DOJ Trains AUSAs to Chase Mice While Lions Roam the Campsite
In researching my series of articles on the critical omissions in Attorney General Eric Holder’s press release about the settlement with Citi I realized that I need to write multiple articles about the destructive role played by Benjamin Wagner. Holder made Wagner DOJ’s leader on mortgage fraud because Wagner was so willing to propagate the single most absurd, destructive, but so very useful (to the administration and the banksters) lie about mortgage fraud.
“Benjamin Wagner, a U.S. Attorney who is actively prosecuting mortgage fraud cases in Sacramento, Calif., points out that banks lose money when a loan turns out to be fraudulent. ‘It doesn’t make any sense to me that they would be deliberately defrauding themselves,’ Wagner said.”
This column addresses a single article Wagner’s shop published in a journal volume entitled “Mortgage Fraud” to train Assistant U.S. Attorneys (AUSAs) on how to investigate and prosecute mortgage fraud. 32 UNITED STATES ATTORNEYS' BULLETIN MAY 2010. The title of the article is “Finding the Smoking Gun,” and the author is Barbara E. Nelan, Assistant United States Attorney, Northern District of Georgia.
This article exemplifies three decisive DOJ failures led by Wagner. AUSAs were trained by Wagner to believe three lies:
1. The “bank,” by which he really meant the bank CEO, was always the victim of mortgage fraud and never the leader of those frauds
2. Banking regulatory agencies had no meaningful role to play in detecting, investigating, and aiding the prosecution of frauds that was worth mentioning in the training, and
3. Whistleblowers had no meaningful role to play in detecting and aiding the prosecution of frauds that was worth mentioning in the training
Those three lies guaranteed de facto immunity for the senior bank officers who led the three most destructive financial fraud epidemics in history. Wagner has defined out of existence the three financial fraud epidemics that drove our crisis, trivialized the critical need to restore the criminal referral process at the banking regulatory agencies, and failed to train AUSAs to understand the critical need to have whistleblowers come forward – particularly given the destruction of the criminal referral process at the banking regulatory agencies.
As I will explain in a future installment, DOJ’s cases against the three largest U.S. banks that it has settled with or is about to settle with were largely handed to DOJ by whistleblowers. I have noted the shameful and self-destructive (if the goal of the administration were to prosecute elite banksters) approach of Holder and DOJ to these whistleblowers – they refuse to even praise their service to the Nation. President Obama and Holder should, in February 2009, have made a national call for thousands of whistleblowers to come forward with information about the elite banksters whose frauds even Holder now admits were “mightily” to blame for the crisis. No one not employed by the administration believes that the administration wants to prosecute the elite banksters who grew wealthy by leading the record fraud epidemics that caused the crisis.
DOJ’s Phony War against the Fraudulent Mice
Holder made Wagner DOJ’s leader of the deliberately misdirected prosecutorial effort against the mortgage fraud “mice” rather than the fraud “lions” that were – to quote DOJ – “devastating” the global economy not “despite” Wagner propagating these three crude lies throughout DOJ, the FBI, and the media, but because Wagner was willing to spread these lies. That is also why Holder keeps Wagner DOJ’s top guy on mortgage fraud. As I explained to Bill Moyers in his 2009 interview of me, one of the lowest common denominators of the Bush and Obama administrations was that their senior officials dealing with the crisis “were all promoted because they failed.”
Wagner is at one of the epicenters of the three mortgage fraud epidemics, but he has failed to prosecute a single senior officer of the major lenders that drove the crisis. He is batting .000 against the fraud lions. As I explain in this piece, he has trained AUSAs to ensure that they also bat .000 against the lions by training them that the lions don’t exist. Wagner claims the mice caused the crisis. It is a lie so crude, and so preposterous that it leaves one breathless.
Wagner is a classic example of this turbo charged variant of the Peter Principle. He was good at prosecuting, over the course of six years, 250 of the millions of fraud mice. The best estimate is that lenders originated over two million fraudulent “liar’s” loans in 2006 alone. There have been zero prosecutions of the elite bankers (the “lions”) who led this epidemic of fraudulent mortgage loan origination through liar’s loans or the companion epidemic of appraisal fraud.
