Opinion
CASE NO. 8:09-CV-623-T-17EAJ.
March 31, 2011
ORDER
This cause is before the Court on:
Dkt. 37 Motion for Summary Judgment
Dkt. 38 Motion for Partial Summary Judgment
Dkt. 39 Declaration
Dkt. 40 Declaration
Dkt. 41 Request for Oral Argument
Dkt. 42 Response
Dkt. 43 Declaration
Dkt. 44 Declaration
Dkt. 45 Response
Dkt. 49 Reply
Dkt. 50 Declaration
In the First Amended Complaint (Dkt. 9), Plaintiff Lehman Brothers Holdings, Inc. ("LBHI") alleges that Lehman Brothers Bank, FSB ("LBB") purchased mortgage loans from Defendant Key Financial Corporation ("Key"), pursuant to Loan Purchase Agreements dated 4/6/2006. The Loan Purchase Agreements specifically incorporate the terms and conditions in the Seller's Guide of Lehman's agent, Aurora Loan Services, LLC. Defendant Key sold mortgage loans to Lehman Brothers Bank, FSB, including the loans referenced in Exhibit A. After the sale, Lehman Brothers Bank, FSB assigned all rights and remedies to Plaintiff Lehman Brothers Holdings, Inc. ("LBHI").
The First Amended Complaint includes Count I, breach of contract, Count II, specific performance, and Count III, breach of express warranty. The basis of jurisdiction is diversity.
Plaintiff LBHI seeks the award of damages in an amount to be determined at jury trial, with interest. Plaintiff LBHI also seeks a decree of specific performance, requiring Defendant to repurchase the loans identified in Exhibit A to the Amended Complaint. Plaintiff LBHI seeks a declaration that Defendant Key is required to repurchase the referenced loans, and Defendant Key is required to compensate Plaintiff LBHI for all actual and consequential damages resulting from Defendant's breaches of the representations and/or warranties and Early Payment Default provisions of the Agreements and Seller's Guide. Plaintiff LBHI further seeks the award of reasonable attorney's fees and costs incurred in litigating this case.
Counter-Plaintiff Key has filed a Counterclaim, which includes Count I, for breach of contract, and Count II, for fraud. Key alleges that Lehman Brothers Bank, FSB entered into a binding contract with Key on or before June 13, 2007, that Key performed its obligations under the contract, but Lehman Brothers Bank, FSB did not, causing Key to suffer damages of at least $583,780. Counter-Plaintiff Key seeks the award of actual and consequential damages, prejudgment interest and other appropriate relief.
In Count II, Counter-Plaintiff Key alleges that Lehman Brothers Bank, FSB made intentional material misrepresentations and omissions as to the Wolf loan, on which Key relied to its detriment. Counter-Plaintiff Key alleges that Lehman Brothers Bank, FSB represented that LBB would purchase the Wolf loan, at the time of its misrepresentations LBB had no intention of purchasing the Wolf loan, and the misrepresentations were intentionally made to defraud Key. Counter-Plaintiff Key further alleges that LBB's actions constitute willful misconduct, malice, wantonness, or an entire want of care which raises the presumption of conscious indifference to consequences, and such actions were done with a specific intent to cause harm, for which an award of punitive damages is sought. Counter-Plaintiff Key seeks the award of financial damages, punitive damages, prejudgment interest, and other appropriate relief.
I. Standard of Review
Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
"The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
The appropriate substantive law will guide the determination of which facts are material and which facts are . . . irrelevant.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson, 477 U.S. at 248. But, "[i]f the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. at 249-50.
III. Statement of Facts
1. Lehman Brothers Bank, FSB ("LBB") entered into Loan Purchase Agreements dated April 6, 2006 with Defendant Key Financial Corporation (Dkt. 37-1) (Loan Purchase Agreement (Servicing Released Transactions) and Loan Purchase Agreement (Bulk Sales/Servicing Released Transactions)). The Loan Purchase Agreements incorporated the terms of the Seller's Guide of LBB's loan servicing agent, Aurora Loan Services, LLC, which sets forth additional duties and obligations to be performed by Defendant Key (Dkt. 43, Exh. B).
2. Aurora Loan Services, LLC is an indirect subsidiary of Plaintiff LBHI and a direct subsidiary of LBB. Aurora served as the administrative agent of the correspondent program for LBB. (Dkt. 43, Exh. B, Sec. 100). Aurora was authorized and directed by LBB and Plaintiff LBHI to enforce any obligations owed to them by parties selling mortgage loans in which LBB and/or LBHI have an interest. (Dkt. 43, par. 7). Aurora performed post-purchase audits of loan files in the event a possible breach of a representation, warranty or covenant was discovered. Plaintiff LBHI is the parent corporation of LBB and Aurora (Dkt. 43, par. 10).
3. The Loan Purchase Agreements and the Seller's Guide specify the duties and obligations of the parties with respect to the sale and purchase of mortgage loans, including purchase price, delivery and conveyance of the mortgage loan and mortgage loan documents, examination of mortgage loan files and underwriting, representations and warranties concerning the parties and individual mortgage loans purchased or sold, and remedies for breach.
