Posts by: Jessica Edmundson

S.D.N.Y. Allows NCUA to Amend RMBS Suit Against Deutsche Bank and Grants in Part and Denies in Part Motion to Dismiss

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Judge Sidney H. Stein in the United States District Court for the Southern District of New York allowed the National Credit Union Administration (NCUA) to amend its complaint to add a new plaintiff to attempt to establish standing and proceed with its lawsuit against Deutsche Bank National Trust Company (DBNTC), while granting in part DBNTC’s motion to dismiss, which limited the proceeding to NCUA’s breach of contract claims.

Originally filed November 10, 2014 (as covered here), NCUA’s complaint alleges that DBNTC failed in its duties as trustee for 37 RMBS trusts, resulting in losses to those trusts and their investors, including five failed credit unions that were taken over by NCUA. Judge Stein allowed NCUA to amend its complaint to insert a different plaintiff—Graeme W. Bush, a specially-appointed trustee selected by Bank of New York Mellon—with direct standing for a variety of NCUA Guaranteed Note Trusts (NGN Trusts) that were created from the assets of five failed credit unions after the financial crisis. Because Bank of New York Mellon serves as the trustee for the NGN Trusts, NCUA does not have direct standing, and courts had not settled on whether NCUA had derivative standing on behalf of the NGN Trusts. The NCUA’s substitution followed a Second Circuit decision in a similar case affirming the dismissal of NCUA’s derivative claims for lack of standing. NCUA also successfully substituted itself as a direct plaintiff for NGN Trusts that have “unwound” and whose underlying certificates have been returned to NCUA.

After allowing the amendment, Judge Stein went on to grant in part and deny in part DBNTC’s motion to dismiss the amended complaint. While Judge Stein found that NCUA had stated a claim for breach of contract, he found that NCUA’s negligence and breach of fiduciary duty claims were barred by the economic loss doctrine. Further, Judge Stein stayed NCUA’s claims regarding DBNTC’s use of trust funds for indemnification, finding that DBNTC may be required to return the trust funds if there is a negligence finding against it, pursuant to the terms of the governing agreements. Opinion & Order.

Nearly All Claims Against U.S. Bank Dismissed in Ambac RMBS Trustee Suit

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On July 16, Judge Schofield in the United States District Court for the Southern District of New York dismissed four out of five claims in a suit filed by Ambac Assurance Corp. (Ambac) against U.S. Bank National Association (U.S. Bank), challenging the Bank’s actions as trustee for a Harborview Mortgage Loan Trust. Ambac insured certain certificateholders against low cashflow from the Trust, which was backed by Countrywide-originated mortgages. In August 2011, U.S. Bank filed suit in New York state court against Countrywide and Bank of America, as its successor, alleging failure to comply with representations and warranties. When U.S. Bank agreed to stay the state suit after Countrywide proposed a $56.96 million settlement, Ambac sued U.S. Bank in the S.D.N.Y. to enjoin the settlement, alleging that the Bank breached its obligations to trust beneficiaries by accepting a low settlement amount. In March 2017, U.S. Bank initiated a trust instruction proceeding (TIP) in Minnesota to address its claims against Countrywide; meanwhile, Judge Stein in the S.D.N.Y. found in the Ambac-led suit that, because of the ongoing TIP, U.S. Bank had not yet breached its duties, and therefore Ambac’s claims were not yet ripe. On June 1, 2018, U.S. Bank disclosed its $94 million settlement with Countrywide, conditioned on approval by the Minnesota court.

In the case before Judge Schofield, Ambac alleged that U.S. Bank accepted an unreasonably low settlement, that it improperly released other lucrative claims, and that by agreeing to stay the New York state court action and bringing the TIP, U.S. Bank had wasted trust funds, harming trust beneficiaries. Judge Schofield dismissed four of Ambac’s five claims based on these facts, finding that any alleged injury was hypothetical and far too speculative, and that Ambac had not adequately alleged that U.S. Bank taking different actions would have resulted in a more favorable settlement or negotiation position. She also rejected Ambac’s counts for declaratory judgment, because such a finding would serve no useful purpose and would not resolve all of the outstanding cases. Judge Schofield let Ambac’s breach of contract claim continue, finding that Ambac sufficiently alleged that U.S. Bank’s improper accounting of recoveries under the Pooling and Servicing Agreement harmed Ambac, because it affected the amount and timing of the insurance payments that it made. Opinion and Order.

NY Intermediate Appellate Court Reverses Dismissal of HSBC RMBS Suit Against Deutsche Bank

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HSBC, the trustee of two securitizations at issue, successfully appealed the 2018 dismissal of its complaint alleging that DB Structured Products Inc. (DBSP), the sponsor of the two securitizations at issue, breached Mortgage Loan Purchase Agreements and Pooling and Servicing Agreements by securitizing loans in breach of representations and warranties and subsequently failing to disclose its discovery of those breaches. The trial court granted a motion to dismiss without leave to amend because it interpreted the contract language as providing that DBSP had no obligation to inform HSBC when it discovered loan-level breaches due to language in the governing agreements that DBSP notify itself of breaches. A split panel of the New York Appellate Division, First Department, reversed the trial court decision, finding that the contract was ambiguous because of the nonsensical nature of the notice provision, which required DBSP to provide notice to itself and granted HSBC leave to amend its complaint.

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

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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

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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.

Banks Sue NCUA for Breach of 2013 MBS Settlement Agreement

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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.