Upcoming Presentation: Trends in MBS Litigation

I am pleased to announce that I will be speaking in and presenting at an upcoming Strafford live phone/web seminar, “Mortgage-Backed Securities Litigation: Latest Developments” scheduled for tomorrow, Thursday, November 15, 1:00pm-2:30pm EST. This will be largely geared towards attorneys (CLE credit available), but should have relevance for anyone participating in or following MBS litigation, so I thought this might be of particular interest to the readers of this blog.  Plus, as a reader of The Subprime Shakeout, you are eligible to attend this seminar at 50% off (note: the author derives no compensation for participating in or promoting this seminar). There is a link at the bottom of this post that will automatically give the discount to anyone interested in participating.

The following is a description of the subject matter to be covered:

The credit crisis and multi-billion dollar write-down of mortgage-backed securities (MBS) have spawned suits by investors against issuers and underwriters alleging securities fraud, contractual claims and claims of misrepresentation.  In addition to individual suits, investors have initiated class actions.

Recent federal and state court rulings have sharpened substantive and procedural issues, although many issues remain to be addressed. Settlement announcements have accelerated and may shape the course of ongoing cases.  My fellow panelist, James Goldfarb, and I will update counsel on recent trends involving residential and commercial MBS suits and outline approaches to prepare for the complexities involved in representing the various stakeholders.

We will offer our perspectives and guidance on these and other critical questions:

  • What are the bases for suits regarding MBS?
  • What challenges do plaintiffs’ counsel face in pursuing MBS claims?
  • What challenges do defendants’ counsel face in defending MBS claims?
  • How will recent and pending rulings in individual and class actions impact MBS litigation?
  • What are the most recent developments in settlement of MBS suits?

After our presentations, James and I will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly.

I hope to hear from some of you tomorrow.

Follow this link or more information or to register at half price, call 1-800-926-7926 ext. 10 (ask for Mortgage-Backed Security Litigation on 11/15/12 and mention code: ZDFCT)


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Investor End Games: All Is Not Well in the Garden

“As long as the roots are not severed, all is well.  And all will be well in the garden.”

- Chance the Gardener, Being There (1979)

With Judge Barbara Kapnick announcing earlier this month that the approval hearing in Bank of New York Mellon’s (BNYM) proposed $8.5 billion Article 77 settlement over Countrywide bonds will take place in May 2013, this next year will be truly one of reckoning for mortgage investors and the U.S. mortgage market as a whole.  Though Her Honor’s proposed timetable may be a bit ambitious, what is clear is that the window of opportunity for investors be made whole for the toxic waste they were sold is finite and rapidly shrinking.

In the case of Countrywide, the end game will depend on the evidence that objecting investors can uncover prior to the approval hearing that might demonstrate that BNYM was conflicted or that its assumptions were unreasonable, both of which would suggest that the settlement number is too low.  For example, the Steering Committee of objecting investors has now sought to intervene in MBIA v. Countrywide to persuade Judge Bransten to remove Countrywide’s confidentiality designations from evidence that MBIA will be presenting to support its summary judgment motions.  Should these documents become public, they would not only encourage Bank of America to settle its 4-year battle with the bond insurer, but they would provide objecting investors in the separate Article 77 action with evidence that might undermine Bank of New York’s assumptions that BofA could ring fence Countrywide.

Meanwhile, the end game scenarios for MBS issuers other than Countrywide will depend on how well investors can get organized over the next six months to a year before the expiration of New York’s six-year statute of limitations on rep and warranty claims.

I have been covering these developments for nearly five years, and blogging about them for four, and I can say with little hesitation that this year will tell us more about the ultimate subprime shakeout than any since the onset of the Mortgage Crisis.  The outcome of BNYM and BofA’s ambitious global settlement as well as investor efforts to file claims before the statutory deadline should lead to a flurry of activity before this time next year, giving us some degree of closure regarding who will bear the losses for the irresponsible lending of 2006 and 2007.  With these developments already starting to unfold, I thought it was high time for my long-promised article on investor end game scenarios.

A Quick Look Back

I launched this blog in July 2008 (link to my first post) in part to help keep readers informed of the latest developments in a market that affects us all in one way or another, and usually in more ways than one.  If you pay taxes, own investments or pay a mortgage in the U.S., you have and continue to be impacted by the fallout from this country’s worst housing crisis since the Great Depression.

But another purpose of this blog was to try to understand what investors were doing about this mess, and if I could, to help push investors towards taking proactive steps to help get this country back on track.  With the government response sorely lacking in cohesiveness and sophistication, only concerted action by investors could restore the integrity of our mortgage market, an essential cog in the economy that was valued at $11 trillion at its peak.

I came at this issue from a background in mortgage insurance litigation, through which I was exposed to shocking truths about how the subprime and Alt-A sausage was made in the years leading up to the crash.  We had been able to obtain favorable results for mortgage insurance clients based on the strength of their contractual representation and warranty claims that held lenders and issuers to concrete underwriting standards.  But I kept asking myself, if mortgage insurers were having success suing and/or forcing settlements over loans that didn’t meet lending guidelines, why weren’t investors doing the same?

Four years later, with only a fraction of potential investor suits having been pursued, I have gained some of the answers to that question, but none are satisfactory.  Yes, investors are conservative by nature, they usually wish to avoid the spotlight, and they are (rightfully) skittish about suing the powerful banks with whom they do business on a regular basis.  The procedural hurdles in their contracts are onerous, the path of litigation is long and costly, and the prize at the end of the road is uncertain and difficult to quantify.

All these things are true, and yet the returns from this type of litigation could be enormous – far exceeding the returns investors could achieve just about anywhere else in the market.  More importantly, I would argue that this type of litigation engenders critical redistribution of wealth from banks to investors, which both deters banks from engaging in shoddy lending and securitization practices, and helps to encourage investors to return and support a private mortgage market in the future.  Still, nobody ever said that doing the right thing and unwinding one of the most complex and extensive Ponzi schemes in history would be easy.

An Unexpected Source of Inspiration

One of the great things about living in Petaluma (other than getting to watch our boys finish third in the Little League World Series this past weekend – so proud!) is that most homes have decent-sized backyards and there’s great weather for gardening.  Each year, I like to grow a few standards – tomatoes and jalapeños for homemade salsa, at a minimum – and a few novelties, just to keep things interesting.  This year, I tried my hand at Japanese eggplant, curly kale, and tomatillos.  I even grew some padron peppers, known as the Russian roulette peppers because every half dozen or so are deadly spicy, which turned out to be a hit in my family.  This year, as in years past, some plants flourished, while others never seemed to catch on.

I was working in my garden this past weekend, getting a healthy reprieve from mortgage crisis litigation, when I stopped to evaluate a couple of potted herbs that had once been strong, but that had for some time been languishing in various states of poor health.  I had tried everything on these – watering them more, watering them less, giving them more sun, giving them less sun, cutting them back, letting them grow – but nothing seemed to work.  The stalks had become ossified, the leaves rust-colored, and there was little growth or production to speak of.

I decided I might try transplanting these sickly specimens, but when I removed the pots from around the root balls, I realized that their roots had withered and died, and these plants were beyond help.

It was only then, when I finally decided to let those plant go, and went out and bought new, vibrant replacement plants, that I realized what a drag the old plants had been on my garden.  Sure, it hadn’t “cost” me anything in the monetary sense to prop these plants up, beyond perhaps the cost of the water I poured into their pots.  But in reality, there were significant non-monetary costs that had to be taken into account.

There were the favored places in the garden that got the most sunlight that the plants had been occupying, there was the time and effort that I put into keeping them alive, there was the emotional drag of seeing the plants failing to recover day after day, and there were the opportunity costs of not having fresh herbs to use because I didn’t want to go out and buy replacements when the old plants in my garden were still technically alive.  Suddenly, a light bulb went off.

