Lehman RMBS Settlement Likely to Spur Additional Claims

On March 8, the Bankruptcy Court for the Southern District of New York concluded a lengthy “claims estimation” trial to determine the appropriate final settlement price for a resolution of lawsuits filed on behalf of investors in residential mortgage-backed securities (RMBS) created by Lehman Brothers Holdings prior to its bankruptcy in September 2008. The judge determined that the final settlement value of this particular set of claims was $2.38 billion – down from the $37 billion initially demanded, and the $11.4 billion sought by the plaintiffs in this claims estimation trial.  A separate group of plaintiffs that had previously settled with Lehman Brothers Holdings had resolved their claims for approximately $2.4 billion.

The resolution of the claims estimation trial is significant for businesses that sold residential mortgage loans to Lehman, for at least two reasons.  First, lawsuits that Lehman filed against more than 100 loan originators and sellers in this same bankruptcy court had essentially been on hold for the last several months while the estimation trial was proceeding.  We can reasonably expect that those existing cases, which relate to Lehman’s 2014 settlements of claims against it by Fannie Mae and Freddie Mac, will become more active once again with that trial now completed.   Continue Reading

The Eighth Circuit Raises the Bar for Would-Be Indemnitees

Here is a situation that comes up quite a bit in the world of business contracts containing indemnification provisions, and in the insurance industry as well. First, a party (“Party A”) gets sued, or threatened with a suit, and settles the claims against it.  Party A then seeks indemnification from another party (“Party B”) for all, or a portion of, the settlement payment that Party A made.  Party B, in addition to challenging in other ways whether it owes Party A anything at all, believes it is able to show that some portion of the settlement payment relates to issues outside the scope of the indemnification provision, and/or that other parties are the ones truly responsible for some or all of whatever amount of indemnification Party A might be owed. This fairly common situation raises a host of complex issues, requiring analysis of all potentially applicable contracts, the specific claims that were asserted against Party A, the basis for its settlement, and other legal considerations like causation.

In late 2017, the U.S. Court of Appeals for the Eighth Circuit issued an order dealing with indemnification for prior settlements, and it could have a hugely beneficial impact on potential indemnitors, including sellers of mortgage loans as well as insurers. UnitedHealth Group Inc. v. Executive Risk Specialty Insurance Company, 870 F.3d 856 (8th Cir. 2017) (rehearing and rehearing en banc denied) addressed an insured’s burden to allocate between “covered” and “non-covered” claims when seeking reimbursement from its insurer for settlement payments. The Eighth Circuit affirmed the District of Minnesota’s holding that, when an insured seeks indemnification for settlements that encompassed both covered and non-covered claims, the insured must present sufficient evidence to establish with reasonable certainty the value that the settling parties attributed to the covered claims.  Moreover, the insured’s allocation must be predicated on “what the parties knew at the time of settlement.” Id. at 863.  In other words, the insured cannot point to evidence or case law identified or arising after the settlement in order to justify an allocation that deviates from the settling parties’ reasonable valuation of the various claims at the time of settlement. Continue Reading

CFPB Arbitration Rule Eliminated by Congress and President

On November 1, President Trump formally did away with a Consumer Financial Protection Bureau (CFPB) arbitration rule that would have given consumers the opportunity to file class actions against banks and other companies in the financial services industry.

The CFPB rule was released in July 2017. It sought to prohibit and eliminate bans against class actions that had become a staple of arbitration clauses in consumer financial agreements.

The president signed a resolution, passed by both houses of Congress under the Congressional Review Act (CRA), that nullified the CFPB rule. The House of Representatives had moved quickly in July in response to the CFPB rule, voting to overturn it. The Senate followed suit in October, passing by the narrowest of margins (51-50, with Vice President Pence casting the deciding vote to break the deadlock) its version of CRA resolution disapproving the rule. Continue Reading

You Are the Target: 75 Different Ways Your Company Can Be Hacked

Target redone

Join us on Thursday, June 15th from 12:00PM to 1:00PM for an in-depth webinar as Philip R. Stein, a partner in Bilzin Sumberg’s Litigation Practice, and Ray Vasquez, a director in Enterprise Risk Management’s Cybersecurity and IT Risk Management practice, discuss primary cybersecurity risks and leading practices.

