RESCU Memo in Opposition to Dismiss (Provident)

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

RESIDENTIAL FUNDING COMPANY, LLC, Plaintiff, v. PROVIDENT FUNDING ASSOCIATES, L.P., Defendant.

Court File No. 13-cv-03485 (SRN/TNL)

PLAINTIFFS MEMORANDUM OF

LAW IN OPPOSITION TO DEFENDANTS MOTION TO

DISMISS THE FIRST AMENDED COMPLAINT

INTRODUCTION

Defendant Provident Funding Associates, L.P. (Defendant) and others like it

participated in mortgage lending practices that nearly brought the United States economy

to its knees, miring this country in a multi-year recession from which we are just now

recovering. Defendants wrongful practices which led to hundreds of lawsuits and

billions in judgments or settlements against mortgage originators that perpetrated similar

wrongdoing are specifically alleged in the First Amended Complaint. Defendant sold

more than $2.6 billion dollars worth of loans to Plaintiff Residential Funding Company,

LLC (RFC or Plaintiff), many of which were defective. These defective loans

caused RFC to incur millions of dollars of losses, and ultimately contributed to driving

RFC into bankruptcy. In selling the loans to RFC, Defendant made numerous

representations and warranties regarding the quality and characteristics of the loans, and

agreed to sweeping indemnification provisions requiring Defendant to make RFC whole

CASE 0:13-cv-03485-SRN-TNL Document 42 Filed 05/15/14 Page 1 of 30

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for Defendants breaches of those representations and warranties. By this action, which

is now being prosecuted on RFCs behalf by the ResCap Liquidating Trust for the benefit

of RFCs creditors, RFC is seeking to be made whole for Defendants violations of its

contractual obligations.

Defendants motion to dismiss is wholly without merit.1 With no substantive

defense to RFCs claims, Defendant instead attempts to obscure the issues with specious

arguments to distract the Court from the valid claims pled.

First, Defendant fails to identify the correct law, which applies to RFCs claims

for breach of representations and warranties (Count One) and indemnification (Count

Two) asserted in the First Amended Complaint. This Court has repeatedly set forth the

three elements of claims for breach of a representation and warranty: a plaintiff must

plead the existence of a warranty, a breach, and a causal link between the breach and the

alleged harm. RFC has pled each of these three elements. Indemnification, in turn,

requires the existence of an express contract requiring one party to indemnify the other.

RFC has pled these elements of an indemnification claim as well. Notably, Defendant

never cites any of the controlling case law on these points for the Court. Applying the

correct law, it is clear that RFC has adequately pled the elements of both its claims.

Second, while Defendant argues that the First Amended Complaint fails to satisfy

Iqbal/Twombly, in fact, the First Amended Complaint provides detailed allegations

regarding the representations and warranties at issue and Defendants breaches of them.

1The filing of RFCs First Amended Complaint mooted Defendants Motion to Dismiss RFCs original Complaint.


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And, contrary to Defendants suggestion, RFC is not required to plead the alleged defect

in each and every loan at issue. Particularly in residential mortgage-backed securities

(RMBS) cases such as this, involving a large number of loans (here, more than 6,900),

courts do not require the plaintiff to allege in the initial pleading each and every breach in

each and every loan. Indeed, even in RMBS litigation involving fraud claims that must

be pled with particularity, courts have not required plaintiffs to plead the specific defects

in each and every one of the dozens, hundreds, or even thousands of loans involved. All

that is required is a short and plain statement of RFCs claims consistent with the

requirements of Fed. R. Civ. P. 8. The First Amended Complaint easily satisfies that

standard. Should any doubt remain, statistical sampling is a widely accepted method of

proof in cases relating to RMBS, further demonstrating that loan-by-loan allegations in a

complaint are neither necessary nor feasible.

Third, Defendant wrongly contends that RFC has failed to allege injury sufficient

to establish constitutional standing. Once again, Defendant fails to identify the applicable

law. At the pleading stage, general factual allegations of injury resulting from the

defendants conduct are sufficient to establish constitutional standing. The First

Amended Complaint easily satisfies this minimal standard. It contains numerous and

detailed allegations all of which this Court must accept as true setting forth how RFC

has been damaged as a result of the Defendants conduct.