My saga with my plants on life support was the perfect metaphor for the societal costs of propping up the “too big to fail” (TBTF) banks and allowing fatally wounded “zombie” banks to continue to suck scarce resources from the economy.  Just as it pained me to give up on plants that had once been productive, the politics surrounding “too big to fail” banks make regulators irrationally averse to allowing nature to run its course and take down sickly financial institutions.  The fear is that the interconnectedness of the market, just like the interconnectedness of a root system, means that allowing a major financial institution to fail will disrupt the entire market. But the alternative brings its own costs that must be taken into account, such as the creation of perverse incentives for anti-competitive and inefficient behavior.

Of course, this wasn’t the first time someone had drawn the analogy between botany and economic health.  I immediately thought of the 1979 movie Being There (based on the book by Jerzy Kosinski), featuring Peter Sellers in a unique role as the simpleton gardener who gets mistaken for a brilliant sage (watch original trailer here).

Knowing nothing about the outside world except what he had seen on TV and learned in his garden, Chance the Gardener wanders out into the world to become known as Chauncey Gardner, whose simple statements about gardening come to influence national economic policy.  I had not seen the movie in many years, so I decided to rent it, and was bowled over by its continued relevance.  Take the following exchange:

Chance the Gardener: In the garden, growth has it seasons. First comes spring and summer, but then we have fall and winter. And then we get spring and summer again.

President “Bobby”: Spring and summer.

Chance the Gardener: Yes.

President “Bobby”: Then fall and winter.

Chance the Gardener: Yes.

Benjamin Rand: I think what our insightful young friend is saying is that we welcome the inevitable seasons of nature, but we’re upset by the seasons of our economy.

This axiom immediately called to mind my economics classes in college, in which the pejorative word “recession” was rarely used when describing down cycles in the market.  Instead, these downturns were referred to as “corrections,” a word with a much more positive connotation.

The idea was that down cycles were necessary and ultimately beneficial parts of the business cycle, as they corrected inefficiencies in the market by exposing and eliminating the weakest players.  This, in turn, cleared the way for new, more efficient players to enter, enabling greater long-term growth.  In other words, to paraphrase Jefferson, the tree of capitalism must be refreshed from time to time by the blood of insolvency.

An Economy on Life Support

Unfortunately, during this recent recession, little has actually been “corrected” in the U.S. market, and it’s a big reason we continue to languish in a tepid economy, bouncing along the bottom.  The continued lethargy in the housing market across most of the country is one of the primary culprits, and this, in turn, can be blamed on a failure to deal effectively with distressed properties and the failure to correct fundamental problems with housing finance that might pave the way for the return of the private market.

Bill Frey and I published Way Too Big to Fail precisely to address and offer solutions for these ongoing problems, but few of these suggestions have been implemented as of this writing (I would note that Redwood Trust, one of the few funds that has been issuing MBS in the last few years, has implemented several reforms in its securities that mirror those discussed in the book, and has demonstrated solid performance as a result).

The truth remains that loan aggregators and sellers have not been forced to pay for the harm they have inflicted on the economy – not in any meaningful sense.  Sure, some of them got caught holding the bag with some of these toxic assets on their own books when the music stopped, and some have settled with certain aggressive investors or insurers, but they have not been held accountable for the bulk of the toxic assets they sold during the Boom Years.

And what did these issuers do that was so wrong?  Weren’t they victimized like the rest of us when the world unexpectedly fell apart?

As I’ve gone into at great length in prior posts, at a minimum, loan aggregators and sellers (i.e. most of this country’s largest banks and investment banks) sold over a trillion dollars’ worth of securities backed by loans that were nowhere near the quality that they represented (let’s use the technical legal term “crappy loans”).  These institutions agreed to repurchase these crappy loans at par should they fail in any material respect to meet extensive warranties regarding their quality and characteristics.

In some cases, major investment banks profited multiple times off of the sale of the same crappy loans: 1) by bargaining down the price they paid for the crappy loans using the results from their own due diligence samples and then selling loans they knew were defective to investors at a profit; 2) by going back to loan sellers and shaking them down for settlements when the crappy loans went bad; and 3) by placing strategic bets against the securities themselves or the industry participants like monoline insurers who would be saddled with the losses from these crappy loans.

This and other irresponsible or outright fraudulent conduct has contributed to the complete collapse of the private mortgage market.  More than 95% of new loans today are backed by our government, and thus by you, the taxpayer.  There is no private market to speak of, save for a few jumbo deals with high-quality collateral, and there will be no serious private market for the foreseeable future.

There is a massive crisis of confidence – and deservedly so – surrounding our largest financial institutions and the rule of law.  Our pension funds, college endowments, and insurance funds have taken the bulk of the losses thus far.  And investors will not return to this market if some measure of loss sharing (I won’t go so far as to call it “justice”) is imposed on the banks that created and sold these crappy loans in the first place.

The federal government, for its part, has responded primarily by bailing out those same banks and “foaming the runway” for a soft landing.  In actuality, the Treasury and the TARP bailout gave the banks such as soft landing that they largely bounced back without experiencing the healing pain of austerity, downsizing or – gasp – failure.

As illustrated in Neil Barofsky’s eye-opening new book, Bailout, this was the result of an intentional policy decision – the decision to inject capital and confidence into the economy by propping up the largest banks.  This path has failed completely to boost the capital available for the middle class, and has succeeded only in postponing the correction and keeping bloated institutions on life support.  Meanwhile, it has created perverse incentives for banks to misrepresent their financial health by manipulating LIBOR and take risky double-or-nothing-style bets to try to earn their way out.  

Again, I am reminded of the scene in Being There where Chance is asked by the President to weigh in on economic policy:

President “Bobby”: Mr. Gardner, do you agree with Ben, or do you think that we can stimulate growth through temporary incentives?

[Long pause]

Chance the Gardener: As long as the roots are not severed, all is well. And all will be well in the garden.

The roots of our biggest financial institutions are withered and rotting, and the costs of keeping them alive are mounting.  And yet, with little appetite in Washington for another federally-funded bailout of Wall Street, and continued strains being placed on bank balance sheets, there is still hope for that much-needed correction to take place.

Tough Love

What will drive a correction in this market?  Given the aversion of government to crack down on the banks with civil or criminal sanctions or redistributive tax and spend policies, the only hope we have is that private litigants will turn to the court system.

This process comes intuitively to most of us: if someone were to steal a significant amount of your money and refuse to return it when confronted, you would probably take the thief to court.  It may take time and expense, but if you’re in the right, you should be able to recoup far more than your costs (hopefully a above-market ROI) through a judgment from the court (provided the thief is not judgment-proof).  This is how the court system and the rule of law were designed, and the act of going through the court process not only helps the victims recover what’s rightfully theirs, but it helps the entire system by deterring future theft.  The same can be said about enforcing contractual reps and warranties.

I believe our court system still largely functions as it was designed to, albeit more slowly than we might like.  This is why I have been advocating for years for investors to get organized and enforce their contractual and common law rights to recompense.

In the putback space, contractual requirements of 25-50% voting rights for investors to have standing mean that investors must band together to make any progress.  There have been several efforts to do so on behalf of investors, but most have fallen apart, save for attorney Kathy Patrick’s efforts on behalf of 22 institutional investors (more on that later).

The problem here is that there are intermediaries between those who are currently bearing the losses and those who should be bearing the losses.  There are money managers who value their relationships with liquidity providers over the dispersed individuals whose money they manage.  There are RMBS Trustees who likewise value their relationships with the banks that hire them over the Certificateholders whose interests they arguably have the obligation and sole power to protect.

This makes the process even more complex and tedious because it means that those whose money was stolen may be forced to sue the intermediaries for failing to act on their behalf in addition to, or in lieu of, suing the thieves themselves.  That is already beginning to happen, and investors have made some encouraging strides in their suits against particularly obstreperous RMBS trustees.

So what about Kathy Patrick’s efforts that resulted in a proposed $8.5 billion settlement on Countrywide bonds, a proposed $8.7 billion settlement on ResCap bonds, and potential future settlements with other large banks?  As I’ve discussed at length, this group is led by some extremely conflicted investors who are dedicated to preserving the status quo.  They would like to create the appearance that they are doing something to enforce their own investors’ rights and recover some of their money so that they can avoid being sued themselves (see above) for wasting valuable claims and failing in their fiduciary duties to their investors.

