High Court Deals Blow to Banks in MBS Cases

The Supreme Court declined to review the National Credit Union Administration's lawsuit against Royal Bank of Scotland and Nomura Holdings.
Matthew HellerJanuary 13, 2015
High Court Deals Blow to Banks in MBS Cases

The U.S. Supreme Court has declined to review whether the federal government waited too long to sue four banks over the sale of risky mortgage-backed securities.

In petitioning for high court review, the banks, including Royal Bank of Scotland and Nomura Holdings, said the government should be time-barred from suing them because a 1989 law that gave government agencies more time to bring some cases only applied to the Securities Act’s one-year statute of limitations, not the law’s three-year statute of repose.

“[B]illions of dollars of liability in dozens of pending [MBS] cases may turn on this question of statutory interpretation,” the banks said in their petition.

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But in an order Monday, the Supreme Court denied review, upholding a federal appeals court ruling that found the 1989 law established a “universal time frame” for the National Credit Union Administration to bring any suits on behalf of failed credit unions.

“There is no evidence that Congress intended the new, longer time limit it established for NCUA actions—enacted in the context of recovering from one of the nation’s worst financial crises—to be frustrated by the application of pre-existing shorter deadlines,” U.S. Solicitor General Donald Verrilli argued.

The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 included a provision known as the Extender Statute to extend the time frame for the NCUA and the Federal Deposit Insurance Corp. to file claims under the Securities Act of 1933.

The NCUA’s case against RBS, Nomura and units of Wells Fargo and Novation Companies involved the collapse of two credit unions that owned more than $1.7 billion in mortgage-backed securities.

In August 2013, the 10th U.S. Circuit Court of Appeals ruled that the government’s claims were not time-barred but the Supreme Court ordered it to reconsider that ruling in light of a case called CTS Corp. v. Waldburger. The appeals court said last August that Waldburger, which involved a different extender statute, did not apply to the NCUA action.

“The Extender Statute plainly establishes a universal time frame for all actions brought by NCUA, notwithstanding any other limitations frameworks governing other plaintiffs’ claims,” the court said.