Alison Frankel: Will 2nd Circuit remake AIG's MBS case against BofA?


Alison Frankel: Will 2nd Circuit remake AIG’s MBS case against BofA?

Alison Frankel: Will 2nd Circuit remake AIG’s MBS case against BofA?


Mortgage-backed securities litigation has been very good for some of the most obscure laws on the books. I’ve already mentioned the starring role the unheralded statute of repose has taken in bank motions to dismiss securities claims by MBS investors, and we all know about Bank of America’s ingenious (or nefarious, depending on your perspective) use of New York’s Article 77 — a proceeding so rarely invoked that the judge assigned the case had to look it up — to seek approval of its proposed $8.5 billion settlement with investors in Countrywide mortgage-backed notes. Today I bring you the Edge Act, a hundred-year-old law that grants federal-court jurisdiction to civil suits against any U.S corporation in which claims arise from international banking or banking transactions in a U.S. territory.

You’re probably wondering what the Edge Act has to do with U.S. MBS trusts in which securities are backed by U.S.-issued mortgages on properties in the United States. Well, it turns out that a handful of the mortgages backing BofA securities actually originated in the Virgin Islands and Guam. We are talking about a very small handful. According to a brief AIG submitted to the 2nd Circuit Court of Appeals, of the 1.7 million mortgages underlying the 349 MBS trusts at issue in AIG’s $10 billion case against Bank of America, exactly 8 mortgages in 3 trusts originated in U.S. territories.


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CONTROL FRAUD | ‘If you don’t look; you don’t find, Wherever you look; you will find’ -William Black

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