But, they don’t want to do so much as to make it too painful for BofA, JPMorgan Chase and the other banks on whom they depend for financing in a variety of other areas.  So, they put together a settlement at pennies on the dollar and hope to get the court to bless (read: rubber stamp) it.

Sure, there are investors who oppose these global settlements, but the number that is willing to speak up is small and dwindling.  Walnut Place, represented by Grais and Ellsworth, was one of the most vocal and active objectors in the $8.5 billion Countrywide settlement.  They had intervened, in part, to preserve their claims in their separate putback lawsuit against BofA.  However, when they’re separate suit got dismissed for failure to comply with procedural prerequisites, and the dismissal was upheld on appeal, Walnut Place dropped its objections to the $8.5 billion deal and eventually put its Countrywide MBS holdings up for sale.

Rest assured that the Steering Committee of intervenors in the settlement has not disbanded; however, there is now one fewer vocal investor driving the Committee’s efforts.  It appears that AIG, represented by Reilly Pozner, and the Triaxx CDOs, represented by Miller Wrubel, are stepping into Walnut’s place, and ably representing the remaining objectors.  But many investors have kept quiet as this deal has been foisted upon them, and those who are spending money to object are starting to question whether it’s worth their time and money.

In their more cynical moments, investors are starting to feel that fix is in and question whether they’re throwing good money after bad.  Plus, we have heard scant little from the New York and Delaware Attorneys General, who after fighting so hard for the right to intervene, have been little more than window dressing in the Article 77 hearings over the last few months.

It remains to be seen how difficult the Steering Committee can make things for BofA and BNYM over the next year by demanding detailed discovery.  Already, the Committee has succeeded in obtaining court approval to review 150 Countrywide loan files for breaches of reps and warranties, over the strenuous objections of BofA.  Though not a statistically significant sample size, the review could uncover indications of a significantly higher rate of breaches of reps and warranties among Countrywide trusts than was assumed by Bank of New York when reaching the settlement figure.  This, in turn, could prompt Judge Kapnick to order a more extensive sampling of loan files.

Most recently, Reilly Pozner filed a letter in MBIA v. Countrywide (h/t Manal Mehta), seeking to persuade Judge Bransten to unseal reams of potentially damaging documents regarding BofA’s purchase of Countrywide, which were unearthed by MBIA after years of hand-to-hand discovery battles in that case.  On Monday, Bloomberg LP also threw its hat into the ring, filing a motion for leave to intervene to encourage Judge Bransten to remove confidentiality restrictions on the documents (another h/t Manal Mehta).  Judge Bransten has set a hearing for today to consider this issue, which beyond having major ramifications for MBIA in this case, could provide valuable ammunition to all plaintiffs seeking to hold BofA accountable for Countrywide’s liabilities.

But as far as the Article 77 case goes, it’s hard to gauge just how much evidence Judge Kapnick would require to find that BNYM’s proposed settlement is unreasonably low.  MBIA v. Countrywide should certainly provide a fair amount, if it goes much further without settling.  While the Article 77 should continue to yield interesting developments for the next year or so (remember that Kapnick has now set an approval hearing for May 2013), it’s starting to look more and more like this deal will go through as proposed.  Barring a major collective action push by institutional investors, it’s only a matter of time before Patrick begins cutting similar deals with the other major issuers.

Don’t Put Your Trust in Trustees

What can we expect from trustees like Bank of New York Mellon, who have the strongest legal standing to enforce breaches of reps and warranties?  BNYM recently filed an action against WMC Mortgage and GE Mortgage Holding (h/t Manal Mehta), joining the ranks of trustees like Deutschebank, Wells Fargo, and U.S. Bank (going after BofA and WMC), which have filed putback lawsuits on behalf of investors.

We’ve also seen BNYM negotiate an $8.5 billion settlement with Countrywide.  Do these developments mean that trustees are finally acting in investors’ best interests?  The short answer is: not really.

BNYM is essentially motivated by the same fears as the major institutional investors – doing nothing would expose the trustee to liability for wasting valuable claims.  To avoid that, trustees like BNYM want to take some action that makes it look like they addressed the problem.  This is especially true when motivated investors are taking aggressive action behind the scenes to review loan files, share their findings with trustees, and petition those trustees to take action.  The trustees can (and did) drag their feet for a while, but at some point they have to act or risk becoming the target of a lawsuit.  This doesn’t mean that trustees will suddenly find their moral compass and start taking action on behalf of the bulk of investors who aren’t hounding them day after day to take action.

Keep in mind that trustees are “bankers’ banks,” providing banking services for the largest banks, like BofA (which accounts for 60% of BNYM’s custodial business).  BNYM is paid relatively little to oversee a massive dollar value of custodial accounts.  BNYM simply wants to keep BofA happy and avoid incurring liabilities that would dwarf what they were paid to oversee RMBS Trusts.

Enter Kathy Patrick with a sweet deal – float our minimal settlement to the court and BofA will indemnify you for any losses.  This allows the deals to carry the imprimatur of fairness without trustees having to bite (or cripple) the hands that feed them.  Meanwhile, nobody can argue that the trustees aren’t doing anything to help investors – in fact, trustees and banks can use these types of settlements to argue that investor claims are improper or “premature” because trustees are actively enforcing putback claims.

As I’ve written before, this is the end game scenario as pictured by Kathy Patrick and her merry band of investors – enter into favorable global deals for issuers that bind all investors.  This allows investors and trustees to avoid liability for ignoring their fiduciary duties while spraying more foam on the runway for the major banks with which they do significant business.  The banks get to put their mortgage issues behind them, the investors get a small payday, Patrick gets a huge payday, and everybody wins.  Everybody, that is, except taxpayers, investors and the housing market.

A Chance for Optimism?

Chance the Gardener: Yes! There will be growth in the spring!

Benjamin Rand: Hmm!

Chance the Gardener: Hmm!

President “Bobby”: Hm. Well, Mr. Gardner, I must admit that is one of the most refreshing and optimistic statements I’ve heard in a very, very long time.

If U.S. institutions are proving to be reluctant to pull the trigger on collective efforts, and therefore will let their claims go for little in return, what hope do we have that anyone will compel this much-needed correction to take place?  On the investor side, the lone hope appears to be the European banks.

European institutions, and in particular the large German land banks, hold hundreds of billions of dollars in U.S. private label MBS.  Many of the holders are German “bad banks” that have been split from the solvent portions of the institutions and are receiving pressure from their regulators to take action to recover their losses.  Articles have begun to appear in the German press questioning what these banks are doing to address their massive losses, such as an article that appeared last month in Handelsblatt entitled, “Deutsche Landesbanken erwägen gemeinsame Klagen gegen US-Institute.  Es geht um Milliarden, doch das Vorhaben birgt Risiken” (roughly translated as “German Landesbanks consider joint action against U.S. firms.  It’s about billions, but the project is risky”).

The European investors are not as dependent on large U.S. banks for liquidity as their U.S. brethren, and there is not nearly the same level of political aversion to taking on TBTF institutions as there is in the U.S. so there is some reason to believe that these European institutions will enter the litigation fray.  Indeed, over the last six months, we have started to see increasing legal action in the U.S. by European institutions focused on MBS losses (see suits by the German Landesbanks or Sealink Funding, for example); however, these suits have tended to be comprised of fraud claims only.

Fraud claims are generally characterized as “easy to file, hard to win” because, while they do not require that investors overcome onerous procedural hurdles, they also have heightened pleading requirements and necessitate proof of knowledge of falsity, intent to mislead, and detrimental reliance by the plaintiff.  While there is some evidence to support these findings, the suits would have a much greater chance of success if the Europeans did the leg work to organize and bring contractual-based rep and warranty claims.

While it sounds like many of these European institutions are still on the fence about bringing aggressive legal action against U.S. institutions, what’s clear is that if the collective investor movement will not come from Europe, it may not at all.  Investors must truly speak now or forever hold their peace.  The window of opportunity to object to contrived global settlements or file their own claims will slam shut within a year.

