Commentators have complained for some time that some lenders steered borrowers who could have qualified for prime loans to more expensive subprime loans. Unsophisticated borrowers who don't shop around for loans or don't realize what their loans actually cost them can end up paying far more than they need to, and in some cases, the higher payments may even have proved unaffordable, thus triggering defaults. But are the commentators right? On Sunday, the Times ran an article, Bank Accused of Pushing Mortgage Deals on Blacks, about affidavits in Baltimore's suit against Wells Fargo claiming that Wells Fargo engaged in steering. So I asked my research assistant, Cameron Fee, to see if he could come up with the affidavits. Here, as one example, is some of what former Wells Fargo loan officer and sales manager Elizabeth M. Jacobson stated in her affidavit:
8. The commission and referral system at Wells Fargo was set up in a way that made it more profitable for a loan officer to refer a prime customer for a subprime loan than make the prime loan directly to the customer. The commission and fee structure gave the A rep a financial incentive to refer the loan to a subprime loan officer. Initially, subprime loan officers had to give 40% of the commission to the A rep who made the referral; later on A reps received 50 basis points of the available commission, Because commissions were higher on the more expensive subprime loans, in most situations the A rep made more money if he or she referred or steered the loan to a successful subprime loan officer like me. A reps knew about my success in qualifying customers for subprime loans; as a result, I received hundreds of referrals.
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Because I worked on the subprime side of the business, once I got the referral the only loan products that I could offer the customer were subprime loans. My pay was based on the volume of loans I completed. It was in my financial interest to figure out how to qualify referrals for subprime loans. Moreover, in order to keep my job, I had to make a set number of subprime loans per month.
11. Wells Fargo, like any other mortgage company, had written underwriting guidelines and pricing rules for prime and subprime loans. There was, however, more than enough discretion to allow A reps to steerprime loan customers to subprime loan officers like me. Likewise, the guidelines gave me enough discretion to figure out how to qualify most of the referrals for a subprime loan once I received the referral.
12. In many cases A reps used their discretion to steer prime loan customers to subprime loan officers by telling the customer, for example, that this was the only way for the loan to be processed quickly; that there would be less paperwork or documentation requirements; or that they would not have to put any money down. Customers were not told about the added costs, or advised about what was in their best interest.
13. Once I received a referral from an A rep, I had discretion to decide which subprime loan products to offer the applicant. Most of the subprime loans I made were 2/28s. * * * These loans typically included a prepayment penalty for two or three years which ultimately made it more difficult for the borrower to refinance later out of the loan. * * * I know that some loan officers encouraged customers to apply for these loans by telling them that they should not worry about the pre-payment penalty because it could be waived. This was not true--the pre-payment penalty could not be waived.
14. According to company policy, we were not supposed to solicit 2/28 customers for re-finance loans for two years after we made a 2/28 subprime loan. Wells Fargo reneged on that promise; my area manager told his subprime loan officers to ignore this rule and go ahead and solicit 2/28 customers within the two year period, even though this violated our agreement with secondary market investors. The result was that Wells Fargo was able to cash in on the pre-payment penalty by convincing the subprime customer to refinance . . . .
18. I also know that there were some loan officers who did more than just use the discretion that the system allowed to get customers into subprime loans. Some A reps actually falsified the loan applications in order to steer prime borrowers to subprime loan officers. * * *
Some states have statutes barring steering. See, e.g., Cal. Fin. Code § 4973(l)(1). I have a feeling that we're going to see more states enacting such statutes soon. Even if Maryland lacks such a statute, some of the conduct described above sounds fraudulent or likely to violate a UDAP statute. I wonder what the OCC thinks about all this. Here's a statement from an OCC statement we quoted back in 2008:
Almost everyone who has paid attention to the subprime lending crisis has concluded that OCC-regulated national banks were not the problem. Instead, the worst abuses came from loans originated by state-licensed mortgage brokers and lenders that are exclusively the responsibility of state regulators
The full affidavit, by the way, also describes how Wells Fargo targeted African-American communities; hence, the Times headline.