Bank Of America's $8.5 Billion Settlement Deal Falls Apart

While Morgan Stanley only recently became a second derivative for everything European-related (thank you financial short selling ban in Europe, and also thank you Mr. Gorman for updating investors on your firm's $39 billion gross derivative exposure to French banks (not France the country). What's that? You didn't provide one? Oh, our bad, just as it is "anonymous bloggers" bad that your CDS blew out this quarter and generated over $3 billion in "income" for your firm - you are truly welcome), Bank of America has, for quite a while, been a proxy for all that is wrong with America's mortgage industry, courtesy of that most value-destroying purchase of the insolvent criminal entity that was Countrywide Financials. For a while the market was content that the proxy would not be in need of a shallow grave, unlike the US housing market (go ahead, ask where PrimeX closed today), after the bank managed to bribe enough "plaintiffs" and proceed with a quick and painless $8.5 billion settlement on all of its mortgage putback claims. A settlement that, however, had a very weak link: "Article 77", a critical provision enabling the deal in its current form. And as we first reported and explained back on August 26, said weakest link was attacked by David Grais of Walnut Place, who "filed a request to transfer the lawsuit from State Court to Federal Court where everything basically begins a new." Well, today Grais won, and Bank of America lost after US District Judge William Pauley ruled that "Bank of America Corp.’s proposed $8.5 billion settlement with Countrywide Financial Corp. mortgage-bond investors must be considered in federal court instead of the New York state court where it was first filed." Not content with making a factual statement, the Judge proceeded to skewer the bank which, on top of evertyhing, recently decided to stuff its depositors with a bill as large as $53 trillion should things turn sour, added "The settlement agreement at issue here implicates core federal interests in the integrity of nationally chartered banks and the vitality of the national securities markets."  Integrity? From a bank which secretly, though with the Fed's blessing, has tried to put its client interests over those of depositors of over $1 trillion, and over the objections of the FDIC? Don't make us laugh.

The good news is that yet another rating downgrade is imminent once the rating agencies realize that as a result of the Article 77 clause elimination, BofA is now on the hook for tens, if not hundreds of billions in putback liabilities and civil liability exposure, and potentially the forced bankruptcy of its Countrywide unit. In other words: the financial meltup over the past 2 weeks was fun while it lasted.

While it is of secondary relevance, and interested readers can read more in the attached ruling, the specific reason for why Pauley demonstrated balls of brass is explained by Alison Frankel:

The settlement agreement at issue here implicates core federal interests in the integrity of nationally chartered banks and the vitality of the national securities markets," Pauley wrote. "A controversy touching on these paramount federal interests should proceed in federal court."…That sentiment infuses the judge's analysis of where BofA's proposed deal should be evaluated…before Pauley in federal court, where there's no analogous procedure for binding thousands of investors in 530 trustees to a settlement only 22 of them had a hand in negotiating. Pauley's decision to keep the case in federal court throws the settlement off the carefully-designed track the bank, the trustee, and the investor group that supports the deal hoped to keep it on.


Pauley seemed to find the settlement supporters' Article 77 gambit to have been too clever by half. He noted that his research uncovered only 28 Article 77 decisions in the last 40 years, many of which involved uncontested proceedings and garden-variety trust administration issues. He said, in fact, that he could find no authority to support the idea that a single Article 77 proceeding can be used to evaluate a decision affecting 530 trusts…Pauley concluded, however, that BNY Mellon was once again looking at form rather than substance, calling its argument "crabbed." Walnut Place, he wrote, was adverse to BNY Mellon, the Article 77 plaintiff, so it is a defendant for the purposes of removal…


If the Second Circuit upholds the ruling, it's very bad news for BofA. Given the harsh treatment Pauley has dished out to settlement supporters in two hearings and in Wednesday's ruling, it's clear the lawyers who crafted the $8.5 billion dollar deal have a long way to go before they get Pauley to sign off.”

While the clear loser here is Bank of America, and those who are long the stock and short the CDS, the winners are once again all those monolines whose full putback claims are about to see multiple expansion. Especially those with massive short interest, and whose core investors are in dire need of any form of short squeeze to bring their overall P&L higher.

Below is the full Pauley ruling blasting everything that is corrupt at Bank of America, and those collusive "plaintiff" who sought nothing less than to find a solution that barely dents Bank of America. You know who you are.