986 F. Supp. 2d 412 | S.D.N.Y. | 2013
OPINION AND ORDER
This case arose out of residential mortgage loans that were pooled and sold together as Bear Stearns mortgage backed
On May 31, 2013, this Court granted in part and denied in part the defendant’s motion to dismiss. Specifically, the Court denied the defendant’s motion to dismiss with respect to the claim for breach of contract and part of the claim under the TIA. Okla. Police Pension & Ret. Sys. v. U.S. Bank Nat. Ass’n (OPPRS I), 291 F.R.D. 47, 67, 71 (S.D.N.Y.2013). The defendant now moves for partial summary judgment on OPPRS’s breach of contract claim on the basis that OPPRS no longer holds securities issued by any of the Covered Trusts. For the reasons explained below, the motion is granted.
I.
The standard for granting summary judgment is well established. “The [C]ourt shall grant summary judgment if the movant shows 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 also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223 (2d Cir.1994). “[T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224. The moving party bears the initial burden of “informing the district court of the basis for its motion” and identifying the matter that “it believes demonstrate^] the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts that are material and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and “may not rely simply on conelusory statements or on contentions that the affidavits supporting the motion are not credible.... ” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir.1998) (collecting cases).
II.
The Court assumes the parties’ familiarity with the factual background and recites
The plaintiff invested in MBS issued by two of the fourteen trusts (the “Covered Trusts”) for which the defendant was the trustee. Id. at 51, 53-54. Five of these trusts (“indenture trusts”) issued notes and were governed, in part, by indenture agreements. Id. at 53 n. 3. The other nine trusts (“PSA trusts”) issued certificates and were governed by pooling and servicing agreements (“PSA”). Id. The plaintiff had purchased notes in one indenture trust and certificates in one PSA trust. The indenture agreements and the PSAs are collectively referred to as the “Governing Agreements.” Id. at 53.
The plaintiffs breach of contract claim alleges that the defendant trustee breached its duties under the Governing Agreements by, among other things, failing to secure and maintain properly the rights in all of the mortgages backing the securities that the trusts issued. (2d Am. Compl. ¶¶ 99-105.) As a result, the rights of the MBS holders to collect the full principal and interest on the mortgage loans were impaired, and the value of the MBS was reduced. (2d Am. Compl. ¶¶ 102-05.)
Previously, at the oral argument on the defendant’s motion to dismiss, the plaintiff admitted that it no longer held any notes or certificates issued by the Covered Trusts. (Tr. of Oral Argument on Feb. 1st, 2013 (“Feb. 1 Tr.”) at 87.) All of the notes and certificates were sold before the filing of the initial complaint in November 2011. (Tr. of Oral Argument on Nov. 5th, 2013 (“Nov. 5 Tr.”) at 4.) Based on these facts and under New York General Obligations Law § 13-107, the defendant now moves for summary judgment on the plaintiffs common-law breach of contract claim.
III.
The parties do not dispute that New York law applies to the contract claim in this case. Section 13-107 of the New York General Obligations Law provides that
[ujnless expressly reserved in writing, a transfer of any bond shall vest in the transferee all claims or demands of the transferrer, whether or not such claims or demands are known to exist, (a) for damages or rescission against the obligor on such bond, (b) for damages against the trustee or depositary under any indenture under which such bond was issued or outstanding, and (c) for damages against any guarantor of the obligation of such obligor, trustee or depositary.
N.Y. Gen. Oblig. Law § 13-107(1). Moreover, § 13-107 defines “bond” as “any and all shares and interests in an issue of bonds, notes, debentures or other evidences of indebtedness of individuals, partnerships, associations or corporations, whether or not secured.” Id. § 13-107(2). The section further defines “indenture” as “any mortgage, deed of trust, trust or other indenture, or similar instrument or agreement ..., under which bonds as herein defined are issued or outstanding, whether or not any property, real or personal, is, or is to be, pledged, mortgaged, assigned, or conveyed thereunder.” Id. § 13-107(3).
