JPMC and Wamu MTD MPSJ
JPMC and Wamu MTD MPSJ
Plaintiff,
Defendants.
Robert A. Sacks (admitted pro hac vice) Brent J. McIntosh (D.C. Bar No. 991470)
Stacey R. Friedman (admitted pro hac vice) Henry C. Quillen (D.C. Bar No. 986686)
SULLIVAN & CROMWELL LLP SULLIVAN & CROMWELL LLP
125 Broad Street 1701 Pennsylvania Avenue, N.W.
New York, New York 10004 Washington, D.C. 20006
Telephone: (212) 558-4000 Telephone: (202) 956-7500
Facsimile: (212) 558-3588 Facsimile: (202) 293-6330
TABLE OF CONTENTS
Page
BACKGROUND .................................................................................................................4
ARGUMENT .......................................................................................................................8
D. For Most of the Agreements on Which Deutsche Bank Relies, the
Statute of Limitations Bars Its Claims. ......................................................25
A. There Is No Bona Fide Dispute That the FDIC Retained All
Mortgage Origination Liabilities Not Having a “Book Value” as of
WMB’s Closing. ........................................................................................28
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CONCLUSION ..................................................................................................................33
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TABLE OF AUTHORITIES
Page(s)
CASES
* Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009) .............................................................................................8, 10
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* Marino v. Vunk,
835 N.Y.S.2d 47 (N.Y. App. Div. 2007) .........................................................13, 18, 19
Raine v. Reed,
14 F.3d 280 (5th Cir. 1994) .........................................................................................29
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Shirk v. Garrow,
505 F. Supp. 2d 169 (D.D.C. 2007) .........................................................................8, 16
Terwilliger v. Terwilliger,
206 F.3d 240 (2d Cir. 2000)...........................................................................................8
Vernon v. RTC,
907 F.2d 1101 (11th Cir. 1990) ...................................................................................29
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memorandum of points and authorities in support of their motion to dismiss the Amended
Complaint of Deutsche Bank National Trust Company (“Deutsche Bank”) and motion for
PRELIMINARY STATEMENT
Deutsche Bank purports to be trustee for trusts that own or have owned
over half a million individual mortgage loans, each with its own history of origination
and performance. The loans were sold into the trusts without recourse, meaning that the
loan sales were final and not to be unwound except in specified circumstances. One
circumstance the parties expressly contemplated in the sale agreements was that some of
the loans did not fulfill representations and warranties the sellers made regarding each
loan. The agreements governing the loan sales expressly provide that if a loan breaches a
representation or warranty and the breach had a material and adverse effect on the value
of the loan and the breach cannot be cured, there is a “sole and exclusive” specific
performance remedy—the loan itself must be bought out of the trust, or “repurchased,”
by the entity that deposited or sold it into the trust. Absent these showings, there is no
the sole remedy provided under the Agreements, Deutsche Bank seeks a monetary award
equal to repurchase of countless unspecified loans without regard for these contractual
by alluding to 1,031 loan-specific representations and warranties and 394 obligations (for
a total of 1,425 provisions) that are contained in 179 different agreements that govern 99
“primary trusts” and 28 “secondary trusts”1 that own or have owned over half a million
loans originated over the past 15 years that may (or may not) have been “materially and
adversely” affected by breaches that may (or may not) have occurred, and therefore
WMMSC or some combination thereof—are liable to the trusts for damages of $6 to $10
billion.
While Deutsche Bank uses very large numbers, the most important
number here is actually zero. Zero is the number of contractual provisions that Deutsche
Bank actually identifies as having been breached with regard to a specific loan. Zero is
the number of breaches Deutsche Bank even tries to show had a material and adverse
effect on a specified loan so as to give rise to the contractual right to bring the notice and
repurchase claims it seeks to pursue. And zero is the amount of damages Deutsche Bank
can in any event seek to recover on the back of such purported claims, given that the
“sole and exclusive” remedy contained in each of the 179 different contracts at issue is
loan-by-loan repurchase.
These omissions are not mere pleading defects—though they are certainly
that. These omissions are contractual impediments to Deutsche Bank’s claims: The
Deutsche Bank agreements all feature provisions strictly limiting the remedy available
1
As explained at footnote 6, the trusts that Deutsche Bank refers to as the “primary
trusts” are the trusts at issue here. The number of agreements that govern the trusts is not
known for certain, but Deutsche Bank filed with the Court 179 agreements that purport to
govern the trusts.
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for breaches of representations and warranties about mortgage loans in three critical
ways. First, breaches of representations and warranties are not actionable in the
breaches are not actionable absent a demonstrable material and adverse effect on the
value of the particular loan in question. And third, even in the event of a breach that has
a material and adverse effect on the value of a particular loan, the breach is not actionable
loan, a contractual limitation that courts in New York and Delaware routinely enforce.
contractual and legal limitations should lead to dismissal of the Amended Complaint for
four reasons: (1) Deutsche Bank, by its own admission, has not identified even one
mortgage loan as to which any Defendant has breached any provision, let alone a breach
that had a material and adverse effect on the value of that loan; (2) the remedy being
sought, money damages, is contractually impermissible; (3) the separate claim arising
from the assertion that Deutsche Bank was denied access to 61 loan files does not give
rise to any liability or provide any legal basis for a breach of contract claim on the more
than half a million loans at issue in this litigation; and (4) Deutsche Bank has pleaded no
facts to suggest its claims comply with the applicable statutes of limitations that bar
Moreover, not only are these claims improperly pleaded, but any liability
for failure to repurchase loans remains with the FDIC. In the Purchase and Assumption
Agreement between the JPMC and the FDIC (the “P&A Agreement”), by which JPMC
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Mutual Bank (“WMB”), JPMC assumed only those liabilities that had a “Book Value” on
WMB’s “Books and Records” when WMB was closed. In doing so, JPMC took on
action, Deutsche Bank and the FDIC seek to dramatically increase the scope of the
liabilities JPMC assumed, in direct contravention of the explicit terms of the P&A
Agreement. But under well-established law, an unliquidated claim for damages, such as
Deutsche Bank’s, had no Book Value and was not reflected on WMB’s Books and
Records. Thus, JPMC never assumed any liability for Deutsche Bank’s claims from the
FDIC under the P&A Agreement. And if for some reason JPMC were deemed to have
assumed such liability by some means other than express assumption under the P&A
Agreement, then under different provisions of the same agreement the FDIC must
indemnify JPMC in full. For these reasons, which are evident from the plain language of
the P&A Agreement, partial summary judgment should be granted on Deutsche Bank’s
declaratory judgment claim, finding that the FDIC bears all liability to Deutsche Bank—
BACKGROUND
This case involves a business in which WMB and its subsidiaries and
Deutsche Bank all participated: securitizing and servicing mortgage loans. Although
every mortgage-backed securitization substantively differs from every other, most share
the same general structure. The following example shows how WMB, its subsidiaries,
and Deutsche Bank worked together to create the mortgage-backed securities at issue
here.
