In its ruling, the U.S. District Court for Kansas—where U.S. Central was based—adopted the same stance as when it dismissed similar NCUA claims against Barclays Capital and Credit Suisse Securities that voluntary tolling agreements signed by the litigants to suspend the running of the three-year statute of limitations on the securities claims were not to be relied upon.
NCUA is appealing the Barclays ruling to the U.S. Court of Appeals for the Tenth Circuit. A ruling in its favor could reinstate the Barclays and Credit Suisse claims, as well as those in the WaMu case.
The latest ruling, if upheld by the appeals court, would represent a major victory for JP Morgan, against which NCUA has filed $7.2 billion worth of claims, including securities sold by it to the failed corporate credit unions, and by WaMu and Bear Stearns, both of which it acquired after their own failures. NCUA’s claims include $1.4 billion against JPMorgan, $2.2 billion against WaMu and $3.6 billion against Bear Stearns.
The Kansas court rejected a defense by JPMorgan that NCUA’s WaMu claims were more appropriately brought against the FDIC, which took over the banking giant in 2008 then sold in a purchase and assumption agreement to JPMorgan, rather than in a civil suit.
NCUA referred to its appeal of the Barclays’ ruling. “We note many of the claims that were dismissed because of the court’s opinion that the parties could not mutually agree to toll the running of the statute of limitations. That issue is currently on appeal to the Tenth Circuit,” John Fairbanks, chief spokesman for the agency, told the Credit Union Journal this morning. “This is lengthy and complex litigation, and NCUA intends to continue to aggressively pursue responsible parties.”
NCUA has filed almost $10 billion of claims against the biggest Wall Street banks for the sale of faulty mortgage-backed securities to five failed corporate credit unions, including Members United Corporate FCU and Constitution Corporate FCU, as well as U.S. Central, WesCorp and Southwest. Among the defendants are Goldman Sachs, RBS Securities, Morgan Stanley, Credit Suisse Securities, UBS Securities and Barclays Capital. The credit union agency has reached $335 million of out-of-court settlements with Bank of America, Citibank, HSBC and Deutsche Bank Securities on similar claims.
In his ruling U.S. Judge John Lungstrum acknowledged NCUA’s use of the so-called extender statute that allows federal regulators to extend the start of the statute of limitations to when the regulators take over a failed institution. For U.S. Central and WesCorp this was March 20, 2009, meaning NCUA had until March 20, 2012 to file its securities claims in order to satisfy the three-year federal statute of limitations. But the WaMu suit was not filed until Jan. 14, 2013, rendering moot the U.S. Central and WesCorp claims, according to the Judge. And NCUA may not rely on any tolling agreement it may have signed with JPMorgan to apply the extender statute, the Judge wrote, reiterating his position in the Barclays case.