Bankers' gambles – now with a bailout guaranteed

After the 2008 banks bailout, we were promised that financial reform was going to prevent future bailouts.

Never again.

But as we approach the fourth anniversary of the financial collapse, we’re learning just how hollow those promises were.

The most recent example stems from reports that regulators have secretly designated derivatives clearinghouses too big to fail in a financial emergency.

That means that in a crisis, such clearinghouses, in which risky credit default swaps are traded, would be bailed out at taxpayer expense through secret access to cheap money at the Federal Reserve’s credit window.

That’s where the big banks and the rest of corporate America lined after the 2008 to borrow trillions at low interest – with no strings attached.

The Fed didn’t require the banks to share that low interest with consumers or homeowners. The Fed didn’t require that banks make some attempt to fix the foreclosure mess. The Fed didn’t require corporations hire the unemployed or lower outrageous CEO pay.

The Fed just shoveled out the cheap loans.

Now the Fed is planning to extend that generosity, as a matter of policy, to derivative clearinghouses – which puts taxpayers directly on the hook for Wall Street’s risky gambles, like the ones that recently cost J.P. Morgan Chase $2 billion.

While those trades didn’t threaten to sink the economy, it was the unraveling of those kinds of complex gambles that tanked the economy in 2008.

Nobody knows for sure how large the derivatives market is, but the estimates are truly mind-boggling. One derivatives expert estimates that there were $1.2 quadrillion in derivatives last year – 20 times the size of the world’s economy.

While requiring these derivatives to be traded on clearinghouses is supposed to increase transparency, that assumes regulators are aggressive, diligent and understand the trades.

But signaling that these derivatives should be eligible for a bailout is nothing short of insane, at least from the taxpayers’ perspective. From the bankers’ perspective, it’s a pretty good deal, and a reassuring indication that nothing much has changed since the financial crisis: the regulators are still deep in the bankers’ pocket.

Meanwhile, the real reforms that might have a shot at actually fixing the problems and protecting our economy from the big bankers’ addiction to risk get little or no consideration in what passes for political debate.

The best step we could take is to re-impose the Depression-era   Glass-Steagall Act, which creates walls between safe, vanilla, and consumer banking (which have traditionally been federally guaranteed, and riskier investment banking and derivatives trading But the bankers oppose Glass-Steagall, and for the present, they remain in control of both political parties and the regulators’ financial policies.

For foreclosure relief, occupy the Legislature

Two years ago, California legislators bowed to bankers when they failed to pass legislation that would require mediation between a bank and borrower before banks could foreclose on the borrower’s home.

But a recent report by the U.S. Justice Department should cause the Legislature to take another crack at making a critical choice: Do they want to provide tools to reduce foreclosures, or do they want to keep kowtowing to bankers?

California remains among the hardest hit by foreclosures: third worst in the country.

While foreclosure rates are going down nationally, that’s more a reflection of the continuing mess in the foreclosure process itself rather than any fundamental restoration of health in the housing market.

So the problem hasn’t gone away by itself.

Federal efforts to help homeowners have been ineffective because they’re voluntary for the banks, with inadequate government oversight. For the feds, foreclosure reduction efforts have consisted mainly of offering banks modest incentives for loan modifications, incentives that are less than the profit the bank, in its role as loan servicer, makes from foreclosing on homes.

As demonstrated by the California legislators’ previous refusal to embrace mediation, government officials at all levels have so far lacked the political will to force banks to take the action needed to stem foreclosures. Two years ago, Assemblyman Pedro Nava spearheaded the foreclosure mediation effort,  AB 1639,  which passed the Assembly but died in the Senate under fierce banking opposition. Consultant on the bill was Los Angeles mediator Laurel Kaufer, chair of the State Bar's ADR committee.

Around the country, there  have been a host of mediation programs around the country, with mixed results. ¶

Programs in Connecticut and Philadelphia successfully settled about three of every four cases, avoiding foreclosures. In Nevada, officials reported that about 42 percent of the cases in mediation settled without foreclosure. Nevada also reported another significant finding – the banks dropped many of the foreclosure attempts during the mediation process because there paperwork wasn’t in order.

But in late December, the Florida Supreme Court closed down its foreclosure mediation program after state officials determined it wasn’t working because so few cases eligible for mediation ended in settlement.

