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Speaker 1: The Consumer Financial Protection Bureau and twenty two states have

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Speaker 1: sued Aquan Financial, a mortgage servicer that performs tasks like

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Speaker 1: collecting mortgage payments on behalf of the banks that actually

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Speaker 1: lend the money, among other things. The CFPV says that

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Speaker 1: Aquan routinely mishandled millions of mortgage accounts, and that the

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Speaker 1: software Aquan uses to manage mortgages is deeply flawed, adding

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Speaker 1: errors regularly to borrowers accounts. Aquan disputes the allegations and

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Speaker 1: has called the lawsuit politically motivated. But this isn't the

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Speaker 1: first time that it's been in hot water with the CFPV,

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Speaker 1: and it's facing some very serious lawsuits right now. With

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Speaker 1: us to talk about the litigation against Aquan is Robert Hockett,

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Speaker 1: a professor at Cornell University Law School. Bob explained to

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Speaker 1: us exactly what the CFPV says that Aquin did wrong here. Sure, sure,

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Speaker 1: So it's great to be with you. Thanks for having

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Speaker 1: me on again. Essentially, if you go back to one

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Speaker 1: thing I might help listeners as if they remember back

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Speaker 1: at the so called robosigning scandals where a lot of

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Speaker 1: banks were getting in trouble for supposedly UH filling out

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Speaker 1: or filling dot filling out documents kind of fraudulently in

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Speaker 1: order to begin to foreclose on homes which UH mortgages

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Speaker 1: were sort of getting laid on their payments. One of

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Speaker 1: the reasons that was alleged for that was that basically

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Speaker 1: they were just such a big upswing in foreclosures in

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Speaker 1: the wake of the crisis that the banks simply couldn't

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Speaker 1: handle it. They simply couldn't keep up with all of

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Speaker 1: the servicing requirements that they had to keep up with,

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Speaker 1: so a lot of the banks began to unload a

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Speaker 1: lot of these servicing rights to affirm like Aquan and

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Speaker 1: Aquin purported to be a specialist at handling this kind

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Speaker 1: of stuff. They supposedly have the right software, the right techniques,

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Speaker 1: so they could kind of do all of this stuff

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Speaker 1: in the right way on the up and up. They

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Speaker 1: could kind of manage each particular mortgage account well and

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Speaker 1: take in the payments. They could do readjusting of a

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Speaker 1: monthly payments if necessary. Um, they could basically handle it

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Speaker 1: all in a much more efficient way. Was to claim.

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Speaker 1: What the CFPB and what twenty two states are saying

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Speaker 1: is that Aquin has proved no better at this than

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Speaker 1: the banks were said to be doing back in the

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Speaker 1: idea is first of all, but the software that they're

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Speaker 1: using is not capable of tracking all of the various

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Speaker 1: functions that have to be tracked in servicing these many

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Speaker 1: many loans. UH. They're claiming that auqwin is failing to

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Speaker 1: record payments that mortgagers are actually making on some of

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Speaker 1: these loans. They're saying that auqwin is failing to make

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Speaker 1: various tax payments and other sorts of payments that have

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Speaker 1: to be made out of the escrow accounts associated with

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Speaker 1: particular mortgages, and that in consequence, UM something like one

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Speaker 1: and a half million homeowners have been harmed already. So

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Speaker 1: a number of states UH states have sued as as

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Speaker 1: you know as a CFBVS sued, and a bunch of

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Speaker 1: states have also issued seas and asists orders, essentially saying

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Speaker 1: that aukwin has to stop UH taking on any more

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Speaker 1: servicing business until it can sort of prove or sort

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Speaker 1: of get under wraps the business that is currently claiming

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Speaker 1: to be handling Bob. The Consumer Financial Protection Bureau said

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Speaker 1: that Aquin allegedly foreclosed illegally on at least to thousand homeowners.

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Speaker 1: Don't they have to go through a court proceeding and

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Speaker 1: prove some facts before they can foreclose illegally and don't

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Speaker 1: have to verify whether the debt was valid. They do.

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Speaker 1: But but here's the different states have different degrees of friction.

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Speaker 1: You might say that they put up in the way

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Speaker 1: if it would be forecloser. In some states it's a

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Speaker 1: lot easier and faster for to foreclose than in others.

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Speaker 1: What's more, if Akwin, for example, UM was sort of

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Speaker 1: proving that it had the right to foreclose by producing

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Speaker 1: certain documents that might have been you know, robosigned, if

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Speaker 1: I can use that word again, that you know, basically

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Speaker 1: referring to what the banks were accused of around seven

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Speaker 1: years ago UM, and then some of those foreclosures could

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Speaker 1: definitely be suspect, even though uh Ackwin sort of complied

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Speaker 1: with the sort of the letter of the law, or

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Speaker 1: appears to have complied with the letter of the law. Bob,

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Speaker 1: you know, this isn't the first time the CFPB has

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Speaker 1: got after Akwin and went after them in two thousan

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Speaker 1: over what sound very similar kinds of allegations of mismanagement

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Speaker 1: of accounts. How is it that this didn't get cleared

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Speaker 1: up when not when the CFPB went after them the

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Speaker 1: first time? Well, I mean that that is uh, the

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Speaker 1: sixty four thousand dollar question, right. I mean, one would

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Speaker 1: have thought that Awkwin would have been put on notice

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Speaker 1: ben uh, and that they would have gotten their act together. Um.

