ATTORNEY GENERAL SEEKS TO TERMINATE COUNTRYWIDE SETTLEMENT
Carson City: - The Attorney General of Nevada has requested permission to amend her Complaint against Bank of America (and its subsidiaries, including Countrywide) adding additional claims relating to mortgage origination and servicing
The Second Amended Complaint continues to assert violations of the Consent Judgment entered into between the State of Nevada and Countrywide to resolve Countrywide’s liability for fraudulent mortgage lending, marketing and servicing, including:
failing to provide loan modifications to eligible borrowers;
failing to make decisions on loan modifications, on average, within sixty days of receiving requests from Nevada consumers; and
initiating or proceeding with foreclosures while consumer’s modifications requests were pending.
In addition, the Amended complaint contains new allegations that Bank of America violated the Consent Judgment, namely that Bank of America:
increased consumers’ interest rates and monthly payments, even though the Consent Judgment allows only modifications that decrease consumers’ interest rates, actually leaving consumers worse off.
required consumers to provide extensive documentation – including pay stubs, tax returns, and sworn affidavits -- to qualify for modifications, despite the Consent Judgment’s promise of streamlined modifications.
Based on the original and new violations, the State added a new request for relief – that the Court find Bank of America to have materially breached the Consent Judgment, allowing the State to terminate the Judgment. The State’s Motion for Leave to Amend states with these additional violations, the State considers Defendants’ disregard for their duties under the Consent Judgment so pervasive that they constitute a material breach warranting dissolution of that Judgment. After two and a half years of lost implementation – of borrowers denied modifications, discouraged by repeated and futile efforts to obtain help, or already subject to foreclosure – the State no longer can get the benefit of its original settlement with Defendants.
Upon terminating the Consent Judgment, the State would be released to pursue its original claims against Countrywide for consumer fraud in originating, marketing and servicing mortgage loans. In that regard, the Complaint alleges that Countrywide failed to disclose and affirmatively misrepresented that loans like its Payment Option Adjustable Rate Mortgages (“Option ARMS’) and Hybrid Adjustable Rate Mortgages (“Hybrid ARMS”) were originated at low teaser raters, in effect only for a short time, and that payment on these loans would increase dramatically – often more than double the original rate – when the teaser period expired or the loans reset or recast. In addition, Countrywide did not disclose that consumers who made only a minimum payment, based on that low teaser rate, would experience negative amortization, which would cause them to fall deeper in debt. These features, which made the loans unaffordable, created the need for many Nevada customers of Bank of America to seek loan modifications.
The Second Amended Complaint continues to allege that Bank of America engaged in deceptive practices through a pattern and practice of misrepresentations regarding its loss mitigation and foreclosure practices, including by falsely:
promising consumers that their trial modifications would be made permanent if and when they made their required payments, but then failing to convert those modifications;
assuring consumers that their homes would not be foreclosed while their requests for modifications were pending, but going ahead with foreclosures anyway; and
representing whether consumers were eligible for modifications, whether and on what terms they had been approved for modifications, and why their modification requests had been declined.
The Second Amended Complaint notes interviews with Bank of America consumers, former employees, and other third parties that confirm that the modification process was understaffed, wrought with technical problems, and not oriented to customers. The Complaint also asserts that Bank of America directed employees to spend no more than 7-10 minutes on average with each consumer, leaving them no time to fully or accurately answer questions or provide explanations or offer assistance.
Thus, the Second Amended Complaint alleges that Bank of America’s misconduct cuts across virtually every aspect of its operations – from originating to servicing and, all too often, to foreclosing on the loans and homes of Nevada consumers. Countrywide misrepresented the nature and terms of their mortgage loans, ensnaring Nevada consumers in loans that they did not understand and could not repay. When consumers defaulted on these loans, Bank of America misrepresented whether, when, and how they would modify these loans. When they failed to deliver this promised relief, Bank of America provided to Nevada consumers, recorded and filed with Nevada courts fraudulent documents as they moved, sometimes without authority, to foreclose on homes that never should have been bought.
Finally, the State alleges that Defendants’ deceptive practices have resulted in an explosion of delinquencies and unauthorized and unnecessary foreclosures in the State of Nevada, stripping homeowners of their assets (including those who do not have loans originated or serviced by Defendants, but whose property values have fallen dramatically), dislocating families, blighting neighborhoods, and deeply disrupting the State’s housing market.
State of Nevada v. Bank of America Corporation is currently pending in the Nevada District Court before Chief Judge Robert C. Jones. Case No. CV-11-135-RCJ-RAM.