FILED: NEW YORK COUNTY CLERK 06/12/2013 INDEX NO /2012 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 06/12/2013

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1 FILED: NEW YORK COUNTY CLERK 06/12/2013 INDEX NO /2012 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 06/12/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HOME EQUITY MORTGAGE TRUST SERIES , by U.S. BANK NATIONAL ASSOCIATION, solely in its capacity as Trustee, Plaintiff, Index No /2012 Motion Seq. #003 -against- DLJ MORTGAGE CAPITAL, INC., and SELECT PORTFOLIO SERVICING, INC., Defendants. DEFENDANT SELECT PORTFOLIO SERVICING, INC. S REPLY IN FURTHER SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO CPLR 3211 Barry S. Levin (admitted pro hac vice) Darren S. Teshima (admitted pro hac vice) ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, California Tel.: (415) Fax: (415) Lori Lynn Phillips ORRICK, HERRINGTON & SUTCLIFFE LLP 701 Fifth Avenue, Suite 5600 Seattle, Washington Tel.: (206) Fax: (206) John Ansbro Richard A. Jacobsen ORRICK, HERRINGTON & SUTCLIFFE LLP 51 West 52nd Street New York, New York Tel.: (212) Fax: (212) Attorneys for Defendant Select Portfolio Servicing, Inc.

2 TABLE OF CONTENTS Page(s) I. INTRODUCTION...1 II. ARGUMENT...2 A. The Trust Does Not Have Standing...2 B. Plaintiff Fails to State a Claim for Breach of Contract Against SPS Plaintiff Has Not Alleged Failure by SPS to Notify the Trustee of Breaches of Representations and Warranties Under the PSA, the Trustee Is Not Indemnified by SPS for This Case...4 C. Plaintiff s Consequential and Rescissory Damages Claims Must Be Dismissed...5 III. CONCLUSION...5 -i-

3 TABLE OF AUTHORITIES Page(s) Cases Lublin Corp. v. United States, 106 Fed. Cl. 669 (2012)...4 MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 105 A.D.3d 412 (1st Dep t 2013)...2, 5 Miller Inv. Trust v. Morgan Stanley & Co., 879 F. Supp. 2d 158 (D. Mass. 2012)...2 UBS Commercial Mortg. Trust 2007-FL1 v. Garrison Special Opportunities Fund L.P., 33 Misc. 3d 1204(A), 2011 WL (Sup. Ct. N.Y. Cnty. 2011)...2 Williams v. Steuart Motor Co., 494 F.2d 1074 (D.C. Cir. 1974)...4 Statutes CPLR ii-

4 Defendant Select Portfolio Servicing, Inc. ( SPS ) respectfully submits this Reply in Further Support of Its Motion to Dismiss Pursuant to CPLR I. INTRODUCTION Plaintiff s Complaint makes clear that this case is not about deficient loan servicing; all causes of action stem from Plaintiff s core contention that DLJ violated certain representations and warranties regarding individual loans in the mortgage-backed securitization at issue. Plaintiff s Opposition does not explain why SPS, one of the two Servicers for the Transactions at issue in this case, is a proper defendant here, or why the Trust, which is not a party to the PSA and which does not have capacity to sue, is the proper plaintiff. No amount of reliance on lenient pleading standards can rescue Plaintiff s allegations here, and each claim against SPS should be dismissed. SPS is under no contractual obligation to investigate DLJ s compliance with its loan-level representations and warranties. Plaintiff does not contend otherwise, but its allegations nevertheless attempt to impose liability on SPS for supposed breaches by DLJ. Plaintiff cannot seek refuge in vague pleading about what SPS likely would have done in the course of servicing the loans, because the Trustee actually has knowledge of loan servicing. Plaintiff has not pleaded facts sufficient to show servicing activities could possibly reveal breaches of representations and warranties. And Plaintiff does not even respond to SPS s citation to documentary evidence contained in the very contract Plaintiff sues on, affirmatively establishing that Plaintiff s conjectural view of loan servicing and the loan modification process is counterfactual and contradicted by the Trustee s own knowledge. Plaintiff s claim for indemnification from SPS fails because the Trustee is not entitled to indemnification for costs incurred in this case allegedly brought at the behest of Certificateholders. The Complaint also fails to state a claim for indemnification because the -1-

