The Corporate Observer Blog : Consumer Protection, Corporate Abuse : Class Action Lawyer & Attorney : Steven Berk Law Firm

Sally Adams rides the bus home from her second job as a nighttime clerk and—every day—goes by the bright green “Payday Loans” sign.  She knows such offers have a reputation as scams, but she also has two kids at home, one of whom has come down with a bone-shattering cough, and she can’t afford his medicine.  That green sign becomes more and more tempting every day that she drives by, as her son’s cough lingers in her memory.

What’s more, she gets on the computer and is inundated with yet more advertisements, to the point that she can’t help herself.  “$250-$1000 right now—as soon as tomorrow,” they promise.  What’s more, most don’t specify the effective interest rate anywhere.  Well, so what?  Sally doesn’t quite know what the interest rate is, but she knows that having $1000 in her pocket tomorrow would pay a lot of the bills lying around and buy a lot of medicine.

Two weeks later, when her paycheck rolls in, she owes most of it to Paydayloansharks.com, and she finds herself in an even worse situation than before.  Not only is the $1000 used up on groceries and medicine, but she has no money from her recent paycheck, setting her two weeks further behind.  (But maybe another payday loan would help her bridge the gap—and so the vicious cycle begins.)

Valuable to many and a safety net to millions more, predatory loans are around to stay.  But good news: Our new friends at the Consumer Financial Protection Bureau—for the first time—will be taking a good hard look at what is legalized “loan sharking” and put a national enforcement strategy together for policing these practices.  The Consumer Financial Protection Board is not playing games.  Last week, Director Richard Cordray began to announce its domain.  The rules propose to govern almost two-thirds of debt collection agencies and over 90% of the United States’ credit reporting agencies, two industries which have never faced governmental regulation before. The companies would be subject to stricter guidelines and greater scrutiny.

While it’s been a long task, it seems President Obama found the right person to lead the Bureau.  Cordray is unabashed and blunt, and has wasted no time cracking down on the industries that prey on the members of society with fewer options.  We can only hope that Richard Cordray and his team will get it right; balancing the interests of those who sadly live too close to the edge of poverty (“paycheck to … maybe another … paycheck”) and companies who are willing to make high risk loans.

At a minimum, the CFPB should require disclosures of the risk and the actual interest rate, and provide information on their website about the realities of taking out a payday loan.  That way the Sallies of the world will at least have the requisite information to decide.  Information is power.

Assisted by David T. Martin

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File this one under “no good greed goes unpunished.”

Well, at least this greed won’t.  Today, the Department of Justice will file a series of criminal complaints against former Credit Suisse traders.  The traders are accused of exaggerating the value of asset-backed securities in the days leading up to the financial crisis.  (In fact, some are already planning to plead guilty—there must be some smoking-gun evidence.)

I’m not sure which is more revolting, the amount of the traders’ exaggeration (a cool $2,850,000,000) or the motive behind it.  You see, at Credit Suisse and other Wall Street banks, bonuses are calculated based on the investments attracted by a trader—his “portfolio.”  The bank receives commission on the investment; the trader receives a bonus in some proportion to his portfolio.  These brilliant traders realized that by overstating the value of securities, they could dupe investors into sinking money and reap the benefits come annual bonus time.  “It's genius, Freddy.  Here comes Ferrari number three.”

Pessimistic about human nature yet?  Let’s not go that far—these were just a few bad apples—but could there be a clearer rallying cry for regulation of Wall Street bonuses?  Heck, John Dillinger only robbed banks of a few hundred thousand dollars over the course of his “career,” and they created the FBI to catch him.  I’m no economist, but I’m pretty sure $3 billion today is worth a bit more than $300,000 in the ‘20s.

Look, I’m not proposing we create a new bureau.  In fact, we already have.  Elizabeth Warren proposed it, Richard Cordray leads it, you know…  The Consumer Financial Protection Bureau.  That’s right, who is more suited to regulate and oversee corporate bonuses than the bureau founded to protect consumers?  President Obama was adamant about his commitment to consumer protection during his State of the Union, and an example like these Credit Suisse morons—er, traders—shows how negatively the incentive for bonuses can impact Main Street.

Hopefully Cordray and the CFPB will see the writing on the wall here, but in the meantime, kudos to the DOJ for their diligence.

