Monday’s Adjudication Roundup

  • Ocwen and Assurant settle with homeowners for $140 million in class action suit, in which the homeowners alleged that Ocwen received kickbacks by inflating premium costs for forced-placed insurance.
  • New York’s Appellate Division, First Department, affirmed dismissal of suit against UBS AG for $30 million, brought by Hanwha Life Insurance Co. (a Korean corporation) claiming that NY courts do not have an interest in adjudicating the suit. Hanwha purchased $30 million in credit-linked notes from UBS that turned out to be worthless. It was trying to recover its losses because it relied on UBS’s advice in purchasing the notes.
  • CFPB and the Maryland Attorney General filed suit and settlement consent orders against a title company and participants in an alleged illegal mortgage-kickback scheme.
  • After the National Credit Union Administration Board (NCUA) filed a complaint against HSBC for failing as trustee of $2 billion in residential mortgage-backed securities trusts, HSBC claims that the regulator lacks standing to represent the trusts and is barred by Delaware’s three-year statute of limitations.
  • Wells Fargo and Deutsche Bank moved to dismiss fives suits from BlackRock Inc., Pacific Investment Management Co. and NCUA for allegedly failing to watch over 850 RMBS trusts as the trustees.

Misrepresentation and Wholesale Misrepresentation

Federal Judge Lungstrum (D. Kan.) issued a Memorandum and Order in National Credit Union Administrative Board v. RBS Securities, Inc. et al., No. 11-2340 (Sept. 12, 2013).  The Board, as conservator and liquidating agent of the U.S. Central Federal Credit Union, alleged that the defendants made “untrue statements or omissions of material facts relating to” a number of RMBS. The main allegation is that  “the originators for the loans underlying the [RMBS] certificates systematically abandoned underwriting guidelines, and that the certificates’ offering documents failed to disclose that fact or misrepresented that guidelines were followed.” (3) The court found that

plaintiff’s forensic analysis, based on the particular loans underlying the six dismissed offerings, support a plausible claim of misrepresentations involving the LTV and owner-occupancy ratios. Not only are those alleged misrepresentations independently actionable, they provide a connection to the particular certificates at issue and thus support a plausible claim based on the abandonment of underwriting guidelines.  That is true for claims based on these six offerings, even without originator-specific allegations.  Accordingly, the Court denies the motion by RBS and Wachovia to dismiss certain claims on this basis. (7)

Courts have been increasingly willing to draw a distinction between run of the mill misrepresentation and systemic misrepresentation (see here and here for instance).  This will have a big impact on how reps and warranties are drafted going forward as well as, obviously, the scope of theories of liability for breach of contract in the context of securities offerings.