Govt’s Loan Mod Program Crippled by Lax Oversight and Deference to Banks

Govt’s Loan Mod Program Crippled by Lax Oversight and Deference to Banks

by Paul Kiel and Olga Pierce ProPublica, Jan. 27, 2011

With millions of homeowners still struggling to stay in their homes, the Obama administration2019s $75 billion foreclosure prevention program has been weakened, perhaps fatally, by lax oversight and a posture of cooperation2014rather than enforcement2014with the nation2019s biggest banks. Those banks, Bank of America, Wells Fargo, JPMorgan Chase, and Citibank, service the majority of mortgages.

Despite a dismal showing for the program, rising complaints from homeowners, and repeated threats from officials, the government has levied no penalties against even the most error-prone banks and mortgage servicers. In fact, despite issuing public warnings for more than a year about imposing penalties, the Treasury Department told ProPublica this week they don2019t even have the power to punish servicers for wrongfully denying help to homeowners. Instead of toughening the program, Treasury has actually loosened it in the face of industry lobbying.

Want to receive e-mails whenever we publish a new story about the government loan mod program? Sign up here.

Are you a homeowner who’s struggling to pay your mortgage? Are you seeking a loan modification through the government program? We want to hear from you.

Over the past year, ProPublica has been exploring why the government2019s program has helped so few homeowners. Over the coming weeks, we will be detailing how the administration quietly retreated from a plan to get tough on banks, why the mortgage servicing industry lacks incentives to invest in helping homeowners, how the industry succeeded in thwarting oversight, and what reforms could lead to more help for homeowners.

The stories are based on newly disclosed data, lobbying disclosures, dozens of interviews with insiders, members of Congress, and others. Today2019s story looks at the timidity of Treasury2019s oversight, a conclusion echoed in a government report Wednesday.

201CAt some point, Treasury needs to ask itself what value there is in a program under which not only participation, but also compliance with the rules, is voluntary,201D says the new report [1], from the special inspector general for the TARP. 201CTreasury needs to recognize the failings of [the program] and be willing to risk offending servicers. And if getting tough means risking servicer flight, so be it; the results could hardly be much worse.201D

The administration launched the program nearly two years ago, in early 2009, promising it would help three million to four million troubled American borrowers rework the terms of their mortgages. Amid widespread reports that servicers have been wrongly rejecting homeowners, losing paperwork, and otherwise breaking the program2019s rules [2], it appears the program will fall far short. The Congressional Oversight Panel now estimates [3] fewer than 800,000 homeowners will ultimately get lasting mortgage modifications.

An early problem for the program was that banks and other mortgage servicing companies were quickly letting homeowners into the program on a trial basis, but failing to make decisions regarding hundreds of thousands of homeowners while multiple government deadlines passed.

To push banks to solve the problem, senior Treasury official Michael Barr, who has since left the department, warned in a November 2009 conference call with journalists that if the banks didn’t clear their backlogs, the firms would “suffer consequences.” Treasury issued a press release the same day saying banks could face 201Cmonetary penalties and sanctions.201D

It turns out Treasury had already taken most penalties off the table.

The program rests on contracts [4] that Treasury drafted and banks signed onto. To participate in the program and receive potentially billions in government incentives, banks and mortgage servicers agreed to offer homeowners modifications under guidelines subsequently drawn up by the government. In exchange, they would receive $1,000 for a completed modification and up to $4,000 if the loan continued to perform.

The contracts say Treasury can withhold or claw back incentive payments to servicers when they violate the contract. Members of Congress and homeowner advocates have long pushed Treasury to issue such penalties. There have also been calls within Treasury itself.

Around the same time that Barr and other officials were making public threats, Treasury staffers were looking at reports showing that some banks were modifying virtually no loans. Frustrated, they called at an internal meeting for withholding payments to the worst offenders or imposing fines, according to a person familiar with those discussions. But the staffers were walked back by Treasury lawyers, who said the government was only party to a commercial contract with servicers and not acting as their regulator.

Despite Treasury officials appearing before Congress and elsewhere warning of potential penalties, the department told ProPublica after months of questioning that its hands are tied. Treasury now says it has a very narrow authority to withhold incentives under the contracts. Only in cases where the servicer incorrectly granted a modification and claimed a payment can Treasury withhold or claw back a payment as a punishment.

That interpretation of the contracts means that if a homeowner was wrongfully denied help through the program, there is no possible financial penalty.

201CThere is no provision in the contract that permits Treasury to assess punitive fines or penalties for a servicer’s failure to modify a loan, for an improper modification of a loan, or for failure to adhere to any other program requirements,201D said a Treasury spokeswoman.

Experts say Treasury is handcuffing itself. Alan White, a law professor at Valparaiso University, called Treasury2019s interpretation of its own contracts 201Cextremely crabbed.201D Treasury does have the power to punish servicers for broad violations by withholding incentive payments, he said, and it could also sue servicers for not fulfilling the contract.

Additionally, Treasury has the power to change the contracts, said Julia Gordon from the Center for Responsible Lending. (The Sandler Foundation is a major funder of both the Center and ProPublica, which operate independently of each other.)

