Law Professor Larry Ribstein points out that Bank of America’s put-back problems are raising a host of legal issues.
"BofA is trading around $11. Its book value is $21.45. The difference has a lot to do with whether investors in mortgage-backed securities will be able to get BofA (and other banks) to repurchase hundreds of billions of dollars of mortgage-backed securities because the bonds didn’t meet representations and warranties in the bond contracts…
Quickly scanning through reports I see the following issues, among others:
- What exactly were the misrepresentations and warranty breaches? Bloomberg reports that the problems could include faulty appraisals and failing to include appropriate documentation needed for foreclosures. What else?
- Were they material? If not, they’re not actionable. Bloomberg notes the losses may have resulted from the bad economy rather than loan defects.
- Who has standing to sue? A demand often requires a significant percentage, say 25 percent, of the holders. Query: which holders?
- What’s the statute of limitations?
What is the exposure at the bank level? Countrywide, for example, is a separate BofA subsidiary. Can BofA just put it in bankruptcy and walk away?
What’s the size of the total problem? Bloomberg mentions another effort by investors holding more than $500 billion of mortgage-backed securities.
No doubt the banks have legions of lawyers advising them who collectively know some facts and law the market doesn’t. Banks have limited obligations to affirmatively disclose all the details in real time, and non-material misrepresentations are not actionable. Which means there’s a lot investors don’t know. A lot of this information involves the legal consequences of various factual scenarios whose likelihood the market could handicap.
Sure would be worth it to investors to get more info. Think about that yawning gap between BofA’s market and book."
Ribstein, who has been at the forefront of describing the breakdown of the business model of big law firms, points out that this should be a business opportunity for lawyers. Why not sell proprietary legal opinions on issues driving the markets?
“I’ve argued that there’s a demand for legal talent outside of the one-to-one advice market. This would include selling legal information to the capital markets. The putback mess would seem to be a time when such information would be particularly valuable,” Ribstein writes.
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