Prosecuting Wall Street Fraud: Lessons for Joe Nocera

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Monday, 28 February 2011 05:00

Joe Nocera used his column this weekend to comment on the fact that none of the Wall Street honchos who got rich pushing bad loans are being prosecuted. Nocera notes that Angelo Mozila, the former CEO of Countrywide, the huge subprime lender, still thinks that he did a great thing by getting moderate income people into homes. He concludes that this would have made it difficult to prosecute Mozila since "delusion is an iron-clad defense."

The issue of Mr. Mozila's beliefs about the good he was doing is beside the point in terms of bringing successful prosecution. The immediate issue is that Countrywide was issuing and selling large numbers of fraudulent mortgages. The fraud in these mortgages involved mortgage agents deliberately putting down false financial information about the borrowers (at their own initiative, not the borrower's) to allow them to qualify for loans for which they would not otherwise be eligible. These loans were then resold in the secondary market. This was a widespread practice at Countrywide and other subprime lenders.

A prosecutor would typically proceed by getting clear documentation about a large number of fraudulent mortgages being issued from a particular office. This would include depositions from the mortgage agents themselves as to whether they knew that they were putting down false information. Presumably some would answer "yes," especially if they were being offered a deal in exchange for cooperating. They would then be questioned as to whether their bosses knew that they were issuing fraudulent mortgages.

With enough low level people saying that issuing fraudulent mortgages was in fact a company policy, the prosecutor would then go after an office manager. The plan would be to threaten several office managers with long prison sentences for fraud, unless they talked about Countrywide's overall policy.

There are two possible stories. One is that the higher-ups somehow did not know what many outside observers knew about their own company (i.e. they were issuing fraudulent mortgages on a large scale) or that Mozila and other top executives were not idiots and in fact knew exactly what was taking place at their company. By threatening those lower down in the corporate hierarchy with long jail sentences, a prosecutor would be more likely to be in a position to put Mr. Mozila behind bars. This would be true whether or not he thought his fraud was ultimately a good thing because it promoted home ownership.

There would be a similar chain in connection with people like Richard Fuld, the CEO of Lehman and other top executives. The point would be to establish that these companies were securitizing fraudulent loans on a large scale. The people putting together the mortgage backed securities were either unbelievably negligent, by not knowing anything about the mortgages they were buying, or criminals who resold mortgages they knew to be fraudulent. Whether they thought this was a good thing is besides the point.