Litigation

Deutsche Bank Settles Two BlackRock RMBS Suits

 

Deutsche Bank settled with BlackRock and other RMBS investors in New York federal (BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Company, S.D.N.Y., No. 1:14-cv-09367) and California state (BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank Trust Company Americas, Orange County Superior Court, No. 2016-00843062) suits that argued Deutsche Bank failed to fulfill its obligations as trustee of over 500 RMBS trusts valued at more than $570 billion. The settlement comes after the investors repeatedly failed to certify the cases as class actions. The settlement amount was not disclosed.

Judge Grants Stay in U.S. Bank Fee Suit

 

S.D.N.Y. Judge Victor Marrero granted a stay in a proposed class action that alleges that U.S. Bank as trustee improperly used money from trusts to fund its defense in an RMBS suit. Royal Park Investments filed the underlying RMBS trustee suit in 2014 (Royal Park Investments SA/NV v. U.S. Bank National Association, No. 1:14-cv-02590), alleging that U.S. Bank breached its duties as trustee. While the suit was pending, Royal Park Investments filed another suit against U.S. Bank in 2017 (Royal Park Investments SA/NV v. U.S. Bank National Association, No. 1:17-cv-06778) for misuse of trust funds to fund the underlying suit. U.S. Bank contends that indemnification clauses in the trusts’ governing documents allow it to reimburse itself for these legal expenses. Royal Park counters that legal fees are not recoverable if the relevant litigation is the result of U.S. Bank’s gross negligence. Because this gross negligence is a “central factual question” in both suits, Judge Marrero granted the stay to resolve the claim first in the underlying RMBS suit.

Nomura Settles DOJ RMBS Claims for $480 Million

 

Nomura Holdings, Inc. (“Nomura”) and its U.S. affiliates agreed to pay $480 million to resolve claims brought by the United States Department of Justice (“DOJ“) for alleged misrepresentations in connection with RMBS offerings made prior to 2009. The DOJ alleged that Nomura violated the Financial Institutions Reform, Recovery and Enforcement Act by misleading investors about the risks associated with over $13 billion in RMBS securities that Nomura marketed, sold, and issued. Although Nomura reportedly represented its due diligence process as robust and extensive, the DOJ alleged that Nomura ignored those findings and securitized loans that did not meet underwriting guidelines and continually transacted with loan originators with questionable practices. Nomura disputes the DOJ’s characterization of its practices, and released a statement advising that it settled the dispute to avoid incurring additional legal expense related to the transactions at issue in the investigation. DOJ Press Release. Nomura Press Release. Settement Agreement.

New York High Court Affirms Dismissal of Repurchase Claims As Untimely

 

On October 16, the New York Court of Appeals affirmed the dismissal of the RMBS repurchase action brought by Deutsche Bank National Trust Company, in its capacity as Trustee of the Harborview Mortgage Loan Trust Series 2007-7, against Quicken Loans Inc., the originator of the loans at issue. Although the Court of Appeals’ earlier decision in ACE found that causes of action for breaches of representations and warranties contained in an RMBS contract accrue on the closing date, the Trustee here relied on language in the Mortgage Loan Purchase and Warranties Agreement (“MLPWA“) that it claimed extended the statute of limitations. Specifically, the Trustee cited language in the MLPWA stating that a cause of action arising from a breach of a representation or warranty shall accrue upon the discovery of a breach by the purchaser and the failure by the seller to repurchase the defective loan at issue. The Court of Appeals affirmed the First Department’s holding that the Trustee’s claims were time-barred, rejecting the Trustee’s argument that the MLPWA created a substantive condition precedent. The Court of Appeals held the provision at issue merely set forth a remedy for a preexisting wrong, the breach of representations and warranties at the time of sale. It further found that an agreement to postpone the accrual of the cause of action would be inconsistent with New York law and public policy, which does not allow for parties to enter into an agreement that would preemptively extend the statute of limitations in this manner.