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loan. In this example, WMB issues a mortgage to a borrower. WMB now owns the
mortgage loan and thus is entitled to the borrower’s future payments of principal and
interest. WMB then agrees to sell the loan, and others like it, to its affiliate, WMMSC.
(“MLPA”). Under an MLPA, the company selling the loans is the “Seller,” and the
company purchasing the loans is the “Purchaser.” And the Seller (here WMB) makes
representations and warranties to the buyer (here WMMSC) regarding various aspects of
Next, WMMSC and Deutsche Bank enter into a Pooling and Servicing
Agreement (“PSA”). (See, e.g., WA05A1,2 PSA (Docket Item 43-14).) Under the PSA,
WMMSC sells the mortgage loans to a trust for which Deutsche Bank is the Trustee. (Id.
selling. For example, “[a]s of the Closing Date, there is no late assessment for delinquent
taxes outstanding against any Mortgaged Property.” (Id. § 2.08(v).)3 To protect a variety
of accounting and tax benefits in connection with the sale, the loans are sold “without
recourse.” (Id. § 2.04.) Because the sale is non-recourse, the Depositor cannot at its
2
Abbreviations such as “WA05A1” refer to individual trusts as listed in Exhibit 1A
to the Amended Complaint and in Deutsche Bank’s filings of the relevant agreements
with the Court. (Docket Items 34-44.)
3
In some transactions, including the “Long Beach” transactions listed in
Exhibit 1A to the Amended Complaint, these representations and warranties are made in
the MLPA by the Seller. For consistency, JPMC will refer to these representations and
warranties as the Seller’s, although who has the ultimate obligation varies among the
agreements.
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discretion remove the loans from the trust, even if it would be profitable to do so.
circumstances.
The terms of the PSAs contemplate the possibility that some of the
mortgage loans sold to the trust may be found to breach the Seller’s representations and
warranties, and that some of these breaches may materially and adversely affect the value
of a particular mortgage loan or the interests of the trust in that loan. (Id. § 2.08.) In
general, a party that discovers such a breach must notify the other parties. (Id.) Once
such a material and adverse breach is discovered and any necessary notice is given, the
PSA provides for a very specific—and very loan-specific—process for remedying the
warranty in a manner that has a material and adverse effect on the value of the loan, all of
the PSAs provide for three—and only three—remedies: The Seller can (1) cure the
breach, (2) substitute another mortgage loan into the trust in place of the breaching loan,
All of the PSAs are explicit that these are the sole and exclusive remedies
for breaches of representations and warranties. At some point in time—usually two years
longer available, again to abide by certain accounting rules and benefit from certain tax
treatment. (Id. § 2.07.) Thus, in instances in which the Seller is unable to cure the defect
in the loan (often by providing missing documentation), it is correct to say that, after the
substitution period has passed, repurchase is the lone remaining remedy for breaches of
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While this structure is consistent from PSA to PSA, other terms of the
PSAs differ. For example, in some PSAs, the obligation to repurchase a loan arises when
any party notifies the Seller (or Depositor) of a breach that has a material and adverse
effect on the value of the underlying loan. (E.g., id.) In other PSAs, only notice by the
Trustee will trigger the repurchase obligation. (E.g., LB0602, PSA § 2.03(a) (Docket
Item 39-25).)
for subprime mortgages (which were included in many of the securitizations at issue
here), led to losses for the trusts as borrowers became unable to repay their mortgage
loans. On September 25, 2008, WMB was closed by federal regulators and placed into
receivership with the FDIC. On the same day, the FDIC sold virtually all of WMB’s
assets and certain of its liabilities to JPMC pursuant to the P&A Agreement. (Amended
Complaint Ex. 2 (P&A Agreement) §§ 2.1, 3.1.) This transaction allowed WMB’s
branches to continue serving the public, including its millions of depositors, without any
On December 30, 2008, Deutsche Bank filed a proof of claim with the
FDIC as receiver for WMB, claiming that WMB and its affiliates breached PSAs by,
among other things, failing to notify Deutsche Bank of breaches of the Seller’s
Complaint Ex. 3.) The FDIC implicitly denied Deutsche Bank’s proof of claim by
declining to act on it, and Deutsche Bank filed a Complaint against the FDIC, making
arguments similar to those in its proof of claim. (Docket Item 1.) After the FDIC moved
to dismiss the Complaint on the grounds that JPMC had assumed liability for these claims
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under the P&A Agreement and that the Complaint failed to plead sufficiently breaches of
contract, Deutsche Bank filed its Amended Complaint, naming JPMC and WMMSC as
ARGUMENT
because the Amended Complaint does not “contain sufficient factual matter, accepted as
true, to state a claim for relief that is ‘plausible on its face.’” Badibanga v. Howard Univ.
Hosp., 679 F. Supp. 2d 99, 101 (D.D.C. 2010) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Indeed, the Amended Complaint is insufficient “to understand
whether a valid claim is alleged and if so what it is.” Shirk v. Garrow, 505 F. Supp. 2d
169, 172 (D.D.C. 2007) (internal quotation marks and citation omitted).4
More specifically, to state a claim for breach of contract under New York
law, a plaintiff must timely allege: (1) a contract; (2) performance of the contract by one
party; (3) breach of the contract by the other party; and (4) resultant harm to the plaintiff.
