How Does Your BATNA Look Now, Bank or investment company of America? I’ve recently posted about a mediator’s perspective of the MBIA v. Bank or investment company of America (BAC) litigation here, as well as a possible technique for MBIA to “email the secrets” to MBIA Insurance (Securitization Sub) here. In my last mediator’s perspective post, I provided a framework by which I thought both MBIA and BAC could obtain from arrangement what they needed, although definitely not all that they wanted. Assuming that this settlement value is correct with regard to analysis, BAC would compare this settlement value to the value of BAC’s BATNA.
However, it would appear that BAC will eventually lose this article 78 (though we should await Justice Kapnick’s decision to be sure), and MBIA removed the cross-default scenario using its recently completed be aware consent solicitation. First, it’s important to tell apart between NYDFS rehabilitation and liquidation proceedings. When I refer to the “mail the keys” strategy, I am referring to a voluntary rehabilitation proceeding initiated under Section 7402(l) of the NY Insurance Law.
In order to comprehend just what a voluntary rehabilitation of Securitization Sub would look like, this FAQ site on FGIC’s website is an excellent spot to start. Essentially, the rehabilitator (NYDFS or its designee) would think of a rehabilitation plan for Securitization Sub, much such as a debtor-in-possession federal personal bankruptcy proceeding.
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