In the wake of shifting banking regulations and increased scrutiny on the housing market, mortgage fraud has become a primary target for federal and state law enforcement agencies. Because these financial crimes often involve complex webs of lending metrics, property appraisals, and institutional paperwork, a legitimate business transaction or a minor paperwork oversight can easily be misconstrued as intentional deception. Whether an investigation stems from alleged industry insider schemes such as equity skimming and property flipping or from individual misrepresentations in a loan application, the legal stakes are exceptionally high. Navigating these aggressive prosecutions under federal statutes like 18 U.S.C. § 1014 requires an immediate, sophisticated defense strategy to safeguard your assets, protect your professional license, and preserve your liberty.
For well over a decade, and prior to the recent explosion of mortgage fraud investigations and prosecutions, Houston Criminal Defense Attorney John T. Floyd has represented individuals and businesses charged with, or under investigation for, criminal activity associated with the mortgage loan industry. Mr. Floyd has been relied upon and quoted in national news publications and on financial news networks for his experience and expertise in the mortgage fraud arena.
The FBI reports that “the increased reliance by both financial institutions and non-financial institution lenders on third-party brokers has created opportunities for organized fraud groups, particularly where mortgage industry professionals (“insiders”) are involved.”
The FBI has consolidated all its “mortgage fraud” programs within its Financial Institution Fraud Unit to protect the impact that the mortgage lending industry and housing market have on the nation’s economy. Mortgage fraud investigations have dramatically increased over the past five years. The agency reports that every mortgage fraud scheme involves some type of “material misstatement, misrepresentation, or omission relating to the property or potential mortgage relied on by an underwriter or lender to fund, purchase, or insure a loan.”
The potential for fraud is evident by the amount of money involved in underwriting the housing industry over the past decade. The Mortgage Bankers Association reported that an estimated $2.37 trillion will be made in mortgage loans in 2006. Through Suspicious Activity Reports (SARs) filed by federally insured financial institutions and the Department of Housing and Urban Development Office of Inspector General (HUD-OIG), the FBI compiles data on mortgage fraud and gathers additional data from the mortgage industry itself. The FBI cites the difficulties faced in developing mortgage fraud cases:
“A significant portion of the mortgage industry is void of any mandatory fraud reporting. In addition, as initial mortgage products are repackaged and sold on secondary markets, the sale of the mortgages often conceals or distorts the fraud, preventing it from being reported. Therefore, the true level of Mortgage Fraud is largely unknown. The mortgage industry itself does not provide estimates on total industry fraud. However, based on various industry reports and FBI analysis, Mortgage Fraud is pervasive and growing.
“The FBI investigates Mortgage Fraud in two distinct areas: Fraud for Profit and Fraud for Housing. Fraud for Profit is sometimes referred to as “Industry Insider Fraud,” and the motive is to reverse equity, falsely inflate the property’s value, or issue loans based on fictitious properties. Based on existing investigations and Mortgage Fraud reporting, 80 percent of all reported fraud losses involve collaboration or collusion by industry insiders.”
Fraud for Housing is illegal conduct by the borrower, motivated by the desire to acquire and own a home, carried out under false pretenses. This type of fraud is usually committed by a borrower who misrepresents income or employment history to qualify for a loan.
Fraud for Housing is almost a misdemeanor compared to the predatory lending practices that affect borrowers in Fraud for Profit cases. “Predatory lending typically affects senior citizens, lower-income and challenged-credit borrowers,” reports the FBI. This type of lending forces borrowers to pay sub-prime or higher interest rates, exorbitant loan origination/settlement fees, and unreasonable service fees in some states. These predatory lending practices frequently force borrowers to default on their mortgages, leading to foreclosure, or into unfavorable refinancings.
There are many varied mortgage fraud schemes, some of which are enormously complex, as the one outlined by the Second Circuit in Amico (cited below). Because of a sudden explosion of sophisticated mortgage fraud schemes in recent years, the FBI and the mortgage industry found themselves behind the eight ball and were forced to accelerate their joint efforts to identify fraud trends and educate the public about them. The two most recent trends are listed below:
The FBI since 1999 “has been actively investigating Mortgage Fraud in various cities across the U.S. The FBI also focuses on fostering relationships and partnerships with the mortgage industry to promote awareness of mortgage fraud. To raise awareness of this issue and provide easy access for investigative personnel, the FBI has provided points of contact to relevant groups, including the Mortgage Bankers Association (MBA), the Mortgage Asset Research Institute, the Mortgage Insurance Companies of America, Fannie Mae, Freddie Mac, and others.