There are hundreds of prosecutions annually of the “mice.” My (cheerfully mixed) metaphor is that these prosecutions are akin to throwing handfuls of sand into the Pacific Ocean from a San Diego beach and wondering when one will be able to walk to Hawaii – it will never happen. The prosecutions are worse than useless because they divert critical, scarce DOJ and FBI resources away from dealing with the lions. As I noted above, DOJ finally admits that the mortgage frauds by the lions contributed “mightily” to causing the crisis. Prosecuting what is literally less than one minor mortgage fraudster in 100,000 (figurative) fraud mice cannot possibly provide any deterrent value or produce any meaningful remedy to victims. A strategy that prosecutes less than one in 100,000 of the mice and grants massive bonuses to the fraud lions makes a mockery of justice.
Worse, the fraud lions invited the mice into the campsite. The banksters that looted “their” banks through accounting control fraud deliberately eviscerate underwriting and other internal and external controls because the fraud “recipe” that produces the “sure thing” of making them wealthy leads them to cause the bank to make enormous numbers of bad and fraudulent loans. Absent leadership by fraudulent senior managers, banks have shown the consistent ability for decades to reduce external fraud to tiny levels (well under one percent) through time-tested underwriting standards and controls. If we prosecute the lions and remove them from positions of power in our banks we will produce the bank reforms that will cut the number of mice from millions to tens of thousands.
DOJ Fights Mortgage Fraud by Fraudulently Inflating Its Fight against Mortgage Fraud
DOJ is fighting a “wholesale” catastrophe through a “retail” strategy that DOJ knows must fail. The prosecution of the mice is purely symbolic and undertaken to provide cover for Obama and DOJ’s leadership. Because it is a cynical PR exercise we should not be surprised that Wagner’s national “mortgage fraud” shop has recurrently – and enormously – inflated the number of prosecutions of the mice and the harm that they claim the mice they prosecuted caused. An audit by the Department of Justice’s Inspector General revealed that Wagner’s national shop continued to use the wildly inflated numbers (DOJ inflated the number of defendants five-fold and the damages ten-fold) to hype their supposed success even after it knew the numbers were false. The same audit revealed that the DOJ and the FBI have not made prosecuting mortgage fraud a top priority (contrary to their public claims) and have actually cut back materially on the number of FBI agents assigned to such cases.
Even after the fraud hyenas and other carrion eaters (the elite bank foreclosure frauds) entered the campsite to crush the bones and eat the marrow of the remains of the victims left behind after the fraud lions had gorged on them, Wagner continues to deny that the lions and hyenas exist. Wagner, Breuer, and Holder ensured that none of the elite banks and banksters that committed epic numbers of foreclosure frauds was prosecuted. Things have become so pathetic at DOJ that its leadership is too afraid to prosecute even the carrion eaters.
What has changed at DOJ, a mere six years after the crisis, and after six years of shameless denial that the fraud epidemics existed or had any meaningful role in causing the crisis, is that DOJ has now embraced my position on causality with a vengeance, repeatedly stating that the frauds of our most elite banks contributed “mightily” to the crisis and that the crisis “devastated” the global economy.
Of course, this does not lead to any criminal cases against the elite bankers who led those fraud epidemics. The DOJ crows that it has used the proceeds of the JPMorgan settlement to hire additional AUSAs to bring civil (not criminal) cases against the largest banks. The refusal of DOJ to hold any of the elite bankers who led and become wealthy through the frauds accountable for the frauds remains total.
One cannot send an order to AUSAs directing them not to prosecute bank CEOs for leading these frauds. One can, however, train AUSAs and FBI agents that such frauds cannot exist (the supposed lions don’t “make any sense” – they must be mythical unicorns) and then train them on how to look for different “droids” – the mice. (If the Star Wars reference is too obscure please search “Jedi mind trick” and “weak minds.”)
As I will show in the next several installments, the fraudulent bank CEOs never appear in Wagner’s (and Holder’s and Lanny Breuer’s) fables about mortgage fraud. Through Wagner, Holder, has succeeded in training virtually every AUSA and most FBI agents working mortgage fraud cases to believe that the most destructive form of financial fraud that have caused each of our modern financial crises (and would have caused another crisis had we not stopped liar’s loans in 1990-1991) not only does not exist, but cannot exist. The dishonest bank CEO is the unicorn – a mythical beast that no rational AUSA or FBI agent can pursue without being defined as [non]sens[ical] under Wagner’s training precepts.
