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Banks Beware: Here Come the Lawsuits

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Bank of America to pay $8 billion; JPMorgan, Wells Fargo may be next.

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Despite the Armageddon-esque financial turmoil of recent weeks, one thing about America hasn't changed: If you really want someone to do something, sue them.

They lined up in droves: Cities, counties and states sued the pants off Countrywide for its shady lending practices. California, Illinois and Florida all alleged the lender fleeced American homeowners, jamming them into loans they had no hopes of repaying.

Now, Bank of America (BAC), who purchased the troubled California-based lender earlier this year, is stuck cleaning up the mess. Earlier this month, the bank agreed to pay more than $8 billion to settle lawsuits filed against Countrywide. Friday, the Los Angeles Times ran through the details of its plan to help as many as 395,000 troubled borrowers:

  • Only owner-occupiers (not investors) with subprime or option ARMs qualify for assistance

  • Interest rates may be reset as low as 2.5%

  • Prepayment penalties and late fees will be waived

  • Upside-down borrowers may have principal reduced

  • Borrowers who lost their homes (or don't qualify for assistance) will receive an average of $2,000.

Notably, Bank of America managed to get most investors who bought Countrywide's mortgage-backed securities to agree to the plan. Holders of these assets have previously balked at such sweeping plans, since modifications usually lower a loan's cash flow and decrease the value of securities behind it.

Efforts to get lenders to work aggressively with borrowers to avoid foreclosure have been largely ineffective. To be sure, there has been progress, but it's fallen mightily short of promises the Bush Administration made last year when it announced its pilot program, HOPE NOW.

The aggressive plan, which Congressman Barney Frank, capitalism's new public enemy number-one, called "the first truly comprehensive plan we've seen from the private sector," could set the stage for a deluge of lawsuits.

The precedent has now been set: The way to stop foreclosures is to start suing banks.

I remember sitting in a meeting in early 2006, when a German bank that had lent our mortgage finance firm a few hundred million dollars asked why we didn't get into the lucrative option-ARM market. The response: "We don't want to touch those things. They're a class action lawsuit waiting to happen."

Indeed.

Other than Countrywide, the biggest writers of option ARMs during the boom were Washington Mutual, Bear Stearns and Wachovia. Not a single one remains independent.

The proud new owners of these banks, JPMorgan (JPM) (WaMu and Bear) and Wells Fargo (WFC) (via Wachovia) would do well to beef up their legal departments.

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