Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

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1 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FEDERAL HOUSING FINANCE AGENCY, AS CONSERVATOR FOR THE FEDERAL HOME LOAN MORTGAGE CORPORATION, on behalf of the Trustee of the Securitized Asset Backed Receivables LLC Trust 2006-WM4 (SABR WM4), Plaintiff, Case No. 1:13-cv-0584-(AKH) WMC MORTGAGE, LLC f/k/a WMC MORTGAGE CORP. Defendant. DEUTSCHE BANK NATIONAL TRUST COMPANY, solely in its capacity as Trustee of the Securitized Asset Backed Receivables LLC Trust 2006-WM4 (SABR 2006-WM4), Plaintiff, WMC MORTGAGE, LLC f/k/a WMC MORTGAGE CORP. Defendant. v. v. WMC MORTGAGE, LLC S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR RECONSIDERATION

2 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 2 of 14 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION...1 ARGUMENT...3 I. ACE II Means That The Trustee s Complaint Is Untimely....3 II. Under ACE II, There is No Prior Pleading to Which The Trustee s Complaint May Relate Back....7 III. If This Court Does Not Dismiss the Complaint, It Should Stay This Case Pending Any Appeal to the New York Court of Appeals....9 CONCLUSION...10 APPENDICES Appendix A - Decision and Order Denying Motion to Dismiss Complaint as Untimely, Signed and Entered on December 17, 2013, ECF No. 53. Appendix B - Decision in ACE Securities Corp. v. DB Structured Products, Inc., No /12, 2013 WL (1st Dep t, Dec. 19, 2013) Appendix C ACE I Pooling and Servicing Agreement 9.01(iii), 9.02(a)(iii)-(iv), No /2012, NYSCEF No. 8 Ex. A Appendix D Summons With Notice, ACE I, No /2012, NYSCEF No. 1 (Filed Mar. 28, 2012)

3 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 3 of 14 TABLE OF AUTHORITIES CASES Page(s) ACE Securities Corp. v. DB Structured Products, Inc., 965 N.Y.S. 2d 844 (N.Y. Sup. Ct. 2013)...1, 4 ACE Securities Corp. v. DB Structured Products, Inc., No /12, 2013 WL (1st Dep t Dec. 19, 2013)... passim Alcan Aluminum Ltd. v. Franchise Tax Bd., 539 F. Supp. 512 (S.D.N.Y. 1982)...10 Cornejo v. Bell, 592 F.3d 121 (2d Cir. 2010)...5 Cowen & Co. v. Tecnoconsult Holdings Ltd., No. 96 Civ (BSJ), 1996 WL (S.D.N.Y. July 11, 1996)...6 Ely-Cruikshank Co. v Bank of Montreal, 81 N.Y.2d 399 (1993)...5 Entron, Inc. v. Affiliated FM Ins. Co., 749 F.2d 127 (2d Cir. 1984)...6 Floyd v. City of N.Y., 813 F. Supp. 2d 457 (S.D.N.Y. 2011)...2 Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d Cir. 2001)...6 Harem-Christensen Corp. v. M.S. Frigo Harmony, 477 F. Supp. 694 (S.D.N.Y. 1979)...6 Lehman Bros. Holdings, Inc. v. Evergreen Moneysource Mortg. Co., 793 F. Supp. 2d 1189, (W.D. Wash. 2011)...6 McCavitt v. Swiss Reinsurance America Corp., 237 F.3d 166 (2d Cir. 2001)...5 McCavitt v. Swiss Reinsurance America Corp., 89 F.Supp. 2d 495 (S.D.N.Y. 2000)...5 Nomura Asset Acceptance Corp. Alt. Loan Trust, Series 2005-S4, v. Nomura Credit & Capital, Inc., No /2011, 2013 WL (N.Y. Sup. Ct., May 10, 2013)...6 ii

