RMBS

S.D.N.Y. Grants in Part and Denies in Part Trustee Bank of New York Mellon’s Motion for Summary Judgment in Suit Brought by Certificateholder Phoenix Light

 

On September 7, 2017, Judge Valerie Caproni in the United States District Court for the Southern District of New York granted the majority of RMBS trustee Bank of New York Mellon’s (“BNYM“) summary judgment motion and denied certificateholder Phoenix Light SF Ltd.’s (“Phoenix Light“) cross motion in its entirety in Phoenix Light SF Ltd. v. Bank of New York Mellon. Judge Caproni’s decision significantly curtailed Phoenix Light’s Complaint, which alleged various breaches of the trustee’s duties in connection with 21 RMBS trusts. For eight of the trusts at issue, Judge Caproni rejected Phoenix Light’s breach-of-contract claims alleging that BNYM failed to notify other parties upon discovery of breaches of representations and warranties due to lack of evidence that BNYM actually discovered any breaches. Judge Caproni also rejected the breach claims in connection with another eight trusts due to Phoenix Light’s failure to support the claims with evidence on a “loan-by-loan and trust-by-trust” basis. Only Phoenix Light’s breach-of-contract claims related to trusts where BNYM had notice of a specific breach or an event of default survived, as did Phoenix Light’s Trust Indenture Act claims for three trusts (because BNYM did not address the claims in its reply brief). The Court also granted BNYM’s motion with respect to Plaintiffs’ negligence, gross negligence, and negligent misrepresentation claims, finding that Plaintiffs’ tort-based arguments were duplicative of their breach-of-contract allegations.

S.D.N.Y. Denies Plaintiffs’ Sampling Motion in Consolidated Actions Against RMBS Trustee

 

On August 21, 2017, Judge Katherine Polk Failla of the United States District Court for the Southern District of New York upheld a magistrate’s order denying plaintiff-certificateholders’ motion to attempt to prove their claims by re-underwriting a sample of the loans at issue in a consolidated action against Wells Fargo Bank, National Association, in its capacity as RMBS trustee. Judge Failla, after reviewing the magistrate’s order for clear error, affirmed that under the governing agreements, to prevail on a breach of contract claim against an RMBS trustee with respect to the loans underlying the trust, Plaintiffs must demonstrate a breach on a loan-by-loan and trust-by-trust basis. Accordingly, Plaintiffs cannot utilize sampling in their efforts to prove that the RMBS trustee breached its contractual obligations. Judge Failla also noted that Plaintiffs, rather than needing to prove that the trustee had actual knowledge of breaches of representations and warranties, could potentially demonstrate the trustee’s discovery of breaches through a showing of conscious avoidance or implied actual knowledge. Wells Fargo Sampling Order.

Ratings Agency Developments

 

On April 26, 2017, Fitch issued a report entitled U.S. Public Finance College and University Rating Criteria. Report.

On April 26, 2017, Fitch published an update to its methodology for rating insurance companies. Release.

On April 24, 2017, DBRS issued a report entitled Representations and Warranties Criteria for U.S. RMBS Transactions. Report.

On April 24, 2017, DBRS issued a report entitled Master European Residential Mortgage-Backed Securities Rating Methodology and Jurisdictional Addenda. Report.

On April 24, 2017, DBRS issued a report entitled European RMBS Insight: Dutch Addendum. Report.

On April 21, 2017, DBRS issued a report entitled DBRS Criteria: Financial Ratio Definitions and Accounting Adjustments — Non-Financial Companies. Report.

On April 21, 2017, DBRS issued a report entitled Rating Entities in the Real Estate Industry. Report.

On April 21, 2017, DBRS issued a report entitled Rating Canadian Covered Bonds. Report.

On April 21, 2017, S&P issued a report entitled Foreign Exchange Risk In Structured Finance–Methodology And Assumptions. Report.

On April 20, 2017, DBRS issued a report entitled Rating Canadian Structured Finance Transactions. Report.

New York Court Dismisses Royal Park’s RMBS Cases for Lack of Standing

 

On April 12, 2017, Judge Charles E. Ramos of the New York State Supreme Court for New York County dismissed Royal Park’s RMBS lawsuits alleging fraud and other tort causes of action against Morgan Stanley, Deutsche Bank, Credit Suisse and UBS due to lack of standing. Royal Park had acquired the RMBS certificates from another entity via a portfolio transfer agreement (“PTA“), which transferred the “right, title and interest in and to” the certificates. The defendants argued that New York procedural law governed the issue of standing and that under New York law, the right to bring tort claims would not automatically transfer with the certificates absent an outward expression of an intent to do so. Royal Park argued that the court should apply Belgium procedural law to the standing issue because Belgium law governed the PTA. The court held that New York law governed the issue of standing and that since the PTA unambiguously only transferred the “right, title and interest in and to” the certificates, it did not expressly assign the right to bring tort claims, and Royal Park thus lacked standing to bring its claims. Order.

Rating Agency Developments

 

On April 4, 2017, DBRS updated its methodology for rating U.S. residential mortgage-backed securities (RMBS). Report.

