Ten years after the financial crisis, mortgage companies and regional/local banks are still getting hit with new breach of contract and indemnification claims related to loans sold before the crisis. The latest case in point involves demand letters that JPMorgan Chase is sending out to lenders throughout the country. The letters pertain to loans sold by originators to EMC, Bear Stearns and Chase prior to 2008. Chase then pooled those loans with loans it originated on a retail basis, depositing the pools into residential mortgage-backed securities (RMBS) trusts. Institutional investors and monoline insurers subsequently sued Chase, alleging securities fraud and other causes of action.
Chase ultimately settled with 21 institutional investors for $4 billion. Now it is seeking to recoup from originators sums that it claims to be owed as a result of the settlement payments it agreed to make. The kinds of claims that Chase is making — particularly given that these are “indemnification” claims made in the aftermath of settlement of RMBS-related allegations against Chase, which structured the RMBS transactions, selected the loans for inclusion in each “pool” of loans, and made representations, warranties and other disclosures to investors and insurers about the loans that Chase selected — raise several interesting issues, and potentially strong defenses (legally and factually), for the originators now receiving the demand letters. Originators are thus well advised to carefully and thoroughly evaluate their legal options when they receive these letters. There are a lot of grounds on which to defend against this type of threatened claim.