In 2012′s State of the Union address, President Barack Obama announced an initiative to investigate “abusive lending and packaging of risky mortgages.” Three days later, the Department of Justice (DOJ) created a task force, consisting of both state and federal regulators, focusing on residential mortgage-backed securities (the RMBS task force) and issued civil subpoenas to several unnamed banks under 12 U.S.C. § 1833a, a provision created pursuant to the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), Pub. L. No. 101-73, which was passed at the height of the savings and loan crisis.
Although FIRREA had been largely idle in the prosecutor’s playbook for two decades, these subpoenas reflect a growing trend of increased reliance on the older statute in mortgage-related investigations. In addition to the ongoing work of the RMBS task force, the DOJ has brought a number of actions in the last two years seeking civil penalties under 12 U.S.C. §1833a and other statutes for allegations of mortgage-related fraud in an apparent effort to address the economic crisis of several years ago. An examination of these cases raises questions about the government’s emerging new theories, which appear to have turned FIRREA on its head.
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