Rating Agency Developments

On May 18, 2016, Fitch issued a report entitled: Fitch: NSFR Rule Could Constrain Trust Banks’ Liquidity Position. Report.

On May 16, 2016, Fitch issued a report entitled: Fitch: Confidence in US Marketplace Lending ABS Takes a Hit. Report.

On May 12, 2016, Fitch issued a report entitled: Fitch Updates U.S. RMBS Seasoned and Re-Performing Loan Criteria. Report.

On May 12, 2016, Fitch issued a report entitled: Fitch Updates U.S. RMBS Loan Loss Model Criteria. Report.

On May 12, 2016, Fitch issued a report entitled: Fitch Publishes Revised EETC Criteria: Allows for Ratings in the ‘AA’ Category. Report.

Federal Appellate Court Reinstates RMBS Action Against Moody’s

On May 2, 2016, the First Circuit Court of Appeals reinstated a $5.9B suit brought by the Federal Home Loan Bank of Boston (“FHLBB”), alleging that Moody’s Corp and Moody’s Investor’s Service, Inc. (together, “Moody’s”) knowingly provided false ratings on certain Residential Mortgage-Backed Securities purchased by FHLBB. The case had been dismissed for lack of personal jurisdiction by Judge George A. O’Toole Jr. of the District of Massachusetts, who also held that the court could not transfer the case to another federal court where jurisdiction would be proper because 28 U.S.C. §1631 only permitted the transfer of cases dismissed for lack of subject matter jurisdiction, rather than personal jurisdiction.

The First Circuit vacated that decision, concluding that the plain language of 28 U.S.C. §1631, the statute’s legislative history, and case law from other Circuits all weighed in favor of a ruling that the statute also permits transfer where the claims at issue were dismissed on either personal or subject matter jurisdiction grounds. Accordingly, the First Circuit remanded the case to the district court to determine whether transfer was “in the interests of justice,” in accord with the statutory requirement for transfer under 28 U.S.C. §1631.  Decision.

Bank of America Settles RMBS Actions for $190 Million

On April 25, 2016, the Federal Home Loan Bank of Seattle (“FHLBS”) agreed to a $190 million settlement with Bank of America in connection with multiple lawsuits filed in 2010 stemming from the sale of hundreds of millions of dollars of RMBS.  FHLBS alleged that Bank of America made misstatements or omissions in connection with the issuance of the RMBS in violation of the Washington State Securities Act.  Additional details of the settlement are not publicly available.

Justice Friedman of the New York Supreme Court Dismisses Two FHFA Repurchase Actions

On April 12, 2016, Justice Marcy Friedman of the New York Supreme Court granted motions to dismiss in two RMBS breach of contract actions filed by FHFA against Morgan Stanley ABS Capital I Inc. (“MSAC”) and Morgan Stanley Mortgage Capital Holdings LLC (“Morgan Stanley”).  In the decisions, he Court dismissed the actions on similar grounds and granted the parties the opportunity to brief claims for failure to notify, in light of the October 13, 2015 First Department’s decision in Nomura Home Equity Loan Inc. Series 2006-FM2 et al. v. Nomura Credit & Capital Inc.

Like Justice Friedman’s ruling last month in ACE Securities v. DB Structured Products, Inc., which we previously covered, the Court held that both actions were not rendered untimely by the Plaintiff’s failure to file repurchase demand condition precedent prior to the filing of the summons with notice.  However, the FHFA, as certificate holder, lacked standing to commence the action and thus the Trustee’s cause of action was untimely because it did not relate back to the FHFA’s summons with notice.  In so holding, the Court rejected the Trustee’s arguments in both cases that the action was timely commenced, and also that the accrual clause in the RMBS extended the statute of limitations, and that the federal Housing and Economic Recovery Act of 2008, applicable to certain actions brought by FHFA, extended the limitations period.  Finally, the Court also held that no tolling agreements saved Trustee’s claims, and also dismissed the causes of action for breach of the implied covenant of good faith and fair dealing, breach of repurchase obligations, and anticipatory breach. Decision 116. Decision 134.