5 Servicer s role is not to police DLJ. The indemnification provision specifies that SPS s obligations do not extend to such a case. Finally, the Opposition ignores SPS s motion to dismiss Plaintiff s claims for rescissory and consequential damages claims against SPS. The contract does not provide for consequential damages, and Plaintiff cannot seek rescissory damages, as confirmed by the First Department s recent decision in MBIA v. Countrywide and other authority. 1 II. ARGUMENT A. The Trust Does Not Have Standing The Complaint must be dismissed because it is brought by the Trust, which does not have legal capacity to sue, does not have contractual standing under the relevant PSA, and cannot make claims on behalf of the non-party Trustee. SPS s Mem. Supp. Mot. to Dismiss ( Mem. ) at 6-8. Plaintiff does not explain how the Trust is able to bring this action against DLJ for breach of a contract to which it is not a party or third-party beneficiary. Nor does it cite any authority allowing trusts to file lawsuits or trustees to avoid being stand-alone plaintiffs. Pls. Mem. Supp. Opp n to SPS s Mot. to Dismiss ( Opp n ) at 6-7. Instead, Plaintiff cites two decisions where trusts have brought lawsuits before, without any apparent challenge to the trusts standing and capacity to sue. Id. at 7 (citing UBS Commercial Mortg. Trust 2007-FL1 v. Garrison Special Opportunities Fund L.P., 33 Misc. 3d 1204(A), 2011 WL (Sup. Ct. N.Y. Cnty. 2011) (not addressing trust standing); Miller Inv. Trust v. Morgan Stanley & Co., 879 F. Supp. 2d 158 (D. Mass. 2012) (same)). Plaintiff continues to rely on its opaque allegations that the Trust is acting by the Trustee, Opp n at 6-7, despite its repeated identification of the Trust as the only Plaintiff in the 1 SPS does not concede any of the factual allegations and legal arguments raised in Plaintiff s Opposition, including (among others) erroneous statements about loan files. The Court need not address these disputes to rule on the issues presented by SPS s motion. -2-

6 action. Plaintiff s confusion regarding SPS s position before this suit was filed is irrelevant, Opp n at 7 n.4; SPS has never taken the position that the Trust is a proper party in this suit or that the Trustee can never sue SPS for breach of a contract to which they are both parties. Plaintiff appears to agree that the Trustee is the proper plaintiff to bring claims under the PSA, and the Complaint should reflect that fact. B. Plaintiff Fails to State a Claim for Breach of Contract Against SPS 1. Plaintiff Has Not Alleged Failure by SPS to Notify the Trustee of Breaches of Representations and Warranties Plaintiff next claims that SPS breached Section 2.03(f) of the PSA by failing to notify the Trustee of breaches of representations and warranties by Co-defendant DLJ. Plaintiff bases this claim on pure speculation that SPS likely discovered breaches in the course of servicing the mortgage loans in the deal. As SPS explained in its opening brief, the Trust conspicuously avoids alleging SPS actually discovered any breaches while servicing loans. The support for SPS s possible (and very much hypothetical) discovery is based on a fundamental misunderstanding of what Servicers do. In order for SPS to have discovered these alleged breaches in the course of servicing, SPS would have had to review origination files, 2 underwriting guidelines, and deal-specific representations and warranties, and then perform the legal analysis required to discover a breach and assess its materiality, all despite not having any obligation to do so under the PSA. Plaintiff does not allege that most of these events ever took place; the complaint never alleges SPS compared any mortgage loan to the originator s 2 The Complaint and Opposition use the term Origination Files, although it is never used or defined in the PSA. The PSA defines Mortgage File as the documents specified in Section 2.01(b) of the PSA, which do not include applicable underwriting guidelines or Transaction-level representations and warranties by DLJ. Phillips Aff. Supp. SPS s Mot. to Dismiss ( Phillips Aff ) Ex. 3 at 24, Contrary to Plaintiff s assertion that Section 3.07(a) charges SPS with holding and maintaining the Origination Files, Opp n at 4, that section actually requires SPS to provide the Trustee with access to the documents in its possession regarding the mortgage loans, without specifying any records or documents that SPS must possess. -3-

