Bankruptcy-RealEstate-Insights-

Tamir v. U. S. Trustee, 566 B.R. 278 (D. Me. 2016) –

A chapter 11 debtor filed objections to proofs of claim filed by holders of his mortgage notes. He argued that the banks did not have secured claims because under state law they did not have standing to foreclose the related mortgages. After the bankruptcy court found in favor of the banks, the debtor appealed.

This case involved MERS (Mortgage Electronic Registration Systems) mortgages. MERS was designed to facilitate residential mortgage transactions by allowing lenders to track their mortgage portfolio transactions through registration with MERS. They avoided the need to record individual mortgage assignments in the land records by instead recording a mortgage identifying MERS as nominee for the lender as the mortgagee. In theory that is all that is required as long as the mortgage is held by a participant in the MERS system (at least until it comes time to enforce the mortgage).

However, use of a nominee to hold title has run into resistance in a number of jurisdictions – giving rise to a variety of state legal issues. This is relevant in bankruptcy because generally courts look to state law to define property rights. In this case the applicable state supreme court held that a party holding a mortgage solely by virtue of a MERS assignment did not have standing to foreclose the mortgage. According to the state supreme court, under the MERS form of mortgage MERS only had the authority to record the mortgage, not to assign it. Therefore, if the foreclosing lender’s ownership of the mortgage was based solely on a MERS assignment, the lender did not qualify as a “mortgagee” and thus did not have standing to foreclose.

[Bankruptcy-RealEstate-Insights]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

NCLC-

This summer dramatic nationwide changes go into effect in the reporting of tax liens, civil judgments, and medical debt by the Big Three big nationwide consumer reporting agencies (CRAs)— Equifax, Experian and TransUnion. Going forward, consumer reports from the Big Three (commonly referred to as credit reports) should hopefully experience improved accuracy and higher credit scores for millions of consumers.

July 1, 2017 Changes to Reporting of Public Records Data

Effective July 1, 2017, changes should significantly reduce the amount of public records data in credit reports. The nationwide CRAs are no longer reporting in consumers’ credit reports up to 50% of tax liens and almost all civil judgments.

These reductions are a result of the use of stricter criteria to match public records to a particular consumer’s credit file. As announced by the Consumer Data Industry Association, the criteria will require either a Social Security Number or date of birth in order to match a record— data which most civil judgments and many tax liens do not include. Because the CRAs will not be able to match the public record data to a consumer’s file, about 50% of tax liens and most civil judgment will not be included in the consumer’s file.

The stricter matching criteria is the result of a settlement between the nationwide CRAs and the attorneys general in 31 states and a separate settlement with the New York Attorney General , as well as supervision by the Consumer Financial Protection Bureau. About 6 or 7% of scoreable credit reports (translating to an estimated 11 or 12 million consumers) will be affected according to FICO, but the improvement will be relatively limited. About 75% of affected consumers will experience a credit score increase of less than 20 points.

[NCLC]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Miami Herald-

Bank of America customers were shut out from their accounts for several hours Wednesday in a system outage.

Coral Springs resident Eric Sleeper said he got what looked like a phishing email from the bank Wednesday and immediately started calling customer service to see if something was wrong. A message on his online account said it could not pull up his information.

When he called his local branch, a manager said that local managers were all calling each other trying to figure out what caused what appeared to be a national outage and why they were unable to provide certain services.

On Downdetector.com, a website that tracks reports of system outages, reportsstarting spiking after 11:30 a.m. and the website was inundated with comments from Bank of America customers around the country saying they couldn’t access online banking from their applications or computers, transfer money or deposit money or checks. Customers also reported that several branches’ operations were down.

[MIAMI HERALD]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

LA TIMES-

Wells Fargo & Co. may have to cough up more than $142 million to settle a bevvy of class-action lawsuits in connection with its unauthorized-accounts scandal.

A federal judge in San Francisco said late Wednesday that he would approve a settlement deal reached by the bank and plaintiffs’ attorneys, but only if they agree to several conditions — including a guarantee that all customers will be fully compensated for their losses.

The two sides had previously agreed that the bank would pay $142 million to compensate customers for fees and other damages related to millions of unauthorized checking, savings and credit card accounts.

[LA TIMES]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Selling Notice

Using MERS® for Properties in Maine

The purpose of this notice is to advise lenders about an upcoming change regarding the use of the Mortgage Electronic Registration Systems, Inc. (MERS) for properties in the state of Maine. Lenders are advised that steps are being taken to suspend use of the “MERS as Original Mortgagee” authorized change to the Maine security instrument (Form 3020). When these steps are completed, including a clarifying revision to the MERS System Rules of Membership, any new mortgage lien on property in Maine will need to be recorded in the lender’s name only and assigned to MERS utilizing a specified Fannie Mae/Freddie Mac mortgage assignment form if that mortgage is to be registered in the MERS System. Failure to execute and record the specified assignment to MERS will render the MERS-registered loan in Maine ineligible for sale to Fannie Mae.

After Fannie Mae announces the new documentation requirements for MERS loans in Maine, lenders will be given an appropriate implementation period before the requirements become mandatory.

These steps are being taken in response to judicial developments in Maine challenging the use of MERS as nominee for a lender and lender’s assigns, and due to the absence of a legislative remedy that addresses prospective foreclosures and other mortgage-related enforcement actions.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

The Denver Post-

Colorado’s largest foreclosure law firm has landed a major victory in its five-year legal battle against state investigators who tried to prove attorney Larry Castle and his law-partner wife, Caren, headed a money-hungry outfit that for years preyed on a foreclosure system gone wild.

In a 92-page opinion issued Tuesday, Denver District Judge Morris Hoffman ruled mostly in favor of the Castles, their now-closed firm, The Castle Law Group, and other foreclosure-related companies with whom they did business. Hoffman ruled that the Castles and other defendants did not, as the state claimed, conspire to pad billings and reap millions in illegitimate profits on the backs of the banks they represented, the affected homeowners and real estate investors who later bought the houses at auction.

Hoffman did determine, however, that the Castles failed to tell federal mortgage insurers Fannie Mae and Freddie Mac — two of their biggest clients — about their indirect financial interest in a summons-posting company and for that must pay a civil penalty of $119,500.

[THE DENVER POST]

 

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Bank employees say their jobs depend on upselling customers for products that can put them into debt

CBC-

Three TD Bank Group employees are speaking out about what they say is “incredible pressure” to squeeze profits from customers by signing them up for products and services they don’t need.

The longtime employees say their jobs have become similar to that of the stereotypical used car salesman, as they’re pushed to upsell customers to reach rising sales revenue targets.

They say there has always been a sales component to the job, but the demand to meet “unrealistic” quarterly goals has intensified in recent years as profits from low interest rates have dropped and banks became required — after the financial meltdown of 2008 — to keep more capital on hand to protect against a downturn in the market.

[CBC]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

h/t Dubin Law Offices

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PAUL SOMERS,
Plaintiff-Appellee,

v.