And if investors think that all they stand to lose is the right to pursue legal claims to recover existing MBS losses, think again.  To the contrary, if investors show they’re not willing to band together to enforce their rights, their assets will continue to be plundered and pillaged in increasingly creative (some would say diabolical) ways.

Take the ongoing debate surrounding eminent domain as Exhibit A.  The proposal originally floated by Mortgage Resolution Partners and gaining steam in municipalities all over the country proposes having local governments seize performing but underwater mortgages at 75-80 cents on the dollar.  These mortgages would then be restructured and sold to new investors, allowing homeowners to refinance into positive equity situations.

Bondholder and banker advocacy groups have raised hell, but that hasn’t stopped these proposals from moving forward.  Now, there is a constitutional requirement that governments pay just compensation if they seize property, but who will stand up and challenge these takings?  Trustees certainly don’t have the incentive to do so, and have all but proven as much.  And investors may not even have standing to do so in many states if they don’t unite and form coalitions of 25-50% (some states provide only trustees with standing to participate in condemnation proceedings).

Banks, backed by lobbying groups like SIFMA and ASF, could still challenge, as they are concerned that their second lien holdings could be seized along with underwater firsts.  But should plan proponents agree to resubordinate these second lien holdings to the new, restructured senior liens, bank resistance would probably evaporate.  This, according to many with knowledge of these plans, is the most likely direction of these eminent domain proposals.  This would mean distressed second liens held by banks would be recapitalized at investor expense, in yet another closet bailout of our struggling financial institutions.

So, as bad as things might look in the garden for investors, they must recognize that things could still get worse.  Now is the time to take stock of the root system in the financial markets and take proactive steps to clear out the detritus of failed business models if we ever want to see a new spring of growth in U.S. housing.

Posted in AIG, allocation of loss, ASF, Attorneys General, Bank of New York, banks, BlackRock, Bloomberg, BofA, bondholder actions, causes of the crisis, conflicts of interest, consitutionality, contract rights, costs of the crisis, Countrywide, damages, Deutsche Bank, discovery, eminent domain, fiduciary duties, foreclosure crisis, fraud, global settlement, Grais and Ellsworth, impact of the crisis, incentives, investors, irresponsible lending, Judge Barbara Kapnick, Judge Eileen Bransten, junior liens, Kathy Patrick, lawsuits, lenders, lending guidelines, liabilities, LIBOR manipulation, liquidity, litigation, litigation costs, lobbying, MBIA, MBS, misrespresentation, monoline actions, monolines, mortgage fraud, mortgage insurers, mortgage market, negative equity, Neil Barofsky, private label MBS, procedural hurdles, putbacks, recession, rep and warranty, repurchase, Residential Capital, responsibility, restructuring, RMBS, securities, securitization, sellers and sponsors, settlements, standing, statistical sampling, statutes of limitations, successor liability, summary judgment, The Subprime Shakeout, too big to fail, toxic assets, Treasury, Trustees, underwriting guidelines, underwriting practices, US Bank, vicarious liability, waiver of rights to sue, Wall St., Walnut Place, Way Too Big to Fail, Wells Fargo, William Frey | 2 Comments

Monoline End Games: String of Legal Wins Will Snowball Until Settlement

Last week, I wrote about a few developments that should boost RMBS litigation recoveries, especially for bond insurers – Judge Crotty’s summary judgment decision in Syncora v. EMC (JPMorgan) and Syncora’s subsequent settlement with BofA, resolving all of the parties’ ongoing relationships.  It appears I’m not the only one who has concluded that banks may need to reassess their potential payouts as a result of recent legal setbacks.

In this July 27 client alert, major financial services firm O’Melveny & Myers, which represents BofA in MBIA’s putback suit in New York, addressed the impact of Crotty’s Opinion [hat tip Manal Mehta from Sunesis Capital for passing this along].  While the alert is short and worth reading in its entirety, the gist of O’Melveny’s conclusion is as follows:

In light of a recent federal court ruling, banks may wish to reevaluate litigation risk from plaintiff insurers claiming injury from alleged breaches of representations and warranties regarding mortgage securitization notes that they insured…

Institutions facing such lawsuits may wish to re-evaluate their exposure, and possibly adjust reserves set aside to cover such risks, based on the type of plaintiff and the specific language of the securitization agreements at issue.

Hold the phone – so BofA’s own law firm in its putback litigation with MBIA is publishing an alert saying that banks may need to adjust their loss reserves associated with monoline putback litigation?  This is essentially an admission that the firm sees the tide turning against the banks in these suits.  Shouldn’t this have generated some serious pushback from O’Melveny’s powerful client?

Short answer: yes.  According to Mehta, this alert was pulled from O’Melveny’s website shortly after publication, only to be re-posted today.  We can only speculate as to why the alert was pulled and then re-published (without significant revision), but I can imagine that there were a few heated phone calls in between.

Regardless, now that we finally have a definitive decision from a respected court on the proper standard for mortgage putbacks, we have enough guidance to begin discussing RMBS litigation end games in earnest.  Today, we’ll begin by looking at the bond insurer suits.

These, along with mortgage insurer suits, were some of the earliest filed pieces of RMBS litigation and have been prosecuted aggressively since the onset of the mortgage crisis by some of the most skilled and aggressive private legal teams in the business. And for good reason: the monolines issued what are known as “financial guaranty” policies, which included a guarantee that insurers would make policy payments if losses mounted; they could not deny claims or rescind coverage.

This means that bond insurers have already suffered massive, company-crippling losses as a result of insuring pools of misrepresented loans, and have been forced to pursue years of contentious litigation just to try to recover the funds they paid out.  The good news for them, is that after 4+ years of litigation, they’re finally beginning to see the light at the end of the tunnel.

Monoline End Game Scenarios

As I mentioned at the top of this article, Syncora and Countrywide just reached a settlement of all their outstanding RMBS litigation and other issues, in which Syncora will receive a cash payment of $375 million and a return of certain of its preferred shares, surplus notes and other securities.  It’s no coincidence that this settlement comes on the heels of several wins for the monolines in their suits against the major Wall St. banks.  It demonstrates that the banks (or at least Bank of America), are beginning to realize that the bond insurers’ claims in these suits are potentially expensive and difficult to defeat.  This settlement, in conjunction with BofA’s settlement with Assured Guaranty (AGO) back in April of 2011 and its proposed settlement of investor putback claims initiated in June 2011, show that BofA is making a concerted effort to put legacy Countrywide liabilities behind it.

This bolsters my long-held view that the most likely end game scenario for the monolines consists of party-by-party settlements with their various bank counterparties that address all of the outstanding legal issues between the parties.  As I’ve discussed in the past, the last thing that an issuing bank wants is for one of these cases to go to trial and to see the parade of horribles that the monoline will trot out before the factfinder, showing clear breaches of underwriting guidelines time and time again.  Not only would such a trial be long and embarrassing, but it would open up the banks to paying upwards of 75-80 cents on the dollar of losses to the insurers, rather than the 25-30 cents they might be able to pay in settlement.

Of course, the tougher questions surround the timing and the ultimate size of these potential settlements.  If we could get our arms around the size of prior settlements, this might help give us a ballpark of the size of the settlements to come.  In my prior article on the Assured Guaranty settlement (at item No. 4),  I noted that based on BofA’s estimates, they were covering about 55% of AGO’s losses.  The Syncora-Countrywide settlement is much more difficult to parse as the deal, according to Syncora’s press release was part of “an effort to terminate other relationships between the parties,” aside from simply the putback disputes.  My guess is that the putback disputes constituted the bulk of the outstanding liabilities, but it’s difficult to assess the exact proportion, as well as the value of the other consideration received by Syncora.

What we do know is that in the five deals that were the subject of Syncora’s lawsuit against Countrywide, Syncora had already paid out $145 million in claims to policyholders and had received another $257 million in claims as of the filing of the Amended Complaint.  That’s $402 million in existing claims, and future losses and claims in those deals could drive that number even higher.  Plus, the settlement covered nine other MBS Trusts not at issue in the lawsuit.  Barclays projected out the lifetime losses for Syncora in those trusts and reached a figure of up to $1.4 billion (though I know it’s hard to trust anything Barclays says since the emergence of the LIBOR scandal, other commentators have checked Barclay’s work, and it appears to hold up).  Assuming this is a reasonable estimate, and putting aside the value of the other consideration given to Syncora and the value of the non-RMBS liabilities it released, the $375 million cash payment works out to about 27 cents on the dollar of claims.

