David Dayen: Justice’s Deceit on the JPMorgan Settlement, and Why Ed DeMarco Should Get Some Apologies

By David Dayen, a lapsed blogger, now a freelance writer based in Los Angeles, CA. Follow him on Twitter @ddayen

The moral bankruptcy of the Justice Department’s fake crusade against JPMorgan Chase was always fairly obvious, considering that the Attorney General is holding private meetings with Jamie Dimon, the chief potential suspect in a criminal case (hey, at least those talks were “constructive”). Just yesterday, Dimon walked into the White House to meet with the President, afforded the respect of an elder statesman. The idea that he’s under “attack” is absurd.

But this has now burst into the open with Justice’s desire to stick the FDIC with half the bill:

JPMorgan Chase & Co’s possible $11 billion settlement of government mortgage probes has been complicated by a dispute with the Federal Deposit Insurance Corp over responsibility for losses at the former Washington Mutual Inc, said people familiar with the matter […]

JPMorgan, which acquired Washington Mutual from the FDIC for $1.9 billion at the height of the financial crisis, has disputed its responsibility to cover losses incurred by investors on the failed thrift’s mortgage securities […]

Some fear the FDIC, under pressure from the Justice Department to join a global settlement, might agree to assume liability, a move that would effectively force another government agency to absorb billions of dollars in losses […]

“If the FDIC were to indemnify JPM as part of the government deal, it would likely reduce the rumored $11 billion by about $3.5 billion,” said Joshua Rosner, managing director of Graham Fisher, an independent research consultancy. “That would be an absurd outcome.”

It’s worse than Josh says. As reports have noted, $4 billion of that fine goes to “mortgage relief,” allowing JPMorgan to game the rules (as every bank did in the National Mortgage Settlement) to “pay” their fine with other people’s money, get credit for routine actions like bulldozing homes or waiving deficiency judgments, and other “take air out of the books” actions. So the hard money fine is $7 billion. And the FDIC would take on fully HALF of that, despite the fact that, at the time, JPMorgan swore up and down that there would be no federal cost from the WaMu transaction. This is why I bristled a bit at Alex Pareene’s appearance on CNBC (though I like him very much and thought he did well). It was too predicated on JPMorgan paying “the largest financial fine in history,” when this accords way too much respect to the game the Justice Department is playing here.

At some level, this just transfers the fine from JPM shareholders over to taxpayers. But notice that the portion of the fine in dispute, the WaMu holdings, refers to the 2011 FHFA lawsuit over mortgage-backed securities purchases. Earlier we learned that, of the $7 billion hard-money fine, $6 billion comes from that lawsuit.

The Justice Department is leading the mortgage-securities negotiations, which also include the Federal Housing Finance Agency and New York Attorney General Eric Schneiderman.

The FHFA has asked J.P. Morgan to pay more than $6 billion to settle claims the bank misled mortgage-finance companies Fannie Mae and Freddie Mac about the quality of mortgages it sold to them during the housing boom.

The fact that half of the fine would deal with WaMu’s liability in that FHFA lawsuit confirms that this is the model.

If so, the way in which this is being presented by Justice and the New York AG is remarkable in its deceitfulness. This is supposed to be a “global settlement” on all of JPM’s mortgage-backed securities exposure. In reality, they’re settling the FHFA lawsuit, the one that would be really damaging as a precedent and lead to all sorts of private litigation, and Justice and Schneiderman are piggy-backing their lawsuits on top, for pennies, to attach themselves like barnacles to a big settlement number. This includes Schneiderman’s Bear Stearns lawsuit, DoJ’s investigation over mortgage bond purchases, any misrepresentations to investors, etc. That represents $1 billion of a $7 billion figure.

Moreover, since this is being described as a “global” settlement, you can bet that all the other misconduct will never get a look from DoJ again. That’s the whole point – it’s a “pay for peace” deal. While Jamie Dimon isn’t technically out of the woods – and the presence of a whistleblower inside the company as well as the imminent extradition of Javier Martin-Artajo should make him sweat – in reality, Justice will take a victory lap and forget about JPMorgan Chase for a while. And their vaunted “financial fraud task force” investigation will have amounted to next to nothing – it’s the FHFA case that’s the big kahuna here.

Even if you accept this fine on its own terms as punitive, you have to thank the FHFA for that outcome. And that’s where the “liberal” housing groups who have been savaging Ed DeMarco for years look particularly shameful. There’s no question that DeMarco’s stubbornness against principal reduction has been misguided, but you have to look at the whole picture. As a conservator for Fannie and Freddie, what fits his job title most perfectly is for him to recoup money from banks who swindled the GSEs with their mortgage bonds. And the 2011 lawsuit against 17 banks has quietly yielded fruit. In the past week, Citi paid $395 million to Freddie Mac and Wells Fargo paid Freddie $869 million. Those are over direct mortgage purchases, but it’s on top of several other settlements, both on mortgages and mortgage securities, worth several billion over the years. Even the Justice Department’s civil lawsuit against Bank of America, seen as the first between the government and a mega-bank over what caused the financial crisis, is about mortgages purchased by Fannie and Freddie. The GSEs are profitable now because of their dominance over the mortgage market. But these successful putback cases relieved taxpayers as well.