Wagner’s precepts about elite bankers and banks are so crude and ridiculous that they might not have worked if the FBI had not transferred its 500 most knowledgeable agents with expertise in finance and “following the money” to national security in response to the 9/11 attacks. Nearly all the AUSAs and FBI agent now investigating mortgage fraud had minimal experience in finance, accounting, and sophisticated accounting control fraud schemes. No one has ever trained them to understand that “fish rot from the head” and that their paramount job is to ensure that their incredibly limited resources are spent always chasing lions – and never chasing mice.
DOJ’s vaunted RMBS task force – where virtually all its resources have gone that even make a pretense of investigating the large banks – has slightly over 200 total professionals – one-fifth the number of FBI agents (1000) investigating the S&L debacle. (See my earlier explanation in this series of articles about how much worse the current crisis is.) The 1000 figure does not include the thousands of additional professionals devoted to the S&L cases. Wagner told the Wall Street Journal that his team conducting the purported criminal investigation of JPMorgan consisted of three AUSAs. This is farcical, but then as I wrote in an earlier column, if a miracle happened and Wagner indicted Jamie Dimon, Dimon’s lawyers would call Wagner as their first defense witness and have him explain to the jury his statement quoted above.
Finding the Smoking Gun about How AUSAs Were Trained Not to Find the Smoking Gun
I noted that Wagner’s team included an article entitled “Finding the Smoking Gun” by Barbara E. Nelan, AUSA, N.D. GA, in its journal designed to train AUSAs to prosecute the mortgage fraud mice. I played a substantial role in training our regulatory staff, the FBI, and AUSAs how to detect, investigate, and prosecute elite S&L fraudsters. The central facts that would be impressed upon AUSAs in training about mortgage fraud is that by far the worst frauds will be led by the lenders’ CEOs, that their “weapon of choice” is accounting, that their means of looting is most likely to be modern executive compensation, and that the bank will not make criminal referrals against its controlling officers. This means that there are two paramount means of “finding the smoking gun” for high priority mortgage fraud cases – criminal referrals from the banking regulatory agencies and whistleblowers.
I read the “finding the smoking gun” article with great interest to see when and how the author would explain these points. How soon would she identify the lender’s CEO, accounting fraud, and executive compensation as the key risks and the guns to check for smoke? The answer, of course, was never.
In Wagner’s shop the CEO of the bank is always the honest leader of the innocent victim of mortgage fraud.
The best way for the CEO to loot “his” bank is to cause the bank to make or purchase vast amounts of bad loans at a premium yield. That requires the lender to gut the effectiveness of its underwriting and other internal and external controls. Those facts – known for two decades to competent economists and criminologists and for three decades by competent financial regulators – are written out of existence by Wagner and those he chooses to train AUSAs. DOJ attorneys and FBI agents are now trained to believe that the most destructive form of financial fraud no longer exists.
Wagner’s claim is actually more radical than that – his claim is that control frauds never existed. Several hundred senior bank and high tech officers must have been wrongly convicted by DOJ for actions that were not criminal. Wagner’s faith in the inherent and invariant virtue of bank CEOs is so facially absurd that he obviously doesn’t believe it, but as I will show every author he presented in the training journal implicitly taught the AUSAs the same fable of the always virtuous bank CEO. They do not explicitly teach this fable, the senior bank officers simply disappear from their narrative and the “bank” is always the innocent victim.
The words “criminal referral” (or its official variant – Suspicious Activity Reports (SARS)), “whistleblower,” “accounting,” “CEO,” and “compensation” never appear in the “smoking gun” article. Given that these are three of the five best places to find the true smoking gun the article has done the AUSAs a terrible disservice.
