Bank of America and DOJ near $17 billion settlement over mortgage securities

Final terms are almost in place for the record $17 billion settlement between Bank of America and the Justice Department over allegations that the nation’s second-largest bank knowingly sold faulty mortgage securities that contributed to the financial crisis, people familiar with the talks said Wednesday. An announcement could come as early as Thursday.

The settlement will be the largest penalty ever paid by a single company, eclipsing the $13 billion deal that JPMorgan Chase struck with the department last year over similar charges. Yet at a time when Wall Street is settling up tabs for all manor of crisis-era sins, without any high-ranking executives facing criminal or civil charges, Bank of America’s settlement, like others, is being met with apathy.

“These frauds are massive and not immaculate; they must of been perpetrated by certain individuals, yet there is a lack of individual accountability,” said Bart Naylor, a financial policy advocate with the nonprofit group Public Citizen. “The penalties are being paid by shareholders, so where is the justice?”

Call it settlement fatigue, a resignation among both financial reform advocates and big bank supporters that the series of government mega-settlements are becoming meaningless. Advocates bemoan that no individuals involved in producing, selling or even signing off on troubled mortgage bond deals have faced indictment, while industry proponents say the big-ticket deals are just a way for Justice to burnish its reputation.

“This is money that is just out the door, it’s not being maintained for capital, which is something the government has said it wants,” said a high-ranking financial executive, who sought anonymity in order to speak freely. “It’s money that’s not being made available for loans or to shareholders.”

Spokespersons for Bank of America and the Justice Department declined to comment.

Some of this sentiment has been tempered by efforts at Justice to carve out billions of dollars in each settlement to help struggling homeowners reduce their mortgage payments or to pump new life into communities ravaged by foreclosures. In the case of Bank of America, it has agreed to earmark about $7 billion for consumer relief, double the amount that JPMorgan had set aside and triple that of Citigroup, said people familiar with the deal who were not authorized to talk publicly.

Another $9.65 billion in cash will go to Justice and several state attorneys general, including New York, Illinois, Delaware and Kentucky. This portion of the deal had been a sticking point for the bank, which questioned why so much of the money was being funneled to the government and not to consumers, the people said.

Negotiations stalled two months ago after Justice and Bank of America could not agree on the structure of the settlement. The bank offered to pay more than $12 billion, with most of the money going toward consumer relief, but federal prosecutors demanded a stiffer penalty.

Brian Moynihan, Bank of America’s chief executive, sought a meeting in June with Attorney General Eric J. Holder Jr., who declined the invitation because the sides were too far apart, the people said. Talks cooled as Justice turned its full attention to wrapping up a $7 billion settlement with Citigroup over its role in the housing meltdown that sparked the crisis.

After that deal wrapped, attorneys for Bank of America resumed meetings with federal prosecutors but came no closer to a deal. At the end of July, Moynihan arranged for a call with Holder, who said the New Jersey U.S. Attorney Paul J. Fishman was prepared to file a lawsuit if the bank refused to raise its offer. By the end of the call, Moynihan conceded.

The trouble with these deals, people say, is that there is little to no explanation of how they were reached. Officials at Justice have said prosecutors take into consideration a bank’s willingness to cooperate and acknowledge wrongdoing, and weigh the damage inflicted on consumers and the economy. But the department has never provided any exact calculation or metrics.

“Without transparency of who was consulted, we don’t know why this particular justice was decided on. Are monetary penalties sought because a criminal charge would undermine the integrity of the financial system?,” Naylor said.

Banks have been largely mum about the massive settlements, refusing to plead their case against the government in public. Those close to the industry say banks are primarily interested in getting past this period as quickly as possible.

“We’re six years out from the financial crisis, financial firms just want to move on and get back to regaining the trust of their customers,” said Alison Hawkins of the Financial Services Roundtable. “A lot of banks recognize that there is going to have to be reparations made from the financial crisis, but on the other hand they recognize that the Department of Justice is looking to make a point.”

There are at least several more settlements in the pipeline, with ongoing investigations into the mortgage securities sales at Wells Fargo and Goldman Sachs.

“The banks extracted billions from unassuming customers and now Justice has extracted billions of dollars in settlements to make up for that,” said Mark Williams, a former bank examiner who teaches finance at Boston University. “But corporate executives should not be able to hide behind their companies and have shareholders pay for egregious behavior.”

With its Justice agreement, Bank of America’s legal tab from the 2008 crisis will soar to about $66 billion. The bank’s legal woes are largely tied to its $2.5 billion purchase of Countrywide Financial in 2008, once one of the nation’s largest home lenders, and its $50 billion acquisition of Merrill Lynch in 2009.

Indeed, the majority of the mortgage securities at the heart of the Justice investigation are the product of Countrywide and Merrill Lynch. Bank of America packaged and sold $965 million worth of mortgage securities under investigation from 2004 to 2008, according to estimates from Sanford C. Bernstein analyst John McDonald. Nearly 96 percent of those securities came from Countrywide and Merrill.

“The government is not charging the bad guys with anything, they are not giving the investors who lost money anything,” said banking analyst Dick Bove of Rafferty Capital.

He questioned why the former heads of Merrill Lynch or Countrywide have yet to face federal charges. On Wednesday, Bloomberg reported that the U.S. attorney’s office in Los Angeles is preparing to file a lawsuit against Countrywide chief Angelo Mozilo for his role in churning out subprime mortgages that helped cripple the housing market.

Danielle Douglas-Gabriel covers the banking industry for The Washington Post.
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