ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Before the court are Defendant Evergreen Moneysource Mortgage Company’s (“Evergreen”) motion for summary judgment (Dkt. #27), and Plaintiff Lehman Brothers Holdings, Inc.’s (“LBHI”) motion for summary judgment (Dkt. # 28). Having reviewed the motions, the parties’ submissions in support and opposition thereto, the balance of the record, and the governing law, and having heard oral argument on June 2, 2011, the court GRANTS Evergreen’s motion for summary judgment on the basis of expiration of the statutory limitations period (Dkt. #27), and DENIES LBHI’s motion for summary judgment as MOOT (Dkt. # 28).
II. BACKGROUND
LBHI filed this action against Evergreen on January 28, 2010. (Compl. (Dkt. # 1).) LBHI alleges claims for breach of contract and breach of express warranty arising out of a Loan Purchase Agreement (“LPA”) entered into between Evergreen and Aurora Loan Services, Inc. (“ALS”) on June 16, 2000. (See Compl.; Baker Deck (Dkt. #29) Exs. 1-A & 1-C.) The LPA incorporates the terms and conditions of ALS’s Seller’s Guide. (See Compl.; Baker Deck Exs. 1-A & 1-C.) Any loans purchased under the LPA were to be made “pursuant to the terms and conditions of the Seller [sic] Guide.” (Baker Deck Ex. 1-A.)
ALS is the wholly owned subsidiary of Lehman Brothers Bank, FSB n/k/a Aurora Bank, FSB (“LBB”), and LBHI is a parent corporation of both LBB and ALS. (Baker Deck ¶ 4.) ALS is the authorized agent, servicer, and/or master servicer for LBB and LBHI for certain mortgage loans in which LBB and LBHI have an interest, including the mortgage loan that is the subject of this litigation. (Id.) LBHI contends that, through assignment, it is the successor-in-interest of LBB and ALS with respect to rights under the LPA with Evergreen. (Compl. at 3.) For ease of reference, both LBB and ALS will be referred to simply as “LBB” throughout the remainder of this order.
Evergreen is a mortgage banker. (Moley Deck (Dkt. # 27-4) ¶ 2.) On November *1192 16, 2001, Evergreen began selling various loans to LBB pursuant to the LPA. (Baker Decl. ¶¶ 2, 5.) Under sections 703(1), 703(12) and 703(36) of the Seller’s Guide, Evergreen made certain representations, warranties and covenants regarding the accuracy and truthfulness of the information contained in “any Mortgage Loan File,” including “the Mortgager’s application for the Mortgage Loan,” and “the property appraisal or valuation.” (Id. Ex. 1-C §§ 703(1), 703(12), 703(36).)
LBHI asserts that Evergreen breached the representations, warranties, and covenants within the Seller’s Guide pertaining to a mortgage loan that Evergreen entered into with Mr. Wayne Stiffler (“the Stiffler loan”) and subsequently sold to LBB. (See generally Compl.) LBHI asserts that certain documents that Evergreen submitted with the Stiffler loan contain untrue statements and misrepresentations. (LBHI Mot. (Dkt. # 28) at 7.) First, LBHI asserts Mr. Stiffler misrepresented his base employment income at the time he executed his application for a mortgage loan. (Id. at 8-11.) Second, LBHI asserts that the origination appraisal overstates the value of Mr. Stiffler’s property. (Id. at 11-13.) LBHI asserts that pursuant to the Seller’s Guide, Evergreen agreed to “indemnify” LBHI for losses pertaining to mortgage loans containing misrepresentations in the loan files. (Id. at 13-15.) LBHI has moved for summary judgment with regard to these claims. (Id. at 13-24.)
Evergreen has also moved for summary judgment relying primarily on a variety of affirmative defenses. (See generally Evergreen Mot. (Dkt. # 27).) One of the affirmative defenses raised by Evergreen in its motion for summary judgment is expiration of the statute of limitations for contract actions. (Id. at 22.) Mr. Stiffler executed his application for a mortgage loan with Evergreen on April 24, 2003. (Baker Decl. Ex. 1-K.) The origination appraisal with regard to Mr. Stiffler’s property is dated March 14, 2003. (Id. Ex. 1-L.) LBB purchased the Stiffler loan from Evergreen on May 12, 2003. (Moley Decl. (Dkt. #27-4) Ex. 5; Baker Decl. ¶ 7.) The Stiffler application and the origination appraisal were documents furnished to LBB at the time that the Stiffler loan was sold to LBB. (LBHI Mot. at 8.) On June 3, 2003, LBB sold and assigned the Stiffler loan to LBHI. (Baker Decl. ¶¶ 5-6 & Exs. 1-D & 1-G.)
