backed by the moral and ideological role academic economists rather than the Church. And on the new financial battlefield, Wall Street underwriters have used the crisis as an opportunity to press for privatization. Chicago’s strong Democratic political machine sold rights to install parking meters on its sidewalks, and has tried to turn its public roads into privatized toll roads. And the city’s Mayor Rahm Emanuel has used privatization of its airport services to break labor unionization, Thatcher-style. The class war is back in business, with financial tactics playing a leading role barely anticipated a century ago.
This monopolization of property is what Europe’s medieval military conquests sought to achieve, and what its colonization of foreign continents replicated. But whereas it achieved this originally by military conquest of the land, today’s 1% do it l by financializing the economy (although the military arm of force is not absent, to be sure, as the world saw in Chile after 1973).
The financial quandary confronting us
The economy’s debt overhead has grown so large that not everyone can be paid. Rising default rates pose the question age-old question of Who/Whom. The answer almost always is that big fish eat little fish. Big banks (too big to fail) are eating little banks, while the 1% try to take the lion’s share for themselves by annulling public and corporate debts owed to the 99%. Their plan is to downgrade Social Security and Medicare savings to “entitlements,” as if it is a matter of sound fiscal choice not to pay low-income payers whilerentiers at the top re-christen themselves “job creators,” as if they have made their gains by helping wage-earners rather than waging war against them.
The problem is not Social Security, which can be paid out of normal tax revenue, as in Germany’s pay-as-you-go system. This fiscal problem – untaxing real estate, oil and gas, natural resources, monopolies and the banks – has been depicted as financial – as if one needs to save in advance by a special tax to lend to the government to cut taxes on the 99%.
The real pension cliff is with corporate, state and local pension plans, which are being underfunded and looted by financial managers. The shortfall is getting worse as the downturn reduces local tax revenues, leaving states and cities unable to fund their programs, to invest in new public infrastructure, or even to maintain and repair existing investments. Public transportation in particular is suffering, raising user fees to riders in order to pay bondholders. But it is mainly retirees who are being told to sacrifice. (The sanctimonious verb is “share” in the sacrifice, although this evidently does not apply to the 1%.)
The bank lobby would like the economy to keep trying to borrow its way out of debt and thus dig itself deeper into a financial hole that puts yet more private and public property at risk of default and foreclosure. The idea is for the government to “stabilize” the financial system by bailing out the banks – that is, doing for them what it has not been willing to do for recipients of Social Security and Medicare, or for states and localities no longer receiving revenue sharing, or for homeowners in negative equity suffering from exploding interest rates even while bank borrowing costs from the Fed have plunged. The dream is that the happy Greenspan financial bubble can be recovered, making everyone rich again, if only they will debt-leverage to bid up real estate, stock and bond prices and create new capital gains.
Realizing this dream is the only way that pension funds can pay retirees. They will be insolvent if they cannot make their scheduled 8+%, giving new meaning to the term “fictitious capital.” And in the real estate market, prices will not soar again until speculators jump back in as they did prior to 2008. If student loans are not annulled, graduates face a lifetime of indentured servitude. But that is how much of colonial America was settled, after all – working off the price of their liberty, only to be plunged into the cauldron of vast real estate speculations and fortunes-by-theft on which the Republic was founded (or at least the greatest American fortunes). It was imagined that such bondage belonged only to a bygone era, not to the future of the West. But we may now look back to that era for a snapshot of our future.
The financial plan is for the government is to supply nearly free credit to the banks, so that they can to lend debtors enough – at the widest interest-rate markups in recent memory (what banks charge borrowers and credit-card users over their less-than-1% borrowing costs) – to pay down the debts that were run up before 2008.
This is not a program to increase market demand for the products of labor. It is not the kind of circular flow that economists have described as the essence of industrial capitalism. It is a financial rake-off of a magnitude such as has not existed since medieval European times, and the last stifling days of the oligarchic Roman Empire two thousand years ago.
