BREAKING: BoNY-BofA Settlement to Return to State Court After Second Circuit Reverses Pauley

Posted on February 27, 2012 by igradman

Some rare good news for Bank of America: the Second Circuit just reversed the ruling of District Court Judge William Pauley in the highly-publicized $8.5 billion settlement between BofA, Bank of New York (BoNY), and Kathy Patrick’s institutional investors over mortgage putbacks; meaning the case will be sent back to state court to be tried as an Article 77 proceeding, rather than a class action.  In doing so, the Court of Appeals held that the “securities exception” to the Class Action Fairness Act (CAFA) applied, because the case related solely to the rights and duties created by or pursuant to a security.  This means BofA will have to weather only limited scrutiny of its proposed settlement and benefit from a much more deferential standard of review (“abuse of discretion” versus “entire fairness”)

In speaking to folks last week who attended the hearing before the Second Circuit on Feb. 15, it was clear that the three-judge panel was uncomfortable with the idea of this case remaining in federal court.  Originally filed in state court under Article 77, the case had been removed by intervenor Walnut Place to federal court, as the aggrieved bondholder had argued that the case was more akin to a federal mass action and should be treated as such, including allowing dissatisfied bondholders to opt out.  Judge Pauley in the Southern District of New York agreed, holding that this was the very type of case that Congress had directed be tried in federal court under CAFA.

However, rather than reversing Pauley on the threshold hurdles to CAFA jurisdiction, such as its requirements that the case be about monetary relief, have more than 100 plaintiffs, and involve common issues of law and fact; the Second Circuit relied solely on the securities exception to CAFA to support its decision.  In this regard, it found that, having first characterized the Trustee’s claim as seeking a “declaration authorizing the exercise of a trustee’s powers,” the Trustee’s claim thus related solely to “the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security. 28 U.S.C. § 1453(d)(3).” (Opinion at 23-24)

What’s novel about this finding is that prior Second Circuit holdings, such as Greenwich Financial v. Countrywide,  indicated that the securities exception only applied to claims relating to the rights of Certificate holders as holders.  The mere fact that a claim involved a security was not enough – it had to be a claim by the holder of the security to enforce the duties or rights created by or pursuant to the security.  This latest decision extends that holding to trustees of a security acting as trustees – something that likely was not contemplated by Congress when passing CAFA, or even by the Second Circuit when issuing its prior holdings.

Regardless of the propriety of this decision, and barring a Hail Mary appeal to the Supreme Court by Walnut Place, it’s clear that this decision is a big win for Bank of America and other institutions with large exposure to legacy private label mortgage issuance.  State court provides a much more favorable forum to the banks, as previously discussed, as it ensures that Article 77’s shortened procedures and deferential standard of review will be applied.  New York Supreme Court Judge Barbara Kapnick will still have her hands full determining how to deal with the impressive slate of intervenors opposed to the settlement, including the New York Attorney General Schneiderman, when ruling on the scope and timing of discovery.  But BoNY and BofA can rest assured that any decision approving the settlement will ultimately bind all bondholders in the affected trusts.

This ruling will also mean that other issuers will likely try to emulate the structure of this deal in reaching global settlements with friendly bondholder groups and trustees, in an effort to rid themselves of RMBS overhang. The challenge for bondholders wishing to avoid this result is to press as loudly and publicly as possible to be included in negotiations, so they can create a record of having been shut out of settlement talks.  On the flip side, the challenge for other issuers will be to create a process that appears to solicit, or at least allow, other bondholder opinions on the deal, while still reaching a settlement dollar figure that is relatively low compared to what bondholders could recover through aggressive court proceedings.

Regardless, this challenge is small compared to the challenge that BofA would have faced if the case remained in federal court, so there is certainly cause for celebration in Charlotte today.

The full Second Circuit Opinion may be accessed here.