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Speaker 1: I think there are a couple of possible explanations. They're

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Speaker 1: sort of good faith, I mean, there are sort of

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Speaker 1: charitable explanation and possible I'm sorry, there are some possible

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Speaker 1: explanations that are sort of charitable and others that are less.

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Speaker 1: So let's start with the charitable. The charitable explanation might

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Speaker 1: be that they said that, yeah, we'll get our act together,

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Speaker 1: we'll sort of get back on the straight arrow, will,

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Speaker 1: we'll fix these problems, uh, And that they really tried, um,

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Speaker 1: but that they underestimated the magnitude of the problem and

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Speaker 1: so didn't succeed in sort of fully handling it. Another

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Speaker 1: possibility is that they were in fact acting to correct

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Speaker 1: the problems of the CFPB notified them about, but that

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Speaker 1: in the meanwhile they kept taking on additional servicing rights

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Speaker 1: so that the full portfolio and that they were dealing

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Speaker 1: with continued to grow. And so even the improvements that

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Speaker 1: they made in might not have suffice given the fact

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Speaker 1: that the original basis of those problems was itself growing. Right.

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Speaker 1: I mean, one thing we have to remember is that

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Speaker 1: the number of mortgages that they've been servicing, the full

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Speaker 1: portfolio I think, grew by something like a factor of

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Speaker 1: eight eightfold from what to now or two thousand nine

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Speaker 1: until now. So it's a very rapid growth rate in

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Speaker 1: their portfolio of mortgages to handle. So even if they

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Speaker 1: were which is again four years ago, even if they

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Speaker 1: were beginning to get there their house in order, so

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Speaker 1: to speak, it might have been that that was not

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Speaker 1: enough because the problem was in effect growing very rapidly

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Speaker 1: even as they were trying to get a handle on it,

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Speaker 1: as it had developed up Bob. So, the CFPB, the

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Speaker 1: state of Florida, and twenty one other state agencies are

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Speaker 1: suing them or resuring cease and decease desist orders against

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Speaker 1: the company. Yeah, it has said it will vigorously defend itself.

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Speaker 1: What is its defense? I really, I frankly can't imagine

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Speaker 1: what it could be. I really can't. I'm very I mean,

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Speaker 1: I'm surprised by this particular attitude. I would have thought

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Speaker 1: that they would have been exhibiting some kind of contrition um,

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Speaker 1: some sort of plea to the effect that, well, you know, please,

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Speaker 1: you know, work with us here where we really are trying.

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Speaker 1: We're doing our best. But but the problem is that

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Speaker 1: the thing has you know, that the portfolio has grown

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Speaker 1: so rapidly that even as we are making improvements, were

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Speaker 1: still having trouble keeping up. That would have struck me

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Speaker 1: as the right sort of tone to take. Instead by

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Speaker 1: striking a defiant tone and saying, oh, this is just

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Speaker 1: a CFPB sort of getting out of control, I think

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Speaker 1: it's an amazingly stupid strategy to tell you the truth,

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Speaker 1: because when you've got half of the states of the

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Speaker 1: Union making the same claim, trying to scapegoat the CFPV

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Speaker 1: just isn't gonna it's it's not gonna fly right. Nobody's

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Speaker 1: gonna buy that. Nobody's gonna find that convincing. With half

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Speaker 1: the states in the Union are alleging the same uh,

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Speaker 1: that the same wrongs uh and and acting in the

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Speaker 1: same way as the CFPV, I can't see what kind

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Speaker 1: of defense they could possibly offer that would be consistent,

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Speaker 1: at least with a defiant tone that they're striking, Bob.

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Speaker 1: If you know, a lot of people probably when they

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Speaker 1: get their bills from these mortgage servicing companies are kind

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Speaker 1: of surprised. You take out a mortgage with a bank

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Speaker 1: and suddenly this other company who you never heard of

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Speaker 1: before is obviousing your mortgage, and you can end up

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Speaker 1: in a situation like we have allegedly with Aquin here.

