The second-largest US bank is turning a profit in most of its main businesses, but it inherited costly legal problems when it acquired companies during the financial crisis, including subprime mortgage lender Countrywide Financial.
In the third quarter, Bank of America reported only a nominal profit after reaching a $2.4 billion settlement with investors to resolve claims it hid crucial information from shareholders when it bought investment bank Merrill Lynch & Co.
Moynihan declined to comment on whether the bank's capital plan, which is due to the Fed by January 7, will include any proposed share buybacks or increases in dividends. Moynihan suffered a major embarrassment in 2011 when the Fed rejected the bank's request to increase its quarterly dividend, which has been stuck at just one penny per share since the financial crisis.
The Fed has been evaluating capital plans as part of its supervision of bank holding companies and under provisions in the Dodd-Frank financial reform law. It is unclear whether the Fed would approve any request for an increased dividend or share buybacks next year. A Fed spokesperson declined to comment.
"The element that is sort of unique to us is the predictability of the earnings stream," Moynihan said in an interview in his Charlotte, North Carolina, office. "We are working to get through that."
Other banks have demonstrated their ability to earn money more consistently. J. P Morgan Chase & Co's quarterly profit, for example, hasn't fallen below $3.7 billion in the past year, even as it has taken losses on disastrous credit derivative trades.
Investors and analysts are hopeful that Bank of America's legal problems will die down soon. Its stock price has more than doubled this year, partly on expectations that the bank will increase its dividend and buy back more stock after the Federal Reserve reviews its capital plans this spring. Analysts at Atlantic Equities on December 18 said they expect Bank of America to buy back $4 billion of its own shares in 2013 and $10 billion in 2014, which would be its first buybacks since 2007.
The bank has "made a lot of progress" on legal issues, Moynihan said, but he acknowledged that the company is still working through lawsuits and investor demands to buy back soured mortgages the bank sold off during the housing boom.
In recent weeks, the bank's dispute with insurer MBIA Inc over mortgage-related claims has heated up, with Bank of America filing a new lawsuit last week against the insurer. The legal tussle with MBIA has dragged on, even as Bank of America has worked out settlements with other insurers of mortgage-backed securities issued by Countrywide.
Moynihan said the bank will settle the MBIA dispute if it can reach an agreement that is reasonable for shareholders but otherwise it is ready to litigate the matter.
The bank's shares closed on December 18 at $11.35, up 3.2 percent for the day. The shares are the best performer in the Dow Jones industrial average this year, after falling the most in 2011.
In an effort to improve earnings, Moynihan is aiming to cut costs by $8 billion annually by mid-2015 through a program called Project New BAC, including 30,000 layoffs that have been under way since September 2011. Bank of America had noninterest expenses of $76.5 billion in 2011.