Then, just a couple of weeks later, the U.S. Justice Department issued a promising report calling for wider federal use of mediation in foreclosure and more research into how well it works.

The details of foreclosure mediation programs vary widely. The most successful programs, the Justice Department explained, are those that begin early in the foreclosure process, require mandatory participation, include some form of financial counseling for homeowners, are well publicized and require a high degree of transparency by the banks  – meaning that banks have to disclose how their foreclosure process works, including the secretive, often confusing criteria by which they grant loan modifications.

Will the feds blow this opportunity to attack the foreclosure crisis, as they bungled their earlier efforts? Or will finally get a clue and start taking effective action?

In California, we shouldn’t wait to find out.

This Justice Department report should give a boost to a renewed effort to require mediation in California foreclosures, and offers some guidance to California in how to create a successful mediation program.

But it will only happen if people mobilize against the banking lobby, which is sure to oppose any attempt to weaken bankers’ complete control over the foreclosure process.

We keep hearing how the Occupy movement has changed the debate, how issues that couldn’t gain traction six months ago can now get a fuller hearing. We should seize the opportunity to give legislators the opportunity to get the bankers off our backs.


Confessions of a Conflicted Occupier

When the LAPD stormed into Los Angeles City Hall Park after midnight my first reaction was fear.

They flooded into the park without warning through the doors of City Hall, a massive masked army in riot gear, batons raised.

Where was our order to disperse?

The raid was just the latest deterioration in the city government’s relationship with Occupy. First they welcomed us with open arms, the City Council invited us to stay, the police stood by with commendable restraint. Then, six weeks in, City officials launched a propaganda campaign stressing the problems of the encampment. The campaign was designed to erode public support, making it imperative that they move in.

I was in the park that night in solidarity with a movement for which I have great hopes, and somesgivings. Partly, it’s me. I’m not by nature a joiner. I spent years as a newspaper reporter and editor, doing my best to conceal my biases and not take sides.  By temperament as well as training, it’s natural for me to see both sides of an issue and poke holes in arguments, rather than come up with solutions. I’m better at asking questions than having to come up with answers.

But after eight years of disastrous policies during the Bush era, and severe disappointment with President Obama and the Democrats’ embrace of Wall Street, weak financial reform and tepid leadership in focusing on the main problems facing the economy – unemployment, foreclosure, widening income disparity and attacks on the middle class – I was more than ready for a movement that wanted to focus on those problems.

My wife and I visited Zucotti Square a week into Occupy Wall Street and were buoyed by people of all ages who had showed up from all over the country to figure out how to work together to deal with the issues. When I first head the human mic, in which the crowd repeats everything that a speaker says, phrase by phrase, I thought I had stumbled into a street theater performance. It took me a few minutes to realize that this was a meeting, the general assembly.

The next night, back home in downtown Los Angeles, we walked our dog Billie through the park at City Hall. Occupy needs to be happening here, I said, and it should be at City Hall.

A bunch of activists I didn’t know at the time was way ahead of me: they had been organizing for a couple of weeks. That very night, when we got home from our walk, the announcement that Occupy LA would begin the following day appeared on my Facebook page.

The next morning a thousand people marched from Pershing Square to City Hall, and a hundred of them set up tents.

I have a schizophrenic relationship to Occupy. The charms of the General Assembly have eluded me. All the crazy talk—like proposals to get money from the City to build a giant flower pot, complete with giant flower, on the grounds of City Hall, in which people would live. This scheme was met by an objection— a hard block. But the objector never questioned the sanity or practicality of the proposal; rather they had ideological issues with taking money from the Man aka the City. When the talk wasn’t bonkers, it was endless. I could also see conditions at the camp were deteriorating, with more and more people camped out to party and smoke pot, not to build a new social and political movement. Sometimes the wild mess of people was bracing and inspiring, but sometimes it was just heartbreaking.

One of the first nights I was there a guy pulled up with a card table and a pot of chili and started ladling it out. It was some of the most delicious chili I ever tasted. I got inspired and started making pots of vegan lentils and black beans to take to the camp. But then I would get another whiff of the increasingly squalid conditions in the camp and want it gone. Can’t the movement just evolve to the next step in which camping out would no longer be its most visible image and most important product?

