Buried in Fine Print: $57B of FHA Loans Big Banks May Have to Eat

Below is an article by Kate Berry which was published on October 7, 2013 in the American Banker.

The nation’s four largest banks are holding $57 billion of seriously delinquent loans that they’ve been slow to move into foreclosure over concerns that the Federal Housing Administration, the government mortgage insurer, will refuse to cover the losses and hit them with damages, according to industry sources.

The banks — Bank of America (BAC), Citigroup (NYSE:C), JPMorgan Chase (JPM), and Wells Fargo (WFC) — have assured investors in the footnotes of quarterly filings that the loans are government-insured and therefore pose no threat to their bottom lines, even if they end up in foreclosure. What’s more, the banks have used these supposedly iron-clad government guarantees as a pretext for continuing to classify the loans as performing and for holding no reserves against them.

The FHA insures home loans issued by banks and other mortgage lenders to low-income and first-time home buyers. Those buyers pay the FHA insurance premiums to cover potential losses. In the event that an FHA-backed loan goes into foreclosure, the lender has the right to file a claim for reimbursement of losses.

However, the FHA’s guarantee does not apply if lenders are found to have violated underwriting or servicing standards, or to have engaged in misconduct. Banks can also be held liable for treble damages under the False Claims Act if they are found to have “falsely certified” that mortgages met all FHA requirements.

As a result, the banks face hefty losses if the loans go into foreclosure because there is no guarantee that the FHA will cover them, asserts Rebel Cole, a former Federal Reserve Board economist who is now a professor of finance and real estate at DePaul University in Chicago.

In the last year, the Department of Housing and Urban Development, which oversees the FHA, has forced four banks to pay a total of $1.5 billion under the False Claims Act on FHA loans that defaulted. More settlements are expected soon.

“The banks say they are certain of repayment on these distressed assets, but that’s simply not true,” says Cole.

To be sure, even if all $57 billion of loans went into foreclosure, losses to the FHA and banks would likely be substantially less, thanks to recoveries on the properties. The FHA’s overall recovery rate was 42% of the principal value in the second quarter.

Some lenders acknowledge that they will likely end up eating losses on defaulted loans held on their balance sheets and settlements related to past claims. They are also likely to try to avoid the risk of getting hit with damages by forgoing the FHA claims process and absorbing some losses themselves.

“There’s a distinct possibility that they [banks] do not file all claims and just self-insure [absorb losses] on those loans,” says Melissa Klimkiewicz, an attorney at BuckleySandler. “Lenders may err on the side of not filing claims where there is uncertainty because of the potential for HUD action or treble damages.”

For their part, lenders bristle at the claim that they’re intentionally keeping loans out of foreclosure. Even Ed Pinto, a resident fellow at the American Enterprise Institute and a sharp FHA critic, attributes the backlog of delinquent FHA loans to efforts by consumer groups to slow foreclosures, and to the unreasonably long time it takes to complete a foreclosure in states such as New York, New Jersey and Florida, where foreclosures are processed through the courts.

“Servicers are engaged in vigorous, robust loss mitigation efforts and that’s one of the reasons foreclosures are taking longer and so many loans are still on (banks’) books,” says Phillip Schulman, a partner with the Washington office of K&L Gates, who represents several banks currently in negotiations with HUD.

“You can’t file a claim until the house is in foreclosure or has [been the subject of] a short sale. It’s a lengthy process, and foreclosure is the last option we look at,” adds Jerry Dubrowski, a spokesman for B of A.

Moreover, it is not as if the FHA — whose own financial health is in question — is pressuring the banks to file claims. Like any insurer, the FHA wants to avoid paying claims, so it is providing incentives to mortgage servicers when they modify loans, offer a forbearance of past due mortgage payments or provide other alternatives to foreclosure. The FHA’s goal is “to reduce the number of full claims against the insurance fund,” a 2012 Government Accountability Office report on its finances said.

