Doubts About Independent Foreclosure Review Spread

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Doubts About Independent Foreclosure Review Spread

Doubts About Independent Foreclosure Review Spread

by Paul Kiel 
ProPublica, Oct. 19, 2012, 9 a.m.

The idea behind the Independent Foreclosure Review seems simple. During the peak of the foreclosure crisis, the banks broke laws and made errors that hurt homeowners. In response, the government mandated they compensate the victims.

But there is growing evidence some banks are playing a major role in identifying the victims of their own abuses, raising the question of whether the review is compromised by conflicts of interest.

Last week we reported that Bank of America, according to bank employees and internal memos and emails, is performing much of the work itself. Now, a ProPublica examination of contracts that outline what work the banks would do on the review shows that America’s four largest banks all planned to participate heavily in evaluating whether homeowners were harmed. Three of the four banks would even help set how much compensation victimized homeowners would receive.

The four banks u2014 Wells Fargo, Citibank, JPMorgan Chase, and Bank of America u2014 together account for about three quarters of the 4.4 million homeowners eligible for the program.

The review was designed to work like this: Each bank or mortgage servicer would hire an “independent consultant” to evaluate that bank’s foreclosure cases, identify who was harmed and determine how much compensation each victim deserved. The maximum cash compensation a homeowner can receive through the review is $125,000. No money has been awarded yet.

However, the secrecy of the program makes it impossible to know for sure how it’s actually being conducted. After being pushed by Congress and borrower advocates, bank regulators publicly posted the contracts between each bank and the consultant each hired last year to provide the “independent” review of foreclosure cases. It’s these contracts that show that the banks planned to perform much of the work themselves.

Yet the main regulator for the biggest banks, the Office of the Comptroller of the Currency (OCC), said the contracts don’t accurately describe how the reviews work now. “Much has changed,” OCC spokesman Bryan Hubbard told ProPublica.

The OCC did confirm that some banks’ mortgage servicing divisions are coming up with “self-identified findings of harm/no harm” and presenting them to the independent consultants. But the OCC would not specify which banks are doing this.

Moreover, said Hubbard, any such finding by the banks “does not influence the consultant.”

Advocates disagree. “It’s hard to imagine that it doesn’t influence the outcome,” said Alys Cohen of the National Consumer Law Center. “The consultant is supposed to act like an arbiter between the mortgage servicer and the homeowner u2014 except the consultant is not only paid by the servicer, the servicer can put their finger on the scale. Meanwhile, the homeowner is totally in the dark once they send in their application.”

What the Contracts Say

Like Bank of America, the other three big banks hired their “independent consultants” last year. Their contracts all describe a similar process for handling homeowner claims: After a homeowner submits a form detailing the bank’s ostensible errors or abuses, the bank itself would perform a review of the case to determine if the homeowner was victimized by the bank’s own practices. The bank would then pass on its findings to the consultant, which would make the final decision of how much compensation, if any, the homeowner would receive. The program launched in November of 2011, a couple of months after the contracts were signed.

Two companies u2014 Promontory Financial Group and PricewaterhouseCoopers (PwC) u2014 won half of the contracts awarded so far: Promontory is handling the reviews for three banks, PwC for four.

Wells Fargo’s contract with Promontory states that the bank would “process the complaint, prepare a recommended disposition, and provide the complaint, the recommendation, and supporting documentation to Promontory for independent review and decisioning [sic].”

Promontory, which is also serving as the consultant for Bank of America’s foreclosure review, referred ProPublica back to the same comment it made in response to our previous story and declined to comment further. In response to Bank of America internal documents that indicated Promontory would be relying on Bank of America’s analysis for its determinations, a Promontory spokeswoman called the bank’s work merely “clerical” and said Promontory employees analyze the material assembled by Bank of America “independently with no involvement from the servicer.”

Wells Fargo did not directly respond to ProPublica’s questions about whether its employees were analyzing homeowners’ files. Instead, spokeswoman Vickee Adams said the bank’s role “is focused on providing relevant documents and information to the independent consultants, clarifying or confirming facts or findings and providing all details surrounding the events that occurred related to the foreclosure process.”

Citibank’s contract language with its consultant, PwC, is very similar to Wells Fargo’s. “It is the responsibility of Citibank to prepare the case file and conduct the initial review of the complaint,” it states. “Citibank will then forward the in-scope complaints, a report of Citibank’s findings and its proposed resolution to PwC for independent review.”

A PwC spokesperson declined to comment. Citi spokesman Mark Rodgers said only, “We are compliant with the process we agreed to with the regulators.”

Chase’s contract with Deloitte & Touche (D&T) is a little different. It says that the consultant would do its own review of homeowner complaints, while Chase “will also conduct its own review. D&T may consider the results of [Chase’s] review in preparing its findings.”

Neither Chase nor Deloitte responded directly to ProPublica’s questions about the bank’s role in the reviews. “We continue to work closely with the Independent Consultant, the regulators and the consortium [of banks involved in the program] on the final steps in the Independent Foreclosure Review process,” was the entire response from Chase spokeswoman Amy Bonitatibus.

“We are conducting an independent review of the files and it is that review alone that will drive our recommendations,” said Deloitte spokesman Jonathan Gandal. “Beyond that, we are not at liberty to discuss matters pertaining to our services.”

