Plaintiffs' attorneys in a series of class lawsuits in Georgia alleging kickbacks in the mortgage insurance industry said last week that they may name additional insurers as defendants.
"We're still looking" at Radian Guaranty, GE Capital Mortgage Insurance Co., and Triad Guaranty, the three insurers that were not already named as defendants in the suits, said Michael C. Spencer, an attorney at Milberg Weiss Bershad Hynes & Lerach LLP in New York. Milberg is one of six legal firms representing Georgia homeowners.
The suits, filed in December against four mortgage insurers, focus on the extra layers of insurance that lenders buy for pools of loans so they can pay lower guarantee fees to Fannie Mae and Freddie Mac. The suits alleged that the insurers provided pool insurance and other services to lenders at preferential, below-market prices, in violation of the Real Estate Settlement Procedures Act. The plaintiffs are seeking penalties that theoretically could add up to hundreds of millions of dollars.
Last month Republic Mortgage Insurance Co., a Winston-Salem, N.C., unit of Old Republic International Corp. of Chicago; United Guaranty Corp., a Greensboro, N.C., unit of American International Group Inc. of New York; Mortgage Guaranty Insurance Corp. of Milwaukee; and PMI Mortgage Insurance Co. of San Francisco were all named as defendants in suits filed in U.S. District Court in Augusta, Ga.
Last week Republic, MGIC, and PMI issued statements vowing to defend themselves against the lawsuits vigorously and denying liability.
A spokeswoman for United Guaranty declined to comment. Early last week a spokesman for the General Electric Co. unit said his company was not very worried. because the suits emphasize pool insurance, which GE does not offer. The suits also cite contract underwriting and captive reinsurance as "kickback practices," but pool insurance gets the most mention.
Mr. Spencer said that despite speculation to the contrary, the plaintiffs would not go after other participants in the pool insurance process, including lenders, Fannie, and Freddie.
"We have no present intention of proceeding against any other type of entity," he said late Thursday afternoon.
Some observers had feared that lenders and the secondary marketing giants could very well find themselves in the line of fire.
"These suits will explore whether there was an agreement, expressed or implied, that referrals of individual primary mortgage insurance policies would be made to the insurer providing the pool policy to Fannie or Freddie in exchange for a reduced guarantee fee," said Laurence E. Platt, a partner at Kirkpatrick & Lockhart in Washington, earlier Thursday. "The question that would be addressed is whether expressly or implicitly the three parties struck a deal whether each of these pieces are coincidental or part of a larger triparty arrangement."
One mortgage insurance executive speaking on condition of anonymity, said that without the active participation of Fannie & Freddie, pool insurance "couldn't happen."
Mr. Platt said the litigation could chill pool insurance deals, but he dismissed the plaintiffs' argument. "In cases where we've been involved, there aren't agreements to refer individual policies in exchange for a reduced guarantee fee," he said. "The mortgage insurance companies may have hoped that would happen; they may, for pricing purposes, have assumed a certain level of referral. But as anybody who's been on a blind date knows, a hope for success is not a guarantee.
"We think it would be hard for a plaintiff to prove an agreement could be inferred," Mr. Platt added.