4 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 4 of 14 Pacific Growth S.A. v. Aon Corp., 1999 WL (S.D.N.Y. 1999)...5 Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125 (2d Cir. 1999)...5 Perkins v. City of New Rochelle, 2002 WL (S.D.N.Y. 2002)...5 Scott v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 89 Civ (MJL), 1990 WL (S.D.N.Y. 1990)...6 Spicer v. Pier Sixty LLC, 269 F.R.D. 321 (S.D.N.Y. 2010)...5 Structured Mtge. Trust v Daiwa Fin. Corp., 2003 WL (S.D.N.Y. 2003)...4, 6 Universal Acupuncture Pain Services, P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259 (2nd Cir. 2004)...5 V.S. v. Muhammad, 595 F.3d 426 (2d Cir. 2010)...5 Varo, Inc. v Alvis PLC, 261 A.D.2d iii

5 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 5 of 14 Under Local Rule 6.3 of the Local Rules for the Southern and Eastern Districts of New York, WMC respectfully submits this motion for reconsideration in light of intervening authority from the Appellate Division, First Department of New York, ACE Securities Corp. v. DB Structured Products, Inc., No /12, 2013 WL (1st Dep t Dec. 19, 2013), reversing the denial of the defendant s motion to dismiss in ACE Securities Corp. v. DB Structured Products, Inc., 965 N.Y.S. 2d 844 (N.Y. Sup. Ct. 2013). INTRODUCTION On December 17, 2013, this Court denied WMC s motion to dismiss the Trustee s Complaint. WMC had moved to dismiss the Complaint because it was untimely. This Court disagreed. Relying on the motion court s opinion in ACE Securities Corp. v. DB Structured Products, Inc., 965 N.Y.S. 2d 844 (N.Y. Sup. Ct. 2013) ( ACE I ), this Court held that the sixyear statute of limitations for a breach of contract claim did not run from the closing date of the agreement in which WMC allegedly made false representations. Instead, the Court held that the limitations period started to run only when WMC allegedly fail[ed] to cure after [it] received notice of the breach. Order Denying Motion to Dismiss Complaint as Untimely ( Order ), ECF No. 53, at 2. 1 Two days after entry of the Order, the Appellate Division reversed ACE I. See ACE Securities Corp. v. DB Structured Products, Inc., No /12, 2013 WL (1st Dep t Dec. 19, 2013) ( ACE II ). 2 Ruling solely on the pleadings, and considering contract language indistinguishable from that here, ACE II expressly rejected the holding and reasoning from ACE I that this Court adopted, and held that the statute of limitations begins to run from the closing 1 For the Court s convenience, a true and correct copy of the Order is attached hereto as Appendix A. 2 For the Court s convenience, a true and correct copy of the ACE II decision is attached hereto as Appendix B.

6 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 6 of 14 date of the agreement, when the representations are allegedly breached not when the defendant later fails either to cure or repurchase an allegedly defective mortgage loan after receiving notice of such alleged breaches. Id. at *1. Equally important, ACE II also addressed whether a plaintiff-trustee could resurrect an untimely complaint by relating the complaint back to a summons filed earlier by a certificateholder. Again based on contractual language identical to this case, ACE II held that the certificateholder lacked standing to file the summons under the contract s no-action clause, and as a consequence, the trustee s complaint could not relate back to the summons WL , at *1. Accordingly, ACE II held that the defendant s motion to dismiss should have been granted, reversed ACE I, and ordered the case dismissed. Id. Perhaps anticipating this motion, the Trustee has now sent a letter ( Letter ) to the Court urging this Court to continue to follow ACE I. ECF No. 54. But WMC respectfully submits that ACE II presents paradigmatic grounds for reconsideration. ACE II involved identical contract language, it reversed the primary authority on which this Court relied, and it constitutes a definitive ruling from the highest New York court to have considered the issue. Accordingly, WMC asks that the Trustee s complaint be dismissed based upon the new authority. See, e.g., Floyd v. City of N.Y., 813 F. Supp. 2d 457, 464 (S.D.N.Y. 2011) ( The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. (quoting Virgin Atl. Airways, Ltd. v. Nat l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992))). 3 3 On December 27, 2013, the Trustee amended its complaint as required by this Court s Order. Dismissal under ACE II is appropriate regardless whether the Court considers the operative pleading to be the Trustee s Complaint that was the subject of the prior motion to dismiss, or the First Amended Complaint. The two pleadings allege the same claims, and the minor differences 2

