New First Department Put-Back Action Decision and New Settlement

The First Department unanimously affirmed Justice Scarpulla’s January 9, 2019, partial summary judgment order in HEMT 2006-5 et al vs. DLJ MORTGAGE CAPITAL, INC., et al, Index No. 653787/2012. Key takeaways (courtesy of Chris Milner at the Oakleaf Group):

  • sampling for RMBS trustee cases just got a major boost, for both liability and damages
  • Trustee able to subsequently identify additional defective loans after having put the warrantor on notice of pervasive breaches
  • “Material and adverse” breaches not limited to loans in default and applies to any breach that “materially increased a loan’s risk of loss.”
  • Repurchase price, as defined in the PSAs, applies to liquidated and non-liquidated loans, and thus, includes accrued interest on loans after they have been liquidated

In other news Blackrock recently settled its trustee suit against BoNYM (see here and here).

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