On September 18, 2008, LBHI filed for voluntary bankruptcy under Chapter 11 of of the United States Bankruptcy Code. See In re Lehman Brothers Holdings, Inc., et al., No. 08-1355(JMP) (Bankr.S.D.N.Y.). LBHI filed this action against Evergreen on January 28, 2010 in an effort to preserve the value of its assets for the benefit of its creditors in the bankruptcy proceedings. (LBHI Resp. (Dkt. # 35) at 21.) However, LBB did not execute a written agreement to assign its rights under the LPA and the Seller’s Guide to LBHI until February 24, 2011 (Baker Decl. Ex. 1-H), more than one year after LBHI filed suit on January 28, 2010, and more than two years after LBHI filed for bankruptcy on September 18, 2008.
III. ANALYSIS
A. Standards
Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits, when viewed in the light most favorable to the nonmoving party, “show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see Celotex Corp. v. Catrett,
B. Statute of Limitations
Both parties agree that New York substantive law governs this contract action.
(See
LBHI Mot. at 15-16; Evergreen Mot. at 3;
see also
Baker Decl. Ex. 1-C § 713 (“The [LPA] shall be construed in accordance with the substantive law of the State of New York....”).) In New York, the statute of limitations with regard to a contract action is six years. CPLR § 213(2) (McKinney). The statute of limitations for contract actions begins to run from the date of the first alleged breach, even in the event that damages do not accrue until a later date.
Nat’l Urban Ventures, Inc. v. City of Niagara Falls,
As noted above, LBB purchased the Stiffler loan from Evergreen on May 12, 2003. (Moley Decl. Ex. 5; Baker Decl. ¶ 7 & Ex. 1-J.) According to LBHI, at the time that LBB purchased the loan, the Mortgage Loan File “contained untrue statements and misrepresentations” (LBHI Mot. at 7), including misrepresentations concerning Mr. Stiffler’s income
(id.
at 8-11), and misrepresentations concerning the value of the property
(id.
at 11-13). Evergreen asserts, therefore, that the statute of limitations with regard to LBHI’s breach of contract claims began to run on May 12, 2003, the date that LBB acquired the loan.
See, e.g. Hernandez v. Bank of Nova Scotia,
LBHI responds to Evergreen’s statute of limitations argument in a number of ways. First, LBHI asserts that the statute of limitations accrual date is actually November 7, 2009, rather than May 12, 2003. On October 8, 2009, a representative of LBHI sent a letter to Evergreen demanding payment for the $135,662.66 loss LBHI suffered on the liquidated Stiffler loan. (Moley Decl. Ex. 12.) LBHI asserts that Evergreen breached sections 710 and 711 of the Seller’s Guide by failing to “indemnify” LBHI for this loss within thirty (30) days of LBHI’s demand. (LBHI Resp. (Dkt. # 35) at 22 n. 7.) As a result, according to LBHI, its breach of contract claims against Evergreen actually accrued on November 7, 2009 (30 days following LBHI’s October 8, 2009 demand), rather than on May 12, 2003. (Id.)
LBHI’s argument concerning the statute of limitations accrual date is
*1194
flawed. First, Evergreen’s duty under sections 710 and 711 to either repurchase mortgage loans or “indemnify”
2
for losses incurred as a result of a mortgage loan is only triggered by “a breach of any of the representations, warranties, or covenants contained in Section 700 through 710 herein....” (Baker Decl. Ex. 1-C at § 710.) As noted above, Evergreen is alleged to have provided the subject misrepresentations to LBB on May 12, 2003. Under New York law, the statute of limitations begins to run from the date of the first alleged breach of a contract.
See Nat’l Urban Ventures,
LBHI also counters that its claims are saved from Evergreen’s statute of limitations defense pursuant to provisions contained within Title 11 of the United States Code (“the Bankruptcy Code”). On September 15, 2008, LBHI commenced voluntary bankruptcy under Chapter 11 of the Bankruptcy Code. 3 Section 108(a) of the Bankruptcy Code states:
*1195 If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of — (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) two years after the order for relief.
11 U.S.C. § 108(a). The commencement of a voluntary Chapter 11 case constitutes an “order of relief’ under section 108(a)(2). 11 U.S.C. § 301(b). Thus, pursuant to section 108(a)(2), LBHI asserts that it had two years from the date it filed for voluntary bankruptcy to commence this lawsuit because the six year limitations period had not yet expired when LBHI filed its bankruptcy petition. According to LBHI, therefore, the limitations period, adjusted by section 108(a)(2), would not expire until September 15, 2010, more than eight months following the date that LBHI filed suit. (LBHI Mot. at 21-22.)
