Burning Down the House: Mortgage Fraud and the Destruction of the US
Total Page:16
File Type:pdf, Size:1020Kb
The author(s) shown below used Federal funds provided by the U.S. Department of Justice and prepared the following final report: Document Title: Working Paper: Burning Down the House: Mortgage Fraud and the Destruction of Residential Neighborhoods Author: Ann Fulmer Document No.: 229912 Date Received: March 2010 Award Number: N/A This report has not been published by the U.S. Department of Justice. To provide better customer service, NCJRS has made this Federally- funded grant final report available electronically in addition to traditional paper copies. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. D R A F T Burning Down the House: Mortgage Fraud and the Destruction of Residential Neighborhoods Mortgage fraud is bank robbery without a gun.1 It is a high-yield,2 low risk enterprise that has been reported in all 50 states, Puerto Rico, Guam, American Samoa,3 Canada,4 New Zealand,5 Australia,6 and England.7 In the United States, it is committed by organized international and domestic rings,8 street gangs,9 terrorists,10 drug traffickers,11 real estate agents,12 closing attorneys,13 appraisers,14 mortgage brokers,15 1 The targeted victims distinguish mortgage fraud from predatory lending. In predatory lending cases the borrower is victimized by the illegal practices of the lender or its agents with respect to fees and disclosures relating to the cost of the loan. It is unfortunate that the media, consumer activists, legislators and law enforcement personnel frequently conflate mortgage fraud with predatory lending since it adds unnecessary confusion to an already complex issue and diverts attention and badly needed resources from the fight against true mortgage fraud. 2 The average “take” on a bank robbery is approximately $3,000.00. By contrast, the average straw borrower receives a “cut” of at least $10,000 and the orchestrator’s “take” in a mortgage fraud transaction frequently exceeds $100,000. In a few cases the orchestrator’s take was in excess of $1 million dollars, and in one, the perpetrator, who later fled the country, received $7 million in “profit” from the same-day flip of a mansion. 3 Financial Crimes Enforcement Network, “Mortgage Loan Fraud: An Industry Assessment Based on Suspicious Activity Report Analysis,” November 2006 at 10. http://www.fincen.gov/news_room/rp/reports/pdf/mortgage_fraud112006.pdf (accessed March 8, 2009). 4 See, e.g., “Due Diligence: The Growing Problem of Mortgage Fraud), CBC News, November 9, 2006. http://www.cbc.ca/news/background/mortgage-fraud/ (accessed January 4, 2010). 5 See, e.g., Anne Gibson, “Agents on Charges for House Fraud Sale,” New Zealand Herald, December 26, 2006. http://www.nzherald.co.nz/property/news/article.cfm?c_id=8&objectid=10361509 (accessed January 4, 2010). 6 See, e.g., “Australia Targeted by Card Skimming Gangs,” October 14, 2009. http://www.abc.net.au/news/stories/2009/10/14/2714003.htm?section=australia (accessed January 4, 2010). 7 See, e.g., Richard Edwards and Myra Butterworth, “Toxic Debt Could Have Come from Massive Mortgage Frauds,” The Daily Telegraph, March 10, 2009. http://www.telegraph.co.uk/finance/financetopics/financialcrisis/4970457/Toxic-debt- could-have-come-from-massive-mortgage-frauds.html (accessed January 4, 2010). 8 See, e.g., U.S. v. Bowens, 2:07-CR-00544 (D.Ariz. 2007) (defendants convicted of scheme conducted over five years in three states involving 19 properties and 10 vehicles). 9 See, e.g., David Jackson, “Mortgage Fraud is the Thing to Do Now,” Chicago Tribune, Nov. 5, 2005. 10 See, e.g., U.S. v. Omar, 2:06-CR-756, superseding indictment (D. Utah 2006), and Patrick Poole, “Mortgage Fraud Funding Jihad,” FrontPageMag.com, April 11, 2007. http://www.frontpagemagazine.com/articles/Read.aspx?GUID=2FB5D093-D93D-404B-B4CD-AEEA3DB9CEBF (accessed March 8, 2009). 11 See, e.g., United States Immigration and Customs Enforcement press release, Nov. 19, 2008. http://www.ice.gov/pi/nr/0811/081119newyork.htm (accessed March 8, 2009). 12 See, e.g., U.S. v. Rice, 1:2002-CR-00691 (N.D. Ga. 2002). 13 See, e.g., U.S. v. McFarland, 1:04-CR-224 (N.D. Ga. 2004) (superseding indictment); U.S. v. Sprouse, 3:07-CR-211 (W.D. N.C. 2007) (fourth superseding indictment). 14See, e.g., U.S. v. Ross, 5:06-CR-40068 (Kan. 2006) (first superseding indictment). 