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Bank of America liable for mortgage fraud

The U.S. Justice Department plans to seek nearly $850 million in penalties from the Bank of America for poorly conceived home loans originated by Countrywide and then sold to Fannie Mae and Freddie Mac.

Bank of America听Corp was found liable for fraud on Wednesday over defective mortgages sold by its Countrywide unit, a major win for the U.S. government in one of听the few trials stemming from the financial crisis.

After a four-week trial, a federal jury in New York found the bank听liable on one civil fraud charge. Countrywide originated shoddy home loans in a process called "Hustle" and sold them to government mortgage giants Fannie Mae and Freddie Mac, the government said.

The four men and six women on the jury also found former Countrywide executive Rebecca Mairone liable on the one fraud charge she faced.

The U.S. Justice Department has said it would seek up to $848.2 million, the gross loss it said Fannie and Freddie suffered on the loans. But it will be up to U.S. District Judge Jed Rakoff to decide on the penalty. Arguments on how the judge will assess penalties are set for Dec. 5.

Any penalty would add to the more than $40 billion Bank of America听has spent on disputes stemming from the 2008 financial crisis.

"The jury's decision concerned a single Countrywide program that lasted several months and ended before Bank of America's acquisition of听the company," Bank of America听spokesman Lawrence Grayson said. "We will evaluate our options for appeal."

Marc Mukasey, a lawyer for Mairone, called his client a "woman of听integrity, ethics and honesty," adding they would fight on. "She never engaged in fraud, because there was no fraud," he said.

Wednesday's verdict was a major victory for the Justice Department, which has been criticized for failing to hold banks and executives accountable for their roles in the events leading up to the financial crisis.

The government continues to investigate banks for conduct related to the financial crisis. The verdict comes as the government is negotiating a $13 billion settlement with JPMorgan Chase & Co to resolve a number of听probes and claims arising from its mortgage business, including the sale of听mortgage bonds.

Risky loans听

The lawsuit stemmed from a whistleblower case originally brought by Edward O'Donnell, a former Countrywide executive who stands to earn up to $1.6 million for his role.

The case centered on a program called the "High Speed Swim Lane" - also called "HSSL" or "Hustle" - that government lawyers said Countrywide started in 2007.

The Justice Department contended that fraud and other defects were rampant in HSSL loans because Countrywide eliminated loan-quality checkpoints and paid employees based on loan volume and speed.

The Justice Department said the process was overseen by Mairone, a former chief operating officer of听Countrywide's Full Spectrum Lending division. Mairone is now a managing director at JPMorgan.

Amy Bonitatibus, a JPMorgan spokeswoman, said, "We are reviewing the decision."

About 43 percent of听the loans sold to the mortgage giants were materially defective, the government said.

Bank of America bought Countrywide in July 2008. Two months later, the government took over Fannie and Freddie.

Bank of America and Mairone denied wrongdoing. Lawyers for the bank听sought to show the jury that Countrywide had tried to ensure it was issuing quality loans and that no fraud occurred.

The lawsuit was the first financial crisis-related case against a bank听by the Justice Department to go to trial under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA).

The law, passed in the wake of听the 1980s savings-and-loan scandals, covers fraud affecting federally insured financial institutions.

The Justice Department, and particularly lawyers in the office of听U.S. Attorney Preet Bharara in the Southern District of听New York, have sought to dust off the rarely used law and bring cases against banks accused of听fraud.

Among its attractions, FIRREA provides a statute of听limitations of听10 years and allows the government to bring civil cases for alleged criminal wrongdoing.

Virginia Gibson, a lawyer at the law firm Hogan Lovells, said the Bank of America听verdict was a "big deal because it shows the scope of听a tool the government has not used frequently since its inception."

Gibson and other lawyers say any appeal by Bank of America听would likely focus on a ruling made by the judge before the trial that endorsed a government position that it can bring a FIRREA case against a bank听when the bank听itself was the financial institution affected by the fraud.

The case was one of听three lawsuits in New York where judges had endorsed that interpretation. Banks have generally argued that the interpretation is contrary to the intent of听Congress, which they said is more focused on others committing fraud on banks.

Bank of America's case was the first to go to trial, a rarity given that banks more typically choose to settle government claims instead of听face a jury. But Bank of America听had said that it "can't be expected to compensate every entity that claims losses that actually were caused by the economic downturn."

In a statement, Bharara said Bank of America听"chose to defend Countrywide's conduct with all its might and money, claiming there was no case here."

"This office will never hesitate to go to trial to expose fraudulent corporate conduct and to hold companies accountable, particularly when it has caused such harm to the public," Bharara said.

In late afternoon trading, Bank of America听shares were down 27 cents at $14.25 on the New York Stock Exchange.

The case is U.S. ex rel. O'Donnell v. Bank of America听Corp et al, U.S. District Court, Southern District of听New York, No. 12-01422.