Yesterday the 2nd U.S. Circuit Court of Appeals in New York demonstrated why prosecuting banks for committing fraud in the lead-up to the Great Recession is such a difficult proposition. Here’s the background on one of the biggest government enforcement cases to go to trial in connection with the U.S. housing meltdown and financial crisis.:
A federal jury had in 2013 found Bank of America and Rebecca Mairone, a former midlevel Countrywide executive, liable for fraudulently selling shoddy loans originated through its “High Speed Swim Lane” program, also called HSSL or “Hustle.”…
Following the verdict, U.S. District Judge Jed Rakoff in 2014 imposed a $1.27 billion penalty on Bank of America and ordered Mairone to pay $1 million.
That decision was appealed and a ruling issued yesterday.
The 2nd U.S. Circuit Court of Appeals in New York found insufficient proof under federal fraud statutes to establish Bank of America’s liability over a mortgage program called “Hustle” run by the former Countrywide Financial Corp…
In a 3-0 decision, U.S. Circuit Judge Richard Wesley said the evidence at most showed that Countrywide breached contracts to sell investment-quality loans, and that there was no proof it intended any deception.
“The trial evidence fails to demonstrate the contemporaneous fraudulent intent necessary to prove a scheme to defraud through contractual promises,” Wesley wrote.
This has always been the challenge. In order to prosecute banks and/or individuals, the most likely charge is that they committed fraud. But federal statutes require proof of intent in order to find a business or person guilty of fraud. In other words, the prosecution not only has to prove that the defendant committed fraud – but that they intended to do so. The dismissal of this case demonstrates what a high hurdle that can be.
We often hear about the “meager” financial settlements the Justice Department negotiated in similar cases. It’s worth noting that in this instance, Bank of America and Rebecca Mairone got away with having to pay nothing.