BofA probed over FHA program; Berkshire may expand stake

Bank of America Corp. may have a new mortgage problem on its plate, saying on Tuesday that federal investigators are looking into whether the bank violated requirements of a U.S. government housing program. More

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BofA probed over FHA program; Berkshire may expand stake

Posted 2/26/14

CHARLOTTE, N.C. – Bank of America Corp. may have a new mortgage problem on its plate, saying on Tuesday that federal investigators are looking into whether the bank violated requirements of a U.S. government housing program.

The second-largest U.S. bank said the civil division of the U.S. Attorney’s Office for the Eastern District of New York in Brooklyn is investigating Bank of America’s compliance with the rules of the Federal Housing Administration’s Direct Endorsement Program. Bank of America made the disclosure in its annual report filed on Tuesday with the U.S. Securities and Exchange Commission.

Spokesmen for Bank of America and U.S. Attorney Loretta Lynch declined to provide additional details on the probe.

The Charlotte, N.C.-based bank also said in the filing that government authorities in North America, Europe and Asia are investigating the bank’s conduct and practices in foreign-exchange markets as part of a broader industry inquiry.

The FHA program has been at the center of cases brought by U.S. Attorney Preet Bharara, who is Lynch’s counterpart in Manhattan. In 2012, Citigroup Inc. agreed to pay $158.3 million and Deutsche Bank AG agreed to pay $202.3 million to settle cases, while a third case is pending against Wells Fargo & Co.

Under the program, mortgage lenders such as Bank of America are given the authority to approve home loans that the federal government then insures without further review. If the mortgage defaults and it is later determined that the lender did not follow FHA underwriting standards, the FHA can demand to be reimbursed for any losses.

JPMorgan Chase & Co. agreed in early February to pay $614 million to settle claims that it defrauded the FHA and the Department of Veterans Affairs by making sub-standard mortgage loans.

In February 2012, Bank of America agreed to $1 billion in payments to the federal government to settle separate claims that its Countrywide home loan subsidiary made FHA-insured mortgages to unqualified borrowers. That settlement covered loans made before April 30, 2009.

Bank of America raised its estimate of overall litigation costs to as much as $6.1 billion above what it has already set aside, up from an estimate of $5.1 billion at the end of the third quarter, according to its SEC filing.

Getting a capital boost

The bank also disclosed in the filing an agreement with Warren Buffett’s Berkshire Hathaway Inc. that could give it an additional $2.9 billion in capital.

Berkshire acquired a special class of preferred stock in Bank of America in 2011 as part of a larger $5 billion investment. Under international regulatory capital rules that U.S. regulators finalized in 2013, that preferred stock would not have counted toward the bank’s capital ratios.

But in exchange for agreeing not to redeem the preferred stock for five years, Berkshire agreed to change the terms of the investment so that it counts for Tier 1 capital purposes.

The new terms include a fixed annual dividend of 6 percent and the removal of a provision that would have let Berkshire receive additional payments if the bank missed a dividend.

The deal is subject to shareholder approval. An amendment will be put to a vote at the bank’s annual meeting in May.

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