The reason Treasury hasn2019t changed them, Gordon said, is that Treasury is afraid servicers would drop out of the voluntary program, known as the Home Affordable Modification Program (HAMP), in the face of real penalties.

“If servicers don’t get paid for future modification activity, there is a risk that they will be less inclined to continue completing HAMP modifications or to follow HAMP guidelines to evaluate homeowners for all loss mitigation options before referring them to foreclosure,” said a Treasury spokeswoman.

Instead of getting tough with servicers, Treasury says they work with banks to make sure problems are fixed.

When government audits of banks’ modification practices revealed they were frequently breaking the rules, Treasury officials worked through a process they call “remediation.”One audit, conducted on Treasury’s behalf by the government-supported mortgage company Freddie Mac, found that 200,000 struggling homeowners had not been told they were eligible for the program, as servicers are required to do. Auditors also found 15 of the largest 20 participating servicers were incorrectly using the Treasury formula that determines if homeowners qualify for the program.Rather than imposing penalties, Treasury simply asked the servicers to contact the homeowners that had been missed and rerun the numbers for those who had been wrongfully denied because of the formula error.

“The servicer says, ‘you’ve caught me this time,’ but it doesn’t improve widespread non-compliance because there’s no real penalty,” said Alys Cohen of the National Consumer Law Center.

Dawn Patterson, Treasury’s chief of compliance for the program, explained that the idea was to allow servicers time to get “their programs built, their processes more shored up.” Patterson says Treasury is continuing to use that approach.

Treasury2019s own records call into question the impact of those efforts. Documents obtained by ProPublica via a Freedom of Information Act request show homeowner complaints to a Treasury-sponsored hotline have actually increased during the past year. The most common complaint is that the servicer has violated the program’s guidelines.

This data, obtained through a Freedom of Information Act request, comes from the HOPE Hotline, a help line for homeowners sponsored by the Treasury Department. Complaints are calculated as a percentage of total calls, excluding irrelevant calls like hang-ups and wrong numbers.

Servicers have also at times been uncooperative with the government2019s own auditors. Even getting the right documents from servicers has “been a cumbersome process,” the head of the government’s audit team, Paul Heran, said last year at an industry conference. It seemed, he added, the task was often relegated to low-level staff who didn2019t understand the requests. Another manager in the unit, Vic O2019Laughlen, said servicers tended to respond with 201Cat best fifty percent of what we2019re expecting to see.201D

A Treasury spokeswoman said that “servicer operations, especially in larger organizations, are complex,” and producing the documents can be difficult.

The government2019s oversight has also been hampered by a lack of transparency by Treasury itself. The department has kept its audits of servicers secret. It also does not have a written policy for how it would address rule violations by banks, an omission criticized in a Government Accountability Office report last year and not yet addressed. Treasury says it does have a process for dealing with banks’ noncompliance, just not a written one.

The lack of oversight has been particularly damaging, since mortgage servicers have little incentive to do modifications on their own.

Servicers handle homeowner payments for investors who own the loans. Since servicers don2019t own the vast majority of the loans they service, they don2019t take the loss if a home goes to foreclosure, making them reluctant to make the investments necessary to fulfill their obligations to help homeowners.

“By every metric, the failure of the largest servicers to carry out the program is obvious,” said Prof. White. The noncompliance has gone unpunished, he said, because “Treasury staff are preoccupied with friendly relations with the banks. Sometimes it seems the banks own Treasury.201D

Meanwhile, the industry has continued to lobby for changes in the program.

Last summer, Treasury significantly weakened a tool that would have helped keep servicers accountable after officials met with industry lobbyists, documents show.When banks entered the program, they agreed to certify annually that they’ve followed the rules of the program. But lobbyists from the Financial Services Roundtable and the Mortgage Bankers Association suggested adding exemptions [5].

Instead of certifying that banks had followed all the rules, the industry proposed that they could ignore problems affecting less than five percent of homeowners eligible for the program. In the case of Bank of America, which handles more mortgages than any other bank, that meant the bank would not have to report an error that occurred nearly 20,000 times.

The industry also suggested that no matter how widespread a problem, servicers could assert they were complying with the law as long as they pledged to fix problems “to the extent practicable.” The previously unreported proposal was disclosed through an administration policy of releasing lobbying contacts related to the TARP.Later that month, the Treasury revised its certification requirements [5], making them similar to those the industry sought. Under the new rules, servicers can define for themselves what violations were significant enough to disclose.The new policy is “not only like putting the fox in charge of the hen house,” said Cohen of the National Consumer Law Center, “but asking the fox to fine itself for each chicken eaten.”

A Treasury Department spokeswoman said the industry’s lobbying did not affect the final guidance, because Treasury was already going to make several of the servicers’ suggested changes. It was never the department2019s intention that 201Ca servicer submit a list of every individual instance of non-compliance.201D If servicers give themselves inappropriate leeway, she said, Treasury would work with them to address the problem.

Unless servicers fear real penalties, the troubled program is unlikely to improve, said Richard Neiman, New York state’s chief bank regulator. “There needs to be a greater effort on enforcement, on assigning sanction and fines where there has been noncompliance. We cannot rely solely on servicers to police themselves.”

