Helping Law Catch Up to Markets: Applying Broker-Dealer Law to Subprime Mortgages
Jonathan R. Macey
Yale Law School
Geoffrey P. Miller
New York University School of Law
Cornell University - Samuel Curtis Johnson Graduate School of Management
Gabriel D. Rosenberg
Davis Polk & Wardwell LLP
January 3, 2009
Journal of Corporation Law, Vol. 33, 2009
Yale Law & Economics Research Paper No. 359
Johnson School Research Paper Series No. #12-09
Much of the blame for the current financial crisis is attributable to problems in the subprime mortgage market. In this Article we argue that changes in the nature of the mortgage contract make it both legally plausible and normatively desirable that subprime mortgages brokers be treated as securities broker-dealers for the purposes of the Securities Act of 1933 and the Securities and Exchange Act of 1934. Modern subprime mortgages are, in large part, investments that contain imbedded options, and are not subject to any alternative comprehensive regulatory regime. Thus, they should qualify as "notes" under the Securities Act definition and the Supreme Court's Reves test, and expose their brokers to Rule 10b-5 oversight. In the alternative, we argue that the emergence of securitization as the primary process by which mortgages are financed provides a second, independent analytical basis for our theory that subprime mortgage financings should be subject to securities law: Mortgage financings qualify for the protections of rules such as SEC Rule 10b-5 because they occur "in connection with the purchase or sale of a security," namely, the mortgage-backed security that is created and funded on the basis of the cash flows from the mortgagors' payments on their subprime mortgages.
Were the SEC to take control of subprime mortgages brokers, rules that forbid the sale of financial instruments to any person unless investing in those instruments is appropriate (suitable) to the investment needs and risk tolerance of that investor would come into play, oversight that would have avoided or greatly mitigated the current crisis. In describing what suitability would do for the mortgage market, we make a novel distinction between "product" and "transaction form" suitability in our analysis of the suitability rules. We argue that transaction form suitability is the appropriate legal theory to use when pursuing people who have unscrupulously sold subprime mortgages to unsophisticated investors. In closing, we discuss reasons why we believe the SEC has not tried to exert this authority to date, and address the likely result of a legal challenge in the event the SEC were to adopt our proposal by rule.
Number of Pages in PDF File: 55
Keywords: securities law, subprime, reves test, crisis, mortgage
JEL Classification: K22
Date posted: November 23, 2008 ; Last revised: July 15, 2009
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