JP Morgan and Others Voluntarily Dismissed from FHLB Boston’s RMBS Suit

On May 8, 2015, the Federal Home Loan Bank of Boston filed a stipulation of voluntary dismissal with prejudice of claims it levied against JP Morgan Chase & Co., the Bear Stearns Companies Inc., EMC Mortgage Corporation and other entities.  FHLB Boston had filed suits seeking rescission and other damages under Massachusetts law, alleging that the defendant banks made material misstatements and omissions about the riskiness of the mortgage pools underlying the securities.  There was no mention in the stipulation of whether a settlement had been reached.  Stipulation.

Nomura Found Liable in RMBS Trial

On May 11, 2015, Judge Denise Cote of the United States District Court for the Southern District of New York found Nomura Holdings Inc. liable for inaccurately characterizing the mortgage loan collateral backing seven RMBS certificates it sold to Fannie Mae and Freddie Mac between 2005 and 2007.  The suit against Nomura is the last that remains of sixteen lawsuits originally filed against by FHFA against RMBS issuers and sellers alleging violations of Sections 12(a)(2) and 15 of the 1933 Securities Act and state securities laws.  Judge Cote’s decision followed a nearly 4-week bench trial that concluded on April 9, 2015.

In a 361-page decision, Judge Cote found, among other things, that 45% to 59% of the sample loans were materially defective insofar as they deviated from relevant underwriting guidelines, and that 27% of the sample loans were subject to inflated appraisals.  Judge Cote treated this as strong circumstantial evidence that the appraisers did not believe in the credibility of their appraisals at the time that they were made.  Additionally, Judge Cote found that inadequacies in credit ratings of the offered certificates were due to inaccurate loan tapes Nomura provided to the rating agencies.  Finally, Judge Cote found that Nomura’s due diligence practices were insufficient, and rejected Nomura’s argument that market conditions, and not the misrepresentations, caused the losses alleged.  Judge Cote did not specify the amount of damages and asked the parties to submit a proposed judgment by May 15, 2015.  Opinion and Order.

New York Court of Appeals Hears Arguments on RMBS Put-Back Claim Statute of Limitations

On April 30, 2015, New York’s highest court heard arguments in ACE Securities Corp. v. DB Structured Products Inc. regarding the accrual date for RMBS put-back claims – i.e., the date on which the statute of limitations begins to run.  Plaintiff ACE appealed an intermediate appellate court’s ruling that claims for breaches of representations and warranties are time-barred unless brought within six years of the transaction’s closing date.  ACE argued that the claim does not accrue, and the statute of limitations does not begin to run, until a demand for cure or repurchase has been made and rejected, contending that investors may not know of the alleged representation and warranty breaches within six years of closing.  The defendant argued that if the Court adopted plaintiff’s approach and ruled that a put-back claim does not accrue until demand is made, plaintiffs would be able to tactically take a “wait and see” attitude.  Depending on how the deal performs, they potentially could wait for decades after a transaction was entered into before making a repurchase demand, and only then bring suit if the demand is rejected.

Prudential Settles $2B RMBS Suit with Bank of America and Merrill Lynch & Co.

On April 22, 2015, Bank of America and Merrill Lynch reached an agreement with several Prudential Insurance Co. affiliates to settle two lawsuits brought by Prudential.  Prudential had alleged that Bank of America and Merrill Lynch made false statements about the quality of $2.1 billion worth of residential mortgage backed securities they sold to Prudential.  The parties filed a stipulation of dismissal with prejudice but the settlement terms are otherwise undisclosed.  Stipulation.

Second Circuit Vacates Dismissal of $25M CDO Case Against Citi

On April 22, 2015, the Second Circuit vacated and remanded a district court’s decision dismissing on statute of limitations grounds claims Woori Bank brought against Citigroup Global Markets arising out of Woori’s purchase of $25 million in collateralized debt obligations.  Woori asserted claims for fraud, fraudulent inducement, negligent misrepresentation, and unjust enrichment, alleging that Citi made misrepresentations in connection with its sale of the CDO to Woori.  The district court dismissed the action as time-barred, holding that Woori had knowledge of its claim prior to May 2009, the date after which an action would be time-barred under the applicable South Korean statute of limitations.  The Second Circuit reversed.  It held that the news reports and pitch materials on which the district court had relied to establish Woori’s knowledge were not sufficient to put it on notice of its specific claim against Citi because none of them suggested that Citi acted fraudulently in connection with the CDO at issue.  Summary Order.

Second Circuit Affirms Dismissal of Class Action Alleging That RBS Mislead Investors About RMBS Exposure

On April 15, 2015, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a putative investor class action against the Royal Bank of Scotland (RBS).  The plaintiffs had brought claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, alleging that RBS induced them into buying American Depository Shares (ADSs) of RBS between October 2007 and January 2009 by misrepresenting the scope of RBS’s investment exposure to subprime mortgage-backed securities at that time.

