A federal judge dismissed Bank of America Corp.'s (BAC) lawsuit against units of Deutsche Bank AG (DB) and BNP Paribas SA (BNP.FR), a win for the two foreign banks in their $1.75 billion dispute over losses suffered when a subsidiary of disgraced mortgage lender Taylor Bean & Whitaker Mortgage Corp. collapsed.
Judge Robert W. Sweet of the U.S. District Court in Manhattan dismissed Bank of America's suit alleging negligence and breach of fiduciary duty against the securities units of BNP Paribas and Deutsche Bank for their role in the sale of notes issued by Taylor Bean's Ocala Funding unit.
Judge Sweet, in a 39-page opinion, said Monday that the units, acting as brokers in the sale of the Ocala notes, owed "no duty...to investigate or verify representations" made in a private placement. Judge Sweet also allowed the two banks to amend their suit against Bank of America to pursue additional claims against Bank of America, based on the bank's claims that fraud at Taylor Bean absolved it of liability.
Representatives for the three banks weren't immediately available for comment.
Deutsche Bank's and BNP Paribas's mortgage units were investors in notes issued by Taylor Bean's Ocala Funding unit, a mortgage conduit. Deutsche Bank and the BNP Paribas subsidiary sued Bank of America, which served as trustee for the notes, in 2009 for breach of contract over the bank's alleged failure to secure $1.75 billion in cash and mortgage loans on their behalf.
The Bank of America suit had looked to turn the tables on the two big Wall Street banks by suing BNP Paribas Securities Corp. and Deutsche Bank Securities Inc., which had arranged the sales in which their affiliates invested.
At the center of this legal morass was the Ocala Funding LLC conduit, a mortgage-financing vehicle that Taylor Bean created in 2005 to purchase its home loans, which were then bundled into securities and sold to investors such as Freddie Mac (FMCC). Ocala funded its business by issuing short-term notes that it sold to investors.
The Ocala conduit was a key element in a seven-year, multibillion-dollar fraud orchestrated by Taylor Bean founder Lee Farkas, which also brought down Taylor Bean's main lender, Alabama's Colonial Bank.
When Taylor Bean's mortgage assembly line collapsed in the summer of 2009, those involved--the banks, investors and the Federal Deposit Insurance Corp.--pointed fingers at one another, each claiming to have been injured by conduct of others.
Bank of America said that the FDIC, as Colonial's receiver, is on the hook for the $1.75 billion in losses investors suffered when Taylor Bean and Colonial collapsed. It sued the FDIC in the autumn of 2010.
The FDIC, which argued that the bank didn't have the authority to sue it over losses incurred by the Taylor Bean subsidiary, countersued. That dispute is pending.
Farkas's fraudulent scheme involved Colonial "purchasing" mortgage loans from Taylor Bean that had already been sold to other investors. In this way, Taylor Bean masked its financial problems and maintained its licenses as mortgage lender, seller and, importantly, issuer of mortgage-backed securities. Colonial provided the lender with $3 billion in mortgage financing, much of which went through Ocala.
Taylor Bean collapsed after federal regulators uncovered evidence of fraud and suspended its authority to make loans insured by the government agencies.
Farkas, a Florida businessman who built Taylor Bean from a small mortgage company into the largest U.S. mortgage lender that wasn't owned by a bank, is serving a 30-year prison sentence for his role in the scheme. He is appealing his conviction. A handful of other executives from Colonial and Taylor Bean have also been sentenced to prison for their roles in the fraud.