Smaller Banks

The contracts of many smaller banks are different. The contracts of four banks u2014 Ally Financial/GMAC, MetLife Bank, U.S. Bank, and Sovereign Bank u2014 have clauses that say the banks would gather documents for the consultant’s review, but there is no mention of their employees actually analyzing the files and forwarding recommendations to the independent consultants. One bank, OneWest, had no language at all in its contract about bank employees gathering documents or reviewing files. OneWest declined to comment.

The contract between GMAC Mortgage, the fifth largest servicer, and PwC states that GMAC is “responsible for assembling the documents necessary for the review” and should see which files require “immediate action.” (The parent company for GMAC Mortgage, which declared bankruptcy earlier this year, is Ally Financial.)

GMAC spokeswoman Susan Fitzpatrick said the servicer only reviewed complaints when the homeowner had not yet been foreclosed on. The purpose of those reviews, she said, was to postpone the foreclosure sale before it occurred if it appeared that any errors had taken place. Regulators have said homeowners who submit complaints while still in foreclosure will “receive expedited attention.”

GMAC is not reviewing the files of homeowners who have already lost their homes, said Fitzpatrick, and the servicer “will not propose borrower resolutions,” she said. PwC alone makes the final assessment, she said.

PwC declined to comment.

Regulators Differ

The OCC is the primary regulator for most of the 14 banks conducting the foreclosure reviews, but the Federal Reserve oversees four of them. The Fed says that none of its banks are performing regular analyses of the borrower complaints.

But some of the banks overseen by the Fed do have language in their contracts saying the banks themselves would be reviewing the homeowners’ complaints. SunTrust, for instance, has language in its contract very similar to what’s in Bank of America’s. The Fed is also overseeing the review for a subsidiary of Chase, EMC Mortgage Corporation, which has the same language in its contract that Chase does for its main servicing divisions.

Federal Reserve spokeswoman Barbara Hagenbaugh said that regardless of the contracts, none of the servicers it is overseeing are forwarding analyses of the homeowner files to the consultant. “For a brief period of time early in the process, we understand one servicer forwarded a preliminary analysis of files to its consultant,” she said. “The consultant has assured us these files were not relied on for its assessments and those analyses are no longer forwarded.

“Federal Reserve examiners are monitoring the consultants and servicers closely to ensure the process remains independent.”

By contrast, the OCC described a general procedure followed by the banks it oversees that includes the bank analyzing the homeowners’ files and forwarding that analysis to the consultant.

“[The] servicer generally performs its own review of how it administered the file, and will communicate its rationale and self-identified findings of harm/no harm to the independent consultant,” the OCC’s Hubbard wrote in an email to ProPublica. “The independent consultant may review the servicer’s rationale/findings, but will conduct its own review and draw its own conclusions.”

 

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6 Responses to “Doubts About Independent Foreclosure Review Spread”

  1. Ken Hansen says:

    “It’s been painfully clear for a while that these “independent foreclosure reviews” directed by the OCC were nothing more than a scam, a way to once again build hopes among foreclosure victims of restitution for the fraudulent actions of their lenders.” – David Dayen

  2. Sue says:

    We submitted our request for review and extensive evidence supporting our allegations to “the independent foreclosure review” the first week of December 2011. We have since lost our home and have not received a decision on the review. It seems to me 11 months should be more than time enough to complete the review, especially since the number of requests was far less than what the OCC and Federal Reserve Board expected. We have concrete proof of fraud and our lives were turned upside down with nightmare litigation, a corrupt attorney and had to file for BK. We have little faith in the IFR but are holding out for the slim chance it might actually provide some justice—- if they ever complete the review.

  3. JIMI says:

    get rid of the mafia banksters re-appoint new people that will look into banksters fraud and this judges out there that cover the fraud for these banks

  4. joe says:

    I just give up. That’s what these judges and Congress want.This is not America. Everything for the rich everybody else is no good. Obama and Romney two idots. As soon a humans get rich they couldn’t care about anything else or anybody else. Only what’s good for them self and their fat ugly wife’s. And your not going to do anything about it. What ever these dumb ass judges say or what ever the rich say goes

  5. Joni Brit says:

    That’s not true at all, but this is all new law and the best lawyers work 20 hour days and they don’t work for nothing and home owners, rather home losers have gotten totally shafted for this inconsistency.
    For 16,000,000 underwater mortgages there’s a handfull of Attorneys putting in Wall Street hours and the rest have done more harm than good.
    The problem now is for every empty house there can be a dozen foreclosures on it, all insured through HUD, now sitting in an investment REIT, earning a fortune for FNMA and the holders of the Title. While the once upon a time homeowners have a bleak and homeless future.
    Regarding whistleblowing, most of us have been so burned with Attorneys and so embarrassed we Trust no one. We can blog and talk big, but our families don’t want to hear about it, it is still the subject for Losers, and our children just want their mothers back and their mother’s wish that she had a Wall Street lawyer who was not afraid to give advice.

  6. Judith McDonald says:

    Homeowners OCC.gov customer service group can change its name to I play by unfair rules,(Bank of America for me)and do what my professional bankers say, hence forth I say WASTE OF TIME during a terrible time. Namaste.

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