They will discuss the reasons why a business may be targeted by cybercriminals, steps that can be taken to better safeguard private data, and fiduciary or professional responsibility obligations associated with protecting confidential information. Learn about best practices following a data breach, including certain actions that should be part of a company’s response.

Click here to register for this CLE-accredited webinar.

New Wave of Lehman Litigation Appears to Be Imminent

woman is signing contract with business man in backgroundThousands of mortgage lenders across the country either recently received, or will soon be receiving, this document from Lehman Brothers Holdings, Inc. (LBHI). It is a notice of a motion to approve a proposed settlement of Residential Mortgage-Backed Securities (RMBS) claims asserted by trustees and investors against LBHI over the last few years. The notice of proposed settlement refers to proposed findings of fact, sets a deadline (June 22) for objections to the settlement, and schedules a hearing date (July 6) for approval of the RMBS settlement.

The companies receiving this document are apparently those that LBHI believes originated and sold loans that are now part of the proposed settlement, which sets an estimated settlement price of $2.416 billion to be paid by LBHI to settle the claims against it. It is therefore a prelude to new payment demands (for alleged breaches of contractual representations and warranties) by LBHI against the mortgage lender/correspondent at some point after the bankruptcy court approves the settlement. This notice likely is also specifically motivated by LBHI’s desire to cut off one of the potential defenses to an indemnity claim, “failure to give notice.” Paragraph 3 of the proposed order appears to relate to that issue. Continue Reading

Supreme Court Ruling Permits City Lawsuits Against Banks Under FHA to Proceed

0501_SupremeCourtThe U.S. Supreme Court ruled today, in Bank of America Corp. v. City of Miami, Case No. 15-1111 that cities may qualify as “aggrieved persons” under the Fair Housing Act (“FHA”), thus placing them within the “zone of interests” covered by that federal statute.  As such, they are permitted to sue banks for the secondary effects of predatory lending practices or discrimination.  Miami argued that, because the lending practices of banks — including the petitioner, Bank of America — were skewed to place unfair or racially discriminatory burdens on minorities, and because those loans were far more likely to default, minority neighborhoods have suffered an overwhelming number of foreclosures and vacancies.  That outcome “impaired the City’s effort to assure racial integration, diminished the City’s property-tax revenue, and increased demand for police, fire, and other municipal services.”

Normally, actions brought under the FHA seek relief for individual borrowers or those directly harmed by predatory lending.  Now, for the first time, the Court concluded that a municipality’s financial injuries are protected by the FHA.  Congress defined an “aggrieved person” under the FHA as one who “claims to have been injured by a discriminatory housing practice” or believes that such an injury is “about to occur.”  According to the Court, that definition is broad enough to show a “congressional intention to define standing as broadly as is permitted by Article III of the Constitution.”  (Slip. Op. at 6.)  Because municipalities are empowered to sue under Article III, they may pursue remedies against the banks. Continue Reading

The New Administration’s Plans for the CFPB Take Shape

Facade of courthouse with columns.

For those who have been wondering—as I did in a previous post—what the new presidential administration would mean for the Consumer Financial Protection Bureau (CFPB), an agency that has been in Republicans’ crosshairs virtually since it came into existence, we now have at least the beginnings of a concrete answer. Claiming that the CFPB’s leadership structure is unconstitutional, the Trump administration asked the U.S. Court of Appeals for the D.C. Circuit last week to allow the president to fire the bureau’s director, Richard Cordray, at will. The administration did not go so far as to ask the court to authorize elimination of the agency, however.