4. In Section 7, the Loan Purchase Agreement (Servicing Release Transactions) provides:
Section 7. Notices. All demands, notices, and communications hereunder shall be in writing and shall be deemed to have been duly given if mailed by registered or certified mail, return receipt requested, of, if by other means, when received by the other party at (i) the address given in the Seller's Guide if to LBB, and (ii) as follows if to Seller:
Attn: Jeffrey Dell
Key Financial Corporation
P.O. Box 36
Peel, AR 72668
or such other address as may hereafter be furnished to the other party by like notice. Any such demand, notice or communication hereunder shall be deemed to have been received on the date delivered to or received at the premises of the addressee (as evidenced, in the case of registered or certified mail, by the date noted on the return receipt.)
5. In Section 8, the Loan Purchase Agreement provides:
Section 8. Governing Law. This Agreement and the Seller's Guide shall be construed in accordance with the laws of the State of New York and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with the laws of the State of News York, except to the extent preempted by Federal law.
6. In Section 711, the Seller's Guide provides:
711 INDEMNIFICATION AND THIRD PARTY CLAIMS
In addition to any repurchase and cure obligations of Seller, . . . Seller shall indemnify Purchaser and Purchaser's designee . . . from and hold them harmless against all claims, losses, damages, penalties, fines, claims, forfeitures, lawsuits, court costs, reasonable attorney's fees, judgments and any other costs, fees and expenses that the Purchaser may sustain in any way related to or resulting from any act or failure to act or any breach of any warranty, obligation, representation or covenant contained in or made pursuant to this Seller's Guide or the Loan Purchase Agreement by any agent, employee, representative or officer of Seller or Seller's correspondent. . . .
(Dkt. 43, Ex. B).
7. Section 712 of the Seller's Guide states:
712 SURVIVAL OF REMEDIES
It is understood and agreed that Purchaser's remedies for breach of the representations, warranties or covenants set forth herein and/or in the Loan Purchase Agreement shall survive the sale, and delivery of the related Mortgage Loan to Purchaser and Funding of the related Purchase Price by Purchaser, and will continue in full force and effect, notwithstanding any termination of this Seller's Guide and the related Loan Purchase Agreement, or any restrictive or qualified endorsement on any Note or Assignment of Mortgage or loan approval or other examination of or failure to examine any related Mortgage Loan File by Purchaser.
(Dkt. 43, Exh. B).
8. Section 713.3 of the Seller's Guide provides:
713.3 ASSIGNMENT
Purchaser shall have the right to assign its rights and duties under the Loan Purchase Agreement and this Seller's Guide to any party without the consent of Seller. Purchaser shall notify Seller in writing of any such assignment. Seller shall have no right to assign its rights or duties under the Loan Purchase Agreement or this Seller's Guide without Purchaser's prior written consent. Purchaser also may assign separately to any other party any or all representations, warranties or covenants made by Seller to Purchaser in the Seller's Guide or Loan Purchase Agreement, along with any or all of Purchaser's remedies available against the Seller for Seller's breach of any representation, warranty, or covenant hereunder, including, without limitation, the repurchase and indemnification remedies. Any such party shall be an intended third party beneficiary of those representations, warranties, covenants and remedies.
9. During the relevant time, Defendant Key Financial engaged in mortgage lending and selling mortgage loans on the secondary market.
10. Aurora Loan Services, LLC, LBB's agent, granted Defendant Key Delegated Underwriting Authority ("DUA"). DUA means that Key Financial had the ability to perform the underwriting process prior to closing and selling a loan to LBB. The Seller's Guide provides that Section 715 of the Seller's Guide applies to mortgage loans delivered pursuant to a Seller's Delegated Underwriting Authority.
11. Defendant Key Financial Corporation sold the loans on which the claims in the Amended Complaint are based to Lehman Brothers Bank, FSB (Dkt. 9, Exh. A) on July 9, 2007 (Davis Loan) and July 10, 2007 (Padgett Loan) (Dkt. 43-6).
12. Lehman Brothers Bank, FSB assigned its rights and remedies to Plaintiff LBHI in an Assignment Agreement dated September 2, 2008 (Dkt. 37-3). LBB did not assign its liabilities under the Loan Purchase Agreement to Plaintiff LBHI. (Dkt. 43, par. 11).
13. As to the two loans, Defendant Key made representations, gave warranties and covenanted certain facts concerning:
a) the validity of all mortgage loan documentation;
b) the accuracy and integrity of all information and documentation concerning borrower income, identity, employment, credit, assets and liabilities used in making the decision to originate the mortgage loans;
c) occupancy by the borrower of the properties securing the mortgage loans;
d) the ownership, nature, condition and value of the real properties securing the mortgage loans;
e) the conformance of the mortgage loans with applicable underwriting guidelines and loan program requirements.
