DOJ, Nutter agree to $2.4M HECM settlement

James B. Nutter & Co., which ceased mortgage banking operations because of the overhang of alleged False Claims Act violations, has settled those charges with the Justice Department for $2.4 million.

"This Settlement Agreement is neither an admission of liability by Nutter nor a concession by the United States that its claims are not well founded," the legal filing states.

The agreement follows a July ruling that barred the government from recovering damages, including treble damages, under the False Claims Act, stating the government could not prove that Nutter's behavior was responsible for damage to the U.S. Department of Housing and Urban Development. Thus the Justice Department was limited to recovering civil penalties only.

However, the Department's press release said the settlement was "to resolve allegations that it violated the False Claims Act" in the underwriting of Home Equity Conversion Mortgages that did not meet Federal Housing Administration eligibility requirements.

"The U.S. Attorney's Office is dedicated to seeking recovery from mortgage lenders who take advantage of FHA programs and ignore essential program requirements," said U.S. Attorney Teresa Moore for the Western District of Missouri, in the press release. "The integrity and resources of those important programs must not be put at risk by mortgage lenders who put their own financial interests first."

The allegations were brought in September 2020; Nutter had wound down its reverse mortgage business. Over two years later, it elected to shut operations altogether, saving enough staff to continue fighting these charges.

In the past, Nutter did have run-ins with regulators, including a 2014 settlement over charges Nutter failed to perform due diligence when underwriting HECMs. Its NMLS entry has a 2012 settlement with 10 state regulators that cost the company over $409,000 regarding the reverse mortgage program.

"This case and the resulting $2.4 million settlement demonstrate the HUD Office of Inspector General's commitment to holding lenders accountable when they commit fraud against FHA mortgage programs designed to provide financial assistance to senior homeowners," said HUD-OIG Rae Oliver Davis. "No one is above the law. Our office will continue to work with our partners at the Justice Department to investigate mortgage lenders who jeopardize the integrity of FHA mortgage programs."

Edward Kang, a partner at Alston & Bird, who represented Nutter in this case, called the settlement a win for his client, saying in a statement that the Justice Department was unable to prove its case and chose to settle rather than go to trial.

After the July ruling, the government reduced its ask to the settlement amount from $433 million, Kang continued, adding Nutter agreed in order to put this matter behind it.

"Nutter believes, and continues to believe, that it would have been vindicated at trial," Kang said. "In the meantime, however, the family's good reputation and that of their long-time, highly respected business were impugned, and so many of the company's good and loyal employees lost their livelihoods."