7 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 7 of 14 In light of ACE II, dismissal of the Complaint is warranted, but if the Court declines to dismiss the Complaint at this time, it should at a minimum stay the case pending any further appeal of the ACE II decision to the New York Court of Appeals. A stay would be a reasonable exercise of the Court s discretion and would prevent a waste of resources on claims that are untimely under ACE II. ARGUMENT I. ACE II Means That The Trustee s Complaint Is Untimely. ACE is on all fours with this case. Indeed, the Trustee embraced ACE in opposing WMC s motion to dismiss: ACE is directly on point with a repurchase framework identical to the one at issue here. Trustee s Mem. of Law in Opp. to Motion to Dismiss, ECF No. 44 at 10. In ACE, as here, the substituted plaintiff-trustee alleged that the defendant breached representations and warranties in connection with the securitization of a pool of mortgage loans governed by [the parties contracts]. Compare ACE II, 2013 WL , at *1 with Compl (alleging breaches of representations and warranties in the PSA). In ACE, as here, the substituted plaintiff-trustee did not file its complaint until more than six years after the alleged breach of those representations and warranties. Compare ACE II, 2013 WL , at *1 with Compl. 1, 1 (parties contract signed in December 2006 and complaint initially filed in June 2013). And in ACE, as here, the trustee argued that its suit was nevertheless timely because its between them are inconsequential with respect to the statute of limitations. Indeed, no amendment of pleading could change the legal conclusion that ACE II compels. Thus, WMC asks that this motion for reconsideration be granted, or, if the Court prefers, WMC asks that the Court treat this motion for reconsideration as a motion to dismiss the First Amended Complaint or motion for judgment on the pleadings, as appropriate. Unless the Court directs otherwise, WMC will, of course, file an answer to the First Amended Complaint by January 10, 2014 as previously ordered by the Court. 3

8 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 8 of 14 claims accrued on the date defendant failed to timely cure or to repurchase, as required by the terms of the parties agreement. Compare ACE I, 965 N.Y.S. 2d at 848 ( Plaintiff argues that [its] claims did not accrue until [defendant] breached its repurchase obligations. ) with Trustee s Mem. of Law in Opposition to Motion to Dismiss, ECF No. 44, at 3 (citing ACE I and contending the claim for the breach does not accrue until [the Responsible Party] fails to timely cure or repurchase a loan ). At the trial level, the ACE I court held that the trustee s complaint was timely and denied the defendant s motion to dismiss. In that court s view, the breach [was] the failure to comply with [the plaintiff s repurchase] demand, and so the statute of limitations did not begin to run until the defendant rejected that demand in ACE I, 965 N.Y.S.2d at 849. That logic was adopted by this Court in denying WMC's motion to dismiss. Order at 2. Soon thereafter, the Appellate Division unanimously reversed ACE I, and held that the defendant s motion to dismiss should have been granted. On the basis of the pleadings, it held that the breach accrued at the time the representation and warranties were made in March 2006, and not in 2012, when defendant allegedly failed to cure or repurchase upon the plaintiff s demand. Citing Structured Mtge. Trust v Daiwa Fin. Corp., 2003 WL (S.D.N.Y. 2003), the Appellate Division held that: The motion court erred in finding that plaintiff s claims did not accrue until defendant either failed to timely cure or repurchase a mortgage loan. To the contrary, the claims accrued on the closing date of the [MLPA], March 28, 2006, when any breach of the representations and warranties contained therein occurred. ACE II, 2013 WL , at *1 (also citing Ely-Cruikshank Co. v Bank of Montreal, 81 N.Y.2d 399, 402 (1993) and Varo, Inc. v Alvis PLC, 261 A.D.2d 262, st Dep t 1999)). Having wrapped its arms around the favorable decision by the trial court in ACE, the Trustee is now bound by the Appellate Division s contrary decision in the same matter. The 4

