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Commitments and Contingencies
6 Months Ended
Jun. 30, 2011
Commitments and Contingencies  
Commitments and Contingencies

11.  Commitments and Contingencies 

 

                Financial instruments with off-balance sheet risk were (in thousands):

 

   

June 30,

 

December 31,

   

2011

 

2010

Commitments to sell fixed rate residential loans

 $

                3,640

 

             14,408

Commitments to originate loans held for sale

 

                3,128

 

             12,571

Commitments to originate loans held to maturity

 

              13,567

 

             10,693

Commitments to purchase residential loans

 

                5,395

 

               2,590

Commitments to extend credit, including the undisbursed

       

  portion of loans in process

 

            353,382

 

           357,730

Standby letters of credit

 

                7,301

 

               9,804

Commercial lines of credit

 

              85,173

 

             77,144

 

Standby letters of credit are conditional commitments issued by BankAtlantic to guarantee the performance of a customer to a third party.  BankAtlantic's standby letters of credit are generally issued to customers in the construction industry guaranteeing project performance. These types of standby letters of credit had a maximum exposure of $6.4 million at June 30, 2011.  BankAtlantic also issues standby letters of credit to commercial lending customers guaranteeing the payment of goods and services. These types of standby letters of credit had a maximum exposure of $0.9 million at June 30, 2011.  These guarantees are primarily issued to support public and private borrowing arrangements and have maturities of one year or less.  The credit risk involved in issuing letters of credit is essentially the same as that involved in extending loans to customers. BankAtlantic may hold certificates of deposit and residential and commercial liens as collateral for such commitments. Included in other liabilities at June 30, 2011 and December 31, 2010 were $35,000 and $34,000, respectively, of unearned guarantee fees.  There were no obligations associated with these guarantees recorded in the financial statements.

 

The Company and its subsidiaries are parties to lawsuits as plaintiff or defendant involving its bank operations, lending and tax certificates. Although the Company believes it has meritorious defenses in all current legal actions, the outcome of litigation and regulatory matters and timing of ultimate resolution are inherently difficult to predict and uncertain.

 

Reserves are accrued for matters in which it is probable that a loss will be incurred and the amount of such loss can be reasonably estimated. These accrual amounts as of June 30, 2011 are not material to the Company's financial statements. The actual costs of resolving these legal claims may be substantially higher or lower than the amounts accrued for these claims.  

 

A range of reasonably possible losses is estimated for matters in which it is reasonably possible that a loss has been incurred or that a loss is probable but not reasonably estimable. Management currently estimates the aggregate range of reasonably possible losses as $6.3 million to $18.3 million in excess of the accrued liability relating to these legal matters. This estimated range of reasonably possible losses represents the estimated possible losses over the life of such legal matters, which may span a currently indeterminable number of years, and is based on information currently available.  The matters underlying the estimated range will change from time to time, and actual results may vary significantly from this estimate. Those matters for which a reasonable estimate is not possible are not included within this estimated range and, therefore, this estimated range does not represent the Company's maximum loss exposure.

 

In certain matters we are unable to estimate the loss or reasonable range of loss until additional developments in the case provide information sufficient to support an assessment of the loss or range of loss. Frequently in these matters the claims are broad and the plaintiffs have not quantified or factually supported the claim.    

 

We believe that liabilities arising from litigation and regulatory matters, discussed below, in excess of the amounts currently accrued, if any, will not have a material impact to the Company's financial statements. However, due to the significant uncertainties involved in these legal matters, we may incur losses in excess of accrued amounts and an adverse outcome in these matters could be material to the Company's financial statements.

The following is a description of ongoing litigation and regulatory matters:

 

Class action securities litigation

 

In October 2007, the Company and current or former officers of the Company were named in a lawsuit which alleged that during the period of November 9, 2005 through October 25, 2007, the Company and the named officers knowingly and/or recklessly made misrepresentations of material fact regarding BankAtlantic and specifically BankAtlantic's loan portfolio and allowance for loan losses. The Complaint asserted claims for violations of the Securities Exchange Act of 1934 and Rule 10b-5 and sought unspecified damages. On November 18, 2010, a jury returned a verdict awarding $2.41 per share to shareholders who purchased shares of the Company's Class A Common Stock during the period of April 26, 2007 to October 26, 2007 who retained those shares until the end of the period.  The jury rejected the plaintiffs' claim for the six month period from October 19, 2006 to April 25, 2007.  Prior to the beginning of the trial, the plaintiffs abandoned any claim for any prior period.  On April 25, 2011, the Court granted defendants' post-trial motion for judgment as a matter of law and vacated the jury verdict, resulting in a judgment in favor of all defendants on all claims.   The plaintiffs have appealed the Court's order setting aside the jury verdict.

