OPINION
This suit is a commercial foreclosure action. Before the Court are Plaintiff’s Motion to Appoint a Receiver (Dkt. No. 8), and Defendant’s Motion to Dismiss for
I.
A. Facts relevant to the jurisdictional analysis
The mortgage sought to be foreclosed upon in this action is an asset held by Plaintiff Wells Fargo Bank, N.A. as Trustee for Holders of Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2007-C5. The “Pooling and Servicing Agreement, Dated as of November 1, 2007” (Wells Fargo brief, Ex. 2) (the “PSA”) — a 311-page document (excluding the 51 exhibits thereto) — is the focus of the parties’ and the Court’s attention.
In transactions “dated as of November 1, 2007,” Column Financial, Inc.; KeyBank National Association; and Capmark Finance Inc., sold “certain mortgage loans” to Credit Suisse First Boston Mortgage Securities Corp. for the purpose of creating a pool of assets (i.e., mortgages) in which investors could invest by purchasing mortgage pass-through certificates (also known as “private label mortgage-backed securities”
PSA Section 2.01, entitled “Conveyance of Original Trust Mortgage Loans,” provides, in relevant part,
(a) It is the intention of the parties hereto that a common law trust be established under the laws of the State of New York.... Wells Fargo is hereby appointed, and does hereby agree to act, as Trustee hereunder and, in such capacity, to hold the Trust Fund in trust for the exclusive use and benefit of all present and future Certifieateholders....
The Depositor [Credit Suisse First Boston Mortgage Securities Corp.], concurrently with the execution and delivery hereof, does hereby assign, sell, transfer, set over and otherwise convey to the Trustee, without recourse, for the benefit of the Certificateholders all the right, title and interest of the Depositor, ... in, to and under (i) the Original Trust Mortgage Loans----The transfer of the Original Trust Mortgage Loans and the related rights and property accomplished hereby is absolute ... and is intended by the parties to constitute a sale.
(PSA, p. 107)
In addition to creating a trust in which the mortgages are held, the PSA establishes the procedures for “administration and servicing of the trust fund.” (See generally PSA, Article III, pp. 122-219) Relevant to the instant case, the PSA provides that the Master Servicer(s) and Special Servicer “shall service and administer the Mortgage Loans ... on behalf of the Trustee and in the best interests of an for the benefit of the Certificate-holders.” (PSA, § 3.01(a), p. 122)(emphasis added).
The Master Servicer
Similarly, when a mortgage is in default, the PSA directs that the Special Servicer
Finally, if either the Master Servicer or Special Servicer resigns or is terminated, the Trustee must take on “all the responsibilities [and] duties” of the servicer, unless, or until, a new servicer is appointed. (PSA, § 7.02, p. 264; § 8.01(a), p. 267)
B. Facts giving rise to the parties’ dispute
The property at issue in this suit — the Cornerstone Commerce Center in Linwood, New Jersey (owned at all relevant times by Defendant CCC Atlantic, LLC)— originally secured a commercial mortgage loan in the amount of $41 million. Approximately seven months after the original mortgage transaction took place, the Original Note was bifurcated into an A Note, with a principal amount of $36.9 million; and a B Note, with a principal amount of $4.1 million. Both the A Note and B Note were originally payable to Capmark Bank.
As described above, Plaintiff Wells Fargo came to be the current holder of the A Note when, in 2007, Capmark sold the A Note to Credit Suisse First Boston Mortgage Securities Corp., who in turn, sold it to Wells Fargo as Trustee for the Holders of the Commercial Mortgage Pass-Through Certificates, Series 2007-C5.
In September, 2011, CCC Atlantic’s tax escrow account balance undisputedly was not sufficient to pay the entirety of its municipal property taxes. But CCC Atlantic contends that the escrow shortfall
The Cornerstone Commerce Center was “developed ... in a specially designated redevelopment zone in Linwood” thereby allowing CCC Atlantic to take advantage of Linwood’s “graduated tax abatement program whereby the increased [tax] assessment for the Property occasioned by the redevelopment and construction of the [Commerce Center] would not be fully taxed for a period of five years.” Karman Aff. ¶ 6. Thus, in year one of the abatement period, CCC Atlantic paid no taxes on the higher assessed value of the redeveloped property (approximately $17 million in improvements) but rather only paid taxes on the original assessment of $4.8 million. In year two of the abatement period, CCC Atlantic paid 20% of the additional assessment; in year three, 40%; in year four, 60%; and in year five, 80%. Id. ¶ 7.
