- The Financial Industry Regulatory Authority (FINRA) has ordered Goldman Sachs to pay National Australia Bank $100 million over $80 million in collateralized debt obligations.
- US Bank escapes liability under the False Claims Acts for filing FHA insurance claims without complying with HUD requirements.
- California federal judge grants summary judgment in suit against Bank of America for allegedly targeting minority neighborhoods with predatory loans in discriminatory lending suit.
Tag Archives: summary judgment
Big Decision in GSE Litigation
Regular readers of this blog know that I have written a lot about the shareholder suits arising from the conservatorships of Fannie and Freddie. One of the main cases is being presided over by Judge Lamberth in the District Court for the District of Columbia. This case raises a range of challenges to the government’s action: violations of the Administrative Procedures Act, violations of the Housing and Economic Recovery Act of 2008 and more. Judge Lamberth has issued an opinion that dismissed all of the plaintiffs’ claims, dealing a severe (but not fatal) blow to their cause. His conclusion captures the tenor of the whole opinion:
It is understandable for the Third Amendment, which sweeps nearly all GSE profits to Treasury, to raise eyebrows, or even engender a feeling of discomfort. But any sense of unease over the defendants’ conduct is not enough to overcome the plain meaning of HERA’s text. Here, the plaintiffs’ true gripe is with the language of a statute that enabled FHFA and, consequently, Treasury, to take unprecedented steps to salvage the largest players in the mortgage finance industry before their looming collapse triggered a systemic panic. Indeed, the plaintiffs’ grievance is really with Congress itself. It was Congress, after all, that parted the legal seas so that FHFA and Treasury could effectively do whatever they thought was needed to stabilize and, if necessary, liquidate, the GSEs. Recognizing its role in the constitutional system, this Court does not seek to evaluate the merits of whether the Third Amendment is sound financial — or even moral — policy. The Court does, however, find that HERA’s unambiguous statutory provisions, coupled with the unequivocal language of the plaintiffs’ original GSE stock certificates, compels the dismissal of all of the plaintiffs’ claims. (52)
Not one to typically say “I told you so” (or at least not on the blog), I will say that I had predicted that deference to the Executive during a time of national crisis was going to be hard for the plaintiffs to overcome. That being said, this is an extraordinarily complex cases both legally and factually so we can expect appeals up to the Supreme Court (and perhaps a return to the District Court), so it is premature to say that the plaintiffs’ claims are DOA just yet.
FHFA Wins on “Actual Knowledge”
Judge Cote issued an Opinion and Order in Federal Housing Finance Agency v. HSBC North America Holdings Inc., et al. (11-cv-06189 July 25, 2014). The opinion and order granted the FHFA’s motion for partial summary judgment concerning whether Fannie and Freddie knew of the falsity of various representations contained in offering documents for residential mortgage-backed securities (RMBS) issued by the remaining defendants in the case.
I found there to be three notable aspects of this lengthy opinion. First, it provides a detailed exposition of the process by which Fannie and Freddie purchased mortgages from the defendants (who included most of the major Wall Street firms, although many of them have settled out of the case by now). it goes into great length about how loans were underwritten and how originators and aggregators reviewed them as they were evaluated as potential collateral for RMBS issuances.
Second, it goes into great detail about the discovery battle in a high, high-stakes dispute with very well funded parties. While not of primary interest to readers of this blog, it is amazing to see just how much of a slog discovery can be in a complex matter like this.
Finally, it demonstrates the importance of litigating with common sense in mind. Judge Cote was clearly put off by the inconsistent arguments of the defendants. She writes, with clear frustration,
It bears emphasis that at this late stage — long after the close of fact discovery and as the parties prepare their Pretrial Orders for three of these four cases — Defendants continue to argue both that their representations were true and that underwriting defects, inflated appraisals and borrower fraud were so endemic as to render their representations obviously false to the GSEs. Using the example just given, Goldman Sachs argues both that Fannie Mae knew that the percentage of loans with an LTV ratio below 80% was not 67%, but also that the true figure was, in fact, 67%. (65)
U.S. Bank Had Standing to Bring Action
The court in deciding United States Bank Nat’l Ass’n v. McHugh, 2013-Ohio-5473 (Ohio Ct. App., Lucas County, 2013) affirmed the judgment of the Lucas County Court of Common Pleas.