Posted in appeals, Attorneys General, Bank of New York, banks, BofA, bondholder actions, CAFA, class actions, contract rights, discovery, fiduciary duties, global settlement, investors, Judicial Opinions, jurisdiction, lawsuits, liabilities, litigation, MBS, pooling agreements, private label MBS, procedural hurdles, putbacks, remand, removability, rep and warranty, repurchase, RMBS, securities, securitization, settlements, Trustees | 3 Comments

The Inside Story on PIMCO’s Defection from ASF

Posted on February 23, 2012 by igradman

ASF Executive Director, Tom Deutsch

As first reported by Bloomberg yesterday, bond king Pacific Investment Management Co. (PIMCO) has quit the American Securitization Forum (ASF) after the trade group refused to issue a statement reflecting investors’ views of the announced settlement between the five largest servicers and 49 state Attorneys General.  As I discussed when the deal was announced, there are several reasons why bondholders may have wanted ASF to sound the alarm about the settlement, as much of the pact’s announced value of $26 billion may come out of investors’ pockets rather than those of the banks responsible for the questionable foreclosure practices at issue.

But wouldn’t you like to have been a fly on the wall during one particularly inflammatory  incident in which ASF’s Executive Director was taken to the wood shed over its conflicts of interest, precipitating PIMCO’s departure?  Now you can, thanks to an exclusive conversation with bondholder advocate Bill Frey, who was a central figure in this incident and discussed with The Subprime Shakeout how these issues came to a head.

To set the stage: though the official terms of the settlement have still not been released in the two weeks since it was announced, statements made by public officials in connection with the settlement have suggested that investors will not be adequately protected, causing an outcry from such organizations as PIMCO and the Association of Mortgage Investors (AMI).  In particular, investors are upset about two major issues: 1) how banks will be incentivized to modify loans held in portfolio versus those held by investors through residential mortgage backed securities (MBS) and 2) whether lien priority will be respected for second liens where the underlying first lien is modified.

Though investors’ distrust of ASF has been fomenting for some time now, since ASF represents both banks and institutional investors (see Yves Smith’s post today on Naked Capitalism for more background), it appears that one incident surrounding the group’s stance on the second lien issue confirmed these suspicious and provided a flashpoint for PIMCO’s split.  On February 1, 2012, the second lien issue was brought to the forefront during an exchange between ASF Executive Director Tom Deutsch and Frey, of Greenwich Financial Services, at a roundtable in Washington, D.C. organized by the office of Rep. Scott Garrett (R-NJ).  According to Frey and several sources in attendance at the meeting, Deutsch was called to task by Frey over the handling of second lien loans held on bank balance sheets.

Approximately 30 congressional staffers and several congressmen were allegedly in attendance at the closed-door meeting, as well as three speakers: Deutsch, Frey and a representative from Redwood Trust.  According to Frey, the fireworks began shortly after Deutsch began characterizing the issues surrounding second lien loans and how to handle them as “confusing.”

“I jumped in at that point because I wanted Deutsch to explain what was so confusing, ” Frey said. “Pursuant to their contracts, second liens are subordinate to first liens, plain and simple.  I offered an analogy from the commercial mortgage backed securities context in which second liens are wiped out if the first lien can’t be satisfied.”  Deutsch allegedly responded that residential MBS were different from CMBS and that there were “extenuating circumstances,” but couldn’t offer any specifics.

According to sources, Frey then pointed to Section 3 of pooling and servicing agreements, which require the servicer to service loans in the interests of the first lienholders.  “I asked him what would happen if the Big Four banks had to mark their $400 billion of second liens to market,” Frey said.  “He had no answer.  At that point, I asked him if the ‘extenuating circumstances’ he was referring to included the fact that the banks would be insolvent if their second liens were to be written down.”

Calls to Deutsch and ASF Managing Director of Public Policy, Jim Johnson, requesting comment were not returned.  However, Debtwire has quoted Deutsch as saying, when confronted about the exchange, “what you are describing is flat wrong… and sounds like it came from sources who couldn’t possibly know what was said because they weren’t in the room.”  Unfortunately for him, Bill Frey was in the room, and he begs to differ.