DIGITAL REALTY TRUST INC.,
a Maryland corporation;
ELLEN JACOBS,
Defendants-Appellants

Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted November 16, 2016
San Francisco, California
Filed March 8, 2017
Before: Mary M. Schroeder, Kim McLane Wardlaw, and
John B. Owens, Circuit Judges.
Opinion by Judge Schroeder;
Dissent by Judge Owens

SUMMARY*

Dodd-Frank Act

The panel affirmed the district court’s denial of the
defendant’s motion to dismiss a whistleblower claim brought
under the Dodd-Frank Act’s anti-retaliation provision.
Following the approach of the Second Circuit, rather than
the Fifth Circuit, the panel held that, in using the term
“whistleblower,” Congress did not intend to limit protections
to those who disclose information to the Securities and
Exchange Commission. Rather, the anti-retaliation provision
also protects those who were fired after making internal
disclosures of alleged unlawful activity under the SarbanesOxley
Act and other laws, rules, and regulations. The panel
agreed with the Second Circuit that, even if the use of the
word “whistleblower” in a last-minute addition to the antiretaliation
provision created uncertainty, an SEC regulation
resolved any ambiguity, and was entitled to deference.
Dissenting, Judge Owens agreed with the Fifth Circuit.
He wrote that King v. Burwell, 135 S. Ct. 2480 (2015)
(holding that terms can have different operative consequences
in different contexts), on which the majority and the Second
Circuit relied in part, should be quarantined to the specific
facts of that case.

[…]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

??

??

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Imagine this – the number of affected people far worse and the years of the search now go back to 2009 – same timing as foreclosure fraud. 

Reuters-

More Wells Fargo & Co (WFC.N) customers may have been affected by a scandal over phony accounts than previously believed, the third-largest U.S. lender said in a regulatory filing on Wednesday.

Wells Fargo had previously estimated that up to 2.1 million customers may have had checking and credit-card accounts opened in their names without their permission over a period of several years.

As part of an expanded review there could be “an increase in the identified number of potentially impacted customers,” Wells said.

[REUTERS]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

BBC-

Former business clients of the Royal Bank of Scotland are accusing the bank of systematically manipulating documents to cover up wrong doing.

In an exclusive interview with the BBC, a former RBS employee has come forward to support allegations of document manipulation within the bank.

RBS says it categorically denies document manipulation and forgery.

Mark Wright started working for NatWest Bank in 1988 and was still there in 2000 when it was taken over by RBS.

[BBC]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

OVERVIEW

Banks and lenders bury terms in the fine print to block consumers from challenging fraud or hidden fees in court. Instead, these “ripoff clauses” force harmed consumers to challenge large corporations one by one in arbitration – a secretive system designed to favor banks and lenders.

Known as forced arbitration, this practice deprives consumers of their constitutional right to an impartial judge or jury. Instead, banks choose a private arbitration firm to decide the dispute, and consumers have little opportunity to present evidence or appeal a bad decision.

Many ripoff clauses also bar consumers from talking about what happened to them, keeping corporate scams and fraud out of the public eye. Indeed, reports show Wells Fargo customers tried to sue the bank over fake accounts as far back as 2013. But customers were kicked out of court and unable to share their stories because of these fine-print provisions – while Wells Fargo knowingly profited from fraud for another three years.

Acting at the direction of Congress, the U.S. Consumer Financial Protection Bureau (CFPB) spent over three years conducting the most comprehensive study on arbitration ever done. The data revealed that just 25 consumers pursue arbitration claims of less than $1,000 each year, as the vast majority of Americans simply give up when forced into arbitration. The study also suggests that consumers lose in arbitration, even when they win. Only 9% of consumers succeed in arbitration, and even those who win recover just 12 cents of every dollar claimed. In contrast, companies win 93% of the time, recovering 98 cents per dollar.

Following the study, the CFPB proposed a rule to restore customers’ ability to join together in court to hold banks and lenders accountable when they break the law and return transparency to arbitration by creating a public record of claims and outcomes.

[RULES AT RISK]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

As well as represents Trump Foundation…and just last year it was named Russia Law Firm of the Year!

 

National Law Journal-

The Trump camp continues to draw DOJ transition officials from the nation’s largest law firms. The newest members are McGuireWoods partner J. Patrick Rowan, the former head of the National Security Division; Morgan, Lewis & Bockius partner Ronald Tenpas, the former head of the Environment and Natural Resources Division; and Morrison & Foerster partner Jessie Liu, who served as a top official in the National Security and Civil Rights divisions.

[NATIONAL LAW JOURNAL]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Credit Reporting Companies Misstated the Cost and Usefulness of the Credit Scores and Products They Sold, Lured Consumers into Costly Recurring Payments

The Consumer Financial Protection Bureau (CFPB) today took action against Equifax, Inc., TransUnion, and their subsidiaries for deceiving consumers about the usefulness and actual cost of credit scores they sold to consumers. The companies also lured consumers into costly recurring payments for credit-related products with false promises. The CFPB ordered TransUnion and Equifax to truthfully represent the value of the credit scores they provide and the cost of obtaining those credit scores and other services. Between them, TransUnion and Equifax must pay a total of more than $17.6 million in restitution to consumers, and fines totaling $5.5 million to the CFPB.

“TransUnion and Equifax deceived consumers about the usefulness of the credit scores they marketed, and lured consumers into expensive recurring payments with false promises,” said CFPB Director Richard Cordray. “Credit scores are central to a consumer’s financial life and people deserve honest and accurate information about them.”

Chicago-based TransUnion and Atlanta-based Equifax are two of the nation’s three largest credit reporting agencies. TransUnion and Equifax collect credit information, including a borrower’s payment history, debt load, maximum credit limits, names and addresses of current creditors, and other elements of their credit relationships. These generate credit reports and scores that are provided to businesses. Through their subsidiaries, TransUnion Interactive and Equifax Consumer Services, the companies also market, sell, or provide credit-related products directly to consumers, such as credit scores, credit reports, and credit monitoring.

Credit scores are numerical summaries designed to predict consumer payment behavior in using credit. Many lenders and other commercial users rely in part on these scores when deciding whether to extend credit. No single credit score or credit score model is used by every lender. Lenders use an array of credit scores, which vary by score provider and scoring model. The scores that TransUnion sells to consumers are based on a model from VantageScore Solutions, LLC. Although TransUnion has marketed VantageScores to lenders and other commercial users, VantageScores are not typically used for credit decisions. Scores Equifax sold to consumers were based on Equifax’s proprietary model, the Equifax Credit Score, which is an “educational” credit score that also is typically not used by lenders to make credit decisions.

TransUnion, since at least July 2011, and Equifax, between July 2011 and March 2014, violated the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act by:

• Deceiving consumers about the value of the credit scores they sold: In their advertising, TransUnion and Equifax falsely represented that the credit scores they marketed and provided to consumers were the same scores lenders typically use to make credit decisions. In fact, the scores sold by TransUnion and Equifax were not typically used by lenders to make those decisions.

• Deceiving consumers into enrolling in subscription programs: In their advertising, TransUnion and Equifax falsely claimed that their credit scores and credit-related products were free or, in the case of TransUnion, cost only “$1.” In reality, consumers who signed up received a free trial of seven or 30 days, after which they were automatically enrolled in a subscription program. Unless they cancelled during the trial period, consumers were charged a recurring fee – usually $16 or more per month. This billing structure, known as a “negative option,” was not clearly and conspicuously disclosed to consumers.

Equifax also violated the Fair Credit Reporting Act, which requires a credit reporting agency to provide a free credit report once every 12 months and to operate a central source – AnnualCreditReport.com – where consumers can get their report. Until January 2014, consumers getting their report through Equifax first had to view Equifax advertisements. This violates the Fair Credit Reporting Act, which prohibits such advertising until after consumers receive their report.

