He would be sitting in a hearing room overstuffed with lobbyists and activists and feel something like shock. “The whole focus nationally was on stopping us in Georgia so it wouldn’t spread to other places,” he said. “It was almost surreal to think what we had started in 2000 had gotten to this level.” Fort had staked out the conference room next to his legislative office, where every Friday a small coterie of strategists would gather. He had Bill Brennan on hand to help him monitor small changes in the bill, along with Self-Help’s Mike Calhoun, who had helped Fort write the original bill. Another regular, Kathy Floyd, a lobbyist for AARP, arranged for tens of thousands of its members to phone legislators in support of the Barnes-Fort bill.
“As this process moved along, my job was to make a lot of noise,” Fort said. “It was to our benefit for them to think I was militant or racial or whatever. The crazier they saw me, the more dealing with Roy didn’t seem so bad.”
Despite everything they were doing, Fort thought they were a goner when Fannie Mae waded into their fight. In a letter addressed to Barnes, the government-backed mortgage giant warned that the measure “could unintentionally shrink the availability of responsible credit for the most vulnerable consumers.” Fannie Mae asked to be exempted from the bill. But rather than respond directly to Fannie Mae, one of the governor’s people enlisted Fort. “So I blast Fannie Mae and hint at the crowds we’ll mobilize to protest their actions,” Fort said. And the next thing he knew, Fannie Mae had rescinded its statement and issued one in support of the bill. The agency blamed the whole thing on a low-ranking staffer.
Barnes probably compromised more than Fort would have had he been the chief negotiator. The biggest concession was giving up on judicial foreclosures. In many states, foreclosures are overseen by the courts but not in Georgia. There are strict rules governing the procedure, but a lender can auction off a property without ever going before a judge. The Barnes-Fort bill sought to change that but Barnes dropped that proposal to win the support of the Speaker of the House, a Democrat. But the bill passed mainly intact, including the provision that would allow a borrower to sue anyone who takes possession of his or her mortgage. “There’s a compassion issue here,” state senator Bill Stephens, a Republican, told the
Barnes signed the bill into law in April 2002. He held a signing ceremony in Atlanta and similar events in Savannah, Augusta, and Macon. Before the week was out, he would hold no less than seven public ceremonies to sign a bill that advocates and critics alike were describing as the toughest anti–abusive lending law in the land.
Barnes had generously singled out Bill Brennan and his staff during that first signing in Atlanta. This would never have happened, the governor said, without them. What passage of this bill meant to Brennan nearly a dozen years after he first came across that first flurry of Fleet cases became clear to Fort a few weeks later, at a celebration sponsored by Atlanta Legal Aid. No one expected them to win, Fort said from the podium. Not the good ol’ boys who were still stunned that they had lost—and not even those pushing for the bill. While he was speaking, Fort recalled, he spotted Brennan standing off to the side, overcome with emotion. “Bill doesn’t know that I noticed,” he said, “but I saw tears coming down his cheeks.”
On election night, Roy Barnes saw the early returns from the rural white counties and knew he was in trouble. He might have won a John F. Kennedy Profile in Courage award for changing the Georgia state flag but apparently not everyone was so impressed with his convictions. In the end, the 2002 race wasn’t even close; GOP challenger Sonny Perdue beat Barnes by five percentage points and, for the first time in 130 years, a Republican was seated as the governor of Georgia. “Bill, you know it’s over,” Fort said when he called Bill Brennan the next day. And even Brennan, ever the optimist, had to confess that his friend was probably right.
Lenders had threatened to stop making loans in North Carolina but studies showed that those were empty threats. A Morgan Stanley survey concluded that rather than reduce the availability of subprime loans there, the law had saved consumers in North Carolina at least $100 million in fees. But Georgia, of course, had implemented a more restrictive law. Countrywide and Option One announced they were greatly curtailing their activity in the state and Ameriquest announced it was pulling out of Georgia altogether. In time it would become clear that this should have been cause for celebration but at the time it had the intended effect of spooking more than a few legislators. Freddie Mac compounded the fear by announcing it would no longer buy any “high-cost” loans from Georgia lenders. One might have asked why a government-sponsored mortgage finance company like Freddie Mac was trafficking in these high-priced loans but the news further softened legislators to the industry’s argument that there were unintended consequences to the Barnes-Fort bill.
Still, the original legislation might have survived largely intact if it were not for the unexpected intervention of the nation’s largest credit rating agencies. Less than two weeks after Sonny Perdue took over as governor, Standard & Poor’s announced that it would no longer rate the creditworthiness of any mortgage-backed security that included even a single loan out of Georgia—even conventional mortgages. Since any party purchasing a predatory loan was potentially subject to a lawsuit in Georgia, the New York–based rating agency reasoned, and since the Georgia law placed no cap on potential damages, the legal exposure was incalculable. Moody’s Investors Service and Fitch Ratings soon followed suit.
If one were assembling a list of actors whose reputations were badly tarnished by the 2008 subprime meltdown, the big three credit rating agencies would likely be near the top. Far from being reliable third parties offering impartial financial judgments, together they were “a central culprit of the financial crisis,” Eric Dash of the
Those who had authored the law had not done themselves any favors: It turned out that the law needed fixing as soon it had been passed. Fort described it as a matter of a few minor “tweaks,” but that meant opening the bill to reconsideration during the next legislative session, which played into the hands of the opposition. Fort and his colleagues proposed a cap on the financial liability of any single investor, but the legislature was intent on going much further. The amendment that Sonny Perdue signed into law in early March 2003, just five months after the original law had taken effect, limited liability to the original issuer of a loan while watering down a number of provisions in the Barnes-Fort bill. “It’s as bad as not having a bill at all,” a dispirited Fort told the Associated Press.
Not that their efforts were for naught. Like North Carolina, Georgia helped to inspire activists and legislators living in other locales. Soon after Georgia, New York State passed a tough anti–predatory lending law that also gave borrowers the right to sue whatever institution held their mortgage, even if it was owned by a third party. But that right was granted only if someone could prove that the third party had been complicit in committing fraud (or, in the event of foreclosure, a borrower could get out of his or her financial liabilities to a third party if the loan is deemed predatory under state law). The New York law went into effect in April 2003. Other states followed. Every state after Georgia was certain to put in place a cap on a mortgage holder’s potential liability. “That way the rating agencies like Standard & Poor’s could at least calculate the potential for damages,” said Patricia McCoy, a professor at the University of Connecticut School of Law, who has studied the issue.
But victories in New York and elsewhere would do little to help those communities in Georgia devastated by the subprime meltdown. By 2006 the state would rank third in the nation in foreclosures.
Predictably the problem was felt much more acutely in the state’s black precincts. Nearly half of all blacks buying a house in Atlanta in 2005 or 2006 ended up with a subprime mortgage, according to a 2007 analysis by the
Bill Brennan continued to do what he could, one client at a time. If there was an upside to the 2002 fight, it was that now Brennan had an ally in Fort who could frighten banks into doing the right thing. In recent years, Fort has phoned top bank executives ranging from Countrywide’s Angelo Mozilo to Bank of America’s Ken Lewis to scare them into fixing the most egregious of Brennan’s cases. Fort depicted for me what happens after he leaves a message with one of their assistants. “They’ll google my name, they’ll figure out who I am, and then my phone rings an hour later,” he says. “They figure it’s better to work things out than face a picket line.”