So what does this mean other monolines, such as MBIA, might receive in settlement?  In my opinion, Syncora’s settlement with Countrywide merely sets a floor for MBIA’s case against Countrywide – that is, it is the minimum amount per dollar of claims that MBIA can expect to receive from settling that case.  This is because MBIA is in a better position in many respects than Syncora.

For one, while Syncora claimed to have found approximately 75% of the loans it had reviewed to be in material breach of Countrywide’s reps and warranties, MBIA has alleged that over 90% of the loans in the deals it insured were materially defective.  A higher breach rate means a potentially higher judgment per dollar of claims should the putback claims go to trial, driving settlement values higher.  The fact that MBIA has actually sued on all of its Countrywide transactions, whereas Syncora only sued on 5 of 14, implies that MBIA’s deals may have been worse across the board, further elevating settlement projections.

MBIA is also further along in its case against Countrywide/BofA than Syncora was, having conducted significant potentially damaging discovery on issues such as Countrywide’s internal fraud reporting and successor liability.  MBIA is on track to present its summary judgment motion on Countrywide’s liability (referred to as “primary” liability) on August 31, and its summary judgment motion on BofA’s liability (referred to as “successor” liability) on September 21.  BofA is keen to avoid even the presentation of such motions by MBIA because they will publicly disclose (to the extent the information is not treated as “confidential” and sealed) all facts that MBIA has uncovered in support of its positions.

This is especially true with respect to MBIA’s motion on successor liability, as the facts MBIA will use to establish that BofA should be on the hook for Countrywide’s liabilities could be used by any plaintiff suing Countrywide and wishing to bring BofA into the case as a guarantor.  That is, the facts supporting successor liability in MBIA’s case will be directly applicable to every other plaintiff’s case for successor liability against BofA.  Apparently recognizing this, just this week MBIA asked the Court for permission to file a motion lifting the confidentiality restrictions on certain documents received in discovery.  MBIA’s attorneys know that the threat of public disclosure of items like Brian Moynihan’s deposition transcript may be the best leverage they have to force BofA to the negotiating table.

Finally, MBIA has filed a fraud claim against BofA that is fairly well developed.  This claim has survived a motion to dismiss (and appeal of that decision) and a motion for partial summary judgment on loss causation.  Should that claim be successful, MBIA could receive compensatory damages for the full amount it has lost in connection with insuring the Countrywide trusts at issue (not tied to any breach rate of the underlying loans) plus punitive damages of up to several times compensatory damages.  Though punitives are rarely awarded, the treat of punitives will certainly increase MBIA’s settlement leverage (and what better case for the imposition of punitive damages if Countrywide is shown, as MBIA suggests, to have been engaged in the systematic encouragement and coverup of mortgage fraud?).

All this leads me to believe that MBIA will be able to force BofA into a much larger settlement per dollar of claims than the one Syncora received (the same goes for Ambac in its case against EMC/JPMorgan, as it has uncovered significant evidence of a fraudulent “double-dipping” scheme in that case).  Of course, MBIA also has to contend with BofA’s litigation counterweight, in the form of its Article 78 and plenary actions challenging MBIA’s Transformation.  But as the Article 78 decision seems likely to go against BofA (and will be appealed, regardless), and the plenary action is falling way behind the putback action due to inactivity during the last several months, MBIA will likely feel as though it has all the leverage when it comes time to seriously talk settlement.

According to MBIA’s first quarter 10-Q, the bond insurer has incurred $4.8 billion of losses on its portfolio of insured first- and second-lien RMBS deals.  The monoline has also booked $3.2 billion in expected recoveries from putbacks (it has booked no expected recoveries from its non-contractual claims).  That works out to a 66.7% expected recovery rate per dollar of incurred losses.  This would be higher than the global settlements Syncora and AGO struck with BofA, but given MBIA’s superior position, at least in its BofA case as discussed herein, I can’t say those estimates are unreasonable.

In fact, I think MBIA would recover a much higher percentage of its losses should it proceed to trial against counterparties like BofA.  The insurer could recover compensatory damages at 100% of losses if it wins its claims for fraud or rescissory damages, and damages in the range of 75% of losses if it’s forced to go the putback route, as my experience in these types of cases leads me to believe that at least 80% of MBIA’s alleged ineligible loans to be upheld by the factfinder.  Compared to these end game scenarios, a settlement in the 66% range may begin to look attractive as MBIA continues to pile up victories in its litigation.

This brings me to probably the tougher question on monoline end games – timing.  Settlement timing is always difficult to estimate since so many factors are at play.  But there are certain points in litigation that I term “inflection points” – junctures at which settlement becomes more likely because of the threat of adverse legal developments.  The presentation of MBIA’s summary judgment motions in its case against Countrywide/BofA (especially the one on successor liability) create just these sorts of inflection points.  The time between when the summary judgment motions are fully briefed and Judge Bransten issues her rulings also constitutes an inflection point, as BofA may feel pressure to avoid yet another scathing Bransten decision.  Based on these upcoming inflection points in the case, I will go out on a limb and say that MBIA’s litigation against BofA is likely to settle before the end of this year.

This timing will be different for each monoline action depending on the individual circumstances, but what they all have in common is that they all are very likely to settle before trial.  Given the lack of viable defenses that banks have at their disposal, and the parade of damaging evidence that will paraded before a factfinder should trial ensue, I don’t see how any financial institution can logically allow any of these cases to go to trial.  Doing so would only expose the banks to potentially devastating precedent and damage awards, which they call ill afford at this time.

There are important differences between the monoline cases and the cases of RMBS investors, the other major group of plaintiffs attempting to recover their losses from the major banks.  Stay tuned over the next week as I tackle those differences and the status of investor recovery efforts in my next installment in my series on end game scenarios.

Posted in allocation of loss, banks, BofA, contract rights, Countrywide, damages, emc, fraud, global settlement, irresponsible lending, JPMorgan, Judge Eileen Bransten, Judge Paul Crotty, Judicial Opinions, junior liens, jury trials, lawsuits, lenders, liabilities, litigation, litigation costs, loss causation, loss estimates, MBIA, MBS, misrespresentation, monoline actions, monolines, mortgage insurers, O'Melveny & Myers, private label MBS, putbacks, rep and warranty, repurchase, RMBS, securitization, settlements, successor liability, summary judgment | 6 Comments

Federal Judge Refuses to Narrow Mortgage Putback Claims, Paving Way for Lender Repurchase Liability

It has been just over a month since I published my series on the Top 5 RMBS Cases to Watch this Summer.  In case you missed it, here’s a quick recap of my top five cases:

  • No. 5Syncora v. EMC
  • No. 4Retirement Board v. Bank of New York Mellon
  • No. 3ABN AMRO Bank v. Dinallo (Article 78)
  • No. 2In re the Application of Bank of New York Mellon
  • No. 1MBIA v. Countrywide

Already, some of the developments I predicted in the first installment of this series – including a favorable ruling for Syncora on summary judgment in its case against EMC, which I will discuss today – have come to fruition, engendering important consequences.  With Syncora having just struck a $375 million settlement this past week with Countrywide and Bank of America, I decided it was time to make good on my promise to write a follow-up to this series – an epilogue, if you will.

My goal was to write an article walking through the most likely end-game scenarios in this morass of residential mortgage backed securities (RMBS) litigation and offer some predictions on the ultimate subprime shakeout.  Yet, upon sitting down to write this article, I realized that there were various and distinct end game scenarios depending on who held the RMBS claims and the nature of the claims they were asserting.  To avoid burdening my loyal readers with a 5,000 word tome, I will be dividing up this discussion into a series of posts addressing recent developments and their impact on end games.  Today, I address the impact of Judge Crotty’s summary judgment decision in Syncora v. EMC  in finally bringing some clarity to mortgage putback litigation.