Enforcement Action

Under the Dodd-Frank Act, the CFPB is authorized to take action against institutions engaged in unfair, deceptive, or abusive acts or practices, or that otherwise violate federal consumer financial laws. Under the consent orders, TransUnion and Equifax must:

• Pay more than $17.6 million in total restitution to harmed consumers: TransUnion must provide more than $13.9 million in restitution to affected consumers. Equifax must provide almost $3.8 million in restitution to affected consumers. The companies must send notification letters about the restitution to affected consumers.

• Truthfully represent the usefulness of credit scores it sells: TransUnion and Equifax must clearly inform consumers about the nature of the scores they are selling to consumers.

• Obtain the express informed consent of consumers: Before enrolling a consumer in any credit-related product with a negative option feature, TransUnion and Equifax must obtain the consumer’s consent.

• Provide an easy way to cancel products and services: TransUnion and Equifax must give consumers a simple, easy-to-understand way to cancel the purchase of any credit-related product, and stop billing and collecting payments for any recurring charge when a consumer cancels.
• Pay $5.5 million in total penalties: TransUnion must pay $3 million to the Bureau’s civil penalty fund. Equifax must pay $2.5 million to the Bureau’s civil penalty fund.

The full text of the CFPB’s Consent Order against Equifax is here:http://files.consumerfinance.gov/f/documents/201701_cfpb_Equifax-consent-order.pdf

The full text of the CFPB’s Consent Order against TransUnion is here:http://files.consumerfinance.gov/f/documents/201701_cfpb_Transunion-consent-order.pdf

More information about credit scores can be found here: http://www.consumerfinance.gov/about-us/blog/what-you-need-know-understanding-why-offers-your-credit-score-are-not-all-same/

###The Consumer Financial Protection Bureau is a 21st century agency that helps consumer finance markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives. For more information, visit consumerfinance.gov .

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

 

PENNSYLVANIA PUBLIC SCHOOL EMPLOYEES’ RETIREMENT SYSTEM, individually and on behalf of all others similarly situated, Plaintiff,
v.
BANK OF AMERICA CORPORATION, et al., Defendants.

No. 11cv733 (WHP).United States District Court, S.D. New York.December 27, 2016.Pipefitters Local No. 636 Defined Benefit Plan, Plaintiff, represented by A. Arnold Gershon, Barrack, Rodos & Bacine.

Pipefitters Local No. 636 Defined Benefit Plan, Plaintiff, represented by David Avi Rosenfeld, Robbins Geller Rudman & Dowd LLP & Samuel Howard Rudman, Robbins Geller Rudman & Dowd LLP.

Patricia Grossberg Living Trust, Consolidated Plaintiff, represented by A. Arnold Gershon, Barrack, Rodos & Bacine.

Anchorage Police & Fire Retirement System, Consolidated Plaintiff, represented by A. Arnold Gershon, Barrack, Rodos & Bacine.

Sjunde Ap-Fonden, Movant, represented by Geoffrey Coyle Jarvis, Grant & Eisenhofer P.A..

Arkansas Teacher Retirement System, Movant, represented by Geoffrey Coyle Jarvis, Grant & Eisenhofer P.A..

KBC Asset Management NV, Movant, represented by Geoffrey Coyle Jarvis, Grant & Eisenhofer P.A..

Local 338 Funds, Movant, represented by David A. Bishop, Kirby McInerney LLP, Ira M. Press, Kirby McInerney LLP, Roger W. Kirby, Kirby McInerney LLP, Andrew Martin McNeela, Kirby McInerney LLP & Surya Palaniappan, Kirby McInerney LLP.

Forsta AP-Fonden, Movant, represented by A. Arnold Gershon, Barrack, Rodos & Bacine & Jeffrey Alan Barrack, Barrack, Rodos & Bacine.

Pennsylvania Public School Employees’ Retirement System, Movant, represented by A. Arnold Gershon, Barrack, Rodos & Bacine, Jeffrey Alan Barrack, Barrack, Rodos & Bacine, Jeffrey B. Gittleman, Barrack, Rodos & Bacine, pro hac vice, M. Richard Komins, Barrack, Rodos & Bacine, pro hac vice, Mark Robert Rosen, Barrack, Rodos & Bacine, pro hac vice & William J. Ban, Barrack, Rodos & Bacine.

Bank of America Corporation, Defendant, represented by Jay B. Kasner, Skadden, Arps, Slate, Meagher & Flom LLP, Christopher P. Malloy, Skadden, Arps, Slate, Meagher & Flom LLP, David Emmett Carney, Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice, Michael Scott Bailey, Skadden, Arps, Slate, Meagher & Flom LLP & Scott D. Musoff, Skadden, Arps, Slate, Meagher & Flom LLP.

Brian T. Moynihan, Defendant, represented by Patrick J. Smith, DLA Piper US LLP, Jeffrey David Rotenberg, DLA Piper US LLP, John Michael Hillebrecht, DLA Piper US LLP & Samantha Noel Bent, DLA Piper.

Charles H. Noski, Defendant, represented by Jay B. Kasner, Skadden, Arps, Slate, Meagher & Flom LLP, Robert Jeffrey Jossen, Dechert, LLP, Katherine Keely Rankin, Dechert, LLP & Scott D. Musoff, Skadden, Arps, Slate, Meagher & Flom LLP.

Neil Cotty, Defendant, represented by Lawrence Jay Portnoy, Davis Polk & Wardwell LLP, Brian Marc Burnovski, Davis Polk & Wardwell L.L.P. & Charles S. Duggan, Davis Polk & Wardwell L.L.P..

William P. Boardman, Defendant, represented by Charles S. Duggan, Davis Polk & Wardwell L.L.P., Brian Marc Burnovski, Davis Polk & Wardwell L.L.P. & Lawrence Jay Portnoy, Davis Polk & Wardwell LLP.

Frank Paul Bramble, Sr, Defendant, represented by Charles S. Duggan, Davis Polk & Wardwell L.L.P., Brian Marc Burnovski, Davis Polk & Wardwell L.L.P. & Lawrence Jay Portnoy, Davis Polk & Wardwell LLP.

Virgis William Colbert, Defendant, represented by Charles S. Duggan, Davis Polk & Wardwell L.L.P., Brian Marc Burnovski, Davis Polk & Wardwell L.L.P. & Lawrence Jay Portnoy, Davis Polk & Wardwell LLP.

Charles K. Gifford, Jr., Defendant, represented by Charles S. Duggan, Davis Polk & Wardwell L.L.P., Brian Marc Burnovski, Davis Polk & Wardwell L.L.P. & Lawrence Jay Portnoy, Davis Polk & Wardwell LLP.

Charles Otis Holliday, Jr., Defendant, represented by Charles S. Duggan, Davis Polk & Wardwell L.L.P., Brian Marc Burnovski, Davis Polk & Wardwell L.L.P. & Lawrence Jay Portnoy, Davis Polk & Wardwell LLP.

Monica C. Lozano, Defendant, represented by Charles S. Duggan, Davis Polk & Wardwell L.L.P., Brian Marc Burnovski, Davis Polk & Wardwell L.L.P. & Lawrence Jay Portnoy, Davis Polk & Wardwell LLP.

Thomas John May, Defendant, represented by Charles S. Duggan, Davis Polk & Wardwell L.L.P., Brian Marc Burnovski, Davis Polk & Wardwell L.L.P. & Lawrence Jay Portnoy, Davis Polk & Wardwell LLP.

