RMBS

Justice Friedman of the New York Supreme Court Dismisses Two FHFA Repurchase Actions

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On April 12, 2016, Justice Marcy Friedman of the New York Supreme Court granted motions to dismiss in two RMBS breach of contract actions filed by FHFA against Morgan Stanley ABS Capital I Inc. (“MSAC”) and Morgan Stanley Mortgage Capital Holdings LLC (“Morgan Stanley”).  In the decisions, he Court dismissed the actions on similar grounds and granted the parties the opportunity to brief claims for failure to notify, in light of the October 13, 2015 First Department’s decision in Nomura Home Equity Loan Inc. Series 2006-FM2 et al. v. Nomura Credit & Capital Inc.

Like Justice Friedman’s ruling last month in ACE Securities v. DB Structured Products, Inc., which we previously covered, the Court held that both actions were not rendered untimely by the Plaintiff’s failure to file repurchase demand condition precedent prior to the filing of the summons with notice.  However, the FHFA, as certificate holder, lacked standing to commence the action and thus the Trustee’s cause of action was untimely because it did not relate back to the FHFA’s summons with notice.  In so holding, the Court rejected the Trustee’s arguments in both cases that the action was timely commenced, and also that the accrual clause in the RMBS extended the statute of limitations, and that the federal Housing and Economic Recovery Act of 2008, applicable to certain actions brought by FHFA, extended the limitations period.  Finally, the Court also held that no tolling agreements saved Trustee’s claims, and also dismissed the causes of action for breach of the implied covenant of good faith and fair dealing, breach of repurchase obligations, and anticipatory breach. Decision 116. Decision 134.

Rating Agency Developments

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On April 13, Moody’s published its approach to rating obligations with variable promises, where the source of variation is related to non-standard or non-credit-related reference factors. Report.

On April 7, Fitch published its criteria for rating tender option bonds. Report.

On April 7, Fitch published its criteria for rating Mexican residential mortgage-backed securities (RMBS). Report.

On April 7, DBRS published its criteria for rating companies in the television broadcasting industry. Report.

On April 7, DBRS published its criteria for rating companies in the radio broadcasting industry. Report.

On April 7, DBRS published its criteria for rating companies in the printing industry. Report.

On April 7, DBRS published its criteria for rating companies in the publishing industry. Report.

Goldman Sachs Set to Pay $5.1 Billion in RMBS Settlement

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On April 11, Goldman Sachs agreed to pay roughly $5.1 billion in a settlement with federal and state officials regarding the marketing and sale of RMBS during the years leading up to the financial crisis.  The settlement is divided into a $2.4 billion civil penalty, $1.8 billion for consumer relief and $875 million in cash.  Cash payments will primarily be divided among the National Credit Union Administration, the Federal Home Loan Banks and the States of California, Illinois and New York. Goldman Settlement.

Rating Agency Developments

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On March 30, 2016, Moody’s published its rating methodology for assessing green bonds. Report.

On March 30, 2016, DBRS published its methodology for rating Canadian structured finance instruments. Report.

On March 30, 2016, DBRS updated and is requesting comment on its methodology for analyzing the credit risk of European RMBS. Report.

On March 30, 2016, DBRS published and is requesting comment on its methodology for analyzing Spanish mortgages. Report.

On March 29, 2016, DBRS published and is requesting comment on its methodology for conducting surveillance on U.S. ABS. Report.

On March 29, 2016, DBRS published and is requesting comment on its operational risk assessment methodology for U.S. ABS servicers. Report.

On March 29, 2016, DBRS published and is requesting comment on its operational risk assessment methodology for U.S. ABS originators. Report.

On March 29, 2016, DBRS published and is requesting comment on its methodology for rating pooled aircraft lease securitizations. Report.

On March 24, 2016, DBRS published its rating methodology for supranational institutions, or multilateral financial institutions (MFIs). Report.

On March 24, 2016, Fitch updated its rating criteria for U.S. auto lease ABS. Press Release.

On March 24, 2016, S&P published its methodology and assumptions for U.S. tobacco settlement securitizations. Report.