Terwilliger v. Terwilliger, 206 F.3d 240, 245-46 (2d Cir. 2000). Under Delaware law, a
plaintiff must similarly allege, before the statute of limitations has expired: (1) the
existence of the contract; (2) the breach of an obligation imposed by that contract; and
(3) resultant harm to the plaintiff. VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d
4
Although for purposes of such a motion, the factual allegations in the Amended
Complaint are assumed to be true, the facts alleged here are not sufficient to the extent
they fail “to raise a right to relief above the speculative level.” Badibanga, 679
F. Supp. 2d at 101 (quoting Twombly, 550 U.S. at 555). Likewise, the pleadings that “are
no more than conclusions, [including legal conclusions,] are not entitled to the
assumption of truth.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
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606, 612 (Del. 2003).5 Here, Deutsche Bank basically asserts two breach of contract
claims (a notice/repurchase claim and an access claim), both of which are legally
First, Deutsche Bank assumes that Defendants must have breached some
of the “Representations and Warranties” regarding the mortgage loans, “which breaches
had a material and adverse effect on the value of the mortgage loans in the Trusts or the
interests of the Trusts therein.” (Amended Complaint ¶ 81.) However, the Amended
Complaint does not identify any loan that it alleges breached any representation and
warranty in any PSA. Rather, Deutsche Bank simply lists 1,425 contractual provisions
spread across the 179 different Agreements that might (or might not) have been violated
as to any of the more than half a million loans contained in the trusts.6 Deutsche Bank
does not identify a single loan as to which any representation or warranty has been
breached; a single loan as to which such a breach had a material and adverse effect on the
value of the loan; or a single loan as to which Defendants have failed to comply with an
extant notice or repurchase or cure obligation. Deutsche Bank’s speculation that there
5
New York or Delaware law governs all but three of the Agreements. The Pooling
and Servicing Agreements for the trusts listed as WA0107, WA01A3 and CO9201 in
Exhibit 1A to the Amended Complaint are governed by California law.
6
Some of these Agreements govern what Deutsche Bank calls the “Secondary
Trusts,” which were allegedly also “damaged because their performance is dependent, in
whole or in part, on the performance of the Primary Trusts.” (Amended Complaint ¶ 85;
see also id. ¶ 3.) But the Amended Complaint does not begin to explain this relationship
or cite a single relevant provision governing the Secondary Trusts. Because there is no
way to assess on the face of the Amended Complaint the role or rights or assertions of the
Secondary Trusts and Defendants should not have to guess at their potential liability, all
of Deutsche Bank’s claims relating to the Secondary Trusts should be dismissed. King v.
Pierce Assocs., Inc., 601 F. Supp. 2d 245, 248 (D.D.C. 2009) (observing that vague and
general allegations do not raise a right to relief above the speculative level, which is
insufficient to state a claim).
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must have been a breach of contract—notwithstanding its failure to supports its guess
with factual allegations—is not entitled to the presumption of truth. See Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1950 (2009). Deutsche Bank is speculating, not pleading—a
tactic that cannot survive a motion to dismiss. See Twombly, 550 U.S. at 555.
Second, with regard to the repurchase claim, Deutsche Bank seeks money
all contain a provision stating that repurchase of individual mortgage loans on a loan-by-
loan basis is the sole and exclusive remedy for breaches of representations and
warranties. Because Deutsche Bank seeks a remedy to which it is not entitled, it has
arising from the allegation that it was denied access to loan files for 61 loans. (Amended
Complaint ¶¶ 81-85.) Notably, these 61 loans are contained in only three of the 99 trusts
Deutsche Bank lists, and so this claim is not even raised as to the tens of thousands of
other loans in those three trusts, or as to any loan in the 96 other trusts. And while
Deutsche Bank posits that, because of this limited access claim, it should be excused
from its failure to plead a valid repurchase claim with regard to any of the more than half
a million other loans potentially implicated by its Complaint, there is no legal basis for
this request. Indeed, the access claim cannot be the basis for separate recovery because
the denial of access does not give rise to independent harm to the trusts.
dismissed as time barred. Most of the representations and warranties that Deutsche Bank
claims to have been breached were made as of a date well outside the applicable statute
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of limitations period—three years in Delaware, six years in New York. Some were made
as long ago as 1992, and nothing in the pleadings provides a legal basis for disregarding
they must be enforced as written to effect the allocation of risks and benefits decided
upon by the parties. Any assessment of Deutsche Bank’s contract claim should therefore
start with the limitations of those Agreements. See Oppenheimer & Co. v. Oppenheim,
Appel, Dixon & Co., 660 N.E.2d 415, 421 (N.Y. 1995); NACCO Indus., Inc. v. Applica
Inc., 997 A.2d 1, 35 (Del. Ch. 2009). With respect to Deutsche Bank’s notice and
repurchase claims, the Agreements were written to expressly limit when such claims
could be pursued. Three fundamental limitations appear in some form in each of the
Agreements:
7
For the breaches that Deutsche Bank alleges, substitution is no longer available,
leaving cure or repurchase as Deutsche Bank’s sole remedies. The Agreements prohibit
substitution of mortgage loans beginning two years after the closing of the securitization.
(See, e.g., LB0602, PSA §§ 2.03(d), 10.01(b); WA05A1, PSA § 2.07.)
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true or false only as to particular loans. (E.g., LB0602, MLPA § 6 (“The Seller hereby
represents and warrants to the Purchaser, that as of the Closing Date with respect to each
Mortgage Loan . . .” (emphasis added)).) As a result, the notice and repurchase claims
are thus loan-level claims, and the Agreements simply contain no provision for
warranty gives rise to a notice or repurchase obligation. Rather, the obligation to give
notice or cure or repurchase arises only when the breach “materially and adversely
affects” the value of the underlying loan.8 (LB0602, PSA § 2.03(a); LB0602, MLPA
§ 7(a); WA05A1, PSA § 2.08.) Only then, after establishing that a breach that had a
material and adverse effect on a specified loan has gone uncured, does the obligation to
“repurchase such Mortgage Loan” even arise. (LB0602, PSA § 2.03(a).) And that
exclusive repurchase remedy—a remedy enforced by the courts—is the Trustee’s “sole
8
Merger and acquisition agreements often use the concept of a “material adverse
effect” to allocate risk among the parties, much as the Pooling and Servicing Agreements
do here. When a remedy depends on a material and adverse effect, a breach of a
representation or warranty “accomplishes nothing by itself.” Frontier Oil Corp. v. Holly
Corp., No. Civ. A. 20502, 2005 WL 1039027, at *35 (Del. Ch. 2005). The breach must
have a material and adverse effect to support a cause of action. Id.