Assisted by David T. Martin

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Richard Cordray is wasting no time at the Consumer Financial Protection Bureau.  Forget Senate confirmation, Director Cordray has consumers to protect.  With him at the helm, the CFPB finalized its amendment to the rules governing remittances from the United States.

For years, Americans wishing to send money to relatives living abroad have been victimized by predatory and under-regulated companies that charged an arm and a leg—often without disclosing the true rates.  No more.

The Dodd-Frank Bill allowed for the CFPB to establish renewed rules on remittances, and (a few years later) the rules have arrived.  This is no fledgling industry—over $400 billion dollars in remittances are sent each year.  Following the rule changes, on every remittance of more than $15.00 companies will be required to disclose:

• Exchange Rate;
• Fees Charged; and
• Net Money to be Delivered.

The rules also enhance company liability for remittance errors and mandate a 30 minute window for a customer to cancel their remittance at no charge.  Before the rule changes (which do not go into effect until January 2013), many money senders had no idea how much money truly arrived in their relatives' hands in South America, or Asia.  Banks and other remittance-sending companies charged exorbitant rates and devalued the dollar, shortchanging the oft-unwitting customer.  Talk about the American Dream—emigrate to the United States, make enough of a living to send some money back home to your spouse and parents, and have 40% of it stolen by the greedy banks.  What could be more American?

Though we are disappointed that we have to wait a year until the rule changes go into effect—how long does it take to draft a disclosure and retrain a few employees?—this is the result of no small effort.  Organizations like Appleseed, a group dedicated to seeking social justice, have worked hard in support of this rule and are to be commended for the result.

We look forward to additional efforts by the CFPB in furtherance of consumer protection and fairness.  The Bureau continues to seek comments on the final rules at its website.

Assisted by David T. Martin

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The CFPB  is taking important first steps towards its mandate of helping consumers wade the murky waters of personal finance. Click Here

Proof Positive. Sixty Percent of his evaluation was focused on selling risky subprime mortgages. Read this and more in Nicholas Kristoff’s captivating interview with a banker/salesman from Citigroup who seems to have realized the error of his ways. Click Here

Finally, for an interesting spin on the value of regulation as well as the general wisdom of banking and corporate practices, I’d direct you to the scintillating and informative work of Steve Denning. Click Here

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Richard Cordray has some big shoes to fill.

Is this former 5-time "Jeopardy!" champion ready to follow rock star Elizabeth Warren as the first director of the Consumer Financial Protection Bureau?  Consumers can only wait and hope for the best. 

I could spend my few hundred words lamenting what could have been; indeed, what should have been: the nomination and battle to confirm Elizabeth Warren as director.  But it was not meant to be.  She scared the living daylights out of the banks and financial services industry.  They cried a river to their Republican friends (OK, they paid for those friends) who vowed to defeat her nomination, and they were likely to prevail.  Given the circumstances, I think I would have favored a recess appointment of Professor Warren, but I have faith in the President and his team, and hope they are doing right by the American consumer, the true backbone of our economic system.

We wish Mr. Cordray great success.  First, he must kneel to the loyal opposition to assure his nomination, but assuming he does so with enough sincerity to be confirmed, he must be prepared to be bold and decisive from day one.  Sadly, the momentum for reform and the protection of consumers has long since passed in Washington.  Let’s hope Mr. Cordray can reverse that slide and begin his tenure with strong action and a thoughtful plan for being the consumer’s top cop.

Finally, let’s not say goodbye to Elizabeth Warren as she rides off to her ivory tower.  Instead, au revoire.  Until we see you again, as...  hmmmmm...  Treasury Secretary?  Or Associate Justice of the U.S. Supreme Court?

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When a member of a Senate or House Committee has the floor at a hearing, picture a large television monitor (think the size of the screen in the Dallas Cowboys’ new stadium) airing commercials of the member’s top 5 political contributors.  Big HD screen with stereo sound.  It’s a win-win.  The political contributors get some nice promotional placements and watchdog groups get a quick view of what might be a motivating factor in the member’s questioning and at times (too often) grandstanding for the cameras.  In sum, everyone’s allegiances are in the open for all to see.

