Subscribe to our InfoBytes Blog weekly newsletter and other publications for news affecting the financial services industry.
On January 25, the Supreme Court of the State of New York ordered an investment bank subsidiary (defendant) to pay nearly $604 million, plus pre-judgment contractual interest, to an insurance company (plaintiff) for allegedly breaching the representations and warranties contained in a pooling and servicing agreement (PSA) for mortgages contained in the residential mortgage-backed securities (RMBS) it sold in 2007. According to the November 2020 post-trial order, the plaintiff issued irrevocable insurance policies that “unconditionally guaranteed payment of principal and interest to certificate holders of the RMBS transactions.” After the 2008 financial crisis, 51 percent of the original loan balances of the related mortgages held in the insured trust defaulted, and in July 2009, the plaintiff began to send mortgage repurchase demand letters to the defendants. Following the defendant’s refusal to repurchase the loans, the plaintiff subsequently commenced the action, alleging that the defendant breached the representations and warranties contained in the PSA. At trial, the trial court concluded that the plaintiff “convincingly proved” that “more than half of the securitized loans were materially non-conforming” and should be awarded compensation for its losses, as the plaintiff “did not assume the risk of loss that [the non-confirming loans] posed.” However, the court further determined that the plaintiff could not recover damages that were not “directly attributable to the materially non-confirming loans.” After directing the parties to file letters addressing remaining issues before the entry of monetary judgment, the court determined that the repurchase date for determining damages should be 90 days after the repurchase trigger (the date of notice from plaintiff) and not the date of breach. Therefore, based on a repurchase date of October 28, 2009, the court ordered the defendant to pay nearly $604 million in damages to the plaintiff.
On March 11, the U.S. District Court for the Southern District of New York granted partial summary judgment in favor of the securities arm of a large banking group (defendant) in an FDIC suit alleging securities violations in the offering, sale, or distribution of residential mortgage-backed security (RMBS) certificates to a now failed bank. As receiver for the failed bank, the FDIC filed suit in 2007 concerning, among other things, two senior certificates purchased by the failed bank. The FDIC alleged that the defendant omitted key facts and made numerous false statements of material fact to sell RMBS certificates to the failed bank and additionally performed due diligence on the underlying loans, thus participating in the distribution of the certificates. The agency further alleged that although the defendant “did not directly purchase or sell the senior certificates, [the defendant] is still an underwriter as defined under the Securities Act because of its ‘direct or indirect participation’ in the distribution of the senior certificates.”
The court sided with the defendant, finding that even though its “due diligence and review of prospectus supplements helped facilitate the securities offerings, those activities do not involve the purchase, offer, or sale of the securities and thus are not part of their distribution.” The court reasoned that the prospectus supplements of the senior class certificates specifically state that the defendant was only an underwriter for the subordinated class certificates and not for the senior class certificates purchased by the failed bank. Accordingly, the court granted the defendant’s motion for partial summary judgment, dismissing the two claims with respect to the senior certificates.
On January 30, the FDIC adopted the Final Rule to Revise Securitization Safe Harbor Rule (rule) as recommended by FDIC staff in a memorandum dated January 23. In July, as previously covered by InfoBytes, the FDIC approved a proposal to remove the requirement that, for safe harbor treatment, “the documents governing a securitization issuance require compliance with Regulation AB” of the SEC Regulation AB, “in circumstances where Regulation AB is not, by its terms, applicable to that transaction.” The proposal suggested that “it is no longer clear that compliance with the public disclosure requirements of Regulation AB in a private placement or in an issuance not otherwise required to be registered is needed to achieve the policy objective of preventing a buildup of opaque and potentially risky securitizations such as occurred during the pre-crisis years, particularly where the imposition of such a requirement may serve to restrict overall liquidity.” The final rule—which is unchanged from the proposal—eliminates the “significant disclosure requirements” to no longer mandate that private placements of securitization obligations provide Regulation AB disclosures. With the adoption of the final rule, only those transactions that are subject to Regulation AB are required to make the disclosures. The rule is expected to increase the securitization of residential mortgages and will become effective 30-60 days after it is published in the Federal Register.
