Will R-I-C-O Spell 'Relief' for B of A Mortgage Borrowers?

While shareholders queue up for a seat at the annual Bank of America extravaganza on Wednesday and the forces of Occupy get ready to mount major protests, a small group of lawyers plots its own campaign to take on what they call the "predatory mortgage banking cartel."

They are pained at the lack of real regulatory enforcement actions in the wake of the financial meltdown, and angry about how easy it's been for the megabanks – B of A, in particular – to "get over" on the American public, continuing a pattern of foreclosure behavior despite tongue-lashings by the Federal Trade Commission and Department of Housing and Urban Development. 

So, how do they spell relief for this fraud-induced indigestion? R-I-C-O. 

Yes, RICO, that iconic legal strategy developed in the 1970s – one with teeth – that spelled calamity for the bosses of the Genovese and Gambino crime families, restored some semblance of order to mob-run Teamster Local 560 in New Jersey, and sent the immensely popular mayor of Providence Rhode Island, Vincent "Buddy" Cianci, to the can for running his office as a financially self-serving criminal enterprise. But the case that took it beyond the boundaries of common thugdom was RICO's successful prosecution of Wall Street junk bond peddler, Michael Milken. While controversial, the case emphasized the expansive nature of the statute in pursuing corporate crime, and the fact that RICO provides for both criminal penalties and a civil cause of action for financial damages, has this group of attorneys intrigued.

So, how might B of A qualify as a likely target? It's definitely an "enterprise," one of the criteria of a RICO prosecution. According to several lawyers, there's a pattern of activities, mainly surrounding B of A's 2008 acquisition of Angelo Mozilo's Frankenstein, a/k/a Countrywide Financial, that provide potential prosecutorial fodder insofar as securities fraud and consumer protection violations are concerned.

One crusader in this tight-knit group – Dave Angle, a consumer attorney formerly with the Missouri Attorney General's office – points specifically to the Federal Trade Commission's 2010 settlement with B of A, where the bank agreed to pay $108 million to settle claims that Countrywide had laid excessive servicing fees on cash-strapped homeowners. 

The upshot, according to Angle, was, essentially, an upraised B of A middle finger as the company continued servicing practices as usual, until the FTC got wise and forced another settlement in February of this year, charging the bank with ignoring the initial settlement and demanding a return to homeowners of an additional $36 million, the ill-gotten gains accumulated in the interim. The Inspector General at HUD also noted this blatant nose-thumbing in a report issued in March, which took B of A, along with four of its brethren, to task for "widespread questionable foreclosure practices involving the use of foreclosure 'mills' and a practice known as 'robosigning' of sworn documents in thousands of foreclosures throughout the United States." 

Every day seems to bring another horror story designed to fuel public rage against Bank of America, whether it's the case of Louise Davidson of Loma, Colorado (whom I wrote about in previous blogs), still sans home thanks to a B of A/Fannie Mae eviction; Los Angeles mother Dirma Rodriguez, fighting B of A to stay in her home with a severely disabled daughter; or a 74 year-old veteran, Larry Anderson, now on the verge of losing his family home to the relentless maws of the B of A foreclosure machine.  

But, Mark Malone – a former U.S. and New Jersey prosecutor with RICO experience – firmly believes that the statute could prove a legal trumpet that could bring down the Jericho-style battlements of B of A.  

Factually and legally, he claims, there's no impediment to using the RICO statute to prosecute current and former executives at Bank of America if a "pattern of racketeering activities" can be alleged, meaning people in the organization having committed two or more acts within a 10-year period that violate federal statutes prohibiting the use of the mail or the "wires" (defined as telephonic, and now Internet, communication) to carry out fraudulent schemes. (Malone, serving as a volunteer lawyer for South Jersey Legal Services, is fighting B of A in a client's foreclosure case.) He, Angle and others in the group believe that much of what went on during Countrywide's descent into infamy, and its acquisition by B of A, met the fraud criteria. 

Malone and Angle doubt Eric Holder's Department of Justice will wield RICO as a weapon, pointing out that Holder and the DOJ's Criminal Division head, Lanny Breuer, are both former partners of the white shoe law firm Covington and Burling. That might pose a problem for the two if a RICO investigation were to move forward with alacrity. As Reuters reported on Jan. 20, the firm's connective tissue binds it to clients that have included Bank of America, Fannie Mae and Freddie Mac, and its lawyers wrote opinions supporting the legality of MERS' securitization activities.

So, is the use of RICO by DOJ just wishful thinking on the part of this group of legal crusaders? For now, maybe, but there is some action on the state level. Louisiana, for one, has just filed a RICO complaint against MERS and a whole host of megabanks, B of A included. The suit alleges that the defendants used the wires and the mails in a scheme to defraud parishes out of recording fees.

Down the line, Angle, Malone and others hope that what Occupy may not be able to accomplish, hard-nosed prosecutors might be able to provide: a measure of justice for the millions of aggrieved homeowners either forced out in foreclosure, or waiting for that ax to fall as a result of the actions of Bank of America and its cohorts. 

Joel Sucher, a filmmaker with Pacific Street Films in Hastings-on-Hudson, N.Y., is working on "Foreclosure Diaries," a documentary.