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loan-specific adversity to merit the sole and exclusive remedy of repurchase of the
allegedly offending loan. These essential elements for any notice or repurchase claim
stand in stark contrast to Deutsche Bank’s blanket pleadings, which fail to meet any of
Agreements by merely listing more than one thousand provisions and suggesting that
each of them may or may not have been breached. See Marino v. Vunk, 835 N.Y.S.2d
47, 49 (N.Y. App. Div. 2007) (“Vague and conclusory allegations are insufficient to
sustain a breach of contract cause of action.”); Wal-Mart Stores, Inc. v. AIG Life Ins. Co.,
901 A.2d 106, 116 (Del. 2006) (affirming the dismissal of a breach of contract claim
where the operative pleading “[did] not identify any express contractual obligation that
M & T Bank Corp. v. Gemstone CDO VII, Ltd., 891 N.Y.S.2d 578, 581 (N.Y. App. Div.
2009) (dismissing breach of contract claims against Deutsche Bank Securities, Inc. due to
plaintiff’s failure to set forth “the provisions of the contract upon which the claim is
simply lists the representations, warranties and obligations from one deal and represents
to the Court through a chart that more than one thousand provisions from 98 other deals
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are identical. That is incorrect; Deutsche Bank’s “allegations” regarding what provisions
may have been breached are rife with vagueness and erroneous suppositions.9 For
example:
issue. In its list of obligations under the Agreements (Exhibit 7 to the Amended
Complaint), Deutsche Bank identifies Section 2.04(b) of the Pooling and Servicing
Agreement for nearly every Long Beach trust as the “Notice Obligation.” But that
loan files. Instead, it describes the Master Servicer’s obligation to give notice if it does
not have the legal capacity to fulfill its obligations. (E.g., LB0602, PSA § 2.04(b).) The
failure to properly identify the terms that are alleged to have been breached is grounds for
dismissal. See Atkinson v. Mobil Oil Corp., 614 N.Y.S. 2d 36, 37 (N.Y. App. Div. 1994)
(“In order to plead a breach of contract cause of action, a complaint must allege the
provisions of the contract upon which the claim is based.”); Wal-Mart Stores, 901 A.2d at
116 (same).
exemplary representation a provision stating that “The Loan-to-Value Ratio for each
Mortgage Loan was no greater than 100% at the time of origination.” (Amended
Complaint ¶ 46(j).) But in certain of the Agreements, this same representation is limited
9
On a motion to dismiss, the Court can rely on documents incorporated into the
pleadings, see Lipton v. MCI WorldCom, Inc., 135 F. Supp. 2d 182, 186 (D.D.C. 2001),
and thus can reject assertions Deutsche Bank makes that are inconsistent with the
documents Deutsche Bank purports to characterize.
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so that the Seller is contractually entitled to rely on the appraisal of the property: “Based
[Mortgage Loan] had a current Loan-to-Value ratio greater than 95%.” (WA02A2, PSA
§ 2.08(xxv) (Docket Item 42-7).)10 Because there are no allegations in the Amended
that is limited to the Seller’s knowledge or understanding with regard to a particular loan
at the time of origination, dismissal is appropriate. See Atkinson, 614 N.Y.S. 2d at 37;
• Deutsche Bank does not tie any of its purported factual allegations
Mutual in 2007 and 2008, no effort is made to explain why those allegations would be
relevant to representations and warranties made before 2007 or why the Court should or
could assume that such allegations necessarily connote a breach of any representations
and warranties that were made for the particular loans at issue here. And even as to 2007
and 2008, Deutsche Bank’s allegations are insufficient. For example, Deutsche Bank
asserts that alleged problems with underwriting may have resulted in loans being
originated that did not comply with the underwriting guidelines and then speculates that
(Amended Complaint ¶ 70.) These vague allegations do not establish any loan-specific
10
See Tsereteli v. Residential Asset Securitization Trust, 692 F. Supp. 2d 387, 393
(S.D.N.Y. 2010) (“[N]either an appraisal nor a judgment that a property’s value supports
a particular loan amount is a statement of fact. Each is instead a subjective opinion based
on the particular methods and assumptions the appraiser uses.”).
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breach, particularly where the parties expressly recognized that “[i]t is expected that a
substantial number of the Mortgage Loans to be included in the Mortgage Pool will
Ex. B), at S-39.)11 Without more specificity, Defendants cannot adequately defend the
claims against them, and the Amended Complaint cannot stand. Shirk v. Garrow, 505 F.
Supp. 2d 169, 172 (D.D.C. 2007) (finding that dismissal is appropriate if the defendant
give notice prior to repurchase obligations arising. Under many of the Pooling and
Servicing Agreements at issue here, the Seller’s repurchase obligation only arises 90 days
after the Trustee’s delivery of notice of breaches and the Seller is given an opportunity to
cure. (E.g., LB0602, PSA § 2.03(a).)12 There is a good reason for this requirement, with
which Deutsche Bank failed to comply: The Trustee should have found an actual breach,
11
These prospectuses were issued as part of the underlying securitizations, filed
publicly with the Securities and Exchange Commission and clearly reflect the parties’
intent as to the underwriting exceptions permitted in the PSAs. The Court may consider
these public documents, even on a motion to dismiss. Ass’n of Am. Med. Colls. v.
Princeton Review, Inc., 332 F. Supp. 2d 11, 15 (D.D.C. 2004) (“In evaluating a Rule
12(b)(6) motion to dismiss, the court is limited to considering [inter alia] . . . matters of
public record . . . .” (citations omitted)).
12
This provision is common among the Pooling and Servicing Agreements
governing the Long Beach trusts (numbered 1-21, 23-26, and 28-42 in Exhibit 1A to the
Amended Complaint). In other Agreements, the repurchase obligation also arises when
the Seller discovers a breach or is notified of the breach by the Servicer. (E.g., WA05A1,
PSA § 2.08.) For the reasons discussed above in Section I.A.1, Deutsche Bank has not
made any allegations suggesting that any such breach existed, much less that the breach
was known to the Seller or Servicer.