The parties do not dispute that Linwood billed Wells Fargo for the taxes due on the original assessment, but as to the additional payments due in years two through five of the abatement program, Linwood billed CCC Atlantic directly. Apparently CCC Atlantic expected this practice to continue after the abatement program expired, and therefore its escrow account with Wells Fargo never had enough money to pay the entire tax bill. This practice, however, did not continue. After the abatement program’s expiration, Linwood sent one tax bill to Wells Fargo for all of the property taxes due for August, 2011.
Upon receiving the bill, Wells Fargo used all of the funds then available in the escrow account ($57,144.39) and advanced the difference of $272,385.67 on August 3, 2011. Wells Fargo sent CCC Atlantic a cure notice giving it ten days in which to reimburse Wells Fargo for the advance. Karman Aff. ¶ 13.
CCC Atlantic could not cure the default. Indeed, in response to the cure notice, CCC Atlantic sent Wells Fargo a “proposal” for remedying the escrow deficiency by the end of 2013 (i.e., more than a year after the initial default). (Karman Aff. Ex. A.) In that proposal CCC Atlantic admitted, “the need to make rent and other leasing concessions to attract and keep quality tenants has had a significant impact on [CCC Atlantic’s] current cash position. CCC Atlantic LLC does not have the cash flow to make up this deficiency in a lump sum payment.” (Id.)
On September 12, 2011, Wells Fargo formally declared the Loan to be in default and demanded that CCC Atlantic pay it $406,510.96, which sum included various fees, default interest, interest, the tax advance, and the “tax shortfall”, among other charges. (Wells Fargo Ex. 1) The demand also reflected as a credit the $249,221.79 that CCC Atlantic paid to Wells Fargo after the original default, which CCC Atlantic intended as interest payments on the loan. (Id.)
On October 28, 2011, the tax escrow account experienced another shortfall when the unabated tax bill for November, 2011 came due. According to Wells Fargo, “taxes due totaled $329,141.71, but only $59,191.73 was available;” thus Wells Fargo “advanced $269,949.98 to cover the shortfall.” (Wells Fargo’s Reply Brief; see also Karman Aff. ¶ 15) This shortfall was not surprising to either party; in CCC Atlantic’s previous proposal to cure its initial default, it had anticipated such a shortfall. (See Karman Aff. Ex. A)
Accordingly, after two consecutive defaults on the unabated tax payments, on November 15, 2011, Wells Fargo, through counsel, sent CCC Atlantic an Acceleration Notice advising that unless CCC Atlantic cured its default, the entire Loan would be
This foreclosure action was filed on January 27, 2012. The Court held oral argument on the instant Motions on November 14, 2012,
II.
A.
Federal Rule of Civil Procedure 12(b)(1) provides in relevant part, “[a] party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction.”
There are two types of challenges to a district court’s subject matter jurisdiction: facial attacks and factual attacks. Common Cause v. Pennsylvania,
Factual challenges are different. Such challenges have “three important procedural consequences.” CNA v. United States,
The instant motion raises a factual challenge.
B.
Federal Rule of Civil Procedure 66 provides that “[tjhese rules govern an action in which the appointment of a receiver is sought.”
In diversity suits, federal law governs the issue of whether a receiver should be appointed. Maxwell v. Enterprise Wall Paper Mfg. Co.,
The Court must consider the jurisdictional question before proceeding to the merits of appointing a receiver.
A.