On December 10, the U.S. District Court for the Eastern District of New York issued a memorandum and order denying an international bank’s motion to dismiss a DOJ suit filed in 2018. As previously covered in InfoBytes, the DOJ alleges the bank and several affiliates violated the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) by misleading investors and rating agencies in offering documents and presentations regarding the underwriting quality and other important attributes of the mortgages they securitized into residential mortgage-backed securities (RMBS) for sale to investors during the financial crisis. Specifically, the complaint alleges (i) “mail fraud affecting federally-insured financial institutions (FIFIs)”; (ii) wire fraud affecting FIFIs; (iii) bank fraud; (iv) “fraudulent benefit from a transaction with a covered financial institution (FI)”; and (v) “false statements made to influence the actions of a covered FI.” The DOJ seeks the maximum civil penalty.
According to the district court’s memorandum, the bank’s motion to dismiss sets forth a number of arguments, including, among other things, a failure to sufficiently plead fraudulent intent and the particular circumstances constituting fraud, and a lack of personal jurisdiction, all with which the court rejected. Specifically, the bank suggested that the DOJ’s complaint did not show that the bank “acted with fraudulent intent,” or that the bank committed “bank fraud, [made] fraudulent bank transactions, and [made] false statements to banks.” The memorandum rejects the bank’s claims, adding that personal jurisdiction over the bank and its affiliates is shown “based on [the bank’s] origination of loans” in New York.
On November 18, the U.S. District Court for the Southern District of New York denied an investment company’s request to use “sampling-related expert discovery” in its action against a trustee of five residential mortgage-backed securities (RMBS), concluding that the proposal was not proportional to the needs of the case. As previously covered by InfoBytes, the investment company filed suit against the trustee alleging the trustee “failed to fulfil certain contractual duties triggered by the discovery of breaches of ‘representations and warranties’” when the underlying mortgages allegedly were found not to be of the promised quality. The investment company also alleged that the trustee failed to exercise its rights to require the companies that sold the mortgages in question “to cure, substitute, or repurchase the breaching loans.” After being denied class certification by the court in February, the investment company preemptively moved for an order from the court allowing it to use sampling-related expert discovery—a process which “engage[s] experts to select samples of mortgage loans from each of the five trusts and to perform analyses on those samples of loans to extrapolate information about the quality of all of the loans in the trusts.”
The court denied the request, calling the proposed sampling a “blind corner.” The court noted that the “breach rate evidence” that would be discovered by the sampling “only provides substantial probative value for [the investment company’s] claims if [the investment company] can demonstrate that [the trustee] was under an obligation to conduct an investigation of the loans in each of the trusts,” which the investment company has failed to do. Because “the probative value of that discovery hinges upon a factual theory that [the investment company] has yet to demonstrate is viable,” the court could not justify allowing the parties to expend hundreds of thousands of dollars on the proposed sampling.
On October 30, the SEC requested public input on asset-level disclosure requirements for residential mortgage-backed securities (RMBS). The current requirements, which were adopted in 2014 in response to the financial crisis, require issuers to disclose a wide range of data on each mortgage loan in the underlying pool at the time of an offering and on an ongoing basis. As previously covered by InfoBytes, in September, the U.S. Treasury Department released a Housing Reform Plan, which, among other things, recommended that the SEC review the RMBS asset-level disclosure requirements to assess the number of required reporting fields and to clarify certain defined terms for SEC-registered private-label securitization offerings. In response to Treasury’s plan, Chairman Clayton requests that SEC staff assess the “RMBS asset-level disclosure requirements with an eye toward facilitating SEC-registered offerings,” and seeks public input on a variety of questions related to the topic, including (i) whether the circumstances in the RMBS market have changed since the financial crisis and the 2014 adoption of the requirements; (ii) whether one or more data points in the requirements should be revised and why; and (iii) whether any data points should be eliminated and if elimination would result in any adverse effects. The announcement does not contain a deadline for members of the public to submit their input.