Barclays and MassMutual Settle RMBS Litigation

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On March 29, Barclays Capital Inc. and Massachusetts Mutual Life Insurance Co. jointly moved pursuant to a confidential settlement agreement for dismissal of an action brought by MassMutual.  MassMutual brought claims under the Massachusetts Uniform Securities Act concerning $175 million in RMBS.  MassMutual alleged that Barclays had made false representations about the quality and risk of default of the underlying loans. Motion for Dismissal. Complaint.

Rating Agency Developments

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On March 2, S&P updated its criteria for rating certain U.S. RMBS backed by pre-2009 originated mortgage loans.  Report.

On March 1, Moody’s updated its rating methodology for U.S. public electric utilities with generation ownership exposure.  Report.

On February 25, Fitch published its rating criteria for airports.  Report.

National Credit Union Administration Board Accepts UBS Securities LLC Offer of Judgment

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On February 25, the National Credit Union Administration Board (“NCUA”) accepted an offer of judgment tendered by UBS Securities LLC (“UBS”) in the amount of $33,014,285 plus prejudgment interest, which will be calculated by the court. NCUA and UBS will attempt to agree on costs and fees also to be paid by UBS.  Acting as the liquidating agent for Southwest Corporate Federal Credit Union and Members United Corporate Federal Credit Union, NCUA’s complaint alleged that UBS made material misstatements in connection with the sale of 20 RMBS certificates, alleging more than $918 million in actual gross losses.  UBS specified in the offer of judgment that its offer should not be construed as an admission of liability. Offer of Judgment. Complaint.

Morgan Stanley Agrees to Settlement with DOJ and NYAG Totaling $3.15 Billion

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On February 11, the U.S. Department of Justice and the Attorney General of State of New York announced dual settlement agreements with Morgan Stanley providing for the payment of $3.2 billion. The settlements relate to Morgan Stanley’s marketing, underwriting, and issuance of RMBS from 2005-2007.

In its agreement with the U.S. Department of Justice, Morgan Stanley acknowledged that it had failed to disclose that certain securitized loans did not comply with applicable underwriting guidelines, and that Morgan Stanley’s due diligence practices did not conform to those described in presentations to RMBS investors. Morgan Stanley will pay $2.6 billion to the U.S. Department of Justice, $150 million to the State of New York, and an additional $400 million in relief directly to consumers.  Payment to the U.S. Department of Justice releases Morgan Stanley from any civil claim brought under FIRREA. DOJ Settlement Agreement. State of New York Settlement Agreement.

Judge Mostly Denies Deutsche Bank National Trust Co.’s Motion to Dismiss in RMBS Class Action

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On February 3, Judge Alison Nathan of the United States District Court for the Southern District of New York largely denied Deutsche Bank National Trust Co.’s (the “Trustee’s”) motion to dismiss in a proposed class action brought by Royal Park Investments SA/NV over $3.1 billion in losses in residential mortgage-backed securities.  Royal Park alleged that the Trustee failed to require the loan sellers to repurchase or substitute loans when it became aware that the underlying mortgages were defaulting.  Judge Nathan rejected the Trustee’s argument that Royal Park failed to make a written demand to initiate a repurchase action as required in the trusts’ pooling and service agreements, holding that the Trustee had an obligation to provide notice to the other parties when it independently discovered breaches of representations and warranties.  Judge Nathan did, however, dismiss Royal Park’s derivative claims on behalf of 10 trusts that held the loans because the suit was direct rather than derivative in nature.  Order.

Morgan Stanley Settles RMBS Litigation with FDIC for $63M

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On January 29, Morgan Stanley and the Federal Deposit Insurance Corporation agreed to settle five suits encompassing state and federal claims alleging that Morgan Stanley made misrepresentations in offering residential mortgage-backed securities to three now-defunct banks.  Morgan Stanley will pay $63 million to the FDIC, as receiver for Colonial Bank of Montgomery, Alabama, Security Savings Bank of Henderson, New York, and United Western Bank of Denver, Colorado.  Morgan Stanley denied all liability regarding the claims, and the settlement agreement specified that the parties settled in order to avoid further litigation.  The settlement was reached in coordination with the Department of Justice.  Settlement and Release Agreement.