S.D.N.Y. Judge Grants In Part and Denies In Part Bank’s Motion to Dismiss Complaint by Financial Guaranty Insurer

On September 8, 2011, Judge Jed Rakoff of the Southern District of New York released a memorandum in support of his July 7, 2011 Order granting in part and denying in part Flagstar Bank’s motion to dismiss Assured Guaranty Municipal Corp.’s complaint against it arising out of agreements entered into in 2005 and 2006 for Assured to wrap $1 billion worth of securities issued by Flagstar. Judge Rakoff (1) rejected the argument that the insurer’s sole remedy under the agreements was cure or repurchase of the offending loans, (2) held that Assured was entitled only to indemnification for claims brought by third parties, not for claims brought by Assured, (3) found it reasonable to infer that the credit issues Assured allegedly discovered in loans that had been charged-off extended to non-charged off loans, (4) held that Assured’s claims regarding non-charged off loans were ripe even though Assured did not request they be repurchased, and (5) rejected Flagstar’s assertion that any “Transfer Deficiency” remedy had no effective value. Decision.