14. Defendant Key also represented and/or warranted that no errors, omissions, misrepresentations, negligence, fraud or other mistakes or wrongdoing occurred or were committed by any person involved in the origination of the mortgage, and that no predatory or deceptive lending practices were used in the origination of the mortgage loans.
15. Defendant Key further represented and/or warranted that Defendant Key had the ability to perform its obligations under, and satisfy all requirements of the Loan Purchase Agreement and the Seller's Guide.
16. Plaintiff LBHI discovered that Defendant Key breached representations, warranties and covenants under the Agreements and the Seller's Guide as to Loan Number 2 (Dkt. 9, Exh. A), the Padgett Loan, and, through its agent, notified Key of the breach on September 14, 2007. (Dkt. 43, Exh. F).
17. The Loan Purchase Agreements and Seller's Guide provide that, in the event of a breach of representations warranties and covenants, LBHI or its agent may demand that Defendant Key repurchase the loan at a certain repurchase price (Dkt. 43, Exh. B, Section 710).
18. Plaintiff LBHI demanded that Defendant Key repurchase the Padgett Loan at the specified purchase price on September 14, 2007 (Dkt. 43, Exh. F).
19. Defendant Key refused to repurchase the Padgett Loan and did not comply with its obligations under the Loan Purchase Agreements and Seller's Guide.
20. The Loan Purchase Agreements and Seller's Guide also specify that Plaintiff LBHI or its agent may demand that Defendant Key repurchase, and Defendant Key shall repurchase, mortgage loans that become Early Payment Defaults ("EPD").
21. A loan may become an EPD under the Loan Purchase Agreements and Seller's Guide in two ways: 1) For loans prior-approved by the purchaser, the loan becomes an EPD if the borrower does not make the first monthly payment due within thirty days of the payment's due date; 2) for loans purchased pursuant to the seller's delegated underwriting authority, eligible for delegated underwriting, or purchased in bulk transactions, the loan becomes an EPD if the borrower does not make the first or second monthly payment within thirty days of each respective payment's monthly due date. (Dkt. 43, Exh. B).
22. Loan Number 1, (Dkt. 9, Exh. A), the Davis Loan, became an EPD when the borrower did not make the first or second payments due within thirty days of their due dates.
23. Plaintiff LBHI gave written notice that the loan application contained a misrepresentation of Davis' debts, and that Defendant Key breached its representation and warranty that the loan documentation contained no misrepresentations, under Section 703 of the Seller's Guide. Plaintiff LBHI demanded that Defendant Key indemnify Plaintiff on July 10, 2009. The notice letter states that the loan liquidated on August 15, 2008 through the REO process with a loss of $78,126.97. (Dkt. 43, Ex. F).
24. Defendant Key did not indemnify Plaintiff LBHI for Loan Number 1.
25. LBB, through its agent, Aurora Loan Services, LLC, terminated the Loan Purchase Agreement on June 21, 2007 (Dkt. 37-2) by a certified letter to Jeffrey Dell, Key Financial Corporation. LBB terminated the Agreement because Defendant Key did not meet the necessary net worth requirements.
26. Count I of the Counterclaim is based on the Wolf Loan. Aurora Loan Services, LLC recommended that the purchase of the Wolf Loan be declined on 7/24/2009 (Dkt. 39-11). The "Findings Summary" of the Special Investigations Referral Form states:
CC-Loan submitted due to Ryan Youngman, supposed employer, has lived with borrower, and has purchased properties with her previously. Received written verification of hand written VOD, faxed computer generated VOD to 900#, Received written re-verification of VOD. Cosmetology license for the borrower shows her at Trishas Barbershop, however, verbally verified that borrower no longer works there. No VOE for David. Associates, however, verbally verified that she is a 1099 employee with them, which was not disclosed. Faxed 4506 — 7/2. Received W-2's and Tax Transcriptx, showing undisclosed employer "Sand Dollar Corp" for 2005 and 2006. Borrower has average annual income of 30K for past 2 years, no capacity to make payments on the loan. Recommendation to decline.
27. The "Underwriting Approval Notice" from LBB dated 6/13/2007, attached to Defendant's Counterclaim (Dkt. 14-1), states:
"We reserve the right to modify this approval or declare it null and void if any representations made in the loan file are incorrect or incomplete, if any material facts appear which have not been previously-revealed to us or if there is any adverse change in the Borrower's credit, outstanding obligations or employment, or in the value/condition of the property.
This approval for purchase is subject to final review of any underwriting conditions and the closing package.
Correspondents are reminded that an underwriting review by Aurora does not alleviate Seller of Seller's Guide Section 7 representations, warranties and covenants."
(Dkt. 14-2, pp. 3-4).