9 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 9 of 14 Trustee nonetheless urges this Court to continue to follow the reasoning in ACE I. Letter at 2. But as the most authoritative decision from New York s appellate courts, ACE II s statement of New York law is binding on this Court absent persuasive evidence that the New York Court of Appeals would disagree with that decision. See, e.g., Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir. 1999) ( We are bound, as was the district court, to apply the law as interpreted by New York s intermediate appellate courts unless we find persuasive evidence that the New York Court of Appeals, which has not ruled on this issue, would reach a different conclusion. ); V.S. v. Muhammad, 595 F.3d 426, 432 (2d Cir. 2010) (following Appellate Division authority); Cornejo v. Bell, 592 F.3d 121, 130 (2d Cir. 2010) (same); Universal Acupuncture Pain Services, P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 263 (2nd Cir. 2004) (same); McCavitt v. Swiss Reinsurance America Corp., 237 F.3d 166, 167 (2d Cir. 2001) (same); Grand Light & Supply Co., Inc. v. Honeywell, Inc., 771 F.2d 672, 678 (2d Cir. 1985) (same); Spicer v. Pier Sixty LLC, 269 F.R.D. 321, (S.D.N.Y. 2010) (same); McCavitt v. Swiss Reinsurance America Corp., 89 F.Supp. 2d 495, (S.D.N.Y. 2000) (same); see also Strubbe v. Sonnenschein, 299 F.2d 185, 188 (2d Cir. 1962) (A federal court is bound to apply the law of the state as found by an intermediate appellate court in the absence of more convincing evidence of what the state law is. ) (quoting Fidelity Union Trust Co. v. Field, 311 U.S. 169, 178 (1940)). Here, the Trustee offers no persuasive evidence for following ACE I instead of ACE II, a unanimous four-justice opinion of the Appellate Division. There was no dissent in ACE II, and its holding is not the subject of debate among lower state courts. 4 To the contrary, ACE II is 4 To support its claim that Appellate Division decisions are not binding on federal courts, the Trustee cites a handful of federal decisions that have not followed intermediate state appellate decisions, on various legal issues, see Letter at 2, but those are all cases unlike this one in which the Appellate Division decision either included a dissent or was contradicted by other 5

10 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 10 of 14 only the latest of several cases to reject the Trustee s theory. See Nomura Asset Acceptance Corp. Alt. Loan Trust, Series 2005-S4, v. Nomura Credit & Capital, Inc., No /2011, 2013 WL , at *8 (N.Y. Sup. Ct., May 10, 2013); Structured Mortgage Trust v. Daiwa Finance Corp., No. 02-CV-3232, 2003 WL (S.D.N.Y. Feb. 25, 2003); Lehman Bros. Holdings, Inc. v. Evergreen Moneysource Mortg. Co., 793 F. Supp. 2d 1189, (W.D. Wash. 2011) (applying New York law). Under ACE II, the statute of limitations here started running no later than December 28, 2006, the PSA s Closing Date, when the representations and warranties made by WMC were allegedly breached, and not, as the Trustee alleges in Count I, when WMC allegedly failed to repurchase upon the Trustee s demand. The Trustee was therefore too late when it filed its Complaint more than six years later, on June 18, Moreover, ACE II s holding requires dismissal of the Complaint in its entirety. In addition to alleging that WMC failed to cure the alleged breaches or repurchase on demand (Count I), the Trustee also contends that WMC breached the PSA by failing to notify the Trustee of those same alleged breaches (Count II). Despite the conclusory assertion in the Trustee s letter that Count II survives ACE II, Letter at 3, the result is the same for both claims. Whether the Trustee s claim is framed as a failure to cure a breach or as a failure to give notice of that substantial case law. See Harem-Christensen Corp. v. M.S. Frigo Harmony, 477 F. Supp. 694, (S.D.N.Y. 1979) (finding that Court of Appeals was more likely to agree with the strong dissent by two of the panel s five justices ); Cowen & Co. v. Tecnoconsult Holdings Ltd., No. 96 Civ (BSJ), 1996 WL , at *4 nn.2-3 (S.D.N.Y. July 11, 1996) (finding decision was distinguishable and there was no consensus among lower courts in any event); Entron, Inc. v. Affiliated FM Ins. Co., 749 F.2d 127, 132 (2d Cir. 1984) (lower courts in disagreement and prior Supreme Court decision expressly envisioned a different result); Scott v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 89 Civ (MJL), 1990 WL , at *5 (S.D.N.Y. 1990) (decision rejected by several other federal courts). Another case cited by the Trustee, Hamilton v. Beretta U.S.A. Corp., 264 F.3d 21 (2d Cir. 2001), does not discuss intermediate appellate decisions at all. 6

