Alison Frankel: MBS industry takes a hit in second NY ruling on trustee liability

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Alison Frankel: MBS industry takes a hit in second NY ruling on trustee liability

Alison Frankel: MBS industry takes a hit in second NY ruling on trustee liability

Reuters-

There was much gnashing of teeth in the mortgage-backed securities industry last April, when U.S. District Judge William Pauley of Manhattan ruled that mortgage-backed certificates are debt, not equity. That finding, in turn, led Pauley to conclude that MBS trustees are subject to the federal Trust Indenture Act of 1939, which imposes duties on bond trustees. Under the TIA, Pauley said, MBS trustees can be liable if they fail to notify investors of deficiencies in the trust’s underlying mortgage loans and fail to act on those deficiencies. Beth Kaswan of Scott + Scott, who represents the Chicago pension fund that brought the suit before Pauley (which named Bank of New York Mellon as Countrywide’s MBS trustee), told me at the time that the “watershed” decision was a way for investors to get around MBS pooling and servicing agreements, which typically require 25 percent of a trust’s investors to band together before they can bring any action against an issuer. Scott + Scott was so happy about Pauley’s ruling that the firm immediately brought another case for the same client based on the same theory. In the second case, the Chicago fund sued Bank of America and U.S. Bank as trustees for Washington Mutual mortgage-backed securities.

[REUTERS ON THE CASE]

[ipaper docId=116346020 access_key=key-1tcxmhlbf7uz4ulwrnhl height=600 width=600 /]

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