10/16/2012 09:00 pm ET Updated Dec 16, 2012

Will R-I-C-O Spell 'Relief' for BofA Mortgage Borrowers?

Bank of America can't seem to get a break. Hunkered down in Charlotte HQ, CEO Brian Moynihan continues to dodge incoming bunker busters, most notably the recent investor lawsuit which forced Bank of America shareholders to shell out a hefty $2.4 billion dollars to settle a lawsuit that claimed BoA told fibs about Merrill Lynch's critically ill financial health during the January 2009 merger of the firms.

So, BoA dodges another bullet, leaving two top culprits, former BoA CEO Ken Lewis and his partner in financial collusion, Merill's ex-CEO John Thain, free to enjoy their ill-gotten compensation gains in relative peace and comfort, far from the possibility of spending quality time at a Federal USP.

Unpunished Mega-Bankers -- part of what they call the predatory mortgage banking cartel chronically irks a small group of lawyers and they've set their sights on this group of one-per centers they claim are the driving force behind a "predatory mortgage banking cartel."

They are pained at the lack of real regulatory enforcement actions in the wake of the financial meltdown, and angry about how easy it's been for the megabanks -- BofA, in particular -- to "get over" on the American public, continuing a pattern of foreclosure behavior despite tongue-lashings by the Federal Trade Commission and Department of Housing and Urban Development.

So, how do they spell relief for this fraud-induced indigestion? R-I-C-O.

Yes, RICO, that iconic legal strategy developed in the 1970s -- one with teeth -- that spelled calamity for the bosses of the Genovese and Gambino crime families, restored some semblance of order to mob-run Teamster Local 560 in New Jersey, and sent the immensely popular mayor of Providence Rhode Island, Vincent "Buddy" Cianci, to the can for running his office as a financially self-serving criminal enterprise. But the case that took it beyond the boundaries of common thugdom was RICO's successful prosecution of Wall Street junk bond peddler, Michael Milken. While controversial, the case emphasized the expansive nature of the statute in pursuing corporate crime, and the fact that RICO provides for both criminal penalties and a civil cause of action for financial damages, has this group of attorneys intrigued.

So, how might B of A qualify as a likely target? It's definitely an "enterprise," one of the criteria of a RICO prosecution. According to several lawyers, there's a pattern of activities, mainly surrounding B of A's 2008 acquisition of Angelo Mozilo's Frankenstein, a/k/a Countrywide Financial, that provide potential prosecutorial fodder insofar as securities fraud and consumer protection violations are concerned.

One crusader in this tight-knit group -- Dave Angle, a consumer attorney formerly with the Missouri Attorney General's office -- points specifically to the Federal Trade Commission's 2010 settlement with B of A, where the bank agreed to pay $108 million to settle claims that Countrywide had laid excessive servicing fees on cash-strapped homeowners.

The upshot, according to Angle, was, essentially, an upraised B of A middle finger as the company continued servicing practices as usual, until the FTC got wise and forced another settlement in February of this year, charging the bank with ignoring the initial settlement and demanding a return to homeowners of an additional $36 million, the ill-gotten gains accumulated in the interim. The Inspector General at HUD also noted this blatant nose-thumbing in a report issued in March, which took B of A, along with four of its brethren, to task for "widespread questionable foreclosure practices involving the use of foreclosure 'mills' and a practice known as 'robosigning' of sworn documents in thousands of foreclosures throughout the United States."

Every day seems to bring another horror story designed to fuel public rage against Bank of America, whether it's the case of Louise Davidson of Loma, Colorado, still sans home thanks to a B of A/Fannie Mae eviction; Los Angeles mother Dirma Rodriguez, fighting B of A to stay in her home with a severely disabled daughter; or a 74 year-old veteran, Larry Anderson, now on the verge of losing his family home to the relentless maws of the B of A foreclosure machine.
But, Mark Malone -- a former U.S. and New Jersey prosecutor with RICO experience -- firmly believes that the statute could prove a legal trumpet that could bring down the Jericho-style battlements of B of A.

Factually and legally, he claims, there's no impediment to using the RICO statute to prosecute current and former executives at Bank of America if a "pattern of racketeering activities" can be alleged, meaning people in the organization having committed two or more acts within a 10-year period that violate federal statutes prohibiting the use of the mail or the "wires" (defined as telephonic, and now Internet, communication) to carry out fraudulent schemes. (Malone, serving as a volunteer lawyer for South Jersey Legal Services, is fighting B of A in a client's foreclosure case.) He, Angle and others in the group believe that much of what went on during Countrywide's descent into infamy, and its acquisition by B of A, met the fraud criteria.

Malone and Angle doubt Eric Holder's Department of Justice will wield RICO as a weapon, pointing out that Holder and the DOJ's Criminal Division head, Lanny Breuer, are both former partners of the white shoe law firm Covington and Burling. That might pose a problem for the two if a RICO investigation were to move forward with alacrity. As Reuters reported on Jan. 20, 2012, the firm's connective tissue binds it to clients that have included Bank of America, Fannie Mae and Freddie Mac, and its lawyers wrote opinions supporting the legality of MERS' securitization activities.

Down the line, Angle, Malone and others hope that what Occupy has failed to accomplish, hard-nosed prosecutors might be able to provide: a measure of justice for the millions of aggrieved homeowners either forced out in foreclosure, or waiting for that ax to fall as a result of the actions of Bank of America and its cohorts.

In the closing scene of the classic mob movie, Little Caesar, a bullet ridden Edward G Robinson, struggles to utter his last words: "Is this the end of RICO." For this group of crusading lawyers: the answer is clearly, no.

Joel Sucher, a filmmaker with Pacific Street Films in Hastings-on-Hudson, N.Y., is working on "Foreclosure Diaries," a documentary. A version of this blog appeared in American Banker on May 8th, 2012