That servicers have conflicts of interest resulting from their holdings in second lien loans on properties in which they service the first liens for others has been well documented, and is discussed at length in Frey’s book, Way Too Big to Fail, and in several articles on the Subprime Shakeout.  However, it is regulators’ failure to recognize this conflict or uphold contractually-designated lien priority that has investors up in arms.

The AG settlement is reported to require that second lien loans be modified in pari passu (on equal footing) with first liens, and only requires them to be wiped out if they’re 180 days delinquent (in which case they should have been written off already).  This plainly conflicts with the contractual lien priority assigned to second liens – that they sit behind firsts and may only be satisfied out of liquidation proceeds after the first liens have been satisfied completely.

PIMCO, for its part, told Debtwire that the firm’s decision to defect from ASF was “in the best interest of our investors” and a result of ASF’s failure to advocate for bondholders.  But whatever the ultimate reason for the split, one thing is for sure: servicer conflicts of interest are showing more clearly than ever, and the second lien issue simply won’t go away.

Posted in allocation of loss, ASF, Attorneys General, banks, Bloomberg, conflicts of interest, contract rights, global settlement, incentives, investors, junior liens, loan modifications, lobbying, mark-to-market accounting, MBS, PIMCO, pooling agreements, private label MBS, securitization, servicers, The Subprime Shakeout, Way Too Big to Fail, William Frey | 1 Comment

Is Foreclosure Settlement Déjà Vu All Over Again?

Posted on February 9, 2012 by igradman

Today, the Attorneys General of 49 states (with Oklahoma being the lone holdout) announced a record $26 billion settlement with the nation’s five largest servicers over false and fraudulent foreclosure practices like robosigning.  That big number looks great on paper, but I’ve seen far too much during my time covering MBS developments to trust in optics alone.

As expected, when I dig into the details of this settlement, I realize that only $5 billion of the total consists of cash payments, while another $17-20 billion consists of principal write-downs and other aid to homeowners at risk of default. What this means is that, once again, regulators have allowed banks to shift penalties based on their improper servicing practices onto the bondholders that actually own the loans.  As Yogi Berra famously said, “it’s like déjà vu all over again,” only this time, the regulators should have known better.

To understand why, let’s flash back to 2008, the last time we saw a massive, multi-state settlement sponsored by the AGs.  Back then, the target was Countrywide, and the lender was being sued from all sides by AGs over predatory lending practices.  The proposed solution back then, as it has been in every regulatory effort to solve the housing crisis to date, was widespread loan modifications (this is why you’ll notice that the cover of Way Too Big to Fail features Uncle Sam futilely swinging a hammer labeled “Loan Mods” at the problems that keep popping up in a game of Mortgage Crisis Whack-a-Mole).

With great fanfare, the AGs announced in October 2008 that they had reached an $8.6 billion settlement with Countrywide, in which Countrywide would modify 400,000 loans.  What I soon realized was that this would not be a cash payment of $8.6 billion — instead, most of that figure consisted of, you guessed it, principal writedowns and other loan modification “credits.”  The only problem was that 88% of the mortgages that Countrywide had agreed to modify were no longer owned by Countrywide, meaning that the bulk of the costs of this settlement would be born by others.

The settlement resulted in a lawsuit by Greenwich Financial Services on behalf of unnamed bondholders that essentially said, “hey, we actually have contracts with Countrywide that say they can’t modify loans willy-nilly and take money our of our pockets without compensating us.”  The lawsuit put Greenwich CEO Bill Frey in a position to be a spokesperson for aggrieved bondholders, thrusting him into the spotlight and the crosshairs of controversy.  The banks’ response was to begin a massive lobbying effort that led to the passage of the Servicer Safe Harbor in 2009 – a provision that in its original form said that banks could ignore its contracts with investors in the interests of public policy.  Only the Senate’s fears that such a law would run afoul of the Takings Clause of the 5th Amendment (I wrote a feature-length article on this issue), and a last-minute lobbying effort by bondholders, led to the provision being severely watered-down before it passed in its final form.

