A Small Bank's Big Victory Against Mortgage Fraud Prosecution
In the wake of the financial crisis, only one bank is believed to have faced a criminal trial on charges of mortgage fraud.
A Jury in New York state court acquitted the bank of all charges this summer. But the general reaction was not the outrage you might expect. Instead, the bank's customers have rallied in support, as they have from the start.
The charges were dismissed in their court of public opinion long before.
That's because the bank wasn't a Wall Street firm, a global megabank or a subprime loan factory. It was the $250 million-asset Abacus Federal Savings Bank, which primarily serves New York's Chinatown community.
The case has puzzled many observers, given the government's lack of criminal prosecution of much larger potential cases of mortgage fraud leading up the financial crisis.
"Of all the banks to choose, why this one?" asks William Black, a former bank regulator who is a professor of economics and banking law at the University of Missouri.
With six offices, four of them in New York, Abacus hardly qualifies as a systemically important financial institution, arguably making it an easier target than those that some would say have a "too big to jail" label.
Though gratified with the outcome, Thomas Sung, an immigrant from China who started the bank back in 1984, takes the prosecution personally.
Ever since the ordeal began — with a phone call on the afternoon of May 30, 2012 — Sung has felt that he never got a fair shake from prosecutors. That call from the Manhattan District Attorney's Office told him to be at the courthouse the next morning, where Abacus would be indicted for mortgage fraud and for grand larceny against Fannie Mae, the mortgage securities packager taken over by the government in 2008.
Sung says that the DA never offered his bank a deal like those routinely offered to larger banks facing prosecution by both the DA and the U.S. Justice Department — such as a settlement with no admission of guilt or perhaps a deal with a deferred prosecution agreement to assure compliance with required reforms.
The DA declined to comment on the case for this story.
Hanging up the phone that day, Sung feared that the aggressive action would, as he puts it, "kill" his bank.
"Very few small banks that have been charged with a felony have survived," he says.
The rail-thin and energetic 81-year-old — who still serves as chairman of the privately held Abacus — sprang into action so he could break the news to his community himself. Knowing that most of the local Chinese-language press had a deadline of 5 p.m. for getting stories in the next day's papers, he called a 4:30 p.m. press conference, alerted them about the indictment and said he planned to fight the charges.
The next morning, Sung found representatives from the Office of the Comptroller of the Currency and the Federal Deposit Insurance Corp. waiting at his bank's doorstep — in case of a run on the bank, they told him. Sung says the DA, expecting a run, had warned them.
But there was no run. "The Chinese community had already read that morning that the indictment was coming and that we were going to fight the indictment," Sung says. "When it got to be 3:30 p.m. and there was no run, the regulators left."
It was one of Sung's daughters, bank director Vera Sung, who spotted the problem that prompted the DA's investigation and eventual prosecution.
She called a halt to a questionable closing in December 2009, and subsequently fired a loan officer who she found had coached a borrower to lie about her income and apparently to pay him a bribe in the process. The bank reported the incident to its then-regulator, the Office of Thrift Supervision, which caught the DA's attention. As one of his first actions on assuming office in January 2010, Manhattan District Attorney Cyrus Vance Jr. launched an investigation into the bank's mortgage lending practices, ultimately subpoenaing some 900,000 documents.
In April 2012, the DA brought charges against 19 low-level current and former Abacus employees, with officers making surprise pre-dawn arrests at their homes. At an arraignment proceeding in May, the DA had those people voluntarily reappear at the court building, where they were chained together as they entered the courtroom in front of invited media — an image that outraged many in Chinatown.
At the time of the indictment, Vance announced at a press conference that Abacus was guilty of "a systemic and pervasive mortgage fraud scheme," which he said was emblematic of the kinds of loan abuses that had brought on the financial crisis.
This still stings Sung, who hastens to point out that Abacus never dabbled in mortgage derivatives and never offered mortgages with low or no down payments. All its home loans require down payments of at least 20%, and many Abacus borrowers put down much more. Even during the financial crisis, Abacus's mortgage default rate never exceeded 0.5%.
At the four-month trial, prosecutors put on the stand a long list of bank employees and mortgage customers, most of whom were "cooperators" who had pleaded guilty and were testifying for the prosecution with the hope of winning a lighter sentence or getting their charges dropped. But their stories sometimes changed under questioning by the bank's attorneys — and to such an extreme that the jury laughed openly more than once.
One issue in the trial centered on cultural differences in how family assistance is viewed in China compared with the United States. Here, when relatives help a family member buy a house, there's generally a clear understanding about whether the money is a gift or a loan to be repaid, and any repayment expectations are often spelled out in writing. In China, when a relative helps an extended family member, the money is typically given as a gift. Left unspoken is that gifts are presumed to be reciprocal, though there is no expectation as to when a helping hand might be offered in return. So when mortgage applicants at Abacus listed gifts from relatives as assets, loan officers understood that the relatives had no legal claim on the money they had provided, even if they might expect to get a gift in return someday, the bank argued in its defense.
Prosecutors portrayed these gifts to jurors as being loans (which would have meant they couldn't count as assets). But their own witnesses repeatedly denied this, undermining the DA's case.
An official from Fannie Mae also hurt the case by testifying that it had not lost any money on the allegedly fraudulent Abacus mortgages it had purchased — and in fact, earned a profit from them. In the end, the jury voted to acquit on all 240 charges leveled against Abacus and against two midlevel loan officers who were tried along with the bank itself.
In the wake of the trial, Thomas Sung has become something of a local folk hero on the sidewalks of Chinatown. On one hot summer day a few weeks after the acquittal, as he walked several blocks from his bank to have lunch at a favorite restaurant, people kept stopping him on the sidewalk to shake his hand and congratulate him.
But the victory didn't come cheap. Besides $10 million in legal expenses, Sung says his bank lost considerable business because of staff time spent culling through records to respond to demands from the DA for loan documents, and because during the investigation and trial, Fannie stopped buying the bank's loans. (Immediately after the acquittal, Fannie resumed buying them.)
Kevin Jacques, a former regulator and the Murch Chair in Finance at Baldwin Wallace University, says he worries about the message that the case sends. He says fraud is very difficult to detect and banks' cooperation is key. Though he understands going after the individuals directly responsible for criminal behavior, he questions whether institutions that discover and report such behavior as Abacus did should be taken to court.
"In this case, a bank self-reports, 'Hey we're having a problem here. We found some fraud in our mortgage lending. We're reporting this and we're going to try and get on top of it,'" Jacques says. "My hope is it doesn't send a bad message particularly to small financial institutions, 'Hey, wait a minute, don't self-report because you run the risk of them coming after the entire institution, the management, the whole thing.'"
In mid-September, the DA dropped all charges against seven low-level Abacus employees who had been arrested at the time of the bank's indictment and were still facing trials. In a brief motion to the court, the DA's office said prosecutors no longer believed they could prove those cases "beyond a reasonable doubt."
"Clearly jurors were going to think, 'Why are you keeping us here?'" says Black of the Abacus acquittal, "especially when there are banks here in Manhattan that caused trillions of dollars in losses."
Dave Lindorff is a freelancer based in Maple Glen, Pa.