November 21, 2024

A Bank Regulatory Logjam May Be Easing

Mr. Curry, a lawyer who served as state banking commissioner in Massachusetts, now sits on the board of the Federal Deposit Insurance Corporation.

The White House would like to send Mr. Curry’s name to the Senate at the same time that it moves on its widely reported plan to nominate Martin J. Gruenberg as the new chairman of the F.D.I.C., those people said. Mr. Gruenberg, a longtime Democratic Senate staff member, has served since 2005 as the vice chairman of the F.D.I.C.

Officials have not settled on a candidate to lead another regulator, the new Consumer Financial Protection Bureau, but they are focusing on Raj Date, a former banker who is helping to establish the bureau, those people said. They spoke on condition of anonymity because they were not authorized to discuss the selection process.

Even a single nomination would be the first time since last fall that the Obama administration has moved to reduce the growing number of vacancies at the top of the agencies charged with overhauling the nation’s financial regulations. The White House has promised for several months to send names to Congress as soon as possible, and earlier this week a spokeswoman said action would come “in short order.” The spokeswoman, Amy Brundage, declined to comment Thursday, citing a policy of not commenting on personnel decisions before they are announced by the president.

Mr. Curry and Mr. Gruenberg declined to comment. Mr. Date could not be reached.

The comptroller’s office has lacked permanent leadership since John C. Dugan completed a five-year term in August. John Walsh, one of Mr. Dugan’s deputies, has served as acting comptroller in his stead.

At a celebration for Mr. Dugan shortly before his departure, Treasury Secretary Timothy F. Geithner told staff members that it could take time to find a suitable successor. It was taken as praise but came to seem like prophecy as the administration was turned down by some candidates, and set aside others.

Mr. Curry served as commissioner of banks in Massachusetts from 1995 until 2003, when he was nominated to the F.D.I.C. board by President George W. Bush. His term on the board expired last year, but he has remained in the absence of a replacement. The comptroller holds a permanent seat on the five-member F.D.I.C. board, so Mr. Curry could remain on the board even longer if confirmed as comptroller.

That would be politically expedient for the Obama administration. Mr. Curry is a registered independent and federal law stipulates that no more than three members of the board may belong to the same party.

Mr. Gruenberg, a Democrat, would replace Sheila C. Bair, who plans to step down as chairwoman when her term ends in July. The F.D.I.C. under Ms. Bair’s leadership has gained prominence and power, advocating for the interests of consumers and community banks and, at times, infuriating administration officials and other regulators.

Mr. Gruenberg, who has provided reliable support for Ms. Bair, is seen as likely to advocate the same priorities in a more conciliatory style. He was a longtime aide to former Senator Paul S. Sarbanes of Maryland and retains relationships on Capitol Hill with members of both parties, which could ease his path to confirmation.

If both men are confirmed, the administration would need to fill two new vacancies on the F.D.I.C. board. There are also two vacancies on the Federal Reserve’s Board of Governors, and a vacancy atop the Federal Housing Finance Agency, which regulates Fannie Mae and Freddie Mac. Several positions created by the Dodd-Frank Act also remain to be filled, including a Fed vice chairman for supervision, a head for the new Office of Financial Research and an insurance oversight position.

The most significant vacancy, however, is at the consumer protection bureau, which opens in July but does not gain full powers until it has a permanent head.

The president last year appointed Elizabeth Warren, a Harvard Law professor who was the most forceful advocate for the agency’s creation, to bring it to life. Ms. Warren’s many supporters believe she should be nominated to lead the agency, but her unsparing criticism of financial abuses has made her a polarizing figure.

Mr. Date is seen as a compromise candidate. He worked in the financial industry as an executive at Capital One and Deutsche Bank, then headed a research group that advocated for regulatory reforms before coming to work for Ms. Warren.

Senate Republicans have said that they will not allow a vote on any nominee to lead the new agency until Democrats agree to rewrite the law to reduce its powers. That could force the White House to make an appointment this summer while the Senate is away.

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Failed Bank Tally Reaches 45 in 2011

WASHINGTON (AP) — Regulators on Friday shut a small bank in South Carolina, the 45th bank failure this year.

The Federal Deposit Insurance Corporation seized Atlantic Bank and Trust, based in Charleston, S.C., with $208.2 million in assets and $191.6 million in deposits. First Citizens Bank and Trust, based in Columbia, S.C., agreed to assume its assets and deposits.

The F.D.I.C. and First Citizens Bank agreed to share losses on $141.8 million of Atlantic Bank’s assets. The bank’s failure is expected to cost the deposit insurance fund $36.4 million.

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Economix: The Myth of Resolution Authority

Today's Economist

Simon Johnson, the former chief economist at the International Monetary Fund, is the co-author of “13 Bankers.”