On April 4, 2017, DBRS published its methodology for rating U.S. Property Assessed Clean Energy (PACE) securitizations. Report.

On April 4, 2017, DBRS published its methodology for rating structured finance CDO restructurings. Report.

On April 4, 2017, Moody’s published its ratings methodology for assessing companies in the equipment and transportation rental industry. Report.

On March 31, 2017, DBRS published its master methodology for assessing European structured finance. Report.

On March 30, 2017, Fitch updated its rating criteria for U.S. public finance tender option bonds. Report.

On March 30, 2017, Moody’s updated its ratings methodology for market value collateralized loan obligations (MV CLOs). Report.

Rating Agency Developments

 

On March 29, 2017, Moody’s published its approach to assessing credit risk for multilateral development banks and other supranational entities. Report.

On March 28, 2017, DBRS published its methodology for rating Canadian ABCP and related enhancement features. Report.

On March 28, 2017, Fitch published its U.K. income-contingent student loans rating criteria. Report.

On March 28, 2017, Fitch published an update to its rating criteria for trust preferred collateralized debt obligations (TruPS CDOs). Release.

On March 28, 2017, KBRA published its U.S. consumer loan ABS rating methodology. Report.

On March 24, 2017, DBRS published its methodology for rating companies in the forest products industry. Report.

On March 24, 2017, DBRS published its methodology for rating companies in the radio broadcasting industry. Report.

On March 24, 2017, DBRS published its methodology for rating companies in the television broadcasting industry. Report.

On March 24, 2017, DBRS published its methodology for rating companies in the printing industry. Report.

On March 24, 2017, DBRS published its methodology for rating companies in the publishing industry. Report.

On March 24, 2017, Moody’s published an update to its local currency country risk ceiling for bonds and other local currency obligations. Report.

On March 23, 2017, DBRS published its North American CMBS multi-borrower rating methodology. Report.

On March 23, 2017, Fitch published an update to its criteria for estimating losses on U.S. mortgage pools for RMBS transactions. Report.

First Department Grants Summary Judgment Against RMBS Collateral Manager for Failure to Raise Issue of Fact Regarding Loss Causation

 

On March 2, 2017, the New York Supreme Court, Appellate Division, First Department reversed a decision from the New York Supreme Court and dismissed a complaint filed by two hedge funds against the collateral manager of a $400 million collateralized debt obligation (“CDO“) investment. Plaintiff hedge funds Basis PAC-Rim Opportunity Fund (Master) and Basis Yield Alpha Fund (Master) (together, “Basis“) filed a lawsuit asserting fraud claims against defendant TCW Asset Management Company (“TCW“), which had served as the collateral manager for the Dutch Hill II CDO. Dutch Hill II was created to serve as an investment vehicle for the purpose of taking a net long position on extremely risky RMBS; TCW selected the assets for the Dutch Hill II portfolio and made representations to Basis about the viability of the subprime RMBS market. Basis purchased over $27 million of Dutch Hill II notes in 2007, but the notes were all but valueless following the housing crisis. In moving for summary judgment, TCW submitted expert evidence showing that the housing market crash would have caused Basis’s losses even if the collateral underlying the CDO had not been misrepresented, as Basis alleged. In response, Basis did not submit sufficient evidence rebutting that opinion or showing that any of the particular misrepresentations by TCW caused its losses. The Supreme Court had denied summary judgment, holding that there were issues of fact as to loss causation. The First Department reversed, concluding that by failing to rebut TCW’s evidence, Basis had not raised an issue of fact as to loss causation.  Opinion.

Rating Agency Developments

 

On January 31, 2017, Moody’s updated its U.S. RMBS surveillance methodology. Report.

On January 31, 2017, Moody’s updated its rating methodology for rated issuers in the telecommunications service provider industry globally. Report.

On January 27, 2017, Moody’s revised its approach to assessing credit risk for companies in the soft beverage industry globally. Report.

On January 27, 2017, S&P released an advance notice of proposed criteria changes for rating U.S. residential mortgage-backed securities (RMBS). Report.

Moody’s to Pay $864 Million to U.S. Department of Justice & 21 States in Credit Rating Settlement

 

On January 13, 2017, Moody’s Corporation agreed to pay $864 million in a settlement with the U.S. Department of Justice and 21 states in connection with the ratings agency’s credit rating work on residential mortgage‑backed securities and other products during the years leading up to the financial crisis. The settlement is comprised of a $437.5 million payment to the Department of Justice and $426.3 million to 21 states. The Statement of Facts accompanying the Settlement Agreement states that from 2004‑2010, Moody’s issued credit ratings of RMBS and CDOs, but that there were potential conflicts of interest in Moody’s “issuer‑fee‑based” business model, in which issuers paid Moody’s for their credit opinions. The settlement agreement does not constitute sanctions “for any act or practice of Moody’s.” In accordance with the settlement agreement, Moody’s agrees to maintain and adopt certain compliance measures that “promote the integrity and independence of Moody’s credit ratings” for a period of five years. Settlement Agreement. Statement of Facts. Moody’s Compliance Commitments.