Lawsuit for Breach of Representations Relating Securitization of Mortgage Loans in New York
In ACE Securities Corp. v. DB Structured Products, Inc., 112 A.D.3d 522, 977 N.Y.S.2d 229 (1st Dept 2013), aff'd, ACE Securities Corp. v. DB Structured Products, Inc., 25 N.Y.3d 581, 15 N.Y.S.3d 716, 36 N.E.3d 623 (2015), plaintiff sued for breach of representations and warranties relating to the securitization of mortgage loans under a mortgage loan agreement and a pooling and servicing agreement.
The First Department held that the certificate holders did not have standing to sue derivatively.
The court reasoned that "the 'no-action' clause in 12.03 of the PSA sets forth as a condition precedent to such an action that the certificate holders provide the trustee with 'a written notice of default and of the continuance thereof.'"
The court stated that "the defaults enumerated in the PSA [as enumerated in Section 7 of the PSA in that case] concern failures of performance by the servicer or master servicer only."
Therefore, the PSA did not permit certificate holders to issue a notice of default relating to the sponsor's breach of representations.
Rejecting the plaintiff's claim that the cause of action accrued when the seller refused the Trustee's repurchase demand, the Court held that the cause of action accrued "when any breach of the representations and warranties contained in the MLP A occurred." (ACE, 112 AD3d at 523.)
Although the Court stated that this date was the "closing date" of the MLPA, the Court was not called upon determine whether the representations were made on the "as of" date of the contract as opposed to the closing date.The Court of Appeals resolved an issue of widespread importance in the RMBS litigation regarding the statute of limitations for a breach of contract claim against a securitizer (there, a sponsor) under a repurchase protocol.
ACE involved an action commenced by certificateholders by the filing of a summons with notice just prior to the expiration of the statute of limitations, and the Trustee's filing of a complaint after the expiration.
The Court determined that "the Trust's cause of action against the sponsor for breach of representations and warranties accrued at the point of contract execution," when the representations and warranties were made, and not when the sponsor failed to comply with a repurchase demand. (Id. at 589.)
The Court further held that the action should be dismissed because the certificateholders that brought the action "failed to comply with the contractual condition precedent to suit; namely, affording the sponsor 60 days to cure and 90 days to repurchase from the date of notice of the alleged non-conforming loans." (Id.)
In view of the failure to fulfill this repurchase demand condition precedent, the Court expressly declined to address the issues of the standing of the certificateholders and the relation back of the trustee's complaint, which the Appellate Division had addressed in an alternative holding. (Id. at 599.)
The Appellate Division held that the defendant's motion to dismiss the complaint should have been granted based on the certificateholders' failure to comply with the condition precedent to suit. (112 AD3d at 523.)
The Appellate Division also held that "the certificate holders lacked standing to commence the action on behalf of the trust." (Id.)
As described by the Appellate Division, the no-action clause authorized certificateholders to commence an action only upon a "written notice of default" to the Trustee and "the continuance thereof."
The PSA, however, defined Events of Default only as defaults of the servicers, and not as breaches by the sponsor of representations and warranties. (Id.)
Distinguishing cases in which the parties had been found sufficiently related to permit substitution under the relation back doctrine, the Appellate Division further held that the substitution of the trustee as plaintiff did not "permit the Court to deem timely filed the trustee's complaint." (Id.)