Senator Ted Kaufman, Democrat of Delaware, has been highly skeptical about whether the federal government's power to shut banks can be applied to global megabanks unless an international accord is reached.Andrew Harrer/Bloomberg News Senator Ted Kaufman, Democrat of Delaware, has been highly skeptical about whether the federal government’s power to shut banks can be applied to global megabanks, unless an international accord is reached.

Back when it really mattered – last spring, during the debate over the Dodd-Frank financial regulation – Senator Ted Kaufman, Democrat of Delaware, emphasized repeatedly on the Senate floor that the proposed “resolution authority” (the power to shut banks) was an illusion.

His point was that extending the established Federal Deposit Insurance Corporation powers for “resolving” financial institutions to include global megabanks simply could not work.

At the time, Senator Kaufman’s objections were dismissed by “experts” from both the official sector and the private sector. Now these same people (or their close colleagues) are falling over themselves to argue that resolution cannot work for the country’s giant bank holding companies. The implication, which these officials and bankers still cannot grasp, is that we need much higher capital requirements for systemically important financial institutions.

Writing in the March 29 edition of The National Journal, Michael Hirsch quotes a “senior Federal Reserve Board regulator” as saying: “Citibank is a $1.8 trillion company, in 171 countries with 550 clearance and settlement systems,” and “We think we’re going to effectively resolve that using Dodd-Frank? Good luck!”

The regulator’s point is correct. The F.D.I.C. can close small and medium-size banks in an orderly manner, protecting depositors while imposing losses on shareholders and even senior creditors. But to imagine that it can do the same for a very big bank strains credulity.

And to argue that such a resolution authority can work for any bank with significant cross-border operations is simply at odds with the legal facts. The resolution authority granted under Dodd-Frank is purely domestic; that is, it applies only within the United States.

Congress cannot readily make laws that apply in other countries. A cross-border resolution authority would require either agreement among the various governments involved or some sort of synchronization for the relevant parts of commercial bankruptcy codes and procedures.

There are no indications that such arrangements will be made, or that serious intergovernmental efforts are under way to create any kind of cross-border resolution authority — for example, within the Group of 20.

For more than a decade, the International Monetary Fund has been advising that the euro zone adopt some sort of cross-border resolution mechanism. But European (and other) governments do not want to take this kind of step.

Rightly or wrongly, they do not want to credibly commit to how they would handle large-scale financial failure –- preferring instead to rely on various kinds of ad hoc and spontaneous measures.

I have checked these facts directly and recently with top Wall Street lawyers, with leading thinkers from left and right on financial issues (in the United States, Europe and elsewhere), and with responsible officials from the United States and other countries. That Senator Kaufman was correct is now affirmed on all sides.

Even leading figures within the financial sector now acknowledge this. Mr. Hirsch quotes E. Gerald Corrigan, former president of the Federal Reserve Bank of New York and an executive at Goldman Sachs since the 1990s: “In my judgment, as best as I can recount history, not just the last three years but the history of mankind, I can’t think of a single case where we were able execute the orderly wind-down of a systemically important institution – especially one with an international footprint.”

It is most unfortunate that Mr. Corrigan did not make that point last year – for example, when he (and I) testified before the Senate Banking Committee on the Volcker Rule in February 2010.

In fact, rather tragically in retrospect, Mr. Corrigan was among those arguing most articulately that some form of Enhanced Resolution Authority (as he called it) could actually handle the failure of large integrated financial groups (again, his terminology).

The “resolution authority” approach to dealing with very big banks has, in effect, failed before it even started.

And standard commercial bankruptcy for global megabanks is not an appealing option -– as argued by Anat Admati in The New York Times’ Room for Debate in January.

The only people I have met who are pleased with the Lehman bankruptcy are bankruptcy lawyers. Originally estimated at more than $900 million, bankruptcy fees for Lehman Brothers are now forecast to top $2 billion. (The AmLaw Daily describes this in detail.)

It’s too late to reopen the Dodd-Frank debate –- and a global resolution authority is a chimera in any case. But it’s not too late to affect policies still under development. The lack of a meaningful resolution authority further strengthens the logic of larger capital requirements, as these would provide stronger buffers against bank insolvency.

The Federal Reserve has yet to announce the percentage of equity financing – i.e., capital – that will be required for systemically important financial institutions (the so-called S.I.F.I.’s). Under Basel III, national regulators set an additional S.I.F.I. capital buffer. The Swiss National Bank is requiring 19 percent capital and the Bank of England is moving in the same direction.

Yet there are clear signs that the Fed’s thinking –- both at the policy level and at the technical level –- is falling behind this curve.

This time around, officials should listen to Senator Kaufman. In his capacity this year as chairman of the Congressional Oversight Panel for the Troubled Assets Relief Program (for example, in this hearing), he has been arguing consistently and forcefully for higher capital requirements.

