EMC Mortgage Corporation.

FDIC Sues BNY Mellon For Alleged Failure As Trustee of RMBS

On August 19, 2015, the Federal Deposit Insurance Corp., acting as receiver for Guaranty Bank, filed suit against Bank of New York Mellon Corp. in New York federal court, alleging that BNY breached its duties as trustee of 12 RMBS trusts that issued approximately $2 billion in certificates.  The trusts were sponsored by Countrywide Home Loans and EMC Mortgage Corp.  The FDIC alleges that BNY breached its contractual obligations by failing to provide notice of representation and warranty violations and demand Countrywide and EMC to replace or buy back the noncompliant loans, provided false regulatory certifications and remittance reports, and failed to take possession of complete mortgage files.  The FDIC asserts claims for breach of contract, the federal Trust Indenture Act, and the New York Streit Act.  Complaint.

JP Morgan and Others Voluntarily Dismissed from FHLB Boston’s RMBS Suit

On May 8, 2015, the Federal Home Loan Bank of Boston filed a stipulation of voluntary dismissal with prejudice of claims it levied against JP Morgan Chase & Co., the Bear Stearns Companies Inc., EMC Mortgage Corporation and other entities.  FHLB Boston had filed suits seeking rescission and other damages under Massachusetts law, alleging that the defendant banks made material misstatements and omissions about the riskiness of the mortgage pools underlying the securities.  There was no mention in the stipulation of whether a settlement had been reached.  Stipulation.

Delaware Chancery Court Revives Repurchase Litigation

On January 12, 2015, Vice Chancellor Laster of the Delaware Chancery Court granted the plaintiff’s motion for reargument and revived the breach of contract claims that the court had previously held to be untimely in Bear Stearns Mortgage Funding Trust 2006-SL1 v. EMC Mortgage Corp. and JPMorgan Chase Bank, N.A.. First, the court concluded that a controlling Delaware Supreme Court decision the parties had not previously identified required application of New York’s six year statute of limitations, rather than Delaware’s three-year limitation period. The lawsuit was commenced within six years of the alleged breach, rendering it timely under New York law. Second, the court alternatively reasoned (in dicta) that even assuming Delaware law applied, the action would be timely due to the contract’s accrual provision, which stated that the repurchase claims would not accrue until the plaintiff’s demands were refused. This constituted a “condition precedent” to the action that tolled accrual under Delaware law, a position New York courts have to date rejected. The Court further concluded that the accrual provision validly extended the statute of limitations as permitted by a recent Delaware statute, which permits parties to extend the period up to 20 years (under New York law, parties are not permitted to extend the limitations period by agreement).  Order.

Syncora Permitted to Prove its Breach Claims Without Showing That Alleged Breaches Caused Loans to Default

On June 19, 2012, Judge Paul Crotty of the Southern District of New York granted in part Syncora Guarantee Inc.’s motion for partial summary judgment concerning the showing necessary to prove its claims for breach against EMC Mortgage Corporation. Syncora’s claims arise out of allegedly false representations and warranties concerning the quality of loans underlying $666 million in RMBS that Syncora insured. Without addressing the merits of Syncora’s claims, Judge Crotty ruled that Syncora does not need to prove that the alleged breaches caused any of the alleged defaults that occurred in the loans underlying the RMBS in order to prevail on its claim. Instead, proof that there had been a material breach would be sufficient to entitle Syncora to invoke its repurchase remedy under the parties’ agreement. Similarly, Judge Crotty ruled that Syncora could prove materiality by demonstrating that the breach increased Syncora’s risk of loss, and also ruled that Syncora did not need to prove that the breach caused a loan to default in order to prove materiality. The court held that inaccurate and incomplete information impacts an insurer’s decision whether to issue a policy and at what price and thus adversely affects the insurer’s interest as a matter of law. The court also denied Syncora’s request for a ruling that the court has the power in equity to award relief equivalent to rescission, which the court found would have required factual determinations for which there is no support in the record at this time. Order.