Rating Agency Developments

On April 13, Moody’s published its approach to rating obligations with variable promises, where the source of variation is related to non-standard or non-credit-related reference factors. Report.

On April 7, Fitch published its criteria for rating tender option bonds. Report.

On April 7, Fitch published its criteria for rating Mexican residential mortgage-backed securities (RMBS). Report.

On April 7, DBRS published its criteria for rating companies in the television broadcasting industry. Report.

On April 7, DBRS published its criteria for rating companies in the radio broadcasting industry. Report.

On April 7, DBRS published its criteria for rating companies in the printing industry. Report.

On April 7, DBRS published its criteria for rating companies in the publishing industry. Report.

Goldman Sachs Set to Pay $5.1 Billion in RMBS Settlement

On April 11, Goldman Sachs agreed to pay roughly $5.1 billion in a settlement with federal and state officials regarding the marketing and sale of RMBS during the years leading up to the financial crisis.  The settlement is divided into a $2.4 billion civil penalty, $1.8 billion for consumer relief and $875 million in cash.  Cash payments will primarily be divided among the National Credit Union Administration, the Federal Home Loan Banks and the States of California, Illinois and New York. Goldman Settlement.

Rating Agency Developments

On March 30, 2016, Moody’s published its rating methodology for assessing green bonds. Report.

On March 30, 2016, DBRS published its methodology for rating Canadian structured finance instruments. Report.

On March 30, 2016, DBRS updated and is requesting comment on its methodology for analyzing the credit risk of European RMBS. Report.

On March 30, 2016, DBRS published and is requesting comment on its methodology for analyzing Spanish mortgages. Report.

On March 29, 2016, DBRS published and is requesting comment on its methodology for conducting surveillance on U.S. ABS. Report.

On March 29, 2016, DBRS published and is requesting comment on its operational risk assessment methodology for U.S. ABS servicers. Report.

On March 29, 2016, DBRS published and is requesting comment on its operational risk assessment methodology for U.S. ABS originators. Report.

On March 29, 2016, DBRS published and is requesting comment on its methodology for rating pooled aircraft lease securitizations. Report.

On March 24, 2016, DBRS published its rating methodology for supranational institutions, or multilateral financial institutions (MFIs). Report.

On March 24, 2016, Fitch updated its rating criteria for U.S. auto lease ABS. Press Release.

On March 24, 2016, S&P published its methodology and assumptions for U.S. tobacco settlement securitizations. Report.

Barclays and MassMutual Settle RMBS Litigation

On March 29, Barclays Capital Inc. and Massachusetts Mutual Life Insurance Co. jointly moved pursuant to a confidential settlement agreement for dismissal of an action brought by MassMutual.  MassMutual brought claims under the Massachusetts Uniform Securities Act concerning $175 million in RMBS.  MassMutual alleged that Barclays had made false representations about the quality and risk of default of the underlying loans. Motion for Dismissal. Complaint.

Rating Agency Developments

On March 2, S&P updated its criteria for rating certain U.S. RMBS backed by pre-2009 originated mortgage loansReport.

On March 1, Moody’s updated its rating methodology for U.S. public electric utilities with generation ownership exposure.  Report.

On February 25, Fitch published its rating criteria for airportsReport.

National Credit Union Administration Board Accepts UBS Securities LLC Offer of Judgment

On February 25, the National Credit Union Administration Board (“NCUA”) accepted an offer of judgment tendered by UBS Securities LLC (“UBS”) in the amount of $33,014,285 plus prejudgment interest, which will be calculated by the court. NCUA and UBS will attempt to agree on costs and fees also to be paid by UBS.  Acting as the liquidating agent for Southwest Corporate Federal Credit Union and Members United Corporate Federal Credit Union, NCUA’s complaint alleged that UBS made material misstatements in connection with the sale of 20 RMBS certificates, alleging more than $918 million in actual gross losses.  UBS specified in the offer of judgment that its offer should not be construed as an admission of liability. Offer of Judgment. Complaint.