Some bank critics say they have intentionally held off from filing claims in the wake of their scandal involving the ‘robo-signing’ of foreclosure documents. That episode led to $25 billion national settlement between state attorneys general and the nation’s five largest servicers. Critics suggest the banks are now unable to foreclose on FHA loans because they do not have proper documentation, and therefore cannot file claims with the FHA.

“It’s like saying you’ll be reimbursed for expenses when you’ve lost the receipts,” says Reuben Guttman, who specializes in False Claims Act cases against banks at Guttman, Buschner & Brooks PLLC.

Most banks define delinquent FHA loans as those 90 days or more past due but still accruing interest. B of A has $21.4 billion of delinquent FHA loans on its books, while Wells has $19 billion, Citi has $4.2 billion and JPMorgan Chase has $3.3 billion. The banks also have on their books more than $8.6 billion of “nonaccrual” delinquent loans on which the FHA is no longer covering interest. Almost $7 billion of those loans are held by JPMorgan Chase.

DePaul’s Cole says that the numbers are misleading, however.

Bank of America, for example, lists only a fraction of its $23 billion in defaulted FHA loans as nonaccrual. But in a footnote to its second quarter filing with the Securities and Exchange Commission, B of A says the FHA, as the insurer, has stopped paying interest on $17 billion of the defaulted loans. Cole insists those also should be listed as nonaccrual.

Some observers suggest that the loans could sit on the four banks’ balance sheets until they settle existing disputes with the FHA over their underwriting. B of A and Citibank have already negotiated settlements over False Claims Act violations with the FHA or are in the midst of doing so.

The settlements are to resolve claims involving an unknown amount of previously filed FHA claims that could date back a decade or more. After the legal claims involving these mortgages are cleared up, the banks will be able to file new claims for loans still on their balance sheets.

“At some point there is going to be a settlement and it will include the loans held on their balance sheets, and at that point they will be able to file claims,” said one attorney who represents a bank currently in settlement talks.

In all, 10 FHA lenders are currently in negotiations with HUD and the Justice Department, David A. Montoya, HUD’s Inspector General, told legislators last month. The FHA’s servicing review teams have found widespread violations of servicing practices, and the expectation is that the FHA will be reimbursed for claims it has already paid, Montoya said.

“Given the sheer volume of loans involved and high error rates identified in underwriting, settlements and favorable court actions may result in significant recoveries by the government from each of the 10 lenders,” Montoya told a House subcommittee on Sept. 10.

Any recoveries, of course, would help the FHA bolster its own finances. Though the FHA says it has already set aside reserves to cover losses, the agency remains undercapitalized and had to tap the Treasury Department for a bailout last month.

“There’s no question that HUD is stepping up its enforcement efforts and that’s a euphemism for collection efforts,” says Schulman, the K&L Gates attorney.

The FHA has more than $32 billion in reserves, but it faces an estimated $70 billion in future payouts on loans originated just from 2007 through 2009, according to the 2012t from the Government Accountability Office. In all, the FHA has roughly 686,000 seriously delinquent loans, representing $106 billion in total principal balances for all lenders. These distressed assets continue to be a major drag on the housing market, distorting the supply of homes for sale because so many remain stuck in the foreclosure process.

Last year, the U.S. Attorney for the Southern District of New York, the Justice Department, HUD’s general counsel and HUD’s Office of Inspector General settled civil fraud cases with three large banks: Deutsche Bank’s Mortgage IT unit for $202.3 million, CitiMortgage for $158.3 million and Flagstar Bank for $132.8 million. Each of those settlements involved the lender’s admission that they submitted what are called “false annual certifications” to HUD. A spokesman for Citi says because of its past settlement, it has continued to file new claims and expects the FHA to pay for all losses.

In addition, B of A agreed last year to pay roughly $1 billion to resolve allegations of misconduct for loans originated by Countrywide Financial, which it bought in 2008. That settlement helped FHA patch a $688 million budget shortfall.

