(unknown, Karen Roach)
When Missouri passed a new law governing second mortgages back in 1979, the goal was to limit the burden of high-interest loans by restricting the fees that banks can charge borrowers. But after plaintiffs lawyers discovered the law more than a decade ago, it produced a predictable byproduct: class action litigation.
Now the party may be over. This week a judge in Kansas City sided with defense lawyers for a group of banks and dismissed one of the biggest remaining cases, ruling that the homeowners waited too long to sue. The decision comes weeks after the U.S. Court of Appeals for the Eighth Circuit reached the same conclusion in a similar case.
Since 2000, Kansas City’s Walters Bender Strohbehn & Vaughan has sued dozens of banks for allegedly violating the Missouri Second Mortgage Loan Act, or MSMLA, securing more than $662 million in class action settlements and approved claims in the process. One of the cases, which concerns loans made by FirstPlus Bank in the late 1990s, targeted a gaggle of defendants including U.S. Bank NA, UBS AG, JPMorgan Chase & Co. and German American Capital Corporation, a unit of Deutsche Bank.
On Tuesday Senior U.S. District Judge Scott Wright threw out the entire case, which was initially filed in Missouri state court in 2004. He ruled that MSMLA claims are governed by a three-year statute of limitations that starts running when homeowners close on their loans, making the plaintiffs’ allegations far too stale.
Gibson, Dunn & Crutcher’s Maurice Suh represents Deutsche Bank’s GACC unit and took the lead in arguing that the plaintiffs’ claims were time-barred. (Gibson Dunn’s Daniel Weiss and local counsel Leslie Greathouse at Spencer Fane Britt & Browne also represent GACC.) Suh, who’s based in Los Angeles, told us that this week’s ruling sends a strong signal that the MSMLA litigation is in its death throes.
“We’re very pleased with the result, and we were always confident that the court would come to the right conclusion,” Suh said. (He also said that years of duking it out with the plaintiffs in Missouri had given him a serious taste for Kansas City barbecue, and if it went on too long, “it would definitely affect my cholesterol.”)
Walters Bender had survived an earlier batch of motions to dismiss in 2012, persuading the court that borrowers could rely on a six-year statute of limitations to overcome the banks’ timeliness defense. The same year, however, the Eighth Circuit held that the more generous six-year statute doesn’t apply to civil claims that seek to recover monetary penalties. Then, in March of this year, the appeals court ruled explicitly that the three-year statute applies to MSMLA claims, siding with Countrywide Financial and its lawyers at Goodwin Procter.
By concluding that the Eighth Circuit decisions doom the FirstPlus case—and rejecting Walters Bender’s arguments to the contrary—Judge Wright on Tuesday erased hundreds of millions of dollars in potential liabilities for the defendants. The win is particularly important for Deutsche Bank, whose subsidiary faced the most exposure—around $400 million—among the remaining defendants in the case. U.S. Bank, which had faced even greater exposure, previously reached a settlement with the plaintiffs. Countrywide and FirstPlus also settled.
Walters Bender’s R. Frederick Walters was out of the office when we called to ask about the future of the MSMLA litigation. His partner Kip Richards also wasn’t immediately available to comment.