In their sole assignment of error, McHugh argued that US Bank did not have standing to pursue the underlying foreclosure action. US Bank responded by arguing that McHugh’s argument was misplaced in that it failed to address the applicable standard for a motion for relief from judgment under Civ.R. 60(B). Further, US Bank argued that the trial court’s decision was proper in light of McHugh’s failure to meet the standard for Civ.R. 60(B) motions.
Ultimately the court concluded that the trial court did not abuse its discretion in denying their Civ.R. 60(B) motion.
Alabama Court Reverses Lower Court’s Decision Granting Summary Judgment to Foreclosing Entity
The court in deciding Sturdivant v. BAC Home Loan Servicing, LP, 2013 Ala. Civ. App. (Ala. Civ. App., 2013) reversed the lower court’s ruling that granted summary judgment to a foreclosing entity with respect to its complaint in ejectment against a mortgagor under Ala. Code § 6-6-280(b).
The court’s decision was based on the fact that the foreclosing entity presented no evidence that it was either the assignee of the mortgage or the holder of the note at the time it foreclosed, it failed to present a prima facie case that it had the authority to foreclose and, thus, had valid title to or the right to possess the property–one of the elements of its claim in ejectment.
Michigan Court Rejects TILA and RESPA Claims in Granting Summary Judgment
The court in deciding Morton v. Bank of Am., N.A., 2013 U.S. Dist. (W.D. Mich., 2013) ultimately concluded that the moving defendants are entitled to judgment on all plaintiff’s claims as a matter of law.
Plaintiff asserted that none of the defendants had standing to foreclose on the mortgage. He also alleged that defendants were liable for violations of the Truth In Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA). Defendants Bank of America, MERS, and Crain had moved for judgment on the pleadings, but supported their motion with documents beyond the pleadings. Therefore, this court elected to treat the motion as one for summary judgment under Rule 56.
Plaintiff’s complaint identifies two federal claims, in addition to claims arising under Michigan law. The complaint mentions the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667f. Plaintiff also purports to assert a claim under the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601-2617. The court determined that neither the TILA claim nor the RESPA claim had merit. Plaintiff also asserted three purported state-law claims, which the court deemed to be both redundant and lacking merit. Accordingly, the court recommended that the entry of a summary judgment in favor of the defendants.
Hawaii Court Holds that Debtor had Standing to Enforce Note and Mortgage Under Haw. Rev. Stat. § 490:3-301(ii) Even Though it was a Non-Holder
The court in deciding 1250 Oceanside Partners v. Katcher, 2013 Bankr. (D. Haw. 2013) recommended that the district court enter a decree of foreclosure in favor of the debtor.
The debtor in possession of 1250 Oceanside Partners sought to enforce a promissory note and foreclose a mortgage made by defendants, the Katchers. Oceanside sought summary judgment, the Katchers argued that the court lacked jurisdiction, that Oceanside was not entitled to foreclose, and that if it was entitled to foreclose, it was not entitled to a deficiency judgment.
The court found that there was no dispute as to any material fact and that Oceanside was entitled to foreclose on the property, but it was not entitled to a deficiency judgment against the Katchers at this stage in the litigation.
The court held that the debtor had standing to enforce the note and mortgage under Haw. Rev. Stat. § 490:3-301(ii) even though it was a non-holder, as it was in possession of the note and had the rights of a holder. The court also found that the mortgagors’ defenses to foreclosure were based entirely on debtor’s failure to develop a project as the purchase contract required, but the terms of the purchase contract provided that the mortgagors’ claims against debtor would be decided separately from debtor’s foreclosure claims. Moreover, the debtor’s claim for a deficiency judgment related to monetary damages or costs and thus, was subject to arbitration under the agreement.
