SEC nomination reawakens RMBS fraud debate

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President Barack Obama officially nominated Mary Jo White, a white-collar prosecutor with significant Wall Street experience, to lead the Securities and Exchange Commission Thursday.

But it's still unknown whether her appointment means a sea change in the way the SEC handles issues related to residential mortgage-backed securities that soured.

What is known is there are two schools of thought taking shape. One school says the SEC should be criticized for not taking a firmer stance against firms for allegedly making misrepresentations about loans tied to RMBS transactions. The other school of thought is the administration is far from practical, constantly searching for ghosts for the sake of political gain.

The SEC's role after the financial crisis is a sticking point for analysts like Manal Mehta with Sunesis Capital.  

Mehta hopes White's addition signifies a change at the SEC. He has been following private litigation over alleged misrepresentations made about loans backing RMBS deals for some time. 

"Given the preponderance of evidence unearthed in private litigation, the SEC risks furthering its reputation as an inept agency unless they aggressively step up enforcement actions against the banks over failed RMBS," Mehta told HousingWire.

With the New York Attorney General taking an aggressive approach with a lawsuit against JPMorgan, Mehta believes the former prosecutor – if she chooses a more aggressive role – has the "template for a robust case by relying on work done by private litigants."

But not everyone is White's cheerleader.

"Mary Joe White is an example of what is wrong with government," said Anthony Sanders, distinguished professor of real estate finance at George Mason University.

"Rather than an economist who studies financial markets or someone with practical experience, Obama selects a bulldog attorney. Richard Cordray, another politician lawyer, went to war against robo-signing banks even though there was no evidence of any economic harm. I expect the same from Mary Joe White – more political bulldog." Richard Cordray also was renominated to lead the CFPB on Thursday.

White's appointment comes at a time when the SEC is dealing with years of negative press over the agency's role in the wake of the financial crisis. The publication, Corporate Crime Reporter, is one of many that pushed an article [3] by Columbia law professor John Coffee, in which he argued, "the SEC is settling cheaply with entities and ignoring individuals – a policy of parking tickets for securities fraud." The article prompted a heated response from the SEC, which was published [4] in The National Law Journal. 

Last year, the SEC announced twice that no charges would be filed against banks after conducting investigations into subprime mortgage deals. In August, the SEC said it would not [5] bring charges against Goldman Sachs. Then, in November, Wells Fargo received notice from the SEC that an investigation into mortgage-backed securities disclosures would be closed.

White's experience shows time spent on both Wall Street and in government.

White is known as both a prosecutor and an attorney who previously served on the board of the Nasdaq. At one point, she worked as a retained attorney for Morgan Stanley and represented JPMorgan Chase during the massive attorneys general settlement with mortgage servicers, according to research firm Compass Point Research & Trading.

What White will do at the SEC in relation to RMBS issues is basically unclear at this point, noted Joseph Grundfest, a Stanford Law School professor. "I think it's a brilliant appointment," he said. "Mary is one of the most accomplished and talented white-collar fraud prosecutors that this country has ever seen."

As for whether he sees a change in how the SEC treats disputes over disclosures related to mortgage bond securities, Grundfest is uncertain.

"It depends entirely on the inventory the SEC has and can develop."

kpanchuk@housingwire.com [6]