B of A in particular has dramatically whittled down its backlog of delinquent FHA loans. From the fourth quarter of 2012 to the second quarter of this year, B of A sold off $8 billion in mortgage servicing rights, essentially unloading soured FHA loans to nonbank servicers Nationstar Mortgage (NSM) and Ocwen Financial (OCN). Those servicers now have the authority to file claims with the FHA once loans go through foreclosure.

Of the four lenders, Wells appears to be the most resistant to a settlement.

The bank is locked in a bitter legal dispute with Preet Bharara, the U.S. Attorney for the Southern District of New York, and HUD over allegations of widespread FHA underwriting violations going back a decade.

Wells has claimed it received a broad release from False Claims liability as part of the $25 billion national mortgage settlement, but regulators have disputed that claim in court.

Wells “believes it acted in good faith and in compliance with FHA and HUD rules,” a spokesman said in an email. “We look forward to presenting facts to vigorously defend against this action.”


Powerful Whistleblower Attorney: US Protection and Bounty System Helps Root Out Financial Scandal

This article was written by Lianna Brinded, Business Editor for the International Business Times on September 25, 2013.

One of the world’s most prominent whistleblower attorneys tells IBTimes UK about the differences between US and UK whistleblower protection.

The only way to prevent and root out large scale financial and company scandals is by installing bounty programmes and protection systems that reward those who risk their careers to flag up wrongdoing, says one of the world’s most prominent whistleblower attorneys.

In the US, there are a number programmes, such as ones with the US Internal Revenue Service (IRS) and the Securities Exchange Commission (SEC) coupled with the protection through the Dodd-Frank Act, since 2010.

The programmes allow whistleblowers to not only be rewarded for information, depending on the significance of information and how much it results in recovery for the government or shareholders, but also protects them employer retaliation, such as dismissal or being investigated themselves.

However, the UK lags behind rewarding or protecting whistleblowers.

Reuben Guttman is one of the world’s most prominent whistleblower attorneys and a co-founder of Guttman, Buschner & Brooks PLLC in Washington DC. He has served as counsel in some of the largest recoveries under the False Claims Act and has recovered billions of dollars for the government from fraudulent mortgage assignments and a number of pharmaceutical firms.

In 2012, he represented one of the four main whistleblowers in a case against GSK that returned over $3bn to the government and here he speaks with IBTimes UK exclusively.


China’s Pharmaceutical Bribery Scandal is ‘Tip of the Iceberg’

Chinese authorities are cracking down on its pharmaceutical sector after officials revealed that four China-based senior executives at British drugmaker GlaxoSmithKline had channelled millions of pounds in bribes through travel agencies and consultancies.

Reuben Guttman is one of the world’s most prominent whistleblower attorneys who practice with Guttman, Buschner & Brooks PLLC in Washington DC. He has served as counsel in some of the largest recoveries under the False Claims Act and has recovered billions of dollars for the government from fraudulent mortgage assignments and a number of pharmaceutical firms.

In 2012, he represented one of the four main whistleblowers in a case against GSK that returned over $3bn to the government and here he speaks with IBTimes UK exclusively.

(Source: International Business Times at http://www.ibtimes.co.uk/articles/508530/20130924/gsk-china-pharmaceutical-scandal-bribery-whistleblower.htm)

See the full interview. . .


Guttman & Buschner Represent Whistleblowers in Justice Dept. $257 Million Civil Settlement with Wyeth over Unlawful Marketing of Rapamune

Pfizer subsidiary pleads guilty to off-label marketing of powerful immunosuppressent Rapamune; settlement latest in series of major off-label whistleblower cases against Abbott, GlaxoSmithKline and Amgen

WASHINGTON, DC (July 30, 2013) – Leading whistleblower attorneys Reuben Guttman and Traci Buschner of Guttman, Buschner & Brooks PLLC represented two key whistleblowers behind a $257.4 million settlement announced today between drugmaker Wyeth Pharmaceuticals, a subsidiary of Pfizer, and the U.S. Department of Justice stemming from alleged marketing abuses of Wyeth’s powerful immunosuppressant drug Rapamune. The case was originally brought by  Marlene Sandler and Scott Paris, both of whom were sales representatives for the company.

