The ACLU’s calss action lawsuit against Morgan Stanley over racial discrimination in lending is out. Five African-American homeowners from Detroit form the core of the plaintiffs, who allege that Morgan Stanley pushed the now-defunct New Century Financial into providing them with a “steady stream of irresponsible, high-risk loans issued in communities of color that were particularly vulnerable to economic ruin,” which Morgan Stanley could then package into securities and sell around the world. In so doing, New Century Financial violated fair lending practices by steering the borrowers into high-risk subprime loans; the ACLU and the plaintiffs seek to hold the securitizer responsible for the sins of the originator. The National Consumer Law Center is also a party to the case.

This case is brought by homeowners, who were not denied a private right of action on any lending claims, including fair housing claims, in the foreclosure fraud settlement. Nevertheless, this and other suits have driven the big banks to whine to their press confidants about the unfairness of it all.

As U.S. authorities seek to make Wall Street pay for its role in triggering the financial crisis more than four years ago, banks are starting to fight back, frustrated that they are being asked to pay more than once for the same conduct.

The result may be that federal and state authorities trying to extract penalties from the banks are forced to go through lengthy courtroom battles, instead of getting hundreds of millions of dollars through relatively quick settlements.

This is really rich. First of all, the charges in most of the cases being brought by the government are of the slap-on-the-wrist variety; the case against Wells Fargo over fraudulent FHA mortgage insurance payouts ranges in the low hundreds of millions of dollars, a paltry sum. Second of all, while Wells Fargo plans to argue that the foreclosure fraud settlement already released them from FHA claims, that’s patently not true for the lawsuit against securities fraud at Bear Stearns pursued by the New York Attorney General. And it’s really not true of the more recent lawsuits pursued by individual homeowners in cooperation with legal advocates. The ACLU case fits that description, as does the class action suit against 12 banks over the rigging of the benchmark LIBOR rate, which they say made their mortgage payments pricier. Maybe the antidote to continued lawsuits against the banks would be stopping the continued crimes.

And indeed, the real problem here is that the crimes have continued even after the settlements. I noted today the return of robo-signing in computerized form. Homeowners haggling with JPMorgan Chase, one of the signatories to the foreclosure fraud settlement, report that little has changed in terms of them navigating the banks’ servicing arms to get relief. Why exactly should the settlements be honored by the authorities and not the banks?

The real point here is that banks want to re-trade the deal after the fact. They seek to argue that ANY lawsuit against them over housing-related claims violates the spirit of the settlement, even if the charges brought up were not released in the deal. They are trying, in the court of public opinion, to grow the releases given by the settlement. And they hope this will intimidate the authorities into standing down on their lawsuits. They cannot expect the same from individual homeowners, but the discovery phase of any lawsuits from litigants with the means to sue could reveal information that would be useful in the hands of those private individuals. So by intimidating governments, they strengthen their hand against outgunned private litigants as well.

Of course, without a criminal deterrent, the banks have little risk with the strategy of fighting tooth and nail against every penalty.

But the civil cases also indicate the banks will likely face no criminal charges for the same conduct, potentially giving the banks less reason to immediately resolve them.

“If the banks have come to the determination that the worst that is going to happen is this civil case, then there is less of a downside for going forward,” said Neil Barofsky, former inspector general of the TARP bailout who now teaches at New York University School of Law.


David Dayen

David Dayen

1 Comment