(1)
The issue is whether, for diversity purposes, the Court looks to the state of citizenship of the named Plaintiff, Wells Fargo Bank, N.A. (South Dakota
In Navarro Savings Association v. Lee, Jr., the Supreme Court held that the citizenship of an “active trustee” of an “express trust”
CCC Atlantic argues that Navarro’s holding does not apply in this case because Wells Fargo is merely a “naked trustee,” Navarro,
In support of its position, Wells Fargo submits the “Pooling Service Agreement” (“PSA”). The Court agrees that the PSA adequately demonstrates that Wells Fargo is an active trustee.
Moreover, contrary to CCC Atlantic’s argument, the fact that the Trustee has delegated loan servicing duties to the Master Servicer and the Special Servicer does not compel the conclusion that the Trustee lacks the requisite control. As already explained, the money the servicers collect belongs to Wells Fargo (for the benefit of the Certifieateholders), not the servicers themselves. Additionally, the ultimate duty to collect on the mortgage loans— whether in the regular course of business, or through foreclosure — remains with Wells Fargo because it must fulfill the duty in the absence of the Master Servicer or the Special Servicer.
The Court is also unpersuaded by CCC Atlantic’s argument that Wells Fargo lacks the requisite control because, under limited circumstances, particular Certificateholders may make decisions concerning the trust. For example, CCC Atlantic relies on PSA Section 9.01, which gives certain Certifieateholders the right to terminate the trust by purchasing all of the assets of the trust. However, such was the situation in Navarro where the Trustee was held to be an active trustee. In that case, the Court observed that the trust beneficiaries could “elect and remove trustees; ... terminate the trust or amend the Declaration [of trust]; and they must approve any disposition of more than half the trust estate.” Navarro,
The Court concludes that Wells Fargo has carried its burden of proving by a
(2)
CCC Atlantic further argues that even if this Court looks to Wells Fargo’s citizenship in its jurisdictional analysis, Wells Fargo still has not adequately demonstrated complete diversity because it has failed to account for Capmark Bank’s citizenship.
This argument is somewhat confusing. By asserting that Capmark, as holder of the B Note, is a “real party in interest,” CCC Atlantic seems to be arguing that Capmark must be joined as a “required party” pursuant to Fed.R.Civ.P. 19(a)(1)(B).
This argument fails for at least two reasons.
First, Rule 19 expressly provides that a required party must be joined if “joinder will not deprive the court of subject-matter jurisdiction.” Fed.R.Civ.P. 19. Thus, even assuming arguendo that Capmark is a required party, and that its joinder would, as CCC Atlantic itself asserts, destroy diversity
Second, Capmark apparently contracted-away most, if not all, of its interest in this suit. Wells Fargo submits the “Co-Lender Agreement” between the Note A Lender and Note B Lender which states that the Note B Lender “shall have no voting, consent, or other rights whatsoever with respect to the Note A Lender’s administration of or exercise of its rights and
Moreover, any remaining right to receive payment on the B Note appears to be protected by the Co-Lender Agreement (see §§ 3, 4) such that proceeding without Capmark would not “as a practical matter impair or impede [its] ability to protect [its] interest.” Fed.R.Civ.P. 19(a)(1)(B)®.
Accordingly, CCC Atlantic’s argument fails.
In summary, the Court holds: (1) Wells Fargo is an active trustee, therefore its state of citizenship must be used in the diversity analysis; and (2) Rule 19 does not require Capmark’s joinder as a party to this suit. Accordingly, the Court concludes that complete diversity of citizenship exists between the parties; therefore the Court may exercise subject matter jurisdiction pursuant to 28 U.S.C. § 1332.
B.
Wells Fargo seeks an order appointing a receiver who will collect all rents and income, as well as operate and manage the property.
When considering whether to appoint a receiver in the context of a mortgage foreclosure, the following factors guide the Court in its exercise of discretion: “the property is inadequate security for the loan; the mortgage contract contains a clause granting the mortgagee the right to a receiver; the continued default of the mortgagor; the probability that foreclosure will be delayed in the future; the unstable financial status of the mortgagor; [and] the misuse of project funds by the mortgagor.” United States v. Berk & Berk,
When the moving party seeks a receiver who will not only collect rents and profits, but will also manage and operate the mortgaged property pending foreclosure, federal courts are particularly cautious in appointing a receiver, and therefore consider whether the evidence demonstrates “ ‘something more’ ” than just “ ‘the doubtful financial standing’ ” of the defendant and the “ ‘inadequacy of the security.’ ” Canada Life Assurance Co.,
The additional factors warranting appointment of a receiver to manage the property may include: “the danger of waste[;] delays in foreclosure,” Canada Life Assurance Co.,
In considering the relevant factors, the Court concludes that Wells Fargo is entitled to the relief it seeks.