District Court allows NCUA to substitute plaintiff, denies dismissal of breach of contract claim in RMBS action
On October 15, the U.S. District Court for the Southern District of New York held that the NCUA may substitute a new plaintiff to represent the agency’s claims in a residential mortgage-backed securities (RMBS) action against an international bank serving as an RMBS trustee. In the same order, the court dismissed certain tort claims, but allowed claims for breach of contract to move forward against the trustee.
According to the opinion, NCUA brought the action on behalf of 97 trusts for which the international bank served as the trustee, even though NCUA only had direct interest in eight of the trusts. NCUA argued it had derivative standing to pursue the claims on behalf of the other 89 trusts “on the theory that it had a latent interest in the [the 89 trusts] after they wound down and as ‘an express third-party beneficiary under the [89 trusts] Indenture Agreements.’” The trustee moved to dismiss the action and after hearing oral arguments on the motion, the court stayed the case pending the outcome of NCUA’s appeal regarding derivative standing in similar action before the U.S. Court of Appeals for the Second Circuit. In August 2018, the 2nd Circuit held that NCUA lacked standing to bring the derivative claims because the trusts had granted the right, title, and interest to their assets, including the RMBS trusts, to the Indenture Trustee. (Previously covered by InfoBytes here.) Based on the appellate court decision in the similar action, NCUA moved to file a second amended complaint and substitute a newly appointed trustee as plaintiff for the claims made on behalf of the 89 trusts for which it did not have direct standing.
Despite the trustee’s objections, the district court granted NCUA’s request, concluding that NCUA’s claims were timely and allowing the NCUA’s “Extender Statute”—which gives the agency the ability to bring contract claims at “the longer of” “the 6-year period beginning on the date the claim accrues” or “the period applicable under State law”—to apply to the new substitute plaintiff. Additionally, the court denied the bank’s motion to dismiss NCUA’s breach of contract claim alleging the trustee had notice of the defects in the mortgage files held in the various trusts. The court concluded that NCUA sufficiently plead that the trustee “did indeed receive notice [of the defective mortgages] and should have thus acted,” under the Pooling and Servicing Agreements.
On October 3, the Washington Supreme Court reversed the dismissal of an action against two international banks, concluding that the Securities Act of Washington (the Act) does not require a plaintiff to prove reliance on misleading statements during the purchase of residential mortgage-backed securities (RMBS). According to the opinion, a Seattle Federal Home Loan Bank (FHL Bank) purchased over $900 million in RMBS from two international banks in 2005 and 2007, and in 2009, brought separate actions against the banks for allegedly making untrue or misleading statements in connection with the RMBS in violation of the Act. Specifically, the FHL Bank argued that the banks (i) made false statements concerning the loan-to-value ratios of the mortgage loans pooled in the RMBS; (ii) misrepresented the quality of their underwriting standards; and (iii) made false statements about the occupancy status of the mortgaged properties in the pool. The trial court granted summary judgment in favor of both banks, and the Court of Appeals affirmed, concluding that reasonable reliance on the misleading statements was required under the Act and that the FHL Bank did not rely on the statements from one bank and unreasonably relied on statements of the other. The FHL Bank appealed both decisions.
The Supreme Court consolidated the actions and disagreed with the appeals court conclusions in both. Specifically, the Court determined that the plain language under the Act is clear and “unambiguously does not require reliance.” The Court emphasized that the refusal to “read reliance into the statue” furthers the Act’s foal of protecting investors, ensuring “that those harmed when a seller misrepresents material facts can recover.”
In dissent, one state Justice argued that the Court’s opinion undermines nearly “50 years of case law and legislative acquiescence,” noting that federal courts “frequently resolve state securities fraud claims, and they too have consistently treated reliance as an element of our state-law claim.”