Fourth, Defendant argues that RFCs claims are time-barred. Defendant again has

ignored the applicable law. RFCs bankruptcy filing on May 14, 2012 extended the

statute of limitations as a matter of law. See 11 U.S.C. 108(a). Accordingly, with


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respect to RFCs claim for breach of representations and warranties, RFC may seek

recovery as to any loans sold at least as early as May 14, 2006 within six years from the

bankruptcy filing. Furthermore, with respect to RFCs indemnification claim, it is black-

letter law in Minnesota that the statute of limitations does not begin to run until the

underlying liability of the party seeking indemnification has become fixed or ascertained

through a settlement or judgment. Here, RFC is seeking indemnification for liabilities

and losses primarily arising from RMBS related liabilities. The Bankruptcy Court

approved settlements related to those liabilities when it confirmed the debtors Plan, and

the Plan became effective, in December 2013. Accordingly, RFCs indemnification claim

is timely as a matter of law with respect to all of the subject loans.

In sum, RFCs pleaded claims are robust and compelling as to Defendants

wrongdoing. Those claims are more than sufficiently pled in the First Amended

Complaint. Defendants motion to dismiss must be denied.

ARGUMENT

I. Summary Of Allegations In The First Amended Complaint.

Defendant originated and sold residential mortgage loans to RFC. (See First Am.

Compl. 1, 4, 19) (ECF No. 30). Defendant knew RFC pooled the loans purchased

from Defendant and other correspondent lenders and sold the pooled loans into special

purpose securitization trusts, which issued mortgage-backed securities to investors. (Id.

21-23.)

Defendant originated and underwrote the loans that it sold to RFC, and understood

that RFC generally would not be re-underwriting the loans. (Id. 20.) As part of its sale


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of loans to RFC, Defendant made numerous material representations and warranties to

RFC regarding the loans. (Id. 24(a)-(m), 25.) These representations and warranties are

set forth in the Client Guide, which contains the terms and conditions of the agreement

between the parties. (Id. 18; see also id. Ex. B (attaching excerpts).) The parties

agreement provides that it is governed by Minnesota law. (Id., Ex. A at 10.)

The Client Guide provides that Defendants failure to comply with its

representations and warranties to RFC or any other requirements constitute an Event of

Default. (Id. 26-27.) The Client Guide also provides numerous non-exclusive,

cumulative remedies available to RFC in case of an Event of Default. (Id. 28-30.) For

example, RFC may demand that Defendant repurchase defective loans. (Id. 29.)

Alternatively, RFC can recover all losses, costs and expenses it has incurred as the result

of an Event of Default. (Id. 31.) RFC can also assert any remedy allowed by law or

equity. (Id. 28.) Finally, RFC is entitled to obtain indemnification pursuant to the

Client Guide, including as against all losses, liabilities, and damages arising from

Defendants breach of representations and warranties and other obligations. (Id. 33.)

Defendant sold more than 6,900 loans, with an original principal balance in excess

of $2.6 billion to RFC. (Id. 4, 19.) RFC pooled and sold these loans into more than

160 RMBS trusts. (Id. 37.) A preliminary identification of the specific Defendant

loans that were securitized, including their original principal balance, the securitization in

which each loan was included, and the date Defendant sold the loan to RFC, is provided

with the First Amended Complaint at Exhibit C. Defendant sold additional loans to RFC

that RFC sold to whole loan purchasers. (Id. 22.)


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RFC has conducted a forensic review of the loans Defendant sold to RFC. (Id.

39.) The forensic review involved the use of an automated valuation model to examine

the veracity of Defendants representations and warranties about the subject properties

appraised values and owner-occupancy status. (Id.)

The forensic review demonstrated extensive and substantial breaches of

representations and warranties by Defendant. Among other findings, the forensic review

concluded that 43% of the subject loans had property values overrepresented by more

than 10%; 33% of the subject loans had reported property values overrepresented by

more than 15%; nearly 33% of the subject loans had reported loan-to-value ratios

(LTV) underrepresented by more than 10%; 23% of the subject loans had reported

LTV ratios underrepresented by more than 15%; 12% of the subject loans had reported

LTV ratios underrepresented by more than 25%; and nearly 13% of the loans had actual

LTV ratios greater than 100% (i.e., the loans were under water at origination). (Id.