First, Article 11.02(d) of the Loan Agreement specifically provides that after an “Event of Default”
Additionally, the Assignment of Lease and Rents, executed along with the Loan Agreement (Compl. Ex. E, Assignment of Leases and Rents), gives Wells Fargo the right to all rents upon an Event of Default. In the Assignment of Leases and Rents, CCC Atlantic “irrevocably, absolutely and unconditionally” assigned to Capmark (Wells Fargo’s predecessor in interest) “all of [its] right, title and interest in and to” all leases and rents from the property, which right the lender then “licensed” back to CCC Atlantic so long as no Event of Default occurred. (Id., Assignment of Leases and Rents, §§ 1.02, 1.04) But that license was expressly “revocable.” (Id. § 1.02) The Assignment provides that upon an Event of Default, the license “terminate[s] automatically, and Lender shall be entitled to receive and collect the Rents as they become due and payable and exercise all of [CCC Atlantic’s] rights ... under the Leases with respect to the Rents.” (Id. § 1.04)
The importance of these contractual provisions cannot be underestimated because they set apart this commercial foreclosure case from the traditional scenario in which a receiver is sought at equity and no such contractual provisions exist. Thus, this case is qualitatively different from cases relied upon by CCC Atlantic which are stockholder suits seeking appointment of a receiver to manage a corporation. See, e.g., Roach v. Margulies,
This Court agrees that traditionally at equity appointment of a receiver to manage a corporation is a “drastic action [which should be] avoided where possible ... if the necessary relief can be accomplished by some less onerous expedient.” Roach,
Second, CCC Atlantic’s admitted inability to cure the tax escrow default due to cash flow problems (Karman Aff. Ex. A), and its continued failure to cure the default, demonstrates its doubtful financial standing.
Third, the Court finds that the value of the mortgaged property is less than the amounts due and owing under the Note and Mortgage. Wells Fargo submits the affidavit of the relevant loan servicing officer, Michael Nikula, who swears to this very fact. (Nikula Aff. ¶ 6) On the other hand, CCC Atlantic submits the affidavit of Robin Karman, the managing member of the Cornerstone Commerce Center’s general partner, which states, “I have been orally advised” in connection with the potential arm’s length sale of the property to a third party, that the property has $7 million in equity. (Karman Aff. ¶ 21) This statement is merely hearsay. Moreover, Karman stated in his Affidavit (signed April, 2012) that a final written appraisal of the property would be provided to his counsel (Id.), yet that written appraisal has never been submitted to the Court. Accordingly, the Court credits Mr. Nikula’s testimony over the unsupported testimony of Mr. Karman, and therefore concludes that the property is inadequate security for the loan.
Fourth, by CCC Atlantic’s own admission, it has been improperly diverting income generated by the property by using that income to pay management fees ahead of the amounts due under the Loan Documents. In support of CCC Atlantic’s assertion that no income is “used for any other purpose than the operation of the Property,” Mr. Karman’s affidavit states that CCC Atlantic pays “approximately $10,000 a month” in property management fees and “an asset management fee of $50,000 annually.”
Lastly, the Court is not persuaded by CCC Atlantic’s argument that the equities favor denying the appointment of a receiver because Wells Fargo has been accepting interest payments from CCC Atlantic but has not been applying those payments to the accrued interest. Section 2.04(f) of the Loan Agreement provides that “[following and during the continuance of an Event of Default, Lender may apply all payments to amounts then due in any manner and in any order determined by Lender, in its sole discretion.” (Compl. Ex. A) There
Thus, the Court concludes that equity favors appointing a receiver to collect rents and income from, as well as operate and manage, the Cornerstone Commerce Center. Wells Fargo’s Motion to Appoint a Receiver will be granted.
