William Black: Stop the banks. Indict the banksters.

Wire fraud and mail fraud are extremely serious federal crimes. Thousands of people who have perpetrated fraud through the mail or through telecommunications of any sort have been sent to prison for up to 20 years.  The U.S. Department of Justice warns that prosecution of wire fraud is not always merited, however. Prosecutorial resources should not be expended where fraud is a small piddling crime. For example:

Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts. Serious consideration, however, should be given to the prosecution of any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct.
What, then, should we make of the decision by the biggest banks in the United States to spew millions of lies through the mail in the zealous attempts to kick people out of their houses?  Everything about this bank fraud meets the test for serious fraud.  Not isolated.  Not between individuals.  Not involving minor losses to victims.  The victims, for the most part, cannot settle their differences by litigation because they have been put into desperate financial situations by the lenders, working hand-in-hand with the bank.  And yes, this scheme is directed to defrauding a large class of persons, and the general public is going to suffer the consequences of this "substantial pattern of conduct," namely, the large tracts of foreclosed homes in their neighborhoods. Note too, that the federal fraud statutes kick up the penalty to up to 30 years in prison "if the violation affects a financial institution."  Of course, the politicians and bank are going to argue that the increased penalty only applies if the institution is the victim. Then maybe it's time to pull out that wonderful quote by Anatole France:

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

In steps bank regulator/investigator William Black, into the fray.  Black is one of the few nationally prominent voices I completely trust with it comes to the conduct of banks over the past few years (and yes, decade).  Here is the solution Black offers, one that politicians are going to choke on because the banks own Congress.

S&L regulators, criminologists, and economists recognize that the same recipe that produced guaranteed, record (fictional) accounting income (and executive compensation) until 2007 produced another guarantee: massive (real) losses, particularly if the frauds hyper-inflated a bubble. CEOs who loot "their" banks do so by perverting the bank into a wealth destroying monster -- a control fraud. What could be worse than deliberately growing massively by making loans likely to default, converting large amounts of bank assets to the personal benefit of the senior officers looting the bank and to those the CEO suborns to assist his looting (appraisers, auditors, attorneys, economists, rating agencies, and politicians), while simultaneously providing minimal capital (extreme leverage) and only grossly inadequate loss reserves, and causing bubbles to hyper-inflate?

This nation's most elite bankers originated and packaged fraudulent nonprime loans that destroyed wealth -- and working class families' savings -- at a prodigious rate never seen before in the history of white-collar crime. They created the worst bubble in financial history, echo epidemics of fraud among elite professionals, loan brokers, and loan servicers, and would (if left to their own devices) have caused the Second Great Depression.

Nothing short of removing all senior officers who directed, committed, or acquiesced in fraud can be effective against control fraud. We repeat: Foreclosure fraud is the necessary outcome of the epidemic of mortgage fraud that began early this decade. The banks that are foreclosing on fraudulently originated mortgages frequently cannot produce legitimate documents and have committed "fraud in the inducement." Now, only fraud will let them take the homes. Many of the required documents do not exist, and those that do exist would provide proof of the fraud that was involved in loan origination, securitization, and marketing. This in turn would allow investors to force the banks to buy-back the fraudulent securities. In other words, to keep the investors at bay the foreclosing banks must manufacture fake documents. If the original documents do not exist the securities might be ruled no good. If the original docs do exist they will demonstrate that proper underwriting was not done -- so the securities might be no good. Foreclosure fraud is the only thing standing between the banks and Armageddon.

I should add that there are many cases where foreclosure is perfectly appropriate.  On the other hand, there are hundreds of thousands of cases where disreputable loan originators such as Ameriquest and Countrywide systematically lied to borrowers, sticking them into loans that the borrowers had no hope of paying off when the hyper-charged "adjustable rate mortgage" came into effect two or three years later.  Add in the deceitful "yield spread premiums," hidden fees and the many lies about prepayment penalties, and you've got enough fraud to fill the courts of this land for many years to come, where banks who foreclosed based on these shameful scenarios should be punished and forced to make amends to the homeowners.   That is what should happen.

Continue ReadingWilliam Black: Stop the banks. Indict the banksters.

Numerous American Muslim clerics guilty of sexually abusing children.