The omissions, however, in an article entitled “Finding the Smoking Gun,” also allow us to infer several critical facts. A criminal referral by the regulators in our era (1987-1993) would have been extensive and would have provided the AUSA and the FBI with the “road map” to put together the case. It would have had the critical documents attached with the most important portions of those documents brought to the reader’s attention. Any competent DOJ training would have started with the advice: “begin by carefully re-reading the criminal referral from the agency and its attachments and then meeting with key agency personnel identified in that referral.” Conversely, the criminal referrals made by banks on suspected mortgage fraud during the current crisis were overwhelmingly brief, incomplete, and shoddy. Given that AUSAs were being trained to search for the “smoking gun” without any advice to begin by referring to the criminal referral we can infer:
1. That criminal referrals from the banking regulatory agencies were so rare (or non-existent) that they were not worth mentioning in training, and
2. That criminal referrals from the banks were so weak that they were not worth mentioning in training
I am friends with academic historians, and know their scorn for the “great man” style of history in which normal people barely exist and are barely considered. Under Wagner, the opposite sin occurs – the senior officers of the bank disappear from the DOJ narrative.
DOJ Gets the Loan Underwriting Smoking Gun Spectacularly Wrong
One of the best places to look for the smoking gun in the worst cases of mortgage fraud is loan underwriting. The “smoking gun” article discusses underwriting at length – and misses the key points that would provide the smoking guns that prove the presence of accounting control fraud. As savings and loan regulators we used underwriting as our “early warning device” that gave the first sure indicator that the S&L was being run as an accounting control fraud.
One of the other articles in Wagner’s journal partially understands a key aspect of underwriting.
Sometimes referred to as "stated income" or "liars loans," Alt-A Loans are those which require little or no verification or documentation of the buyer's assets and income. They are ideal for fraud exploitation. Alt-A loans are offered by both prime and sub-prime lenders.”
The obvious question, unless you’re trained by Wagner, is why a bank CEO would choose to have “his” bank make loans that lenders call “liar’s loans” because they are so “ideal for fraud” that they are endemically fraudulent. But DOJ personnel must never ask that obvious question, for there is only one possible answer to that question. The bank CEO must want the bank to fraudulently originate vast amounts of loans because doing so optimizes the fraud “recipe” for a lender and creates the famous “sure thing” of accounting fraud guaranteed to promptly make the CEO wealthy.
The obvious place to look for the smoking gun, therefore, in this context is provided by a different metaphor about crime – the dog that doesn’t bark. One looks for the absence of underwriting far more than the documents in the file. The “smoking gun,” article, however, never mentions liar’s loans or warns the AUSAs to look at the absence of underwriting in liar’s loans as the smoking gun. .
The “smoking gun” article assumes that loan documentation exists on the key points.
“The good news about tracking down and proving mortgage fraud is that, in spite of its often seemingly overwhelming nature, fraud is fraud. Mortgage fraud is no different from any other scheme to defraud; it is about lying or hiding the truth for money. The fact that mortgage fraud occurs in the business environment is actually a huge plus for the investigation and your prosecution. The business environment requires documentation, and documentation means the fraud has left tracks.”
The recipe for mortgage frauds led by CEOs is totally different than the kinds of vastly smaller mortgage frauds the author of the “smoking gun” article has experience prosecuting. Accounting fraud does involve lying and hiding the truth, but unless you train the AUSAs to understand how accounting fraud works they cannot succeed against it. Yes, running an honest, prudent bank requires extensive loan underwriting documentation. That is why when it is missing because the CEO decides the bank should make enormous numbers of liar’s loans one knows that the CEO does not wish to run an honest, prudent bank.
The “smoking gun” article contains another passage demonstrating that it refuses to even consider fraud by senior bank officials.
“C. Lender file
Application (HUD form 1003): It is surprising how often even a lender will have several versions of an application in its loan file. It is important to examine such versions because it is difficult to contend that a change in the application is evidence of fraud if the change is evident in the lender's file.”
The author indicates that it is common for lenders’ loan files to “have several versions of an application.” She states that “it is difficult to contend that a change in the application is evidence of fraud if the change is evident in the lender’s file.” The opposite, of course, is true. The fact that lenders “often” have dramatically inconsistent loan applications in the file (e.g., different statements of the borrower’s income) is powerful evidence of accounting control fraud – by the controlling officers who have incentivized and pressured the loan officers to falsify the loan applications to make the loans appear prudent. Even where, as in the quoted passage, the DOJ author knows the facts the best she can do when they incriminate the bank’s managers is to be “surprise[ed]” at the facts and refuse to ask what the logical implications of those facts are. You can’t talk or write about loan origination fraud by senior bank officers when your boss takes the position that anyone that believes in such frauds “doesn’t make any sense.”