15See, e.g., U.S. v. Hooker, 2:05-CR-80897 (E.D. Mich. 2005). This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice. bank executives,16 ministers,17 teachers,18 policemen,19 and, frequently, neophyte property investors.20 In the federal courts, mortgage schemes are charged as bank fraud,21 mail fraud,22 and wire fraud23 and, depending on the specific structure of the scheme, conspiracy to commit bank fraud,24 money laundering,25 aggravated identity theft,26 bankruptcy fraud,27 and/or false statements.28 A handful of states have statutes that address mortgage fraud as a specific crime,29 but in most state courts it is charged, if at all, as theft or grand larceny. Although the variety of schemes is infinite and limited only by the human imagination,30 they are generally classified as either fraud-for-profit or fraud-for housing. 16 See, e.g., U.S. v. Gordon, 08-21103-Jordan (S.D. Fla. 2008) (bank’s managing director altered individual’s credit data to inflate mortgage pools’ apparent quality and value upon sale to investors); U.S. v. Levine, 1:09-CR-00554 (N.D. Ga. 2009) (executive vice president in charge of bank’s community redevelopment lending department accused of knowingly over-valuing bank assets (loans to flippers) in reports to the OCC and the FDIC; the defendant is expected to plead guilty in January, 2010).. 17 See, e.g., U.S. v. Sailor, 1:08-CR-105, superseding information (N.D. Ga. 2008). 18 See, e.g., U.S. v. Sprouts, 2:08-CR-0051 (W. D. Pa. 2008). 19 See, e.g., U.S. v. Culp, 3:08-CR-00055 (N.D. Ind. 2005). 20 “Investor” borrowers on known fraud loans typically report that they were lured into the scheme by perpetrators who offered hands-off “turnkey” investment programs. The perpetrators promised to acquire the properties at less than market value with cash back to the borrower/investor at closing, to rehab the properties, to find tenants at a monthly that would provide passive monthly income in excess of the mortgage payment, and to manage the property for a year, after which the property could be sold at a profit. After the properties were purchased, the perpetrators severed all contact with the investors, who then discovered that the purchase price was substantially above market value, that properties had not been rehabbed (or that only cosmetic repairs had been made and that the value of the work was inflated), that the properties could not be rented at an amount sufficient to service the mortgage, much less for a monthly profit, and that the property could not be sold for what was owed on the mortgage. These novice investors also report that they believed the perpetrator’s claims because they had watched A&E’s “Flip This House” program and/or the Carleton Sheets “no money down, cash back at closing” infomercials, which gave them the impression that real estate investing was both easy and profitable, and which made the schemes proposed by the perpetrators seem both legal and credible. 21 18 U.S.C. § 1344. 22 18 U.S.C. § 1341. 23 18 U.S.C. § 1343. 24 18 U.S.C. § 1349. 25 18 U.S.C. § 1956 and 18 U.S.C. §1957. 26 18 U.S.C. § 1028(A). 27 18. U.S.C. § 157 and 18 U.S.C. § 152 (concealment of assets and false oaths to a trustee). 28 18 U.S.C. § 1005 (false entries, reports and transactions) and 18 U.S.C. § 1014 (false reports and financial statements). 29 See, e.g., O.C.G.A. § 8-16-102. Enacted in 2005 and known as the Georgia Residential Mortgage Fraud Act, it was the first state or federal statute to specifically define and criminalize mortgage fraud. It is a RICO predicate and carries a sentence of up to twenty years imprisonment. Since then, a number of states have passed laws criminalizing mortgage fraud, including: Arizona (Ariz. Rev. Stat. § 13-2320), Colorado (Colo. Rev. Stat. § 24-76-103), Florida (Fl. Stat. Ann. § 817.545), Maryland (Md. Code Ann., Mortgages, § 7-402), Minnesota (Minn. Stat. Ann. § 609.822), Mississippi, (Miss. Code Ann. § 97-23-107), Nevada (Nev. Rev. Stat. § 205.372), North Carolina (N.C. Gen. Stat. Ann. § 14-118.10 et seq.), and Texas (Tex. Code Ann. § 402.032). California joined these states in 2009, but the maximum sentence under its statute is only 1 year. Cal. Penal Code § 532f(h). 30 Common schemes include: the use of “straw” (or nominee) buyers, mischaracterization of the intended use of the property (owner-occupied or second home instead of investment), undisclosed seller contributions to the borrower’s down This document is a research report submitted to the U.S.