LBHI’s arguments with regard to application of the Bankruptcy Code, however, are also flawed. The only written assignment agreement before the court between LBHI and LBB with regard to rights under the LPA and Seller’s Guide is dated February 24, 2011 — more than a year after LBHI commenced suit in this action on January 28, 2010. (Compare Baker Decl. Ex. 1-H with Compl.) Thus, by the time LBHI had acquired rights on February 24, 2011 to bring an action under the LPA and Seller’s Guide against Evergreen, the statute of limitations on LBB’s claim against Evergreen had already expired — irrespective of whether the statute of limitations expired on May 12, 2009, or on September 15, 2010 as adjusted by section 108(a)(2) of the Bankruptcy Code.
LBHI nevertheless asserts that the February 24, 2011 assignment is valid because it was executed prior to trial.
(See
LBHI Reply (Dkt. # 38) at 11-12.) Some courts have found that such assignments, executed after suit has been filed but before trial, are valid so long as the defendant suffers no prejudice.
See, e.g., Dubuque Stone Prods. Co. v. Fred L. Gray Co.,
In this case, however, Evergreen would suffer prejudice if the court were to recognize the post-filing assignment. LBHI filed suit on January 28, 2010, and thus did not assert a claim based on the LPA and
*1196
the Seller’s Guide prior to the expiration of the May 12, 2009 statute of limitations on the original claim. Thus, the timeliness of LBHI’s claim depends on the two-year extension to the statute of limitations provided by the Bankruptcy Code in section 108(a)(2), 11 U.S.C. § 108(a)(2), and the relation back of the February 24, 2011 assignment to the date that the complaint was filed on January 28, 2010. In remarkably similar circumstances, the Ninth Circuit refused to recognize an assignment that was granted after the filing of a complaint, where such recognition would serve to revive a claim previously extinguished by the limitations period.
See United States ex rel. Wulff v. CMA, Inc.,
Further, courts have held that the extension of time to file suit provided by section 108(a)(2) applies only to claims that the debtor could have brought prior to or on the date of the bankruptcy filing.
Sender v. Mann,
Nevertheless, LBHI asserts that despite the February 24, 2011 date on the assignment agreement between LBHI and LBB, the assignment of LBB’s claims to LBHI actually occurred earlier than this date. (LBHI Reply at 12 n. 5.) The only evidence in the record that LBHI cites to support this notion is a statement in the recitals of the February 24, 2011 assignment. The portion of the recitals relied upon by LBHI states in full:
WHEREAS, in furtherance of Assign- or’s [LBB] sale of the Mortgage Loans to Assignee [LBHI] and of Assignee’s investment purposes in acquiring the Mortgage Loans, Assignor and Assignee have previously agreed to have Assignor assign, transfer and convey to Assignee rights and remedies Assignor may have with respect to the Mortgage Loans under the Agreements between Assignor and those Sellers identified on Exhibit A, to the extent such rights and remedies are assignable under the terms of such Agreements, and Assignor and As *1197 signee now wish to document that prior agreement.
(Id.) LBHI argues that the statute of limitations is an affirmative defense with respect to which Evergreen bears the burden of proof. (LBHI Reply at 12 n. 5.) LBHI further argues that because “Evergreen has not offered any summary judgment evidence as to when the previous agreement of the assignment of rights and remedies referenced in the Assignment Agreement occurred,” Evergreen “has failed to meet its burden.” (Id.)
LBHI’s argument concerning the recital in the February 24, 2011 assignment agreement also fails. Evergreen carries the burden of establishing a failure to comply with the statute of limitations.
Chachas v. City of Ely,
Because Evergreen has met its initial burden, the burden then shifts to LBHI to set forth specific facts showing the existence of genuine issues of material fact with regard to Evergreen’s statute of limitations affirmative defense.
Chachas,
“A non-movant’s bald assertions or a mere scintilla of evidence are both insufficient to withstand summary judgment.”
FTC v. Stefanchik,
Finally, LBHI asserts that the court should not enter summary judgment with regard to the statute of limitations because Evergreen failed to raise it as an affirmative defense in its answer to the complaint. Although in a diversity action, the federal court must apply the applicable state statute of limitations, the Federal Rules of Civil Procedure determine the manner and time in which the defense may be raised and when waiver occurs.
Han v. Mobil Oil Corp.,
LBHI has asserted that it is prejudiced because “it has not been afforded any opportunity to respond until now or conduct any discovery related to this defense.” (LBHI Resp. at 20.) First, the fact that LBHI’s initial opportunity to respond to Evergreen’s statute of limitations defense occurred during the course of summary judgment briefing does not demonstrate prejudice. The parties have had had ample opportunity to address the issue in their summary judgment briefs and accompanying filings. Under these circumstances, LBHI has not been prejudiced in its ability to respond.
