Mortgage News for 8/7/2020
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A federal appeals court has overturned the convictions of two California men sentenced to federal prison in 2018 for allegedly participating in an $11.3 million mortgage scam.
In 2018, Maher Obagi and Mohamed Salah were sentenced to 78 months and 57 months, respectively, in federal prison, and each was ordered to pay millions of dollars in restitution. Now the Ninth Circuit Court of Appeals has tossed their convictions, citing prosecutors’ failure to let the jury know one of its chief witnesses had major credibility problems.
Prosecutors claimed that Obagi and Salah, as employees of mortgage broker Excel Investments, participated in a scheme that involved finding condo developments in which the builders were struggling to sell units, then arranged with the builders to purchase multiple units at a discount through straw buyers. They and their alleged co-conspirators were also accused of preparing phony loan applications for the straw buyers and concealing kickbacks.
Several other defendants were charged and convicted in connection with the scheme, which resulted in $10 million in losses for mortgage lenders and at least $1.3 million in losses for Fannie Mae and Freddie Mac. However, the cases against Obagi and Salah depended heavily upon the testimony of a particular witness – a witness the prosecution knew was unreliable, according to the Ninth Circuit Court.
During the trial, the government called several cooperating witnesses “with significant credibility problems,” Circuit Court Judge John B. Owens wrote in the appeals court’s ruling. Among those witnesses was escrow officer Jacqueline Burchell, who testified that Obagi had directed her to conceal kickback payments and had overheard conversations about kickbacks between Obagi and Salah.
“But Burchell pled guilty in this investigation, participated in a separate mortgage fraud scheme, and perjured herself in a civil deposition,” Owens wrote.
“So to bolster her credibility – as well as that of other cooperating witnesses – the government also presented three Excel witnesses who purportedly never had cut a deal to avoid prosecution.”
One of those witnesses was Halime “Holly” Saad, another Escrow officer. Saad’s testimony was key to the government’s case, with the prosecution later describing it as going “right to the heart of what was happening at Excel during all the events set forth in the indictment.” And during the closing arguments, the government – in order to blunt the defense’s attack on potentially unreliable witnesses like Burchell – heavily emphasized Saad’s testimony, stressing that she had entered into no agreement or deal with the government in exchange for her testimony.
“Unfortunately, one of the prosecution’s key tenets during closing – that the jurors could trust the culpable cooperators because they could trust Saad as an independent corroborating witness – was false,” Owens wrote.
“During a break between Obagi’s and Salah’s defense closings, a different prosecutor from the U.S. Attorney’s Office who just happened to watch the closing arguments recognized that Saad had in fact received immunity in a separate mortgage fraud investigation and alerted the trial prosecutors to the enormous oversight.”
In short, the government’s supposedly reliable witness had been implicated in an entirely different mortgage scam. That revelation – in the middle of closing arguments –
“placed the defense counsel and the trial judge in an impossible position,” Owens wrote.
The judge allowed the closing arguments to proceed, while instructing the jury that Saad had previously received immunity
“and thereafter, she may have knowingly made false statements to the FBI.”
However, the damage was done. Obagi and Salah were both convicted. Although Owens said that the trial judge made “a noble effort” to protect the defendants’ rights without resorting to a mistrial, “it was too late – the genie was out of the bottle.”
“Not only had the government’s closing argument theme been cast – the jury could trust Burchell and the other cooperators because Saad was an ‘independent witness’ who reliably corroborated Burchell – but Obagi’s own counsel had completed closing argument without the benefit of being able to attack Saad’s credibility. Asking defense counsel to reframe his theory of the case – both in terms of examining witnesses and arguing to the jury – after he had spoken to the jury for the last time was simply too much.”
The appeals court found that there was “a reasonable likelihood” that the evidence impeaching Saad’s credibility could have affected the jury’s original decision. The convictions of Obagi and Salah were reversed and the case remanded to district court for further proceedings.
Source: Mortgage Professional America 8-7-20 Author: Ryan Smith
As homeowners and other borrowers seek debt relief during the coronavirus pandemic, America’s four largest banks report at least $151.5 billion in loans with payments in deferral at midyear, Bloomberg L.P. reported.
