WASHINGTON — New York Attorney General Eric Schneiderman's opening salvo in the escalating battle over banks' compliance with last year's mortgage settlement is already fueling expectations that other states could soon follow suit.
More than a year after attorneys general in nearly every state agreed to a $25 billion deal with the five biggest servicers — requiring them to provide relief for borrowers affected by faulty servicing practices — several officials and housing advocates are crying foul over how banks are complying.
For right now, Schneiderman stands alone in seeking to take action against Bank of America and Wells Fargo, and it remains unclear whether Joseph Smith, the independent monitor overseeing the settlement, and an oversight committee for the deal will join the New York attorney general.
But several observers said the extent of concerns over how banks are implementing the relief may compel other states to get involved.
"I imagine that New York will not be the only state gravely concerned about reports that these servicing standards are still being violated," said Julia Gordon, director of housing finance and policy at the Center for American Progress.
Despite Schneiderman's announcement Monday of his intention to sue B of A and Wells, the details of the settlement limit his ability to act independently. Any state wishing to enforce provisions of the settlement in an action against one of the servicers has to provide notice of 21 days, at the end of which time a monitoring panel of authorities from various states can choose to be the official party bringing the action. (Schneiderman's office said he provided such notice on Friday.)
If the panel declines participation, Schneiderman will then have to wait 21 additional days to bring the action on behalf of his state.
Additionally, there are legal questions about whether Schneiderman can act without Smith, since another provision of the settlement allows banks to correct flaws in implementing the deal before a legal action is filed.
"The question is whether that process still has to go forward before New York can sue," said a source familiar with the situation who spoke on the condition of anonymity. "That's still an open question. It's uncertain whether [Schneiderman] has the authority to sue, and if he does he has to wait at most 42 days."
That may be a moot point, observers said, if other states join in. Schneiderman has not been alone in sounding the alarm about how institutions have followed terms of the pact.
Lawmakers at a Capitol Hill hearing last month expressed concern over how the signatory banks get credited for providing borrower relief. That came after a report by the California Reinvestment Coalition, which surveyed housing counselors in the state, criticized implementation of the accord, saying banks are not complying with mandatory timelines to respond to applications for a loan modification.
"We certainly hope it's a sign of things to come," Kevin Stein, associate director of the California Reinvestment Coalition, said of Schneiderman's announcement. "There's maybe momentum building around enforcement of the obligations that are built into the settlement agreement."
In a statement, Smith said while he shares Schneiderman's concerns, he intends to continue to use his own authority to evaluate the progress of implementation.
"Like General Schneiderman, I continue to believe there are areas in which the banks must improve their treatment of their customers. I appreciate his interest in this important issue," Smith said. "Under the settlement, there is a process that allows me to conduct reviews of the banks' compliance and report them to the public. I am following this process and look forward to sharing my findings and enforcement activities in June. As monitor, I intend to use the full breadth of my power under the settlement to hold the banks accountable."
Asked at a press conference Monday whether Schneiderman thought New York's action would complicate Smith's work as settlement monitor or create rivalries among states, the attorney general said no.
"I don't know what you're talking about," he said. "There's more than one cop on the beat."
Other states are not showing their cards yet, but are also not ruling out similar action.
"These allegations obviously raise concern," said Gil Duran, spokesperson for California Attorney General Kamala Harris. (Under a state law, California has its own independent monitor reviewing how banks are responding to mortgage-related complaints.) "Our office, along with the independent California Monitor, will carefully review them," Duran said.
Gordon suggested that a coordinated response to implementation under the auspices of the states participating in the settlement carries some risks.
"Would a large coordinated effort have more global impact? Maybe. But it's extremely hard to do something like that on a coordinated basis. Look how hard it was to get the settlement done," she said. "As was quite public at the time, Schneiderman and other attorneys general always had concerns whether the settlement was really going to appropriately address the harms that had been done. It's not surprising that he would take action when he has evidence that the terms of the settlement are not being followed."
Isaac Boltansky, a policy analyst at Compass Point Research & Trading, said Schneiderman may be the first attorney general to announce his intention to bring legal action, but he won't be the only one.
"I do think we're going to see other states join in," Boltansky said. "He wants to be the tip of the sword on this effort to enforce elements of the settlement. A number of other state attorneys general will join this effort."