Nat'l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc.
| Decision Date | 19 August 2014 |
| Docket Number | 12–3298.,Nos. 12–3295,s. 12–3295 |
| Citation | 764 F.3d 1199 |
| Parties | NATIONAL CREDIT UNION ADMINISTRATION BOARD, as liquidating agent of U.S. Central Federal Credit Union and of Western Corporate Federal Credit Union, Plaintiff–Appellee, v. NOMURA HOME EQUITY LOAN, INC., Wachovia Capital Markets, LLC, n/k/a Wells Fargo Securities, LLC; Wachovia Mortgage Loan and Trust, LLC; Novastar Mortgage Funding Corp.; Financial Asset Securities Corp.; RBS Acceptance, Inc., f/k/a Greenwich Capital Acceptance, Inc.; RBS Securities, Inc., f/k/a Greenwich Capital Markets, Inc., Defendants–Appellants, and Fremont Mortgage Securities Corp., IndyMac MBS, Inc.; Lares Asset Securitization, Inc.; Residential Funding Mortgage Securities II, Inc., Defendants. Securities Industry and Financial Markets Association; United States of America, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Barry Levenstam, Jenner & Block, Chicago, Illinois (Barbara S. Steiner, Matthew J. Thomas, and Casey T. Grabenstein, Jenner & Block, Chicago, Illinois; W. Perry Brandt, Bryan Cave LLP, Kansas City, Missouri; Arthur E. Palmer, Goodell, Stratton, Edmonds & Palmer, LLP, Topeka, Kansas; Jeffrey J. Kalinowski and Richard H. Kuhlman, Bryan Cave LLP, St. Louis, Missouri; William F. Alderman, Orrick, Herrington & Sutcliffe LLP, San Francisco, California; Timothy B. Mustaine, Foulston Siefkin LLP, Wichita, Kansas; Michael Thompson and Faiza Bergquist, Husch Blackwell LLP, Kansas City, Missouri; and R. Alexander Pilmer, David I. Horowitz, and Tammy A. Tsoumas, Kirkland & Ellis LLP, Los Angeles, California, with him on the briefs), appearing for Appellants.
David C. Frederick, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C. (George Zelcs, Korein Tillery, Chicago, Illinois; Michael J. McKenna, General Counsel, and John K. Ianno, Associate General Counsel, National Credit Union Administration, Alexandria, Virginia; Wan J. Kim, Gregory G. Rapawy, and Daniel V. Dorris, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., with him on the brief), appearing for Appellee.
Ira D. Hammerman and Kevin Carroll, Securities Industry and Financial Markets Association, Washington, D.C., and Michael J. Dell and Aaron M. Frankel, Kramer Levin Naftalis & Frankel LLP, New York, New York, filed an amicus brief for Securities Industry and Financial Markets Association.
Stuart F. Delery, Assistant Attorney General, United States Department of Justice, Washington, DC; Barry R. Grissom, United States Attorney, Office of the United States Attorney for the District of Kansas, Kansas City, Kansas; and Mark B. Stern and Daniel Tenny, Attorneys, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, filed an amicus brief for the United States of America.
Before KELLY, McKAY, and MATHESON, Circuit Judges.
These matters are before the court following our receipt of the United States Supreme Court's order granting certiorari, vacating our August 27, 2013 decision, and remanding for reconsideration in light of CTS Corp. v. Waldburger, ––– U.S. ––––, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014). SeeNomura Home Equity Loan, Inc. v. Nat'l Credit Union Admin. Bd., –––U.S. ––––, 134 S.Ct. 2818, ––– L.Ed.2d –––– (2014). The Supreme Court's judgment issued on July 18, 2014. On July 11, 2014 the parties filed supplemental briefs. In addition, on July 11, 2014 the United States filed a brief amicus curiae.
Upon consideration, we reinstate our original opinion, and also direct the clerk to issue our Opinion on Remand. Both our remand opinion and original decision shall be attached to this order. The mandate recalled on July 24, 2014 shall reissue forthwith.
On August 27, 2013, we concluded the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”) established a universal time frame for the National Credit Union Administration (“NCUA”) to bring any actions on behalf of credit unions placed into conservatorship or receivership, notwithstanding any pre-existing time periods applicable to other plaintiffs. See Nat'l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 727 F.3d 1246 (10th Cir.2013) (“ NCUA ”). Because NCUA filed its federal securities claims in this case during that time frame, we determined its claims could proceed. See id. at 1266–67. On June 9, 2014, the Supreme Court decided CTS Corp. v. Waldburger, ––– U.S. ––––, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014), which held that the federal commencement date established in an amended provision of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) for state personal injury or property damage actions preempted only state statutes of limitation, not statutes of repose. See id. at 2187–88. On June 16, 2014, the Supreme Court granted certiorari in this case, vacated our August 27, 2013 decision, and remanded for reconsideration in light of CTS. See Nomura Home Equity Loan, Inc. v. Nat'l Credit Union Admin. Bd., ––– U.S. ––––, 134 S.Ct. 2818, ––– L.Ed.2d –––– (2014). We have considered the impact of CTS on this case and conclude it does not alter our original decision. We therefore reinstate our previous opinion accompanied by this opinion.