~

4closureFraud.org

Comments
7 Responses to “Govt’s Loan Mod Program Crippled by Lax Oversight and Deference to Banks”
  1. The HAMP prgram should be call the Making Home Delay Foreclosure Program This program was made only to delay foreclosures, while the Banksters Stick you up with Inspection Fees, Interest fees, late Fees and most all the payments you made while you were on a trial period, those payments are not being apply to your mortgage account, nor being return to you either, They keep the money in a suspend account and then when they foreclose they keep all those payments for themselves (they don’t give them to the investor or apply to your mortgage either) at the end ROBING YOU of your money
    HAMP= License to rob you!
    God Bless America !

  2. mymisstake says:

    I would like some assurance that if/when I were ever able to pay off my mortgage that there would be a legal title to the property waiting for me. Or would I get told may “Surprise, April Fool”.

  3. mymisstake says:

    On the tiny little miniscule chance that the servicers didn’t know all this months ago or that they weren’t given the secret sign not to worry because all the threats are just posturing and saber-rattling so we keep the serfs and peasants quiet, it would be a relief wouldn’t it, thanks so much, to tell the servicers who didn’t know “you can rest easy now, we’re harmless, keep on what yer doing messing with the little peoples’ minds”. Yep now its official, all pretenses are off these fat cats who are getting rich from our misfortune can sleep well tonight. Check it out:

    “In fact, despite issuing public warnings for more than a year about imposing penalties, the Treasury Department told ProPublica this week they don2019t even have the power to punish servicers for wrongfully denying help to homeowners.”

  4. l vent says:

    The Banks know they cannot give a loan modification on a mortgage debt that does not exist nor ever did. THIS IS WHY NO NOTES WERE EVER RECORDED. THE MORTGAGE DEBT NEVER REALLY EXISTED. SOMEONE IS BEING VERY GREEDY HERE AND IT IS NOT THE BANKSTERS. The banks KNOW they sold us our homes for a nominal fee and our mortgages for a nominal fee so they could participate in the gigantic Ponzi Scheme up on Wall Street and use our paid off property as collateral in order to create trillions of dollars in wealth for the top 1% and themseves and then SOMEONE STOLE ALL OF THAT WEALTH. The Banks would be COMMITTING MORE FRAUD IF THEY GAVE US A LOAN MOD ON A NON-EXISTANT MORTGAGE DEBT.THIS IS WHY FRAUDCLOSURE IS CALLED FRAUDCLOSURE. THE BANKS DO NOT OWN THE PROPERTY AND THERE IS NO MORTGAGE DEBT The banks gave HOMEOWNER’S A FREE HO– USE SO THEY COULD CREATE TRILLIONS IN WEALTH OFF OF OUR COLLATERAL. This is why nothing is recorded properly. The banks CUT A “SECRET DEAL” WITH HOMEOWNERS and now SOMEONE IS JUST BEING GREEDY. Come on Washington, you know this is true. Stop kicking the can down the road. The people know this is THE TRUTH. SOMEONE IS FORCING THE BANKS TO COMMIT FRAUD AND STEAL FROM THE PEOPLE.

    • l vent says:

      This is not about or ever was about the people getting a SO CALLED “free house”. THE PEOPLE PAID FOR THEIR HOMES AND MORTGAGES FOR A NOMINAL FEE. THE BANKS STRUCK A “SECRET DEAL” WITH HOMEOWNERS to create wealth for themselves and ALL OF THEIR FRIENDS. This is about THE GREED in the UPPER ECHELONS OF WORLD SOCIETY, THE INTENTIONAL ROBBERY OF OUR WEALTH VIA THE INTENTIONAL COLLAPSE OF OUR ECONOMY. This was a truly diabolical and sinister plan of controlling nations and their people by ROBBING A NATION OF THEIR WEALTH and throwing a nation into ECONOMIC CHAOS. They are intentionally using our currency as a DEBT CREATING MACHINE. A fiat currency WITH NOTHING BACKING UP IT’S VALUE which is intentionally CREATING deflation/inflation and destroying our economy and creating more FAKE DEBT. They are trying to create a GLOBAL Weimar Republic. Out and out CLASS WARFARE born of greed by the UPPER CRUST thrust on the masses around the globe.Go to You Tube and search for CNBC ILLUMINATI.

  5. Jack says:

    if the government cannot or is unwilling to sue the servicers can the homeowner? It seems to me that if a homeowner enters into the HAMP program and the servicer violates the terms of the HAMP program, then that is a breach of contract and would also be fraud if they did it intentionally.

    • mymisstake says:

      I doubt you’d get anywhere. Probably their defense would be something like “we did the best we could under the circumstances and directions we had to work with”.

      Which would be, of course, like everything else they say A LIE/Fraudulent and Deceptive Statement.

      Somewhere in the sweetheart deal they worked out with the Cap Hill boys there must be an escape liability/Get Out of Jail Free Card thrown in as a bonus?

      Do I sound cynical? Sorry.

Leave a Reply