14-2859-cv(L)
U.S. Bank National Assoc., et al v. Dexia Real Estate Capital Markets

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                              AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 18th day of March, two thousand sixteen.

Present:
           PETER W. HALL,
           DEBRA ANN LIVINGSTON,
           SUSAN L. CARNEY,
                       Circuit Judges.
____________________________________________________

U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Registered Holders of Wachovia
Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2006-C28, Acting by and through its Special Servicer CWCapital Asset Management LLC,

                       Plaintiff-Appellee,

               v.                                                       No. 14-2859-cv(L)
                                                                            14-3582-cv(Con)

DEXIA REAL ESTATE CAPITAL MARKETS, FKA ARTESIA MORTGAGE CAPITAL
CORPORATION,

                       Defendant–Third-Party Plaintiff–Appellant.

____________________________________________________




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FOR APPELLANT:               KENNETH I. SCHACTER, (Dina R. Kaufman, on the brief),
                             Morgan, Lewis & Bockius LLP, New York, NY, and David D.
                             Ferguson, Polsinelli PC, Kansas City, MO.

FOR APPELLEE:                GREGORY A. CROSS (Colleen M. Mallon and Heather Deans
                             Foley, on the brief), Venable LLP, Baltimore, MD.

__________________________________________________

       Appeal from a judgment of the United States District Court for the Southern District

of New York (Scheindlin, J.).

       UPON       DUE       CONSIDERATION,             IT    IS    HEREBY         ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is REVERSED,

and the case is REMANDED with instructions that Defendant-Appellant’s cross-motion

for summary judgment be GRANTED.

       Defendant-Appellant Dexia Real Estate Capital Markets (“Dexia”) appeals from the

district court’s order granting summary judgment to Plaintiff-Appellee U.S. Bank National

Association (the “Trust”). Dexia challenges, inter alia, the district court’s conclusion that the

Trust’s claims were timely because the statute of limitations began to run when what the

Trust alleges was a defective loan guaranty (the “Guaranty”) was required to enforce the

defaulting loan and not when Dexia made representations and warranties that the Guaranty

was valid and enforceable. See U.S. Bank Nat’l Ass’n v. Dexia Real Estate Capital Markets, No.

12-CV-9412, 2014 WL 3368670, at *6 (S.D.N.Y. July 9, 2014). We assume the parties’

familiarity with the underlying facts and the procedural history of the case.

       On appeal, Dexia argues that the Trust’s claims were not timely because the claims

for breach of representations and warranties accrued when the Mortgage Loan Purchase

Agreement (the “MLPA”) was executed. Dexia contends that the MLPA’s “material and

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adverse effect” provision does not define the substantive elements of an actionable breach—

but instead “defines what the Trust can recover for the breach and when it can seek that

recovery.” In light of the New York Court of Appeals’s recent decision in ACE Secs. Corp. v.

D.B. Structured Prods., Inc., 25 N.Y.3d 581 (2015), and this Court’s recent decision in Deutsche

Bank Nat’l Trust Co. v. Quicken Loans Inc., 810 F.3d 861 (2d Cir. 2015), we find this argument

to be persuasive.

       We review a district court’s decision to grant summary judgment de novo. Gudmundsson

v. United States, 634 F.3d 212, 216 (2d Cir. 2011). “Summary judgment is appropriate if there

is no genuine issue as to any material fact, and if the moving party is entitled to a judgment

as a matter of law.” Id. (internal quotation omitted). We also review de novo the district

court’s application of the statute of limitations. Golden Pac. Bancorp v. F.D.I.C., 273 F.3d 509,

515 (2d Cir. 2001). When sitting in diversity jurisdiction and reviewing New York state law

claims, we must apply “law of New York as interpreted by the New York Court of Appeals.”

Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48 (2d Cir. 2013) (per curiam).