“The FBI has also been working to establish broader SAR reporting requirements for mortgage lenders who do have adequate protection under the current safe harbor provisions. The FBI is collaborating with the mortgage industry and Financial Crimes Enforcement Network (FinCEN) to create a more productive reporting requirement for Mortgage Fraud. The FBI has also been working with the FinCEN to promote an efficient and effective method of identifying and reporting fraudulent mortgage activity affecting non-federally insured mortgage institutions.”
While there are many different mortgage fraud schemes, the FBI is focusing its primary efforts on weeding out those supported by industry insiders. The agency works closely with both individual lenders and national associations such as the MBA, Appraisal Institute, National Association of Mortgage Brokers, and the National Notary Association to identify and target these insiders. This close cooperation with lenders has proven invaluable to the FBI. In 2003, the agency worked with Real Estate Owned properties from lender inventories to initiate an undercover operation in Jacksonville, Florida. Ten months later, the FBI, armed with seven warrants, arrested a mortgage broker named J.R. Parker and a closing attorney named Dale Beardsley in connection with a mortgage fraud scheme. In October 2005, both men were convicted of conspiracy, mail fraud, and wire fraud– and the government seized two homes valued at $1 million each, six luxury cars, and secured a money judgment in the amount of $14 million. The FBI tries to employ the same model of cooperation with local financial institutions across the country to make mortgage fraud cases.
The FBI reports that a “regional analysis of suspicious activity reports (SARS) indicating Mortgage Fraud violations indicates the West region of the U.S. led the nation with 35.9 percent of Mortgage Fraud-related SARs filed during FY 2006. The Central, Southeast, and Northeast regions accounted for 24.7, 22.6, and 16.9 percent of Mortgage Fraud-related SAR filings, respectively. However, FBI pending cases indicated that the Central region had the largest share of Mortgage Fraud cases, at 33.3 percent in 2006. The West, Southeast, and Northeast had 26.7%, 27.2%, and 12.8%, respectively. FBI pending cases by region are consistent with Mortgage Asset Research Institute (MARI) reporting which indicated that five of the top ten Mortgage Fraud affected states in 2006 were located in the Central region.” The following is a yearly listing of the number of mortgage fraud SARS received and the dollars lost in millions:
Mortgage Fraud:
Commercial Loan Fraud:
False Statement:
The following is a list of mortgage fraud indicators compiled by the FBI and lender institutions:
Mortgage fraud has contributed significantly to the housing market collapse in 2006/2007. Homeowners were driven by a “fool’s gold” belief that their homes were worth more than they actually were, and lenders were eager to underwrite “risky” loans to those who wanted a piece of the “housing boom.” It created a climate ripe for fraud. In addition to the equity skimming and property flipping schemes, the FBI has listed other popular mortgage fraud schemes prevalent in record years:
Air loans – a non-existent loan where there is no collateral. A broker generally invents borrowers and properties, maintains accounts for payments, and has custodial accounts for escrows. The broker sets up an office with telephones for the employer, appraiser, credit agency, etc., for verification purposes.