I refused to make them soup, but then my wife, Stacie Chaiken, who helped organize an interfaith clergy group at Occupy, would give me a hard time and I would go back to making soup.

I saw what the Occupy meant to her, how she understood it in a way that went beyond the encampment and the endless meetings. I saw what it meant to my friend, a special-ed teacher, who has been in despair watching the corporatization of public education. I made new friends at Occupy who had a much higher tolerance for the mess and the meetings, who found at Occupy connections to other people and pieces of themselves that had been for such a long time missing.

I fell in with a group that was meeting with City officials, initially about logistics, and then about an attempt to conclude the encampment at City Hall, with the possibility that the City might turn over a patch of land and some office space to a nonprofit created by Occupy. The discussions eventually came to naught, in part because neither the City nor our group could deliver. Controversy erupted because a faction of Occupiers who have not been involved in the talks with City officials objected to our engaging in “secret” discussions because that went against the Occupy principle of complete transparency. If the Mayor and Police Chief wanted to talk to us, they should come to the General Assembly and get on stack, meaning they should wait in line like everyone else for their turn to speak.

Maybe those who objected were right. But I strongly doubt that City and police officials would have showed up at the General Assembly to discuss issues with—and submit to the verbal slings and arrows of the Occupiers, as many of them wished. And I found the discussions with the Police and Mayor’s office a fascinating experiment, very much in keeping with the open-ended spirit of Occupy. The conversations also served to prolong the Occupation at City Hall Park long after it would have doubtless have been shut down.

The night of the raid, there were about 100 people who had decided to get arrested in acts of civil disobedience. They were all people who had been trained in non-violence. I was not one of them. When the police arrived in their shock and awe attack, I was right in the middle of the park. I scampered through the maze of tents, out of the park onto to First Street. I encountered a police line, and asked the officers—wearing helmets, carrying weapons of non-lethal destruction—how I might safely exit the perimeter. They stared at me, stone-faced.

I told the police that if there were orders being given, we couldn’t hear them. Rumors swept through the street that everyone within the perimeter were about to be arrested.

Finally I made my way up Main Street to Temple, across the Triforium and down onto Los Angeles Street. I was able to walk west on Second Street, where I found my way to the Redwood for a stiff drink before last call at 2am, where I watched the rest of the proceedings broadcast live on KTLA.

I didn’t like the way it went down that night. It was inconsistent with the LAPD’s previous restraint and with the respect the City had expressed for this important free speech movement. After I got over my initial fear, I understood why the police—in their fear of potential violence from antisocial people in the encampment— reacted in the way they did.

None of this qualifies me for the Occupy Hall of Fame. Unlike some of those I’ve met in this movement, I don’t claim to have all the answers.

I do have more questions:

Has the Occupy movement really changed the national debate, as some occupiers have claimed, or has it taken a first baby step onto the national stage? Yes, I hear the president’s populist-sounding speeches, but I have yet to hear him propose a massive jobs program or even an adequate program to address foreclosures, let alone withdraw his support from the disastrous focus on austerity instead of getting the economy going.

Is this really a movement of the 99 percent, or is it a movement of the self-selected few—activists, anarchists, bohos, hippies and others who can camp on the lawn for weeks at a time, and stand through a General Assembly?

Should the heart and soul of a movement really be that endless meeting? The General Assembly seems more like a necessary evil than a true solidarity-building exercise. How about some dancing, or singing or poetry, or praying?

Can this movement evolve beyond the symbolic taking of public space and public debate into a forum we so badly need, to including a broader spectrum of people, that can take on the bread-and-butter issues of the distressed majority?

Where is the path out of City Hall Park into the heart of the City?

 

 

 

 

 

 

3 Steps Toward Real Economic Recovery

Democrats should be less worried less about Sarah Palin’s mangling of American history and more concerned about the Obama administration’s consistent underestimation of the recession since the financial collapse.

The president and his team has been downplaying the seriousness of the jobs and housing crises since they took office, repeatedly taking inadequate steps to address the twin fiascoes of foreclosure and unemployment, while wrongly conceding to Republicans that the political focus should be the short-term deficit.

