Second Circuit Upholds Dismissal of U.S. Bank’s Untimely Breach of Contract and Indemnity Claims

 

On February 6, the Second Circuit affirmed a trial court order dismissing repurchase and indemnification claims brought by the Federal Housing Finance Agency (“FHFA“), acting on behalf of U.S. Bank as Trustee, against GreenPoint Mortgage Funding Inc., predicated on allegations that mortgage loans sold by GreenPoint breached representations and warranties in the relevant loan purchase agreements. READ MORE

Appeals Court Affirms BNYM Defense Verdict in Trustee Litigation

 

On February 9, the Court of Appeals of Ohio issued an order affirming a 2017 bench trial defense verdict for The Bank of New Mellon (“BNYM“) in a lawsuit filed by certain RMBS investors alleging that BNYM had breached its duties as trustee under certain pooling and service agreements.

The appellate court, in a lengthy opinion, affirmed findings by the trial court that (i) the pooling and service agreements imposed only limited pre-default obligations on BNYM as Trustee; and (ii) that those duties remained limited in this case, and were never heightened by law because plaintiffs failed to prove that BNYM had actual knowledge of specific breaches of representations and warranties on any particular loans and/or had received a notice of an event of default. The Court also affirmed the trial court’s finding that under the law, plaintiffs had to prove the existence and materiality of loan breaches on a case-by-case basis, rendering loan sampling an inappropriate method to calculate damages.

The Banks Sue NCUA for Breach of 2013 MBS Settlement Agreement

 

On February 11, Bank of America, Merrill Lynch, and Countrywide (together, “the Banks“) filed suit against the National Credit Union Administration Board (“NCUA“) in its capacity as liquidating agent or conservator to six credit unions who purchased MBS issued by the Plaintiffs. The suit arises from a 2013 settlement agreement between NCUA and the Banks after the six credit unions’ failure and subsequent liquidation or conservatorship. In the settlement agreement, NCUA agreed to use “good faith” and “best efforts” to obtain releases for the Banks in any actions that NCUA later pursued against third-parties involving the Banks’ MBS. Plaintiffs specifically allege that because NCUA failed to seek a release of the third-party entity’s indemnification claims against the Banks with respect to three settlements with two entities, the Banks were forced to pay to settle subsequent third-party indemnification demands. Plaintiffs also allege unjust enrichment, breach of the implied covenant of good faith and fair dealing, and violations of the Administrative Procedure Act., 5 U.S.C. §§ 702 and 706(2), due to the breaches.

European Commission Adopts New Delegated Regulation Identifying High-Risk Third Countries under MLD4

 

On February 13, the European Commission adopted a Delegated Regulation (C(2019) 1326 final) which supplements the Fourth Money Laundering Directive ((EU) 2015/849) (“MLD4“) by identifying 23 high-risk third countries with strategic deficiencies. The Delegated Regulation will repeal Delegated Regulation (EU) 2016/1675 which currently lists 16 countries as high-risk. READ MORE

Council of EU Agrees Position on Proposed PEPP Regulation

 

On February 13, the Council of the EU published a press release which announced that its Permanent Representative Committee (COREPER) had agreed its position relating to the proposed Regulation on a pan-European personal pension product (“PEPP“). The text, now agreed between the European Commission, the European Parliament and the Council, will undergo legal and linguistic review, before the Parliament and Council will be called to adopt the final text.

In a press release, the Commission welcomed the agreement.

FSB Report Assesses FinTech Developments and Potential Financial Stability Implications

 

On February 14, the Financial Stability Board (“FSB“) published a report assessing FinTech market developments in the financial system and the potential implications for financial stability.

Three FinTech developments were considered: new providers of bank-like services competing or co-operating with established financial services providers; the provision of financial services by large technology companies (BigTech); and reliance on third-party providers for cloud services. These are considered to be developments that are altering, or have the potential to alter, the current structure of the financial system and as a result may have financial implications for financial stability. READ MORE

European Parliament Adopts Proposed Regulation Amending Regulation on Cross-Border Payments

 

On February 14, the European Parliament published a press release announcing it had adopted in plenary at first reading the proposed Regulation amending the Regulation on cross-border payments (924/2009regarding certain charges on cross-border payments in the EU and currency conversion charges (20189/0076/(COD)). On the same day the provisional edition ((P8_TA-PROV(2019)0124) of the text of the legislative resolution was also published.

The next step is for the proposed Regulation to be adopted by the Council, after which it will enter force 20 days after its publication in the Official Journal (“OJ“) and the majority of provisions will apply from December 15, 2019.

An FAQs and factsheet have also been published in relation to the proposed Regulation.

Consumers Slightly Less Optimistic about Personal Finances and the Economy

 

On February 11, the Federal Reserve Bank of New York’s Center for Microeconomic Data released the January 2019 Survey of Consumer Expectations, which shows that while short- and medium- term inflation expectations were unchanged, households were generally less optimistic about the economy and about future changes in their financial situation. Release.