In other words, absent express reservation in writing, the sale or transfer of a bond bars the transferor’s cause of action against the issuer (obligor) of the bond or any claim for breach of contract against the trustee of the trust issuing the bond and vests any such claim in the transferee of the bond. Indeed, the parties do not dispute that, if the notes and
The definition of “bonds” under § 13-107, which includes “shares and interests in an issue of bonds, notes, debentures or other evidences of indebtedness,” N.Y. Gen. Oblig. Law § 13-107(2), closely parallels the language used in § 304(a), the exemption provision of the TIA, 15 U.S.C. § 77ddd(a). Section 304(a) of the TIA provides that
[the TIA] shall not apply to any of the following securities:
(1) any security other than (A) a note, bond, debenture, or evidence of indebtedness, whether or not secured, or (B) a certificate of interest or participation in any such note, bond, debenture, or evidence of indebtedness, ...;
(2) any certificate of interest or participation in two or more securities having substantially different rights and privileges, or a temporary certificate for any such certificate;
15 U.S.C. § 77ddd(a) (emphasis added). The Court previously concluded that the certificates at issue are “evidence of indebtedness” under § 304(a) of the TIA. OPPRS I, 291 F.R.D. at 62. The parties’ dispute on this motion centers on what ramification, if any, that conclusion has on the application of § 13-107.
In OPPRS I, the Court determined that § 304(a)(1) does not provide a basis for the certificates to be exempt from the TIA, because the certificates fall under the plain language of both § 304(a)(1)(A) and § 304(a)(1)(B), both of which describe exceptions to the exemption. OPPRS I, 291 F.R.D. at 62. The certificates in this case fall under § 304(a)(1)(A) because, “[l]ike the notes, the certificates are evidence of indebtedness because mortgagors are obligated to make payments at fixed intervals on the mortgages underlying the certificates, and the certificate holders have the right to collect from the payment waterfall.” Id. The certificates fall under § 304(a)(1)(B) because they are “plainly interests in the underlying evidence of indebtedness,” and “[t]he structure of the trusts gives certificate holders an interest in the underlying evidence of indebtedness, namely the MBS in which the certificates participate.” Id. Based on these two independently sufficient reasons, the Court concluded that § 304(a)(1) does not provide a basis for exempting the certificates from the TIA. Nevertheless, the Court also found that, because the mortgage loans underlying each of the certificates “have substantially different rights and privileges,” id. at 63, the certificates are exempt from the TIA under § 304(a)(2) as “ certificate^] of interest or participation in two or more securities having substantially different rights and privileges.” Id. (quoting 15 U.S.C. § 77ddd(a)(2)) (internal quotation marks omitted).
The certificates at issue in this case are not exempt under § 304(a)(1) because they are evidence of indebtedness and are certificates of interest in the underlying
The plaintiff argues that, because the Court eventually found that the certificates are exempt from the TIA under § 304(a)(2) as “certificate^ of interest or participation in two or more securities having, substantially different rights and privileges,” the Court necessarily decided that the certificates at issue are “certificate^ of interest or participation” under § 304(a)(1)(B) and are not “a note, bond, debenture, or evidence of indebtedness” under § 304(a)(1)(A). Accordingly, the plaintiff contends that the certificates in this case are not “bonds” under New York General Obligations Law § 13-107. However, the plaintiffs argument ignores the Court’s explicit finding that the certificates are indeed “evidence of indebtedness” under § 304(a)(1)(A), even though they are also “certificate^ of interest or participation in two or more securities having substantially different rights and privileges” under § 304(a)(1)(B). OPPRS I, 291 F.R.D. at 62-63.
Moreover, while the certificates are not exempt under § 304(a)(1)(B) of the TIA because they are certificates of interest or participation in “evidence of indebtedness,” they are exempt under § 304(a)(2) because they are “certificate^ of interest or participation in two or more securities having substantially different rights and privileges.”
