Wall Street could pay nearly $50 billion to buy peace from federal authorities who are taking aim at the banks over their role in the mortgage crisis, according to interviews and a confidential analysis of the industry's potential legal exposure.
Bracing for a potential reckoning, the banks and their outside lawyers are quietly using JPMorgan Chase's record $13 billion mortgage settlement in November to do the math and determine just how much each bank might have to pay to move beyond the torrent of government mortgage litigation that has dogged them since the financial crisis. Such calculations, people briefed on the matter said, have gained particular urgency among the banks' board members.
If the settlements materialize, they could yield, according to the analysis, $15 billion in relief for consumers — a mixture of cash payments and other assistance, like reductions in the size of homeowners' loan payments. A payment of $50 billion, made up of a string of separate deals, would amount to roughly half the total annual profit of large American banks in 2012.
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The JPMorgan settlement has stepped up the pressure on other banks to strike their own separate deals in the coming months, some top bank executives say. When the JPMorgan settlement was announced, the Justice Department official who took the lead in brokering the deal, Tony West, said it could offer a model for other financial institutions being investigated in their sales of troubled mortgage investments. The government made JPMorgan a test case, knowing the nation's largest bank, facing a wide swath of legal woes, was vulnerable. The $13 billion deal has left some on Wall Street worried that the cost of their own deals will now be inflated, the people said.
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The government is facing pressure of its own to make the banks pay for their role in the housing crisis, zeroing in on whether the banks duped investors into buying mortgages in the heady days before the financial downturn.
The analysis, which lawyers prepared for one of the financial institutions and which was reviewed by The New York Times, indicates that Bank of America could ultimately settle for $11.7 billion in penalties, with an additional $5 billion in relief to homeowners.
Morgan Stanley's combined tally, the analysis shows, could be around $3 billion, with roughly a third going to consumer relief, while Goldman Sachs's total could come to roughly $3.4 billion. For the Royal Bank of Scotland, the total price could be around $10 billion, which might prompt an outcry in Britain, where the government owns a majority stake in the bank. Citigroup could pay roughly $1 billion, the analysis shows. The potential penalties for other banks are under $1 billion, the analysis shows.
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Some of the 16 banks under scrutiny could decide against striking deals altogether, while others could try to negotiate a lower settlement number. The lawsuits and investigations against the banks vary, which could affect their ultimate outcomes. Anticipating the potential pain, banks have also set aside large reserves to absorb the litigation costs.
The projected payments are based on analysis by lawyers sorting through the mortgage morass to get a firmer grasp on what it could cost to resolve years of investigations. The banks declined to comment.
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Resolution would be greeted with resigned relief on Wall Street. The banks are facing investigations from government authorities including state attorneys general and federal prosecutors. The legal barrage has been generating mounting frustration among some top executives. The bankers, who spoke on the condition of anonymity, say the government has taken an arbitrary, one-size-fits-all approach that could force them to pay more than their fair share.
At the same time, a popular antibank sentiment makes it even harder for Wall Street to win court battles against federal authorities, the people said. Some critics of Wall Street — they point to the foreclosure-dotted neighborhoods, languishing property values in areas hard-hit by the housing crisis and other signs of wreckage lingering across the country — argue that even the large payouts from banks fall short. The scarce number of criminal actions filed in the aftermath of the financial crisis, with few top executives in the government's cross hairs, also fueled public frustration.
To arrive at the potential payouts for each of the 16 banks, the analysis examined JPMorgan's settlement payments as a percentage of the total amount of residential mortgage securities issued by the bank from 2005 to 2008, or those at the center of the government's lawsuits. Of the $13 billion, for example, $4 billion went to the Federal Housing Finance Agency, amounting to 11 percent of the mortgage securities at issue. That percentage was then used to determine how much the agency could get from the other banks.
The litigation is centered on the banks' mortgage machines, which churned out billions of dollars in securities from 2005 to 2008 that later imploded. Looking to go after mortgage fraud aggressively, President Obama formed a mortgage task force to investigate wrongdoing. The unit has already brought cases against some banks, accusing them of keeping investors in the dark about flawed mortgage securities. Adding to the legal fray, the Federal Deposit Insurance Corporation and the National Credit Union Administration have also sued some banks to recoup losses that the regulators shouldered after taking over lenders that failed under a glut of bad mortgages.
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The lawsuits that could yield the heftiest settlements are from the Federal Housing Finance Agency, which oversees the housing finance twins Fannie Mae and Freddie Mac. The agency sued 17 financial firms in 2011, accusing them of selling shoddy mortgage securities to the housing giants. While some have settled, like Deutsche Bank, which struck a $1.9 billion deal in December, 10 firms remain locked in the costly litigation. The Royal Bank of Scotland, the analysis shows, would have to pay an estimated $5.4 billion.
As part of its settlement, JPMorgan paid the F.D.I.C., for example, roughly $515 million, or 0.11 percent of the total residential mortgage-based securities that JPMorgan or the flailing firms that it took over — Bear Stearns and Washington Mutual — sold from 2005 to 2008. Under that formula, the analysis shows, Morgan Stanley's exposure would come to more than $108 million, and Goldman Sachs could face roughly a $136 million payout.
Bank of America could face the highest tally, according to the analysis, in part because of its acquisition of the troubled subprime lender Countrywide Financial. According to the analysis, the bank, or the firms it acquired, sold roughly $637 billion in residential mortgage securities from 2005 to 2008. Using the JPMorgan settlement as a guide, that could leave Bank of America with a $713 million bill to the F.D.I.C. alone. Settling with the housing financing agency, the analysis shows, could be expensive, coming in at about $6.7 billion.
While the potential settlements could be painful for banks, they also would enable them to close a troubled chapter.
"Yes, $50 billion is a big number," Gerard Cassidy, a bank analyst with RBC Capital Markets, said. "But it is manageable for the 16 banks, and the industry wants to put this behind them."