Imagining that an economy can be grounded on these policies will further destabilize the economy rather than alleviate today’s debt deflation. But if the economy is saved, the banks cannot be. This is why the Obama Administration has chosen to save the banks, not the economy. The Fed’s prime directive is to keep interest rates low – to revive lending not to finance new business investment to produce more, but simply to inflate the asset prices that back the bank loans that constitute bank reserves. It is the convoluted dream of a new Bubble Economy – or more accurately a new Great Giveaway.
Here’s the quandary: If the Fed keeps interest rates low, how are corporate, state and local pension plans to make the 8+% returns needed to pay their scheduled pensions? Are they to gamble more with hedge funds playing Casino Capitalism?
On the other hand, if interest rates rise, this will reduce the capitalization multiple at which banks lend against current rental income and profits. Higher interest rates will lower prices for real estate, corporate stocks and bonds, pushing the banks (and pension funds) even deeper into negative equity.
So something has to give. Either way, the financial system cannot continue along its present path. Only debt write-offs will “free” markets to resume spending on goods and services. And only a shift of taxes onto rent-yielding property and tollbooths, finance and monopolies will save prices from being loaded down with extractive overhead charges and refocus lending to finance production and employment. Unless this is done, there is no way the U.S. economy can become competitive in international markets, except of course for military hardware and intellectual property rights for escapist cultural artifacts.
The solution for Social Security, Medicare and Medicaid is to de-financialize them. Treat them like government programs for military spending, beachfront rebuilding and bank subsidies, and pay their costs out of current tax revenue and new money creation by central banks doing what they were founded to do.
Politicians shy away from confronting this solution mainly because the financial sector has sponsored a tunnel vision that ignores the role of debt, money, and the phenomena of economic rent, debt leverage and asset-price inflation that have become the defining characteristics of today’s financial crisis. Government policy has been captured to try and save – or at least subsidize – a financial system that cannot be saved more than temporarily. It is being kept on life support at the cost of shrinking the economy – while true medical spending for real life support is being cut back for much of the population.
The economy is dying from a financial respiratory disease, or what the Physiocrats would have called a circulatory disorder. Instead of freeing the economy from debt, income is being diverted to pay credit card debt and mortgage debts. Students without jobs remain burdened with over $1 trillion of student debt, with the time-honored safety valve of bankruptcy closed off to them. Many graduates must live with their parents as marriage rates and family formation (and hence, new house-buying) decline. The economy is dying. That is what neoliberalism does.
Now that the debt build-up has run its course, the banking sector has put its hope in gambling on mathematical probabilities via hedge fund capitalism. This Casino Capitalist has become the stage of finance capitalism following Pension Fund capitalism – and preceding the insolvency stage of austerity and property seizures.
The open question now is whether neofeudalism will be the end stage. Austerity deepens rather than cures public budget deficits. Unlike past centuries, these deficits are not being incurred to wage war, but to pay a financial system that has become predatory on the “real” economy of production and consumption. The collapse of this system is what caused today’s budget deficit. Instead of recognizing this, the Obama Administration is trying to make labor pay. Pushing wage-earners over the “fiscal cliff” to make them pay for Wall Street’s financial bailout (sanctimoniously calling their taxes “user fees”) can only shrink of market more, pushing the economy into a fatal combination of tax-ridden and debt-ridden fiscal and financial austerity.
The whistling in the intellectual dark that central bankers call by the technocratic term “deleveraging” (paying off the debts that have been run up) means diverting yet more income to pay the financial sector. This is antithetical to resuming economic growth and restoring employment levels. The recent lesson of European experience is that despite austerity, debt has risen from 381% of GDP in mid-2007 to 417% in mid—2012. That is what happens when economies shrink: debts mount up at arrears (and with stiff financial penalties).
