17-Feb-11 02:50 pm
J.P. Morgan Chase & Co. (JPM) and the Federal Deposit Insurance Corp. are
trying to shake a $10 billion lawsuit over some of the toxic leavings of
Washington Mutual Bank, or WaMu, which rode the boom and bust of the chancy home-lending industry to end up as the biggest bank failure in U.S. history.
The trusts at issue in the lawsuit were the focus of an investigation by a
Senate subcommittee, which revealed that WaMu's own internal reviews found "loans marked as containing fraudulent information had nevertheless been securitized and sold to investors."
A unit of Deutsche Bank AG (DB, DBK.XE), as trustee for securitized pools of more than a half-million home loans, had sued both J.P. Morgan and the FDIC in the U.S. District Court in Washington, complaining that it is being stuck with
soured loans, in violation of the securitization deals.
J.P Morgan had bought WaMu after it was seized by regulators in 2008. The FDIC took on the task of wrapping up WaMu's final affairs in a receivership
proceeding. They both want out of a lawsuit over who should be held to account for losses in big parcels of WaMu's allegedly fraudulent or poorly underwritten home loans.
Friday, the defendants fired back at the trustee, each claiming the other is responsible for making sure the securitizations stay healthy by repurchasing loans gone bad.
J.P. Morgan says it bought WaMu but left behind the liabilities at issue in the Deutsche Bank lawsuit. It also says Deutsche Bank has no case because it failed to follow the procedure for identifying bad loans and seeking to get
them cured before filing suit.
Instead, J.P. Morgan says, the securitization trustee went straight to court, claiming breaches of representations and warranties on the deals and asked to be awarded $10 billion without looking at a single loan file.
Not so, says Deutsche Bank. J.P. Morgan has the loan files and has failed to provide the securitization trustee access. Without access, the trustee can't identify loan-level breaches of representations and warranties that require a
cure, Deutsche Bank contends.
The trustee defended its reliance on the Senate subcommittee findings of widespread fraud and other flaws in WaMu-originated home loans. Deutsche Bank says the panel made "factual findings of specific breaches with respect to
specific loans" in the trusts, and so its complaint is "in no way based on 'guess(es),' 'bald speculation' or 'generalized misconduct.' "
According to the FDIC, J.P. Morgan took on the liabilities attached to the mortgage loan securitization trusts when it bought WaMu. Therefore, Deutsche Bank should not be allowed to keep the FDIC in the case, lawyers for the regulator said.
The lawsuit is part of a broader battle over what exactly J.P. Morgan bought when it picked up WaMu for $1.8 billion at a time when the U.S. financial
system looked shaky. Some of the fighting took place in bankruptcy court, where WaMu's former parent, Washington Mutual Inc. (WAMUQ), took refuge after being stripped of the thrift. WaMu's former parent struck a deal with J.P. Morgan and
with the FDIC over how to split up billions of dollars in cash and tax refunds, assets that were claimed by all three.
Embodied in a Chapter 11 plan, the Washington Mutual settlement has yet to receive court approval. If it is ultimately approved, most creditors of WaMu's former parent will receive payment in full with interest, and some of the
fighting over who was to blame for WaMu's failure will end.
In the meantime, creditors of WaMu itself are scratching for a partial recovery out the FDIC-run receivership, while fallout like the Deutsche Bank
securitization litigation continues to hit the courts.
(Dow Jones Daily Bankruptcy Review covers news about distressed companies and those under bankruptcy protection.)