The plaintiff attempts to rely on legislative history to re-argue the Court’s prior conclusion that the certificates are exempted from the TIA under § 304(a)(2). However, the Court need not look beyond the plain text of the statute unless 1) its meaning is not clear or 2) a mechanical reading of the text would lead to an “absurd” disposition. See Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000); Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992); Novak v. Kasaks, 216 F.3d 300, 310 (2d Cir.2000). Here, as explained above, the language of the statute is not ambiguous and does not lead to absurd results. In any event, as the Court explained in OPPRS I, the Court’s reading of § 304 is consistent with the interpretation of § 304(a)(2) by the Securities and Exchange Commission as well as with legislative history, secondary authorities, and the evident intent of the parties in drafting the agreements governing the certificates without reference to the TIA. OPPRS I, 291 F.R.D. at 63-66.
Therefore, the text of the statute does not support the plaintiffs argument that,
In addition, as noted above, because the notes are “bonds” under New York General Obligations Law § 13-107(2), see also OPPRS I, 291 F.R.D. at 62, the plaintiff has no cause of action for breach of contract with respect to the notes. Accordingly, the defendant’s motion for summary judgment is granted and the plaintiffs second cause of action based on breach of contract is dismissed.
IV.
The dismissal of the plaintiffs claim for breach of contract leaves no such claim in the case. Nevertheless, the plaintiff attempts to advance the argument that, even if the plaintiffs claim for breach of contract is dismissed, the claim should not be dismissed in its entirety because the plaintiff still has its TIA claim before the Court. The plaintiff contends that the remaining TIA claim with respect to the notes gives it standing to bring the contract claim on behalf of a putative class because the plaintiff suffered, for TIA claim purposes, injuries “similar” to the injuries in the contract claim. This argument is without merit.
It is well-established that “a plaintiff must demonstrate standing for each claim he seeks to press.” Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). In a class action, there still must be “a named plaintiff sufficient to establish jurisdiction over each claim advanced.” Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95, 112 (2d Cir.2013) (emphasis added). The plaintiff misconstrues this language in IndyMac and argues that, so long as the plaintiffs claim is “sufficient to establish jurisdiction,” the plaintiff has standing to bring other claims on behalf of a class for “similar” injuries. This argument is directly contrary to the requirement that a plaintiff must demonstrate standing with respect to “each claim.” Natural Res. Def. Council, Inc. v. U.S. Food & Drug Admin., 710 F.3d 71, 86 (2d Cir.2013), as amended (Mar. 21, 2013) (quoting Baur v. Veneman, 352 F.3d 625, 641 n. 15 (2d Cir.2003)); see also Daimler-Chrysler, 547 U.S. at 335, 126 S.Ct. 1854.
None of the authorities cited by the plaintiff support its proposition that a “similar injury” suffered by potential members of a class is sufficient to rescue a claim from dismissal when the only plaintiff in the case has no such claim. In NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145 (2d Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 1624, 185 L.Ed.2d 576 (2013), a plaintiff brought claims under the Securities Act, and the putative class included investors in securities in which the plaintiff itself did not invest but which originated from the same originators. Id. at 149. The Court of Appeals held that the plaintiff had standing to bring a class action on behalf of those other investors because the injury it personally suffered “implicate[d] ‘the same set of concerns’ as the conduct alleged to have caused injury to other members of the putative class by the same defendants.” Id. Nevertheless, the claims that the plaintiff in NECA sought to bring
Similarly, this Court’s earlier decision in OPPRS I denying the defendant’s motion to dismiss the class claim, OPPRS I, 291 F.R.D. at 60, also does not permit the plaintiff to bring a class claim when it loses the standing to bring an individual claim. OPPRS I addressed the exact same question of standing as the one presented in NECA: whether “the plaintiff has standing to assert the claims alleged in the Complaint on behalf of the putative class of purchasers of interests in all fourteen Covered Trusts” when the plaintiff itself only invested in two of the trusts. Id. at 58. The Court upheld the plaintiffs standing to bring claims on behalf of the putative class without addressing specifically which claims the plaintiff had standing to
Therefore, because no named plaintiff in this case has a claim for breach of contract, no such claim remains in the case. Accordingly, the claim for breach of contract must be dismissed in its entirety.
