Bank of America pursues lawsuit protection in exchange for mortgage modifications

August 3, 2011

Bank of America is pursuing a settlement with state and federal officials that would shield the company from lawsuits over its mortgage practices in exchange for reducing the amount that struggling homeowners owe on their loans, people involved in the talks said.

The banking giant had proposed the terms as a side deal to a broader agreement being hammered out among the country’s five biggest banks, federal investigators and a coalition of attorneys general from each state, these people said. The negotiations have focused on whether banks used shoddy or fraudulent paperwork to foreclose on homeowners.

It is unclear which state officials are privy to the separate discussions with Bank of America. Some members of the 50-state coalition, such as New York, have said that banks should not receive a broad release from legal claims made by homeowners or mortgage investors. A spokesman for Bank of America declined to comment.

Geoff Greenwood, spokesman for Iowa Attorney General Tom Miller, who is spearheading the settlement talks on behalf of the states, said Bank of America had approached officials with the idea of doing more principal reductions in exchange for the broader release from future lawsuits.

“We’re having a conversation about that,” Greenwood said. “We’re having discussions, but I wouldn’t characterize it as advanced negotiations.”

Asked why state and federal officials had considered such a deal with Bank of America alone, Greenwood said it was part of the ongoing effort to reach a resolution. “We’ve had discussions with banks collectively; we’ve also met with them individually,” he said. “We’re doing what we are supposed to do. It’s part of the negotiations.”

He said that the idea of releasing the bank from legal claims remains one of several sticking points for parties on both sides of the talks, along with which changes banks will have to make to their servicing models and how much in penalties they will have to pay into special funds that could be used to aid struggling homeowners. The other banks in the talks are Citigroup, J.P. Morgan Chase, Wells Fargo and Ally Financial.

The Huffington Post reported Tuesday on the separate talks with Bank of America.

A federal official said Bank of America was not the only bank pitching ideas on how to proceed with the settlement talks.

“All of the banks have done this in some form or another,” the official said, speaking on the condition of anonymity because of the sensitivity of the talks. The official said that the government’s goal continues to be a settlement with all five banks, although the talks remain “fluid.”

Even if it swung a separate deal with state and federal officials, Bank of America would face a tricky road in trying to balance the competing interests of homeowners and investors who bought mortgage securities in the boom and lost fortunes when the housing market went bust.

If it reduced the principal on mortgage loans, the investors might have to take a hit. But if it doesn’t, homeowners might not be able to continue to make their monthly payments. It can also be difficult to know which homeowners should get this aid.

Some analysts said that Bank of America would try to avoid modifying mortgages held by large institutional investors and government entities such as Fannie Mae or Freddie Mac.

“You get situations where investors say, ‘Hey, wait a second, you’re using my money to solve your problems.’ The concern is, investors want to make sure that’s not what’s happening,” said Robert J. Madden, a partner at the Texas law firm Gibbs & Bruns, which is representing 22 large institutional investors who bought mortgage securities from Bank of America.

When Bank of America settled to pay $8.5 billion to those and other investors in late June, the agreement allowed the bank to reduce loan amounts, but only in situations in which the reduction benefited homeowners as well as investors, Madden said.

Some consumer advocates applauded Bank of America’s willingness to do loan reductions but expressed reservations about letting big banks off the hook for their past sins.

“This release of claims . . . should be extremely narrow,” said Ellen Taverna, a legislative associate at the Washington-based National Association of Consumer Advocates. She said that she would like to see a larger settlement with all of the attorneys general and other banks besides Bank of America.

A side deal could be beneficial to investors who bought Bank of America’s mortgage securities, some experts said.

“I don’t think they would be hurt. Probably, if anything, they would benefit,” said Chris Gamaitoni, a mortgage industry analyst with Compass Point Research & Trading in Washington. If Bank of America reduces the loan amounts for some homeowners in their portfolio, that could increase the resale values of other homes in which investors have interests, he said.

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