Thomas Michael Ryan, Defendant, represented by Charles S. Duggan, Davis Polk & Wardwell L.L.P., Brian Marc Burnovski, Davis Polk & Wardwell L.L.P. & Lawrence Jay Portnoy, Davis Polk & Wardwell LLP.

Robert W. Scully, Defendant, represented by Charles S. Duggan, Davis Polk & Wardwell L.L.P., Brian Marc Burnovski, Davis Polk & Wardwell L.L.P. & Lawrence Jay Portnoy, Davis Polk & Wardwell LLP.

Pricewaterhousecoopers LLP, Defendant, represented by James J. Capra, Jr., King & Spalding LLP.

Cantor Fitzgerald & Co., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Cowen & Company, L.L.C., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Daiwa Capital Markets America Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Deutsche Bank Securties Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Gleacher & Company Securities, Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Goldman & Sachs & Co, Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Keefe Bruyette & Woods, Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

KeyBanc Capital Markets Inc, Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Macquarie Capital (USA) Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Mizuho Securities USA Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Morgan Stanley & Co. LLC, Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

National Australia Bank Limited, Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

RBS Securities Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Samuel A. Ramirez & CO., Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Sanford C. Bernstein & Co. LLC, Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Santander Investment Securities, Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Southwest Securities, Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Stifel Nicholaus & Company, Incorporated, Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

SunTrust Robinson Humphrey, Inc, Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

UniCredit Capital Markets, Inc., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Wells Fargo Securities, LLC., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

ICBC International Securities Limited, Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Samsung Securities Co., Ltd., Defendant, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP.

Brian T. Moynihan, Consolidated Defendant, represented by Patrick J. Smith, DLA Piper US LLP, Jeffrey David Rotenberg, DLA Piper US LLP, John Michael Hillebrecht, DLA Piper US LLP & Samantha Noel Bent, DLA Piper.

Charles H. Noski, Consolidated Defendant, represented by Jay B. Kasner, Skadden, Arps, Slate, Meagher & Flom LLP, Robert Jeffrey Jossen, Dechert, LLP & Katherine Keely Rankin, Dechert, LLP.

Kenneth D Lewis, Consolidated Defendant, represented by Colby A. Smith, Debevoise & Plimpton LLP & Ada Fernandez Johnson, Debevoise & Plimpton LLP, pro hac vice.

Joseph L. Price, Consolidated Defendant, represented by David M. Locher, Baker Botts LLP, Harry Christopher Morgan, Baker Botts LLP, pro hac vice, Julia E. Guttman, Baker Botts LLP, pro hac vice & Richard Benjamin Harper, Baker Botts L.L.P.

Bank of America Corporation, Consolidated Defendant, represented by David Emmett Carney, Skadden, Arps, Slate, Meagher & Flom LLP, pro hac vice.

Merrill Lynch Pierce Fenner & Smith Incorporated, ADR Provider, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

UBS Securities LLC, ADR Provider, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

SG Americas Securities LLC, ADR Provider, represented by Fraser Lee Hunter, Jr., Wilmer Cutler Pickering Hale & Dorr LLP, Jacob David Zetlin-Jones, Wilmer, Cutler, Hale & Dorr, L.L.P., Jeffrey B. Rudman, Wilmer Cutler Pickering Hale and Dorr LLP, pro hac vice & Michael G. Bongiorno, Wilmer Cutler Pickering Hale and Dorr LLP.

Board of Governors of the Federal Reserve System, ADR Provider, represented by Yvonne Facchina Mizusawa, Board of Governors of The Federal Reserve System.

Comptroller of the Currency, OCC, US Treasury Dept., Miscellaneous, represented by Ashley Wilcox Walker, Shearman & Sterling LLP & Melton Amber, Federal Government – Office of The Comptroller of The Curren.

Federal Deposit Insurance Corporation, in its Corporate capacity, Miscellaneous, represented by Thomas M. Clark, Federal Deposit Insurance Corporation.

OPINION & ORDER

WILLIAM H. PAULEY, III, District Judge.

Lead Plaintiff Pennsylvania Public School Employees’ Retirement System (“PPSERS”) seeks final approval of a $335 million settlement (the “Settlement”) with Bank of America (“BofA”), the Executive Defendants, the Director Defendants, the Underwriter Defendants, and PricewaterhouseCoopers (collectively, “Defendants”). The Settlement resolves this class action involving misleading statements regarding BofA’s reliance on the Mortgage Electronic Registration System (“MERS”) and exposure to mortgage-backed security repurchase claims during the 2008 financial crisis. The law firm of Barrack, Rodos & Bacine (“Barrack”), Lead Counsel for PPSERS, also seeks this Court’s approval of their request for attorneys’ fees and expenses stemming from their representation of the class. For the following reasons, the motion for approval of the Settlement and Plan of Allocation is granted, and the motion for approval of attorneys’ fees and expenses is granted in part and denied in part.

BACKGROUND

The factual background of this action is described in this Court’s prior opinions and orders. See Pipefitters Local No. 636 Defined Ben. Plan v. Bank of America Corp., 275 F.R.D. 187 (S.D.N.Y. 2011); Penn. Public Sch. Employees’ Retirement Sys. v. Bank of America Corp., 874 F. Supp. 2d 341 (S.D.N.Y. 2012); Penn. Public Sch. Employees’ Retirement Sys. v. Bank of America Corp., 939 F. Supp. 2d 445 (S.D.N.Y. 2013).

A. Procedural Background

This Settlement is the product of nearly six years of litigation, which included several motions to dismiss and a protracted mediation. This Court appointed PPSERS as Lead Plaintiff and Barrack as Lead Counsel in June 2011 (ECF No. 56), and PPSERS filed the Consolidated Class Complaint several months later (ECF No. 59). Defendants moved to dismiss, with mixed results. This Court dismissed the Securities Act claims against all Defendants with prejudice and the Exchange Act claims against the Executive Defendants without prejudice, but denied the motion with respect to the Exchange Act claims against BofA. (ECF No. 148.) BofA moved for reconsideration, which this Court denied in August 2012. (ECF No. 167.)

Another round of procedural sparring broke out after PPSERS filed the Amended Class Complaint (ECF No. 158), which ended with the denial of Defendants’ motion to dismiss and the Executive Defendants’ motion for reconsideration in mid-2013 (see ECF Nos. 183, 222). The parties then shifted their focus to class certification. PPSERS moved to certify the class in November 2013 (ECF No. 243), and three months later Defendants stipulated to class certification without further motion practice (ECF No. 253).

The class certification stipulation largely marked the end of formal litigation, aside from several discovery disputes. Thereafter, the parties agreed to mediation. That mediation consisted of three sessions over the course of ten months, and involved ongoing discovery and “detailed written submissions,” which Barrack claims were “akin to briefs and supporting exhibits that a party plaintiff would file in support of a summary judgment motion.” (Lead Plaintiff’s Post-Hearing Submission (“Post-Hearing Sub.”), ECF No. 371 at 5.) At the third mediation session in August 2015, the parties agreed to settle all claims for a $335 million cash payment by BofA.