Today’s blockbuster settlement of the whistleblower case was originally panned by the Justice Department, but raised the ire of a Congressional oversight committee in 2010.

The case, filed under seal in 2005 in U.S. District Court for the Eastern District of Pennsylvania, led to an investigation by the Justice Department and multiple states into abusive marketing practices related to Rapamune, which is primarily approved by the FDA for individuals following kidney transplants to help the body prevent organ rejection. On Dec.3, 2006, the DOJ filed a formal notice with the Eastern District declining to intervene in the case.

Guttman and Buschner continued to move forward with the case, and filed an amended complaint on behalf of the whistleblowers on May 24, 2010 ─ which spurred a formal inquiry by the U.S. House of Representatives Committee on Oversight and Government Reform, then chaired by U.S. Representative Edolphus Towns.

On Sept. 21, 2010, the Justice Department intervened in the case and transferred it to the U.S. the District Court for the Western District of Oklahoma in Oklahoma City, where an investigation was initiated with regard to claims brought by a third whistleblower.

The settlement agreement notes the broad scope of Wyeth’s alleged unlawful marketing of Rapamune for well over a decade, spanning from September 1999 to December 2011:

Wyeth (a) knowingly promoted the sale and use of Rapamune for uses for which it had not been approved by the United States Food and Drug Administration (FDA), including for use in connection with solid organ transplant patients other than kidney transplant patients, which were not medically-accepted indications (as defined in 42 U.S.C. § 1396r-8(k)(6)), and were not covered by Medicare, Medicaid and other Federal health care programs; and (b) knowingly promoted the sale and use of Rapamune in treatment regimens that had not been approved by the FDA including the use of Rapamune with transplant patients who used another immunosuppressant drug before using Rapamune and the use of Rapamune in combination with certain types of products other than cyclosporine and corticosteroids.

Ms. Sandler and Mr. Paris were represented by Reuben Guttman and Traci Buschner. Mr. Guttman is one of the country’s preeminent whistleblower lawyers, having representing individuals in some of the largest pharmaceutical and financial services cases on record.

“Pfizer subsidiary Wyeth joins a parade of other pharma giants to plead guilty and pay significant penalties for unlawfully marketing their drugs,” said Mr. Guttman. “The abuses related to illicit marketing of Rapamune paint a disturbing portrait. Wyeth leadership placed a highly vulnerable patient population at serious health risk. Exposing those whom drug makers have pledged to heal to increased risk merits immediate congressional oversight. Hopefully, the settlement will prompt Congress to take action.”

Mr. Guttman continued: “Over the past five years, at least half a dozen pharma giants have paid fines for conduct that places patients in harm’s way, yet not a single individual has been held accountable. Our nation can no longer afford the expenditure for drugs that don’t work, cause additional harm and saddle the country with the long-term of obligation of paying for the medical care of victims. These cases are reported in terms of dollars but they are more about conduct that impacts patients and taxpayer.”

In the last three years, Guttman and Buschner have had unprecedented success representing lead whistleblowers in the government’s $1.6 billion settlement with Abbott (2012); its $1.04 billion settlement with GlaxoSmithKline (2012); and its $24.9 million dollar settlement with Amgen (2013). The firm also represented whistleblower Lynn Szymoniak, who first reported claims of robo-signing to 60 Minutes and whose allegations led to a $95 million settlement as part of the government’s historic $25 billion settlement with the country’s four largest banks (2012).

Mr. Guttman and Ms. Buschner currently represent several relators in an ongoing case, in which the government has intervened, against defense contractor LockheedMartin regarding alleged environmental noncompliance and mishandling of hazardous waste at the Paducah Kentucky Gaseous Diffusion Plant.