IV.
In light of the foregoing, Defendant’s jurisdictional motion will be denied and Plaintiffs Motion to Appoint a Receiver will be granted. An appropriate Order accompanies this Opinion.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS (Docket # 14) and GRANTING PLAINTIFF’S MOTION TO APPOINT A RECEIVER (Docket # 8)
This matter having appeared before the Court on Defendant CCC Atlantic LLC’s Motion to Dismiss for Lack of Subject Matter Jurisdiction (Docket # 14), and Plaintiff Wells Fargo N.A.’s Motion to Appoint a Receiver (Docket #8); the Court having considered the submissions of the parties and having heard oral argument on the Motions; and for the reasons set forth in an Opinion issued by this Court on even date herewith, which findings of fact and conclusions of law are incorporated herein, and for good cause appearing;
IT IS on this 20th day of November, 2012,
ORDERED THAT:
1. Defendant’s Motion to Dismiss (Docket # 14) is hereby DENIED.
2. Plaintiffs Motion to Appoint a Receiver (Docket # 8) is hereby GRANTED.
(a) On or before Monday, November 26, 2012,
(1) Plaintiff shall serve on the Court and Defendant an affidavit or declaration setting forth in detail the qualifications of Plaintiffs proposed receiver, Onyx Equities, LLC; and
(2) Defendant shall serve on the Court and Plaintiff objections, if any, to Plaintiffs proposed order appointing a receiver (found at document 8-3 on the Court’s docket).
(b) A hearing concerning the proposed receiver and receivership order shall be held on Wednesday November 28, 2012 at 11:30 a.m. in Courtroom 1, unless Defendant notifies the Court that it has no objections.
Notes
. See generally http:ll-www.sec.gov/answers! mortgagesecurities. htm
. The original Master Servicers, according to the PSA, were Keycorp Real Estate Capital Markets, Inc. and Capmark Finance, Inc. (As already noted, Capmark Finance and KeyBanlc National Association were two of the three banks who sold their loans to Credit Suisse to be included in the mortgage pool.)
The PSA allows for, under certain circumstances, changes in Master Servicers upon “merger, consolidation, or conversion,” or "resignation,” of an existing Master Servicer.
. Importantly, the PSA defines the "Collection Account” as "[o]ne or more separate custodial accounts ... created and maintained by the applicable Master Servicer ... in the name of the Trustee on behalf of the Certificateholders." (PSA, § 1.01, p. 34) (emphasis added)
. Only the Trustee can invest the funds held in the Distribution Account. (See PSA, § 3.06(a)(iii), p. 149)
. The PSA identifies Centerline Servicing, Inc. as the original Special Servicer. The PSA's provisions concerning changes to the Master Servicers apply to the Special Servicer as well. (See PSA §§ 6.02, 6.04) Likewise, the Special Servicer is allowed to hire subservicers. (PSA § 3.22)
It appears that the Special Servicer for the loan at issue in this case is Berkadia. (Pi's Reply Brief, Ex. 1)
. Several other documents were executed in connection with the sale of the A Note and are attached as exhibits to the Complaint and to Wells Fargo's Motion. The parties refer to these documents collectively as the “Loan Documents.”
. In the interim between when the Motions were filed and oral argument, the parties attempted to settle their dispute but were ultimately unable to do so.
. See also Canada Life Assur. Co. v. LaPeter,
. Wells Fargo is a national banking association. (Pi’s Ex. 1) For diversity purposes it is deemed a citizen of the State in which it is "located,” 28 U.S.C. § 1348, which is determined by reference to the bank’s main office as designated in their articles of association. Wachovia Bank, N.A. v. Schmidt,
. The present record does not include the states of citizenship for the individual Certificateholders.
