By Ylan Q. Mui
Washington Post Staff Writer
Friday, February 11, 2011; 8:10 PM
The Securities and Exchange Commission charged three top executives of failed mortgage giant IndyMac on Friday with misleading investors as the firm was faltering during the financial crisis.
According to the SEC, former chief executive Michael Perry and former chief financial officers Scott Keys and Blair Abernathy knew that the lender was running short of the cash it needed to offset risky loans in 2007 and 2008 but failed to inform shareholders. The FDIC took control of IndyMac in July 2008, and it filed for bankruptcy months later.
"Federal securities laws do not become optional when the news is negative," Lorin L. Reisner, deputy director of the SEC's division of enforcement, said in a statement.
Perry and Keys disputed the allegations and said they committed no wrongdoing. Jean Veta, an attorney with Covington & Burling representing Perry, called the SEC's complaint "the worst kind of Monday morning quarterbacking." Gregory Bruch of Willkie Farr & Gallagher, an attorney for Keys, said the charges were "dead wrong."
Keys "didn't profit in any way during this period," Bruch said. "He tried to keep this bank alive."
The SEC also said that Abernathy knew that 12 to 18 percent of IndyMac's loans had incorrect information about borrowers when he was in charge of specialty lending in 2007. Abernathy settled with the SEC without admitting or denying guilt, the agency said. He must pay penalty charges over $125,000 and is barred from practicing accounting for two years. His attorney, Robert Fairbank of Fairbank & Vincent, had no comment.
IndyMac was one of the first major lenders to collapse as a wave of subprime borrowers began defaulting on their loans. Customers, worried about whether the firm would survive, rushed to withdraw their deposits in July 2008. It was brought under FDIC control days later.
According to the SEC charges, IndyMac executives failed to disclose several warning signs that the thrift was in trouble. In public documents, they expressed confidence that the lender maintained enough money in reserve to cover its loans. But privately they worried it would fall below the regulatory threshold for reserves and began selling stock to boost its cushion of cash, the SEC said.
In February 2008, executives also asked its federal regulator, the Office of Thrift Supervision, for permission to change the way the lender calculated the amount of reserves required for subprime loans, allowing it to operate with less cash, according to SEC charging documents. That change was never reflected in the company's public filings, the agency said.
In addition, the OTS purportedly allowed Perry to backdate $18 million in capital so that it could meet its threshold for reserves. The government official who oversaw the move resigned after it was disclosed in a report by the Treasury Department in 2008. The SEC said IndyMac should have informed investors of the change.
In addition to penalty fees, the SEC is seeking to bar Perry and Keys from serving as company officers or directors. The FDIC sold IndyMac to a group of private investors in 2009 and has modified mortgages for thousands of its former customers by lowering their interest rates.