Ace Sec. Corp. v. DB Structured Prods., Inc.

• Decision Date: 19 December 2013
• Citation: Ace Sec. Corp. v. DB Structured Prods., Inc., 2013 NY Slip Op 8517, 977 N.Y.S.2d 229, 112 A.D.3d 522 (N.Y. App. Div. 2013)
• Parties: ACE SECURITIES CORP., etc., Plaintiff–Respondent, v. DB STRUCTURED PRODUCTS, INC., Defendant–Appellant. The Securities Industry and Financial Markets Association, The Association of Mortgage Investors, Professor Robert T. Miller and Mortgage Bankers Association, Amici Curiae.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 522

977 N.Y.S.2d 229

2013 N.Y. Slip Op. 08517

ACE SECURITIES CORP., etc., Plaintiff–Respondent,

v.DB STRUCTURED PRODUCTS, INC., Defendant–Appellant.The Securities Industry and Financial Markets Association,TheAssociation of Mortgage Investors,Professor Robert T. MillerandMortgage Bankers Association, Amici Curiae.

Supreme Court, Appellate Division, First Department, New York.

Dec. 19, 2013.

Simpson Thacher & Bartlett LLP, New York (David J. Woll of counsel), for appellant.

Kasowitz, Benson, Torres & Friedman LLP, New York (Marc E. Kasowitz of counsel), for respondent.

Wachtell, Lipton, Rosen & Katz, New York (George T. Conway III of counsel), for The Securities Industry and Financial Markets Association, amicus curiae.

McKool Smith, P.C., New York (Robert W. Scheef of counsel), for The Association of Mortgage Investors, amicus curiae.

Robert T. Miller, amicus curiaepro se.

Jenner & Block LLP, New York (Paul M. Smith of counsel), for Mortgage Bankers Association, amicus curiae.

TOM, J.P., ANDRIAS, DeGRASSE, RICHTER, JJ.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 14, 2013, which denied defendant's motion to dismiss the complaint, unanimously reversed, on the law, with costs, and the motion granted.The Clerk is directed to enter judgment accordingly.

This action is barred by the six-year statute of limitations on contract causes of action (CPLR 213[2] ).

Plaintiff alleges that defendant breached representations and warranties in connection with the securitization of a pool of mortgage loans governed by a Mortgage Loan Purchase Agreement (MLPA) and a Pooling and Servicing Agreement (PSA).The MLPA and PSA provided that the trustee was not entitled to sue or to demand that defendant repurchase defective mortgage loans until it discovered or received notice of a breach and the cure period lapsed.The motion court erred in finding that plaintiff's claims did not accrue until defendant either failed to timely cure or repurchase a defective mortgage loan ( seeStructured Mtge. Trust 1997–2 v. Daiwa Fin. Corp.,2003 WL 548868, 2003 U.S. Dist. LEXIS 2677[S.D.N.Y.2003] ).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 ( seeEly–Cruikshank Co. v. Bank of Montreal,81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985[1993];Varo, Inc. v. Alvis PLC,261 A.D.2d 262, 267–268, 691 N.Y.S.2d 51[1st Dept.1999], lv. denied95 N.Y.2d 767, 717 N.Y.S.2d 547, 740 N.E.2d 653[2000] ).

The certificate holders commenced an action on behalf of the trust, after plaintiff refused to do so, on March 28, 2012, the last day of the limitations period.However, defendant had not received notice of the alleged breach until February 8, 2012.Thus, the 60– and 90–day periods for cure and repurchase had not yet elapsed.The certificate holders' failure to comply with a condition precedent to commencing suit rendered their summons with notice a nullity ( seeSouthern Wine & Spirits of Am., Inc. v. Impact Envtl. Eng'g, PLLC,80 A.D.3d 505, 915 N.Y.S.2d 541[1st Dept.2011] ).

In any event, the certificate holders lacked standing to commence the action on behalf of the trust.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.”However, the “defaults” enumerated in the PSA concern failures of performance by the servicer or master servicer only.Thus, the PSA does not authorize certificate holders to provide...