An example.  The Honorable Congressman Patrick McHenry (R-NC) yesterday accused Professor Elizabeth Warren of lying about an agreement to be available for questioning only in the morning.  Surely his rant was merely a proxy for his pent-up anger about Professor Warren’s claimed “unfettered” power at the new Consumer Finance Protection Board.  But nonetheless, it was pretty uncivil and unbecoming of anyone—let alone a member of the United States Congress.  To believe the Congressman, Professor Warren was responsible for the Great Depression, the Chicago Cubs failing to win the World Series in over a century of trying and if left to her own devices as head of the CFPB, we will see her single handedly destroy American Capitalism.

As the Congressman blathers on, the public (who pays his salary) should be allowed, in living color, to learn more about the Congressman’s two largest, and most reliable contributors: Wells Fargo and Bank of America.  Yep.  Two banks with combined assets of $3,521,084,250,000[1] (that’s over $10,000 per American).

While he is blasting away at Elizabeth Warren we might as well get a visual of his patrons.  Add to those behemoths a list of insurance companies, credit and finance companies, and accountants and you get a good idea of where Mr. McHenry is coming from and where he wants to take us.  Can he really be taken seriously when he is beholden to the industry Professor Warren hopes to reform?

Coming next: Handsome golf shirts and hats for members of Congress emblazoned with corporate logos.

[1] http://www.ffiec.gov/nicpubweb/nicweb/top50form.aspx

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This weekend TCO features our second insightful guest post from our partner in Austin, Texas, Gouri Bhat.  Please enjoy.

To the list of evil things that banks will do when left to their own unregulated devices, we must add one more: they deliberately steer African-Americans and Latinos toward predatory home loans, leading inexorably to waves of foreclosures that can decimate communities of color.  The practice is known as “reverse redlining” and usually involves targeting residents within certain geographic boundaries based on race or ethnicity, and then offering them credit on more onerous terms that are unfair in comparison to what others are offered.

Legal claims of reverse redlining have enjoyed a renaissance after the 2008 collapse of the subprime housing market and the financial almost-apocalypse it spawned.  Two of the most interesting reverse redlining cases working their way through the courts were brought by municipalities—the City of Baltimore and the City Memphis—against Wells Fargo Bank.  The lawsuits allege, in novel fashion, that the targeting of African-American borrowers for deceptive and predatory mortgages resulted in greater numbers of foreclosures and vacant properties, which in turn created greater costs for the local governments, now contending with falling property tax revenues and the heightened need for foreclosure-related city services.  After initial setbacks, both lawsuits surmounted a major hurdle in recent weeks when federal judges in Maryland and Tennessee allowed the cases to proceed, each finding that the plaintiffs had made the connection between Wells Fargo’s practices toward African-American borrowers and the injuries suffered by the municipalities.  See the judges' decisions here and here.

The celebrated rise in homeownership in the U.S. in the decade before the 2008 collapse can be largely attributed to increasing numbers of African-American and Latino homeowners who purchased property through the subprime market.  This was no mere coincidence.  The subprime housing market preys on communities with a dearth of lending alternatives, borrowing experience and access to clear information.  Communities of color fit the bill in many parts of the country, and the mortgage industry figured this out.  Sadly, the very conditions that allowed reverse redlining to take root and thrive—lack of clear information for consumers and lack of accountability in mortgage origination—may never be remedied if Republican efforts to hogtie the new Consumer Financial Protection Bureau succeed.

Guest post by Gouri Bhat

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If we can’t have Elizabeth Warren, we must have Paul Volcker.  At 6’7” he towers physically over just about everyone in the room.   I can just see him summoning the relatively diminutive Jamie Dimon of JPMorgan Chase (5’10" on a good day) to his office and giving him a good tongue lashing about any number of questionable offers and practices that the banking behemoth foists on consumers.  (For good measure, he can bring in Brian Moynihan of Bank of America and grill him on why his bank quietly knew of and supported a score of Ponzi scheme operators popularly known as mini-Madoffs, but who were not so “mini” to the consumers who lost their life savings to a bank culture that put profits ahead of compliance.)