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and the Seller should have an opportunity to address the alleged breach before anyone is
hauled into court. Accordingly, when interpreting agreements similar to those at issue
here, multiple courts have held that parties must follow the contractually agreed notice
process to trigger a repurchase obligation. In Morgan Guaranty Trust Co. of New York v.
Bay View Franchise Mortgage Acceptance Co., No. 00-cv-8613, 2002 WL 818082
(S.D.N.Y. Apr. 30, 2002), for example, the court explained that notice is required
because “[o]therwise, there would be ‘an incentive for [trustees] to litigate before
knowing for certain that they have suffered any injury.’” Id. at *5 (citing Vista Co. v.
Columbia Pictures Indus., Inc., 725 F. Supp. 1286, 1295 (S.D.N.Y.1989)). Accordingly,
the court held that the trustee’s failure to give prompt notice of a breach of
representations and warranties meant that “it cannot now hold [the defendant]
accountable for this breach.” Id. at *10. Likewise, the court in Central Mortgage Co. v.
Morgan Stanley Mortgage Capital Holdings LLC dismissed claims that a seller breached
an agreement similar to those at issue here because the plaintiff had not fulfilled its notice
obligations by “simply list[ing] the contract sections that were, for some unspecified
reason, supposedly violated.” No. 5140-VCS, 2010 WL 3258620, at *7 (Del. Ch. Aug.
19, 2010).
breached should result in dismissal of the Amended Complaint, these are not ad hoc
pleading problems. These problems evidence that Deutsche Bank’s approach to its
purported contract claim is untenable given the actual terms of the Agreements. The
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parties, such as Deutsche Bank, know how to draft contracts that provide pool-wide
remedies if those are the terms the parties agree to. In U.S. Bank, N.A. v. Greenpoint
Mortgage Funding, Inc., No. 600352/09, 2010 WL 841367 (N.Y. Sup. Ct. Mar. 3, 2010),
for example, the agreement provided that in the event of a breach of certain
representations and warranties, “all of the Revolving Credit Loans shall, at the
Purchaser’s option, be repurchased by the Seller.” Id. at *7. Here, however, the parties
did not contract for such a generalized remedy, and the absence of such a remedy must be
given effect. Deutsche Bank’s generic allegations fall far short of meeting the contractual
requirements of the Agreements in this case, requiring that its notice and repurchase
claims be dismissed.
mortgage loans with respect to which there have been . . . breaches of particular
Representations and Warranties” that have “had a material and adverse effect on the
value of the loans or the interests of the Trusts therein.” (Amended Complaint ¶¶ 66, 65.)
No claim for breach of the notice and repurchase obligations can survive this admission.
See, e.g., Anderson v. Wachovia Mortgage Corp., 609 F. Supp. 2d 360, 366 (D. Del.
2009) (dismissing breach of contract claims under Delaware law where plaintiffs
“fail[ed] to identify an express contract provision that was breached”), aff’d 621 F.3d
261, 280 (3d Cir. 2010); Marino, 835 N.Y.S.2d at 49 (“Vague and conclusory allegations
are insufficient to sustain a breach of contract cause of action.”); LaSalle Bank Nat’l
Ass’n v. Citicorp Real Estate, Inc., No. 01-cv-4389, 2002 WL 31729632 (S.D.N.Y. Dec.
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Case 1:09-cv-01656-RMC Document 55-1 Filed 11/22/10 Page 25 of 39
5, 2002) (holding that “to state a claim, LaSalle must allege both a breach of a
representation or warranty set forth in PSA § 2.05(c) and a material and adverse effect
Nonetheless, Deutsche Bank tries to plead around this basic failure by first
pointing to alleged problems with the mortgage industry and origination at Washington
Mutual and then asserting “there is a reasonable basis to conclude that many of the
mortgage loans included in the Trusts do not comply with the Representations and
Warranties, and that WaMu breached the Representations and Warranties, which
breaches had a material and adverse effect on the value of the loans or the interests of the
Trusts therein.” (Id. ¶ 66.) Deutsche Bank’s “reasonable basis” is supposition and
speculation, too tenuous to sustain a plausible claim against Defendants, and a somewhat
cynical effort to generally plead around the contractual requirements outlined above.
attempting to taint over half a million individual mortgage loans—for which the
Agreements require loan-specific assessments and remedies—by listing very broad, non-
between these allegations and any particular mortgage loan or securitization deal, instead
relying on bald speculation that there may be a connection. Absent the pleading of
loan-specific breaches, materiality and adversity, Deutsche Bank has failed to plead that
any Defendant had any notice or repurchase obligation, much less breached one. See
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Even if the Agreements did not have these loan-specific requirements that
generalized “bad acts” would not be sustainable as a matter of law. Notably, these
allegations are based entirely on statements of, and documents obtained by, the Senate
Bank fails to mention is that the Subcommittee did not subpoena loan files or documents
concerning specific loans.13 Anyhow, to state a claim for a breach of contract, it is not
enough to malign a defendant as a bad actor; a plaintiff must explain how the defendant’s
acts constituted a specific breach. See DeBlasio v. Merrill Lynch & Co., No. 07-cv-318,
2009 WL 2242605, at *37-38 (S.D.N.Y. July 27, 2009) (holding that banks’ alleged
misuse of brokerage clients’ funds to generate profits for the banks did not constitute a
breach of a specific contract); see H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129,
memorandum did not constitute a breach of a purchase agreement that did not incorporate
the memorandum). Deutsche Bank has failed to make the necessary showing here.
In addition, Deutsche Bank must specify how the alleged breach caused
“materially and adversely” affect the value of a mortgage loan, the parties required that
Deutsche Bank prove causation on a loan-by-loan basis. But even without such a
provision in the contract, causation would still be essential to Deutsche Bank’s claim for
breach of contract. Nat’l Mkt. Share, Inc. v. Sterling Nat’l Bank, 392 F.3d 520, 525 (2d
13
A copy of the Subcommittee’s subpoena is attached to the McIntosh Declaration
as Exhibit C.
