Federal Deposit Insurance v. Bakkebo

506 F.3d 286, 74 Fed. R. Serv. 1221, 2007 U.S. App. LEXIS 24948, 2007 WL 3105018
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 25, 2007
Docket05-2175
StatusPublished
Cited by12 cases

This text of 506 F.3d 286 (Federal Deposit Insurance v. Bakkebo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Deposit Insurance v. Bakkebo, 506 F.3d 286, 74 Fed. R. Serv. 1221, 2007 U.S. App. LEXIS 24948, 2007 WL 3105018 (4th Cir. 2007).

Opinion

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge MICHAEL joined.

OPINION

KING, Circuit Judge:

Harald Bakkebo appeals the $161 million judgment entered against him, in the Southern District of West Virginia, on claims of fraud and conspiracy to commit fraud against the First National Bank of Keystone (“Keystone,” or the “Bank”). 2 This civil action was initiated and pursued by the Federal Deposit Insurance Corporation (the “FDIC”), the receiver of Keystone. On appeal, Bakkebo contends that the district court erred in denying his December 20, 2004 post-trial motion for judgment as a matter of law, for a new trial or, in the alternative, for a remittitur (the “Post-Trial Motion”). Specifically, Bakkebo contends that the court should have ordered a new trial because it erred in admitting evidence of his earlier indictment on charges unrelated to the conduct alleged in this civil action, and because it made a remark during the trial proceedings that was incurably prejudicial to him. Bakkebo also asserts that the court should have awarded him judgment as a matter of law because the trial evidence was legally insufficient to show that he and his co-conspirators made fraudulent misrepresentations to Keystone, and also to establish that Keystone’s reliance on their representations was justified. Finally, Bakkebo maintains that the court should have ordered a new trial or a remittitur because the jury’s award of $161 million in damages to the FDIC was against the great weight and preponderance of the evidence. As explained below, we reject each of these contentions and affirm.

I.

A.

In the mid-1990s, Bakkebo and several co-conspirators induced Keystone to invest hundreds of millions of dollars in a financial enterprise known as loan securitization, in which Keystone purchased thousands of subprime home loans from the lenders that had originally made the loans (or from other entities that had previously acquired the loans), then resold the rights to most of the loans’ proceeds in the form of special mortgage-backed securities. 3 Keystone’s loan securitization transactions were orchestrated by Dan Melgar, a close friend and business associate of Bakkebo. Melgar held himself out as an expert in *290 loan securitization and persuaded Keystone to pursue it as a lucrative alternative to the Bank’s traditional local lending business. Neither Keystone’s officers nor its directors (who were businessmen and professionals living in or around Keystone, the southern West Virginia town in which the Bank was based) had experience with loan securitization, and Melgar effectively exercised sole control over the securitization program in which Keystone engaged. He established the prices that Keystone paid for loans and the prices at which it sold securities. Significantly, he provided projections of future loan performance on which Keystone relied in making its high-stakes foray into loan securitization. Also of importance, Melgar selected the entities with which Keystone would do business in each securitization transaction — the sellers from which Keystone would purchase loans, the loan servicers that would be paid to administer the loans after Keystone purchased them, and the various financial services firms that were needed to facilitate each securitization.

Melgar directed much of Keystone’s sec-uritization business to two entities controlled by Bakkebo: Prime Financial Corporation (“Prime”) and Clearview Capital Corporation (“Clearview”). Acting on Melgar’s advice, Keystone purchased hundreds of millions of dollars in loans — most at premium prices — from Clearview, and also hired Prime to service loans worth several hundred million dollars. Keystone was unaware, however, that Prime and Clearview were paying Melgar hundreds of thousands of dollars in fees that nominally were for consulting services, but for which Melgar performed no work. Neither Melgar nor Bakkebo disclosed to Keystone that Melgar had a financial incentive to assist Bakkebo’s companies in obtaining business.

Keystone’s loan securitization program quickly ran into trouble. The Bank conducted four securitizations in 1993 and 1994, and all four performed much worse than Melgar had predicted. The loans that Keystone had purchased proved to be of low quality, and by the end of 1994 Keystone had not earned a single dollar’s return on its enormous investment in loan securitization. In December 1994, Conti-Financial (“Conti”), a New York-based underwriter responsible for placing the mortgage-backed securities that Keystone sold, terminated its relationship with Keystone. In so doing, Conti advised Bakkebo, Mel-gar, and Keystone that the quality of the loans Keystone had securitized was so poor, and that the administration of the securitization program had been so lacking, that Conti foresaw only further losses if it continued to underwrite Keystone’s deals.

Melgar, however, advised Keystone that Conti had misrepresented its reason for ending its relationship with Keystone, and that Conti actually had withdrawn as underwriter because it wanted to compete with Keystone in the loan securitization business. Melgar further asserted, in a January 5, 1995 memorandum to Keystone Vice President Terry Church, that the quality of the loans Clearview and Prime were selling had “improved substantially and with the improved quality the deals [sic] performance should improve.” J.A. 954. 4 Thus advised, Keystone engaged in six more loan securitizations in 1995 and 1996, involving approximately $980 million in loans. Despite Melgar’s assurances that the quality of the loans Keystone was securitizing had improved, these six deals, *291 like the 1993 and 1994 securitizations, were near complete failures. The loans involved performed far below Melgar’s projections, and Keystone incurred massive losses as a result.

In January 1996, Bakkebo was indicted in a Louisiana federal court on insurance fraud charges unrelated to Keystone’s securitization program (the “Indictment”). Bakkebo’s Indictment jeopardized Prime’s license, issued by the Department of Housing and Urban Development (“HUD”), to service so-called Title I loans — a type of subprime mortgage partially guaranteed by HUD. A substantial part of the loans Prime was servicing for Keystone were Title I loans, and so the possibility of Prime losing its Title I servicing license threatened Keystone’s securitization business. Keystone responded by seeking to transfer its Title I loans from Prime to another servicer, but Bakkebo refused to release the loans as Keystone demanded— despite having no legal basis for retaining control of Keystone’s loans. Instead, he insisted that Keystone purchase Prime from him as a way of ending the association between him and Prime, and thereby removing the threat to Prime’s ability to service Title I loans.

Keystone initially resisted Bakkebo’s demand. Soon thereafter, however, Prime’s performance in servicing Keystone’s loans began to decline, worsening the loan securitization program’s already disappointing performance and placing Keystone under even greater pressure to regain control of the loans Prime was servicing. In September 1996, Keystone offered to purchase Prime for $3.5 million. On October 3, 1996, Prime countered with an offer to be acquired by Keystone for $5 million.

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Bluebook (online)
506 F.3d 286, 74 Fed. R. Serv. 1221, 2007 U.S. App. LEXIS 24948, 2007 WL 3105018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-v-bakkebo-ca4-2007.