Last month, as U.S. banks began reporting their
third-quarter financials, I noted that the banks had beefed up their disclosure of potential liability for mortgage-backed
securities activity. Morgan Stanley revealed that it had
received a demand letter from Gibbs & Bruns, the firm that
represents the big funds that negotiated the proposed $8.5
billion MBS breach-of-contract settlement with Bank of America.
Goldman upped its reported MBS exposure to $15.8 billion, from
a mere $485 million in the second quarter. The new emphasis on
disclosure, I said, was partly the result of more claims, but
also partly due to pressure from the Securities and Exchange
Commission and the Public Company Accounting Oversight Board to
improve MBS disclosures.
The bond insurers' trade group, the Association of
Financial Guaranty Insurers, has also been agitating for banks
to acknowledge their MBS exposure -- and particularly their
exposure to MBS breach-of-contract (or put-back) claims. In
September 2010 AFGI sent a blistering letter asserting that
Bank of America's MBS put-back liability to its members was
more than $10 billion. This September the bond insurers targeted Credit Suisse, which, according to AFGI, had failed to
account for billions in put-back claims.
Late Wednesday AFGI struck again. The recipient this time
was UBS. According to the letter AFGI sent to UBS CEO Sergio Ermotti, the Swiss bank has reported a $93 million reserve for
put-back claims in its most recent financial report -- even
though it has received more than $800 million in put-back
claims from just one bond insurer, and that insurer (presumably
Assured Guaranty) has indicated its intention of demanding a
total of $4 billion in put-backs from UBS.
UBS has included disclaimers about the uncertainty of the
volume of put-back claims and its success in rebutting put-back
demands, but AFGI asserts the boilerplate language is
misleading. "AFGI submits that neither refusing legitimate
repurchase requests nor failing to discharge legitimate
liabilities constitutes 'success' nor in any way reduces or
eliminates the liabilities," the letter said.
The bond insurers also sent the UBS letter to the bank's
regulators, the Swiss Financial Markets Supervisory Authority
and the New York State Department of Financial Services, as
well as to UBS's auditor, Ernst & Young.
In a statement, a UBS spokesperson said: "The letter from
the AFGI -- a trade association for monoline insurers -- is
inaccurate and we dispute AFGI's numerous unfounded
allegations. In particular, UBS stands behind its financial
reporting, including its disclosures and provisions concerning
its potential RMBS-related liabilities as entirely appropriate
and fully compliant with all legal and regulatory requirements.
We take issue with the quality and integrity of the industry
loan reviews cited in the letter and note that UBS has received
numerous unfounded loan repurchase demands -- and these demands
are fully reflected in UBS's disclosures. Moreover, the AFGI's
membership includes ultra-sophisticated insurers that accepted
significant premiums to insure risks and that now seek to evade
these obligations. Today's letter adds nothing new, and is
merely the latest in a series of efforts by the Association and
its members to shift responsibility for their actions."
(Reporting by Alison Frankel)
Follow Alison on Twitter: @AlisonFrankel
Follow us on Twitter: @ReutersLegal
(A previous version of this story misspelled UBS CEO Sergio
Ermotti's name as Ermatti.)