New York Federal Court Upholds Privilege and Specificity Requirements Regarding Alleged Awareness of Rep Breaches

 

U.S. District Court Judge Katherine Polk Failla denied Plaintiff-Investors’ attempts in Blackrock Allocation Target Shares et al. v. Wells Fargo et al., No. 1:14-cv-09371 (S.D.N.Y.) to overturn two magistrate judge decisions preventing them from accessing Wells Fargo’s privileged communications and ordering them to identify with greater specificity when Wells Fargo allegedly became aware of problems in a series of residential mortgage-backed securities trusts.  READ MORE

U.S. Bank and UBS Reach $850M Settlement in RMBS Put-Back Action

 

On July 25, 2018, U.S. Bank NA and UBS AG announced they had reached an $850 million settlement in connection with a dispute over loans in three residential mortgage-backed securities trusts. U.S. Bank filed suit against UBS in the Southern District of New York in 2012 seeking $2 billion for UBS’s alleged breach of representations and warranties about those loans. Following a three-week bench trial in 2016, U.S. District Judge P. Kevin Castel held that UBS had breached representations and warranties in certain respects and appointed special master Barbara S. Jones to review breach allegations concerning thousands of individual loans and issue a recommendation regarding liability and damages as to each loan. Order.

New York Court of Appeals Requires Ambac to Follow Repurchase Protocol and Prove Elements of Fraud Claim

 

On June 27, 2018, the New York Court of Appeals ruled that Ambac Assurance Corporation (“Ambac“) could not recover the full $2.2 billion in damages it sought in the form of claim payouts on $25 billion worth of securitized mortgages from Countrywide Home Loans, Inc. (“Countrywide“). Ambac, a monoline financial guaranty insurer, had agreed to insure payments of principal and interest owed to holders of 17 RMBS securitizations that had been sponsored by Countrywide. Ambac sued Countrywide, alleging claims for fraudulent inducement and breach of contractual representations and warranties. At summary judgment, Ambac contended that it was not required to prove justifiable reliance or loss causation for the fraudulent inducement claim, and that the contract’s repurchase protocol—specified to be the sole remedy for breaches of representations and warranties—did not govern its contractual claims. READ MORE

Merrill Lynch Settles SEC RMBS Fraud Claims for $16M

 

On June 12, 2018, the United States Securities and Exchange Commission (“SEC“) issued an Order instituting administrative proceedings, making findings, and imposing remedial sanctions against Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch“), a subsidiary of Bank of America Corporation, pursuant to Section 15(b) of the Securities Exchange Act of 1934. The SEC alleged that personnel of Merrill Lynch, acting as broker-dealers engaged in secondary market trading of non-agency RMBS, made false or misleading statements to customers between June 2009 and December 2012 that led customers to accept less or pay more for securities than they otherwise might have accepted or paid.  Merrill Lynch agreed to settle the claims for approximately $16 million without admitting or denying the allegations. Order.

Monoline Insurer Sues Trustee Over Settlement Figure in RMBS Repurchase Action

 

On June 8, 2018, monoline insurer Ambac Assurance Corporation (“Ambac“) filed a complaint in the United States District Court for the Southern District of New York against U.S. Bank National Association (“U.S. Bank“), trustee of the Harborview Mortgage Loan Trust 2005-10 (the “Trust“). The complaint alleges that U.S. Bank breached certain contractual and common law duties when it agreed to a proposed $94 million settlement of an ongoing RMBS repurchase action in New York state court against Bank of America, N.A. and certain affiliates, as successors to Countrywide Home Loans, Inc. (the “Countrywide Action“). Among other things, Ambac alleges that U.S. Bank was required to observe heightened duties of care when an Event of Default occurred under the governing PSA, and that U.S. Bank breached those duties when it agreed to settle the Countrywide Action for approximately 28% of the amount that its expert opined it was entitled to recover. Ambac further alleges that U.S. Bank breached the PSA by incorrectly accounting for recoveries received by the Trust. The complaint asserts two claims for declaratory judgments, two claims for breach of contract, and one claim for breach of fiduciary duty.  Complaint.

RMBS Trustees Defeat Motion for Class Certification in California State Court

 

On May 30, 2018, Judge Ronald L. Bauer of the Superior Court of the State of California, County of Orange denied investor Plaintiffs’ (led by BlackRock Balanced Capital Portfolio (FI)) Motion for Class Certification and Appointment of Class Representative and Class Counsel in an action alleging breach of contract against RMBS Trustees Deutsche Bank National Trust Company and Deutsche Bank Trust Company Americas. Ruling from the bench, Judge Bauer based his decision on the difficulties Plaintiffs would face in “presenting evidence of causation and damages” in a class action without making an individualized showing. He further noted that the analysis would be “intensely factually oriented” and would require reviewing “an enormous number of detailed transactions.” Judge Bauer also referred to the issues of standing, statute of limitations, and choice of law in the case as “impossible” to pursue in a class action. Order.