 

In July 2008, the Company, certain officers and Directors were named in a lawsuit which alleged that the individual defendants breached their fiduciary duties by engaging in certain lending practices with respect to the Company's Commercial Real Estate Loan Portfolio. The Complaint further alleged that the Company's public filings and statements did not fully disclose the risks associated with the Commercial Real Estate Loan Portfolio and sought damages on behalf of the Company.  In July 2011, the case was dismissed and the parties exchanged mutual releases and neither the individual defendants nor the Company will make any monetary payments.

 

Class Action Overdraft Processing Litigation

 

In November 2010, the two pending class action complaints against BankAtlantic associated with overdraft fees were consolidated.  The Complaint, which asserts claims for breach of contract and breach of the duty of good faith and fair dealing, alleges that BankAtlantic improperly re-sequenced debit card transactions from largest to smallest, improperly assessed overdraft fees on positive balances, and improperly imposed sustained overdraft fees on customers.  BankAtlantic has filed a motion to dismiss which is pending with the Court.

 

Office of Thrift Supervision Overdraft Processing Examination

 

As previously disclosed, the Office of Thrift Supervision advised BankAtlantic that it had determined that BankAtlantic had engaged in deceptive and unfair practices in violation of Section 5 of the Federal Trade Commission Act relating to certain of BankAtlantic's deposit-related products.   On June 2, 2011, the OTS concluded that BankAtlantic engaged in certain deceptive and unfair practices in violation of Section 5 of the Federal Trade Commission Act and OTS regulations and requested that BankAtlantic submit a restitution plan for OTS's consideration.  The OTS also advised BankAtlantic that BankAtlantic could be subject to civil money penalties. BankAtlantic believes it has complied with all applicable laws and OTS guidelines and on July 5, 2011, BankAtlantic filed an appeal of the OTS positions.   That appeal is now before the OCC which will review the issues under its process and guidelines. 

 

Securities and Exchange Commission Investigation

 

The Company has received a notice of investigation from the Securities and Exchange Commission ("SEC") Miami Regional Office and subpoenas for information. The subpoenas requested a broad range of documents relating to, among other matters, recent and pending litigation to which the Company is or was a party, certain of the Company's non-performing, non-accrual and charged-off loans, the Company's cost saving measures, loan classifications, BankAtlantic Bancorp's asset workout subsidiary, and the recent Orders with the OTS entered into by the Parent Company and BankAtlantic. Various current and former employees also received subpoenas for documents and testimony. 

 

The Miami regional office staff of the SEC has indicated that it is  recommending that the SEC bring a civil action against the Company alleging that the Company violated certain provisions of federal securities laws, including Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10b-5 there under.  The Company has also been informed that its chief executive officer received a similar communication.   In communications between the Company's counsel and the Miami regional office staff, the Company has learned that the basis for the recommended actions included many of the same arguments brought in the private class action securities litigation recently concluded at the district court level in favor of the Company and the individual defendants.  In addition, the Miami regional office staff raised issues relating to the classification and valuation of certain loans included in the Company's financial information for the last quarter of 2007 and in its annual report on Form 10-K for the 2007 fiscal year.   The Company and its CEO responded to the issues raised by the Miami regional office staff in June 2011.  If litigation is brought, the SEC may seek remedies including an injunction against future violations of federal securities laws, civil money penalties and an officer and director bar.  The Company believes that it has fulfilled all of its obligations under securities laws and, if such actions are brought by the SEC against the Company and/or any of its officers, such actions would be vigorously defended. 

 

Concentration of Credit Risk

 

BankAtlantic has a high concentration of its consumer home equity and commercial loans in the State of Florida.  Real estate values and general economic conditions have significantly deteriorated since the origination dates of these loans. If market conditions in Florida do not improve or deteriorate further, BankAtlantic may be exposed to significant credit losses in these loan portfolios. 

 

BankAtlantic purchases residential loans located throughout the country.  The majority of these residential loans are jumbo residential loans.  A jumbo loan has a principal amount above the industry-standard definition of conventional conforming loan limits. These loans could potentially have outstanding loan balances significantly higher than related collateral values in distressed areas of the country as a result of the decline in real estate values in residential housing markets.   Also included in this purchased residential loan portfolio are interest-only loans.  The structure of these loans results in possible increases in a borrower's loan payments when the contractually required repayments change due to interest rate movement and the required amortization of the principal amount.  These payment increases could affect a borrower's ability to meet the debt service on or repay the loan and lead to increased defaults and losses.  At June 30, 2011, BankAtlantic's residential loan portfolio included $454.5 million of interest-only loans, which represents 42.8% of the residential loan portfolio.  Interest-only residential loans scheduled to become fully amortizing during the six months ended December 31, 2011 and during the year ended December 31, 2012 total $24.7 million and $52.1 million, respectively.  If market conditions in the areas where the collateral for our residential loans is located do not improve or deteriorate further, or the borrowers are not in a position to make the increased payments due under the terms of their loans.   BankAtlantic may be exposed to additional losses in this portfolio.