The question I asked at the time, along with several other astute commentators in the media, was whether the AGs had purposefully bailed out the banks by allowing them to pass costs onto investors, or whether they had been played by a more sophisticated counterparty.  I guessed that it was the latter – the AGs simply didn’t understand that most of these loans were in securitizations, and that the banks that had originated them and still serviced them, didn’t actually own them any longer.

But, what’s their excuse now?  Enough has been written about this issue in the 4 years since the last settlement, and enough trips have been taken to Washington and state capitols by bondholder advocates, that our elected officials should be reasonably knowledgeable about mortgage securitization and the transfer of ownership that took place.   They should understand that the bank that services a mortgage, and has the power to reduce the principal balance or otherwise modify the mortgage, may not actually own it or bear the cost of this modification.  And yet, we see the same strategy being implemented today to solve the housing crisis that was being attempted back in 2008 – yell at the banks about poor practices while bailing them out with a back-door loss shifting strategy, give a small amount of money to underwater homeowners in the form of loan mods, and ignore the fact that our pension funds, college endowments and life insurance investments are being looted in the process (note that homeowners haven’t even received the benefit of many of these bargains, as servicers have been reluctant to actually go through with loan mods due to uncertainty regarding their contractual rights to do so).

This doesn’t even get into the other 800 lb gorilla lurking in the corner of room — the $400 billion of second lien loans held by the biggest four servicers on their books.  These loans are being kept at close to par on banks balance sheets despite being worth a fraction of that because they sit behind underwater first liens in  priority.  Though the terms of this settlement are still emerging, I would bet dollars to donuts that 2nd liens are being handled as they’ve always been by regulators — they’ll be modified in pari passu or “on equal footing” with first liens, which essentially disregards their contractual standing as subordinate to first liens (that is, seconds should be wiped out if a first lien modification becomes necessary).

To someone who has been writing for four years about the dire consequences of this type of loss shifting and contract trampling — including a loss of confidence in the financial markets and the rule of law that will discourage desperately-needed private capital from returning to the mortgage market — it’s incredibly disappointing that this message has apparently fallen on deaf ears. If this crisis is to be resolved, it must be resolved in a way that honors contracts and restores investor confidence, or the housing market will never recover.

The one silver lining in this otherwise grey cloud of an announcement is the fact that the settlement does not release any claims that regulators or private parties may have surrounding the origination or securitization of mortgage loans.  Thus, there remains some hope that by aggressively pursuing remedial action against the banks for the way in which they created and sold mortgage backed securities in the first place, regulators (the Mortgage Fraud Task Force, for example) could create a resolution framework that would disincentivize future fraud and irresponsible lending while sending a clear message to bondholders, insurers and homeowners that contracts and the rule of law still mean something in this country.

Based on what I’ve seen thus far, I’m not holding my breath.  Returning to the always-appropriate Yogi quotes, we may have “made too many wrong mistakes,” to dig ourselves out now.

Posted in allocation of loss, Attorneys General, bailout, banks, BofA, consitutionality, contract rights, costs of the crisis, Countrywide, education, foreclosure crisis, global settlement, Government bailout, Greenwich Financial Services, Helping Families Save Homes, homeowner relief, improper documentation, incentives, investigations, investors, irresponsible lending, junior liens, lenders, liabilities, loan modifications, lobbying, MBS, media coverage, moral hazard, mortgage market, predatory lending, press, private label MBS, probes, public perceptions, Regulators, RMBS, robo-signers, securitization, Servicer Safe Harbor, servicers, settlements, sophistication, subprime, Takings Clause, The Subprime Shakeout, Way Too Big to Fail, William Frey, workouts | 13 Comments

