loans

SDNY Court Appoints Lead Master to Review 9,300 UBS Loans for Material Breach Following UBS Putback Trial

 

On September 6, 2016, following a 3-week long bench trial in May, U.S. District Judge P. Kevin Castel of the Southern District of New York held that he will appoint a Lead Master to determine whether there are “material breaches” in 9,300 loans at issue in putback litigation against UBS. In its 239-page post-trial decision, after addressing a number of issues and discussing 20 loans, the Court appointed a Lead Master to examine each loan on an individual basis and prepare recommended findings and conclusions on liability.

The Court outlined Plaintiff’s burden of proof for breach of underwriting guidelines, holding that the Plaintiff must demonstrate it is more likely than not that the loan was not originated in compliance with the relevant underwriting guidelines, unless an exception was actually exercised, in a reasonable manner, at the time of origination. Plaintiffs will then be required to prove a breach has a “material and adverse” effect at the time UBS’s repurchase obligation was triggered. The Court held this can be shown: (1) by proving an increased risk of loss to certificateholders; (2) with evidence that a breach resulted in altered loan terms; or (3) through a showing of layered risk and/or the cumulative effect of multiple breaches. The Court held that discovery of a breach cannot be based on constructive knowledge. Instead, Plaintiffs must show actual knowledge, which may be established by circumstantial evidence, or willful blindness. Memorandum and Court Order.

Rating Agency Developments

 

On August 22, 2016, Fitch issued an amended report outlining its Criteria for Rating Granular Corporate Balance-Sheet Securitizations. Report.

On August 22, 2016, Fitch issued a report titled: Global Bond Fund Rating Criteria. Report.

On August 19, 2016, Fitch issued a report titled: Global Consumer ABS Rating Criteria. Report.

On August 18, 2016, Fitch revised its criteria for Analyzing Large Loans in U.S. Commercial Mortgage Transactions. Report.

FHFA Further Adjusts Multifamily Lending Caps for Fannie Mae and Freddie Mac

 

On August 18, 2016, the Federal Housing Finance Agency (“FHFA”) announced an additional increase to the 2016 multifamily lending caps for both Fannie Mae and Freddie Mac. The caps for both Fannie Mae and Freddie Mac were raised from $35 billion to $36.5 billion, effective immediately. Press release.

Bill Introduced in Congress to Make “Valid When Made” the Law of the Land

 

Chief Deputy Whip Patrick McHenry (R, NC-10), the Vice Chairman of the House Financial Services Committee, introduced H.R. 5724, the Protecting Consumers’ Access to Credit Act of 2016, which would reaffirm the longstanding legal precedent under the National Bank Act and the Federal Deposit Insurance Act that federal law preempts a loan’s interest if valid when made. The legislation was introduced to address one of the issues raised by the Second Circuit in Madden vs. Midland Funding. Legislation.

JPMorgan Sued Over $959 Million RMBS Trust

On October 10, the Bank of New York Mellon, suing as trustee for the J.P. Morgan Mortgage Acquisition Trust, Series 2006-WMC3 trust, filed a summons with notice in the Supreme Court for the State of New York against WMC Mortgage LLC, J.P. Morgan Mortgage Acquisition Corp., and JPMorgan Chase Bank.  The trustee alleges that the defendants breached contractual representations and warranties and discovered such breaches during origination, due diligence, and servicing of the loans, but failed to adhere to their notice and repurchase obligations with respect to at least 334 of mortgage loans in the $959 million RMBS trust.  Bank of New York Mellon also asserts that JPMorgan Chase Bank, as servicer, breached its servicing obligations through, among other things, ineffective collection activities, delays in foreclosure, and improper modifications.  The trustee seeks damages of no less than $475 million related to the alleged contractual breaches, rescissory damages, an order of specific performance of repurchase, reimbursement of expenses, and pre- and post-judgment interest.  Summons with Notice.

Wells Fargo and KPMG Agree to Settle Wachovia Section 11 Claims for $627 Million

On August 5, 2011, Wells Fargo and KPMG announced an agreement to settle with a class of investors asserting claims based on Wachovia’s 2006 acquisition of Golden West Financial Corp., a mortgage originator based in California. Wells Fargo has agreed to pay $590 million, and KPMG will pay $37 million, for a total settlement value of $627 million. In the suit, brought in 2008 in New York federal court, plaintiffs alleged Golden West originated loans that allowed borrowers to choose from a number of payment options, including payment for less than the interest due, called “Pick-A-Pay” loans. The complaint further alleged that when Wachovia acquired Golden West it began selling the “Pick-A-Pay” loans, as opposed to the traditional, less risky fixed-rate loans, without adequately disclosing the risks to investors or valuing these loans properly on its balance sheet. Plaintiffs brought claims under Sections 11, 12(a)(2), and 15 of the ’33 Act. The settlement was preliminarily approved by Judge Richard Sullivan of the Southern District of New York on August 9, 2011, and is set for a final settlement hearing in November 2011. Motion.

Federal Court Remands Charles Schwab RMBS Action to State Court

On February 23, 2011, the United States District Court for the Northern District of California remanded to state court an action by Charles Schwab Corporation against 27 defendants concerning alleged misrepresentations in connection with 37 different RMBS purchases across 36 different securitizations. Two defendants had argued that the federal court had jurisdiction over the case because the action “relates to bankruptcy” due to the fact that 262 of the underlying loans were originated by a bankrupt entity who would owe the defendants an indemnity for any misrepresentations on those loans. Without answering whether the indemnity claims at issue were enough to trigger “related to” jurisdiction, the court relied on its equitable power to return the case to state court because any connection to the bankruptcy case was “very, very remote.” Among other things, the court noted that the 262 loans constituted only 5.5% in one of the 36 securitizations at issue, and that the plaintiffs were not asserting any misrepresentations in connection with those particular loans. Order.