DB Structured Products (“DBSP”)

NY Intermediate Appellate Court Reverses Dismissal of HSBC RMBS Suit Against Deutsche Bank

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HSBC, the trustee of two securitizations at issue, successfully appealed the 2018 dismissal of its complaint alleging that DB Structured Products Inc. (DBSP), the sponsor of the two securitizations at issue, breached Mortgage Loan Purchase Agreements and Pooling and Servicing Agreements by securitizing loans in breach of representations and warranties and subsequently failing to disclose its discovery of those breaches. The trial court granted a motion to dismiss without leave to amend because it interpreted the contract language as providing that DBSP had no obligation to inform HSBC when it discovered loan-level breaches due to language in the governing agreements that DBSP notify itself of breaches. A split panel of the New York Appellate Division, First Department, reversed the trial court decision, finding that the contract was ambiguous because of the nonsensical nature of the notice provision, which required DBSP to provide notice to itself and granted HSBC leave to amend its complaint.

New York’s Highest Court Affirms Dismissal of RMBS Suit Against DB Structured Products as Time-Barred

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On June 11, 2015, the New York Court of Appeals issued its decision in the closely-followed case of ACE Securities Corp., Home Equity Loan Trust, Series 2006-SL2 v. DB Structured Products, Inc.  New York’s highest court affirmed the First Department’s dismissal of an action brought by HSBC, as Trustee of the Home Equity Loan Trust, Series 2006-SL2 (“Trust”), against DB Structured Products (“DBSP”) on timeliness grounds, concluding that a cause of action for breach of the representations and warranties accrues on the closing date of the transaction.  The Court held that New York’s six-year statute of limitations for such breach of contract claims runs from the date the representations and warranties are made.  While the trial court reasoned that DBSP’s cure or repurchase obligation under the Pooling and Servicing Agreement (“PSA”) was ongoing, the Court of Appeals explained that DBSP represented and warranted certain facts about the mortgage loans as they existed when the PSA and Mortgage Loan Purchase Agreement were executed and expressly stated they did not survive the closing date.  The Court noted that it makes sense that DBSP “[did] not guarantee payment for the life of the transaction because loans may default 10 or 20 years after they have been issued for reasons entirely unrelated to the Sponsor’s representations and warranties.”  The court also held that a timely repurchase demand and subsequent expiration of the cure period was not a substantive condition precedent that delayed the accrual of the cause of action; instead, the Court held that it was a procedural prerequisite to suit.  Order.