The Concept of Proof

Just over a month ago, at the start of the NBA Finals, I was having an interesting conversation with a friend about the concept of proof.  He was excited about the prospect of Kevin Durant and the Oklahoma City Thunder getting to square off in the Finals against LeBron James and the Miami Heat.

“Durant has won three consecutive NBA scoring titles by age of 23,” he said, “Nobody has ever done that.  He’s the best player in the league already, but most people won’t recognize it until he beats the Heat.”  My friend was suggesting that while he already knew that Durant was the league’s best player, Durant still had to “prove it” to the rest of the world by leading his team to a championship on the game’s biggest stage against the consensus number one team and player.  While there would be endless argument and speculation prior to the Finals, a championship – the generally accepted method of proof in sports – would end the debate, and few would dispute who the best really was.

Of course, the 2012 NBA Finals did establish who the best player in the game was, but it wasn’t Durant.  While Durant is clearly a gifted scorer – and at 23, has plenty of room to grow – James proved himself to be the better all-around player, playing solid defense while averaging 10.2 rebounds and 7.4 assists to go along with 28.6 points per game.  Durant, by contrast, averaged 30.6 ppg, but chipped in only 2.2 assists and 6.0 rebounds.  James walked away with his first championship and the NBA Finals MVP award, and largely put to rest the debates about his greatness, at least for now.

All of this got me thinking about the concept of proof in the context of RMBS liabilities.  Whereas proof in basketball is established on the court, proof in legal disputes is established in the courtroom – where facts and arguments are presented by way of an adversarial process, and the factfinder settles issues and assigns liability.  Once liability has been assigned, the distribution of losses can be assessed, the market and its participants can adjust, and life can move on.

Until recently, with RMBS legal proceedings progressing slowly, we had few precedents to which to look to form a consensus on which side – be it investors and insurers or Wall St. banks – had the better of these arguments.  I could write until my fingers ached about how weak I thought banks’ defenses were in these cases, but until we had proof in a court of law, the debate would rage on.  Banks could continue to under-reserve for RMBS losses based on various versions of the “global catastrophe defense,” while trustees like Bank of New York Mellon (BNYM) could justify minimal settlement values based on these defenses and the purported protections of the corporate veil.  But all of that is beginning to change.

Crotty Takes a Stand

In the first article in my Top 5 series, I discussed how bond insurer Syncora’s patience would finally be paying off this summer, when federal Judge Paul Crotty was expected rule on the insurer’s summary judgment motion in the 2009 case, Syncora v. EMC.    Therein, I predicted that, based on his prior rulings in the case, Crotty would decline to adopt EMC and J.P. Morgan’s narrow view of the materiality requirement for mortgage putback claims (that the breach must actually have caused the borrower to stop making mortgage payments), and instead find that a breach must merely have a material impact on the risk profile of the loan.  On June 19, 2012, Crotty finally issued the ruling that was more than six months in the making, adopting Syncora’s much broader definition of materiality and giving both bond insurers and MBS holders hope that the years of litigation would eventually pay off.

Understanding exactly what Judge Crotty decided and what it means for litigants is essential to understanding how these cases are likely to play out, so I thought it was worth walking through this opinion in some detail.  His Honor was asked by Syncora to rule on three distinct issues: (1) that EMC was required pursuant to the securitization trust agreement to repurchase loans that breached reps and warranties as of the closing of the securitization, regardless of whether those breaches caused any loan to default; (2) that Syncora could establish that EMC materially breached the insurance agreement between the parties by showing that a breach materially increased Syncora’s risk of loss on the Transaction (again, even if the breach did not directly cause a claim payment); and (3) notwithstanding that Syncora’s insurance policy was irrevocable, the Court could grant Syncora equitable relief equivalent to rescission (awarding them claim payments less premiums).

If you’ll recall, Judge Eileen Bransten was faced with a very similar set of questions from MBIA on summary judgment in its case against Countrywide.  In response, Bransten ruled that MBIA need not show a direct causal link between a misrepresentation or a breach of the insurance agreement to prove its claims of fraud or breach of contract, respectively.  She also ruled that rescissory damages were available to MBIA in lieu of actual rescission.  These were important victories for all monolines pursuing claims based on RMBS losses.  However, Her Honor punted on the key question of the causation or materiality standard for loan putbacks, the loan-level claims at the heart of BofA’s $8.5 billion settlement with BNYM, leaving RMBS investors out in the cold with little “proof” or even guidance on the strength of their claims.

That all changed with Crotty’s opinion.  Crotty, of course, was well aware of Bransten’s prior summary judgement decision when making his ruling and decided to reference it explicitly in his Order.  Therein, Crotty sides with Bransten on the question of loss causation in the context of the insurance agreement.  Drawing from well-established insurance law that holds that an insurance company may avoid a policy and/or recover losses if a breach materially increases the risk covered by the contract, Crotty holds that, “Syncora may establish a material breach of the [Insurance and Indemnity Agreement (I&I)] by proving that EMC’s alleged breaches increased Syncora’s risk of loss on the Policy, irrespective of whether the breaches caused any of the HELOC loans to default” (Crotty Order at 16).

This turns out to be the only issue on which the two judges could explicitly agree.  Where Bransten finds that rescissory damages were available, Crotty punts that issue down the road.  Yet, more significantly, where Bransten punts on the issue of the standard for loan-level putbacks, Crotty steps into the breach.

In the section on putbacks, the most robust section of his Order, Crotty begins by noting that the trust agreements did not require a breach to have caused a default to trigger a repurchase, but only that a breach “adversely affects the interests of the Note Insurer” or the value of those interests (Crotty Order at 7).  The question, therefore, was the nature and scope of the insurer’s “interests” (Id.)

Crotty then goes on to conduct an extensive analysis of insurance law and the well-known principles that insurers have a right to know the risks they are undertaking, that insurers rely on representations and warranties in assessing and pricing risk, and that breaches of those warranties are deemed material if they would have affected in the insurer’s willingness to insure the risk at the agreed price.  He then goes on to make findings specific to Syncora and EMC, including that the truthfulness of the reps and warranties was a condition precedent to Syncora issuing its Policy, and that a breach of those reps would have adversely affected Syncora’s interests (Crotty Order at 8).

Crotty rejects EMC’s argument that “adverse affect” really means “pecuniary loss,” finding that the parties’ agreements did not reflect this understanding (Id. at 9).  He goes on to point to several sections of the trust agreements that suggest that even current loans could be put back under certain circumstances (Id. at 9-10).

Finally, he addresses head-on Judge Bransten’s prior finding that the trust agreement language was “ambiguous” and that there might be meaningful variation between the language in the various trust agreements at issue.  His Honor first notes that “there is no suggestion that the Operative Documents did not apply uniformly to all of the HELOC loans in the Transaction” (Crotty Order at 13).  He then goes on to find that the Court in MBIA v. Countrywide “did not explain its reasoning” that the repurchase provisions were subject to varying interpretations and that Bransten’s opinion “is not persuasive” to the extent that it found ambiguity in those provisions.  This clears the way for Crotty’s ultimate holding in that regard, which could not be clearer, and is worth quoting in full:

[T]he requirement in Section 7 of the [Mortgage Loan Purchase Agreement (MLPA)] that a breach of a representation and warranty must “adversely affect[] the interests of the Note Insurer” is not ambiguous.  EMC’s proposed construction has no basis in the plain language of the parties’ agreements.  Syncora need not prove that the allegedly breached representations and warranties caused any of the HELOC loans to default in order to show that its interests as an insurer were adversely affected for purposes of triggering EMC’s repurchase obligation under the MLPA. (Id. at 15)

Now, this is plainly a win for the monolines – and the fact that EMC has already filed a Motion for Reconsideration shows that the lender is concerned.  Assuming that Crotty declines to reconsider his order (a quick read-through of the motion shows little new information or basis for reconsideration) and that other courts addressing this issue find Crotty’s Order persuasive (likely given that he’s a respected federal judge who wrote a reasoned, logical opinion), monolines will no longer have to go through the onerous task of proving exactly why a borrower stopped making payments in order to put a loan back to an issuer or originator.  Proving simply that a breach of reps and warranties made the loan riskier is far easier to do.  But what would this mean for investors?

