August 21, 2014
It was in June of 2011 when we reported that Bank Of America agreed to pay $8.5 billion to settle mortgage (mis)representation suit, where we said the bank was “about to part with more money than it has earned since 2008 in what will soon be the biggest financial settlement in the industry.” Fast forward 3 years later when Bank of America once again makes history with its latest, and literally greatest, mortgage settlement with the US government, putting all of its MBS transgressions in the past, and which will cost the bank some $16.65 billion (of which, however, some $7 billion will be “consumer relief” and the remainder, which will have a cash portion consists of $5.02 billion in civil monetary penalty, including $4.63 billion in compensatory remediation payments, likely tax-deductible), a new record, and allow the bank to continue adding back “one-time, non-recurring” litigation charges to its adjusted, non-GAAP bottom line, thus once again “beating expectations”.
Eric Holder has had a busy week – solving Ferguson’s problems yesterday to record penalties for BofA today:
At this point it is probably worth recalling what we wrote last week, namely that The Price To Keep Bankers Out Of Jail, is now $110 Billion And Rising:
Six years after the greatest financial crisis in modern history, not a single prominent - and bailed out - banker (or frankly any for that matter) has gone to prison. Still, in the great squid pro non-jail quo, regulators and the DOJ have had to be appeased somehow. That “somehow”, as has been revealed over the past several years, is with quarter after quarter of massive legal charges, settlements, penalties and so on. Of course, since the banks wouldn’t exist in the first place if it wasn’t for a multi-trillion taxpayer bailout, they don’t mind because the math is quite simple: being converted into a government utility is better than being bankrupt anyday. Also, it is shareholder money, not an actual clawback (oh, the horror).
So what is the total amount of shareholder (and by implication, taxpayer) money that has been spent by the bankers to distract regulators and the “cops” from not jailing a single one of them? According to the following chart from the WSJ, just the six biggest offenders have spent over a whopping $110 billion to keep the government happy and the US prison population in check.
Here, one could add a tangent, that the more money spent on settlements by any given bank, the more in need of a bailout it was in the first place. In which case one dreads to think just how bankrupt Bank of America will be when the next inevitable crisis hits, and how many trillions in taxpayer bailout funds it will need next time around…
And while in the past banks have gotten away without admitting or denying guilt, in this case things are different:
Bank of America admits to the facts set forth below and acknowledges that its conduct violated the federal securities laws.
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Bank of America Admits Disclosure Failures to Settle SEC Charges
Bank Also Resolves Separate SEC Case in $245 Million Settlement
Washington D.C., Aug. 21, 2014 — The Securities and Exchange Commission today announced a settlement in which Bank of America admits that it failed to inform investors during the financial crisis about known uncertainties to future income from its exposure to repurchase claims on mortgage loans.
Bank of America also is resolving securities fraud charges that the SEC filed last year related to a residential mortgage-backed securities (RMBS) offering.
Bank of America has agreed to settle the two cases by paying $245 million as part of a major global settlement announced today by the U.S. Department of Justice in which Bank of America will pay $16.65 billion to resolve various investigations involving violations of laws regulated by other federal agencies.
“Bank of America failed to make accurate and complete disclosure to investors and its illegal conduct kept investors in the dark,” said Rhea Kemble Dignam, regional director of the SEC’s Atlanta office. “Requiring an admission of wrongdoing as part of Bank of America’s agreement to resolve the SEC charges filed today provides an additional level of accountability for its violation of the federal securities laws.”
In new charges filed by the SEC today in a settled administrative proceeding, Bank of America admits that it failed to disclose known uncertainties regarding potential increased costs related to mortgage loan repurchase claims stemming from more than $2 trillion in residential mortgage sales from 2004 through the first half of 2008 by the bank and certain companies it acquired. In connection with these sales, Bank of America made contractual representations and warranties about the underlying quality of the mortgage loans and underwriting. In the event that a loan buyer claimed a breach of a representation or warranty, the bank could be obligated to repurchase the related mortgage loan at its outstanding unpaid principal balance.
According to the SEC’s order, Regulation S-K requires public companies like Bank of America to disclose in the Management’s Discussion & Analysis (MD&A) section of its periodic financial reports any known uncertainties that it reasonably expects will have a material impact on income from continuing operations. Bank of America failed to adhere to these requirements by not disclosing known uncertainties about the future costs of mortgage repurchase claims when filing its financial reports for the second and third quarters of 2009. These uncertainties included whether Fannie Mae, a mortgage loan purchaser from Bank of America, had changed its repurchase claim practices after being put into conservatorship, the future volume of repurchase claims from Fannie Mae and certain monoline insurance companies that provided credit enhancements on certain mortgage loan sales, and the ultimate resolution of certain claims that Bank of America had reviewed and refused to repurchase but had not been rescinded by the claimants.
In the SEC’s original case against Bank of America filed in August 2013, the agency alleged that the bank in its own words “shifted the risk” for losses to investors when it failed to disclose that more than 70 percent of the mortgages backing the RMBS offering called BOAMS 2008-A originated through its “wholesale” channel of mortgage brokers unaffiliated with Bank of America entities. Bank of America knew that such wholesale channel loans – described internally as “toxic waste” – presented vastly greater risks of severe delinquencies, early defaults, underwriting defects, and prepayment.
As part of the global settlement, Bank of America agreed to resolve the SEC’s original case by paying disgorgement of $109.22 million, prejudgment interest of $6.62 million, and a penalty of $109.22 million while consenting to permanent injunctions against violations of Sections 5, 17(a)(2), and 17(a)(3) of the Securities Act of 1933. The settlement is subject to court approval. To settle the new case, Bank of America agreed to pay a $20 million penalty while admitting to facts set out in the SEC’s order, which requires Bank of America to cease and desist from causing any violations and any future violations of Section 13(a) of the Securities Exchange Act of 1934 and Rules 12b-20 and 13a-13.
The SEC’s investigation into Bank of America’s MD&A-related violations was led by Mark A. Troszak, Kristin B. Wilhelm, and Peter J. Diskin in the SEC’s Atlanta office. The investigation into Bank of America’s RMBS-related violations was led by Mark Eric Harrison and Aaron W. Lipson, and the litigation was led by Ms. Wilhelm with assistance from Mr. Harrison. The investigations were supervised by Ms. Dignam and William P. Hicks, associate regional director for enforcement in the Atlanta office. The SEC appreciates the assistance of the Justice Department and the U.S. Attorney’s Office for the Western District of North Carolina.
Full SEC Charge:
This article was posted: Thursday, August 21, 2014 at 9:43 am