This is the second part of a story on the Office of the Comptroller of the Currency's independent foreclosure review program. A close look suggests that the program is taking far longer than originally expected and resulting in much larger payments to consultants than to wronged borrowers.
Consumer groups have been quick to criticize the Office of the Comptroller of the Currency's independent foreclosure look-back reviews for giving the banks under scrutiny too much say in the process of reviewing their own loans.
A more fundamental issue—the actual mechanics of the reviews and their results—has received less attention.
The OCC granted each consultant responsibility for designing its review methods. Promontory Financial Group, which is conducting Bank of America's review, includes seven sets of yes-or-no questions, labeled A through G. For each homeowner's review file, Promontory and B of A employees must address a total of 14,768 items, according to a May 2012 presentation Promontory provided to consumer groups.
That involves Bank of America employees attaching supporting documentation to each file, ranging from customer service call notes to payment records to internal bank documents. Promontory then fills out a final questionnaire, labeled H, that is intended to determine remediation and compensation.
Many of the A through G questions are compound, according to B of A file reviewers. Among the simplest of a handful shown to consumer groups: "Did the amount of any of the fees or penalties assessed/charged to the borrower exceed the limits established in the loan documents and modifications, if applicable?"
Promontory offered to provide the full list to American Banker if the OCC gave its consent. The regulator declined to do so.
"We create a storyline of what happened to the borrower," says Elizabeth McCaul, the head of Promontory's New York office and an architect of its foreclosure review program. "There's never been so thorough and deep a review [of foreclosures] … It was very important to have very objective conditions."
Bank of America's reviewers themselves expressed varying views the process. One contract worker said he believes it's a charade. Another was ambivalent. A third, a senior reviewer, called it a good-faith effort to rectify wrongs. The three employees did agree that there is widespread belief among ground-level reviewers that Bank of America made egregious errors during foreclosures proceedings.
"The way [B of A management] explained it to us was that a lot of people had been wrongfully denied modifications, that there were a lot of situations where the right and left hands didn't know what the other was doing," one of the contract employees recalls. "It was our job per [regulators' consent order] to determine if people were wronged,"
Intentions aside, there is abundant evidence that the review process itself has taken on a life of its own. In an engagement letter with B of A that was released by the OCC in November of last year, Promontory estimated it would take 10 hours to review each file during a 54-month exercise. The process now seems destined to mushroom to several times that size. The E and F questionnaires alone, relating to fees, penalties, and escrows, can take 20 hours to complete, Promontory says.
File reviewers say modifications are particularly vexing to sort through because Bank of America had dozens of programs in place. In some cases, it also sent borrowers flurries of contradictory solicitations, rejections and new solicitations within a matter of weeks. Borrowers were offered loan mods that they did not qualify for or were rejected over a lack of paperwork already in the bank's files.
Assembling individual paper trials to document what happened has proven exceedingly difficult, even when all files remained in B of A's possession.
"In a lot of cases, there were missing documents that were key to determining whether true harm was caused," says one B of A contract employee.
Essential foreclosure-related paperwork was also often in the hands of outside counsel, which rarely responded to reviewers' requests. Under the OCC's rules, if evidence to prove or disprove harm is lacking, the reviewer is supposed to assume it occurred.
The process has been dragged out further by repeated changes. Late last spring, a full half-year after B of A started staffing up, reviewers report doing "practice" work because guidelines remained undecided. As time went on, protocols changed weekly, and Promontory's visits to the Westlake facility became more tense.
"It seemed to me that things were kind of unraveling. There was a lot of bickering going on," says a B of A contract employee, adding that the problems appeared to rest with those above B of A's review managers.
Dan Frahm, a B of A spokesman, said that Promontory was handling all significant determinations under the program. He directed questions regarding the reviews' cost, length, and design to Promontory. McCaul said it is not possible to calculate an average time or cost per file because the review is ongoing.