Essentially, this holding, if it stands, will give investors a solid platform from which to argue for the same putback rights as monolines.  Though Judge Crotty limited his holding to monolines (and indeed, it would have been overreaching had he purported to rule on the interests of investors, when that issue was not before him), His Honor’s reasoning could just as easily be applied to investors seeking to enforce repurchases.  Just as an insurer has an interest in understanding the risk that it is insuring, an investor has an interest in understanding the risks underlying its investment.  In fact, this principle forms the foundation for state and federal securities laws, which allow investors to recover their losses when they can prove that a risk was materially misstated in the offering documents.

What Crotty’s Order would do is provide persuasive authority for knocking out a fundamental piece of the banks’ argument – that a breach of rep and warranty is measured at the time of default and must be shown to have caused a default to trigger the repurchase remedy.  When the analysis changes from such a loss causation perspective to one in which courts consider whether an underwriting breach as of the trust closing had other adverse effects, investors will almost certainly win.  It does not require much of a logical leap to argue that, just like an insurer, an investor’s interests are adversely affected by a breach that makes a loan more likely to default in the future, even if it was not the ultimate or proximate cause of any default.

This ruling should embolden investors who were sitting on the sidelines, unsure about the strength of their claims, to come forward and assert repurchases.  However, as I will be discussing in later posts in this series, those who have not yet started down this path may have now lost out on their chance to do so.  While we’re starting to hear rumblings that German bondholders are getting active and considering collective action against U.S. banks to recover their losses (the U.S. effort to do the same lost steam when Kathy Patrick’s group pulled out), the statute of limitations window is quickly closing, and it now appears that the fix is in when it comes to some of the largest lenders.

Keep an eye out next week as I tackle potential end game scenarios for the various types of claims, starting with the monoline litigation.

Posted in allocation of loss, Ambac, Bank of New York, banks, bondholder actions, contract rights, costs of the crisis, Countrywide, damages, emc, global catastrophe defense, incentives, Investor Syndicate, investors, Judge Eileen Bransten, Judge Paul Crotty, Judicial Opinions, lawsuits, lenders, liabilities, litigation, loss causation, loss estimates, MBIA, MBS, monoline actions, monolines, pooling agreements, private label MBS, public perceptions, putbacks, rep and warranty, repurchase, rescission, responsibility, RMBS, securitization, settlements, statutes of limitations, subprime, summary judgment, underwriting guidelines, underwriting practices | Tagged | 4 Comments

The Top 5 RMBS Cases to Watch this Summer: No. 1 – MBIA v. Countrywide, BofA

After a week-long build-up (I’m sure the suspense is killing you), we’ve reached the No. 1 case in our countdown of RMBS Cases to Watch this Summer.  You may wish to catch up with parts I, II, III, and IV, if you haven’t already.  Though Case No. 2, Bank of New York’s Article 77 settlement, may have garnered more media attention thus far, another case gets my vote for No. 1 because it represents a true adversarial process, the best and only way, as far as I know, to establish any semblance of “proof” as to who is to blame for the massive losses associated with mortgage derivatives.  Read on to find out why the nation’s former No. 1 bank may want to stop the freight train that is our No. 1 case, before it’s too late.

No. 1 – MBIA v. Countrywide, Bank of America

Even relative newcomers to this blog should be well aware of the importance that I place on our No. 1 case, MBIA v. Countrywide, et al., No. 602825/2008 in New York State Supreme Court, presided over by Judge Eileen Bransten.  As one of the earliest-filed subprime RMBS cases, and one that has been skillfully and tenaciously litigated since the beginning by MBIA’s counsel, Quinn Emanuel, this case is one of the closest to resolution and to answering some of the tough legal questions hanging over this industry.  And based on what we’ve seen thus far, if and when this case begins producing final judgments, BofA is not going to like the answers.

As recently as April 24, I wrote about the progress MBIA was making in its case against Countrywide and BofA, in which it seeks compensation for the insurance payments it has made based on losses in 15 separate mortgage backed securities trusts.  Therein, I noted that MBIA was on a roll, having won several recent discovery and case management motions, providing the bond insurer with an ever-growing stockpile of ammunition to use in its forthcoming summary judgment motion.  But even since that time, there have been several developments that have only confirmed and continued this trend, as MBIA marches steadily toward a potentially crushing victory at trial.  I will run through those developments below, followed by a head’s up on what to watch for in this case going forward.

Motion to Compel Fraud-Related Documents

One of MBIA’s primary claims is that it was fraudulently induced to provide insurance for Countrywide’s securitizations based on misrepresentations by the lender regarding loan quality and the quality control procedures that it had in place.  Though common law fraud is typically difficult to prove, as it requires showings of knowledge, intent and reliance, a successful fraud claim could return to the aggrieved party the full amount of its loss plus punitive damages.  Usually, this requires some kind of smoking gun – emails or internal documents in which high-ranking corporate officers acknowledge a problem but cover it up and/or fail to disclose it to their business partners.

MBIA has been looking for just this type of smoking gun since the beginning of their case, and it appears they believe they’ve found it, in the form of internal Countrywide documents relating to its fraud hotline and internal fraud investigations.  If Countrywide knew there was widespread fraud in its loan origination processes, and covered up that information, it could certainly form the foundation for a finding that it intentionally misled MBIA into providing insurance coverage.  And Countrywide has certainly acted like MBIA is knocking on the door of a treasure trove of damaging evidence, as it has fought like crazy to avoid producing these documents.

But Judge Bransten is having none of it.  On May 25, Bransten issued her ruling (actually dated May 11 or May 15, depending on which version you pull up on the docket), in which she granted the bulk of MBIA’s discovery requests, and generally only limited the insurer’s requests when they extended to documents unrelated to the securitizations at issue in the case.  In particular, Bransten granted MBIA’s requests for:

  • Documents related to Countrywide’s “fraud hotline” (email, fax, mail and telephone hotline for complaints about illegal behavior by Countrywide employees) as to the loans at issue;
  • Documents related to loans at issue that were referred to Countrywide’s internal Fraud Risk Management Group and Fraud Prevention and Investigation Department;
  • All meeting minutes from 2004 to 2007 from three senior management committees (alleged to reveal Countrywide compliance and underwriting policies and its understanding of how its market share related to the same) and any other minutes that refer generally or specifically to materials relevant to securitizations at issue;
  • Countrywide internal modeling files on the securitizations at issue, if not already produced; and
  • Documents regarding two terminated employees and the fraud investigations  for which they were responsible at Countrywide, as well as documents regarding any fraud cover-up.

Whew!  That document dump should keep Quinn’s associates busy for awhile, and should reveal some very juicy details about what Countrywide knew about fraud and when, and what it did or didn’t do about it.  What might be even more significant about this ruling, however, is that Judge Bransten seems to have found her voice, emerging as a strident champion of the legal process while confronting head-on Countrywide/BofA’s complaints about the mounting burden of this litigation.  In the final paragraph of her Order, she writes:

the court acknowledges, and is sympathetic with, Countrywide’s statements regarding the volume of documents it has produced.  However, past production bears no relation to current and ongoing discovery obligations, and, while colorful, recitations of numbers of pages and volumes of documents produced is unpersuasive and is not considered.  Discovery, though expensive and exhaustive, must be completed in full. (May 25 Order at 16)

This trend only continues in the Judge’s next ruling, discussed below.

Motion to Compel Clawed Back Documents and Sanctions for Delay

On May 4, the parties appeared before Judge Bransten to argue about whether Countrywide had the right to “claw back” documents it had previously produced in the middle of depositions, and right when plaintiff’s counsel was about to use those documents to question opposing witnesses.  At the time, MBIA counsel Peter Calamari asked the Court to sanction Countrywide, stating

I do believe that they should be sanctioned. I also believe that additional depositions should, might need to take place once we get the documents. (May 4 Transcript at 57:11-14)

Yet, Calamari also made clear that he did not want the case schedule slowed down as a result of these issues.  In general, plaintiffs are already incentivized to try to propel their cases forward, both to put pressure on the opposition and to keep costs from spiraling out of control.  But in this case, there’s an additional factor: MBIA wants this case to reach trial before BofA’s separate plenary action against MBIA (alleging violations of debtor-creditor law in connection with MBIA’s restructuring) gets there first.