27. Plaintiff LBHI filed Chapter 11 proceedings in the Southern District of New York on September 15, 2008 (Dkt. 37-4).
28. Plaintiff LBHI filed suit on September 2, 2009.
IV. Dkt. 37 Motion for Summary Judgment A. Defendant's Motion
Defendant Key has moved for summary judgment in favor of Defendant Key and against Plaintiff LBHI. Defendant Key contends that all claims asserted by Plaintiff belong to Plaintiff's bankruptcy estate and may only be brought by Plaintiff's bankruptcy trustee. Defendant Key argues that Plaintiff LBHI is not the real party in interest, and is barred from bringing this action by Fed.R.Civ.P. 17(a). Defendant Key argues that the failure to bring this action in the name of the real party in interest is not the result of mistake or excusable neglect, and Plaintiff LBHI is not entitled to leave to amend its complaint. Defendant Key seeks entry of judgment in its favor on Plaintiff's claims.
Defendant Key argues that the entry of summary judgment in favor of Defendant Key on Plaintiff's claims is otherwise appropriate because LBHI did not notify Defendant Key of the default as to the Davis Loan and did not notify Defendant Key of the foreclosure sale as to the Padgett loan.
B. Plaintiff's Response
Plaintiff LBHI responds that a United States Bankruptcy Judge expressly authorized Plaintiff to pursue litigation, such as this case, to maximize recovery for the bankruptcy estate. Plaintiff LBHI relies on the November 5, 2008 Order of the Bankruptcy Court (Dkt. 40, Exh. B), and the August 5, 2009 Order of the Bankruptcy Court (Dkt. 40, Exh. C). The Order of November 5, 2008 authorizes LBHI to operate its businesses and manage its assets and properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. The Order of August 5, 2009 authorized LBHI to compromise and settle claims with respect to the origination or purchase of residential mortgage loans. The related Motion discussed the litigation of such claims, as well as presuit resolution.
As to Defendant Key's assertion of lack of notice, Plaintiff argues that proper notice was sent, and that receipt of notice is not a condition precedent to determine Defendant Key's liability. Plaintiff LBHI argues that the Loan Purchase Agreements specifically provide that Key Financial's repurchase obligation and indemnification shall exist "regardless of (i) the dates of Purchaser's discovery and notice to Seller of the breach and Purchaser's demand for any remedy . . ." (Dkt. 43, Exh. B, 710-711). Plaintiff LBHI argues that the Agreements do not specify that a demand must be made within a specific time frame to trigger repurchase or indemnification. Id.
C. Discussion 1) Real Party In Interest
The Court has taken judicial notice of the Orders of the Bankruptcy Court entered in Chapter 11 Case No. 08-13555 (JMP). The Order of November 5, 2008 authorizes the Debtors, inter alia, pursuant to sections 105(a), 327, 328, and 330 of the Bankruptcy Code, to the extent deemed necessary by the Debtors, to employ,nunc pro tunc to September 15, 2008, "Ordinary Course Professionals" as listed on Exhibit C of the Order, in the ordinary course of their businesses in accordance with the procedures set forth in the Order. The ordinary course of business of Plaintiff LBHI included buying mortgages in the secondary market, and pursuing breach of contract and tort claims associated with the purchase of those mortgages.
The Court notes the following preliminary statement of the Debtor's business, in Debtor's Motion (Dkt. 40, Exh. C):
8. Prior to the Commencement Date, the Debtors acquired thousands of mortgage loans secured by residential real properties ("Residential Mortgage Loans") for the purpose of selling such loans into special purpose entities that would issue securities secured by pools of mortgage loans to investors. The Debtors also held some of the acquired Residential Mortgage Loans for their own account. Some of the Residential Mortgage Loans have gone into default or have otherwise caused the Debtors to incur losses under circumstances that have implicated the representations, warranties or covenants made in connection with the origination or sale of such loans. The Debtors have pursued contract and tort claims against the originator and/or seller of such mortgage loans on account of such defects in a similar manner as they did prior to the Commencement Date. In many cases, the Debtors present the facts to the originators or sellers and have an opportunity to negotiate a reasonable settlement of the issues without the need for commencing litigation and purs[u]ing it to a final verdict-to the benefit of these estates and all parties-in-interest.
The Debtors further explain the acquisition of the Residential Mortgage Loans (par. 12) and what procedures were used prior to the Commencement Date when Residential Mortgage Loans went into default or were determined to contain violations of underwriting standards required by the applicable mortgage loan purchase and broker agreements entered into by LBB:
14. If a breach was determined to have occurred, Aurora, on behalf of the owner of the Residential Mortgage Loan, which most often was LBHI, would assert the relevant Repurchase or Indemnification Claim against the relevant party, pursuant to the terms of the applicable mortgage loan purchase or broker agreement, and request that the loan seller repurchase the loan at the contractually defined repurchase price or indemnify the owner of the Residential Mortgage Loan for losses suffered in the liquidation of the loan. If necessary, Aurora, on behalf of the owner of the Residential Mortgage Loan, which from time to time was LBHI, would commence litigation in furtherance of the Repurchase or Indemnification Claims against the relevant loan originators or sellers that breached a representation, warranty or covenant or failed to honor a contractual obligation. LBHI granted Aurora the authority to determine whether to commence litigation and the right to conduct litigation. Part and parcel of all of these rights, Aurora had the authority to settle Repurchase or Indemnification Claims, and did settle such claims both prior to commencing litigation and after commencing litigation.