Beyond his physical stature, he has the intellect and experience that places him at a level above the current Warren wannabes.  For starters he can trot out his rule -- the Volker rule (prohibiting banks from speculative and proprietary trading) and impose it by force of will and administrative rule or something.  Heck, just the threat of Volker thinking about imposing that rule will keep the banks and mortgage lenders on the straight and narrow (or at least closer to the straight and narrow).

Finally, at the heart of his wisdom is a moral compass that cannot be bought or compromised.  Eighty three years young, he is not looking for a job in “industry” or to be feted by Wall Street chiefs at black tie dinners.  He will not suffer fools lightly or be bamboozled by high-priced consultants and convoluted explanations about how failures to disclose financial risks to consumers is somehow a good thing.  He will take his position seriously and no doubt be an important thorn in the side of an industry (financial services) that has put profit and gain above all else.  And lastly, he will be quick to remind that industry that it was the consumer (and the government) that saved their behinds.

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Reports over the weekend claim Professor Warren went to the Hill (as in Capitol Hill) to find the votes she needed for her nomination to be the first head of the Consumer Finance Protection Board ("CFPB").  She came up well short of the mark.  Wall Street fears her more than inflation and will easily have the votes to block her nomination from ever reaching the Senate floor for a vote. (Sad, but the subject of another story.)

So now speculation begins on her “replacement”.  Reports over the past week claim the White House has discussed—or has in fact offered—the position to the following government officials: former Michigan Governor Jennifer Granholm, Illinois Attorney General Lisa Madigan, Massachussetts Attorney General Martha Coakley, Chairwoman of the FDIC Sheila Bair and Federal Reserve Governor Sarah Raskin.  Notice anything?  Hmmm.  Yep.  They are all women.  To be fair, I left out a few names but there is no doubt the short list is dominated by women.

The interesting question is why?  A few attempts at an answer:

First try.  For all intents and purposes a woman heads the CFPB now, and so in the strange ways of Washington a woman must be her replacement.  Think Supreme Court.  When Sandra Day O’Connor retired, her “replacement” from the beginning was presumptively going to be a woman. And so began the ill-fated effort to confirm Harriet Miers.  Why Harriet Miers?  Well she was no Sandra Day O’Connor, but she was a woman.

Second try.  Although in its infancy—heck it’s not even out of the womb—the CFPB will be known as an agency suitable for a woman to hold the reigns.  Yes, it is the most important new government agency since the Securities and Exchange Commission’s birth in the wake of the stock market’s crash of 1929 and the Great Depression.  But by design, or implicit discrimination, this one can be handled by a “lady”.  It’s not Treasury or Defense, neither or which has ever been led by a woman.  Those positions are reserved for those macho men who understand high finance and bombs and tanks. (I know little Tim Geithner is no Anderson Silva but you get the picture). It’s on par instead with HHS and Education, where women seem to be slotted regularly in both Democratic and Republican Administrations (Kathleen Sebelius (Obama), Margaret Spellings (Bush), Donna Shalala (Clinton)... you get the point).

Protecting consumers—what a quaint notion.  Sort of like baking cookies and balancing the family check book.  This implicit relegation to second-tier status must be nipped in the bud.  Whether a man or more likely a woman “replaces” Elizabeth Warren, the attitude must be there is a new sheriff in town (think Javier Bardem and No Country for Old Men) and those macho men like Jamie Dimon, Brian Moynihan and Lloyd Blankfein better take notice.

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He saved his real ire, however, for Professor Warren.  Early on in his personal attack, he called her a “lady”.  It was the word and his emphasis on the word that gave me pause.  It made two young women at my table flinch too, and they rolled their eyes as they whispered to each other.

I am a white male born just at the end of the baby boom.  I grew up in a comfortable middle class home in a nice suburb in one of the nation’s largest cities.  From my earliest memories of elementary school, I competed with women (at the time they were of course 1st graders like me).  I remember running from the bus to meet my mother with my report card, which had a few A’s but was also smattered with a few other letters.  Alas, I knew that my best friend, neighbor and competitor in all matters, Marisa was delivering another set of straight A’s to her mother... who would talk with my mother (you get the picture).  Through high school and college and into law school, women were always at least half the class.  Some were superstars and some were not, but it never seemed based on anything but merit.