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DealBook: F.D.I.C. Advances New Rules for Mortgage Securities

Federal regulators voted Tuesday to propose new rules that would prohibit Wall Street banks from unloading packages of risky mortgages on investors without keeping some of the risk on their own books, a leading cause of the financial crisis.

The proposed rule would require banks to retain 5 percent of the credit risk on certain securities backed by mortgages, leaving the banks with so-called “skin in the game” on all but the safest loans.

Wall Street banks, which lobbied to temper the rules, won some limited concessions from regulators. The rules do not apply to so-called “qualified residential mortgages,” conservative loans that meet strict underwriting criteria set by regulators. Banks, under the proposal, also would enjoy leeway in deciding how to retain the risk.

The Federal Deposit Insurance Corporation’s board voted unanimously in favor of the proposal, opening it up to public comment. The proposal was mandated by the Dodd-Frank Act, the financial regulatory law signed by President Obama in July.

The law aimed to prevent Wall Street from returning to its old tricks. During the mortgage bubble, lenders churned out bad loans and Wall Street eagerly sold the loans to investors. None of those players had a stake in how the assets ultimately performed.

“This will encourage better underwriting by assuring that originators and securitizers can not escape the consequences of their own lending practices,” Sheila C. Bair, the F.D.I.C.’s chairwoman, said at a public hearing on Tuesday.

But for now, the rules are unlikely to cause much of a shakeup in the mortgage business, as regulators crafted a gaping exemption: Mortgage-backed securities sold or guaranteed by Fannie Mae and Freddie Mac. As long as the government owns Fannie Mae and Freddie Mac, the mortgage giants will not have to retain any risk associated with their mortgage-backed securities.

The two mortgage finance companies, along with several other government agencies that are exempt under the proposal, collectively cover more than 90 percent of the market. The private securitization market dried up during the financial crisis and is only now making a gradual comeback.

The new proposal “pretty much preserves the status quo in the mortgage market,” Jaret Seiberg, an analyst at MF Global’s Washington Research Group, said in a note on Tuesday. “That means few changes in how things work today for mortgage insurers and originators.”

But the rules are not yet complete — and bank lobbyists are only getting started. Banks contend that the new restrictions will cause the private mortgage market to shrink even further, making it harder for consumers to obtain loans.

Ms. Bair contends that will not happen. “The intent of this rule-making is not to kill private mortgage securitization — the financial crisis has already done that,” she said. “Our intent is to restore sound practices in lending, securitization and loan servicing, and bring this market back better than before.”

Still, banks are sure to push for a broader definition of “qualified residential mortgages,” the safer loans exempt from the 5 percent retention requirement.

“I don’t think they’ll go bananas,” said Jason Kravitt, a partner at Mayer Brown and founder of the law firm’s securitization practice. “But the industry will have to work very hard indeed to broaden the definition of qualified mortgages.”

Under the proposal, borrowers must put a 20 percent down payment on their home purchases for a bank to securitize the loan without keeping a stake. The proposal also requires borrowers to be current on other loans and to earn a certain income if a bank wants the exemption.

The proposal would not exempt notoriously risky loans, like interest-only mortgages and adjustable-rate mortgages that feature potentially huge interest rate increases.

Regulators reassured lenders that the government is open to tweaking the requirements or scrapping them in favor of an alternative approach. The proposal includes nearly 150 questions for the industry to address.

But Mr. Kravitt said Wall Street was unlikely to force an overhaul of the proposal.

“Unless the industry makes a strong case that the proposal will prevent the capital markets from having the capacity to finance mortgages, I think it will roughly stay the same,” he said.

Wall Street already won some leeway with regulators. Banks are allowed to pick and choose how they will keep the 5 percent stake. The risk-retention “menu of options,” for instance, features a “vertical” stake, which would allow banks to retain 5 percent of every tranche of a given securitization, according to a summary of the proposal. The industry also can choose a “horizontal” stake, where banks would bear the first 5 percent of losses on the securitization. An additional option is an “L-shaped interest,” which would combine the two other approaches. Yet another alternative allows banks to keep a representative sample of loans from a securitization deal.

The retention requirements fall not on the banks that originate loans, but the firms that package the loans and sold them to investors.

Although the firms, typically big Wall Street banks, would not be able to hedge against the retention risk, under certain circumstances they would be able to pass it on the liability loan originators.

The transfer must be voluntary, and the originator must have contributed at least 20 percent of the loans in a securitization to share in the risk retention.

The proposal was drafted as a joint effort by the F.D.I.C. and five other federal agencies: the Office of the Comptroller of the Currency, the Federal Reserve, the Securities and Exchange Commission, the Federal Housing Finance Agency and the Department of Housing and Urban Development.

The S.E.C. will vote on the proposal on Wednesday before it begins a public comment period. The F.D.I.C.’s public comment period ends on June 10.

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