Though an unlikely scenario given the current state of the two cases, should BofA’s plenary action (pending before Judge Barbara Kapnick in New York Supreme Court) reach trial first, it would put MBIA in a precarious position.  On one hand, the monoline could go to trial and risk losing, meaning the restructuring could be invalidated and/or MBIA could be hit with massive damages and no longer have the financial wherewithal to prosecute its case; on the other hand, MBIA could settle with BofA out of a position of weakness and on unfavorable terms.  By far, MBIA would prefer to put BofA in that position by accelerating its MBS lawsuit to the point that it’s ready to go to trial first, thereby forcing BofA to make the tough decision from a weakened position.

Another reason that MBIA would like to accelerate its case is that it has an opportunity to score major victories against Countrywide/BofA on summary judgment.  Pursuant to the court’s Amended Pretrial Scheduling Order, opening summary judgment briefs are due by August 31 of this year, and the motions should be fully briefed by the end of October.  At any point thereafter, depending on what’s raised in MBIA’s motion, Bransten could rule on issues such as successor liability, loss causation and even on the merits of MBIA’s contractual arguments, should she find no genuine issue of fact exists.  Adverse rulings in this regard could be devastating for BofA’s proposed $8.5 billion settlement of Countrywide putback claims currently pending before Judge Kapnick, undermining the very assumptions on which the settlement figure is based (for detailed analysis of the loss causation issue and its impact, see my prior article here).

Thus, we have seen MBIA’s counsel emphasize at each turn that they want to keep the case on track, and decrying Countrywide and BofA’s apparent efforts to drag their heels.  At the May 4 hearing, in response to MBIA’s arguments, Judge Bransten also expressed frustration both with the parties’ conduct during discovery and with the overall pace of the litigation.  Though Bransten didn’t limit her comments solely to Countrywide, it’s hard to read the following comments, given the context of MBIA’s discovery motion, without concluding that she has the nation’s former No. 1 lender in her sights:

Really, just in general. We really have got to step up to the plate and take a big deep breath and grow up a bit. All right… Even I, I used to practice, too. But, it has been years. But, nevertheless, you’re practitioners… you don’t go around clawing back things in the middle of depositions. Particularly, when there has been prior notice given. It is just wrong.

Now, you may not get an answer you’re a hundred percent happy with. But, that is litigation. No one gets through this process liking everything that happens, no one.  Even The Judge (Smiles). It just doesn’t happen. So, of course, you’re going to get an answer that you wish you didn’t have. But, that is reality.

MBIA has the same problem. “God, that wasn’t the right answer.” You cannot stop it. Discovery is broad. It is complete. And frankly, I do think it has been, there has been a tendency of delay. Now, Mr. Calamari would want me to merely give sanctions. It is part of his motion, so I’ll be considering that. But, I am getting closer and closer. You don’t want me to get that annoyed that I really consider that what is happening is a tremendous delay, an unnecessary delay. If I do it is going to cost a substantial amount of money. And I don’t want to have that happen. It is humiliating. It is not right. It’s not right. And not professional. (May 4 Transcript at 60:26-62:26.)

Just over a month after that hearing, on June 7, Judge Bransten issued her ruling, which yielded few surprises based on those comments.  Her Honor granted almost every request in MBIA’s Motion to Compel, with the exception of its request for sanctions.  In that regard, she noted in her Order:

All parties in this action are represented by zealous advocates, as is proper and the court appreciates.  However, the court has taken note of conduct up to the present date, including continual allegations of as well as actual delay and apparent failure of both sides to substantively meet and confer.  Interruptions of depositions, inconvenient to the deponent and expensive to all sides, will not be tolerated.  Further interruption by any side will lead to an imposition of costs.

However, the court declines to impose sanctions at this time.  The conduct as related to the court is subject to interpretation, and the court does not find the conduct rises to a sanctionable level. This may change if BAC continues to conduct itself in a manner which may be interpreted as either deceptive or geared towards a goal of delay. (June 7 Order at 16 (internal citations omitted))

The long and short of this is that MBIA will get documents regarding BofA’s alleged de facto merger with, and assumption of liabilities of, Countrywide.  These include loss reserve accounting estimates and Countrywide acquisition-related documents, which should provide further ammunition for MBIA’s claims that BofA bears responsibility for Countrywide’s liabilities as its successor-in-interest.  MBIA also gets to hold the threat of sanctions over defendants’ heads should they play games with discovery going forward.  All-in-all, a big win for the monoline that allows it to continue to obtain damaging evidence while keeping its case on track.

The Track Ahead: What to Watch For

Having had little success before Judge Bransten, BofA has apparently decided that it stands a better chance before the New York Supreme Court’s Appellate Division for the First Department.  Though Bransten has a relatively successful track record on appeal, including in this case, BofA has continued to appeal nearly every meaningful ruling Bransten has made to the higher court.  Most recently, BofA appealed Bransten’s loss causation ruling as it applies to MBIA’s fraud and breach of insurance contract claims (background here), after which MBIA cross-appealed as to her ruling on the issue of loss causation for put-back claims.  The appeal and cross-appeal of the Partial Summary Judgment Order in MBIA v. Countrywide (and the virtually identical Order in the related case of Syncora v. Countrywide) is calendared for hearing before the Appellate Division during the October 2012 term, if the appeal is perfected.

Also up on appeal is Bransten’s Order denying Countrywide’s Motion to Compel discovery regarding MBIA’s practice of insuring similar risks.  Though Countrywide had argued that it was entitled to test whether MBIA followed its stated guidelines in practice, and therefore whether the insurer actually relied on Countrywide’s representations in deciding to insure the deals, Judge Bransten denied the motion.  She found that Countrywide could test that fact based on the documents already produced in this case relating to the securitizations at issue, MBIA’s guidelines or lack thereof, and relevant witness testimony.

While these appeals are being heard in the higher court, there will be no shortage of activity in Bransten’s trial court this summer.  MBIA will continue to plow through discovery, including trying to obtain and digest all of the new documents Countrywide has been compelled to produce, as well as squeeze in all of its fact depositions, prior to the August 31 deadline for submission of summary judgment motions.  This may include forcing BofA CEO Brian Moynihan to sit for deposition a second time, after Judge Bransten suggested that this would be the logical result of Moynihan’s statement that he couldn’t remember facts about certain meetings without having the meeting minutes in front of him (the same minutes Countrywide was trying to withhold and is now being forced to produce).  Does anyone doubt that Moynihan is sick of talking about, let alone participating in, legacy mortgage litigation?

Expert discovery will also continue throughout the summer, with August 1, 2012 being set as the deadline for expert depositions relating to primary liability against Countrywide.  In short, while this should be a long, hot summer for all parties to this litigation, I have a feeling that BofA is starting to feel the heat a bit more acutely, as the victories continue to pile up for MBIA.

Let’s be clear: BofA is relying heavily on the success of BNYM’s $8.5 billion settlement as part of its plan to put its legacy mortgage issues behind it. For the bank to allow this much smaller (by dollar amount at stake) but far less auspicious RMBS case to chug forward and potentially derail its settlement would be to make a tactical mistake of epic proportions.  With statutes of limitations windows closing, and the threat of additional litigation from MBS investors beginning to subside, BofA should become far more cognizant of the threat of litigation from its own shareholders if, after eating tens of billions of dollars in losses in mortgage liabilities, it stubbornly refuses to settle with MBIA for a few (billion) dollars more.

I hope you enjoyed this week-long rundown of the Top 5 RMBS Cases to Watch this Summer.  Keep an eye out for the epilogue to this series in the coming weeks, as I begin to evaluate end game scenarios and endeavor to tackle the big question on everyone’s mind – how will all this subprime madness ultimately shake out?

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