Mortgage fraud is defined and prohibited in 18 U.S.C.A. § 1014:
“Whoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of the Farm Credit Administration, Federal Crop Insurance Corporation or a company the Corporation reinsures, the Secretary of Agriculture acting through the Farmers Home Administration or successor agency, the Rural Development Administration or successor agency, any Farm Credit Bank, production credit association, agricultural credit association, bank for cooperatives, or any division, officer, or employee thereof, or of any regional agricultural credit corporation established pursuant to law, or a Federal land bank, a Federal land bank association, a Federal Reserve bank, a small business investment company, as defined in section 103 of the Small Business Investment Act of 1958 (15 U.S.C. 662), or the Small Business Administration in connection with any provision of that Act, a Federal credit union, an insured State-chartered credit union, any institution the accounts of which are insured by the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, any Federal home loan bank, the Federal Housing Finance Board, the Federal Deposit Insurance Corporation, the Resolution Trust Corporation, the Farm Credit System Insurance Corporation, or the National Credit Union Administration Board, a branch or agency of a foreign bank (as such terms are defined in paragraphs (1) and (3) of section 1(b) of the International Banking Act of 1978), or an organization operating under section 25 or section 25(a) of the Federal Reserve Act, upon any application, advance, discount, purchase, purchase agreement, repurchase agreement, commitment, or loan, or any change or extension of any of the same, by renewal, deferment of action or otherwise, or the acceptance, release, or substitution of security therefore, shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. The term ‘State-chartered credit union’ includes a credit union chartered under the laws of a State of the United States, the District of Columbia, or any commonwealth, territory, or possession of the United States.”
59 C.J.S. Mortgages § 123 (2007) sets forth the following circumstances under which “mortgage fraud” may be perpetrated in a civil law context and the requirements necessary to establish fraud in a criminal case:
Mortgage fraud schemes in criminal cases are generally complex. The Second Circuit Court of Appeals in United States v. Amico, 416 F.3d 163 (2nd Cir. 2005) discussed such a scheme involving a number of individuals:
“Peters participated in a complex scheme to defraud federally insured banks and private mortgage lenders by using false information to obtain mortgages at inflated prices. In his role as a mortgage broker, Peters knowingly submitted loan applications containing false information to lenders. He also knowingly failed to report income on his tax returns and made material misrepresentations in his children’s applications for college grants…
”As for the defendant’s objection to the court’s application of the sophisticated means enhancement, U.S.S.G. § 2F1.1(b)(6)(C), there can be no doubt that the mortgage fraud scheme was highly complex. Peters’ counsel conceded before the district court that the scheme involved sophisticated means designed to prevent detection. These included the creation of false bank documents; the solicitation and creation of false appraisals; the creation of false blueprints; submission of false blueprints to town officials in order to inflate the assessment of comparable home values; collusion with the attorney representing many of the purchasers at closing; and other tactics designed to conceal the scheme…”
In a companion case involving some of the same individuals, the Second Circuit in United States v. Amico, 486 F.3d 764 (2nd Cir. 2007) elaborated further on the mortgage fraud scheme outlined above:
Edward M. Gramlich, a Federal Reserve official who wrote extensively about the housing/mortgage industry, put out early warning signals in May 2004 about a potential housing industry collapse when he declared that “increased sub-prime lending has been associated with higher levels of delinquency, foreclosure and, in some cases, abusive lending practices.” As early as 2000, Gramlich was encouraging then-Fed Chairman Alan Greenspan to increase “oversight” of subprime lending, to no avail.
A new report from Congress’ Joint Economic Committee predicts 2 million sub-prime foreclosures by the end of 2007. Investors such as Merrill Lynch, who bought assets backed by sub-prime loans, have been forced to write off many of the loans at staggering losses – $8.4 billion for Merrill Lynch alone. Greed fueled the sub-prime fiasco – in 2003, sub-prime lending accounted for only 8.5 percent of the value of mortgages in this country, but in 2005-06, during the peak of the housing boom, sub-prime lending accounted for 20 percent of the total value of mortgages.
Just before his death from cancer, Gramlich wrote that the “sub-prime market was the Wild West. Over half the mortgage loans were made by independent lenders without any federal supervision.”
“Why are the most risky loan products sold to the least sophisticated borrowers,” Gramlich asked in his final paper. “The question answered itself – the least sophisticated borrowers are probably duped into taking these products [and] the predictable result was carnage.”
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An investigation into mortgage lending practices can quickly put your career, financial assets, and freedom on the line. Do not attempt to explain your business practices to federal investigators or state prosecutors without an experienced advocate by your side. The John T. Floyd Law Firm delivers aggressive, sophisticated white-collar defense to individuals and corporate entities facing high-stakes financial allegations. Contact our Houston office today at 713-224-0101, email us at jfloyd@johntfloyd.com, or visit us at 3730 Kirby Drive, Suite 750, Houston, Texas 77098 to schedule a confidential consultation and start building your defense strategy.
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