On February 13, 2015, the plaintiffs in New Jersey Carpenters Health Fund, et al., v. Residential Capital, LLC, et al., No. 08-cv-8781 (S.D.N.Y.) filed an unopposed motion for certification of the class and to approve a preliminary settlement. The complaint, originally filed in 2008, included claims for materially false and misleading statements in securities offering documents under the Securities Act of 1933 against Citigroup, Goldman Sachs, and UBS as underwriters for 16 mortgage-backed securities transactions in 2006 and 2007. The class consists of investors who purchased the certificates, with the majority of the settlement funds set aside for investors who purchased their certificates within ten days after the relevant initial offering. The proposed $235 million settlement does not include a $100 million settlement with Residential Capital, LLC that had previously been reached in the case. Motion.
On February 6, 2015, Judge Stanley Chesler of the United States District Court for the District of New Jersey granted in part and denied in part Bank of America’s motions to dismiss two related cases filed against it by several Prudential Insurance Company affiliates. Prudential asserted common law fraud, misrepresentation, and RICO claims against several Bank of America entities arising out of Prudential’s investment in $1.9 billion in RMBS. Judge Chesler dismissed Prudential’s fraud claim, holding that Prudential failed to adequately allege falsity and/or scienter in connection with alleged misstatements concerning occupancy status, appraisals, and credit ratings. He also held that, for the 21 securitizations at issue for which Bank of America served as underwriter only, Prudential failed to allege with the required specificity which Bank of America entity made which challenged representations. Judge Chesler dismissed both of Prudential’s negligent misrepresentation claims. He granted Prudential limited leave to amend in connection with the fraud claim relating to those securitizations for which Bank of America served as underwriter only. Opinion.
On February 6, 2015, plaintiffs Union Central Life Insurance, Ameritas Life Insurance, and Acacia Life Insurance filed a letter with the court stating that they had reached an agreement with Goldman Sachs to settle claims arising out of the insurance companies’ investments in RMBS sponsored by Goldman Sachs. The details of the settlement are not public. The plaintiffs had asserted causes of action for violations of federal securities laws as well as for common law fraud, negligent misrepresentation, and unjust enrichment. Letter.
On February 2, Standard & Poor’s Ratings Services settled claims brought by the Department of Justice, 19 states and the District of Columbia related to credit ratings it issued and maintained for RMBS and CDOs before the financial crisis. As part of the settlement, it agreed to pay a total of $1.375 billion, with $687.5 million paid to the Department of Justice and $687.5 million to the states and District of Columbia. Settlement Agreement.
Also on February 2, S&P settled similar claims brought by the California Public Employees’ Retirement System (CalPERS). The terms of that settlement agreement have not been made public.
On February 1, JP Morgan Chase & Co. settled federal securities claims brought by investors led by the Public Employees’ Retirement System of Mississippi and the New Jersey Carpenters Health Fund related to Bear Stearns’ sale of $17.58 billion in residential mortgage-backed securities. The settlement is subject to approval by U.S. District Judge Laura Taylor Swain of the United States District Court of the Southern District of New York. Settlement Agreement.
On February 3, Judge Martin Glenn of the United States Bankruptcy Court of the Southern District of New York denied defendants’ motions to dismiss four adversary proceedings brought by the liquidating trust for Residential Capital LLC against several originators of residential mortgage loans. The court ruled that the ResCap Liquidating Trust was the real party in interest and therefore had standing to pursue claims against the originators for breach of representations and warranties. The defendants also argued that the Trust lacked standing to sue with regard to loans that had been securitized, because a predecessor ResCap entity had assigned its rights concerning those loans to third-parties. The court rejected this argument, holding that the scope of the assignments raised factual questions that could not be resolved at the motion to dismiss stage. The court granted defendants’ motion to dismiss claims with respect to certain loans as time-barred, holding that New York’s six-year statute of limitations expired as to all loans sold to ResCap prior to May 14, 2006 (six years before the adversary proceedings were filed). Finally, the Court declined to rule on the scope of the remedy available to the Trust at the pleading stage. Memorandum Opinion and Order.
On February 3, Judge Jed S. Rakoff of the United States District Court of the Southern District of New York denied Bank of America Corporation’s and Rebecca Mairone’s motion for judgment as a matter of law, or, in the alternative a new trial. The jury found Bank of America and Mairone liable under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) for the sale of mortgage loans to Fannie Mae and Freddie Mac before the financial crisis. Judge Rakoff found that the jury’s October 23, 2013 verdict was supported by sufficient evidence. Order.
On January 9, 2015, in a series of rulings, Judge P. Kevin Castel of the United States Court for the Southern District of New York granted in part and denied in part motions for partial summary judgment brought by three MASTR Adjustable Rate Mortgages Trusts (2006-OA2, 2007-1, and 2007-3) (the Trusts) and UBS Real Estate Securities Inc. (UBS). The Trusts filed this repurchase claim against UBS after purchasing 17,082 loans, which the Trusts claimed contained breaches of the Pooling and Servicing Agreements’ representations and warranties. First, Judge Castel held that, as a general matter, the Trust could only proceed on loans which were the subject of timely repurchase demands – i.e., the demand’s 90-day cure period must have expired within the six-year statute of limitations period. Second, Judge Castel found that the Trusts could also recover on loans for which it proved UBS’ independent discovery of breaches of representations and warranties, even if those loans were not included in any breach notices. The Trust would be required to prove discovery as to individual loans at trial, In addition, Judge Castel ruled that the Trusts could not recover under a theory of “pervasive breach.” Judge Castel further held that the Trusts could recover losses incurred on liquidated or foreclosed properties, that evidence of default was not required in order to show a breach of representations and warranties, that summary judgment was inappropriate for determining whether loan files were incomplete at the time of origination, and that the Trusts could not recover rescissory damages. Order.
On January 21, 2015, the SEC suspended Standard & Poor’s Rating Services (S&P) from rating conduit/fusion CMBS for one year as part of a settlement between McGraw-Hill Financial Inc., S&P’s parent company, and the SEC. The settlement stems from S&P’s disclosures in 2011 that it would utilize a certain methodology to rate six CMBS transactions and provide a preliminary rating for two others, when it actually used a different methodology, forcing S&P to pull a rating on a $1.5 billion bond that same year. In addition, S&P agreed to retract an allegedly untrue and misleading article that it published in 2012 and settled another claim that it failed to maintain and enforce internal controls regarding changes to its monitoring standards for certain RMBS. S&P further agreed to parallel settlements with New York Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey. The rating agency has also agreed to pay more than $77 million to settle these claims with the federal and state regulators ($58 million to the SEC and another $19 million to New York and Massachusetts). SEC Settlement Order 1. SEC Settlement Order 2. SEC Settlement Order 3.
On January 15, 2015, the Federal Home Loan Bank of San Francisco (FHLB) agreed to a $459 million settlement with various banks stemming from the sales of billions of dollars of RMBS. FHLB originally filed the claims in the Superior Court of California, County of San Francisco in 2010 against Bank of America Corp., Credit Suisse Securities (USA) LLC, Countrywide Financial Inc., Deutsche Bank Securities, Inc. and other banks concerning 229 RMBS transactions. FHLB alleged causes of action for violation of the Securities Act of 1933 and the California Corporate Securities Act as a result of dealers allegedly concealing information and lying about the quality of RMBS sold to FHLB. It is unclear which banks are involved in the settlement.