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Bank of America Admits GSE Settlement “Necessary Step” in Housing Recovery

I’ve given my reasons for why I think the investors and executives at Bank of America are being a little too enraptured about the deal they struck with the GSEs on put-backs based on representation and warranty claims. But it’s important to look at what they are saying, because it does offer some insight.

Bank of America said today that the $2.8 billion dollar settlement with Fannie Mae and Freddie Mac “was a necessary step” in the housing recovery. Think about what that means. It says to the country that the fraudulent reports of underwriting standards to investors, in this case, represented a real threat to the viability of the US residential housing market, the largest market in the world. Joe Weisenthal says this is the admission of a back-door bailout; I’m not sure about that. But it does say that the repurchase threat represented a systemic risk, and reaching at a settlement at pennies on the dollar reduces that risk. And the party that handed out the settlement is a government-sponsored entity.

The biggest U.S. bank by assets announced Jan. 3 that it had “largely addressed” liabilities from the two mortgage- financing firms by paying Fannie Mae $1.5 billion and giving Freddie Mac $1.3 billion. The agreements may have shortchanged the U.S. government, which took over the two firms in a 2008 rescue, Representative Maxine Waters said late yesterday.

“Our agreements with Fannie Mae and Freddie Mac are a necessary step toward the ultimate recovery of the housing market,” Jerry Dubrowski, a spokesman for the Charlotte, North Carolina-based bank, said today in an e-mail. “We have taken a leadership role in responding to the housing crisis.”

Here’s more of Rep. Waters’ claim, which she called a “taxpayer giveaway.” The theory goes that Fannie and Freddie could have gotten much more from BofA over these illegal MBS agreements than they ultimately got. First of all, the numbers on r&w claims was pretty much in line with what private label investors have extracted. Second, and this is important, the GSEs could still go after BofA or any other lender for failing to convey the mortgages to the trusts, for failing to meet servicer obligations, or a host of other issues. The head of the FHFA explicitly said that the settlement would not preclude other claims along those lines. And those claims would be pretty potent. We know from Countrywide v. Kemp that the mortgages weren’t conveyed, which basically nullifies the security entirely. And this incredible report from the Florida Attorney General, showing “unfair, deceptive and unconscionable acts” from servicers, clearly shows the ability to make claims based purely on servicer abuse.

So, does the Fannie/Freddie deal represent a back-door bailout of BofA? If that were the end of all put-back claims on BofA mortgage pools or even the end of all claims from the GSEs, maybe. But it doesn’t have to be.

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David Dayen

David Dayen