42.) All of these findings constitute breaches of at least the following representations:

(A), (T), and (KK) of Section A202 of the Client Guide. (Id. 43.)

The forensic review also investigated Defendants representations regarding the

owner-occupancy status of the loans Defendant sold to RFC. (Id. 44-47.) 41% of the

sampled loans were determined to violate Defendants representations and warranties

regarding owner-occupancy status contained in (A), (G) and (KK) of Section A202 of the

Client Guide. (Id. 47.)

Furthermore, over time, many of the loans Defendant sold to RFC defaulted or

became seriously delinquent. (Id. 48.) These delinquency and default rates exceed


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what would normally be expected in a given population of mortgage loans. (Id. 49.)

Internal reviews conducted by RFC after the loans were acquired from Defendant also

determined that numerous loans sold to RFC by Defendant violated the Client Guide

and/or other representations or warranties made by Defendant, resulting in an Event of

Default under the Agreement. (Id. 50.) The types of defects included income and

employment misrepresentation, insufficient credit scores, owner occupancy

misrepresentation, appraisal misrepresentations or inaccuracies, undisclosed debt, and

missing or inaccurate documents (Id. 51). In the aggregate, RFC suffered more than

$187.5 million in losses due to defective loans sold to RFC by Defendant (Id. 48). Nine

specific examples of defective loans Defendant sold to RFC are contained in the First

Amended Complaint. (Id. 52.)2

2 For example, with regard to Loan ID #1913569, RFCs investigation revealed misrepresentations or errors regarding the borrowers credit score and employment and bankruptcy history, the borrowers debt-to-income ratio was incorrectly calculated, and loan file documents were missing. (See First Am. Compl. 52(a).) As to Loan ID #1910782, the borrowers income had been improperly grossed up, making the debt-to-income ratio insufficient, and the appraisal was inflated. (Id. 52(b).) It was determined that the loan documents and representations regarding Loan ID #10968712 were almost entirely false and inaccurate and that the borrower in fact did not really qualify for the loan. (Id. 52(c).) For Loan ID #1907065, the borrower fraudulently misrepresented their income and should not have received loan approval. (Id. 52(d).) With regard to Loan ID #1911787, the borrowers income was not properly verified and the appraisal was improperly done. (Id. 52(e).) For Loan ID #3320345, the borrower misrepresented his income and his assets. (Id. 52(f).) For Loan ID #4261026, the loan-to-value ratio exceeded guidelines and the loan file contained no verification of the borrowers employment. (Id. 52(g).) For Loan ID #9467525, the borrower improperly ended his stated employment before loan funding, leading naturally to default. (Id. 52(h).) For Loan ID #10368936, the borrower provided no verification of the existence of a company he claimed to own, and failed to disclose the total amount of properties he owned. (Id. 52(i).) Defendants conduct with regard to these loans breached Defendants representations and warranties in the Client Guide. (Id.)


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Beginning in 2008, RFC faced a growing number of claims and lawsuits stemming

from the defective loans that it purchased from Defendant and others. (Id. 48-71.)

Various bond insurers, trustees and institutional investors made repurchase demands

and/or filed lawsuits against RFC. (Id.) All of the lawsuits alleged that the loans RFC

sold into RMBS securitizations were defective in a variety of ways, including, among

other things, borrower fraud, missing or inaccurate documentation, misrepresentations

regarding owner occupancy, fraudulent or inflated appraisals, and failure to comply with

state and federal law. (Id. 68.) The lawsuits involved RMBS securitizations containing

loans sold to RFC by Defendant. (Id. 64, 66, 67.) Collectively, the lawsuits involved

more than one hundred RMBS securitizations with a combined principal balance of more

than $100 billion. (Id. 69.)

