Original Post Date: September 23, 2010
By: Carrick Mollenkamp
Big U.S. banks are facing legal pressure to make up for losses tied to pools of soured low-end mortgage loans.
In the latest effort, a group of investors in 2,300 mortgage securities worth roughly $500 billion is seeking to force several banks that originated or are now servicing faulty subprime-mortgage loans to repurchase or modify them.
Some investors ‘had no idea that their money was being invested in mortgage-backed securities,’ says Talcott Franklin, a Dallas lawyer.
The move follows other similar efforts. Bond and mortgage insurers, hard hit in the housing crisis, have filed lawsuits accusing lenders and banks of sticking them with flawed loans marred by poor underwriting and faulty appraisals.
Federal Home Loan Banks in Pittsburgh, Seattle and San Francisco have sued Wall Street banks, seeking to force them to buy back mortgage-backed bonds. In July, the Federal Housing Finance Agency issued 64 subpoenas to obtain information about loans underpinning securities sold to mortgage giants Fannie Mae and Freddie Mac.
The banks and lenders are fighting these efforts, saying they aren’t responsible for the housing crash.
And the outcome is far from certain and could depend on potentially contentious negotiations and litigation that could drag out for years.
In any case, analysts say the efforts could force banks to disclose difficult-to-obtain information about the loans, such as how poorly they might have been originated or are being managed.
That data could be used to force banks to repurchase as much as $133 billion in souring home loans, according to Compass Point Research & Trading, a Washington, D.C., boutique investment bank.
The legal efforts focus on the contractual duties of lenders known as “representations and warranties,” which can at times require them to repurchase loans or modify them so borrowers can keep paying monthly mortgage bills, which maintains value for mortgage securities tied to the loans.
The Trustees’ Roles
At issue are the roles of trustees and loan servicers. Trustees are little-known administrators inside banks responsible for overseeing loan pools, or securitizations, on behalf of investors. Loan servicers handle day-to-day management of loans, including deciding how and whether to modify the terms of a loan. Both are charged with oversight of pools that hold thousands of loans.
If a trustee, for example, discovers that a borrower lied when getting a loan, the trustee or loan servicer is responsible for forcing the originating bank to repurchase the loan on behalf of mortgage investors. Trustees enforce warranties made by loan originators when they sell loans to a trust, and oversee loan-servicing firms.
But some loan-servicing units reside inside the same banks that originated or underwrote the loans or securities. This sets up a potential conflict of interest because a loan-servicing arm would have to force another department or affiliate inside a bank to take back a problem loan.
In a letter to the trust departments of several large banks, Talcott Franklin, a Dallas lawyer representing the investors holding 2,300 mortgage bonds, claims the loan-servicing units too infrequently modify poor-performing home loans underpinning mortgage securities or replace them with better loans.
“This is of great concern to the pension funds, bank and credit-union depositors, mutual fund holders, 401(k) holders, endowments, state and local governments and taxpayers who depend on the performance of these investments,” the letter says.
U.S. Bancorp, Bank of America Corp., Bank of New York Mellon Corp., and Wells Fargo & Co. received the letter from Mr. Franklin, while Deutsche Bank AG didn’t, according to people familiar with the situation. The banks either declined to comment or didn’t return requests for comment on the letter.
In a statement, a spokeswoman for Wells Fargo said the bank has “an established track record of responding to all legitimate verified bondholder inquiries in a timely manner.”
A key first step in the legal fights is obtaining the loan files that will detail how the loans were originated and what is being done now to salvage investors’ money.
If the investor maneuver is successful in getting the loan information, “this will lead to similar actions taken by a larger set of bondholders,” said Chris Gamaitoni, a Compass Point senior analyst. “We believe that once loan files are acquired, that the breaches of reps and warranties will be relatively clear.”
In an Aug. 17 report, Compass Point said the litigation makes common claims: “A significant portion of the underlying loans failed to comply with the underwriting guidelines or other reps and warranties, and thus misrepresentations and material omissions were made in connection with the sale of” residential mortgage-bond securities.
In recent weeks, some of the banks have begun early-stage talks with Mr. Franklin to provide data about the loans underpinning the securities, such as loan documents and how the loan has been serviced. Separately, Mr. Franklin hopes to persuade the trustees to take increased steps to deal with souring loans, such as forcing loan sellers to repurchase the loans or requiring loan servicers to improve loan servicing.
In the past, complaints by mortgage-security investors went unheeded. But because Mr. Franklin now represents enough investors to meet certain legal thresholds—he, for example, represents 50% or more of the voting rights of 900 mortgage securities—his clients could fire a trustee, demand changes in the way a mortgage bond is managed or ultimately file a suit on behalf of a huge group of bondholders.
In the letter, Mr. Franklin said that in some trusts where the lender and servicer sit inside the same bank, the number of recent repurchases by the lender is zero, even though the default rate for the loan pool is 25%.
‘That’s Just Not Right’
Some investors “had no idea that their money was being invested in mortgage-backed securities,” said Mr. Franklin. “And yet somehow these people are now the ones being punished, and that’s just not right.”
To keep track of the securities his clients own and protect his clients’ confidential holdings, Mr. Franklin uses a software system he designed with a college friend, who consults on how to design large databases. Mr. Franklin calls it the “Tranche” program, a reference to the French word for slice or layer. Mortgage securities are chopped into tranches based on risk and return.
His clients’ information is coded and Mr. Franklin keeps a secret code book as a reference. Mr. Franklin said the system is important because it lets him know when his clients in a specific deal have amassed enough voting power.
In the other cases, bond insurer MBIA Inc. sued Credit Suisse Group in New York state court in December over a $900 million loan pool, a large portion of which MBIA agreed to cover. MBIA said it had relied on Credit Suisse to vet the quality of the loans.
In January, Ambac Assurance Corp., the bond-insurance unit of Ambac Financial Group Inc., sued a Credit Suisse unit in New York state court, alleging that it made “false and misleading” representations about home-equity lines of credit backing bonds that the insurer guaranteed in 2007.
A Credit Suisse spokesman said the claims are without merit and the bank will defend itself against the claims.
Separately, American International Group Inc. is analyzing mortgage deals it insured before it imploded in 2008. Chief Executive Robert Benmosche told investors in May that the company will take “appropriate action” if it finds it was harmed by the transactions.