The Debtors estimated that there were approximately 5,200 claims for which they may pursue Repurchase or Indemnification Claims, aggregating to hundreds of millions of dollars. The Debtors further alleged that since the Commencement Date through June 18, 2009, the Debtors filed forty-two lawsuits against sellers of Residential Mortgages with claims aggregating to $41,000,000, not including lawsuits that were active prior to the Commencement Date and filed in the name of Aurora for the benefit of Debtors and other loss owners of Residential Mortgage Loans. The Debtors alleged that they anticipated filing more actions in pursuit of their losses on Residential Mortgage Loans.
The Order of August 5, 2009 granted the Motion of LBHI and its affiliated debtors in the Chapter 11 cases, as Debtors and Debtors-in-Possession, pursuant to section 105(a) of the Bankruptcy Code and Rule 9019 of the Federal Rules of Bankruptcy Procedure, for authorization to compromise and settle certain claims with respect to the origination or purchase of residential mortgage loans, according to the procedures set forth in the Order.
This case is plainly within the scope of the Bankruptcy-Court's Orders. The Court finds that the Orders authorize Plaintiff LBHI to pursue Plaintiff's claims against Defendant Key. The Court further finds that Plaintiff LBHI is the real party in interest. Therefore, Defendant's Motion for Summary Judgment is due to be denied.
Because the Court has concluded that Plaintiff LBHI is the real party in interest, it is not necessary for the Court to consider whether Defendant Key is otherwise entitled to summary judgment. The Court notes that Plaintiff LBHI sent a recertification package to Defendant Key on May 4, 2007. (Dkt. 43, Ex. H). Plaintiff argues that the purpose of recertification is to provide Plaintiff LBHI with current information. Based on the mailing address contained in the recertification package, Aurora sent demand letters to Defendant's principal place of business, 3631 131st Avenue, Clearwater, FL, rather than to the address in Peel, Arkansas. Plaintiff LBHI argues that Defendant Key received notice of Plaintiff's demands when suit was filed on April 2, 2009, if not before.
The Court further notes that Section 710 of the Seller's Guide provides:
. . . . All of Purchaser's remedies hereunder, including, without limitation, the repurchase obligation with respect to the Mortgage Loan, the purchase obligation with respect to the Mortgaged property, and the indemnification with respect to any breach of a representation, warranty or covenant (or any other Event of Default), shall exist regardless of (i) the dates of Purchaser's discovery and notice to Seller of the breach and Purchaser's demand for any remedy and (ii) any limitation or qualification of a representation or warranty as being made "to Seller's knowledge" or "to the best of Seller's knowledge" or any other similar qualification relating to the knowledge of Seller. Notwithstanding any other provision of the Seller's Guide or Loan Purchase Agreement to the contrary, Seller shall remain liable for all remedies hereunder, even if Purchaser discovers a breach after the Mortgage Loan is liquidated in foreclosure.
(Dkt. 43, Ex. B).
The above provision clarifies that Defendant's obligations, including Defendant's liabilities, to Plaintiff survive in the event of a defective notice. If notice to Defendant was not given in the agreed upon form, at most this would affect the choice of Plaintiff's remedy, which is at the option of Plaintiff, rather than the Defendant's liability for the remedy chosen. If Defendant Key did not become aware of Plaintiff's demand for repurchase at the relevant time, that is, when Defendant Key had the opportunity to cure any defect, Plaintiff's claim for indemnification would still survive. It is undisputed that since the filing of this case, Defendant Key has not repurchased the loans at issue or indemnified Plaintiff LBHI for Plaintiff's losses.
After consideration, the Court denies Defendant's Motion for Summary Judgment Dkt. 27).
V. Dkt. 38 Motion for Partial Summary Judgment
Plaintiff LBHI moves for partial summary judgment in favor of Plaintiff as to liability on Count I, Breach of Contract, and on Defendant Key's Counterclaims. Plaintiff LBHI argues that Defendant Key was required by the unambiguous terms of the Loan Purchase Agreements and Seller's Guide to repurchase the two loans at issue, and to indemnify Plaintiff LBHI for its losses. Plaintiff LBHI contends that Defendant Key breached the contract by Defendant's refusal to repurchase an Early Payment Default loan, and by Defendant's refusal to indemnify on a loan in breach of Defendant's representations and warranties, specifically the borrower's inaccurate representations of the borrower's debts which Defendant Key did not discover.
Defendant Key argues Plaintiff's request for entry of summary judgment should be denied because many of the material facts are disputed, and because evidence submitted by Plaintiff is inadmissible and should not be considered. Defendant Key further argues that Plaintiff LBHI does not have standing, that adequate notice of Defendant's breaches of contract was not given, and that LBB was obligated to purchase the Wolf Loan.