Entering the workforce, as a young lawyer, women were -- as they always had been -- my colleagues and competitors.  But for the first time, I started seeing a distinction between men and women in the workplace.  Women bear children.  Men do not.  Because of that basic biological reality, I started seeing woman in significant numbers going part time, or taking a position in-house where the hours were more regular.  They had biological imperatives that I could not appreciate. Another more troubling change was the behavior of some men, mostly of my father’s generation, and how they treated women in the workplace.

They, the men, were the partners, women were associates and the male partners exploited that power.  I knew that took place, subtly and overtly, and some law firms were worse than others. Without minimizing this underside of my profession, many of my female friends and colleagues deservedly persevered and reached the pantheon of our profession, becoming Judges, Managing Partners of law firms, general counsels of large corporations, and law professors.  Based on my limited slice of reality, where women had done quite well, I have always been a bit dubious of claims for gender discrimination, particularly as it relates to female professionals.

My comfortable (and naïve) perception that all was right in the world of gender and employment was snapped earlier this week.  I was attended a conference at no less than the United States Chamber of Commerce in Washington, DC, just across Lafayette Park from the White House.  I was there to see and hear Professor Elizabeth Warren.  Since 2008, she has been a powerful voice for consumers; no, she has been the most powerful voice for consumers.  And now as she races to get the new Consumer Finance Protection Board (CFPB) up and running, she faces the full court press of corporate, banking and Wall Street interests attempting to derail her.

As I learned the other day, that fight includes gender.  Preceding Professor Warren’s presentation were some remarks by Congressman Spencer Bachus, Chair of the House Financial Services Committee.  The Congressman rambled on a bit about the economy and competition and the absolute evils of regulation -- nothing more than a worn out stump speech.  Most interesting was his awkward attempt to compare regulators in the U.S. to Maoist China (but that is for another day).

He saved his real ire, however, for Professor Warren. Early on in his personal attack, he called her a “lady”.  It was the word and his emphasis on the word that gave me pause.  It made two young women at my table flinch too, and they rolled their eyes as they whispered to each other.  They were young staffers of the Chamber of Commerce, so it wasn’t just me.  Mr. Bachus was using Professor Warren’s gender as an attack.  To my ears it was, "how can a lady be trusted to really understand all this important finance regulation?" or similarly, "how dare a lady tell us what to do?"  It was offensive.  And sadly the same sentiment was echoed by the Chairman of the Chamber of Commerce, Tom Donohue.

Just on the other side of the Capitol, attorneys hoping to maintain their class action lawsuit on behalf of over one million past and present female employees of Walmart presented arguments to the Supreme Court.  The crux of the plaintiffs’ case is that Walmart’s management in Arkansas has an unspoken culture, a code, for favoring men over women in promotion and pay.

I admit before my visit the US Chamber of Commerce, while I was supportive of the case I remained somewhat dubious of the merits.  No more.

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Professor Warren is straightforward, persuasive and charming. And this was no friendly audience.

I had the good fortune of hearing Elizabeth Warren speak this morning in Washington, DC at the US Chamber of Commerce’s Center for Capital Markets Competitiveness.  The Center’s byline is “Ensuring Competiveness in a Post-Regulatory Reform Environment”.  I had never seen Professor Warren before in person.  First impression: She was smaller than I thought.  Heck, with all that publicity that has been swirling around her for the past two years, I thought she’d be ten feet tall -- or at least as tall as six foot, eight inch Baylor basketball star Brittney Griner.  Nope, she’s rather slight and academic.  Second impression: She is really good; straightforward, persuasive and... well… charming.

And this was no friendly audience.  Professor Warren followed Congressman Spencer Bachus of Alabama to the lectern.  He is the Chairman of the House Financial Services Committee.  The Congressman rather derisively referred to Professor Warren as “a nice lady”.  He then went on to suggest she and her agency -- the CFPB -- were omnipotent and would destroy competitive markets, while imposing a Maoist (that’s no typo) style of “total regulation” on the capital markets.

Professor Warren did not take the bait.  Instead she decided to stake out a place on the high road, a place she seemed both familiar and comfortable traveling.  To that end, she simply ignored Congressman Bachus’s efforts to mischaracterize her position and attack her character and gender.  She emphasized instead that her decision to reach out to the Chamber and speak at this particular conference was in furtherance of finding “common ground”.  Nice.