In May 2012, RFC and certain of its affiliates filed for Chapter 11 bankruptcy

protection in the Southern District of New York. (Id. 72.) In the bankruptcy

proceedings, hundreds of proofs of claims were filed by insurers, trustees and investors

alleging that loans in the RMBS securitizations were defective for the same reasons as

alleged in the pre-bankruptcy lawsuits. (Id. 73-75.) RFC and its affiliates settled many

of these claims and lawsuits in the bankruptcy proceedings for allowed claims totaling

billions of dollars. (Id. 76-77.) RFC has also paid millions of dollars in attorneys

fees to defend against, negotiate, and ultimately settle claims relating to allegedly

defective loans. (Id. 78.) These liabilities and losses were caused in part by

Defendants breaches of representations and warranties to RFC. (Id.)


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RFCs First Amended Complaint asserts two claims against Defendant. Count

One of the Complaint asserts a claim arising from Defendants breach of representations

and warranties in loans sold to RFC. (Id. 79-86.) Count Two of the Complaint asserts

a claim for indemnification for liabilities and losses RFC has incurred as a result of the

defective loans Defendant sold to RFC. (Id. 87-90.) These claims are now being

prosecuted for the benefit of RFCs creditors by the ResCap Liquidating Trust, which has

succeeded to all of RFCs rights and now controls RFC. (Id. 13, 77.)

II. Legal Standards Applicable To Defendants Motion To Dismiss.

Under Fed. R. Civ. P. 12(b)(6), this Court must construe the allegations in the

Complaint in the light most favorable to RFC and the facts alleged in the complaint

must be taken as true. Patil v. Minn. State Univ., Mankato, 2012 WL 7807608 at *9 (D.

Minn. Dec. 10, 2012). Additionally, this Court must resolve any ambiguities concerning

the sufficiency of [RFCs] claims in favor of [RFC], and give [RFC] the benefit of every

reasonable inference drawn from the well-pleaded facts and allegations in the

Complaint. Id. (quotation omitted).

The First Amended Complaint must also satisfy the standards set forth by the

United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and

Ashcroft v. Iqbal, 556 U.S. 662 (2009). Generally, under Twombly and Iqbal, to survive

a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to state a claim for relief that is plausible on its face. Hamilton v. Palm, 621 F.3d 816,

817 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). Determining whether a claim is


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plausible is a context specific task that requires the reviewing court to draw on its

judicial experience and common sense. Id. at 818 (quoting Iqbal, 556 U.S. at 678).

The Eighth Circuit has held, however, that Twombly and Iqbal did not abrogate

the notice pleading standard of Rule 8(a)(2) which only requires a short and plain

statement of the claim showing that the pleader is entitled to relief. Hamilton, 621 F.3d

at 817 (reversing district courts dismissal of complaint). Rule 8(a)(2) is satisfied when

the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged. Id. at 817 (quoting Iqbal, 556

U.S. at 678). Put another way, the complaint is sufficient if it contains enough fact[s] to

raise a reasonable expectation that discovery will reveal evidence of [the claim].

Meecorp Capital Markets LLC v. Oliver, 2010 WL 330324, at *3 (D. Minn. Jan. 21,

2010) (quoting Twombly, 550 U.S. at 556) (alterations in original). And, despite

Twombly and Iqbal, there is no requirement that a plaintiff actually prove the merits of

its case in its complaint. Meecorp, 2010 WL 330324 at *3. RFCs First Amended

Complaint meets these standards, and Defendants motion should be denied, as discussed

below.

III. RFC Has Adequately Pled The Elements Of Its Claims And Satisfies Iqbal/Twombly.

RFC has asserted claims for breach of representations and warranties (Count One)

and indemnification (Count Two). Remarkably, Defendant has failed to correctly

identify the elements of either claim under applicable Minnesota law. Applying the

correct law, it is clear RFC has adequately pled the elements of each of these claims.


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A. RFC Has Adequately Pled A Breach Of Representation And Warranty Claim In Count One Of The First Amended Complaint.

Courts applying Minnesota law have treated claims for breach of representations

and warranties as separate and distinct from generic breach of contract claims. See Gen.

Mills Operations, LLC v. Five Star Custom Foods, Ltd., 703 F.3d 1104, 1112 (8th Cir.

