Published November 08, 2013
WASHINGTON – Bank of America Corp asked a federal court on Friday to throw out two U.S. government lawsuits accusing the nation's second-largest bank of defrauding investors during the financial crisis.
The U.S. Justice Department and the Securities and Exchange Commission had accused the bank in lawsuits filed in August in its Charlotte, North Carolina hometown of fraud in its sale of $850 million of residential mortgage-backed securities.
Such cases are usually brought under the federal securities laws, under which authorities must prove that a defendant intended to break the law.
But the Justice Department case in particular relied on the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. The government has turned increasingly to that law in pursuing cases linked to the financial crisis against banks, in part because of its 10-year statute of limitations.
In one of its filings with the Charlotte federal court on Friday, Bank of America accused the government of stretching that law beyond recognition.
"(D)espite repeatedly stating that the Bank violated the securities laws ��� (the Justice Department) conspicuously avoids bringing any claims under the securities laws," the bank said in its motion.
A Justice Department spokeswoman declined to comment.
The Justice Department has had some recent successes using FIRREA, including last month's victory in a separate trial in Manhattan federal court accusing Bank of America's Countrywide unit of selling defective home loans to government-controlled mortgage companies Fannie Mae and Freddie Mac .
The North Carolina cases, in contrast, involve securities backed by seemingly high-quality loans that were sold in early 2008 to other investors including the former Wachovia Corp, now part of Wells Fargo & Co .
Bank of America said letting the Justice Department case proceed "would create an unprecedented, new regime for regulating securities-in addition to and inevitably inconsistent with the federal securities laws."
The lawsuit was a product of President Obama's Residential Mortgage-Backed Securities Working Group, which includes the Justice Department and other federal and state regulators, and pursues cases linked to the financial crisis.
That same group had been prepared in September to file a similar lawsuit against JPMorgan Chase & Co . It is now in talks to finalize a $13 billion deal to resolve that and other mortgage-related cases against the largest U.S. bank.
Attorney General Eric Holder has also said the Justice Department plans to file similar lawsuits against other financial institutions in the coming months.
Since 2010, Bank of America has agreed to pay more than $45 billion to settle legal and other claims stemming from the nation's housing and financial crises. It bought the former Countrywide Financial Corp in July 2008 and Merrill Lynch & Co six months later.
SERVING UP GENERALITIES
According to the North Carolina lawsuits, the bank made misleading statements and failed to disclose facts about the mortgages underlying the securities it sold.
In its Friday response, the bank said the Justice Department allegations were vague, and that there was no evidence even after a three-year investigation that any bank employees made statements they knew were false, or concealed problems in the securities they sold.
"Generalized assertions of 'corporate' or 'constructive' knowledge do not suffice as a matter of law, but that is all the complaint serves up," the bank's lawyers said.
The cases are U.S. v. Bank of America Corp et al, U.S. District Court, Western District of North Carolina, No. 13-00446; and SEC v. Bank of America NA et al in the same court, No. 13-00447.
(Reporting by Aruna Viswanatha in Washington and Jonathan Stempel in New York, with additional reporting by Peter Rudegeair; Editing by Gary Hill, Richard Chang and Leslie Gevirtz)