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Trustee’s Settlement of Claims Against Countrywide/Bank of America Stemming from Sale of Mortgage-Backed Securities Approved

The First Department, in a full-fledged opinion by Justice Saxe, determined the trustee properly exercised its discretion in settling the claims stemming from mortgage-backed securities sold by Countrywide Home Loans between 2004 and 2008. Countywide was subsequently purchased by Bank of America (BofA). The First Department explained the courts’ powers re: reviewing the settlement under CPLR Article 77:

The ultimate issue for determination here is whether the trustee’s discretionary power was exercised reasonably and in good faith … . It is not the task of the court to decide whether we agree with the Trustee’s judgment; rather, our task is limited to ensuring that the trustee has not acted in bad faith such that his conduct constituted an abuse of discretion … .

We agree with Supreme Court that the Trustee did not abuse its discretion or act unreasonably or in bad faith in embarking on the settlement here. The Trustee acted within its authority throughout the process, and there is no indication that it was acting in self-interest or in the interests of BofA rather than those of the certificateholders.

Importantly, “if a trustee has selected trust counsel prudently and in good faith, and has relied on plausible advice on a matter within counsel’s expertise, the trustee’s conduct is significantly probative of prudence” (Restatement [Third] of Trusts § 77, Comment b[2]). While reliance on the advice of counsel may not always be the end of the analysis regarding a claimed breach of trust — it is possible for a trustee to specifically seek out legal advice that would support the trustee’s desired course of conduct, or there may be other circumstances establishing that it was unreasonable to follow the legal advice (id.) — a party challenging the decisions of a trustee who followed the advice of a highly-regarded specialist in the relevant area of law can prevail only upon a showing that, based on the particular circumstances, the reliance on such counsel’s assessment was unreasonable and in bad faith. Court approval of the settlement does not require that the court agree with counsel’s judgment or assessment; all that is required is a determination that it was reasonable for the Trustee to rely on counsel’s expert judgment. Matter of Bank of N.Y. Mellon, 2015 NY Slip Op 01880, 1st Dept 3-5-15

 

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