11 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 11 of 14 breach, each claim is premised on the same underlying alleged breach of representations and warranties. Thus, if WMC breached its duty to notify, under ACE II that claim accrued when the representations and warranties allegedly were breached in December 2006, which was more than six years before the Trustee filed the Complaint. II. Under ACE II, There is No Prior Pleading to Which The Trustee s Complaint May Relate Back. Because the Trustee s Complaint is untimely, it can survive WMC s motion to dismiss only if it can relate back to the FHFA s December 27, 2012 Summons with Notice. See WMC s Mem. of Law, ECF No. 42, at 15-17; WMC s Reply Mem. of Law, ECF No. 47, at 2-6. In denying WMC s motion to dismiss, this Court held that it would be premature to resolve the relation-back question on a motion to dismiss. Order at 2. ACE II speaks dispositively to this issue as well and instructs that dismissal is appropriate indeed required here at the pleadings stage. ACE II held that a certificateholder s failure to satisfy a no-action clause makes the certificateholder s summons invalid, and thereby precludes relation-back as a matter of law. As ACE II explained, compliance with a no-action clause is a condition precedent to suit, and a certificateholder who fails to satisfy the clause lack[s] standing to commence the action in the first instance. ACE II, 2013 WL , at *1. ACE II further held that a substituted plaintiff s complaint cannot relate back to a summons that the original plaintiff lacked standing to file. Id. ( Nor does the substitution of the trustee as plaintiff permit us to deem timely filed the trustee s complaint. ). Accordingly, in ACE II, the certificateholder s summons was invalid because the certificateholder had failed to present the trustee with a proper written notice of default and the continuance thereof as required by the no-action clause, and the trustee s complaint was untimely because it could not relate back to the invalid summons. Id. 7

12 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 12 of 14 This case likewise warrants dismissal under the no-action clause in the PSA that governs here. Just as in ACE, the certificateholder (here the FHFA) filed its summons on the last day of the limitations period. ACE II, 2013 WL , at *1. And here, just as in ACE, the certificateholder failed to comply with the plain language of the clause. Among other requirements, the no-action clause required the FHFA prior to filing suit to have (1) made a written request to the Trustee to institute such action in the Trustee s own name, (2) to have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses, and liabilities to be incurred, and (3) to have given the Trustee a written notice of an Event of Default and of the continuance thereof. (PSA 10.07). The clause further (4) barred any action by the FHFA until the Trustee, for 60 days after its receipt of such notice, request and offer of indemnity shall have neglected or refused to institute any such action. Id. In this case, the Trustee has never alleged that the FHFA satisfied these requirements. That is, the Trustee does not contend that the FHFA made a written request asking the Trustee to file suit, that the FHFA offered indemnity to the Trustee, that the FHFA gave notice of an Event of Default that was continuing, or that the FHFA waited the required 60 days before bringing suit itself. The absence of these allegations is fatal under ACE II, which holds, consistent with a long line of New York authority, that a plaintiff who fails to comply with a no-action clause does not have standing to sue. Id; see also WMC Mem. of Law, ECF No. 42, at 16 (discussing no-action authority providing that such clauses are strictly construed and serve to protect those who might be sued at a certificateholder s behest). In its Letter, the Trustee nevertheless contends that the no-action clause should not bar the summons because the Trustee could have filed a case against WMC on its own or at the direction of a qualifying Certificateholder, and because the the FHFA filed the Summons as a 8