But even as economies shrink, the financial sector enriches itself by turning its debt claims – what 19th-century economists called “fictitious capital” before it was called finance capital – into a property grab. This makes an unrealistic debt overhead – unrealistic because there is no way that it can be paid under existing property relations and income distribution – into a living nightmare. That is what is happening in Europe, and it is the aim of Obama Administration of Tim Geithner, Ben Bernanke, Erik Holder et al. They would make America look like Europe, wracked by rising unemployment, falling markets and the related syndrome of adverse social and political consequences of the financial warfare waged against labor, industry and government together. The alternative to the road to serfdom – governments strong enough to protect populations against predatory finance – turns out to be a detour along the road to debt peonage and neofeudalism.
So we are experiencing the end of a myth, or at least the end of an Orwellian rhetorical patter talk about what free markets really are. They are not free if they are to pay rent-extractors rather than producers to cover the actual costs of production. Financial markets are not free if fraudsters are not punished for writing fictitious junk mortgages and paying ratings agencies to sell “opinions” that their clients’ predatory finance is sound wealth creation. A free market needs to be regulated from fraud and from rent seeking.
The other myth is that it is inflationary for central banks to monetize public spending. What increases prices is building interest and debt service, economic rent and financial charges into the cost of living and doing business. Debt-leveraging the price of housing, education and health care to make wage-earners pay over two-thirds of their income to the FIRE sector, FICA wage withholding and other taxes falling on labor are responsible for de-industrializing the economy and making it uncompetitive.
Central bank money creation is not inflationary if it funds new production and employment. But that is not what is happening today. Monetary policy has been hijacked to inflate asset prices, or at least to stem their decline, or simply to give to the banks to gamble. “The economy” is less and less the sphere of production, consumption and employment; it is more and more a sphere of credit creation to buy assets, turning profits and income into interest payments until the entire economic surplus and repertory of property is pledged for debt service.
To celebrate this as a “postindustrial society” as if it is a new kind of universe in which everyone can get rich on debt leveraging is a deception. The road leading into this trap has been baited with billions of dollars of subsidized junk economics to entice voters to act against their interests. The post-classical pro-rentier financial narrative is false – intentionally so. The purpose of its economic model is to make people see the world and act (or invest their money) in a way so that its backers can make money off the people who follow the illusion being subsidized. It remains the task of a new economics to revive the classical distinction between wealth and overhead, earned and unearned income, profit and rentier income – and ultimately between capitalism and feudalism.
This is the fourth and final installment of Michael Hudson’s ground-breaking report on the state of the economy. Click here to read Part One, here to read Part Two and here to read Part Three.
Michael Hudson’s book summarizing his economic theories, “The Bubble and Beyond,” is available on Amazon. His latest book is Finance Capitalism and Its Discontents. He is a contributor to Hopeless: Barack Obama and the Politics of Illusion, published by AK Press. He can be reached via his website, email@example.com
Dan Walters: Democratic ownership of Capitol has a price…Dan Walters
Democrats now control all the strings in the state Capitol.
They can, at least on paper, do anything they wish without giving Republicans anything more than cursory attention.
However, sole ownership also means sole responsibility. No more pointing the finger at recalcitrant Republicans. No more excuses for failing to balance the state budget – especially since voters also provided billions of dollars in new tax money. No more ducking education reform and myriad other issues that have festered year after year.
The new taxes should almost cover the annual imbalance between state budget's income and outgo, but they're not enough to restore the health, welfare and higher education funds that have been slashed in recent years – especially if much of it is spent, as Gov. Jerry Brown prefers, on reducing $30 billion-plus in budget deficit debt.
Whether to spend the money on debt reduction or program restoration looms as a major conflict, since influential Democratic constituencies prefer the latter.
Brown will place particular emphasis on an overhaul of school finance when he delivers his proposed 2013-14 budget and his State of the State speech this month. He wants to simplify the flow of money to local school districts, eliminating many of the single-purpose earmarks, giving local school officials more leeway and shifting more money to schools with large numbers of poor and educationally deficient students.
His initial "weighted formula" proposal went nowhere, due to skepticism by the powerful educational establishment, but Brown hopes that new money will provide enough lubrication to make it happen.
