- Class action suit filed against JPMorgan for alleged illegal demand of payment from junior mortgage holders who’s senior mortgages had been foreclosed. The class claims that JPMorgan’s demands violated several California laws.
- PHH Corp. urges the DC Circuit to vacate the CFPB’s penalty for $109 million for mortgage kickback scheme, claiming that the CFPB oversteps its constitutional authority.
- Second Circuit dismisses IKB Deutsche Industriebank AG suit against Standard’s & Poor’s for costing IKB almost $574 million by positively rating an investment vehicle that collapsed.
J.P. Morgan’s Securitized Products Weekly has a report, Proposed FRTB Ruling Endangers ABS, CMBS and Non-Agency RMBS Markets. This is one of those technical studies that have a lot of real world relevance to those of us concerned about the housing markets more generally.
The report analyzes proposed capital rules contained in the Fundamental Review of the Trading Book (FRTB). JPMorgan believes that these proposed rules would make the secondary trading in residential mortgage-backed securities unprofitable. It also believes that “there is no sector that escapes unscathed; capital will rise dramatically across all securitized product sectors, except agency MBS.” (1) It concludes that “[u]ltimately, in its current form, the FRTB would damage the availability of credit to consumers, reduce lending activity in the form of commercial mortgage and set back private securitization, entrenching the GSEs as the primary securitization vehicle in the residential mortgage market.” (1)
JPMorgan finds that the the impact of these proposed regulations on non-agency residential-mortgage backed securities (jumbos and otherwise) “is so onerous that we wonder if this was the actual intent of the regulators.” Without getting too technical, the authors thought “that the regulators simply had a mathematical mistake in their calculation (and were off by a factor of 100, but unfortunately this is what was intended.” (4) Because these capital rules “would make it highly unattractive for dealers to hold inventory in non-agency securities,” JPMorgan believes that they threaten the entire non-agency RMBS market. (5)
The report concludes with a policy takeaway:
Policymakers have at various times advocated for GSE reform in which the private sector (and private capital) would play a larger role. However, with such high capital requirements under the proposal — compared with capital advantages for GSE securities and a negligible amount of capital for the GSEs themselves — we believe this proposal would significantly set back private securitization, entrenching the GSEs as the primary securitization vehicle in the mortgage market. (5, emphasis removed)
I am not aware if JPMorgan’s concerns are broadly held, so it would important to hear others weigh in on this topic.
If the proposed rule is adopted, it is likely not to be implemented for a few years. As a result, there is plenty of time to get the right balance between safety and soundness on the one hand and credit availability on the other. While the private-label sector has been a source of trouble in the past, particularly during the subprime boom, it is not in the public interest to put an end to it: it has provided capital to the jumbo sector and provides much needed competition to Fannie, Freddie and Ginnie.
- The U.S. Securities and Exchange Commission were granted its request to freeze Luca International Group LLC’s CEO’s assets. He allegedly engaged in a “Ponzi-like” scheme with EB-5 investors.
- New York appeals court revived claims against Nomura Holdings Inc. brought by investors finding that HSBC can seek damages for misrepresentation in mortgage-backed securities transactions, which ended up being defective loans.
- In case brought by U.S. Bank against Credit Suisse, a New York judge refused dismissal for failing to buy back bad loans worth $1 billion, finding that the servicing agreement with U.S. Bank required it to do so.
- The Internal Revenue Service approved Bank of America’s $8.5 billion settlement for mortgage-backed securities purchased from Countrywide.
- JPMorgan and MassMutual have settled in case where JPMorgan had allegedly cause MassMutual to lose $2.3 billion in mortgage-backed securities.
Bloomberg quoted me in Nomura First to Fight U.S. Toxic Debt Claims at Trial. The article reads in part,
Nomura Holdings Inc. will defend claims by a U.S. regulator that it sold defective mortgage-backed securities to Fannie Mae and Freddie Mac before the 2008 financial crisis, becoming the first bank to take such a case to trial.
The Federal Housing Finance Agency, suing on behalf of the two government-owned companies, claims Nomura sold them $2 billion of bonds backed by faulty mortgages. The agency seeks more than $1 billion in damages in the trial, which is set to start Monday in Manhattan federal court.
Nomura, the Tokyo-based investment bank, is choosing to fight claims that 16 other banks settled after the blow-up of toxic mortgage bonds led to the global credit crunch. FHFA has reached $17.9 billion in settlements from banks including Bank of America Corp., JPMorgan Chase & Co. and Goldman Sachs & Co. If Nomura prevails at trial, it may embolden other firms facing mortgage-related suits to defend themselves rather than settle.
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For Nomura and RBS to succeed, they will have to overcome Cote’s rulings as well as the widely held perception that banks packaged toxic debt and pushed it off on unsuspecting investors, said David Reiss, a professor at Brooklyn Law School.
Reiss said Nomura may believe it can show it was more careful than other banks in structuring mortgage-backed bonds and stands a good chance of winning.
As the trial approaches, a settlement becomes less likely, Bloomberg Intelligence analysts Elliott Stein and Alison Williams said yesterday. Stein said a resolution this late in the proceedings may exceed his earlier estimate of $100 million to $300 million, particularly if Cote’s rulings continue to favor FHFA.