Defendant Key argues that documents which are attached to the Declaration of Zachary Trumpp (Dkt. 39) and Declaration of Justin Balser (Dkt. 40) have not been authenticated and/or are not admissible. Defendant Key requests that the Court exclude from consideration Exhibits C (Assignment Agreement), E (Mortgage Loan History), F (Demand Letters), K (Borrower Letter) attached to the Trumpp Declaration, and Exhibit E (Court Order of 11/5/2008) attached to the Balser Declaration. The Court notes that Defendant Key mistakenly referred to Exhibit J as the "Borrower Letter" but intended to request the exclusion of Exhibit K.
In Plaintiff's Reply, Plaintiff LBHI responds that the Affidavit of Zachary Trumpp properly authenticates the various business records. Zachary Trumpp was employed by Aurora as Assistant Vice President of Secondary Marketing, Vice President for Contract Administration, Vice President for Loss Management, and Vice President of Operational Controls. Zachary Trumpp was familiar with Aurora's record-keeping systems, and Aurora maintained the documents attached to the Trumpp Declaration. Plaintiff LBHI further argues that Zachary Trumpp is Plaintiff's corporate representative for this case, is authorized to make the Declaration on behalf of LBHI, and has personal knowledge of the facts in the Declaration. Plaintiff LBHI argues that the circumstances indicate the Exhibits attached to the Trumpp Declaration are trustworthy and reliable, and Zachary Trumpp is competent to testify as to their authenticity.
Plaintiff LBHI argues that the Trumpp Declaration provides a proper foundation for Exhibits E and I as business records, and properly authenticates Exhibits C, F and K. Plaintiff LBHI further argues Defendant Key's statement that all of the documents attached to the Trumpp Declaration were produced by Plaintiff LBHI in discovery is not accurate. Plaintiff LBHI argues that in Defendant Key produced Exhibits A, D, F, G, H and K in discovery and therefore these Exhibits should be deemed authentic.
A. Defendant Key's Request for Exclusion of Documents
To the extent that Defendant Key's response to Plaintiff LBHI's Motion for Partial Summary Judgment requests the exclusion of documents from the Court's consideration, Defendant Key should have filed a separate motion to strike instead of burying Defendant's request for relief in Defendant's response. After consideration, the Court finds that the documents have been adequately authenticated, and that the documents are admissible at trial, or could be made admissible at trial. After consideration, the Court denies Defendant Key's request to exclude the designated documents from consideration.
Defendant Key disputes the existence of a valid contract between Plaintiff LBHI and Defendant Key. Defendant Key's challenge to Plaintiff's standing is based on the exclusion of the Assignment Agreement from the Court's consideration. Since the Court has not excluded the document, Defendant Key's challenge to standing is not a genuine challenge.
Defendant Key argues that notice of the alleged breaches of contract was not given, and damages could have been mitigated if notice had been given. The Court addressed the issue of adequate notice in connection with Defendant's Motion for Summary Judgment, and therefore finds that either adequate notice was given before suit was filed by the demand letters, or was given when suit was filed through the allegations of the Amended Complaint.
Defendant Key disputes that it was obligated to repurchase loans or indemnify losses resulting from loans that were obtained through frauds perpetrated on Defendant Key. Defendant Key asserts that Defendant cannot be responsible to indemnify Plaintiff LBHI for damages caused by the intentional, fraudulent and criminal acts of third parties. Defendant Key further argues that Plaintiff has not presented any evidence as to causation, or the amounts required to indemnify Plaintiff, and the remedy of repurchase is not available because both loans have been foreclosed.
B. Breach of Contract 1. Choice of Law
The Court notes that the Loan Purchase Agreement provides that New York law applies to this dispute. Florida respects choice of law provisions in contracts. See Clarendon Am. Ins. Co. v. Bayside Rest., LLC, 567 F.Supp.2d 1379, 1388 (M.D. Fla. 2008). The Court is not aware of any public policy issue that would support a finding that the choice of law provision is not enforceable. The Court finds that New York law applies to the resolution of this case.
2. General Principles
Under New York law, the elements of a breach of contract claim are: 1) the existence of a valid contract; 2) performance by the plaintiff; 3) defendant's failure to perform; and 4) resulting damages. Clearmont Property, LLC v. Eisner. 58 A.D.3d 1052, 1055 (3rd Dept. 2009).
A loan seller's failure to repurchase non-conforming loans upon demand as required by a contract is an independent breach of contract entitling the plaintiff to pursue general contract remedies for breach of contract. See LaSalle Bank Nat'l Ass'n v. Lehman Brothers Holding, Inc., 237 F.Supp.2d 618, 638 (D. Md. 2002) (applying New York law) (citing Resolution Trust Corp. v. Key Financial Services, Inc., 280 F.3d 12, 17-18 (1st Cir. 2002).