The Second Circuit affirmed the District Court’s dismissal on all grounds, holding that certain of the alleged misstatements could not serve as the basis for the investors’ claims because they were made in August 2007, before the class period began, and that other alleged misstatements, concerning RBS’s acquisition of Dutch Bank ABR AMRO, likewise could not sustain a claim because they constituted inactionable puffery.  Opinion.

Morgan Stanley Mortgage Capital Holdings LLC Motion to Dismiss RMBS Claims Granted in Part

On April 3, 2015, Judge Laura Swain of the U.S. District Court for the Southern District of New York granted in part and denied in part Morgan Stanley Mortgage Capital Holdings LLC’s (“MSMC”) motion to dismiss breach of contract and breach of the covenant of good faith and fair dealing claims brought by Deutsche Bank National Trust Company (“Deutsche Bank”), in its capacity as Trustee for the Morgan Stanley Structured Trust I 2007-1.  Deutsche Bank alleged that MSMC, as the sponsor of the RMBS securitization, breached the representations and warranties in the Mortgage Loan Purchase Agreement, and was therefore obligated to cure or repurchase breaching loans.  Judge Swain granted MSMC’s motion to dismiss Deutsche Bank’s claims that MSMC breached an implied covenant of good faith and fair dealing, holding that this was based on the same facts as, and therefore impermissibly duplicative of, the breach of contract claim.  However, Judge Swain denied MSMC’s arguments that the breach of contract claims should be dismissed.  Judge Swain found that Deutsche Bank had provided adequate notice of breaches beyond the 1,620 loans specifically addressed in Deutsche Bank’s breach notice letter because the letter gave MSMC notice of pervasive breaches.  She also declined to dismiss Deutsche Bank’s claims for compensatory, rescissory, and consequential damages at the pleadings phase.  Order.

Motion to Dismiss Action Against RMBS Trustee Denied

On March 31, 2015, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York denied HSBC Bank USA, National Association’s (“HSBC”) motion to dismiss an action brought by a consortium of investors in RMBS for lack of subject matter jurisdiction.  The plaintiffs’ Complaint alleges, inter alia, that HSBC failed to discharge its duties as Trustee for 271 RMBS Trusts in violation of the Trustee Indenture Act (“TIA”) and state common law.  Because the TIA governs only 27 of the 271 Trusts at issue, the plaintiffs invoked supplemental jurisdiction as the basis for the court to hear the claims as to the remaining 244 Trusts.  Judge Scheindlin denied HSBC’s motion, holding that the plaintiffs’ claims all arise from the “same nucleus of operative fact” because the relevant governing agreements all contain substantially similar contract provisions and impose similar duties on HSBC in its capacity as Trustee.  Judge Scheindlin added that judicial economy would be served by retaining supplemental jurisdiction as proof of both the TIA and non-TIA claims would require depositions of many of the same witnesses.  Order.

RMBS Claims Against Ratings Agencies Dismissed as Time-Barred

On March 27, 2015 Judge John Robert Blakely of the U.S. District Court for the Northern District of Illinois granted Standard & Poor’s Financial Services, LLC’s and Moody’s Investors Service, Inc.’s motion to dismiss claims brought by First National Bank and Trust Co. of Rochelle, Illinois arising out of First National’s purchase of certain RMBS certificates.  First National asserted causes of action under the Illinois Consumer Fraud and Deceptive Business Practices Act, the Uniform Deceptive Trade Practices Act, as well as other common law misrepresentation claims, alleging that it had been induced to purchase the certificates in reliance upon misstatements by the ratings agencies.  Judge Blakely dismissed the complaint as time-barred by the Illinois Securities Law’s five-year statute of repose.  He first concluded that the ISL’s statute of repose applied to First National’s claims because the facts alleged, if proven, would have established a violation of the ISL sections on fraud or deceit in connection with the purchase or sale of securities, and because the ISL specifically provided for the injunctive relief requested by First National.  Judge Blakely then found all claims untimely because the RMBS certificates at issue were purchased in February 2008, five years and four months before First National’s suit was filed.  Order.

Bank of America Settles RMBS Suit

On April 2, 2015, plaintiffs BNP Paribas Mortgage Corporation and BNP Paribas and defendant Bank of America filed a Joint Stipulation of Dismissal with Prejudice stating that both parties had reached an agreement to settle claims arising out of Bank of America’s handling of $480.7 million worth of mortgage-backed notes issued by Taylor Bean and Whitaker’s Ocala Funding LLC.  Plaintiffs Complaint alleged that Bank of America, which served as agent, custodian, depositor, and Indentured Trustee of the Ocala facility, failed to live up to its contractual obligations to secure and protect the cash and mortgage loans collateralizing the notes.  The details of the settlement are not yet public.  Joint Stipulation.