B. The Settlement Agreement and Plan of Allocation

The Settlement covers a class consisting of purchasers of BofA common stock between February 27, 2009 and October 19, 2010 and creates a $335 million fund (the “Fund”) to compensate class members for losses due to the alleged artificial inflation in the prices of BofA’s common stock during the time that each member held shares. On June 15, 2016 the Court granted preliminary approval of the Settlement and directed the parties to begin the notice process. (ECF No. 338.) To date, the Claims Administrator has received nearly 375,000 timely Proofs of Claim and only one timely objection,^[1]which the individual subsequently withdrew. (See ECF No. 362.) Fifty-one class members asked to be excluded from the Settlement, including a single institutional investor that had previously entered into a tolling agreement with BofA. The Plan of Allocation directs Lead Counsel to reallocate any funds remaining six months after the initial distribution among those class members who have cashed initial checks. Any residual monies will then be donated to the New York Bar Foundation.

C. Attorneys’ Fees and Expenses

Barrack, which has litigated on behalf of the class on a contingency basis, seeks approval of fees and expenses in the following amounts, drawn from the Settlement Fund: (1) attorneys’ fees of $51,675,000; (2) litigation expenses of $1,386,167.33; and (3) costs and expenses incurred by PPSERS as Lead Plaintiff in the amount of $130,323.70. Over the course of this action, Barrack devoted the time of forty-two attorneys and seven paralegals working at a blended rate of approximately $450 per hour. (See Declaration of Mark R. Rosen (“Rosen Decl.”), ECF No. 357; Post-Hearing Sub., Exs. A-E.) In total, Barrack recorded 77,026.25 billable hours for a lodestar of $34,450,696.50. (See Rosen Decl., Ex. D.)

DISCUSSION

A. Motion to Approve the Settlement and Plan of Allocation

Under Federal Rule of Civil Procedure 23, the District Court must approve any class action settlement. See Fed. R. Civ. P. 23(e). The Court must “carefully scrutinize the settlement to ensure its fairness, adequacy and reasonableness, and that it was not the product of collusion.” D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001) (internal citations omitted). This is a two-part inquiry wherein the Court “must determine whether both the negotiating process leading to a settlement and the settlement itself are fair, adequate, and reasonable.” In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110, 122 (S.D.N.Y. 2009).

i.) Procedural Fairness

The procedural fairness prong requires that the settlement “be the result of arm’s-length negotiations and that plaintiffs’ counsel have possessed the experience and ability, and have engaged in the discovery, necessary to [effective representation] of the class’s interests.” Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982). Negotiation processes are presumed fair when these elements are present. See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005). This Settlement is the product of nearly a full year of arm’s-length mediation between able and experienced counsel, as well as a discovery process that involved more than eight million pages of documents and required Barrack to hire sixteen attorneys dedicated solely to this matter. (See Rosen Decl, ¶¶ 34-37, 68-74.) Although the parties ultimately stipulated to class certification, the mediation occurred after PPSERS had briefed the issue. See D’Amato, 236 F.3d at 85 (“When a settlement is negotiated prior to class certification. . . it is subject to a higher degree of scrutiny in assessing its fairness.”). Accordingly, this Court finds that the negotiation process leading to this Settlement was fair, adequate and reasonable. See Wal-Mart, 396 F.3d at 116.

ii.) Substantive Fairness

At the substantive fairness stage of settlement approval, courts in the Second Circuit consider the nine factors set forth in City of Detroit v. Grinnell Corp.: (1) the complexity, expense, and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through trial; (7) the ability of the defendants to withstand greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of the litigation. 495 F.2d 488, 463 (2d Cir. 1974). “[N]ot every factor must weigh in favor of settlement, rather the court should consider the totality of these factors in light of the particular circumstances.” In re Global Crossing Sec. and ERISA Litig., 225 F.R.D. 436, 456 (S.D.N.Y. 2004) (citations omitted).

In this case, the Grinnell factors weigh in favor of approving the Settlement. This case was a complex securities class action—a breed of litigation that courts have recognized as “notably difficult and notoriously uncertain,” In re Flag Telecom Holdings, Ltd. Sec. Litig., No. 02-CV-3400, 2010 WL 4537550, at *15 (S.D.N.Y. Nov. 8, 2010)—that began in 2011 and reached a resolution through the exhaustive efforts of both parties. As discussed above, Defendants tested PPSERS’s claims twice through motions to dismiss and the ensuing motions for reconsideration. The parties also took thirty-four depositions and briefed a discovery motion concerning Defendants’ assertion of the bank examiner privilege. (See Rosen Decl. ¶¶ 43-44, 47-55.) Furthermore, the absence of objections to the Settlement and substantial number of timely Proofs of Claim is “extraordinarily positive.” Dial Corp. v. News Corp., ___ F.R.D. ___, 2016 WL 6426409, at *4; see also Maley v. Del. Global Tech. Corp., 186 F. Supp. 2d 358, 362 (S.D.N.Y. 2002) (“It is well-settled that the reaction of the class to the settlement is perhaps the most significant factor to be weighed in considering its adequacy.”).

Although Defendants stipulated to class certification, they reserved their right to move to alter or amend the certification order if the parties failed to reach an agreement. (See Rosen Decl. ¶ 96.) This Settlement allows class members to recover part of their losses as soon as possible and without the need for expert discovery, summary judgment motions, trial, and any appeal. See Maley, 186 F. Supp. 2d at 366 (“Settling avoids delay as well as uncertain outcome at summary judgment, trial and on appeal.”). As with any complicated securities action, the class faced the very real risk “that a jury could be swayed by experts . . . who could minimize or eliminate the amount of Plaintiffs’ losses.” In re Am. Bank Note Holographics, Inc., Sec. Litig., 127 F. Supp. 2d 418, 426-27 (S.D.N.Y. 2001). Accordingly, the Court finds that the Settlement and Plan of Allocation is fair, reasonable, and adequate under the Grinnell standard. The parties are directed to submit a revised judgment that designates the New York Bar Foundation as the recipient of any cy pres funds and provides that Plaintiff’s attorneys’ fees may be paid when 75% of the Settlement Fund has been distributed.

B. Motion for Attorneys’ Fees and Expenses

i.) Attorneys’ Fees

In a class action settlement, courts must carefully scrutinize lead counsel’s application fee in order to “ensure that the interests of the class members are not subordinated to the interests of . . . class counsel.” Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995). A court’s role in this context is “to act as a fiduciary who must serve as a guardian of the rights of absent class members.” McDaniel v. Cty. Of Schenectady, 595 F.3d 411, 419 (2d Cir. 2010). The trend in the Second Circuit is to assess a fee application using the “percentage of the fund” approach, which “assigns a proportion of the common settlement fund toward payment of attorneys’ fees.” Dial Corp., 2016 WL 6426409, at *6. As a “cross-check on the reasonableness of the requested percentage,” however, courts also look to the lodestar multiplier, which should be a reasonable multiple of the total number of hours billed at a standard hourly rate. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 53 (2d Cir. 2000). In this case, Barrack has submitted billing records reflecting 77,026.25 hours for a lodestar of $34,450,696.50. (See Rosen Decl., Ex. D.) The requested fee of $51,675,000 thus represents approximately 15.4% of the Fund and a lodestar multiplier of 1.5.

