In re Washington Mutual Mortgage-Backed Securities Litigation

276 F.R.D. 658, 2011 WL 5027725
CourtDistrict Court, W.D. Washington
DecidedOctober 21, 2011
DocketNo. C09-37 MJP
StatusPublished
Cited by9 cases

This text of 276 F.R.D. 658 (In re Washington Mutual Mortgage-Backed Securities Litigation) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Washington Mutual Mortgage-Backed Securities Litigation, 276 F.R.D. 658, 2011 WL 5027725 (W.D. Wash. 2011).

Opinion

[662]*662ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND GRANTING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

MARSHA J. PECHMAN, District Judge.

This matter comes before the Court on Defendants’ motion for judgment on the pleadings and Plaintiffs’ motion for class certification. (Dkt. Nos. 259, 223, respectively.) Having reviewed the motions, the oppositions (Dkt. Nos. 327, 252), the replies (Dkt. Nos. 337, 322), and all related papers, and having heard oral argument on October 13, 2011, the Court GRANTS Defendants’ motion and GRANTS in part Plaintiffs’ motion.

Background

Plaintiffs Doral Bank Puerto Rico (“Doral”), Policemen’s Annuity and Benefit Fund of Chicago (“Chicago PABF”), and Boilermakers National Annuity Trust (“Boilermakers”) pursue claims under § 11 of the Securities Act of 1933 arising out of their purchase of mortgage-backed securities (“MBS”) created and sold by Defendants that collapsed in value relatively soon after issuance. Plaintiffs allege that the residential mortgage loans backing the securities were “fundamentally impaired” and that they were mislead as to the quality of the underwriting of the loans. They seek to certify a class of all “persons or entities who purchased or otherwise acquired WaMu [Washington Mutual] Mortgage-Pass Through Certificates, Series: 2006 AR-7, 2006 AR-12, 2006 AR-16, 2006 AR-17, 2006 AR-18 or 2007-HY1, on or before August 1, 2008----” (Dkt. No. 223 at 7.) The Class thus includes all persons or entities who purchased WaMu MBS sold in six separate offerings, each of which contained roughly twenty different MBS “tranches,” or slices. Across the six offerings, Defendants sold certificates in one-hundred-twenty-three separate tranches. Plaintiffs collectively purchased certificates in only thirteen of these tranches.

The mortgage-backed securities at issue in this litigation have their genesis with Washington Mutual Bank (“WMB”). WMB originated or acquired mortgage loans, and then sold them to Washington Mutual Asset Acceptance Corporation (“WAAC”). (Second Amended Compl. (“Compl.”) ¶10.) WAAC then “deposited” or transferred the loans into six separate trusts, where each trust represents a complete “offering.” (James Report ¶ 15.) The trusts were divided into different loan groups, wherein each loan group shares certain characteristics as to the loans themselves. (See e.g., 2006 AR-12 Pro. Supp. at S-5.) WAAC sold the certificates to WCC, which underwrote the offerings and sold the certificates in six offerings at issue here. (James Rep. ¶¶ 36-37.)

Of the six offerings at issue in this litigation, two were comprised of pay option adjustable-rate mortgages (“ARMs”) with a fixed rate period between one to thirteen months, while the four others contained hybrid ARMs where the interest rates were reset at anywhere between five and ten years. (James Rep. ¶33.) Within each offering, WAAC created numerous certificates that represent fractional interest in the income streams generated by the loans deposited in the trust. (Compl. ¶ 10; Hakala Report ¶ 12.) The certificates were then grouped into tranches that “represented specific rights and claims to the receipt of principal and interest payments from the pools of mortgages that they were collateralized by and associated with.” (Hakala Rep. ¶ 12.) Each tranche is an individual security in which investors could buy certificates. Each tranche has distinct characteristics, including: (1) its own Committee on Uniform Security Identification Procedures (“CUSIP”) number, (2) original principal note balance, (3) interest rate, (4) payment rights, (5) credit rating, and (6) payment priority. (You Decl. Exs. C, E, F; James Rep. ¶¶ 32, 42-46; Hakala Rep. ¶¶ 12-13.) Each tranche has a “specified level of seniority (or subordination) of the holder’s claims to the collateral in the event of defaults and losses of principal in the pool of mortgages it was associate with.” (Hakala Rep. ¶ 12.) The parties agree the each tranche is a separate security, although Plaintiffs contend that they are sufficiently similar and interrelated to be treated as one security for purposes of standing. One of Plaintiffs’ experts, Scott Hakala, admitted that each tranche is an individual security [663]*663with different rights and claims to receipt of principal and interest payments from the pool of mortgages. (Hakala Report ¶ 12; Hakala Dep. ¶ 159.) As discussed below, the Court finds each tranche to be a separate security.

Defendants seek dismissal of any and all claims related to the one-hundred-ten tranches that Plaintiffs did not buy on the theory that Plaintiffs lack standing to pursue claims related to them. Plaintiffs separately move for class certification of a class that would include all tranches within the six offerings. Because standing is a question of subject matter jurisdiction, the Court addresses this issue first. LaDuke v. Nelson, 762 F.2d 1318, 1325 (9th Cir.1985) (noting that standing “is a jurisdictional element that must be satisfied prior to class certification”).

Analysis

A. Motion for Judgment on the Pleadings

Defendants’ motion turns on one question: do Plaintiffs have standing to pursue claims tied to the MBS tranches that they did not purchase, but that were sold in the same offering in which Plaintiffs bought related MBS tranches? The Court finds Plaintiffs lack standing to pursue claims tied to the MBS tranches they did not purchase and that they cannot represent a class of those purchasers.

1. Standing

Section 11 of the Securities Act of 1933 creates a cause of action for “any person acquiring such security” pursuant to a “registration statement [that] contained an untrue statement of a material fact or omitted to state a material fact....” 15 U.S.C. § 77k(a). This Court and others have construed this section of the Act to require the plaintiff to have actually purchased the security upon which it seeks to sue. See In re Wash. Mut. Inc., Sec. Deriv. & ERISA Litig., 694 F.Supp.2d 1192, 1221 (W.D.Wash.2009); Maine State Retirement Sys. v. Countrywide Fin. Corp., No. 2:10-CV-0302 MRP (MANx), Dkt. No. 257 at 9, 2011 WL 4389689 (C.D.Cal. May 5, 2011) (collecting cases). This Court has concluded that the named plaintiffs in a securities action could not pursue Section 11 claims as to debt securities that no named plaintiff purchased, even though they were sold in an offering in which one named plaintiff had purchased the other security on offer. In re Wash. Mut, 694 F.Supp.2d at 1221.

Plaintiffs have standing only to sue on the thirteen tranches of WaMu MBS that they purchased. Each tranche of MBS is an individual security. This is evident in the fact that each has its own CUSIP, credit rating, risk profile, payment rights, payment priority, principal balance, and interest rate. Each offered different risks and possible returns on investment. That each tranche sold in an offering is related to the other does not alter the fact that each tranche is a separate security for purposes of § 11 standing. See Countrywide, Dkt. No. 247 at 12 (rejecting this same argument). Plaintiffs argue that because the tranches are created from the same pool of mortgages, they are all interrelated sufficiently that every tranche within an offering is effectively one security.

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Cite This Page — Counsel Stack

Bluebook (online)
276 F.R.D. 658, 2011 WL 5027725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-washington-mutual-mortgage-backed-securities-litigation-wawd-2011.