CONCLUSION
The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the defendant’s motion for summary judgment on the plaintiffs second cause of action is granted and the claim for breach of contract is dismissed in its entirety. The Clerk is directed to close Docket No. 49.
SO ORDERED.
. On this issue, the Court reached a different conclusion from another court in this District that has recently interpreted the same statute. Compare OPPRS I, 291 F.R.D. at 62-63 with Policemen’s Annuity & Ben. Fund of City of Chicago v. Bank of Am., NA, 943 F.Supp.2d 428, 436-38 (S.D.N.Y.2013) (holding that, in order to be exempt under § 304(a)(2), a security must be a "certificate of interest” under § 304(a)(1)(B) and cannot be a debt instrument under § 304(a)(1)(A)). However, that difference has no bearing on the present motion, because the Policemen's Annuity court held that certificates issued by trusts holding MBS were debt instruments under § 304(a)(1)(A). Policemen’s Annuity, 943 F.Supp.2d at 436-38. Therefore, aside from the different holdings with respect to the relevant TIA exemption, there is no disagreement between the two decisions over the conclusion that the certificates are evidence of debts under § 304(a)(1)(A).
. The NECA plaintiff's own claims were initially dismissed but reinstated on appeal. Id. at 156, 168.
. One line of cases on which the plaintiff relies concerned situations in which class certification was "logically antecedent” to determination of standing and therefore courts declined to dismiss on the basis of lack of standing before class certification. E.g. Ortiz v. Fibreboard Corp., 527 U.S. 815, 831, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999); In re DDAVP Indirect Purchaser Antitrust Litig., 903 F.Supp.2d 198, 213 (S.D.N.Y.2012); Winfield v. Citibank, N.A., 842 F.Supp.2d 560, 574 (S.D.N.Y.2012); Blessing v. Sirius XM Radio Inc., 756 F.Supp.2d 445, 450 (S.D.N.Y.2010); In re Grand Theft Auto Video Game Consumer Litig. (No. II), No. 06 MD 1739, 2006 WL 3039993, at *3 (S.D.N.Y. Oct. 25, 2006); In re Buspirone Patent Litig., 185 F.Supp.2d 363, 377 (S.D.N.Y.2002). However, none of the cases involved the situation in which a plaintiff sought to bring a claim under a different theory for which the plaintiff had no standing. Many of these cases were nation-wide class actions in which claims were brought under parallel provisions of different states’ consumer protection or antitrust laws, which is again not the situation in this case: the standing challenges in those cases did not concern whether the named plaintiffs could bring the consumer protection or antitrust claims but concerned whether the plaintiffs residing in some states could represent plaintiffs in other states. E.g. DDAVP, 903 F.Supp.2d at 213-14; Blessing, 756 F.Supp.2d at 452; Grand Theft Auto, 2006 WL 3039993 at *3; Buspirone, 185 F.Supp.2d at 377.
In addition, as the Second Circuit Court of Appeals has subsequently made clear, logical antecedence is only a narrow "exception” to the rule that Article III standing is a prerequisite to class certification. Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 65 (2d Cir.2012). The exception applies in cases in which “the Article III Concerns would arise only if the Court affirmed class certification.” Id. For example, in Ortiz, the proposed class included both claimants with asbestos-related diseases and claimants who had been exposed to asbestos but had not manifested injury, and the Article III objections concerned the latter group of "exposure-only” claimants. Ortiz, 527 U.S. at 825-26, 119 S.Ct. 2295. Because this latter group of claimants would not even be in the case if there was no class certification, the Court did not deem it necessary to address the Article III standing of these claimants prior to addressing class certification, id. at 831, 119 S.Ct. 2295, — indeed, the Ortiz Court eventually found class certification to be improper, id. at 864, 119 S.Ct. 2295, and thus in fact did not need to reach the standing of those "exposure-only” claimants. Therefore, in light of our Court of Appeals's caveat in Mahon, the Ortiz logical antecedence rule is to be construed narrowly and is inapplicable to the present case involving a challenge to the sole named plaintiff’s standing to bring a claim under a separate cause of action which it itself does not have standing to bring.