By Paul Kiel, ProPublica
Answers to homeowners' questions about the Independent Foreclosure Review.The administration's website for the foreclosure prevention program. Provides an FAQ, homeowner examples, and other tools to see whether you might qualify for the program.A list of HUD-approved housing counseling agencies nationwide.Tips for homeowners from the Federal Trade Commission.These rules lay out how mortgage servicers are supposed to conduct the program.A finance and economics blog that provides news and metrics on the state of the housing market.
Late last year, the country's bank regulators launched a massive program to evaluate millions of foreclosure cases and compensate homeowners who fell victim to the banks' flawed or illegal practices. Regulators dubbed it the "Independent Foreclosure Review" to emphasize that the banks would not be making key decisions about loans they had made or serviced.
But a raft of evidence — internal Bank of America memos and emails obtained by ProPublica, interviews with two bank staff members who have worked on the review, and little-noticed documents released late last year by a federal banking regulator — throw the independence of the review into serious doubt. Together, they indicate that Bank of America — the financial giant with the largest number of homeowners eligible for the program — is performing much of the work itself.
The ultimate decision as to whether and how much a homeowner will be compensated is not made by Bank of America, the evidence shows, but is based largely on work that the bank itself performs. One current employee called that crucial judgment "only a matter of double checking" the bank's work.
Moreover, the bank gets a chance to challenge that key decision before it becomes final — an opportunity not given to homeowners.
Bank of America strongly objects to ProPublica's analysis. It insists that the independence of the review has never been compromised. It maintains that its role "has been and remains gathering documents." While it may discover "an error" in the course of that work, the bank says that an independent review conducted by an outside firm "is the sole and final basis" for determining whether homeowners have been harmed and how much compensation they merit.
A bank spokesman questioned ProPublica's fairness, writing that "there are no facts to support your claim. Yet it seems you have made a decision to move forward with a story based on speculation and a preconceived notion of this issue."
Bank of America's regulator, the Office of the Comptroller of the Currency (OCC), also maintained that the review was independent. After seeing the internal bank documents obtained by ProPublica, the OCC investigated, officials said. The OCC concluded that the documents, which include a memo sent by Bank of America executives to the hundreds of bank employees working on the Independent Foreclosure Review, are "incomplete and inaccurate," said Deputy Comptroller for Large Bank Supervision Morris Morgan.
But the documents and interviews tell a sharply different story, and the stakes are high. The maximum cash compensation a homeowner can win through the foreclosure review is $125,000. Regulators set different amounts for the various errors and abuses homeowners endured, and those distinctions can result in widely differing payments — for instance $15,000 instead of $125,000 for homeowners who suffered very similar abuses.
ProPublica provided the internal Bank of America documents to Sen. Robert Menendez, who chaired a congressional hearing overseeing the foreclosure reviews. He said, "Congress was led to believe that the consultants would be analyzing homeowner foreclosures completely independently of the Wall Street banks, but these memos raise serious questions as to whether that's true. If banks are trying to skew the results in their favor, regulators should stop that immediately."
The senator also said that regulators "should ensure that homeowners have the same opportunities banks do to influence and contest the findings of the foreclosure reviews."
The Document Trail
Federal regulators designed the program to work like this: Each of the big banks would hire an "independent consultant" to conduct reviews of the bank's foreclosure cases. To ensure that these consultants really were independent, the regulators had to approve them. In September 2011, Bank of America hired Promontory Financial Group to be its independent consultant.
Two months later, the OCC released the contract between Bank of America and Promontory. The 118-page document received little notice, but it clearly spells out that Promontory will make its decision only after reviewing the bank's own analysis of each homeowner's claim.
When a homeowner sends in a complaint about the way Bank of America handled his or her foreclosure, the contract states, the bank "will process the complaint and provide the complaint, supporting resolution documentation, report of its findings, and proposed resolution to Promontory for independent review and decision concerning the complaint at issue." Promontory, the contract continues, will then review the "complaints and claims, together with [Bank of America's] recommended resolution and supporting documentation, and provide a decision on the complaint."
Job ads posted in the fall of 2011 for "Foreclosure File Reviewer" positions at Bank of America reflect this scope of work. Among the job duties listed in one ad were "Complete Claim Review and perform Harm Evaluation according to Promontory/OCC definitions"; "If there was financial injury, determine the amount"; and "Perform final determination of Harm." The ads were posted by staffing companies, but the bank confirmed to ProPublica it was the ultimate employer.
An internal bank document created to train employees on their role in the reviews also describes a "claim review" process at the bank. Employees would be running tests on the files to see if there was "harm done to the customer as a result of faulty servicing."
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