7 underwriting guidelines or to DLJ s representations and warranties. See Phillips Aff. Ex. 1 ( Compl. ) The failure to make these critical allegations is fatal here because of the Trustee s comprehensive understanding of how loan servicing works. Mem. at As discussed in SPS s motion, the very agreement that Plaintiff sues on contains a lengthy form used for reviewing loan modifications. Id. at 10 (discussing Phillips Aff. Ex. 7). The form discusses the factors that Servicers consider in recommending loan modifications. It does not contemplate reconsideration of the loan s compliance with underwriting guidelines at the time it was made, comparison of the loan to underwriting guidelines, reevaluation of the borrower s income at the time of underwriting, or review of the representations and warranties made by DLJ in the Transaction. Plaintiff s Opposition entirely ignores this documentary evidence that contradicts its impermissibly vague allegations. 2. Under the PSA, the Trustee Is Not Indemnified by SPS for This Case Plaintiff claims SPS must indemnify the Trustee for its costs and expenses in bringing this action. As Plaintiff acknowledges, SPS is not obligated to indemnify the Trustee for losses or expenses incurred by reason of any action of the Trustee taken at the direction of the Certificateholders. Opp n at 5 (quoting PSA). Plaintiffs allegations in this regard are straightforward and impossible to avoid: the suit is brought at the direction of certain holders (the Directing Certificateholders ) of the Home Equity Mortgage Trust Series certificates, Compl. at 1, and indemnification is sought for expenses, including attorney s fees 3 It is not clear how the cases Plaintiff cites at page 9, permitting circumstantial evidence in federal court to prove such varied claims as breach of an implied warranty for an automobile, are meant to apply here. E.g., Williams v. Steuart Motor Co., 494 F.2d 1074, 1077 (D.C. Cir. 1974) (affirming jury verdict on implied breach of warranty that automobile was fit and suitable for the ordinary purposes for which an automobile is sold and used ); Lublin Corp. v. United States, 106 Fed. Cl. 669, 677 (2012) (dismissing complaint when plaintiff s evidence at trial amount[ed] to nothing more than conjecture, speculation and surmise raising only a possibility that something may have happened ). If the Trustee does proffer a sham pleading that perpetuates the Complaint s present misunderstanding of the role of Servicers in residential mortgage-backed securitizations, its own knowledge will contradict these allegations at each future stage of the case. -4-

8 and expenses, incurred in bringing this action, id The Certificateholders allegedly directed the Trustee to bring this suit, and, in bringing this suit, the Trustee incurred fees and expenses. The PSA speaks directly to this circumstance and provides that SPS is not obligated to pay for costs the Trustee incurs at the direction of the Certificateholders. Phillips Aff. Ex. 3 at 154. Given that Certificateholders are required to offer the Trustee indemnification when requesting the Trustee file suit, see id. at 174, it makes sense that the Trustee has no additional right to indemnification from SPS in this circumstance. Additionally, SPS is also not obligated to indemnify the Trustee for losses and expenses not related to SPS s failures to perform its servicing obligations. Opp n at 11. As discussed earlier, Plaintiff s only other claim against SPS should be dismissed for failure to state a claim, which would also obviate Plaintiff s contingent indemnification claim. Moreover, SPS s servicing obligations under the PSA are to comply with Accepted Servicing Practices for mortgage loans, see Phillips Aff. Ex. 3 at 80, not to police DLJ s actions, as discussed above. C. Plaintiff s Consequential and Rescissory Damages Claims Must Be Dismissed SPS also moved to dismiss Plaintiff s claims for consequential and rescissory damages based on the claim for the alleged failure to notify. Mem. at 11. The Opposition ignores these arguments entirely. Under MBIA Insurance Corp. v. Countrywide Home Loans, Inc., 105 A.D.3d 412, 413 (1st Dep t 2013), and the other authority incorporated by reference in SPS s Memorandum at 11, 4 Plaintiff s claims for these prohibited damages should be dismissed. III. CONCLUSION Because Plaintiff lacks standing and because its claims are based on an incorrect reading of the PSA, and for the other reasons set forth above, SPS respectfully requests that the Court dismiss the Complaint in its entirety, or at minimum that the Court dismiss all claims against 4 Citing Co-defendant DLJ s Mem. Supp. Mot. to Dismiss, Doc. No. 17, at 18-20; see also Co-defendant DLJ s Reply in Further Supp. of Its Mot. to Dismiss, Doc. No. 61, at

9 SPS, specifically the sixth and seventh causes of action, and claims for rescissory and consequential damages. Dated: June 12, 2013 Orrick, Herrington & Sutcliffe LLP By: s/ Lori Lynn Phillips Lori Lynn Phillips 701 Fifth Avenue, Suite 5600 Seattle, Washington (206) John Ansbro Richard A. Jacobsen 51 West 52nd Street New York, New York (212) Barry S. Levin (admitted pro hac vice) Darren S. Teshima (admitted pro hac vice) The Orrick Building 405 Howard Street San Francisco, California (415) Attorneys for Defendant Select Portfolio Servicing, Inc. OHSUSA:

FILED: NEW YORK COUNTY CLERK 06/03/2013 INDEX NO /2012 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/03/2013

FILED: NEW YORK COUNTY CLERK 06/03/2013 INDEX NO. 653787/2012 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 06/03/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HOME EQUITY MORTGAGE TRUST SERIES