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

(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.

About igradman

I am an attorney, consultant, book editor, and one of the nation's leading experts on mortgage backed securities litigation. I am the author of The Subprime Shakeout mortgage litigation blog, a partner at Northern California law firm Perry Johnson, Anderson, Miller & Moskowitz, LLP, and the editor of the critically-acclaimed book, "Way Too Big to Fail: How Government and Private Industry Can Build a Fail-Safe Mortgage System," by Bill Frey. Follow me on Twitter @isaacgradman
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