DOJ Gets Appraisal Fraud Spectacularly Wrong
Widespread appraisal fraud is a superb indicator of accounting control fraud led by the CEO of a lender. Any “smoking gun” article should start with a point emphasized by the Financial Crisis Inquiry Commission (FCIC).
“From 2000 to 2007, a coalition of appraisal organizations … delivered to Washington officials a public petition; signed by 11,000 appraisers…. [I]t charged that lenders were pressuring appraisers to place artificially high prices on properties [and] ‘blacklisting honest appraisers’ and instead assigning business only to appraisers who would hit the desired price targets” (FCIC 2011:18).
What the lenders’ CEOs were doing was deliberately creating a “Gresham’s” dynamic in which bad ethics drives good ethics out of the markets and professions. Any competent training course for AUSAs would emphasize the danger of such a Gresham’s dynamic, explain how to identify the dynamic, and demonstrate how to use its existence as a means of prosecuting the lender’s senior officers.
The “smoking gun” article discusses appraisal fraud – and assumes without analysis that it must come from the borrower. The borrower, of course, rarely has the economic leverage to inflate an appraisal. The lender’s CEO, however, has the absolute ability to create a powerful Gresham’s dynamic and suborn appraisers to produce widespread inflated appraisals.
DOJ Gets Borrowed Down Payments Wrong
The “smoking gun” article assumes, without any critical analysis, that borrowers are responsible for defrauding lenders by borrowing the down payment. The reality is that by far the most common form of down payment fraud was committed by the controlling officers of the banks. A recent study by conservative finance specialists documented the frequency of these frauds led by lenders’ personnel.
Asset Quality Misrepresentation by Financial Intermediaries: Evidence from RMBS Market
Tomasz Piskorski, Seru & Witkin(February 2013).
“At least part of this misrepresentation likely occurs within the boundaries of the financial industry (i.e., not by borrowers). The propensity of intermediaries to sell misrepresented loans increased as the housing market boomed, peaking in 2006. These misrepresentations are costly for investors, as ex post delinquencies of such loans are more than 60% higher when compared with otherwise similar loans.
A significant degree of misrepresentation exists across all reputable intermediaries involved in sale of mortgages. The propensity to misrepresent seems to be largely unrelated to measures of incentives for top management, to quality of risk management inside these firms or to regulatory environment in a region.
Misrepresentations on just two relatively easy-to-quantify dimensions of asset quality could result in forced repurchases of mortgages by intermediaries up to $160 billion.
These misrepresentations are not instances of the classic asymmetric information problem in which the buyers know less than the seller. Rather, we contend that they are instances where, in the process of contractual disclosure by the sellers, buyers received false information on the characteristics of assets.
[A] lender financing a second lien loan had to be aware of the presence of such higher liens.
Our review of [FirstAmerican] mortgage deeds records … indicates that both first-lien and closely situated second-lien mortgages on a given property were commonly financed by the same lending institution.
[M]ore than 15% of loans with closed-end second liens incorrectly reported no presence of such liens. The propensity of banks to sell loans that misrepresented asset quality increased as the housing market boomed, peaking in 2006.
Importantly, a significant degree of misrepresentation exists across all reputable intermediaries in our sample.”
The import of the last four quoted paragraphs is that even the most elite loan originators frequently committed fraud in the origination process by falsifying the documentation to make it appear that there was no second-lien and then made false “reps and warranties” to fraudulently sell the fraudulently originated loans to the secondary market. Recall that the $160 billion buyback is solely on the basis of two of the far less damaging frauds. It does not include the buybacks that would be required under the three vastly more damaging fraud epidemics.
DOJ Adopts the MBA’s Faux Definition of “Mortgage Fraud”
The FBI, left without expert guidance on the finance industry because the banking regulators destroyed their criminal referral process under President Bush, formed a “partnership” with the Mortgage Bankers Association (MBA) in 2007. The MBA foisted a faux definition of “mortgage fraud” on its partners – who pretend to believe it without any critical thought. The MBA is the trade association of the mortgage fraud “perps,” so it is no surprise that it defines bank CEOs as incapable of leading any fraud. The bank is always the victim. DOJ, under Wagner’s leadership, chants this faux definition repeatedly without any critical thought. The “smoking gun” article is a prime example of this.
“Now let's change this non-fraud scenario into a fraud-for-property scheme.
