The joke is on us. Why would anyone think anything related to pre-crisis mortgage deals would be simple? A New York state Judge on Friday delivered a long-awaited decision on an $8.5bn agreement by Bank of America to settle claims by private investors over faulty Countrywide loans bundled into bonds. Questions over whether the settlement would stand have been an obstacle to BofA’s efforts to move past the financial crisis and catnip for BofA bears who believed BofA could be forced to pay a sum perhaps a few times higher. AIG led a group of investors contesting the deal as offering scant compensation. Everyone was expecting a thumbs up or a thumbs down, but that is not exactly what they got.
Judge Barbara Kapnick approved the settlement, saying that the trustee for the bonds (BNY Mellon) did not act in bad faith. That seems straightforward enough. But then, a wrinkle. She excluded from her approval an issue over whether BofA must repurchase loans (packaged into bonds) whose terms the bank modified. So that could still be litigated. Attorneys for collateralised debt obligations (of course) called Triaxx have argued that the trustee failed to investigate modified mortgage repurchase claims worth about $31bn. BofA said it believed outstanding issues can be addressed “without undue delay”, while AIG is likely to appeal the broader approval.
BofA has reserved for the $8.5bn. And it has made strides in resolving its legal problems, although issues remain. In the fourth quarter, litigation expense was $2.3bn. Investors these days seem more focused on when an economic recovery and higher rates can produce revenue and margin growth. Shares fell just a per cent on Friday. The punch line? Investors cannot put this pesky settlement completely in the past just yet.
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