Q&A: Whistle-blower lawyer on Amgen settlement, False Claims Act

This interview with Reuben Guttman was conducted by journalist Terry Baynes with Thomson Reuters.

California-based drugmaker Amgen Inc agreed on Tuesday to pay $24.9 million to settle allegations that it provided kickbacks to long-term care pharmacy providers to entice them to switch patients to its anemia drug Aranesp. Whistle-blower Frank Kurnik, a longtime Amgen employee, and the Justice Department accused the company of giving pharmacy providers rebates based on their volume of Aranesp prescriptions.

Reuben Guttman, a lawyer at Guttman, Buschner & Brooks PLLC, who brought the lawsuit on behalf of Kurnik, said the case reflects how prosecutions under the False Claims Act are focusing on conduct higher up the corporate ladder.

Amgen declined to provide a lawyer to discuss the settlement. The company in a statement about the settlement denied all of the allegations.

Reuters asked Guttman about the case and developments in False Claims Act litigation. The questions and answers have been edited for brevity and clarity.

Reuters: What does the case reveal about the type of conduct coming under scrutiny in False Claims Act cases?

Guttman: Typically, you’re talking about kickbacks paid to doctors in a lot of these cases. Instead of going from doctor to doctor and hospital to hospital, Amgen allegedly orchestrated a scheme that paid kickbacks to long-term care pharmacy providers who influenced prescriptions at nursing homes. The case showed how decisions about patient care are being made hundreds of miles away, at a corporate level. Healthcare fraud schemes orchestrated at a corporatewide level are schemes that are going to draw more prosecutorial focus.

Reuters: What were some of the biggest challenges in bringing the case?

Guttman: Typically, in cases like this, you’re talking about numbers of witnesses who can testify to specific kickbacks paid to doctors. This was more complicated, which is why it’s significant. We had to show that the contractual relationships with these long-term care pharmacy providers were actually orchestrated to engage in unlawful conduct. It involved the aggregation of documents and testimony. The challenge is to dig down and show how the schemes are implemented.

Reuters: Was there anything unusual about the case?

Guttman: In comparison to other pharmaceutical cases, this one had a short lifespan. False Claims Act cases can last for more than five years. This one was filed in 2010 and resolved in 2013. That’s light speed for the investigation and resolution of a pharmaceutical case of any magnitude.

Reuters: What explains the faster timeline in this case?

Guttman: The Justice Department is getting more aggressive about investigating these cases. In addition, recent amendments to the False Claims Act give the government more expansive use of “civil investigative demands” before intervening in a case to obtain documents, which they can share with the whistle-blower’s lawyers. That has created new paradigms of government and whistle-blower lawyers working together in reviewing documents. Efficiencies from changes in the law allow cases to move quicker.

Reuters: Is the Justice Department intervening in these cases more often?

Guttman: It really depends on the evidence that’s brought to the Justice Department and the way in which the case is presented. Last year, the Justice Department got about 700 false claims cases. It gets harder and harder for the Justice Department to investigate cases when there are so many cases being filed. If the case is well documented, if the whistle-blower has sufficient facts and is credible, and the whistle-blower’s counsel is present and can present a case, there’s a greater chance of intervention.

Reuters: How is the role of the whistle-blower lawyer changing?

Lawyers for whistle-blowers have to anticipate that when they file a case, they’ll have to see that case through to trial. The frauds are more complex. Even where the case is a great one, you can’t count on the government intervening due to the number of fraud cases being filed. There’s a role for the whistle-blower lawyer who’s willing to be active, work with experts and cooperate with the government in pursuing cases. The government is going to be looking for mechanisms to leverage their resources.

Reuters: Does the case change if or when the government intervenes?

Guttman: Defendants act differently if the government is involved or not. There’s a fear factor that the government is bearing down on you.

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