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Speaker 1: Is there something that should be done, you know, at

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Speaker 1: the governmental level or otherwise or by the banks in

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Speaker 1: order to avoid this kind of situation because people don't

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Speaker 1: have any control over who the mortgaging service company is. Yeah,

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Speaker 1: I mean, I think that that's that's the sort of

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Speaker 1: the perfect question to ask here, because in fact, what

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Speaker 1: it highlights is a particular fact, and it's the fact

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Speaker 1: that we haven't yet figured out how to deal with

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Speaker 1: the fact that the whole country, the whole model of

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Speaker 1: housing finance that we operate with in this country has

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Speaker 1: fundamentally shifted over the last tent of twenty years. Right

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Speaker 1: there used to be, as we know, right the very

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Speaker 1: the person that landed with the institution that lent you

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Speaker 1: the money that you used to buy your house, kept

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Speaker 1: the loan for the duration of the loan, and you know,

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Speaker 1: I had you had a personal relation with it, You

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Speaker 1: knew who they were, knew who you were, you had

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Speaker 1: a kind of a history. You could kind of work

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Speaker 1: things out together if you were beginning to uh suffer

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Speaker 1: financial hardships, and hence we're going to linquents on some

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Speaker 1: of your payments. But as you know, in the lead

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Speaker 1: up to two thousand and eight, we had a gradual

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Speaker 1: shift to what's now known as the originate to distribute model,

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Speaker 1: where the institution that originates loans doesn't plan to hold them. Instead,

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Speaker 1: it sells the rights to collect on the loans to

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Speaker 1: other institutions. And sometimes these things can change hands multiple times,

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Speaker 1: and that makes it very difficult, for one thing, for

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Speaker 1: the homeowners to know who the heck they're actually dealing with,

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Speaker 1: and who they actually owe something to, and who might

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Speaker 1: be in fact, just trying to scam them. And it

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Speaker 1: turns out that it's apparently difficult for the services themselves

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Speaker 1: even to kind of keep up with things because these

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Speaker 1: things often change hands so rapidly. So the question is

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Speaker 1: do we have to go back to the pre originate

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Speaker 1: to distribute model basically originate to hold In other words,

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Speaker 1: we want kind of maximum skin in the game again

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Speaker 1: like we used to have, or is there some sort

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Speaker 1: of middle ground that we can find that's between the

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Speaker 1: older model on the one hand, and the currently you know,

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Speaker 1: sort of just obviously unsiff stainable originate to distribute to distribute,

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Speaker 1: to distribute to distribute model, which is what's proved so

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Speaker 1: so unworkable. You know. The argument in favor of the

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Speaker 1: latter is it supposedly makes housing finance cheaper, right, the

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Speaker 1: cost of housing finances much lower because nobody feels that.

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Speaker 1: The lenders know that they can unload the loans and

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Speaker 1: so they're not going to be stuck with them, and

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Speaker 1: they charge less in the way of interest. But the problem,

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Speaker 1: of course is we actually had sort of too much

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Speaker 1: mortgage credit. It was sort of too much of a

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Speaker 1: good thing. That's why we had a housing bubble in

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Speaker 1: the first place. So clearly we need something between the

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Speaker 1: two extremes, at least if we don't, in fact go

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Speaker 1: all the way back to the originate to hold model. Bob.

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Speaker 1: Every time I see these lawsuits continuing about mortgage companies

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Speaker 1: and mortgage service companies, I asked the same question of myself,

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Speaker 1: which is haven't we learned anything from the financial crisis? Yeah? Yeah,

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Speaker 1: it seems like we learned something for about twenty minutes

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Speaker 1: or maybe for eighteen months um, and then almost as

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Speaker 1: quickly as um, things begin to kind of recover in

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Speaker 1: scare quotes, the original causes of the crisis in the

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Speaker 1: first place begin to be forgotten. But you would have thought,

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Speaker 1: in this particular case, given that the magnitude of the

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Speaker 1: crisis first and the fact that it was so concentrated

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Speaker 1: on housing finance as for another thing, that at the

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Speaker 1: very least we would at least remember, right how to

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Speaker 1: you know, how to do housing right, even if we,

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Speaker 1: you know, are still sort of arguing about what to

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Speaker 1: do about derivatives or what to do about uh financial

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Speaker 1: market utilities or repo markets or what have you. But

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Speaker 1: it seems that we we've apparently haven't even figured out

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Speaker 1: yet what to do about housing. And I guess you see.

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Speaker 1: Another reflection of this, of course, is in Congress itself,

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Speaker 1: because Congress for at least five years now has been

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Speaker 1: figuring out what to do with Fannie and Freddie. Do

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Speaker 1: we want to sort of restore them to what they

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Speaker 1: were before? Two We've got there's clearly gonna be more

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Speaker 1: for us to have you on the air to talk about,

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Speaker 1: but we're running out of time, so I want to

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Speaker 1: thank Bob Hockett of Cornell Law School for being with

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Speaker 1: us here today on Bloomberg Law. That's it for this

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Speaker 1: edition of Bloomberg Law. Will be back tomorrow thanks to

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Speaker 1: Technical director Christa Comey and producer David Sucherman. Coming up

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Speaker 1: on Bloomberg Radio, Bloomberg Markets with Carol Master and Corey Johnson. Carol,

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Speaker 1: what do you got? How much money is the IBM

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Speaker 1: CEO really making? We're gonna do that. Stay tuned for

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Speaker 1: all of that and more here on Bloomberg Radio. This

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Speaker 1: is Bloomberg