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Regulators Must Take Responsibility for Failed Foreclosure Review

Last Friday, the Federal Reserve and the Office of the Comptroller of the Currency finally began sending payments to the 4.2 million borrowers who were wronged in the foreclosure process in 2009 or 2010, under a settlement these agencies reached with several banks in December. The unfortunate news is that this relief is likely too little, too late.

Two years have gone by since the original consent order was signed in 2011. During that time, independent consultants, hired by the banks and poorly supervised by the regulators, were paid over $2 billion to review borrower records while affected borrowers received nothing. What precisely happened over the last two years and why it took so long for the regulators to realize the process wasn't working is what some of us in Congress are trying to get to the bottom of so that this kind of thing doesn't happen again. 

When the final settlement was signed in late 2012, I wrote Thomas Curry, the Comptroller of the Currency, and Ben Bernanke, Chairman of the Federal Reserve, on three occasions with specific questions about what went wrong and how they were going to reach and compensate the borrowers. I finally received an anemic reply in late March, without specific answers to my questions.

When Chairman Bernanke gave his semi-annual report on the economy and the Fed before the House Financial Services Committee in late February, I raised my concerns about the delays and confusion in implementing the original consent order program. To the chairman's credit, he did not dodge, weave or equivocate. He took responsibility, said they messed-up the program, and that they were moving ahead quickly to get compensation to borrowers.

There is plenty of blame to go around here. Through the course of my own examination of this process, I heard accounts of constantly shifting scope guidance from the regulators, a lack of a clear system to measure progress, concerns over conflicts of interest and a failure to effectively communicate with wronged borrowers.

Last month, a Government Accountability Office report found that, "The complexity of the foreclosure reviews and limitations in the regulators' guidance challenged their ability to achieve their stated goals of the process." I have no doubt that this was a very complex process. However, our country has overcome complexity before and this time it should have been no different.

So, what are the real lessons learned from this experience? The GAO report makes some general recommendations in the areas of sampling methodologies, getting direct payments to borrowers and improving transparency, but more specifics are needed. From the initial Senate Banking hearing in September 2011, it was clear that the prospects for the program did not look good. The outreach program was deficient. The letters to borrowers had too much "governmentese" language. The website was too difficult to navigate. Specifics about which wrongs would be compensated were absent. The list of concerns went on and on.

If we are to learn anything from the financial crisis of 2008, an essential component is to have federal regulators who are trained to develop and implement corrective programs, set measurable goals, report regularly to the oversight entities and take responsibility for their work. Without these guidelines, the public will quickly recognize that no lessons were learned from the OCC-Fed debacle.

Congress can certainly help address these issues, but the regulators must also recognize that they have a structural oversight problem, and they need to develop many of the remedies on their own.

Carolyn B. Maloney represents New York's 12th Congressional District. She is a senior member of the House Financial Services Committee and Ranking Member of its Subcommittee on Capital Markets and Government-Sponsored Enterprises.

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