When assessing a fee application under the percentage of the fund method, courts consider the six Goldberger factors: (1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of litigation; (4) the quality of representation; (5) the requested fee in relation to the settlement; and (6) public policy considerations. 209 F.3d at 50. In class actions involving “mega funds”—i.e. funds of more than $100 million—courts typically “account[] for these economies of scale by awarding fees in the lower ranges.” Goldberger, 209 F.3d at 52. Here, the Court finds that the second, third, and fourth factors weigh in favor of the requested fee, while the remaining three factors support a reduction.

a.) Factors Favoring Fee Application

This case was lengthy, complex, and vigorously contested up to the point of class certification. Plaintiffs brought two different types of complicated allegations: (1) the “rep and warranty claims,” regarding BofA’s alleged misleading statements to investors about its exposure to repurchase demands in connection with mortgage-backed securities; and (2) the “MERS claims,” focusing on institutional risks from BofA and Countrywide’s reliance upon a national mortgage database to track changes in the quality of loans secured by residential properties. These claims survived two motions to dismiss, but even if Plaintiffs had prevailed on liability they faced considerable risk in establishing damages at trial. With the assistance of able and experienced counsel, the class obtained a favorable result that obviates the uncertainties associated with summary judgment, trial, and appeals. Thus the second, third, and fourth Goldberger factors favor approval of Barrack’s fee application.

b.) Factors Favoring a Reduction

Because plaintiffs’ firms typically handle class actions on a contingency basis, public policy encourages the award of reasonable attorneys’ fees to ensure that such cases find their way to court. However, courts must also “guard against providing a monetary windfall to class counsel to the detriment of the plaintiff class.” In re NTL Inc. Sec. Litig., No 02-CV-3013, 2007 WL 1294377, at *8 (S.D.N.Y. May 2, 2007). For example, this Court has reduced fees “in view of the large percentage of hours attributable to attorneys with the highest billing rates, as well as the relatively early stage of the litigation in which the settlement was reached.” In re Platinum and Palladium Commodities Litig., No 10-CV-3617, 2015 WL 4560206, at *4 (S.D.N.Y. July 7, 2015). Ultimately, this Court’s role is to ensure that “the lodestar [is not] enhanced without restraint above a fair and reasonable amount under all the facts and circumstances.” In re Sumitomo Copper Litig., 74 F. Supp. 2d 393, 396 (S.D.N.Y. 1999). There are two interconnected billing practices in this case that support a reduction in Barrack’s fee application: the predominance of partner-level work on the substantive aspects of the litigation, and the use of temporary associates for the bulk of document discovery at standard associate hourly rates.

First, this Court notes that the overwhelming amount of billable legal work in this case was devoted to discovery. While there were two substantial motions to dismiss, the parties stipulated to class certification and never proceeded to summary judgment. Instead, they resolved the case at mediation. An examination of Barrack’s post-hearing submission reveals that motion practice and mediation generated about 5% of the total billable hours and 6.7% of the lodestar. (See Post-Hearing Sub., Exs. A-E.) On closer scrutiny, however, it seems that most of the substantive work relating to motion practice and mediation was performed by Barrack partners: eleven different partners billed 88% of the hours devoted to the mediation and motions, creating 94% of the fees associated with those tasks. (See Post-Hearing Sub., Exs. A-E.) Indeed, no fewer than four Barrack partners—but no associates—attended the mediation sessions. (See Post-Hearing Sub. at 6.) This allocation of resources stands in stark contrast to the division of labor in the case as a whole. Twenty-six Barrack associates accounted for nearly 70% of the total hours and generated about 60% of the lodestar. (See Rosen Decl., Ex. D.) If partners handled the bulk of the motion practice and mediation responsibilities but generated comparatively few of the total hours, it stands to reason that the Barrack associates were primarily assigned to discovery work.

Delegating the legwork of complex litigation (such as routine document review) to less-costly associates or temporary contract attorneys is common practice, and it is not this Court’s place to dictate law firm structure or workflow. What is troublesome, however, is Barrack’s practice of “gear[ing] up” for discovery by hiring a large group of temporary “associates” and billing them at the firm’s standard rates for what this Court must assume was first-cut document review. (Rosen Decl. ¶ 34.) Barrack hired sixteen temporary attorneys in 2013 and 2014 to work exclusively on this matter at a blended rate of $362.50 per hour. (See Rosen Decl., Ex. D; Post-Hearing Sub., Ex. F.) Although these attorneys were “full-time [Barrack] associate attorneys” who were eligible to participate in the firm’s health insurance and 401(k) plans, not one of the sixteen remains at the firm—the group as a whole stayed an average of twelve months, some as few as one month. (See Rosen Decl. ¶ 34, n.2; Post-Hearing Sub., Ex. F.) The new hires billed nearly 40% of the total hours in the case and generated $10,805,725 (or 31% of the lodestar) in legal fees for Barrack. (See Rosen Decl., Ex. D.) However, hiring a group of temporary associates and billing them out at more than $350 per hour for work that is typically the domain of contract attorneys or paralegals seems excessive.

On this point, Barrack’s citation to In re Citigroup Inc. Bond Litig., 988 F. Supp. 2d 371 (S.D.N.Y. 2013) is instructive. In that case, Judge Stein drew a distinction between “contract” attorneys and “staff” attorneys—the latter being “full-time employees of the law firm” who are “provided benefits and ongoing legal education”—to determine the appropriate reduction in a fee application where plaintiffs’ counsel had billed its staff attorneys at $385 per hour. In re Citigroup, 988 F. Supp. 2d at 377.

Barrack makes much of the Citigroup court’s reference to a submission showing that defense counsel in that case—Paul, Weiss, Rifkind, Wharton & Garrison LLP—had submitted a fee application in an unrelated bankruptcy case with a blended rate of $333 per hour for staff attorneys, who performed “document review and similar routine tasks.” 988 F. Supp. 2d at 377. But that ignores Judge Stein’s finding that “$200 per hour [is] a fair approximation of the rate a reasonable paying client with bargaining power would pay” for the type of work performed by a contract attorney (e.g. first-cut document review), as well as the fact that Paul Weiss’s clients—unlike the class members in this case—have the benefit of ex ante negotiations as to what they will pay for legal services. Citigroup, 988 F. Supp. 2d at 377. If it is true, as Barrack submits, that “[t]here were no so-called `contract’ lawyers hired either directly by [Barrack] or through an external attorney provider,” then this Court must conclude that the sixteen new hires performed work that might otherwise have been handled by contract attorneys. See Rosen Decl., ¶ 34, n.2; see also Dial, 2016 WL 6426409, at *11 (“To Counsel’s credit, this [contract] attorney time was accounted as an expense rather than included in the lodestar.”). The blended rate charged by Barrack for that work is unreasonable and warrants a reduction in the attorneys’ fees.

It must be noted that this reduction is not a rebuke of Barrack’s structure as a lean, partner-heavy firm that hires associates when necessary to prosecute large actions such as this one. Indeed, it is debatable which route more effectively advances a young lawyer’s career: temporary placement through a staffing agency on a document-review project, or brief full-time employment with the understanding that the job ends with the discovery deadline. This Court does not presume to resolve that question here. Rather, this Court simply concludes that a reduction in the requested fees is warranted to avoid a windfall to Barrack for charging more than $350 per hour for associates who are contract attorneys in all but name, while simultaneously overstaffing the substantive legal work with high-priced partners.^[2]

Considering all the circumstances, the simplest resolution is to reduce the lodestar multiplier from 1.5 to 1.2, resulting in attorneys’ fees of $41,340,835.80, or 12% of the Fund. This percentage and multiplier is within the range of fees awarded in similar cases in this Circuit. See In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 486 (S.D.N.Y. 1998) (“[W]here a class recovers more than $75-$200 million . . . fees in the range of 6-10 percent and even lower are common.); In re IndyMac Mortgage-Backed Sec. Litig., 385 F. Supp. 2d 363 (S.D.N.Y. 2015) (awarding 12% of a $75 million settlement fund); In re Bristol-Meyers Squibb Sec. Litig., 361 F. Supp. 2d 229 (S.D.N.Y. 2005) (awarding 3% of a $300 million fund); In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 991 F. Supp. 2d 437 (E.D.N.Y. 2014) (awarding 9.6% of a $5.7 billion settlement).