Established in 1934, NCUA is an independent agency charged with regulating federally chartered credit unions. If NCUA finds that a credit union is insolvent or (in some circumstances) undercapitalized, it must place the credit union in conservatorship or liquidation and appoint itself as conservator or liquidating agent. 12 U.S.C. §§ 1787(a)(1)(A), (a)(3)(A). NCUA then steps into the shoes of the credit union and succeeds to “all rights, titles, powers, and privileges of the credit union....” Id. § 1787(b)(2)(A)(i).
In the wake of the 1980s savings and loan crises, Congress enacted FIRREA to “prevent[ ] the collapse of the industry, attack[ ] the root causes of the crisis, and restor[e] public confidence.” United States v. Winstar Corp., 518 U.S. 839, 844, 856, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996). FIRREA includes a provision governing NCUA enforcement actions titled “Statute of limitations for actions brought by conservator or liquidating agent.” 12 U.S.C. § 1787(b)(14). Also known as the NCUA Extender Statute, 1 this provision reads:
(A) In general
Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Board 2 as conservator or liquidating agent shall be—
(I) the 6–year period beginning on the date the claim accrues; or
(II) the period applicable under State law; and
(I) the 3–year period beginning on the date the claim accrues; or
(II) the period applicable under State law.
(B) Determination of the date on which a claim accrues
For purposes of subparagraph (A), the date on which the statute of limitation begins to run on any claim described in such subparagraph shall be the later of—
(i) the date of the appointment of the Board as conservator or liquidating agent; or
(ii) the date on which the cause of action accrues.
Id. Thus, for “any [federal] tort claim” on behalf of a credit union to be timely, NCUA must sue within three years from either the date it places that credit union into conservatorship (or receivership) or the date on which the cause of action accrues. See id.
In 2006 and 2007, two federally chartered corporate credit unions—U.S. Central and WesCorp-purchased residential mortgage—backed securities (“RMBS”) from the Appellants. See NCUA, 727 F.3d at 1252–53. In March 2009, NCUA placed the two credit unions into conservatorship based on “staggering losses” flowing from these investments. Id. at 1253. In June and November of 2011, within the three-year time frame required by the Extender Statute, NCUA sued several RMBS issuers on behalf of both credit unions, alleging federal securities torts 3 involving “materially false and misleading statements” in registration and prospectus materials. Id. The Defendants (Appellants here) moved to dismiss, asserting NCUA's claims were untimely under a different limitations period in the Securities Exchange Act of 1933. According to the Defendants, the Securities Act's three-year statute of repose (Section 13), which starts running when the security is offered or sold (rather than when NCUA placed the credit unions into conservatorship or discovered the violation), barred NCUA's federal securities claims. See15 U.S.C. § 77m. The district court denied the motion, concluding FIRREA's Extender Statuteapplies to Section 13's three-year repose period.
On interlocutory appeal, this panel affirmed. We first determined the “plain meaning of the statute,” which establishes “ the applicable statute of limitations” for “ any action brought by” NCUA. NCUA, 727 F.3d at 1257. We said this language “indicates that it applies to NCUA's Securities Act claim and that it supplants all other time limits, including Section 13's repose period.” Id. We then analyzed how use of the term “statute of limitations” in the Extender Statute affects the statute's scope. We determined the surrounding language and context of FIRREA demonstrates that “the statute is most reasonably interpreted to govern ‘any action’ NCUA may bring—and to displace all ‘statutes of limitations' in the broad sense of the term, which encompasses both ordinary statutes of limitations and statutes of repose.” Id. at 1260. We gave Appellants “the benefit of the doubt and assume[d] there may be a modicum of ambiguity as to whether the Extender Statute covers statutes of repose.” Id. at 1262. But based on a review of FIRREA's statutory purpose, the use of “statute of limitations” in federal legislation, and the use of “statute of limitations” in case law, we co...
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...discovered within that period that there was a violation or an injury.” Nat'l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764 F.3d 1199, 1224 (10th Cir.2014) (quotation omitted). Thus, assuming the statute of repose is applicable here, Plaintiffs had six years to file their su......
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