This is not only bad for the country but bad politics for the Democrats, increasing the chances that voters will blame them for not fighting harder for programs to create jobs and straighten out the housing mess. Never mind that Republican efforts to address these issues amount to less than zero.

Nobody expects the president and his party to win every fight. But we do expect him not to wave the white flag before the fight starts.

Circumstances still offer the president opportunities to show that he finally gets it – and to signal a more aggressive approach.

First, the president can launch a fight for Elizabeth Warren to head the Consumer Financial Protection Agency. Warren is popular, articulate and sensible, and the agency was her idea in the first place. Of course the Republicans hate her, in fact they don’t want a single head of the agency. Republicans favor a committee to run the agency, the more easily for the banks to bamboozle it.

Second, he can replace his outgoing economic adviser, Austan  Goolsbee with somebody more tuned in to the jobs and housing crises. How bad was Goolsbee (and the administration’s economic policies he defended)?

Here’s how economist Firedoglake blogger Scarecrow put it after listening to Goolsbee Sunday, saying it was up to the private sector to create jobs now because government could do nothing: “If I’d been asleep for the last decade and woke up to ABC This Week’s interview of Presidential economic advisor Austan Goolsbee, I would assume that Mitt Romney won the 2008 election, that he was predictably following Republican dogma about how to recover from a severe financial collapse and recession...” Scarecrow wrote.

With Democrats like these, who needs Republicans?

Third, Obama can fire his Treasury secretary, Timothy Geithner, who has shamelessly pandered to his banker cronies while ignoring Main Street’s woes since he helped engineer the bailout as head of the New York Fed prior to the Obama administration.

Of course it will take more than gestures and a few appointments for the president to tackle the continuing severe economic challenges we face. But he can still saddle up and take a brave ride on the right side of history, if he chooses.

 

P.R. Won't Fix Foreclosure Mess

Will one of the nation’s too big to fail banks succeed in buying its way out of a shameful scandal stemming from dozens of improper foreclosures of military families and overcharging thousands more?

J.P. Morgan Chase, which hauled in $25 billion in the bailout, is in full damage control mode, paying out $56 million to settle a class action brought by military families – about $4,500 per family – and temporarily lowering mortgage interest to 4 percent for other military families.

But the bank is still facing a federal investigation stemming from the allegations. Whether the Justice Department finds the nerve to hold accountable one of the big banks remains an open question.

It hasn’t so far, despite evidence of widespread fraud in the bank’s use of robo-signers who verified the accuracy of thousands of foreclosure documents without ever reading them.

But our political leaders haven’t worked up the courage to call it what it is.

The bank had no choice but to acknowledge it had screwed up. To show just how serious it was about doing right by the nation’s fighting men and women, J.P. Morgan Chase appointed an actual commission with some real-life celebrities on it, including retired general William McChrystal and former football legend Roger Staubach.

The Justice Department has no excuse not to go after J.P. Morgan and other banks that have been violating the Servicemembers Civil Relief Act, which is supposed to keep military families safe from foreclosure while they’re on active duty. Military families have been particularly hard hit by the foreclosure crisis, with 20,000 facing foreclosure last year, a 32 percent increase since 2008.

Federal investigators just made the Justice Department’s job easier – in a recent study GAO found more than a couple of dozen improper foreclosures of military families. You might not think that sounds too bad, until you realize they found those bad foreclosures in an examination of just 2,800 foreclosure files.

Instead of pretending that the foreclosure mess is just going to sort itself out on its own, our political leaders need to acknowledge how deep a hole the big banks have dug for the rest of us to figure a way out of.

We don’t need more hapless PR. A realistic first step would be a foreclosure moratorium. If anybody else but the big banks were engaged in these kind of shenanigans, it would just be labeled what it is: fraud, plain and simple.

 

Remind AGs Who They Work For

The big banks are headed to Washington D.C. in an effort to weaken any potential settlement stemming from complaints about the banks’ misbehavior in the foreclosure crisis.

Those of us who favor holding the banks accountable are taking a different route Tuesday – through the country’s 50 state capitals.

A coalition of homeowner and consumer advocates are encouraging people to contact their state attorney generals today in an effort to encourage them to conduct real robust investigations into the big banks’ foreclosure fraud, not just go through the motions.