Federal Judge in Goldman Sachs MBS Suit Grants Class Action Status to All Bondholders in Trust

Posted on February 6, 2012 by igradman

This just in: the Hon. Harold Baer, Jr. of the Southern District of New York has certified a class of bondholders in Goldman Sachs MBS Trust 2006-S2 led by the Mississippi Public Employees Retirement Fund.  Included in the class are all bondholders in the Trust, not limited by the class of securities purchased.  With this decision, it’s official: the trend I’ve discussed previously of courts approving more permissive definitions of MBS classes has taken hold, and should allow far more coordination between adversely affected bondholders, and far greater securities law recoveries.  You can read the full decision here.

What’s really striking about this decision, and what confirms that the roots of a more permissive trend have taken hold, is that Judge Baer’s decision flies in the face of a earlier decision on MBS certification issued by… Judge Baer (discussed in development #3 in my prior article on RMBS Developments).  In this decision by Judge Baer in a case brought by the New Jersey Carpenters Vacation Fund, et al. against Residential Capital and Royal Bank of Scotland (hereinafter “Residential Capital”), Hizzoner held that class certification was not appropriate because investors varied in sophistication and knowledge (based in part on the timing of their purchases) to such an extent that individual questions predominated.

In his newest decision involving Goldman’s securities, Judge Baer seems to downplay these differences, noting that differences in knowledge and sophistication alone do not require that class cert be denied.  In fact, he explicitly mentions and distinguishes his earlier decision in Residential Capital, saying:

In [my prior holding in] Residential Capital I determined that common issues did not predominate where different putative class members had different levels of knowledge regarding underwriting guidelines and practices. While Residential Capital
refers to the sophistication of certain class members and their familiarity with the mortgage-backed securities market, 272 F.R.D. at 168, sophistication is not sufficient on its own to find that questions of individual investor knowledge predominate over common issues. See Rocco v. Nam Tai Elecs., Inc., 245 F.R.D. 131, 136 (S.D.N.Y. 2007), cited by DLJ, 2011 WL 3874821, at*8–9 n. 1.

Indeed, [my ruling in] Residential Capital rested on a finding of individual investor knowledge that was informed not only by the sophistication of class members and differences in the availability of information over time, but other, more specific, evidence as well. See, e.g., Residential Capital, 272 F.R.D. at 169 (finding that certain class members “were extensively involved in the structuring of the [offerings at issue], including in the review and selection of the loans that backed the certificates”). (Order Granting Class Certification in Public Employees Retirement System v. Goldman Sachs, et al. at 9)

Throughout the Goldman decision, Judge Baer returns to this notion that the specific evidence cited in Residential Capital, that certain investors had knowledge that the mortgages backing their investment may not have been as represented, was not present in Goldman Sachs.  Whether this turnabout is based on subsequent rulings that distinguish or contradict the Judge’s Residential Capital decision or whether Judge Baer sees the specific facts of the Rescap case as distinguishing that case in a meaningful way is difficult to know for sure.  What is patently clear, however, is that Judge Baer has significantly narrowed the circumstances in which class certification is not appropriate, and opened the door for far broader class actions against Wall St. MBS issuers.

Full Opinion: http://www.scribd.com/fullscreen/80703372?access_key=key-2b8hdr6hsk1t4h4z6xfr

Posted in bondholder actions, class actions, Goldman Sachs, investors, irresponsible lending, Judge Harold Baer, Judicial Opinions, lawsuits, lending guidelines, litigation, MBS, private label MBS, Residential Capital, RMBS, securities, securities laws, securitization, sellers and sponsors, sophistication, standing, underwriting guidelines, underwriting practices, Wall St. | Leave a comment

BlackRock Attorney to Face Stiffer Challenges to Next Set of MBS Settlements

Posted on January 31, 2012 by igradman

(Updated version, including new 6th paragraph on subsequent announcement of larger probe into Morgan Stanley bonds)

Having received copious kudos for engineering an $8.5 billion investor settlement with Bank of America over soured Countrywide residential mortgage backed securities (RMBS), “pitbull” lawyer Kathy Patrick, of the Houston-based firm, Gibbs & Bruns, has now trained her sights on the other big dogs in the world of pre-crisis MBS issuance.