Two other pithy issues also will occupy the Legislature's dominant Democrats in the biennial session that begins in earnest this month – water and regulatory reform.
An $11.1 billion water bond that the Legislature and former Gov. Arnold Schwarzenegger approved three years ago has been sidetracked, and Brown and lawmakers say they want to eliminate its pork and make it smaller.
The bonds' money would grease, although not pay for, an immense tunnel project to carry water under the Sacramento-San Joaquin Delta, and opponents – particularly environmental groups – will use the bond issue as leverage.
Brown and Democratic leaders also say they want to respond to business complaints that regulation, especially the California Environmental Quality Act, is an impediment to economic recovery. But CEQA is an iconic touchstone for environmental groups.
Ironically, therefore, the dominant Democratic leadership in the Capitol may find itself at odds with its supposed allies on how to spend the new tax money, on water, on education, and on regulatory reform.
Sole ownership means sole accountability for results.
Bank of America in $10 billion settlement with Fannie Mae…Chris Isidore
NEW YORK (CNNMoney) Bank of America has reached a $10.3 billion settlement with Fannie Mae to deal with questionable home loans it sold to the government-backed mortgage financer during the housing bubble.
BofA (BAC, Fortune 500) will pay $3.55 billion in cash to Fannie as part of the deal. It will also repurchase 30,000 questionable mortgages that are likely to produce losses, paying Fannie $6.75 billion for the loans. The loans had been bundled into mortgage-backed securities, and then were bought and guaranteed by Fannie Mae.
The purchase of bad home loans by Fannie Mae led to massive losses, a government takeover in 2008 and a $116 billion bailout to keep it functioning as a major source of home loans.
The loans were originated between 2000 and 2008 by Countrywide Financial, a leading mortgage and subprime home loan lender that BoA purchased for $4 billion in 2008. The loans covered by the settlement had an original value of $1.4 trillion.
In addition, BofA announced it agreed to sell the servicing rights on 2 million other mortgages worth a total of about $306 billion, as the bank moves to put distance between itself and many of its problematic home loans.
This is not the first time that BofA has been forced to spend large sums to settle complaints about the mortgages that Countrywide packaged into mortgage-backed securities and sold to investors. In 2010, it repurchased $2.87 billion of bad loans that had been bought from Countrywide by Fannie and its smaller rival Freddie Mac. That deal was sharply criticized by the inspector general overseeing the Fannie and Freddie bailout as letting BofA off too lightly.
The bank also agreed in late 2011 to pay a $335 million fine to settle complaints about discriminatory lending practices at Countrywide.
Shares of BofA rose 2% in premarket trading on news of the deal.
New York Times
Judge Calls for Revision of $20 Million Payout in Bank of America Suit
By GRETCHEN MORGENSON
Two pension funds that agreed to a relatively small settlement with the directors of Bank of America over its acquisition of Merrill Lynch are being ordered by a federal judge to strike a better deal beginning on Monday.
Investors sued Bank of America’s directors, including Kenneth Lewis, its former chief, over its 2008 takeover of Merrill Lynch.
The judge, P. Kevin Castel, voiced clear reservations about the $20 million settlement in a ruling on Friday, concluding that fees requested by the lawyers for the two funds could consume “some, most or all” of the money. The deal was reached last spring, months before two other pension funds in a separate lawsuit negotiated a $2.4 billion settlement with the bank over the Merrill purchase.
Lawyers representing the pension funds in the $20 million settlement — the Louisiana Municipal Police Employees’ Retirement System and the Hollywood Police Officers’ Retirement System, of Florida — last October asked the court to approve payments of as much as $13 million in legal fees, or 65 percent of the amount proposed under the settlement.
The pension funds have accused Kenneth D. Lewis, the former chief executive of Bank of America, and his fellow directors of misleading investors about Merrill’s deteriorating financial condition. Bank of America’s $50 billion purchase of Merrill Lynch was announced by Mr. Lewis in the fall of 2008 as the financial crisis was deepening, and it generated billions of dollars in losses for the bank. Those losses led to Bank of America’s second request for bailout money under the government’s Troubled Asset Relief Program.
