Tuesday, May 19, 2009

Massachusetts Subprime Mortgage Settlement with Goldman Sachs

Attorney General Martha Coakley of Massachusetts held a press conference in Boston and issued a press release on May 11, 2009 announcing her settlement agreement dated May 7, 2009 with Goldman Sachs & Co. "on behalf of itself and its affiliates Goldman Sachs Mortgage Company and GS Mortgage Securities Corp." regarding certain subprime mortgage lending issues. The agreement is reported to be the first of its kind in its pursuance of an investment bank facilitating the origination of unfair loans. The AG alleged that many of the loans were unfair and "destined to fail."


The agreement states that the AG's investigation concerned:

  1. whether securitizers may have facilitated the origination of "unfair loans" under Massachusetts law

  2. whether securitizers may failed to ascertain whether the loans purchased from originators complied with the originators' stated underwriting guidelines

  3. whether securitizers may failed to take sufficient steps to avoid placing problem loans in securitization pools

  4. whether securitizers may have been aware of allegedly unfair or problem loans

The investigation reportedly concerned whether there were failures to correct inaccurate information in securitization trustee reports concerning repurchases of loans and whether there were failures to make available to potential investors certain information concerning allegedly unfair or problem loans, including information obtained during loan diligence and the pre-securitization process, as well as information concerning their practices in making repurchase claims relating to loans both in and out of securitizations.

Settlement Terms

The settlement agreement is set report to be valued at about $50 million for about 700 Massachusetts subprime borrowers and for $10 million to the Commonwealth of Massachusetts. The AG is to continue with its investigation of subprime mortgage securitization practices.

The deal allows for the provision as to certain "performing" (as of April 1, 2009) first mortgages owned by Goldman Sachs on certain Massachusetts real property of certain incentives (the smaller of 25% of unpaid principal balance or such amount as sufficient to bring the LTF to 96.5%) for refinancing with FHA and similar lending programs and for similar loan forgiveness in connection with arm's lenth shores sales. Goldman Sachs is to use its "best efforts" to facilitate principal forgivenss by any second lien lender to assist in such refinancing or short sale.

As to certain "non-performing" (as of April 1, 2009) first mortgages owned by Goldman Sachs on Massachusetts real property, Goldman Sachs is to offer to forgive up to 35% of the unpaid principal balance to facilitate a refinancing or arm's length short sale. Its mortgage servicer is to instruct it loan servicer to forgo from foreclosure for six months to allow a good faith effort for refinancing or short sale.

Certain "performing" second mortgage liens on Massachusetts real property are to be forgiven up to 50% in exchange for the payoff of the remainder. The listed "non-performing" second mortgages are to be written off.

It is noted that certain of these offers are only "open until November 30, 2009." Goldman Sach's servicers are to use their best efforts to communicate the offers to the borrowers.

Goldman's Mortgage Servicing Affiliate Litton Loan Servicing LLP

Pursuant to the settlement, Goldman Sach's mortgage servicer affiliate Litton Loan Servicing, LLP is also to modify various mortgages. Litton is to hold certain sessions with borrower to help them understand and take advantage of the offers or to "develop other loss mitigation alternatives."

It is reported that settlements with other investment bankers in Massachusetts may be to come. It is also speculated that Attorneys Generals of other States will follow suit in a similar manner.

Bloomberg reported that Goldman Sach's mortgage business (part of its fixed-income, currencies and commodities unit) produced a "record $16.2 billion in revenue in 2007 and helped the securities firm set a Wall Street pay record." Bloomberg further reports that the $60 million settlement was about one and one-third day's revenue for 2007 for its fixed income, currencies and commodities unit which was the largest source of revenue for the firm.

Short Positions - Goldman Sachs as an Empty Creditor

According to Bloomberg, Goldman Sachs, which was the "world's largest securities firm before it became a bank holding company last year, used the ABX Index and credit default swaps to hedge its subprime holding." According to an October 30, 2007 letter to the Securities and Exchange Commission made public on January 14, 2008, the chief Goldman Sachs accounting officer wrote that "During most of 2007 we maintained a net short subprime position with the use of derivaties and therefore stood to benefit from decling prices in the mortgage market."
Bloomberg writes that the collapse of the subprime mortgage market in 2007 caused "at least $1.4 trillion of asset writedowns and credit losses" at various companies.

City of Cleveland "Public Nuisance" Case

Goldman Sachs was named as one of the 21 financial institution defendants in a class action suit brought in the Northern District of Ohio by the City of Cleveland alleging that the defendants' activities in securitizing subprime mortgage constituted a "public nuisance" under Ohio law. The case is reported to have been dismissed as a matter of law in a May 15, 2009 decision. City of Cleveland v.Ameriquest Mortgage Securities, Inc. et al., No. 1:08 cv 139 (N. D. Ohio, May 15,2009)The Ohio Court's rejection of the "public nuisance" claim is reported to have "far-reaching ramifications."

Fremont Investment & Loan Action

The AG's press release referred to her office's previous suit against Fremont Investment & Loan (reviewed here) which was filed on October 4, 2007 in Superior Court civil action number 07-4373-BLS1. The court issued a preliminary injunction enjoining Fremont from foreclosing on any any "structurally unfair" loan without further prior court approval and a final hearing on the merits. The lower court's preliminary injunction was subsequently upheld by the Supreme Judicial Court of Massachusetts ruling on December 9, 2008 on a direct appellate review. Commonwealth v. Fremont Investment & another, 452 Mass. 733 (2008)(Botsford, J.) The lower court's ruling February 25, 2008 was reportedly the first of its kind in the nation that restricted a subprime lender's ability to foreclose based on unfair or deceptive loan origination misconduct. The four characteristics found by the Freemont court as establishing unfairness were

  1. the loans were ARM loans with an introductory rate period of three years or less

  2. an introductory rate for the initial period that was at least three per cent below the fully indexed rate

  3. made to borrowers for whom the debt-to-income ratio would have exceeded fifty percent measured on the fully indexed rate

  4. the loan-to-value ratios was 100% or the loan featured a substantial prepayment penalty.

The AG's office also previously sued also sued Option One and its parent H&R Block alleging unfair, deceptive and predatory lending practices.

Post a Comment