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Case 1:09-cv-01656-RMC Document 55-1 Filed 11/22/10 Page 27 of 39
Cir. 2004) (stating that under New York law, “[c]ausation is an essential element of
damages in a breach of contract action; and, as in tort, a plaintiff must prove that a
defendant’s breach directly and proximately caused his or her damages”); VLIW Tech.,
840 A.2d at 612 (holding that a complaint must demonstrate “the resultant damage to the
Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 839-40 (1996).
Here, Deutsche Bank fails to plead that its losses were caused by breaches
mortgage crisis. It alleges that “after September 25, 2008, the Trusts have experienced a
Complaint ¶ 80)—but this could be said of virtually any trust holding residential
mortgages anywhere in the United States. Nothing in this allegation connects facts
loan in Deutsche Bank’s trusts. As the Court is aware, the collapse of the housing bubble
was a market-wide phenomenon. That event, which based upon the generalized
allegations of the Amended Complaint was as likely the cause of Deutsche Bank’s
alleged harm as any other, does not establish the causation required to support the breach
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seeking this remedy, Deutsche Bank seeks a windfall of monetary damages, which—
notwithstanding its failure to identify any breach of any representation and warranty by
any loan that had a material and adverse effect on that loan’s value—Deutsche Bank
Complaint ¶ 85 (emphasis added).)14 Such claims violate the “sole remedy” provisions
of the Agreements and thus seek to overturn the distribution of risks for which the parties
which is it not entitled, it has failed to state a claim upon which relief can be granted.
Credit Suisse First Boston Corp., No. 07-C-2922, 2008 WL 4924926 (N.D. Ill. Nov. 14,
Mortgage Capital, which had sold loans to the underlying trust. The Pooling and
Servicing Agreement there, like those here, provided that repurchase of a breaching
mortgage loan was the sole remedy for such a claim if the loan could not be substituted or
14
The Amended Complaint makes clear that Deutsche Bank also seeks
consequential damages based on Defendants’ alleged breach of their repurchase
obligation. (Amended Complaint ¶¶ 85, 95, 101.)
15
These risks were well understood by all parties. In some Prospectus Supplements,
the first risk factor listed is that “Mortgage Loans Originated under the Sponsor’s
Underwriting Guidelines Carry a Risk of High Delinquencies.” (E.g., LB0602,
Prospectus Supplement (McIntosh Declaration Ex. B), at S-11.)
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the breach cured. See id. at *12. DLJ argued that the result of this “sole remedy”
provision was that no damages were available, only specific performance of the
repurchase obligation. Id. The court agreed and dismissed the complaint: “The Court
recognizes that Plaintiff has pled DLJ’s breach of duties; however, Plaintiff’s complaint
alleges only its entitlement to remedial (money) damages and not specific performance.
Accordingly, Plaintiff has not properly pled its entitlement to the relief requested on this
claim. Therefore, the Court grants Defendants’ motion [to dismiss] . . . .” Id. As the
court pointed out, “New York courts enforce contractual limitations on remedies.” Id.
(citing Mom’s Bagels of N.Y., Inc. v. Sig Greenbaum, Inc., 559 N.Y.S.2d 883, 885 (N.Y.
App. Div. 1990)). The same is true under Delaware law. See Abry Partners V, L.P. v.
F & W Acquisition LLC, 891 A.2d 1032, 1035 (Del. Ch. 2006). Because Deutsche Bank
obligations to provide Deutsche Bank with access to loan documents. Deutsche Bank has
not alleged harm from these breaches separate from the harm caused by the alleged
failure to repurchase faulty loans. Instead, Deutsche Bank is merely alleging that
purported repurchase obligations. This claim also fails in its own right.
loan documents, even if assumed to be true, do not excuse its failure to identify a single
breach of the Agreements. Despite its reference to “numerous requests” for access to
loan files (Amended Complaint ¶ 82), Deutsche Bank does not allege that it has sought
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access to more than a tiny group of loans. The requests for access that Deutsche Bank
cites (id.) refer to just 61 loans in only three trusts (see McIntosh Declaration
Exs. D-F)—a minuscule fraction of the more than half a million loans owned by the
underlying trusts.16
Moreover, the timing of the requests for access to loan files shows that
Deutsche Bank has failed to make a good-faith effort to identify or specify any breaches
of the Agreements. The requests that Deutsche Bank references were all made in June
and August of 2010—nearly two years after the proof of claim in which Deutsche Bank
first raised its supposed repurchase claims against the FDIC. Because the allegedly
unanswered requests all postdate the assertion by Deutsche Bank of the claims being
alleged in this action, a failure to respond to those requests could not plausibly be the
by Deutsche Bank to determine what repurchase obligations might actually exist. In its
now-two-year-old proof of claim filed with the FDIC, Deutsche Bank alleged that “the
Attachment A ¶ 11.) When it filed its initial Complaint nearly eight months later,
Deutsche Bank had had ample time to investigate and refine its claims. But Deutsche
Bank does not allege that it made any requests for access to documents during this period
16
Because Deutsche Bank refers to its requests for access in its Amended Complaint
and because those requests are central to its claims, the Court may consider those
documents without converting this Motion to Dismiss into a Motion for Summary
Judgment. See Lipton, 135 F. Supp. 2d at 186.
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Case 1:09-cv-01656-RMC Document 55-1 Filed 11/22/10 Page 31 of 39
or investigated its claims any further. In fact, its claim for damages was essentially the
same: “$6 billion to $10 billion or more.” (Complaint ¶ 34 (Docket Item 1).)
Now, more than a year later, Deutsche Bank’s claim for damages remains
the same: “$6 billion to $10 billion, with such losses continuing to accrue.” (Amended
Complaint ¶ 85.) This consistency renders it implausible for Deutsche Bank to allege
that the absence of access to files of 61 loans—requested for the first time after the filing
of its original complaint and just before the filing of its Amended Complaint—is the
reason for its failure to comply with the contractually agreed-upon procedures for
limitations bars Deutsche Bank’s claims under most of the Agreements. In Delaware, the
statute of limitations for a breach of contract action is three years. See DEL. CODE ANN.
tit. 10, § 8106. In New York, the applicable statute of limitations is six years. See N.Y.