ii.) Litigation Expenses

Barrack also seeks reimbursement of $1,386,167.33 in litigation expenses. In class action settlements, “[a]ttorneys may be compensated for reasonable out-of-pocket expenses incurred and customarily charged to their clients.” In re Currency Conversion, 263 F.R.D. at 131. When the “lion’s share” of expenses reflects the typical costs of complex litigation such as “experts and consultants, trial consultants, litigation and trial support services, document imaging and copying, deposition costs, online legal research, and travel expenses,” courts should not depart from “the common practice in this Circuit of granting expense requests.” In re Visa/Mastermony Antitrust Litig., 94 F. Supp. 3d 517, 525 (S.D.N.Y. 2015). In this case, the Court finds that Barrack’s itemized litigation expenses reflect these traditional costs of maintaining a complex securities action. (See Rosen Decl., Ex. E.) The motion for reimbursement of these expenses from the Fund is approved.

iii.) Lead Plaintiff’s Expenses

PPSERS seeks approval of $130,323.70 in costs and expenses associated with its role as Lead Plaintiff. Under the PSLRA, the Court may award “reasonable costs and expenses (including lost wages) directly relating to the representation of the class to any representative party serving on behalf of the class.” 15 U.S.C. § 78u-4(a)(4). These awards compensate lead plaintiffs for “the substantial time and effort the class representatives incurred, including written discovery, being deposed, reviewing and editing submissions, and attending hearings.” In re Currency Conversion, 263 F.R.D. at 131. Here, PPSERS actively participated in this litigation throughout the action and should be compensated for its time and effort in bringing about a favorable result. (See Rosen Decl., Ex. A.) The amount requested represents less than one hundredth of a percent of the Fund. This award is comfortably below the rate awarded in similar cases, and is approved. See In re Currency Conversion, 263 F.R.D. at 131 (award representing approximately 0.1% of the fund); Roberts v. Texaco, 979 F. Supp. 185 (S.D.N.Y. 1997) (0.18% of the total fund).

CONCLUSION

The motion to approve the Settlement and Plan of Allocation is granted. The motion to approve the application for attorneys’ fees, litigation expenses, and Lead Plaintiff’s expenses is granted in part and denied in part. The litigation expenses and Lead Plaintiff’s expenses are approved, and the fee request is approved in the amount of $41,340,835.80. The litigation expenses and Lead Plaintiff’s expenses may be reimbursed immediately. Attorneys’ fees may be paid once 75% of the Settlement Fund has been distributed. Plaintiff is directed to submit a revised judgment in accord with this Opinion and Order forthwith. The Clerk of Court is directed to close the motions pending at ECF Nos. 350 and 352.

SO ORDERED.

[1] The Court received one other objection from an individual who may or may not have been a class member. (See ECF No. 370.) This objection was untimely by more than a month and did not conform to the requirements set out in the Notice Form for objecting to the Settlement. Specifically, it does not contain any dates, prices, or numbers of shares/units of BofA stock to show that the individual is a class member. This objection is deemed waived.

[2] Barrack also assigned seven paralegals to this matter, billing them at rates between $270 and $325 per hour—the same “lofty” range that weighed in favor of a fee reduction in a similar case before this Court. See Dial, 2016 WL 6426409, at *11; Rosen Decl., Ex. D.

 

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

New York State of Mind-

On Halloween, the Supreme Court decided that it would not hear an appeal challenging the constitutionality of a Connecticut law which takes direct aim at the MERSCORP model. If you provide mortgages, there is a good chance that you benefit from the efficiencies brought about by the MERS system

Connecticut has a typical mortgage recording framework. Lenders pay the clerk in the locality in which the real property is located for the right to record the mortgage and secure their lien. Traditionally, if that mortgage was sold, a new record would have to be made and additional fees paid.

Starting in the 1990s, MERSCORP changed that model. When a MERS member makes a mortgage loan MERS is recorded as the mortgage holder. When a MERS mortgage or its servicing rights are sold to another MERS member the transfer is electronically recorded in a MERSCORP data base but MERS remains the mortgage holder.

[NEW YORK STATE OF MIND]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Oregon Live-

Eleven Oregon counties are suing a mortgage-industry company that registers loan sales, circumventing public property records.

The counties — Clackamas, Coos, Crook, Jackson, Josephine, Klamath, Lane, Linn, Marion, Washington and Yamhill — announced Thursday they have filed a $50 million lawsuit over unpaid recording fees since the lending industry created Mortgage Electronic Registration Systems, or MERS, in the 1990s.

The counties are following the lead of Multnomah County. They’re represented by the same Lake Oswego attorney, Tom D’Amore.

“MERS was taking advantage of our public records system but not paying the fees,” D’Amore said.

[OREGON LIVE]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Decided on November 2, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
RUTH C. BALKIN
L. PRISCILLA HALL
BETSY BARROS, JJ.

2014-11670
2014-11671
(Index No. 14076/09)

Charles H. Wallshein, Melville, NY (Charles W. Marino of counsel), for appellant.

RAS Boriskin, LLC, Westbury, NY (Jason W. Creech of counsel; Knuckles, Komosinski & Elliott, LLP, Elmsford, NY [Jordan J. Manfro of counsel], former counsel on the brief), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Steven Baritz appeals (1) from a decision of the Supreme Court, Suffolk County (Rebolini, J.), dated August 12, 2014, and (2), as limited by his brief, from so much of an order of the same court, also dated August 12, 2014, as, upon the decision, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against him and for an order of reference, and, in effect, denied that branch of his cross motion which was for leave to amend his answer to assert certain counterclaims.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendant Steven Baritz and for an order of reference, and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant Steven Baritz.

On May 27, 2005, the defendant Steven Baritz executed a note in the amount of $960,000 in favor of GreenPoint Mortgage Funding, Inc. (hereinafter GreenPoint). On the same date, to secure repayment of the note, Baritz executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), acting solely as nominee for GreenPoint, on property he owned in Lake Grove. Thereafter, the mortgage was assigned to the plaintiff. In April 2009, the plaintiff commenced this action to foreclose the mortgage, alleging that Baritz defaulted on his loan payments. Baritz answered the complaint and asserted as an affirmative defense that the plaintiff did not have standing to commence the action. The plaintiff moved, inter alia, for summary [*2]judgment on the complaint insofar as asserted against Baritz and for an order of reference. Baritz cross moved, inter alia, for leave to amend his answer to assert certain counterclaims. The Supreme Court granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against Baritz and for an order of reference, and denied Baritz’s cross motion. Baritz appeals.

Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case by producing the mortgage and the unpaid note, and evidence of the default (see Wells Fargo Bank, N.A. v Morgan, 139 AD3d 1046, 1048; Flagstar Bank, FSB v Mendoza, 139 AD3d 898, 899; LaSalle Bank, N.A. v Zaks, 138 AD3d 788). Where, as here, the plaintiff’s standing has been placed in issue by the defendant’s answer, the plaintiff must also prove its standing as part of its prima facie showing (see Flagstar Bank, FSB v Mendoza, 139 AD3d at 899; LaSalle Bank, N.A. v Zaks, 138 AD3d at 788; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 651). In a foreclosure action, a plaintiff has standing if it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362; One W. Bank, FSB v Albanese, 139 AD3d 831, 832; Aurora Loan Servs., LLC v Mercius, 138 AD3d at 651). A plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment or physical delivery of the note (see Aurora Loan Servs., LLC v Mercius, 138 AD3d at 651).

