Second Circuit Reverses and Remands Trial Court’s Summary Judgment Order in Favor of Morgan Stanley in a CMBS Case

On April 27, 2016, the Second Circuit Court of Appeals vacated and remanded the district court’s summary judgment order entered in favor of defendant Morgan Stanley Mortgage Capital, Inc. in the Southern District of New York.  Plaintiff Bank of New York Mellon Trust Company, N.A., as trustee of a CMBS deal, alleged that Morgan Stanley breached an environmental conditions contract representation, requiring Morgan Stanley to repurchase an $81 million mortgage loan.  The Second Circuit reversed the trial court’s conclusion that Morgan Stanley was not contractually obligated to repurchase the mortgage loan because the Trustee’s duty to give “notice of cure” within three business days of becoming aware of a material breach was a condition precedent to Morgan Stanley’s repurchase obligation.  The Second held that a request to cure a material breach was not a condition precedent under the contract.  In so holding, the Second Circuit distinguished between the Mortgage Loan Purchase Agreement’s separate obligations of “notice of breach” and “request to cure.”  As to the “request to cure” obligation, the Court found nothing that made it clear that Morgan Stanley’s remedy obligation does not arise until a request for cure is made.  The Court remanded the case to the trial court to reassess the timeliness of the Trustee’s notice for cure, which was a fact issue that must be presented to the factfinder at trial to determine when the Special Servicer concluded its investigation.  In addition, because request for cure is not a condition precedent, the jury would have to decide the question of substantial performance.  The Court held that a reasonable jury could find that, even if there was some delay in requesting cure, it could determine that substantial performance occurred. Decision.

Rating Agency Developments

On March 8, 2016, Fitch updated its global rating criteria for single- and multi-name credit-linked notes. Report.

On March 8, 2016, DBRS published its methodology for rating European covered bonds. Report.

On March 4, 2016, DBRS published its methodology for rating North American CMBS. Report.

On March 3, 2016, Fitch updated its rating criteria for pooled multifamily housing bonds. Report.

On March 3, 2016, Fitch updated its rating criteria for solar power projects. Report.

On March 3, 2016, DBRS published its methodology for rating public-private partnerships. Report.

On March 3, 2016, DBRS published its methodology for rating market-linked securities. Report.

On March 3, 2016, DBRS published its criteria for recovery ratings for non-investment grade corporate issuers. Report.

Rating Agency Developments

On December 9, 2015, Moody’s published its global methodology for rating securities backed by pools of auto loans and auto leases to individuals. Report.

On December 8, 2015, Moody’s published its methodology for rating the temporary investment of cash in structured finance transaction accounts. Report.

On December 7, 2015, Fitch updated its criteria for recovery estimates and recovery ratings and clarified the notching guidance for unsecured debt of issuers rated in the ‘BB’ category and above. Report.

On December 4, 2015, Fitch updated its criteria for not-for-profit hospitals and health systems outside the U.S. Report.

On December 4, 2015, Moody’s updated and replaced its existing methodology for how Moody’s Loss Given Default framework is used in making rating distinctions. Report.

On December 3, 2015, Fitch updated its criteria for rating U.S. equipment lease and loan ABS. Report.

On December 3, 2015, Fitch published its Global Consumer ABS Rating Criteria for analyzing credit risk in asset-backed securities backed by consumer receivables globally. Report.

On December 3, 2015, Fitch updated its recovery ratings and notching criteria for equity REITs. Report.

On December 3, 2015, Kroll published its methodology for rating the financial strength of private mortgage insurance companies. Report.

On December 3, 2015, Kroll published its methodology for rating U.S. CMBS single borrower and large loan transactions. Report.

On December 3, 2015, Kroll published its methodology for rating U.S. CMBS multi-borrower transactions. Report.

On December 3, 2015, Kroll published its methodology for rating U.S. distressed commercial real estate liquidating trust securitizations. Report.

On December 3, 2015, Kroll updated its CMBS property evaluation methodology. Report.

Bank of America and Midland Settle RMBS Litigation

On September 8, 2015, Bank of America NA and Midland Loan Services settled Bank of America’s lawsuit seeking a declaratory judgment that it did not breach the representations and warranties in connection with a CMBS securitization and, consequently, did not need to repurchase loans from the securitization.  As a result of the settlement, the lawsuit was dismissed with prejudice.  The terms of the settlement were not disclosed.  Dismissal Order.

Rating Agency Developments

On April 23, Fitch released its updated criteria for rating operational risk of U.S. servicers of RMBS and small balance commercial securitiesReport.

On April 23, Fitch released its updated criteria for rating operational risk of servicers of various structured finance products, including RMBS, CMBS, and ABS.  Report.

On April 22, Moody’s released its rating methodology for monitoring scheduled amortization UK student loan-backed securities.   Report.

On April 21, Fitch released its updated criteria for analyzing trust-preferred CDOsReport.

On April 17, DBRS released its updated criteria for commercial paper liquidity support for non-bank issuers. Report.

On April 17, DBRS released its criteria for rating market-linked securitiesReport.

Rating Agency Developments

On March 27, DBRS released its updated methodology for rating North American commercial mortgage-backed securities (CMBS).  Report.

On March 27, Fitch released its updated criteria for analyzing U.S. wireless tower transactionsReport.

On March 31, Fitch released its updated criteria for analyzing loans securing residential mortgage-backed securities (RMBS) under the ability-to-repay and qualified mortgage standards that the Bureau of Consumer Financial Protection adopted as part of its amendments to Regulation Z under the Truth in Lending Act.  Report.

On April 1, DBRS released its updated methodology for the surveillance of European structured finance and covered bonds transactionsReport.

SEC Suspends S&P From Rating Certain CMBS As Part Of $77 Million Settlement

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 1SEC Settlement Order 2SEC Settlement Order 3.

Rating Agency Developments

On December 10, Moody’s released its approach to rating sustainable net cash flow for CMBS and CRE CDO CLO Real Estate collateral in the Americas and ex-Japan Asia Pacific.  Approach

On December 10, Moody’s released its approach to rating US and Canadian Conduit/ Fusion CMBS.  Approach

On December 10, Fitch released its criteria to rating U.S. fixed-rate multiborrower CMBS surveillance and re-REMIC criteria.  Criteria

On December 9, Fitch released its guidelines for rating prefunded U.S. municipal bonds.  Guidelines

On December 9, Fitch released a table of covered bonds spread levels.  Table

On December 8, Moody’s released its methodology for rating business and consumer service industry.  Methodology

On December 8, Moody’s released its methodology for rating global oilfield services industry.  Methodology.

Rating Agency Developments

On December 12, Moody’s released its methodology for rating intellectual property ABS.  Moody’s Report.

On December 12, Fitch released its criteria for rating pooled multifamily housing bonds.  Fitch Report.

On December 11, Fitch released its criteria for surveillance of existing U.S. CMBS fixed-rate and multi-borrower transactions.  Fitch Report.

On December 9, DBRS issued a request for comment on rating CLOs and CDOs of large corporate credit.  Comments must be received by January 6, 2014.  DBRS Report.

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