Patrick’s most recently disclosed target is Wells Fargo, one of the Big Four Banks that up to now has stayed largely out of the RMBS litigation spotlight, as investors and insurers have gone after more notoriously irresponsible lenders such as Countrywide/BofA and EMC/JPMorgan.   But that all changed on January 5, 2012, when Gibbs & Bruns issued letters to RMBS Trustees US Bank and HSBC, stating that its clients held 25% of the voting rights (the critical threshold for legal standing) in 48 trusts that issued these securities and instructing them to open investigations into ineligible mortgages backing $19 billion of RMBS issued by Wells Fargo affiliates.

Recall that it was just such a letter that kicked off negotiations between Patrick’s bondholder clients, BofA-Countrywide and Bank of New York Mellon (BoNY) as Trustee.  Despite purposefully avoiding a more aggressive stance with the Trustee that may have involved declaring an event of default and triggering the Trustee’s fiduciary duties (as other bondholders were contemplating), the letter got the Trustee’s attention and was the precursor to the $8.5 billion proposed settlement that is currently being challenged in federal court.

A Pattern Emerges

The Wells Fargo letter comes on the heels of two other recent assaults by Patrick’s bondholder group.  On December 16, 2011, the group announced that it was going after JPMorgan.  In the announcement, Gibbs & Bruns said that it had issued instructions to BNY Mellon, US Bank, Wells Fargo, Citibank, and HSBC, as Trustees, to open investigations into ineligible mortgages in pools securing over $95 billion of MBS issued by various affiliates of JPM.  The most eye-popping number in this announcement was the law firm’s claim that its clients held 25% of voting rights in 243 JPMorgan trusts, even more than the 180 Countrywide trusts in which the group currently claims it has standing (now that it’s no longer counting Freddie Mac’s holdings).

Prior to that, on October 18, 2011, Gibbs & Bruns sent a letter to Morgan Stanley, saying that its clients held 25% of the voting rights in 17 MBS deals issued by the investment bank, and that it had found a large amount of servicing violations and false or fraudulent information that had been published in connection with the offering of those securities.  The letter, which has not been released to the public, only became public knowledge after Morgan Stanley disclosed it in its 2011 Q3 10-Q report.  The original face value of the 17 MBS deals was reported to be over $6 billion.

Subsequently, on January 31, 2012, Gibbs & Bruns issued a formal announcement regarding Morgan Stanley, in which the law firm stated that it had instructed RMBS trustees US Bank, Deutsche Bank and Wells Fargo to open investigations into ineligible mortgage securing $25 billion of Morgan Stanley-issued RMBS.  In that announcement, the firm claimed to have standing in 69 different Trusts.  It’s unclear why the numbers disclosed by Morgan Stanley in their earlier 10-Q are only a quarter of the size of the holdings announced by Gibbs & Bruns, but perhaps the firm has been able to attract a number of new clients in the last few months.

Shotgun Approach

By the numbers, the Wells Fargo deals represent the smallest original principal amount of RMBS out of the four issuers that Patrick has confronted thus far.  But what makes that effort particularly interesting is that it illustrates that Patrick’s group, which currently contains at least 22 major institutional investors, is not exactly taking a surgical approach to selecting the deals it wants trustees to investigate.

For example, several of the WFB deals contained in Gibbs & Bruns’ press release are experiencing delinquency rates of less than 1% and minimal cumulative losses. One analyst has also pointed out that some of the deals Patrick has identified in the past contain few actionable reps and warranties and extremely high procedural hurdles (such as voting rights thresholds of 50% just to petition the trustee).