And while I don’t think much of the $4 billion in mortgage relief in this settlement, if you take it at face value, that’s over twice as much as the benefit to homeowners if DeMarco allowed principal reduction over his preferred option of principal forbearance.

So I’m wondering when liberal housing groups like The New Bottom Line, the Home Defender’s League, The Center for Responsible Lending, the Campaign for a Fair Settlement and more will apologize to Ed DeMarco. I know they’ve called him the “single person holding back the economic recovery,” but his efforts to hold banks who passed bad mortgages to Fannie and Freddie accountable has had a more positive economic impact than anything they’re calling for. Not to mention the fact that creating an actual deterrent for financial fraud by making it unprofitable will do far more to help homeowners than anything else.

I eagerly await the contrite press releases.

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About David Dayen

David is a contributing writer to Salon.com. He has been writing about politics since 2004. He spent three years writing for the FireDogLake News Desk; he’s also written for The New Republic, The American Prospect, The Guardian (UK), The Huffington Post, The Washington Monthly, Alternet, Democracy Journal and Pacific Standard, as well as multiple well-trafficked progressive blogs and websites. His has been a guest on MSNBC, CNN, Aljazeera, Russia Today, NPR, Pacifica Radio and Air America Radio. He has contributed to two anthology books, one about the Wisconsin labor uprising and another on the fight against the Stop Online Piracy Act in Congress. Prior to writing about politics he worked for two decades as a television producer and editor. You can follow him on Twitter at @ddayen.


  1. down2long

    Great post David.

    IIf Chase disgorges all the money it has made on the WaMu transaction (and as Yves and now the NY Times have confirmed, Slimin’ tried to buy WaMu several months before it tanked when the FDIC basically gave it all of WaMuks asets, including a $40 billion loan portfolio for free) and then braged about it in the annual report – the FDIC should refuse. Not that they wil – Obeyme will see to that.

    The only people who have sen justice from Chase’s rapacious liquidation of the WaMu portfolio are Michiganders where the michigan Supreme court made Chase pay over $2 billion to foreclosed upon homeowners because Chase never legally transferred title from the FDIC to themselves. Such was Slimin’s rush to cash out that portfolio.

    This Slimin’ scenario is quite nauseating at this point. We will never see this scoundrel brought low. As William Black points out, no good will come of all these bankster perps going unpunished. The lamppost is too quick, but I can make do if that’s all we get. To see Slimin’ disgraced, silent, and – dare I say it – SHAMED would be better. In the stocks, humiliated, would be divne.

  2. Glen

    Private meetings with the AG and the President? One can only hope that Obama is dumb enough to nominate Dimon for the head of the Fed.

  3. down2long

    From CNN, “Obama originally scheduled the meetings [with the bankster hoodlums including Slimin’ Dimon, AIG’s Benmosche, Goldman’s Blankfein, Wells’ Stumpf) to “MEND FENCES.” WTF???

    Dear God, to quote Edward R. Murrow: “Have you no shame, sir:”


    I am in a tizzy. This “crisis” is bringing the vermin out of the woodwork, and has the pigs at the trough waiting for their government slop getting very impatient indeed.

    The CEOs are very unhappy they are not getting their Treasury handouts, and this must be rectified. However will they show “profits” and get “bonuses.”

    It is to vomit. Seriously, good night folks.

    1. participant-observer-observed

      Alas, we see the president not satisfied to rent out his own backside, but throwing in those of the tax-paying public as a bonus.

      It reminds me of the female slaves put on the for-sale block naked in public, so as to have their private parts examined by their prospective owners.

      There’s your platinum coin, newly minted in Dimon’s whorehouse, graced with the prostitute-in-chief’s face!

      1. down2long

        I agre with you, and te visial makes me cringe on so many levels.

        On a lighter note, but still relevant;

        Judge to weeping woman (or taxpayers) “When did you realize you’d been raped?”
        “When tbe check bounced” wailed the prostitute.

    2. D12345

      Just to keep memory alive.

      The actual quote is “Have you no sense of decency” by Joseph Welch, who was counsel for the army in the televised hearings.

      When Welch was interviewed later by Murrow he quoted himself as having said, “have you no shame?”

      But the actual quote is…”Let us not assassinate this lad further, Senator. You have done enough. Have you no sense of decency sir, at long last? Have you left no sense of decency?”


      Great article by DD who is invaluable!!!!!

  4. indio007

    After reading this article I am in fear of my head exploding.

    Just how long can we take this open criminality?

  5. Knute Rife

    In late 2006, as the first whispers of the meltdown became audible, Chase decided it didn’t like a number of lines of credit it had issued to several small businesses and unilaterally converted them to 5-year-amortization loans. Some of the businesses came to me for help. While I was trying to sort all this out, I had two executive-level VP/AGCs for Chase baldly lie to me about the terms of the lines of credit and the disclosures that had been made. Nothing happened to them or to Chase, but I had two goons from a large firm I used to work for threaten me for pursuing Chase and potentially conflicting them out of representing Chase. Of course there was in fact no such conflict problem, just Biglaw following orders from its masters to intimidate the little guys. They probably thought they succeeded, but actually my clients were just broke, and I couldn’t afford to do it as a charity gig. And there certainly was no point in going to the “regulators”, as their noses were so far up the big banks’ backsides all you could see were the soles of their feet. That’s how the players win.

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