The official response to disclosures of the big banks’ sloppiness and downright fraud in the foreclosure process has been a mishmosh. President Obama refused to declare a moratorium while the mess was sorted out; the state attorney generals promised a tough investigation but don’t appear to have followed through, and then the various federal bank regulators got involved in an effort to negotiate a settlement.

One strategy for the big banks and their Republican allies has been to demonize Elizabeth Warren, a strong homeowners’ advocate who has been working to set up the Consumer Financial Protection Bureau, which was created as part of the financial reform package passed last year. While the CFPB doesn’t exist yet, Warren has apparently been involved in the settlement process because that agency will have a hand in enforcing a settlement.

At the national level, it’s not just the Republicans that are covering for the bankers. The Obama administration in its present mood of bank coziness hasn’t been inclined to either prosecute bankers for violating the law or drive a hard bargain with them.

So that leaves it up to the attorneys general, several of whom, including Illinois’ Lisa Madigan, Iowa’s Tom Miller and California’s new attorney general have promised tough stances in protecting homeowners and holding banks accountable. Which means it’s up to us to call them – today – and remind them to hang tough.

 

 

Lame Ducks, Bogus Excuses

Sen. Chris Dodd brought the big banks back to Capitol Hill Tuesday to hear more about the foreclosure mess.

By the end of the day Dodd, who is retiring from the Senate after presiding over the watering down of financial reform, had a novel response: he called for an investigation.

By now nearly federal agency as well as every state attorney general is already investigating the scandal, after banks disclosed the shoddy record-keeping they were using in the foreclosure process.

How hard any of these investigations is really digging is an open question. But the more the merrier, according to Dodd. He suggested it would be a first test for the systemic risk council, which was set up under the financial reform law that bears his name, along with his House colleague Barney Frank.

The systemic risk council will be made up of members of the Obama administration, led by Treasury Secretary Tim Geithner. The administration has already brushed off the foreclosure scandal, so it’s highly unlikely the council would come back later and reverse its assessment.

Meanwhile the congressional bailout monitor, now headed by former Delaware senator Ted Kaufman, issued a stern warning about the consequences of the foreclosure scandal in its monthly report. “If document irregularities prove to be pervasive and, more importantly, throw into question ownership of not only foreclosed properties but also pooled mortgages, the result could be significant harm to the financial stability,” the monitor wrote.

Not to worry, the big banks keep reassuring us. It’s just a matter of some sloppy paperwork.

The big banks’ credibility, to put it politely, is not so hot. For example, Bank of America insists that they would be doing better modifying mortgages if not for the investors standing in the way. So the investigative journalism outfit Pro Publica took a look and found out their explanation was bogus.

Around the Web: Outsourcing Foreclosure `Catastrophe'

You wouldn’t think the leader of the free world would be so willing to outsource a massive foreclosure scandal to state attorneys general, judges, regulators and the big banks that created the mess in the first place.

But that’s exactly what President Obama has done, standing aside while 50 state attorneys general launch investigations, while banks implement their own voluntary moratoriums, announcing they have halted some, but not all, foreclosure proceedings.

A growing number of politicians, civil rights and consumer groups and labor unions have called for a nationwide moratorium amid allegations that banks violated foreclosure laws by using sloppy, false or fraudulent paperwork to kick people out of their homes.

But President Obama doesn’t like the idea of a foreclosure moratorium, which he fears could put the kibosh on his fragile recovery.

Where is the administration’s effort at finding some other creative solution to the mess the big banks have created across the country? What we find instead are regulators that have been ignoring clear warning signs about the banks’ troubled foreclosure crisis.

The federal response so far has been limp at best: a Justice Department inquiry (short of an investigation) and a call by a federal regulator for the banks to voluntarily verify that their foreclosure paperwork is in order.

Recent press reports call into question whether the banks have even implemented the foreclosure moratoriums they promised. Meanwhile more banks, this time Wells-Fargo, acknowledge they have also violated the laws governing foreclosure by submitting unverified documents to take people’s homes. Isn’t there an election coming up where the Democrats are fighting to maintain control of Congress, with their entire agenda at stake? Isn’t there already one party that has expertly cornered the whole do-nothing stick-your-head-in-the-sand approach to unemployment and foreclosure? Doesn’t the president know how awful it looks to most people to have the bailed-out banks getting away with yet more hanky-panky?