What this indicates is that Patrick is not examining individual deals and hand picking the ones on which she is most likely to recover significant returns for her clients through putback litigation or other legal claims.  Instead, she’s identifying every trust in which her clients have standing, in the hopes of giving her the broadest platform from which to negotiate a global putback settlement for each targeted lender – a settlement, by the way, that will bind every investor in these deals, not just Patrick’s own clients.

But don’t just take my word for it.  Listen to Patrick herself, quoted in her firm’s press release on the Wells Fargo letters:

Our clients continue to seek a comprehensive solution to the problems of ineligible mortgages in RMBS pools and deficient servicing of those loans.  Today’s action is another step toward achieving that goal.

Or take Patrick’s quote in this Forbes article from October 2011:

This group did not come together just to deal with Bank of America. They came together because they wanted a comprehensive industrywide strategy and an industrywide solution… They started with Bank of America because they thought they could achieve a template that they could extend to other institutions.

These quotes may not seem remarkable until you delve into choice of language and the objections raised in the past to to Patrick’s efforts, including allegations regarding conflicts of interest and the secretive manner in which she negotiated the settlement.  What Patrick is not saying is that she wants a comprehensive solution for just her 22+ institutional clients; she’s saying that she wants a comprehensive solution for the entire industry. Recall that the big banks (who should be Patrick’s biggest opponents) have been saying much the same thing since the early days of this litigation – that they want a comprehensive, industrywide solution – and their support for efforts such as the proposed 50-state robosigning settlement have backed that up.

This only gives more credence to the fears of many of the bondholders outside of Patrick’s group: that she’s actually working to achieve sweetheart deals for the banks that would allow her institutional clients to maintain their cozy relationships with the financial firms while allowing the conflicted investors, Trustees and issuers to put these issues behind them.  But while it may be clear that Patrick is trying to architect a comprehensive settlement of all putback liabilities for the major banks along the lines of her groundbreaking settlement with BofA, what’s also clear is that this time around, her opponents will be better prepared to thwart her efforts.

A Mobilized Opposition

In the world of MBS litigation, bondholders and bond insurers have thus far gravitated toward a select few attorneys who have made their names by diligently pursuing investor interests.  This short list includes Philippe Selendy, whose firm, Quinn Emanuel, represents a number of bond insurers, including MBIA, and bondholders like the FHFA; David Grais, who represents many of the FHLBs, the distressed debt fund Baupost Group (aka Walnut Place), and TM1, to name a few; Talcott Franklin, who created the Investor Clearinghouse and represents Knights of Columbus in its lawsuit against Bank of New York Mellon; and Bernstein Litowitz, which represented the class that settled with Merrill Lynch for $315 million and currently represents Allstate and a number of European funds in recent suits.

But none of these attorneys has been the source of more controversy, more media adulation or more rampant speculation than Patrick.  The adulation stems in part from the fact that Patrick represents some of the biggest names in the world of MBS investors, such as BlackRock, PIMCO and the New York Fed, and the fact that Patrick’s firm stands to make $85 million in fees if the proposed $8.5 billion settlement between BoNY and BofA gets court approval.

Yet, Patrick has also been the source of significant controversy, primarily because of the manner in which Patrick steered her bondholder clients – many of whom have significant conflicts of interest with the issuer banks – away from more aggressive approaches to putback litigation. While I have been skeptical of the strategy behind Patrick’s efforts since she sent her first letter to BofA in September 2010 (as she failed to include any of the powerful supporting evidence she had at her disposal), recent revelations have only reinforced that belief.

Specifically, at a hearing before Judge Pauley over whether to keep the proposed $8.5 bn settlement in federal court, it emerged that Patrick had submarined efforts by the Investor Clearinghouse by urging her clients to avoid taking the more aggressive stance that was being advocated by Franklin.  This revelation came after lawyers for Gibbs & Bruns had argued that they were the only group of bondholders doing anything about MBS losses.