Just imagine how incensed most Americans would be if they saw the above (untrue) headline on the front page of their daily papers. Do you have any doubt that they would quickly investigate and prosecute the offenders, then throw them into prison? How amazing that when we substitute "Catholic" for "Muslim," so many Americans forgive the rapists and lean upon their victims. This is a paraphrase of a line used by Christopher Hitchens in an Slate article where he describes the unwieldy Belgian "problem" of the Catholic church. Well, the Belgian criminal justice system is now starting to crack down and the Catholic clergy continues to condemn this intervention of government, all the while stifling the investigations by attempting to withhold the evidence. The Catholic clergy would much rather be left alone, of course, but Hitchens sees this new development--that of "earthly justice"--to be an important and necessary step. If only this interest in those who have obstructed justice would happen with vigor everywhere. I would offer this suggestion: Dress up the American Catholic clergy as though they were Muslim clergy--tell people that they were Muslim sexual predators rather than Catholic sexual predators--and then watch the American media and justice system go at the offenders like attack dogs. We might even see some action aimed at those numerous accomplices who have worked so hard to cover up the evidence. Hell, we might even see Americans tear down Catholic churches that were within 10 miles of ground zero, if only we could somehow convince Americans that the Catholic clerics were disguised Muslims.

Continue ReadingNumerous American Muslim clerics guilty of sexually abusing children.

It’s lonely at the top

Pity Tony Hayward, erstwhile boss of BP. He's really had it rough. He's been "demonized and vilified", to use his own words. The poor CEO was so busy dealing with the massive oil spill perpetrated by his company that he almost missed watching his yacht race in a very important race! Almost, but he was able to watch the race anyway. Because, you know, someone else was probably working on cleaning up the oil fouling the Gulf of Mexico. It's not really the CEO's job, you see. It's more of a job for the "small people" of the world. "Life isn't fair. Sometimes you step off the pavement and get hit by a bus," Hayward said recently. Yes, that's true. And sometimes, you end up the CEO of one of the most powerful oil companies in the world. A company that has a long history of criminal and ethical violations that should make them unfit to operate a lemonade stand, much less a major multinational corporation with power to contaminate the entire Gulf of Mexico-- and perhaps, Beyond!

Continue ReadingIt’s lonely at the top

Debtors’ Prison Still A Reality?

According to a recent article by Chris Serres at the Minnesota Star Tribune, courts still order debtors to go to jail when they can't afford to pay a judgment. Not only are the national media largely unaware of this phenomenon, but The New Yorker published an article last April that characterizes debtors' prisons as a pre-20th Century institution, and describes the America as a refuge for debtors.

As many as two out of every three Europeans who came to the American colonies were debtors on arrival. Some colonies were, basically, debtors’ asylums. By the seventeen-sixties, sympathy for debtors had attached itself to the patriot cause.

Jill Lepore of The New Yorker goes on to describe how American treatment of debt has evolved to allow bankruptcy and why this is a good thing.

Debtors’ prison was abolished, and bankruptcy law was liberalized, because Americans came to see that most people who fall into debt are victims of the business cycle, and not of fate or divine retribution.

Even Wikipedia describes debtors' prisons as a thing of the past, or at least an unconstitutional one, according to this 2009 New York Times editorial, "The New Debtors' Prisons."

20th Century Debtors' Prison

Times have changed. To be sure, most Americans who are deep in credit card debt do not have bench warrants issued for their arrest. However, in Illinois, Indiana and other states, a person who's gotten a judgment entered against them can miss a court date and find themselves being hounded by the police.

What about the argument that defendants may owe the money they are being sued for, and should have gone to court? Perhaps the threat of jail is the only way to make them appear in court.

Reporters from The New York Times and The Federal Trade Commission have found that the collection industry is in dire need of repair, and cited numerous, ubiquitous problems. Some of these problems are startling. To wit:

[More . . . ]

Continue ReadingDebtors’ Prison Still A Reality?

Putting the incentives in the wrong place

At Slate.com, Eliot Spitzer argues that the BP disaster and the Wall Street disaster have something in common:

The law of incentives is what links the Wall Street cataclysm and BP's ongoing eco-disaster: In each case, we socialized risk and privatized gain, creating an asymmetry that created an incentive for private actors to accept and create too much risk in their business model, believing that at the end of the day, somebody else would bear the burden of that risk, should it metastasize into a disaster.

He mentions the astounding fact that in their current risk analysis of the too-big-to-fail banks, the Wall Street agencies assume that the federal government will come to the rescue with future bailouts. What we have is amazing. Public risk and private gain don't begin to pass the smell test. We are doling out corporate welfare where it is not needed and where it is not in the best interest of the taxpayers. And somehow, this catastrophic system passes as "the free market" among many modern-day free market fundamentalists. Spitzer points out that there are two ways to deal with businesses that engage in dangerous activities, tort liability and regulation, and that the public will be protected only if we have at least one of these.

A regime of full tort damages and recoveries is one way to balance safety and exploration, or investment and risk, or whatever economic activity we are discussing. But there is another way: meaningful and vigorous oversight to impose safety standards that are dictated not by the market for insurance but by the judgment of serious experts in a regulatory context.

Continue ReadingPutting the incentives in the wrong place