. "[T]he citizenship of an LLC is determined by the citizenship of each of its members.” Zambelli Fireworks Mfg. Co. v. Wood,
. The Navarro opinion does not define "express trust.” The Court presumes that term has the same meaning as stated in the Restatement (Second) of Trusts: "[t]he term 'express trust’ is used to ... emphasize the contrast between a trust as here defined on the one hand and a resulting trust or a constructive trust on the other hand.” § 2, comment a.; see also Restatement (Third) of Trusts, § 2, comment a. (using “express trust" to distinguish such trusts from constructive trusts and resulting trusts).
. CCC Atlantic argues for the first time in its reply brief that “the 'trust' here is not a trust at all in the conventional legal sense. Rather, this arrangement is no more and no less than a typical loan ... 'pooling agreement.’ " (Re
. Indeed, both the failure of any servicer to deposit funds into the Collection Account, and the failure of the Master Servicer to deliver Collection Account funds to Wells Fargo are "Events of Default” under the PSA justifying termination of the servicer. (PSA § 7.01 (a)(i)-(ii), p. 258)
. See generally Restatement (Third) of Trusts § 80, comment e. ("Although the administration of a trust may not be delegated in full ... a trustee may for many purposes delegate fiduciary authority to properly selected, instructed, and supervised or monitored agents____A delegation of fiduciary authority is proper when it is prudently arranged and is reasonably intended to further sound administration of the trust. Certainly it is proper to delegate the performance of acts that it would be unreasonable to expect the trustee personally to perform.”).
. CCC Atlantic also heavily relies on the special provisions concerning the Cornerstone Commerce Center Loan (the loan at issue here), arguing that Wells Fargo has even less control with regard to it. Even if the Court assumes arguendo that CCC Atlantic is correct, this would not change the Court’s conclusion. The citizenship analysis is not limited to Wells Fargo’s control over the specific property at issue in this case. Rather, to determine whether Wells Fargo is an active trustee, Navarro instructs that the Court look at the Trustee’s powers as to the entire trust.
. The implausibility of CCC Atlantic’s argument becomes apparent when one considers its practical implications. If CCC Atlantic's position were correct, the numerous Certificateholders would have to bring suit to foreclose on the property at issue. But the Certificateholders are merely investors in mortgage-backed securities. It strains credulity to believe that any investor believed or intended, at the time they were purchasing their certificates, that they may have to prosecute foreclosure proceedings to protect the value of their investment.
. At oral argument CCC Atlantic relied on JPMCC 2005-CIBC13 Collins Lodging, LLC v. Philips South Beach, LLC,
. CCC Atlantic apparently assumes that Cap-mark is a "citizen” of Utah and Pennsylvania because it is a "Utah industrial bank” (Compl. Ex. A), with "a presence in Horsham, Pennsylvania.” (Moving brief, p. 7) CCC Atlantic cites no authority for this assumption, and the Court does not accept it as true. However, in light of the Motion's disposition, the Court need not determine Capmark's citizenship.
. See generally 6A Wright, Miller, Kane & Marcus, Federal Practice and Procedure, § 1543 ("the question of who should ... be joined in the action must be determined under Rule 19 ... rather than Rule 17(a). The fact that an absent person could bring the action as a real party in interest does not of itself make that person a necessary or indispensable party.”).
. As noted previously, Capmark's citizenship is an open issue. Moreover, Capmark's argument assumes that Capmark would be joined as a plaintiff, which may not be the appropriate alignment of parties.
. Berk & Berk was a foreclosure action involving a residential apartment project where the loan was coinsured by the United States Department of Housing and Urban Development.
. These factors are not exclusive, however. As the Ninth Circuit has emphasized, the Court may consider "any circumstance which commends itself to a court of equity as a reason” for appointing a receiver to manage the property. Canada Life Assurance Co.,
. CCC Atlantic apparently does not dispute that the failure to cure the tax escrow shortfall is an Event of Default.
. New Jersey law recognizes the enforceability of absolute assignments of rents. See First Fidelity Bank, N.A. v. Jason Realty, L.P. (In re Jason Realty, L.P.),
. Cf. Canada Life Assurance Co.,
. The property manager appears to be Karman Development Group, LLC. (Wells Fargo’s Reply Ex. 3) Wells Fargo asserts "upon information and belief” that “the management company is a related entity to Defendant.” (Reply Brief p. 6)