Quicken Loans, the nation’s largest Federal Housing Administration (FHA)-backed mortgage lender,filed suit on Friday, April 17 in the United States District Court in Detroit against the United States Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD). In the suit, Quicken alleged that it is a target of a probe in “which the DOJ is ‘investigating’ and pressuring large, high-profile lenders into publicly ‘admitting’ wrongdoing.” Quicken says the government threatened to file a lawsuit against it unless the company paid damages based on a sampling of its loans backed by the FHA. The government wanted payment of damages to be coupled with an admission by Quicken that its lending practices were “significantly flawed,” and that it had committed wrongdoing.
The company says that the public statements the government wanted it to make were blatantly false. Quicken also asserts that, before filing its lawsuit, it had already provided the DOJ with more than 85,000 documents, including 55,000 emails. In addition, the DOJ, without filing any lawsuit against Quicken, has conducted hundreds of hours of depositions from numerous Quicken team members. Three years later, the DOJ inquiry has (according to Quicken) resulted in the threat of a federal lawsuit based on “faulty analysis of a miniscule number of cherry-picked mortgages from the nearly 250,000 FHA loans the company has closed since 2007.”
According to FHA statistics, Quicken has originated the government agency’s best performing loan portfolio. The FHA’s publicly available data appears to establish that Quicken has the lowest “compare ratio” — the default rate of a single lender compared to FHA’s total mortgage portfolio — in recent years.
Not surprisingly, the DOJ responded by filing its own lawsuit against Quicken on Thursday, April 23, contending that it made hundreds of improper loans through the FHA lending program, allegedly costing the agency millions of dollars. The Justice Department contends that from September 2007 through December 2011, Quicken knowingly submitted claims — or caused the submission of claims — on hundreds of bad loans, and encouraged an underwriting process in which employees disregarded the program rules and falsely certified that loans met the requirements.
The F.H.A. — which allows borrowers to make down payments of as little as 3.5 percent — has already paid millions of dollars in insurance claims on the improperly underwritten loans, according to the complaint; it said many additional loans had become at least 60 days delinquent and could result in further claims.
The Justice Department, which has filed the suit under the False Claims Act, has already reached settlements with several lenders over their F.H.A. lending practices, including JPMorgan Chase, SunTrust, U.S. Bank, and Bank of America.
It is likely that many other lenders, feeling unduly scrutinized by government agencies, are cheering Quicken’s decision to file suit and are more than a little sympathetic to Quicken’s position in the two suits currently pending (which may be consolidated at some point). The prospects for success for Quicken in the suit that it filed, however, are not necessarily bright. The government generally has immunity, and great discretion even when it does not have immunity, with respect to how it conducts its investigations or settles enforcement actions.
Nevertheless, the lawsuit may at the very least succeed in forcing government agencies to explain and justify their conduct, which might have an effect strongly desired by numerous lenders feeling “targeted” by those agencies. Specifically, the effect of reining in the excesses of governmental enforcement efforts, and making responsible government officials more inclined either to forgo certain investigations entirely, or streamline them in ways that place lesser burdens on companies that, after all, should be presumed not to be liable until the government actually proves otherwise.
© 2015 Bilzin Sumberg Baena Price & Axelrod LLP Authored by: Philip R. Stein
