(Updates with comment from MBIA in ninth paragraph.)
June 30 (Bloomberg) -- Bank of America Corp. and its Countrywide Financial Corp. unit must face a fraud claim brought by bond insurer MBIA Insurance Corp., an appeals court ruled.
The New York court today upheld an April 2010 trial-court denial of Countrywide’s motion to dismiss the claim against it in the 2008 suit. MBIA alleges that Countrywide fraudulently obtained insurance on billions of dollars of mortgage-backed securities.
MBIA claims the lender falsely represented loan-to-value ratios, debt-to-income ratios and borrowers’ FICO scores; provided prospectuses that falsely represented loans were made in compliance with Countrywide’s underwriting standards; and offered false, misleading or inflated ratings for the loans, according to the decision.
“Because MBIA alleges misrepresentations of present fact, and not future intent, made with the intent to induce MBIA to insure the securitizations, the fraud claim survives,” Associate Justice Rosalyn H. Richter wrote.
MBIA contends that if it had known the representations were false, it would never have guaranteed the notes and suffered losses. As a result of defaults, MBIA alleges, it has been forced to make billions of dollars in claims payments on the insurance agreements, according to the decision.
The appeals court also upheld the dismissal of a negligent- misrepresentation claim in the case. It dismissed entirely a claim for breach of implied duty of good faith and fair dealing, which the lower court narrowed.
“We continue to believe MBIA is a sophisticated counter- party that cannot sustain a fraud claim, and we continue to have the ability to raise that point with the court at the summary- judgment phase,” Shirley Norton, a spokeswoman for Bank of America, said in an e-mailed statement.
Norton added the bank is pleased the appeals court confirmed the dismissal of the negligent-misrepresentation claim and dismissed the good-faith and fair-dealing claim.
MBIA spokesman Kevin Brown said in an e-mailed statement that the insurer was pleased the appeals court “upheld MBIA’s right to pursue fraud claims against Countrywide, particularly in light of the growing public recognition of fraud and misrepresentations perpetrated by Countrywide and other industry participants.”
The MBIA-Countrywide case isn’t part of the $8.5 billion proposed settlement by Charlotte, North Carolina-based Bank of America with investors in Countrywide Financial mortgage debt, according to Kevin Heine, a spokesman for Bank of New York Mellon, the trustee for securities in the proposed deal.
The appeal is MBIA Insurance Corp. v. Countrywide Home Loans Inc., New York State Supreme Court, Appellate Division, First Department (Manhattan). The lower-court case is MBIA Insurance v. Countrywide, 6028245/2008, New York state Supreme Court (Manhattan).
--Editors: Mary Romano, Charles Carter
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