Federal judge finds PwC negligent in Taylor, Bean & Whitaker/Colonial Bank audits

Lawsuit brought by FDIC after Colonial Bank’s failure

One of the most prominent ghosts of the financial crisis is back in the news…again.

The tale of Taylor, Bean & Whitaker is a well-known one to many in the housing finance business.

TBW was, at one time, the largest privately held mortgage company in the country, employing more than 2,000 people. TBW originated, serviced and sold mortgages in pools to Freddie Mac.

But the company collapsed in spectacular fashion after it was discovered that TBW chairman Lee Farkas and others were cooking the books to cover for hundreds of millions in nonexistent mortgages.

The ramifications of TBW’s implosion in 2009 are still being felt today.

Back in August 2016, PricewaterhouseCoopers settled a $5.5 billion lawsuit that accused the company of failing in its audit duties by not discovering the accounting malfeasance that led to the collapse of Colonial Bank, which funded TBW’s mortgages.

But that settlement did not end PwC’s troubles with the TBW/Colonial imbroglio.

Late last week, a federal judge ruled that PwC was “negligent” in its role as Colonial Bank’s auditor, stating that the company could have done more to prevent Colonial’s collapse.

As the Wall Street Journal reported Tuesday, the lawsuit in question was brought by the Federal Deposit Insurance Corp., which sued PwC after Colonial collapsed.

According to previous coverage from the WSJ, the FDIC claimed that Colonial’s failure cost the FDIC $5 billion, making it one of the largest bank failures in the country’s history.

Here are more details on the judge’s ruling, via the WSJ:

U.S. District Judge Barbara Jacobs Rothstein will now consider separately whether damages should be imposed on PwC, and how much. She dismissed other FDIC allegations against PwC, as well as allegations of negligence that Colonial’s bankruptcy trustee brought against the accounting firm.

PwC was the outside auditor for Colonial’s bank holding company, and gave Colonial clean audits that blessed its financial statements for years. The FDIC and the Colonial trustee had alleged PwC was negligent in not detecting the fraud scheme, and they sued the firm in 2012 and 2011, respectively.

The judge ruled that PwC could have discovered the fraudulent activities at TBW and Colonial if it reviewed some of the underlying mortgage documents, but elected not to.

Beginning in 2002 and stretching to 2009, Farkas and his fellow conspirators swept funds between accounts at Colonial and Ocala Funding, a TBW subsidiary that also provided funding for TBW’s mortgages to cover constant overdrafts.

By December 2003, the rolling overdraft had grown to more than $120 million and sweeping the funds back and forth became too complex, so Farkas and others began selling mortgages that didn’t exist to cover the shortages.

By 2009, Colonial Bank had more than $500 million in nonexistent loans on its books.

But the fraud at TBW went much further than that.

TBW also sold loans to Fannie Mae. In 2002, loans sold to Fannie represented 85% of TBW’s business.

Fannie Mae canceled its seller/servicer agreement with TBW when it learned that Farkas had personally taken out $2 million in loans that were not actually backed by homes or any other eligible collateral to pay for the repurchase of non-compliant loans that TBW had sold to Fannie.

Basically, Farkas planned to sell the eight fraudulent loans (which totaled $2 million) to Fannie to cover the money he needed pay Fannie for other non-compliant loans.

Fannie Mae discovered this fraud when Farkas was unable to make payments on the eight fraudulent loans, but did not communicate its findings to Freddie Mac, its regulator or other interested parties.

Subsequently, Freddie considerably increased the volume of its business with TBW.

Farkas’ schemes were finally discovered when Colonial, which was on the verge of insolvency, applied for $553 million in funding from the Troubled Asset Relief Program.

Colonial’s application for TARP funding was tentatively approved on the condition that it raised $300 million from outside investors.

According to a 2014 report from the Federal Housing Finance Agency’s Office of the Inspector General, Farkas agreed to invest $150 million in the failing bank through TBW and help raise the additional $150 million because he knew that without the investment, TBW’s fraud would be discovered.

The additional $150 million would end up being diverted from Ocala’s books to Colonial’s, but the entire nature of Colonial’s fundraising raised a red flag with the Special Inspector General for TARP. Investigators questioned whether the injection of funding from Farkas was a “round trip” transaction, where the $300 million from TBW would be paid back from the TARP funds.

Farkas eventually received a 30-year prison sentence and was ordered to forfeit $38.5 million in ill-gotten gains for the $2.9 billion scheme after he was found guilty on 14 counts of bank, wire and securities fraud.

Now, PwC awaits the judge’s next ruling, which could lead to “hundreds of millions” in damages.

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