Opinion
10036 Index 650369/13
10-10-2019
U.S. BANK NATIONAL ASSOCIATION, etc., Plaintiff–Respondent, v. DLJ MORTGAGE CAPITAL, INC., Defendant–Appellant.
Orrick, Herrington & Sutcliffe LLP, New York (Daniel A. Rubens of counsel), for appellant. Kasowitz Benson Torres LLP, New York (David J. Abrams of counsel), for respondent.
Orrick, Herrington & Sutcliffe LLP, New York (Daniel A. Rubens of counsel), for appellant.
Kasowitz Benson Torres LLP, New York (David J. Abrams of counsel), for respondent.
Manzanet–Daniels, J.P., Kern, Oing, Singh, JJ.
The written notice sent from plaintiff to defendant dated December 6, 2011, made within the statutory limitations period and well in advance of any lawsuit, informed defendant that a substantial number of identified loans were in breach, and that the pool of loans remained under scrutiny, with the possibility that additional nonconforming loans might be identified. The notice complied with the contractual condition precedent of notifying defendant of its default, such that subsequently identified loans, including the 480 identified by plaintiff's expert during discovery, related back to the time of the initial notice (see Home Equity Mtge. Trust Series 2006–1 v. DLJ Mtge. Cap., Inc. ["HEMT 2006–1 "], 175 A.D.3d 1175, 109 N.Y.S.3d 231, 2019 N.Y. Slip Op.06576, 2019 WL 4418864, at *2 [1st Dept. 2019] ; U.S. Bank N.A. v. GreenPoint Mtge. Funding, Inc. , 147 A.D.3d 79, 88–89, 45 N.Y.S.3d 11 [1st Dept 2016] ; Nomura Home Equity Loan, Inc., Series 2006–FM2 v. Nomura Cred. & Cap., Inc. , 133 A.D.3d 96, 19 N.Y.S.3d 1 [1st Dept. 2015], mod on other grounds 30 N.Y.3d 572, 92 N.E.3d 743 [2017] ). Since defendant was placed on written notice of breach as to all loans on December 6, 2011, it follows that March 5, 2012—under the applicable contractual repurchase protocol, the end of the applicable 90–day cure period, at which point defendant was required to repurchase any uncured, nonconforming loans—is likewise the appropriate date of repurchase.
The motion court properly ruled that interest could be calculated on liquidated loans, at the applicable mortgage rate, up until the repurchase date (see " HEMT 2006–1 ," 175 A.D.3d at 1175-77, 109 N.Y.S.3d 231, 2019 N.Y. Slip Op. 06576, *5 ; Nomura , 133 A.D.3d at 106–107, 19 N.Y.S.3d 1 ).