In addition to $20 million in cash, the proposed settlement would also require Bank of America to institute corporate governance changes. Among them are an enhanced director-education program and the creation of a new board committee dedicated to oversight of major acquisitions by the company. The case was brought as a so-called derivative action, on behalf of the bank itself.
In a deposition, Mr. Lewis testified that before Bank of America stockholders voted to approve the acquisition he received loss estimates relating to Merrill that were far greater than those reflected in the merger documents filed with regulators. Shareholders rely on statements made in these filings to decide whether to approve transactions their companies have proposed; companies must disclose facts that could be meaningful for shareholders as they weigh voting on a deal.
Given these and other facts of the various litigations, the shareholders who filed the parallel case in Delaware against the bank’s directors objected to the terms of the $20 million settlement. In court filings, lawyers representing these shareholders said that representatives of the Louisiana and Florida plaintiffs had done little investigation, deposing only two of the bank’s directors, and failed to ascertain whether the board had sufficient assets to contribute to a settlement.
The lawyers in the Delaware case also argued in court that the $20 million settlement was grossly inadequate because of $500 million in directors’ and officers’ insurance purchased by Bank of America that is available to satisfy the matter. In addition, the lawyers said, the directors are not contributing personally to the settlement in spite of having the financial resources to do so. Directors are rarely held personally liable in lawsuits against companies.
In addition to these objections, the lawyers in the Delaware case noted that the $20 million is far lower than the $150 million fine paid by the bank in 2010 to resolve a lawsuit brought by the Securities and Exchange Commission over the Merrill acquisition.
Amid these arguments, Bank of America settled another class-action case in September involving the same allegations about the Merrill purchase. Under that deal, the bank agreed to pay $2.4 billion, dwarfing the amount the Louisiana and Florida plaintiffs had settled for in April. The $2.4 billion settlement was brought by lawyers representing public pension funds in Ohio and Texas. That case was also heard by Judge Castel.
Another possible sticking point in the proposed $20 million settlement is how much of the money will go to the lawyers representing the Louisiana and Florida pension funds. Last October, those lawyers asked the court to approve payments of as much as $13 million in legal fees, or 65 percent of the amount proposed under the settlement.
Late Friday, Judge Castel voiced clear reservations on the deal, writing, “The court has not yet been persuaded of the fairness, reasonableness and adequacy of a settlement of the derivative claims against defendant Lewis in exchange for corporate governance reforms of unquantifiable value and $20 million in cash, some, most or all of which may be consumed by plaintiffs’ attorneys’ fees.”
Joseph E. White III, a lawyer at Saxena White who represents the Louisiana and Florida pension funds, did not immediately return a phone call or respond to an e-mail seeking comment on Sunday.
Surprise, Surprise: The Banks Win
By GRETCHEN MORGENSON
IF you were hoping that things might be different in 2013 — you know, that bankers would be held responsible for bad behavior or that the government might actually assist troubled homeowners — you can forget it. A settlement reportedly in the works with big banks will soon end a review into foreclosure abuses, and it means more of the same: no accountability for financial institutions and little help for borrowers.
Times Topic: Gretchen Morgenson
Last week, The New York Times reported that regulators were close to settling with 14 banks whose foreclosure practices had ridden roughshod over borrowers and the rule of law. Although the deal has not been made official and its terms are as yet unknown, the initial report said borrowers who had lost their homes because of improprieties would receive a total of $3.75 billion in cash. An additional $6.25 billion would be put toward principal reduction for homeowners in distress.
The possible settlement will conclude a regulatory enforcement action brought in 2011 by the Comptroller of the Currency and the Federal Reserve. Regulators moved against 14 large home loan servicers after evidence emerged of rampant misdeeds marring the foreclosure process.
