949 F. Supp. 2d 486
S.D.N.Y.2013Background
- BNP Paribas Mortgage Corp., BNP Paribas and Deutsche Bank bring contract and tort claims against Bank of America related to Ocala Notes issued by TBW and secured by Ocala collateral.
- BoA acted as Indenture Trustee, Collateral Agent, Depositary and Custodian under multiple Ocala Facility Documents (Base Indenture, Security Agreement, Depositary and Custodial Agreements).
- TBW collapse in Aug 2009 led to insolvency of Ocala and default on notes; BoA declared Event of Default Aug 2009.
- SACs introduce new negligence, misrepresentation, and quasi-contract theories, including alleged misstatements in Borrowing Base Certificates and improper intra-day loans to Ocala.
- Courts previously dismissed some related claims in prior BNP/BoA actions; this motion seeks dismissal of counts four-nin e and fourteen in BNP’s SAC and related DB claims.
- Judge granted BoA’s Rule 12(b)(6) motion in full, dismissing all remaining claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to sue itself or to assign | BNP/BNPP imply BoA must sue itself or assign claims | No contractual duty to sue itself or assign; law bars such actions | Claims dismissed; no duty to sue itself or assign |
| Negligence claims independent duty | Facility Documents carve out negligence; independent duty exists | No independent duty; economic loss rule applies | Negligence claims dismissed |
| Negligent misrepresentation claims | Special relationship/contract carve-out supports misrepresentation claim | No special duty; contract and disclosures foreclose tort claim; standing lacking | Negligent misrepresentation claims dismissed |
| Quasi-contract claims (unjust enrichment, constructive trust, promissory estoppel, negligent performance) | Alternative theories survive if contracts void or breached | No unjust enrichment or constructive trust without independent duty or valid promise; economic loss rule | Quasi-contract claims dismissed |
Key Cases Cited
- Globe & Rutgers Fire Ins. Co. v. Hines, 273 F.2d 774 (2d Cir.1921) (general rule against one party suing itself; limits on cross-capacity actions)
- Cruden v. Bank of New York, 957 F.2d 961 (2d Cir.1992) (trustee not required to sue itself; absurd to demand such action)
- South Spring Hill Gold-Min. Co. v. Amador Medean Gold-Min. Co., 145 U.S. 300 (U.S. 1892) (requiring actual controversy between adverse parties; standing constraints)