The public may doubt the sincerity of the latest wide-scale investigation into the malfunctions that sparked the financial crisis, but bank attorneys are not so dismissive.
The Obama administration launched the residential mortgage-backed securities working group in January with much grandeur and a prompt set of 11 subpoenas, which has now grown to 25. The group of federal regulators, the Justice Department and the FBI are looking into every step of the mortgage finance chain from origination, securitization and investor disclosures, according to key industry attorneys.
Promises of swift action proved premature. But it appears the group is finally beginning to ramp up with large meetings scheduled at the end of May, a new website for whistleblowers and a coordinating team.
“It’s not that they forgot about this,” said Laurence Platt, who is leading the industry’s response team from his law firm K&L Gates. “There’s a lot of information gathering going on right now. We shouldn’t take a lack of headlines as they’re not pursuing this or that. With these securitizations there’s a lot of things to get your hands around. They’re trying to figure out what was going on what was happening.”
Rich Andreano, a partner at the D.C. law firm Ballard Spahr, anticipates a sequel to the grueling $25 billion settlement with the five largest mortgage servicers that was finally approved in February.
“Not only will there be a monetary component, but more importantly, there will be the change of behavior through practices and standards,” Andreano said. “The issue will be front and center again: Should rulemaking be done through enforcement?”
The servicing settlement took nearly a year and a half to conclude. Drama, false reports and leaks throughout haunted the process and put the recovery on hold. With the working group, expect the amount firms, parties involved, the stakes and expectations to multiply, especially during an election year.
Platt expects the first blows to come from the Department of Housing and Urban Development, seeking to grab penalties from lenders violating Federal Housing Administration guidelines.
“We know the securitization side is coming,” Platt said.
He expects federal prosecutors to craft allegations around the False Claims Act, which was expanded under the Fraud Enforcement and Recovery Act, or FERA, to cover falsified disclosures to government bodies.
But Andreano said the working group is targeting what was disclosed to credit ratings agencies as well.
“It will be from the lender all the way up the chain. They are asking where the problems were from the very beginning, from the lender to the aggregator, on up to the securitizer. The whole process is going to get looked at,” Andreano said. “They will see where the holes in the chain were.”
“It could be faulty underwriting, incorrect appraisals, lack of docs, everything,” Platt said.
There are many challenges ahead for the working group, with staffing a first hurdle. There are roughly 100 people working in disparate groups combing through documents.
A House committee recently shot down plans to further fund the working group. Securities and Exchange Commission Director of Enforcement Robert Khuzami jokingly asked Rep. Scott Garrett, R-N.J., for more money during a recent committee hearing.
There is also a statute of limitations problem. Andreano said it could range anywhere between five and 10 years in some cases, which means investigators may be approaching deadlines for any evidence found during the housing buildup prior to the crash in 2007.
Andreano expects some banks to enter into agreements waiving the statute of limitations in order to avoid facing a hasty lawsuit from the government. This would be done to begin lengthy negotiations instead.
Khuzami admitted to Rep. Maxine Waters, D-Calif., during the same committee hearing last week that the SEC would be entering some settlements as a result of the investigations under the same limitations drawing fire lately, specifically over a controversial deal with Citigroup (C).
Platt said there is a strong possibility, given the political timing of the group’s formation, they would overreach.
“I expect them to be aggressive in their claims. It doesn’t mean they’ll be quick to reach settlements either. You may have this choice of going out of business or fighting,” Platt said. “The MBS manufacturing process is like making sausage. It’s not pretty but it’s not illegal.”
But similar lawsuits from the Federal Housing Finance Agency against more than 17 banks that sold mortgage bonds to Fannie Mae and Freddie Mac show evidence of more apparent misrepresentations than simple mistakes.
Andreano tempered his expectations of drawn-out court battles many consumer advocates have cried for since the financial crisis struck. Instead, like the servicing settlement, he expects more backroom drama. Only this time, the expectations the working group stirred up for itself, may add extra tension to the talks.
“They want to hold people responsible, but when you talk to policymakers they’re concerned with letting it happen again,” Andreano said.