CPLR § 213. All of Deutsche Bank’s claims are based on representations and warranties
that were made at the time of securitization and would be barred if not brought within the
applicable time period. (See, e.g., LB0602, MLPA § 6 (“The Seller hereby represents
and warrants to the Purchaser, that as of the Closing Date with respect to each Mortgage
Deutsche Bank has alleged not one breach or material and adverse effect
that occurred after these securitizations closed. Applying these limitations periods to the
pleadings, all claims based on mortgage loans in 74 of the 99 trusts should be dismissed
as time barred.
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Case 1:09-cv-01656-RMC Document 55-1 Filed 11/22/10 Page 32 of 39
• All but the very oldest Pooling and Servicing Agreements for the
Washington Mutual trusts (those beginning with “WA” in Exhibit 1A to the Amended
Complaint) are governed by Delaware law. Only one of the Agreements governing these
trusts was signed within three years of September 8, 2010, when Deutsche Bank filed its
(“WA0701”). (See Amended Complaint, Ex. 1A.) The claims based on the remaining 54
Beach trusts (those beginning with “LB” in the same exhibit) are governed by New York
law with a few governed by Delaware law. Of the 40 Long Beach trusts, claims
MS0001 and CO9201 in Exhibit 1A, were signed 10 and 18 years ago, respectively—far
too long ago to state a claim upon which relief can be granted.
interest, whoever they are adjudicated to be” seeks declaratory judgment regarding
whether the FDIC or JPMC is the successor to the purported liabilities at issue in this
17
These trusts are numbered 1-18 and 37-42 in Exhibit 1A. It is unclear what law
governs the PSA labeled LB0608, since it was not attached to the Amended Complaint.
None of the three trusts governed by California law was signed within California’s four-
year limitations period. See CAL. CIV. PROC. CODE § 337.
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Here, to the extent that there is an actual controversy, it is ripe for immediate summary
judgment because this claim involves the interpretation of one unambiguous provision of
the P&A Agreement. Bastin v. Fed. Nat’l Mortgage Ass’n, 104 F.3d 1392, 1393-95
(D.C. Cir. 1997). Under the plain terms of that agreement, JPMC did not become
WMB’s successor in interest. Since its closure, the FDIC as receiver has controlled
WMB. While JPMC purchased all of the assets of WMB, it assumed only specified
liabilities: those that had been reduced to a dollar amount on WMB’s “general ledger and
subsidiary ledgers and supporting schedules which support the general ledger balances.”
(Amended Complaint Ex. 2 (P&A Agreement) at 2.) The unliquidated liabilities that
Deutsche Bank seeks to impose in this case are not alleged to be among those specified in
the P&A Agreement, and JPMC has clearly stated in its filings with the Securities and
Exchange Commission that this liability remains with the FDIC. (JPMorgan Chase &
Co., Form 10-Q, filed November 9, 2010 (McIntosh Declaration Ex. G), at 58.) Under
the P&A Agreement, the FDIC agreed to indemnify JPMC for any liabilities that it did
not expressly assume. Based on the plain language of the P&A Agreement, the Court
should award partial summary judgment declaring that any liabilities from this litigation
that were not on WMB’s general ledger, subsidiary ledgers, and supporting schedules as
of September 25, 2008 remained with the FDIC directly or as indemnitor for JPMC.18
18
To the extent that WMMSC has potential liability related to representations and
warranties it made, it has claims against the FDIC as receiver for WMB under Mortgage
Loan Purchase Agreements between WMB and WMMSC. See supra pages 5-6.
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Case 1:09-cv-01656-RMC Document 55-1 Filed 11/22/10 Page 34 of 39
A. There Is No Bona Fide Dispute That the FDIC Retained All Mortgage
Origination Liabilities Not Having a “Book Value” as of WMB’s
Closing.
Deutsche Bank acknowledges that as between the FDIC and JPMC, any
liability for its claims is governed by Section 2.1 of the P&A Agreement, which provides
in pertinent part:
(Amended Complaint Ex. 2 (P&A Agreement) at 8.) There is no bona fide dispute that
the FDIC retained all liabilities of the failed bank except those that had a “Book Value”
as of September 25, 2008, when WMB was closed. Book Value is defined in the P&A
Agreement as “the dollar amount [of an assumed liability] stated on the Accounting
Records of the Failed Bank,” and “Accounting Records” are specifically defined as
limited to “the general ledger and subsidiary ledgers and supporting schedules which
support the general ledger balances.” (Amended Complaint Ex. 2 (P&A Agreement)
at 2-3.) Thus, without further inquiry, the Court should enter partial summary
judgment—based on these words of the P&A Agreement—that states the extent of the
liabilities retained by the FDIC and adjudicates the limits of JPMC’s assumption of
liability.
To the extent that the FDIC disputes what exactly was on the Books and
Records of WMB, with a Book Value, on September 25, 2008, such a dispute does not
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Case 1:09-cv-01656-RMC Document 55-1 Filed 11/22/10 Page 35 of 39
alone, even if there is a genuine issue on the amount of damages.” FED. R. CIV. P.
56(d)(2). Judgment can be entered immediately stating that if WMB’s general ledger,
subsidiary ledgers and supporting schedules did not, as of September 25, 2008, identify a
liability with a stated dollar value, JPMC did not assume it.19 See Viola v. Fleet Bank of
Maine, No. 95-141, 1996 WL 498390, at *2-3 (D. Me. Feb. 27, 1996) (holding that a
functionally identical provision did not transfer liability beyond book value as stated on
19
Such a result would be in complete harmony with other cases finding that, in
FDIC-assisted transactions, assuming banks do not acquire unliquidated and contingent
liabilities. See Santopadre v. Pelican Homestead & Sav. Ass’n, 937 F.2d 268, 272 (5th
Cir. 1991) (noting that claims that constituted unliquidated liabilities were not reflected
“on the books and records” of the failed bank and thus were not transferred); In re Collins
Sec. Corp., 998 F.2d 551, 554-55 (8th Cir. 1993) (treating “books and records” and
“account records” as synonymous). Such an obligation would be impossible, given that
“[a] purchase and assumption must be made with great speed, usually overnight.” E.I. du
Pont de Nemours & Co. v. FDIC, 32 F.3d 592, 595 (D.C. Cir. 1994) (citation and internal
quotation marks omitted). It would also undermine the receivership process:
“Undoubtedly very few, if any, banks would enter into purchase and assumption
agreements with a federal receiver if the successor banks had to assume . . . latent claims
of unknown magnitude . . . .” Vernon v. RTC, 907 F.2d 1101, 1109 (11th Cir. 1990); see
also Raine v. Reed, 14 F.3d 280, 283 (5th Cir. 1994) (“We will not undermine the speed
and efficiency of bank takeovers by imposing a requirement upon the FDIC to locate and
evaluate every possible avenue of disputed liability in implementing the takeover of a
failed bank.”).