Under the enforcement action, the banks were required to review foreclosures conducted in 2009 and 2010. They hired consultants to analyze cases in which borrowers suspected that they had been injured by bank practices, such as levying excessive and improper fees or foreclosing when a borrower was undergoing a loan modification. Some 4.4 million borrowers journeyed through the foreclosure maze during the period.
Some back-of-the-envelope arithmetic on this deal is your first clue that it is another gift to the banks. It’s not clear which borrowers will receive what money, but divvying up $3.75 billion among millions of people doesn’t amount to much per person. If, say, half of the 4.4 million borrowers were subject to foreclosure abuses, they would each receive less than $2,000, on average. If 10 percent of the 4.4 million were harmed, each would get roughly $8,500.
This is a far cry from the possible penalties outlined last year by the federal regulators requiring these reviews. For instance, regulators said that if a bank had foreclosed while a borrower was making payments under a loan modification, it might have to pay $15,000 and rescind the foreclosure. And if it couldn’t be rescinded because the house had been sold, the bank could have had to pay the borrower $125,000 and any accrued equity.
Recall that the foreclosure exams came about because regulators had found pervasive problems. A study by the Fed and the comptroller’s office found “critical weaknesses in servicers’ foreclosure governance processes, foreclosure document preparation processes, and oversight and monitoring of third-party vendors, including foreclosure attorneys.” The United States Trustee, which oversees the nation’s bankruptcy courts, also uncovered huge flaws in bank practices.
So if you start to hear rumbling that the reviews didn’t turn up many misdeeds, you can discount it as nonsense. One could easily argue that this reported settlement was pushed by the banks so they could limit the damage they would have incurred if an aggressive review had continued.
“We think if the reviews were done right, the payouts would have been significantly higher than they appear to be under this settlement,” said Alys Cohen, staff attorney at the National Consumer Law Center. “The regulators will have abdicated their responsibility if the banks end up getting off the hook easily and cheaply.”
Let’s not forget that this looming settlement will also conclude the foreclosure reviews that were supposed to provide regulators with chapter and verse on how banks abused their customers. Stopping the reviews before they are finished means that the banks will be allowed to claim that abuses were rare and that $10 billion is an adequate penalty.
A spokesman at the Office of the Comptroller of the Currency declined to comment on whether a settlement was imminent or what it might look like. But with no clear details about its terms, many questions remain. First, of course, is how many borrowers will receive the $3.75 billion, and how will that money be shared? And who will ensure that the funds go to the right people? The fact is, most people will not be hiring a lawyer to pursue their cases further against servicers, so this money is all that they will receive.
Another problem is that the money will be doled out to wronged borrowers based on work done by consultants hired by the banks responsible for the improprieties. How can their findings be trusted? What’s more, the reviews’ conclusions about harm are based on the servicers’ side of the story, not homeowners’.
Because the consultants work for the banks, it is also possible that these institutions may use the information gleaned from the foreclosure reviews to profit once again on troubled borrowers. If foreclosed borrowers left a property while owing the difference between the amount of the loan and what the bank received in a sale of the home, the bank may not have known the borrowers’ whereabouts until that information was reported in a request for review.
Finally, what if victims of an improper foreclosure didn’t receive a review because they didn’t know about the program? Letters about the program sent to 5.3 percent of targeted borrowers were returned as undeliverable, regulators said.
And many of those who did receive the mailings may not have understood them. In a study last June, the Government Accountability Office concluded that the initial letter, the request-for-review form and foreclosure review Web site were “written above the average reading level of the U.S. population.” What’s more, the study said, the materials did not include specifics about what borrowers might receive as a remedy, possibly affecting their motivation to respond.
In any case, as of Dec. 6, 2012, only 322,771 borrowers had requested an independent review, according to the Fed. That’s 7.3 percent of the affected borrowers during the period, a figure that does not mirror the widespread problems regulators said they had identified in the foreclosure system.
“The O.C.C.-Fed review is just another flawed outreach program designed to fail,” said Ned Brown, a legislative strategist at the marketing consultant Prairie Strategies in Washington. “The servicers rolled the regulators.”
New year, same story.