JPMorgan Chase & Co., Bank of America Corp., Citigroup Inc., and Wells Fargo & Co. disclosed deferral details within their second-quarter filings with the U.S. Securities Exchange Commission.
“Uncertainty over the length of the pandemic and resulting economic crisis have made it difficult for banks to determine how many loans are likely to sour,” noted Stephen Lubbers for Bloomberg L.P.
“JPMorgan, Bank of America, Citigroup and Wells Fargo set aside more than $32 billion for loan losses in the second quarter, close to a record, signaling that relief programs may not be enough to stave off a flood of bad debt.”
Deferral programs differ among account types and banks. JPMorgan Chase & Co., for example, has offered clients rolling, three-month deferrals for up to a year on residential mortgages.
The four biggest U.S. banks vary on how they report payment deferrals and loan modifications, and the total balance of financing with deferred payments is likely higher than the aforementioned $151.5 billion.
Deferrals on residential mortgages and home-equity loans were a common theme for all four banks. The majority of Wells Fargo’s consumer deferrals were on a combined $35 billion of first and second mortgages, representing 12% and 10% of each loan type, respectively. Almost 9% of JPMorgan’s residential real estate portfolio was subject to payment deferrals, representing nearly three-quarters of the total $28.3 billion of consumer loans in deferral.
Wells Fargo reported $44.2 billion of consumer loans in deferral at midyear. The bank reported only that it modified $38.2 billion of commercial loans without disclosing the amount remaining in deferral by June 30.
At Citigroup, consumer credit cards represented the largest portion of modified loans, with $6.9 billion of debt enrolled in deferral programs, or 5% of its North American credit-card business. The bank modified about $20 billion of consumer loans globally as of June 30. Bank of America, which provided figures as of July 23, was deferring payments on $7.7 billion in commercial loans and $28.5 billion in consumer and small-business debt.
Last spring, reportedly, millions of households narrowly avoided financial devastation thanks to rapidly rolled-out forbearance programs, part of an effort to avert a massive wave of defaults by borrowers who began losing income when states locked down commerce to slow the virus.
Source: MReport 8-6-20 Author: Christina Hughes Babb
Intercontinental Exchange, operator of global exchanges and clearing houses and provider of mortgage technology, data, and listing services, announced today that it has entered into a definitive agreement to acquire Ellie Mae, mortgage-software firm, from private equity investment firm Thoma Bravo.
Thoma Bravo values Ellie Mae at approximately $11 billion.
“We partnered with ... the Ellie Mae team to advance their vision to automate the residential mortgage industry while also using Thoma Bravo’s deep software expertise to greatly improve the company’s operations and accelerate growth,” said Holden Spaht, a Managing Partner at Thoma Bravo.
“We are confident that being part of ICE will enable Ellie Mae to continue transforming an industry still in the early innings of digitization, and we look forward to following Ellie Mae’s continued success as part of ICE for many years to come.”
The deal will strengthen ICE's focus on mortgage services, the company says, and it represents a dedication to the digitization of the U.S. mortgage industry—an industry in which the entire production chain, from lead generation to application, to pre-closing, to closing, to post-closing, has traditionally been a highly document-centric and manual process. ICE intends to automate the post-closing process with the addition of Ellie Mae.
It is a
“enhance ICE’s growth strategy in mortgage technology,” Jeffrey Sprecher, Chairman and Chief Executive of ICE, said in a statement.
“Twenty years after we founded Intercontinental Exchange to provide a transparent trading platform for the energy industry, and following two decades of providing continued innovation to help customers navigate global markets, we are pleased to announce the acquisition of Ellie Mae, which will help us similarly transform the mortgage marketplace,” Sprecher said.
Jonathan Corr, President and CEO of Ellie Mae said he is excited "to be joining the Intercontinental Exchange family and having the opportunity to work closely with Simplifile and MERS in helping our industry to realize the true digital mortgage."
“We have been on a journey, as we have long said, ‘to automate everything automatable’ for the mortgage industry, and joining ICE, which has followed a parallel journey in global exchanges, will allow us to further accelerate realizing our vision. We also greatly appreciate, and have significantly benefited from, the operational and strategic support from Thoma Bravo. They were instrumental in helping us achieve this outcome, which is a great one for our customers and the industry in general."
Source: MReport 8-6-20 Author: Christina Hughes Babb
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