Bank of America (NYSE:BAC)
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Lawyers for Bank of America Corp. (BAC), Societe General SA (GLE.FR, SCGLY) and MBIA Inc. (MBI) met in court Monday over the banks' challenge of insurer MBIA's 2009 restructuring that the banks allege threatens the payout of their insurance claims.
Eighteen banks initially sued MBIA and New York state insurance regulator, but all but these two banks dropped the litigation, the most recent departure by Morgan Stanley (MS), which settled with MBIA in December. The banks demand a trial, but New York State Supreme Court Justice Barbara Kapnick isn't so sure a trial is warranted--and if it warranted, what form it should take.
In the short proceedings Monday she reiterated that position, and told the parties to get ready on Tuesday to present their arguments in hearings.
At issue is MBIA's splitting off of its public-finance business, calling it the National Public Finance Guarantee Corp., while the structured-finance guarantees--with all their obligations--remained with MBIA Insurance Corp. That move prompted the banks to sue MBIA and its regulator, alleging the unit they expected to receive payment from is effectively insolvent.
"There must be a trial," said the banks' counsel, Robert Giuffra of Sullivan & Cromwell LLP, one of the nation's most dominant law firms representing banks in anything ranging to the largest merges to the most tricky regulatory issues.
Giuffra reiterated that MBIA's application to restructure itself in contained errors, and he alleged that the insurance regulator at the time didn't perform a solvency test that would show the new structure could harm insurance customers. "There are dozens of issues of fact" that challenges the application and, for that matter, the approval of the restructuring.
New York's insurance regulator has since been folded into a new agency, the New York Department of Financial Services. David Holgado of the New York attorney general's office is counsel for the regulator. He said the banks' allegation contained "various mischaracterizations" and said the court should proceed with hearings but without a trial.
Marc Kasowitz of Kasowitz, Benson, Torres & Friedman LLP, representing MBIA, said, "Now is the time for the parties to present their position."
MBIA Chief Executive Jay Brown told investors last week, "We are, and have always been, confident that the New York State Insurance Department's approval of our transformation was proper and will be upheld."
-By Matthias Rieker, Dow Jones Newswires; 212-416-2471; email@example.com