New York Supreme Court Appellate Division says repurchase obligations not limited to defaulted loans
On September 17, the New York Supreme Court, Appellate Division, affirmed a trial court’s decision to grant partial summary judgment in favor of four residential mortgage-backed securities (RMBS) trusts (plaintiffs) on breach of contract allegations related to pooling and servicing agreement (PSA) repurchase obligations. The appellate court also concluded that the trial court correctly denied a motion for summary judgment filed by the seller of the mortgage loans (defendant). At issue were PSAs—entered between the plaintiffs and the defendant—containing a “repurchase protocol,” which dictate that the defendant is required to “cure, substitute, or repurchase” any defective loans “within 120 days of the earlier of the discovery by the defendant . . . or [the defendant’s] receipt of written notice from any party of a breach of any representation or warranty in the PSAs which ‘materially and adversely affects’ the interest of certificateholders in any mortgage loan.” The trial court denied the defendant’s motion for summary judgment, which, among other things, sought dismissal of claims related to the defective loans that the defendant argued were not specifically identified in timely breach notices. According to the appellate court, the trial court had correctly held that the trustee had delivered “timely presuit letters” concerning the defective loans that were placed in the trusts and had provided sufficient “notice that the breaches plaintiffs were investigating might uncover additional defective loans for which claims would be made.” The appellate court also agreed with the trial court’s decision to grant the plaintiffs’ motion for partial summary judgment to the extent that it sought a ruling that a breach that “materially and adversely” affects the certificateholders’ interest—as outlined in the repurchase protocol—is not limited to loans in default, but also “applies to any breach that ‘materially increased a loan’s risk of loss.’” Further, the appellate court also concurred with the trial court’s decision to grant the plaintiffs’ motion for partial summary judgment and deny the defendant’s motion concerning the use of statistical sampling to prove breach of contract claims for both liability and damages. However, both courts agreed that the defendant will have an opportunity to raise those arguments if it chooses to challenge the sample size or the loans chosen as part of the sample.
SEC settles with U.S. affiliate of Japanese financial institution for mortgage-backed securities failures
On July 15, the SEC announced an approximately $25 million settlement with the U.S. affiliate of a Japanese financial holding company, resolving allegations that the company failed to adequately supervise mortgage-backed securities traders. According to the orders, covering commercial mortgage-backed securities (CMBS) and residential mortgage-backed securities (RMBS), from approximately January 2010 through April 2014 several traders allegedly made false or misleading statements while negotiating the sales of CMBS and RMBS, including information about (i) the company’s purchase price of the securities; (ii) the compensation the company would receive on the trades; and (iii) the current ownership of the securities. The SEC alleges the company failed to reasonably supervise traders to prevent the alleged violations of federal antifraud provisions. The orders acknowledge the company’s significant cooperation in the matter and require the company to reimburse customers the full amount of profits earned from the identified trades, totaling over $4.2 million to CMBS customers and over $20.7 million to RMBS customers. Additionally, the orders penalize the company $500,000 related to the CMBS trades and $1 million related to the RMBS trades.
- Daniel R. Alonso to discuss anti-money-laundering at FELABAN Spanish-language webinar “Perspective for banks: LAFT, FINCEN, OFAC, Cryptocurrency”
- Daniel R. Alonso to discuss "What’s new in BSA/AML compliance?" at the Institute of International Bankers Regulatory Compliance Seminar
- Marshall T. Bell and John R. Coleman to speak at 2021 AFSA Annual Meeting
- Jon David D. Langlois to discuss "Regulatory update: What you need to know under the new boss; It won’t be the same as the old boss" at the IMN Residential Mortgage Service Rights Forum (East)
- Benjamin B. Klubes to discuss “Creating a Fantastic Workplace Culture”
- John R. Coleman and Amanda R. Lawrence to discuss “Consumer financial services government enforcement actions – The CFPB and beyond” at the Government Investigations & Civil Litigation Institute Annual Meeting
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute
- Jonice Gray Tucker to discuss “Regulators always ring twice: Responding to a government request” at ALM Legalweek