NEW YORK, July 28 (Reuters) - Four weeks ago, Bank of
America Corp reached an $8.5 billion settlement it hailed as a
step forward in putting mortgage liabilities behind it. But New
York's attorney general is sending strong signals he could try
to reshape the deal or even scuttle it.
The settlement, which requires court approval, could
provide a template for other banks hoping to settle investor
claims on residential mortgage-backed securities that went bust
in the financial crisis. Bank of America agreed to resolve
nearly all repurchase claims tied to mortgage bonds backed by
loans from its Countrywide Financial unit.
Almost as soon as the ink was dry on the pact, though, New
York Attorney General Eric Schneiderman began to look into the
deal. The investigation is part of his office's broader
examination of banks' roles in the mortgage crisis.
The agreement was struck by trustees on 530 mortgage bonds
with $174 billion in unpaid principal. It is backed by 22 big
investors, including Pacific Investment Management Co and
BlackRock Inc, which argued the bonds were stuffed with risky
home loans that should not have been sold.
Some investors complain the pact is rife with conflicts and
is a bad deal for them -- although a plum one for the bank. At
least four investor groups have filed court papers saying they
might object to the deal.
If Schneiderman also challenges the settlement, it could
have to be renegotiated -- likely at a greater cost to Bank of
America, analysts say. According to a court filing on Tuesday
by a group of investors who oppose the deal, Schneiderman is
close to deciding whether to intervene.
"The Attorney General's office has asked us to inform the
court that it is completing its analysis," wrote David Grais,
an attorney for an investor group known as Walnut Place LLC.
Danny Kanner, a spokesman for Schneiderman, declined to
comment.
Critics of the settlement say Bank of New York Mellon Corp,
which served as trustee for the mortgage pools covered by the
settlement, secretly negotiated a deal on behalf of investors
without their input. They argue BNY Mellon had a conflict of
interest because it was indemnified by a Countrywide unit for
costs and liabilities arising from its duties as trustee.
NEW SHERIFF IN TOWN
In his first seven months on the job, Schneiderman has
embraced the title "Sheriff of Wall Street" that comes with the
attorney general post, a position previously held by New York
Governor Andrew Cuomo and Eliot Spitzer before him.
He has emerged as a key player in the negotiations between
banks and state and federal regulators over alleged shoddy
foreclosure practices. Schneiderman has insisted any settlement
over those practices not give banks broad releases from being
sued over other mortgage issues.
Under the state's Martin Act, an expansive anti-fraud
statute, Schneiderman has broad subpoena power. He could use
the law to gather information to evaluate the fairness of the
Bank of America deal, said Isaac Gradman, an attorney who
advises investors in mortgage securities.
"He certainly has a lot of power and ability to bring to
the surface unappealing information about the banks," Gradman
said. "That alone could give him leverage to have a seat at the
table."
Still, it is unclear if Schneiderman has the power to
intervene. He needs permission from a court to officially
insert himself into a case. If Schneiderman does not intervene
on behalf of certificate holders in the soured securities, he
might argue the deal does not benefit investors at large and he
should be considered an interested party as their advocate.
"There are some aspects to this deal, which the attorney
general may or may not consider to be in the public interest,"
said Beth Kaswan, an attorney for pension fund investors
seeking to intervene in the case.
In a letter to the judge on July 13, Schneiderman's office
hinted at its strategy. The office opposed an order sought by
BNY Mellon that would limit intervenors to certificate holders
and other interested parties, wrote special deputy attorney
general Maria Filipakis.
"Such an order could have a substantial adverse impact on
the interests of the State of New York," Filipakis wrote.
BNY Mellon responded in a subsequent court filing that its
proposed order is not intended to limit any interested party
from seeking to intervene.
Bank of America and BNY Mellon declined to comment about
the possibility of Schneiderman's involvement in the case.
Kathy Patrick, an attorney who helped negotiate the deal for
investors, did not return a call seeking comment.
The settlement requires the approval of New York State
Supreme Court Justice Barbara Kapnick, who set an Aug. 30
deadline for objections to it.
Schneiderman has sent letters asking institutional
investors who agreed to the accord for the names of their
clients that have ties to New York such as pension funds and
charities. The letters, obtained by Reuters, have fueled
speculation Schneiderman might intervene and object to the
settlement.
By asking for information, Schneiderman might be trying "to
nudge some activity," said Thomas Adams, an attorney at Paykin
Krieg & Adams, who specializes in securitization issues.
The price tag ultimately could rise for Bank of America if
Schneiderman exerts influence, said Chris Gamaitoni, a mortgage
finance analyst with Compass Point Research & Trading.
"If they are able to subpoena information and conduct a
deep analysis, that would be a negative point for the bank," he
said.
The case is In re: The Bank of New York Mellon, New York
State Supreme Court, New York County, No. 651786/2011.
For Bank of New York, as trustee: Jason Kravitt, Hector
Gonzalez and Matthew Ingber of Mayer Brown.
(Reporting by Andrew Longstreth)