C. Money flow in a fraud-for profit scheme
Now change the money flow from a fraud-for-property to a fraud-for-profit scheme. The fraud for property scheme worked so well that we can just escalate the same scheme.”
The MBA claims that all mortgage fraud can be divided into two mutually exclusive categories – “fraud-for-property” v. “fraud-for-profit.” As the “smoking gun” article implicitly admits, however, the “fraud-for-profit” scheme is purportedly simply an “escalated” version of “the same scheme” as the “fraud-for-property” scheme. The proverbial bottom line is that the banks and their CEOs are always the victim and never fraudulent.
DOJ Gets “Money Flow” Wrong and Ignores Accounting Flows
The “smoking gun” article cites this passage as its core advice to AUSAs.
“Because mortgage fraud is all about the money, explaining to the jury how a fraudster can scam a bank by buying property and taking out loans is the key to a successful mortgage fraud prosecution.
Understanding the money flow is also a necessary starting point to any investigation.”
First, the worst cases of mortgage fraud are not “all about the money.” Frauds led by senior officers are also about ego, fame, reputation, and sometimes sex.
Second, the DOJ author ignores entirely the two vastly larger money flows arising from the fraud “recipe” for a lender. The most important money flows are executive and professional compensation. The latter suborns supposed “controls” and perverts them into the CEO’s most valuable fraud allies. Executive compensation promptly makes the CEO wealthy through the “sure thing” of accounting fraud.
Third, all of this is driven by non-cash accounting flows. The record reported profits that are the “sure thing” of the fraud recipe are fictional. The bank will suffer terrible losses (unless it is bailed out), but the controlling officer can walk away wealthy.
The DOJ article misses all three points. The “money flow” she discusses is not “a necessary starting point to any investigation.” It is useful in cases of external fraud by borrowers, but such frauds (1) would rarely occur if the bank were run prudently and (2) produce only a miniscule proportion of total mortgage fraud losses. It is essential to understand that external frauds overwhelmingly target lenders that are controlled by fraudulent CEOs. Sophisticated fraudulent borrowers understand that the CEOs have gutted the bank’s normal underwriting protections and other internal and external controls that are exceptionally effective in preventing external mortgage fraud in order to aid the CEO’s ability to loot the bank. This makes banks controlled by fraudulent managers the most tempting fraud targets for sophisticated borrowers.
Conclusion: “They’ve Got to be Carefully Taught”
The subtitle is an homage to South Pacific. At the end of Wagner’s training program the AUSA or FBI agent will be far less effective than before the training. They are being taught to hunt for mice and to believe that lions and hyenas do not actually exist. They are taught that the bank CEO is their invariably honest friend and the bank is the helpless victim of the fiendishly clever hairdressers, minor real estate agents, and 20 year old loan brokers whose prior job was flipping burgers. It is all a sick perversion of justice and a squandering of our grotesquely inadequate resources for prosecuting elite white-collar criminals. Holder and Wagner exemplify every warning Edwin Sutherland made 75 years ago when in his presidential address he announced the concept of white-collar crime and gave his examples showing the vastly greater ability of elites who control seemingly legitimate firms to do immense damage to society because apologists define their crimes out of existence.
<i> <p> Bill Black is the author of <a href="http://www.amazon.com/Best-Way-Rob-Bank-Own/dp/0292706383">The Best Way to Rob a Bank is to Own One</a> and an associate professor of economics and law at the University of Missouri-Kansas City. He spent years working on regulatory policy and fraud prevention as Executive Director of the Institute for Fraud Prevention, Litigation Director of the Federal Home Loan Bank Board and Deputy Director of the National Commission on Financial Institution Reform, Recovery and Enforcement, among other positions.</i> </p>
<p> <i> Bill writes a column for Benzinga every Monday. His other academic articles, congressional testimony, and musings about the financial crisis can be found at his <a href="http://papers.ssrn.com/sol3/cf_dez/AbsByAuth.cfm?per_id=658251">Social Science Research Network author page</a> and at the blog <a href="http://neweconomicperspectives.blogspot.com/">New Economic Perspectives</a>.</i>
Follow him on Twitter: @WilliamKBlack
The following article is from one of our external contributors. It does not represent the opinion of Benzinga and has not been edited.