In addition, conflicts of interest identified between Bank of New York and Bank of America (such as the fact that BofA provides BoNY with over 60% of its trustee business and the fact that BofA has agreed to indemnify BoNY from all liability stemming from its conduct as Trustee of Countrywide trusts) have drawn the ire of bondholders and New York Attorney General Eric Schneiderman, who sought leave to file a counterclaim under the Martin Act against BoNY in court proceedings surrounding the proposed settlement.  In short, these developments have caused many bondholders, commentators and regulators to view this settlement as a sweetheart deal concocted by funds that want to maintain a cozy relationship with the big banks while satisfying their fiduciary obligation to do something about the massive losses they’ve suffered in their MBS portfolios.

Thus, it would be no exaggeration to say that Patrick and her bondholder group have been the single greatest galvanizing force for bondholders, motivating a diverse and largely passive group of institutions to band together, hire counsel, and begin taking steps to enforce their legal claims against the banks that sold them atrociously performing private label RMBS. For this reason, Patrick will likely face a stiffer challenge the next time she works with a trustee to seek judicial approval for a proposed global settlement.

Challenges to Next Set of MBS Settlements

As I see it, Patrick faces three major challenges to accomplishing her goal of piecing together global settlements with the remaining MBS issuers.  First, most of these issuers did not use the same Trustee on all their deals, as Countrywide did with BoNY.  This will make it significantly harder to coordinate a global settlement, as Patrick’s group does not have standing in the majority of any particular issuer’s trusts and needs the cooperation of a friendly Trustee to impose the settlement on the remainder of the bondholders.  For banks like JPMorgan, who used at least five separate Trustees (all with varying interests and motivations), getting all Trustees to buy into any settlement could be a logistical nightmare.

Second, the world has changed since Patrick’s BofA settlement was first proposed in New York State Court. Since then, bondholders have organized and mobilized in opposition, with over 40 bondholder groups having now retained counsel and filed petitions to intervene in the proposed settlement proceedings.  These bondholders have also had success in forcing the settlement outside of the favorable posture in which Patrick, BoNY and BofA sought to adjudicate it – in state court, under the deferential standards of Article 77.  Opposition bondholder groups, led by Walnut Place, LLC, have successfully removed the case to Federal Court, where (pending success on appeal) it will presumably be treated more like a class action, meaning it will be subject to an entire fairness standard, more robust discovery, and bondholder rights to opt out.

Finally, opposition bondholders are now on guard against another settlement negotiated in secret.  There was a significant amount of controversy in the BofA settlement surrounding whether David Grais was denied the right to participate in negotiations.  This time around, opposition bondholders are not likely to let another deal get to court without making some serious noise and creating a record showing that they tried to participate in negotiations but were stonewalled.

Meanwhile, Patrick’s group will probably start down the path of negotiating with issuing banks, who themselves will be armed with the benefit of hindsight after watching how the BofA settlement has fared in court.  While these banks likely won’t have the luxury of seeing how that first settlement is ultimately resolved, rest assured that they will learn from the pitfalls suffered by their competitor thus far and dream up new strategies to allow them to put these legacy mortgage issues behind them.  The upcoming battle, involving some of the best legal minds in the country, promises to be a chess game for the ages.

Thank you to India Autry for her meaningful contributions to this story.

Posted in Allstate, appeals, Attorneys General, Bank of New York, banks, BlackRock, BofA, bondholder actions, conflicts of interest, contract rights, Countrywide, emc, Event of Default, Federal Home Loan Banks, FHFA, global settlement, hedge funds, Investor Syndicate, investors, JPMorgan, jurisdiction, Kathy Patrick, lawsuits, lenders, liabilities, litigation, MBIA, MBS, Morgan Stanley, Philippe Selendy, press, private label MBS, putbacks, quinn emanuel, Regulators, remand, removability, rep and warranty, repurchase, RMBS, securities, securitization, settlements, standing, toxic assets, Wall St., Wells Fargo | 7 Comments