More Bad News For Bank Of America - Fraud Liability May Jump $9 Billion If New York Judge Sides With MBIA
BofA will be expected to do a capital raise, and they still have a stake in China Construction Bank, which they have been attempting to offload (reportedly for weeks) for $17 billion. So they have a couple options before going hat in hand to Geithner for another bailout.
The initial court hearing was late last week.
Bank of America may face billions of dollars more in liability for faulty mortgages if a judge agrees with insurer MBIA that the lender must buy back loans even if the errors didn’t cause a borrower’s default.
If New York Supreme Court Justice Eileen Bransten and judges in similar cases across the country rule that the issue of “causation” doesn’t apply -- meaning it’s enough to show that the loan was improperly made -- it “could significantly impact” Bank of America’s potential costs, the bank said in a regulatory filing this month.
Such court defeats may add as much as $9 billion to what Bank of America owes bond insurers, according to hedge fund Branch Hill Capital, which is betting against its stock and has invested in MBIA. A victory for Armonk, New York-based MBIA may also strengthen claims by mortgage-securities investors that want the Charlotte, North Carolina-based bank to pay more than the $8.5 billion it’s offered them as a settlement.
“You don’t have to wait until you’re in a severe accident before you return the car with bad brakes,” said David Grais, a partner in New York at Grais & Ellsworth LLP who represents investors objecting to the bank’s proposed settlement with Countrywide Financial Corp. mortgage-bond holders.
Any ruling on the issue, which was to be the subject of a hearing today in state court in Manhattan, may come later than anticipated because the proceeding was postponed until October. The decision may intensify settlement talks between bond insurers like MBIA and other banks that issued securities based on faulty mortgages.
“If they lose that case, then our certainty of getting reimbursed becomes a lot higher,” Dominic Frederico, Assured’s chief executive officer, said in an interview. Bank of America agreed in April to a deal it valued at $1.6 billion with Hamilton, Bermuda-based Assured to settle its mortgage claims.
Since the start of 2010, Bank of America’s cushion for future losses on repurchases of mortgages that never matched their promised quality has ballooned from $4 billion to $17.8 billion even as it made payments in settlements with debt guarantors such as Fannie Mae and Freddie Mac.
The bank set aside $14 billion last quarter to cover claims, including the proposed $8.5 billion for the Countrywide- bond settlement reached in June with investors including BlackRock Inc., the Federal Reserve Bank of New York and Pacific Investment Management Co. The deal is being challenged by other bondholders and attorneys general in New York and Delaware.
Its reserves and guidance on how much more it may need are based on several assumptions, though, including the company’s view that losses will only have to be reimbursed if it can be proven “that the alleged representations and warranties breach was the cause of the loss,” the bank said in the Aug. 4 filing with the Securities and Exchange Commission. If courts disagree, “it could significantly impact” the estimate of as much as $5 billion in additional liabilities.
“It could change the playing field,” MBIA Chief Executive Officer Jay Brown said on an Aug. 10 conference call with analysts and investors when asked about the causation issue. It could “have a very significant effect on the ability to rescind or obtain rescissionary damages,” he said. “So, it can affect the view of both parties as to the likely outcome of the trial.”