3. Loan #1, Padgett Loan — ****6119
LBB purchased Loan ****6119 from Defendant Key on July 10, 2007. The borrower's first payment to Aurora Loan Services, LLC was due on August 1, 2007. (Dkt. 43, Exh. D.) The borrower did not make the first payment or any other payments. Aurora Loan Services, LLC notified Key Financial the loan became an EPD and demanded repurchase of the loan on September 14, 2007. (Dkt. 43, Exh. F). Defendant Key did not repurchase or indemnify Plaintiff for the EPD Loan ****6119 within thirty days of notice and demand, as required by the Loan Purchase Agreement and the Seller's Guide. In the alternative, Defendant Key was notified of Plaintiff's demand for repurchase or indemnification when suit was filed on April 2, 2009, and did not repurchase the loan or indemnify Plaintiff LBHI within thirty days of that date.
4. Loan #2, Davis Loan — ****7228
LBB purchased Loan ****7228 from Defendant Key Financial on July 9, 2007.
The Loan Purchase Agreement contains provisions which require that the supporting documentation contain no material misrepresentations or omissions (Sections 703(1), 703(12)), and that Defendant Key made the inquiries necessary to confirm the accuracy of the representations to LBB. The borrower of Loan ****7228 stated on his loan application that he had no prior mortgage debts. The borrower did not disclose that he had obligated himself on June 4, 2007 to a first and second mortgage. The first mortgage of $404,000 had an estimated monthly payment of $4,964.61. The second mortgage of $75,750 had an estimated monthly payment of $763.81 per month. Taxes were $595.92 per month and hazard insurance was estimated at $75.00 per month. Therefore the estimated total payment was $4,403.64 per month. When this payment is included in the borrower's total monthly debt of $3,796.09, as listed on the borrower's application, the ratio of the borrower's debt to income becomes 93.71%, which grossly exceeds the lender's guidelines.
The Court notes that the Aurora Loan Services, LLC notified Defendant Key that the loan breached the representations and warranties and demanded indemnification in a letter dated July 10, 2009 (Dkt. 43, Ex. F). In Section 710, the Seller's Guide provides that, in the event of a breach of representations, warranties or covenants, or an EPD, Seller shall repurchase, at Purchaser's option (Dkt. 43, Ex. B). In the First Amended Complaint, Plaintiff LBHI alleges that Plaintiff demanded that Defendant repurchase the loan (Dkt. 9, par. 20). The Court is not aware of any written notice to Defendant in which Plaintiff requested the repurchase of this loan. The notice to Defendant Key requested only indemnification. This loan was liquidated on August 15, 2008, with a loss of $78,126.97. It is not clear to the Court how a loan that has been liquidated could be repurchased. Plaintiff requested indemnification on July 10, 2009. Defendant Key did not indemnify Plaintiff LBHI for the losses.
In the alternative, Defendant Key was notified of Plaintiff's demand for indemnification when this case was filed on April 2, 2009. Defendant Key has not indemnified Plaintiff LBHI since April 2, 2009.
After consideration, the Court grants Plaintiff's Motion for Partial Summary Judgment (Dkt. 38) as a matter of law as to liability on Count I of the First Amended Complaint. This case will be scheduled for a jury trial on damages on the next available calendar.
3. Counterclaim
Counter-Defendant LBHI seeks entry of summary judgment in favor of LBHI on the Counterclaim. Counter-Defendant LBHI argues that LBHI is not the proper counterclaim defendant. In the Counterclaim, Counterclaim Plaintiff Key alleges that LBB and Defendant Key entered into valid, binding agreements, and that LBB represented it would purchase and underwrite the Wolf Loan with a premium. Counter-Defendant LBHI argues that LBB assigned its rights and remedies to Plaintiff LBHI under the Assignment Agreement, but did not transfer its liabilities.
Counter-Defendant LBHI further argues that, even if the proper party had been named in the Counterclaim, it is undisputed that the Wolf Loan does not meet Plaintiff's underwriting guidelines. Plaintiff seeks entry of summary judgment on both the breach of contract and fraud claims because LBB had no obligation to purchase the Wolf Loan.
Counter-Plaintiff Key argues that Plaintiff LBHI is not entitled to summary judgment on the Counterclaim. Counter-Plaintiff Key contends that Counter-Defendant LBHI stands in the shoes of LBB and is subject to the same claims and defendants to which LBB would be subject. See Banque de Paris at des Pay-Bas v. Amoco Oil Co., 573 F.Supp. 1464, 1469 (S.D.N.Y. 1983).
A. Counterclaim — Breach of Contract
In the Counterclaim (Dkt. 14, p. 10), Counter-Plaintiff Key alleges:
53. Upon information and belief and as inferred by Lehman Brothers Holdings, Inc., Lehman Brothers Bank, FSB has assigned its responsibilities under its agreements and contracts to Lehman Brothers Holdings, Inc.
54. In an abundance of caution, and should Par. 53 be denied, Key Financial sues both Lehman Brothers Holdings, Inc. and Lehman Brothers Bank, FSB.
