Bank of America was ordered to pay a $1.27 billion civil penalty by Judge Jed Rakoff of the U.S. District Court of the Southern District of New York in July 2014 as a result of the bank's alleged role in selling toxic mortgage-backed securities to Fannie Mae and Freddie Mac before the crisis. The U.S. Department of Justice sued Bank of America in August 2013, accusing the bank's Countrywide division of misrepresenting the mortgage-backed securities it sold to the GSEs through a program known as the High Speed Swim Lane (HSSL, commonly known as "Hustle").
The government said the Hustle program emphasized speed over quality of the loans sold, and staff members were rewarded according to sales volume. In October 2013, a jury found Countrywide liable for selling toxic MBS to Fannie Mae and Freddie Mac under the Hustle program. Bank of America has fought to have the verdict and the penalty dismissed, claiming not only that the Hustle program ended prior the bank's 2008 acquisition of Countrywide, but that the government's accusations in the case amount only to breach of contract and not fraud.
In February, Rakoff denied the bank's request to overturn the verdict and the request for a new trial. In April, Bank of America asked court to either reverse the judgment in the Hustle case or vacate the judgment and remand the case. If it is remanded, the bank asked Rakoff be removed from the case based on alleged partial public statements he made while the case was pending. When filing the appeal in April, Bank of America claimed that "the trial itself was riddled with errors at both the liability and penalty phases." The bank also claims the federal law under which the government made the claim comes with a penalty of no more than $1.1 million.
In Wednesday's filing, the government reaffirmed its assertion that Countrywide committed fraud by knowingly selling poor-quality mortgage backed securities to the GSEs and misrepresenting the quality of those securities sold.
Also charged in the case was former Countywide executive Rebecca Mairone, who was accused by the government of pushing the Hustle program against evidence that the loans being made were low-quality. Mairone was found liable by the jury and ordered to pay $1 million. She is appealing the decision; her attorneys contend that there was "insufficient evidence" for the jury to conclude that she knew about the low quality of the loans.
The government's lawsuit against Bank of America was a whistleblower suit originated from former Countrywide executive Edward O'Donnell, who is collecting $57 million for filing the whistleblower suit.
In a separate case, Bank of America agreed to a record $16.65 billion settlement with the Department of Justice in August 2014 over the packaging and selling of toxic residential mortgage-backed securities before the crisis.