See Sedivy v. City of Boise,
No. 1:05CV00083,
Counsel for LBHI also asserted during oral argument that LBHI was unable to obtain the information it needed from LBB to respond to the statute of limitations issue because by the time Evergreen raised the issue the discovery cutoff had already occurred, and therefore LBHI could not issue any formal discovery requests to LBB. The court is not persuaded with regard to LBHI’s inability to obtain the information from LBB. First, because LBHI is a party to the alleged earlier assignment, any evidence concerning this assignment would logically be within LBHI’s, as well as LBB’s, control. Further, LBB is a wholly owned subsidiary of LBHI and so the court does not understand why LBHI would need to issue formal discovery requests in order to obtain information from LBB. Indeed, the Ninth Circuit has stated that “[a] corporation must produce documents possessed by a subsidiary that the parent company owns or wholly controls.”
United States v. Int’l Union of Petroleum and Indus. Workers, AFL-CIO,
Finally, the court notes that LBHI failed to move pursuant to Federal Rule of Civil Procedure 56(d) (formerly denominated as Rule 56(f))
6
for a continuance to conduct additional discovery on the statute of limitations issue, and failed to demonstrate its need for such a continuance “by affidavit or declaration.”
See
Fed.R.Civ.P. 56(d). “ ‘References in memoranda and declarations to a need for discovery do not qualify as motions under Rule 56(f) [now 56(d) ],’ ” and “ ‘[f]ailure to comply with the requirements of Rule 56(f) [now 56(d) ] is a proper ground for denying discovery and proceeding to summary judgment.’ ”
California v. Campbell,
*1200 IV. CONCLUSION
Based on the foregoing, the court GRANTS Evergreen’s motion for summary judgment with regard to the statute of limitations affirmative defense. (Dkt. #27.) Because the court grants Evergreen’s motion on this ground, the court finds it unnecessary to reach the various other grounds for summary judgment asserted in Evergreen’s motion. In addition, the court DENIES LBHI’s motion for summary judgment (Dkt. # 28) as MOOT.
Notes
. The fact that LBHI may not have discovered Evergreen’s alleged misrepresentations until a later date does not alter the initiation of the limitations period.
Hernandez,
. The fact that LBHI refers to Evergreen's alleged obligation as one of "indemnity'' does not alter the commencement date of the limitations period. Under New York law, a claim for contractual indemnity ordinarily accrues either when judgment is entered or liability is imposed upon the party seeking indemnification,
see, e.g., Roldan v. Allstate Ins. Co.,
. The court is permitted to take judicial notice of documents filed in a bankruptcy case.
In re Soporex, Inc.,
. In his declaration on LBHI’s behalf, John Baker states that “LBB and LBHI entered into an Assignment Agreement (the 'Assignment') whereby LBB assigned to LBHI all of its rights and remedies in and to its agreements with Evergreen relating to the Stiffler Loan, including all rights in and to any and all representations, warranties, and covenants Evergreen made to LBB in its agreements and the Seller’s Guide and rights to repurchase and indemnify remedies, among other things.” (Baker Decl. ¶ 6.) In making the foregoing statement, Mr. Baker cites only the February 24, 2011 assignment agreement. (Id. (citing Ex. H-l).) He makes no reference to any earlier assignment agreement between LBB and LBHI.
. During oral argument, counsel for LBHI asserted that there was an earlier 2008 written assignment between LBB and LBHI that named numerous entities and included various LPAs. Counsel for LBHI admitted, however, that the LPA involving Evergreen was not included in the earlier 2008 written assignment. In any event, there is no evidence of this earlier written assignment before the court. Counsel for LBHI also indicated during oral argument that there may have been an earlier oral assignment between LBHI and LBB concerning the Evergreen LPA. Again, LBHI has not submitted any such evidence to the court even though, as a party to the alleged oral assignment, this evidence logically would be within LBHI's control. Further, under New York law, an oral agreement to assign a right to purchase a mortgage loan is governed by the Statute of Frauds, and therefore ordinarily unenforceable.
See Ognenovski
v.
Wegman,
. The advisory committee’s notes to Fed. R.Civ.P. 56 with regard to the 2010 amendments state that "[sjubdivision (d) carries forward without substantial change the provisions of former subdivision (f).” Fed.R.Civ.P. 56 advisory committee’s notes.
. The court also notes that LBHI did not even execute the February 24, 2011 assignment until after the November 17, 2010 deadline for amending pleadings and the January 18, 2011 discovery cutoff had already passed. In light of this timing, LBHI is in a poor position to complain that Evergreen did not timely amend its answer to plead the statute of limitations affirmative defense in order to allow discovery on the assignment issue. If there were any prejudice to LBHI in the timing of Evergreen’s assertion of the statute of limitations defense, which the court finds there is not, the prejudice would be at least in part of LBHI’s own creation.