More Banks May Face FCA Charges From Mortgage Crisis

, The Litigation Daily

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JPMorgan Chase & Co.'s $614 million False Claims Act settlement with the U.S. attorney's office in Manhattan, announced Tuesday, indicates that major banks have a ways to go to shake off federal FCA liability stemming from the mortgage crisis.

Tuesday's deal marks the fourth, and largest, FCA resolution between a major bank and the Manhattan U.S. attorney's office. It comes 19 months after the last such settlement, in which Deutsche Bank AG agreed to pay $202 million over similar claims. (Earlier in 2012, CitiMortgage Inc. and Flagstar Bank FSB paid $158 million and $133 million, respectively.) 

"This case shows that, at least in the Southern District of New York, the government is still interested in pursuing these FCA cases," said Harter Secrest & Emery counsel Brian Feldman, who led the FCA case against Deutsche Bank as an assistant U.S. attorney. "It shows that whistleblowers are still coming forward, and there's no reason to believe that other whistleblowers haven't stepped forward with respect to other lenders," Feldman added. "That's likely creating some anxiety."

The JPMorgan case was brought just a year ago by a whistleblower identified as Keith Edwards in court documents. (It's not clear if he worked at the bank.) The plaintiff alleged that, in order to get Federal Housing Administration insurance for the loans, the bank lied that the loans were eligible for the insurance, when in fact they were known to have problems. When those loans defaulted, the FHA was on the hook.

Under the settlement, JPMorgan makes detailed admissions of fact: It admits that it failed to report hundreds of loans affected by borrower fraud, and that it improperly underwrote thousands of FHA loans and hundreds of Veterans Administration loans. 

(JPMorgan's record-setting $13 billion settlement, announced three months ago, also arose from the bank's sale of mortgage-backed securities, but dealt with a different set of federal laws. There, it was accused of violating the Financial Institutions Reform, Recovery and Enforcement Act of 1989.)

Two defense lawyers say this FCA settlement is likely being parsed by other banks facing litigation over similar allegations, including Wells Fargo Bank and Golden First Mortgage Corp. Hundreds of other banks participated in the same FHA insurance program in the run-up to the mortgage implosion. 

In Wells Fargo's case, prosecutors allege that the bank improperly certified 6,320 mortgage loans for FHA insurance even though it knew they were seriously deficient. The FHA paid out $190 million in claims when the loans defaulted, and damages could be trebled to $560 million. Wells Fargo has argued that when it signed the $25 billion national mortgage services settlement, it was released from the loan origination liability. But the U.S. Court of Appeals for the Second Circuit held that the releases don't apply to FCA liability for subpar underwriting standards as applied to specific loans; they only apply to FCA liability for lying in the bank's annual certifications to the FHA. Those certifications allowed Wells (as well as scores of other large banks) to directly endorse mortgage loans as eligible for insurance. 

Harter Secrest's Feldman noted that even without the FHA annual certification argument, prosecutors could still move quickly to get a good deal. "The government can, in a quick way, put together a $614 million settlement," he said.

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