13 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 13 of 14 derivative action on behalf of the Trust and all Certificateholders. Letter at 2. These arguments cannot be sustained for the reasons given in WMC s prior briefing. WMC s Reply Mem. of Law, ECF No. 47, at 2-6. Moreover, exactly the same circumstances were present in ACE II. The parties contract in ACE also allowed the Trustee to sue with or without certificateholder direction. See PSA 9.01(iii), 9.02(a)(iii)-(iv), ACE I, No /2012, NYSCEF No. 8 Ex. A. 5 And the summons filed by the certificateholder in ACE also purported to bring a derivative action on behalf of the trust. See Summons With Notice, ACE I, No /2012, NYSCEF No. 1 (Mar. 28, 2012). 6 ACE II held that the summons was invalid nonetheless. Because it is undisputed that the no-action clause was not satisfied here, the FHFA lacked standing to commence the action on behalf of the trust, and the Trustee s Complaint cannot relate back to the FHFA s summons under ACE II. III. If This Court Does Not Dismiss the Complaint, It Should Stay This Case Pending Any Appeal to the New York Court of Appeals. Dismissal is the proper course under ACE II, but WMC respectfully requests in the alternative that this Court should at a minimum stay proceedings pending the resolution of any appeal in ACE II to the New York Court of Appeals. Any motion for leave to appeal to the Court of Appeals is due by January 22, A stay pending the resolution of any appeal would be an appropriate exercise of judicial discretion because it would avoid unnecessary discovery and other proceedings regarding claims and other proceedings currently deemed untimely under the rule announced by the Appellate Division. See, e.g., Alcan Aluminum Ltd. v. Franchise Tax Bd., 539 F. Supp. 512, (S.D.N.Y. 1982) (staying action where the case involved 5 For the Court s convenience, a true and correct copy of the relevant ACE contract provisions is attached hereto as Appendix C. 6 For the Court s convenience, a true and correct copy of the ACE Summons with Notice is attached hereto as Appendix D. 9

14 Case 1:13-cv AKH Document 58 Filed 12/31/13 Page 14 of 14 uncertainty as to the interpretation of state law and similarly situated corporations were already seeking review by highest state court and Supreme Court of the United States). CONCLUSION For the foregoing reasons, as well as those provided in WMC s Memorandum and Reply Memorandum of Law in Support of its Motion To Dismiss, WMC respectfully requests that this Court grant this motion and dismiss the Complaint as untimely or, at a minimum, stay this proceeding pending resolution of any appeal in ACE II by the New York Court of Appeals. Dated December 31, 2013 Respectfully Submitted, s/ Stephen L. Ascher Stephen L. Ascher JENNER & BLOCK LLP 919 Third Avenue New York, NY Phone: Fax: sascher@jenner.com Paul M. Smith Matthew S. Hellman (pro hac vice) JENNER & BLOCK LLP 1099 New York Avenue, NW Washington, DC Phone: Fax: psmith@jenner.com mhellman@jenner.com Barbara S. Steiner (pro hac vice) Megan B. Poetzel (pro hac vice) JENNER & BLOCK LLP 353 N. Clark St. Chicago, IL Phone: Fax: bsteiner@jenner.com, mpoetzel@jenner.com 10