In its brief to the appeals court, the U.S. Department of Justice (DOJ) argued that an October split ruling by a three-judge panel of the D.C. Circuit correctly determined that the CFPB’s single-director leadership structure violated the U.S. Constitution’s separation of powers clause. And, according to the DOJ, giving the president the power to fire the director at will rather than for cause, as was required by the 2010 Dodd-Frank Act, would serve to remedy the alleged structural problem. Continue Reading

Minnesota State Court Defendants Win Partial Summary Judgment Over RFC and ResCap

Close-up of weights balancing scales of justice with gavel beside itWednesday, February 1 brought a welcome development for the many correspondent lenders currently defending against claims filed by (or threatened with future lawsuits by) Residential Funding Company (“RFC”) and its successor-in-interest, the ResCap Liquidating Trust (“ResCap”). There have been three venues in which RFC and ResCap have been litigating, for years now, against correspondent lenders. They filed dozens of lawsuits in federal court in Minnesota, several more in the Bankruptcy Court for the Southern District of New York, and just a few in state court in Minnesota. On February 1, three state court defendants triumphed on their motion for partial summary judgment against RFC and ResCap. They obtained a ruling that, though limited in scope, is potentially of great significance. Specifically, the Minnesota state court (the District Court of Hennepin County) held that RFC and ResCap would not be able to pursue loan-level (i.e., loan-by-loan) damages associated with a repurchase claim, and thus could not apply a repurchase price “formula” to establish damages.

Continue Reading

Key Legal & Regulatory Issues for Financial Services Companies in 2017

Financial Serives Blog ImageWith 2016 rapidly drawing to a close, here are some thoughts regarding the types of litigation and legal/regulatory issues that will likely be top-of-mind for financial services companies, especially mortgage companies and banks, in 2017:

RMBS Suits and Mortgage Repurchase or Indemnification Claims

I admit it—I never would have thought, when I started working on cases of this type back in 2009, that new waves of residential mortgage-backed securities(“RMBS”) lawsuits and contractual mortgage buyback claims would still be getting filed (or that some older claims would still be getting litigated) in 2016 and 2017. But they remain with us. Yes, some things about these cases have changed. For example, a higher percentage of mortgage buyback suits are now brought by entities, like ResCap/RFC, Lehman Brothers Holdings, and the various failed institutions for which the FDIC  is acting as Receiver, that long ago ceased to do business—and now function primarily as “litigation machines.” Also, plaintiffs are now more prone to pitch their claims as ones for “indemnification” rather than “repurchase.” They do that both because they believe (falsely, in our view) that using the term “indemnification” can help them navigate around the statute of limitations, and because most of the loans in dispute are by no means still available for true repurchase. But more about these cases remains the same than has changed. Mortgage companies and banks threatened with RMBS and buyback/indemnification claims still tend to have far stronger legal and factual defenses available to them than the parties making the threats initially believe. And, unfortunately, the stakes remain high for the companies facing these claims—sometimes so high that negotiating a quick, acceptable settlement is all but impossible. 2017 may be a watershed year in this area of the law, with additional important decisions likely to be forthcoming on the statute of limitations, plaintiffs’ ability or inability to use “statistical sampling” in especially large cases, how alleged damages should be calculated, and the impact of bulk loan sales as part of a bid process on a plaintiff’s claims that its own client guide was breached. Continue Reading

CFPB Steps Up Oversight of Companies’ Compensation Programs Following Wells Fargo Scandal

Protection of MoneyThe Consumer Financial Protection Bureau (CFPB) will likely be weakened by the incoming Trump administration and its Republican allies in Congress. Exactly how, and how much, remains to be seen, however—and, in the meantime, the agency continues to make its presence felt. Earlier this week, the CFPB warned companies that it oversees to take steps to ensure that their incentive compensation programs are not likely to motivate unethical conduct by employees. The types of unethical conduct that the CFPB wants to ensure that companies are guarding against might include employees creating fake accounts, as happened at Wells Fargo & Co., or enticing consumers to sign up for products they neither want nor need. But the CFPB made clear in its warning to companies that its concerns over sales practices go beyond situations similar to Wells Fargo’s fake account scandal. In other words, as has at times been the case with the CFPB, it is casting a broad net, but not necessarily saying what specifically it intends to catch with that net.

The federal consumer protection watchdog said that banks, mortgage lenders, payday lenders and other firms that it regulates should review their compensation policies on a regular basis. In doing so, these types of companies need to make sure that they are not creating the wrong kinds of incentives, ones that may lead employees to conclude that they must engage in potentially fraudulent activity in order to meet inflated sales goals. In particular, companies should undertake a comprehensive analysis of their compliance management systems. Boards of Directors will be expected to increase their level of oversight to make sure that appropriate policies and incentives are in place and are being followed. Continue Reading