That common ground began with the notion that all sides favored one thing: Competition.  Everything is done to promote competition.  To make sure competition is robust and fair, Professor Warren explained that a strong, consistent set of rules were essential.  No one benefits from market chaos where some participants are able to break the law.  As an example, she said, “let’s take the perspective of a baseball player who chooses not to take steroids.”  Regulation is simply that -- a set of rules that all market participants must follow.

Professor Warren’s remarks were grounded in common sense and we wish her luck.  Her main objective for the CFPB, which we applaud, is achieving some level of fairness and transparency for consumers in the purchase of financial products, from credit cards to home mortgages.  But the room was filled with skeptics who wanted none of it.  They believe all regulation is evil and only harms business.

My attendance at today’s event at the Chamber reminded me of the harsh reality that we have two teams in Washington.  Two sides, Democrat and Republican; left and right; conservative and liberal.  Call it what you like.  Despite her best efforts at finding common ground, between those two sides even the mighty Elizabeth Warren will not so easily succeed.

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Far from being penalized, even slapped on the writs, big banks are saving tremendously to the tune of billions by refusing to service distressed properties and loans.

Big banks rolled up their sleeves from say 2000 to 2008 and made home loans like crazy.  They were motivated not by their love of middle class homeowners, but rather safe and large profits.  They could make loans, securitize them and package them to hungry bond investors.  The ability to securitize these loans separated risk from underwriting.  I’ve heard that before, but what does it mean?  Here is an example.

Banker Zach says: “Mr. Jones, I really don’t care if you pay back this loan on overpriced property in Swampland, Florida that you cannot afford.  Lost your job, not my problem.  Land underwater, not my problem.  I’m packaging that loan with thousands of others and selling it all to Mr. Smith.  He might worry about your ability to repay, I don’t.  Next customer please.”

“Steve, this is old news, what do I need to know now?”  Yes, okay, back to my blog post.  Far from being penalized, even slapped on the writs, big banks—specifically Bank of America, JPMorgan, Citigroup, Wells Fargo, and Goldman Sachs—are enjoying the time of their lives.  They are saving tremendously to the tune of billions by refusing to service distressed properties and loans.  “Walk away fellas and don’t look back."  Instead, they are using some of that money wisely to lobby Congress and it’s working.

As it often does, Congress misses the point.  Based on pressure from the banking industry (read: lobbyists) they are devoting attention and resources to taking wild punches and scrutinizing the nascent Consumer Finance Protection Board, and of course our hero Elizabeth Warren.  I’m reminded of Nero.  While Rome burns, the regulators are running in circles fending off attack after attack on their authority from an industry whose hands are dirty.  And Congress is playing the violin.  No one has time to put out the fire.

Enough is enough.  Congress must deal with substance and not engage in a sideshow that only benefits the perpetrators of the root problem: Bank of America, JPMorgan, Citigroup, Wells Fargo, and Goldman Sachs.

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Intrinsic in the financial markets are the seeds of its destruction and, thank goodness, re-birth.

We have one hope and one hope only for forestalling, not eliminating, but merely delaying another financial meltdown. That hope is Elizabeth Warren and a robust Consumer Financial Protection Board ("CFPB"). At bottom, such an agency can at best "level the playing field" between tens of millions of consumers -- main streeters -- and the financial institutions, large and small, who prey upon them. The great economist Hyman Minsky explained nearly a generation ago how meltdowns like the one in 2008 was inevitable. Capitalism just gets overheated; incentives, greed, and innovation in financial markets will carry us away again. Intrinsic in the financial markets are the seeds of its destruction and, thank goodness, re-birth.

As we are just recovering from the last near brink disaster, I attended a conference of $1000/hr. lawyers debating how they can design the next financial instrument to decouple risk from lending: "synthetic derivatives". Yep. Buying "air" really to hedge risks. No doubt billions if not trillions will be created over the next few years -- destabilizing indeed, little economic molotov cocktails if you will. And why do you need $1,000 lawyers? Simple, so you can design financial instruments in a way that avoids the regulation of the CFTC.

So Congress, let's not bemoan Professor Warren's appropriate role in discussions regarding mortgage servicing reform. Answer to your constituents on main street and let Professor Warren do her job.

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