20
Deutsche Bank alleges that the Agreements “constituted official books and
records of WMB at the time of WMB’s closing on September 25, 2008.” (Amended
Complaint ¶ 42(e).) A contract is interpreted according to the parties’ intent, and an
unambiguous contract is enforced according to its plain terms. Sassano v. CIBC World
Mkts. Corp., 948 A.2d 453, 462 (Del. Ch. 2008); Greenfield v. Philles Records, Inc., 780
N.E.2d 166, 170 (N.Y. 2002). Because Deutsche Bank is not a party to the P&A
Agreement, its opinion on the scope of “books and records” under the P&A Agreement is
irrelevant. See Wichita Falls Office Assocs. v. Banc One Corp., No. 3:90-CV-1301, slip
op. at 12 (N.D. Tex. Nov. 22, 1993) (holding that assertions of a non-party about the
meaning of a P&A Agreement’s terms are irrelevant) (McIntosh Declaration Ex. H).
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were expressly assumed by JPMC, then the mortgage origination liabilities at issue in this
action were expressly assumed by JPMC. (Amended Complaint ¶ 87.) This is wrong in
at least two fundamental respects. First, directly contrary to that assertion, the express
assumption of only “mortgage servicing rights and obligations” evidences the lack of any
express assumption of the mortgage repurchase obligations that are at issue here: As
not the Servicer. (Id. ¶ 53.) Second, Deutsche Bank’s argument hinges on the incorrect
assumption that mortgage servicing rights are qualified financial contracts or are not
generally severable from the underlying securitizations. (See id. ¶¶ 32, 34.) Servicing
contracts are not securitizations or any other variety of qualified financial contract.
Moreover, courts have understood that a mortgage loan contract is divisible into one
concerning the “sale and repurchase of mortgage loans.” In re Am. Home Mortgage, Inc.,
379 B.R. 503, 520-21 (Bankr. D. Del. 2008). “The terms, nature and purpose of a
loans,” and the “consideration for servicing mortgage loans is readily apportioned from
the other consideration flowing under the Contract.” Id. at 521. Therefore, the two
There can be no dispute that Deutsche Bank’s claims are based on actions
of WMB and its subsidiaries before WMB closed, namely the origination and
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Case 1:09-cv-01656-RMC Document 55-1 Filed 11/22/10 Page 37 of 39
securitization of the mortgage loans at issue here. There is also no dispute that under
Section 12.1(a)(4) of the P&A Agreement, the FDIC agreed to indemnify JPMC for any
“claims based on any action or inaction prior to Bank Closing of the Failed Bank, its
Failed Bank, or the directors, officers, employees or agents as such of such Subsidiary or
Affiliate.” (Amended Complaint Ex. 2 (P&A Agreement) at 25.) The only relevant
exception to the FDIC’s indemnification is for clams with respect to liabilities that JPMC
Therefore, to the extent that there is any ambiguity regarding which party assumed the
liabilities at issue here, JPMC could not have “expressly assume[]” those liabilities, and
summary judgment is still appropriate because any such ambiguity triggers the FDIC’s
decision involving the same P&A Agreement. The FDIC moved to dismiss claims by the
North Carolina Department of Revenue, which sued the FDIC and JPMC for taxes that
FDIC, No. 10-cv-505 (RMC) (D.D.C.). Among the FDIC’s purported grounds for
dismissal was that JPMC had “expressly assumed” liability for the tax assessments,
Opposition to JPMorgan Chase’s Motion to Dismiss (McIntosh Declaration Ex. I), at 13.)
21
The efforts of thoughtful lawyers to create the hint of ambiguity would not change
the result in this case. Any ambiguity is construed against the FDIC as the drafter of the
agreement. See Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1486 (D.C. Cir. 1997).
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Case 1:09-cv-01656-RMC Document 55-1 Filed 11/22/10 Page 38 of 39
This Court denied the FDIC’s motion to dismiss in a minute order dated November 5,
2010, stating that “[b]ecause there are disputed questions of material fact that bear on
liability, summary disposition of this case through a motion to dismiss cannot occur.”
Department of Revenue is entirely consistent with the conclusion that either (i) JPMC did
not assume the disputed liabilities or (ii) if it were deemed to have assumed them, it did
not do so “expressly.” In either event, JPMC would not be liable for Deutsche Bank’s
claims, as the latter conclusion would necessarily obligate the FDIC to indemnify JPMC.
Partial summary judgment can be entered immediately, stating that any liabilities from
this litigation that were not on WMB’s general ledger, subsidiary ledgers, and supporting
schedules as of September 25, 2008 fall on the FDIC either directly or as indemnitor for
JPMC.
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Case 1:09-cv-01656-RMC Document 55-1 Filed 11/22/10 Page 39 of 39
CONCLUSION
For the foregoing reasons, JPMC and WMMSC respectfully request that
this Court dismiss Deutsche Bank’s Amended Complaint and grant partial summary
Robert A. Sacks (admitted pro hac vice) Brent J. McIntosh (D.C. Bar No. 991470)
Stacey R. Friedman (admitted pro hac vice) Henry C. Quillen (D.C. Bar No. 986686)
SULLIVAN & CROMWELL LLP SULLIVAN & CROMWELL LLP
125 Broad Street 1701 Pennsylvania Avenue, N.W.
New York, New York 10004 Washington, D.C. 20006
Telephone: (212) 558-4000 Telephone: (202) 956-7500
Facsimile: (212) 558-3588 Facsimile: (202) 293-6330
- 33 -