Counter-Plaintiff Key alleges that Lehman Brothers Bank, FSB/Lehman Brothers Holdings, Inc. did not purchase the Wolf mortgage after agreeing to do so, in contravention of the terms of their agreement (Dkt. 14, p. 11). Counter-Plaintiff Key alleges that Lehman Brothers Holdings, Inc. owes Key Financial at least $583,780 for its breach of the agreement.
Counter-Plaintiff Key seeks the entry of judgment in its favor and against Lehman Brothers Bank, FSB/Lehman Brothers Holdings, Inc., the award of financial actual and consequential damages, prejudgment interest, and other appropriate relief.
Counter-Defendant LBHI has moved for summary judgment as to Counter-Plaintiff's breach of contract Counterclaim on the Wolf Loan. Counter-Defendant LBHI argues LBB did not transfer its liabilities to Counter-Defendant LBHI, and that, since the Wolf Loan did not conform to LBB's underwriting guidelines, Counter-Defendant LBHI had no duty to purchase the Wolf loan. Counter-Defendant LBHI argues that the borrower's application raised red flags. Aurora Loan Services, LLC reviewed the borrower's employment, determined that the borrower's employment did not correspond to her previous work experience, and was suspect. (Dkt. 39-11).
1. Discussion
Counter-Plaintiff Key has asserted its claim for breach of contract against Lehman Brothers Bank, FSB and Counter-Defendant Lehman Brothers Holdings, Inc. However, LBB is not a party to this case, and Counter-Plaintiff never sought leave to add LBB as a party to this case. The Court deems the Counterclaim to be abandoned as to LBB, and dismisses the Counterclaim as to Lehman Brothers Bank, FSB.
The Court has examined the terms of the Assignment Agreement. The Assignment Agreement provides that it is governed by New York law. The Assignment Agreement further provides:
Section 1. Assignment.
(a) The Assignor hereby assigns, transfers and conveys to the Assignee all of its rights in and to the Agreements, including rights in and to any and all representations, warranties, or covenants made by Sellers to the Assignor in the Seller's Guide and/or Agreements, along with any or all of the Assignor's remedies against the Sellers for the Sellers' breach of any representation, warranty or covenant under the Seller's Guide and/or Agreements, including, without limitation, the repurchase and indemnification remedies. Pursuant to Section 7 of the Seller's Guide, Assignee is an intended third party beneficiary of those representations, warranties, covenants and remedies set forth in the Seller's Guide or Agreements.
. . . . .
Section 7. Benefits of Agreement
Nothing in this Assignment Agreement, express or implied, shall give to any person, other than the parties to this Assignment Agreement, their successors hereunder, any benefit or any legal or equitable right, power, remedy or claim under this Assignment Agreement.
The Court notes that the assignment in this case is a not a "normal commercial assignment" in which the Assignee is substituted for the Assignor as to both rights and duties, but is a financing assignment, in which only the Assignor's rights were transferred. The UCC, which New York has adopted, explicitly provides that the rights of the Assignee are subject to all terms of the contract between the account debtor and the Assignor, and any defense or claim arising therefrom. The account debtor may not assert claims or defenses which arise after notice of the Assignment has been received by the account debtor, but may assert those which accrue before.
Counter-Defendant LBHI alleges that Counter-Plaintiff Key received notice of the Assignment Agreement by November, 2009. Therefore, Counter-Plaintiff Key may assert its Counterclaim, which accrued in 2007. However, the Court is not aware of any factual disputes which preclude the entry of summary judgment to Counter-Defendant LBHI. The Wolf Loan was subject to all the provisions of the Seller's Guide. The Underwriting Approval Notice was subject to later review, which revealed red flags and misrepresentations of the account debtor, releasing LBB and Plaintiff LBHI from any duty to purchase the Wolf Loan. Under the undisputed facts Counter-Defendant LBHI was not required to purchase the Wolf Loan.
After consideration, the Court grants Counter-Defendant Motion for Summary Judgment as to Count I of the Counterclaim, for breach of Contract.
B. Fraud
In Count II of the Counterclaim, Counterclaim Plaintiff Key alleges that at the time the Underwriting Approval Notice attached to the Counterclaim was issued, June 13, 2007, Plaintiff had no intention of purchasing the Wolf Loan, and knew that LBB was undergoing a reorganization and would not exist to purchase the Wolf Loan. Generally, under New York law a separate cause of action seeking damages in fraud cannot stand where the only fraud relates to the breach of contract. Gizzi v. Hall, 300 A.D.2d 879, 880 (3'D Dept. 2002). After consideration, the Court grants Counter=Defendant LBHI's Motion for Summary Judgment as to Count II. Accordingly, it is
ORDERED that Defendant's Motion for Summary Judgment is denied (Dkt. 37), Plaintiff's Motion for Partial Summary Judgment on Count I of the Complaint is granted, and Counter-Defendant LBHI's Motion for Summary Judgment on the Counterclaim is granted. The Counterclaim is dismissed without prejudice as to LBB. This case will be set for jury trial on damages as to Count I on the next available calendar.
DONE AND ORDERED in Chambers, in Tampa, Florida on this 31st day of March, 2011.