Photo: Arminia/Wiki

U.S. District Judge William Pauley III of the Southern District of New York winnowed down claims Wednesday against U.S. Bank and Bank of America in a housing crisis legacy suit brought by the German bank Commerzbank.

In Commerzbank v. U.S. Bank, 16-cv-04569, Pauley partially granted the banks’ motion to dismiss claims against them as trustees of residential mortgage-backed securities pools. These securities helped sink the U.S. and then world economies after the housing crisis a decade ago. As Pauley noted, they also “ushered in a new era of mega cases.”

“[O]ver the past decade, RMBS litigation has been a lot like musical chairs—virtually every party in the securitization process has sued or been sued by a counterparty in an unending game of blame shifting,” Pauley said.

The suit before him alleges the banks, in their roles as trustees, neglected their duties ahead of defaults on the mortgage-backed securities, as well as after things began to go south.

The defendant banks were granted a number of claims dismissals. Commerzbank alleged the trustees breached their implied covenant of good faith and fair dealings. Pauley found that the agreement governing the trusts expressly disclaimed any such implication and that, either way, plaintiff’s breach-of-contract claims made this “duplicative.”

The judge also dismissed Commerzbank’s Streit Act and Trust Indenture Act claims. The Streit Act, Pauley said, didn’t create independent duties for trustees in the event of defaults that weren’t already covered in the underlying agreement. The Trust Indenture Act, meanwhile, was excluded by the U.S. Court of Appeals for the Second Circuit from applying to the kind of trusts at issue in the suit.

Pauley also agreed with defendants that 17 of the 57 trusts that Commerzbank was suing over had no-action clauses that should be in effect.

Even as these claims were dropped, Pauley allowed the suit to proceed over breach of contract, breach of fiduciary duty and negligence claims.

Wollmuth Maher & Deutsch name attorney David Wollmuth leads his firm’s representation of Commerzbank. He could not be reached for comment.

Munger, Tolles & Olson’s California-based partner Jacob Kreilkamp heads the legal team for Bank of America, and Ohio-based Jones Day partner Louis Chaiten led U.S. Bank’s team. Neither could be reached for comment.