       Under New York law, the six-year limitations period on claims for breach of contract

generally runs from the time the contract was breached. N.Y. C.P.L.R. 203(a), 213(2); see also

Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402 (1993). Accordingly, “[a] cause of

action for breach of contractual representations and warranties that guarantee certain facts as

of a certain date—but do not guarantee future performance—accrues on the date those

representations and warranties become effective.” Quicken Loans, 810 F.3d at 865 (citing

ACE, 25 N.Y.3d at 596).




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       In this case, the Complaint alleged a breach of the representations and warranties

made in the MLPA, including that any agreement executed in relation to the underlying

mortgage loans “is a legal, valid, and binding obligation,” and that “there is no valid offset,

defense, or right to rescission with respect to [any such agreement].” Compl. ¶ 19 (quoting

MLPA Schedule I(5–6)). The MLPA specifies that these representations and warranties

were made “as of the Closing Date, with respect to . . . each Mortgage Loan.” MLPA § 3(b);

By the time the Trust filed suit in December 2012, more than six years had passed since the

MLPA was executed on October 1, 2006, and the Trust’s claims were thus time-barred.

       The district court recognized that the repurchase provisions of the MLPA and the

related but separate Pooling and Service Agreement (the “PSA”), which state that a breach

must “materially and adversely affect[] the value of the affected Mortgage Loan” before the

Trust can demand cure and repurchase, see PSA § 2.03(a), MLPA § 3(c), are procedural in

nature. U.S. Bank Nat’l Ass’n, 2014 WL 3368670, at *6. The district court concluded,

however, that because the PSA and MLPA also provide that a Document Defect is not

material and adverse unless the document is needed “in connection with an imminent

enforcement of the mortgagee’s rights or remedies,” PSA § 2.03(a), MLPA § 3(c), the Trust’s

claims did not accrue until it required the defective Guaranty to enforce the defaulting loan.

Id.

       The “material[] and adverse[]” effect language does not create a substantive element

of an actionable breach for statute of limitations purposes.       Id.   Rather, the language

referring to material and adverse effects is part of the contractual provision through which

the Trust might seek repurchase as one recourse for a breach of representations and


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warranties made in the MLPA. Such a remedial mechanism is not an element of breach and

does not toll the statute of limitations under New York law. See ACE, 25 N.Y.3d at 598

(holding that the failure to repurchase or cure under a substantially similar MLPA is not a

substantive condition precedent capable of delaying accrual of a trust’s claims). Because the

repurchase provision does not create “an independent obligation but merely an alternative

contractual remedy to damages, [and] the relevant ‘performance’ is the truth or falsity” of the

representations and warranties, the statute of limitations runs from the time those

representations and warranties were made. Quicken Loans, 810 F.3d at 867 (citation omitted).

       In the alternative, the Trust argues that the cause of action accrues when demand is

made and refused, not upon breaches of the representations and warranties made in the

MLPA, because demand is a substantive condition precedent. This argument fails because,

as previously stated, the underlying performance is the truth or falsity of those representations

and warranties, as alleged in the Complaint. It thus follows that any demand requirement in

the MLPA is merely a procedural condition precedent. See ACE, 25 N.Y.3d at 597 (noting

that there is a “difference between a demand that is a condition to a party’s performance,”

such that it is substantive, and a “demand that seeks a remedy for a preexisting wrong,” such

that it is procedural).

       We similarly reject the district court’s conclusion that even if the MLPA contained a

procedural demand requirement, the Trust had no right to make a demand until the material

and adverse effect language was satisfied. This argument is effectively equivalent to the

Trust’s contention that the material and adverse effect language was an essential element of

the breach. As explained above, that argument is without merit.


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      We have considered the remainder of the Trust’s arguments and conclude that they

are without merit. Because the Trust’s claims accrued when the MLPA was executed and its

complaint was not filed until more than six years after that date, Dexia is entitled to

judgment as a matter of law. We therefore REVERSE the judgment of the district court

and REMAND this case with instructions that Dexia’s cross-motion for summary judgment

be GRANTED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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