Law360 quoted me in New York’s Ocwen Deal Sets Tough Precedent For Regulators (behind a paywall). It reads in part,
New York regulators ordered Ocwen Financial Corp. to pay $150 million in hard cash and barred the company from claiming a tax deduction on the restitution payments in a mortgage servicing settlement that could set a new standard for regulators accused of being soft on the companies they penalize.
The New York Department of Financial Services’ penalty against Ocwen, which also saw the company’s executive chairman lose his job, comes amid criticism that major penalties against Bank of America Corp., JPMorgan Chase & Co. and other banks have been too lax. In a move aimed at addressing concerns over companies’ abilities to game the penalties, New York’s settlement specifically says Ocwen will not be able to use some of the techniques banks have used to lessen the blow of earlier settlements.
“They’ve tried to make a very tight settlement that demonstrates that Ocwen is suffering measurable costs for their behavior,” said David Reiss, a professor at Brooklyn Law School.
The New York Department of Financial Services announced Monday that Ocwen, the country’s fourth-largest mortgage servicer, with some $430 billion in unpaid servicing balances, would pay out $150 million in “hard money” to New York homeowners who were victim to the company’s problematic servicing operations. A third of that $150 million would go directly to people who were foreclosed upon, and the remaining $100 million would go to housing-related projects chosen by the state.
But, unlike in previous mortgage-related settlements, Ocwen will not be able to count what are known as “soft dollar” modifications of mortgages they do not own and other techniques toward its settlement total, the DFS said. Banks and other servicers have been able to count such modifications in their total settlement amounts in previous deals, including the $25 billion national mortgage settlement from 2012.
Critics say such soft-dollar remediation has allowed law enforcement agencies, regulators and banks to inflate the amount of money banks and servicers are said to be paying out while limiting the amount of money they actually pay.
“It seems like a transparent settlement,” Reiss said.
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“A lot of the problems that people have had with these financial settlements are specifically identified,” Reiss said.
Inside Mortgage Finance highlighted a DBRS Presale Report for J.P. Morgan Mortgage Trust, Series 2014-IV3. This securitization contains prime jumbo ARMS, some with interest only features. So, these are not plain vanilla mortgages.
The report raises some concerns about loosening standards in the residential mortgage-backed securities market, particularly relating to standards for the representations and warranties that securitizers make to investors in the securities:
Relatively Weak Representations and Warranties Framework. Compared with other post-crisis representations and warranties frameworks, this transaction employs a relatively weak standard, which includes materiality factors, the use of knowledge qualifiers, as well as sunset provisions that allow for certain representations to expire within three to six years after the closing date. The framework is perceived by DBRS to be weak and limiting as compared with the traditional lifetime representations and warranties standard in previous DBRS-rated securitizations. (4)
Underwriting and fraud (other than the above-described fraud) representations and warranties are only allowed to sunset if certain performance tests are satisfied. . . .
Third-party due diligence was conducted on 100% of the pool with satisfactory results, which mitigates the risk of future representations and warranties violations.
Automatic reviews on certain representations are triggered on any loan that becomes 120 days delinquent, any loan that has incurred a cumulative loss or any loan for which the servicers have stopped advancing funds.
Pentalpha Surveillance LLC (Pentalpha Surveillance) acts as breach reviewer (Reviewer) required to review any triggered loans for breaches of representations and warranties in accordance with predetermined procedures and processes. . . .
Law360 quoted me in BofA Deal Shows Pragmatism At Work On Both Sides (behind a paywall). It reads in part,
Bank of America Corp.’s $16.65 billion global settlement over its alleged faulty lending practices in the run-up to the financial crisis may have made bigger waves than recent payouts by JPMorgan Chase & Co. and Citigroup Inc., but attorneys say the deal still represents the best possible outcome for the bank and for federal prosecutors, who can now put their resources elsewhere.
The settlement, inked with the U.S. Department of Justice, Securities and Exchange Commission, the Federal Housing Finance Agency, the Federal Deposit Insurance Corp., the Federal Housing Administration and the states of California, Delaware, Illinois, Kentucky, Maryland and New York, released most of the significant claims related to subprime mortgage practices at Countrywide Financial Corp. and investment bank Merrill Lynch, both of which Bank of America picked up during the crisis.
Although the hefty price tag, which includes $7 billion in consumer relief payments and a record $5 billion in civil penalties, is nothing to balk at, the settlement will help Bank of America avoid a series of piecemeal deals that could stretch out over a much longer period without the prospect of closure, according to Ben Diehl of Stroock & Stroock & Lavan LLP.
“They want to start being looked at and considered by the market, their customers and regulators based on what they are doing today, in 2014, and not have everything continue to be looked at through the perspective of alleged accountability for conduct related to the financial crisis,” said Diehl, who formerly oversaw civil prosecutions brought by the California attorney general’s mortgage fraud strike force.
And the bank isn’t the only one looking for closure, according to Diehl.
“It’s in a regulator’s interest as well to be able to look at what is currently being offered to consumers and have a dialogue with companies about that, as opposed to talking about practices that allegedly happened six or more years prior,” he said.
The government also saw great value in getting a big dollar number out to a public that has expressed frustration over a perceived lack of accountability of financial institutions for their role in the financial crisis.
“The executive branch get a big news story, particularly with the eye-poppingly large settlements that have been agreed to recently,” said David Reiss, a professor at Brooklyn Law School, who added that the federal government also has an interest in global settlements that keep the markets running more predictably.