Here, the plaintiff failed to meet its prima facie burden to establish its standing. In support of its motion, the plaintiff relied on the affidavit of Jaclyn Holloway, an assistant secretary of Nationstar Mortgage, LLC (hereinafter Nationstar). Holloway alleged that, after the action was commenced, the plaintiff delivered the note to NationStar. She alleged that, “pursuant to the business records of [the plaintiff],” the plaintiff had physical possession of the note when it commenced the action. However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Holloway under the business records exception to the hearsay rule (see CPLR 4518[a]) since Holloway did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff (see U.S. Bank N.A. v Handler, 140 AD3d 948, 949; Aurora Loan Servs., LLC v Mercius, 138 AD3d at 652; Citibank, N.A. v Cabrera, 130 AD3d 861). Consequently, Holloway’s allegations based on those records were inadmissible (see Aurora Loan Servs., LLC v Mercius, 138 AD3d at 652; US Bank N.A. v Madero, 125 AD3d 757, 758), and, therefore, insufficient to meet the plaintiff’s prima facie burden to establish its standing (see Zuckerman v City of New York, 49 NY2d 557, 562; U.S. Bank N.A. v Handler, 140 AD3d at 949; Aurora Loan Servs., LLC v Mercius, 138 AD3d at 652; Citibank, N.A. v Cabrera, 130 AD3d at 861; US Bank N.A. v Madero, 125 AD3d at 758).

The plaintiff could not rely on the affidavit of its vice president to meet its prima facie burden since the affidavit was improperly submitted for the first time in its reply papers (see HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983, 985; Arriola v City of New York, 128 AD3d 747, 749; Poole v MCPJF, 127 AD3d 949, 949-950; DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900). Additionally, although the plaintiff submitted evidence that MERS, as nominee for GreenPoint, assigned the mortgage and note to the plaintiff before the action was commenced, the plaintiff failed to establish delivery or assignment of the note to MERS prior to its execution of the assignment (see Aurora Loan Servs., LLC v Mercius, 138 AD3d at 652; HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d at 984; Midland Mtge. Co. v Imtiaz, 110 AD3d 773, 775; Deutsche Bank Natl. Trust Co. v Haller, 100 AD3d 680, 683). Since the plaintiff failed to meet its prima facie burden, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against Baritz and for an order of reference, without regard to the sufficiency of Baritz’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The Supreme Court providently exercised its discretion in denying that branch of Baritz’s cross motion which was for leave to amend his answer to assert certain counterclaims, as the proposed amendments were either patently devoid of merit or their belated addition would have prejudiced the plaintiff, and Baritz failed to offer a reasonable excuse for his nearly five-year delay in seeking to add them (see Yong Soon Oh v Hua Jin, 124 AD3d 639, 640; Brooks v Robinson, 56 [*3]AD3d 406, 407).

Baritz’s remaining contention need not be reached in light of our determination.

ENG, P.J., BALKIN, HALL and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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Bloomberg BNA-

The U.S. Supreme Court let stand a Connecticut Supreme Court ruling requiring Mortgage Electronic Registration Systems Inc. (MERS) to pay higher recording fees in that state, opening the door for similar action by other states ( MERSCORP Holdings v. Malloy, U.S., No. 15-cv-01538, cert. den. 10/31/16 ).

In February, the Connecticut court upheld amendments to state law that require MERS — a private company that manages a major mortgage registration database — to pay recording fees that are roughly three times higher than other mortgagees.

In June, MERS asked the U.S. Supreme Court to hear its appeal, backed by banking and mortgage groups that said other jurisdictions might enact similar laws if the Connecticut decision was allowed to stand.

[BLOOMBERG BNA]

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COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE SECRETARY OF THE COMMONWEALTH
SECURITIES DIVISION ONE ASHBURTON PLACE,
ROOM 1701 BOSTON, MASSACHUSETTS 02108

IN THE MATTER OF:
MORGAN STANLEY SMITH BARNEY LLC,
RESPONDENT.

Docket No. E-2016-0055

ADMINISTRATIVE COMPLAINT
I. PRELIMINARY STATEMENT

The Enforcement Section of the Massachusetts Securities Division of the Office of
the Secretary of the Commonwealth (the “Enforcement Section” and the “Division,”
respectively) files this Administrative Complaint (the “Complaint”) to commence an
adjudicatory proceeding against Morgan Stanley Smith Barney LLC (“Respondent”) for
violations of MASS. GEN. LA ws ch. 11 OA, the Massachusetts Uniform Securities Act (the
“Act”), and the corresponding regulations promulgated thereunder at 950 MASS. CODE
REGS. 10.00 – 14.413 (the “Regulations”). The Enforcement Section alleges that
Respondent engaged in acts and practices in violation of Section 204 of the Act.
The Enforcement Section seeks an order: 1) finding as fact the allegations set forth
below; 2) finding that all the sanctions and remedies detailed herein are in the public interest
and necessary for the protection of Massachusetts investors; 3) requiring Respondent to
permanently cease and desist from further conduct in violation of the Act and the
Regulations; 4) censuring Respondent; 5) imposing an administrative fine on Respondent
in such amount and upon such terms and conditions as the Director or Presiding Officer may
determine; 6) requiring Respondent to provide equitable relief to all customers who entered
into securities-based loans pursuant to the Sales Contest detailed herein; and 7) taking any
such further action which may be necessary or appropriate in the public interest for the
protection of Massachusetts investors.

image: Bloomberg News

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Sunday – September 18, 2016

Ten Hidden Secrets Why More Than 70 Million MERS Mortgages in the United States Are Absolutely Void That Securitized Trusts Desperately Do Not Want You or Your Judge To Know.
——————–

There is no longer any need to argue in court frustratingly and largely in vain about violations of pooling and servicing agreements or cutoff dates of REMIC trusts to prove that your mortgage is void, for there are even more compelling reasons, ten independent reasons to be exact, heretofore largely unknown, why almost all securitized trust mortgages and deeds of trust in the United States are absolutely void as a matter of law.

Listen to this Sunday’s Edition of The Foreclosure Hour and learn if your mortgage is one of more than 70 million mortgages in the United States that are absolutely void and unenforceable based upon one or more or all of these ten hidden secrets and why.

And learn how you and all of our listeners nationwide can bring this new knowledge effectively to the attention of state and federal foreclosure courts in defense of your home.

Those who miss this important live broadcast can listen to it on the Past Broadcast Section of our Website at www.foreclosurehour.com shortly after it airs live on KHVH-AM News Radio in Honolulu and simultaneously throughout the United States on the iHeart Internet App.

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Brosnan v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS

 

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Justia  Dockets & Filings  Ninth Circuit  California  California Northern District Court  MERSCORP Holdings, Inc. et al v. MERS Inc. et al

MERSCORP Holdings, Inc. et al v. MERS Inc. et al

 

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Plaintiff: MERSCORP Holdings, Inc.
Represented By:	Robert Nathan Phillips

Plaintiff: Mortgage Electronic Registration Systems, Inc.
Represented By:	Robert Nathan Phillips

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