You would think the president would want to appear more engaged in this issue that’s so close to the heart of our on-going economic troubles.

His treasury secretary fears “unintended consequences". Apparently the administration would prefer the banks continue to foreclose on people using phony documents. While Wall Street predicts a catastrophe if a moratorium is implemented. If the big bankers want to know who created a catastrophe that will cost them billions, they only need to look in the mirror.

Don't Foreclose on the Rule of Law

As the foreclosure process implodes in the U.S., the big banks and their defenders are scrambling to defend the mess they’ve created, dismissing serious legal issues as mere technicalities.

I covered courts as a reporter for years and I learned something about legal technicalities.

What I learned was that whenever some lawyer started dismissing some legal rule as a technicality, they were about to try to heave some of their adversary’s fundamental rights out the window.

In the foreclosure mess, those adversaries would be the banks’ former business partners, their borrowers, the people they loaned money to.

Now the big banks are trying to dismiss the rules that govern the foreclosure process as legal technicalities.

Take for example the Florida case in which a judge ruled earlier this year that a document that was supposed to show that U.S. Bank owned the mortgage in December 2007 wasn’t created until the following year. The document filed by the bank, the judge wrote in March, “did not exist at the time of the filing of this action…was subsequently created and…fraudulently backdated, in a purposeful, intentional effort to mislead.” She dismissed the bank’s case.

The bank’s lawyer blamed carelessness. He explained: “Judges get in a whirl about technicalities because the courts are overwhelmed....The merits of the cases are the same: people aren't paying their mortgages.”

One of the other things I learned was that judges tended to use very precise wording in their rulings. If the judge in the Florida case was feeling overwhelmed, she didn’t mention it. What she did say what that somebody had fraudulently created a document.

That’s not a technicality. And it doesn’t matter if you’ve been making your mortgage payment or not. Banks are not allowed to foreclose on a home using fraudulent documents. Period.

One of the aspects of the rule of law is that it applies the same to everybody: a bank isn’t allowed to submit fraudulent documents to a court any more than a pauper is. That’s not a technicality. That’s the rule of law.

In the most recent brouhaha, a number of big banks, Ally, PNC Financial, J.P. Morgan Chase and Co and Bank of America, have acknowledged that their officials didn’t actually read key foreclosure documents before submitting them in court. Some documents appeared to have been forged; others appeared to contain false information.

A number of state attorney generals across the country have threatened legal action against the banks. Faced with a firestorm, some banks have voluntarily halted foreclosures in 23 states: the ones where judges oversee foreclosures. Only Bank of America has halted foreclosures in all 50 states.

One of the first banks to acknowledge that its own paperwork hadn’t been properly reviewed was Ally Bank, formerly known as GMAC. The latest controversy wasn’t the first time GMAC’s legal work on foreclosures came under scrutiny.

In 2006, Bloomberg News reported, another Florida judge sanctioned the company, finding that it submitted false affidavits to the court in a foreclosure case. The judge ordered GMAC to submit an explanation, certify that its policies had changed and pay the opposing party’s legal costs of more than $8,000.

As a result, GMAC’s legal department issued a statement that told employees “not to sign verifications on court pleading documents unless you have independently reviewed and checked the facts.”

The new policy, the Journal reported, was distributed in June 2006; it also stated in italics and boldface that GMAC employees should sign documents only in the presence of a notary. GMAC told the court  that the policies were “being corrected.”

Three and a half years later, a GMAC employee said in a deposition that his team of 13 people signed about 10,000 documents a month without reading them.

Deborah Rhode, a Stanford Law professor, told Bloomberg, “It’s not ‘technical’ when people attest under oath to knowledge they don’t have, and it doesn’t matter that in fact there isn’t actual error or discrepancy,” Rhode said. “Any court would take this very seriously.”

Our "jackass" moment

September 21, 2009

One thing we can all agree on about our president: He chooses his words v-e-r-y carefully.

So I wondered about his choice of language and timing when, on the same day he traveled to Wall Street to deliver the bankers a gentle scolding, he got caught on videotape labeling the rapper Kanye West a “jackass” for his behavior on a televised awards show.

You don’t mess with the president: Kanye West got himself right onto Jay Leno’s couch to perform an apology.