2013).3 Accordingly, under Minnesota law, claims for breach of representation/warranty

require only the existence of a warranty, breach of the warranty, and a causal link

between the breach and the alleged harm. VISIONBank v. Minnwest Bank Metro., 2011

WL 1261597 at *4 (D. Minn. March 31, 2011) (addressing breach of warranty in

contractual real estate loan dispute); see also Jesse v. HSFL Acquisition Co., LLC, 2009

WL 1086474 at *3 (D. Minn. April 22, 2009) (To prevail on a breach of warranty claim

under Minnesota law, a party must show the existence of a warranty, a breach and a

causal link between the breach and the alleged harm); Daigle v. Ford Motor Co., 713 F.

Supp. 2d 822, 825 (D. Minn. May 10, 2010) (same).

Here, RFC has alleged each of these three elements:

The existence of representations and warranties, which Defendant made to RFC. (See First Am. Compl. 5 (Defendant made contractual representations and warranties designed to protect RFC from the risks of borrower fraud, appraisal fraud, failure to comply with state and federal law, and other credit and compliance factors . . . .); id. 24(a)-(m) (identifying and

3 In General Mills, the plaintiff asserted both a generic breach of contract and a breach of warranty claim. The Eighth Circuit noted that the district court properly considered the breach of contract claim as separate from the breach of warranty claim. See id. at 1112. This confirms that generic breach of contract claims are governed by different standards than breach of warranty claims.


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quoting relevant representations and warranties); id., Ex. B (Client Guide excerpts))4;

Breach of those representations and warranties. (Id. 38-47 (RFC

conducted a forensic review of the loans Defendant sold to RFC); id. 42, 47 (the forensic review determined that various representations and warranties were breached at rates as high as 43% of the sampled loans); id. 48 (Over time, many of the loans sold to RFC by Provident defaulted or became seriously delinquent.); id. 49 (These delinquency and default rates exceed what would normally be expected in a given population of mortgage loans.); id. 50 (Internal reviews conducted by RFC determined that numerous loans sold to RFC by Provident violated the Client Guide and/or other representations or warranties made by Provident, resulting in an Event of Default under the Agreement.); id. 51 (The types of defects varied, but included income misrepresentation, employment misrepresentation, insufficient credit scores, owner occupancy misrepresentations, appraisal misrepresentations or inaccuracies, undisclosed debt, and missing or inaccurate documents, among others.); id. (a number of the loans defaulted very shortly after origination . . . which is widely recognized . . . as often signaling fraud or other problems in the origination and underwriting of the loans); see also id. 52 (providing examples of defective loans Defendant sold to RFC, all of which breached Defendants representations and warranties to RFC); and

A causal link between the breach and the alleged harm. (Id. 58 (prior to

the bankruptcy proceedings, RFC faced a growing number of claims and dozens of lawsuits stemming from the defective loans sold to it by Provident

4 Defendant complains that RFC has not specifically alleged that the loans at issue are subject to the Seller Contracts attached to the Complaint, and that RFC has not attached the Client Guide in its entirety. Defendants contentions lack any merit whatsoever. RFC has specifically alleged that the defective loans were among those sold pursuant to the Contracts attached as Exhibit A to the Complaint, and that those Contracts incorporated the Client Guide. (See First Am. Compl. 17-19, Exs. A, B). Moreover, RFC additionally alleged that the complete versions of the Client Guide are known to the parties and too voluminous to attach in their entirety; the omitted portions of the Client Guides do not affect the obligations set forth in this Amended Complaint. (Id. 18). Rule 8 only requires a short and plain statement of RFCs claimsit does not require RFC to attach thousands of pages of documents to its Complaint or prove its entire case at the pleadings stage. Consistent with Rule 8, RFC has identified the Seller Contracts and the key provisions of the Client Guide at issue in its First Amended Complaint and has attached the relevant excerpts of the Client Guide. Rule 8 does not require anything further.


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and others.); 59-71 (discussing specific examples of lawsuits involving RMBS containing loans sold to RFC by Defendant ); id. 73 (In connection with the bankruptcy proceeding, hundreds of proofs of claim were filed by investors in RMBS, monoline insurers, whole loan purchasers, indenture trustees . . . These proofs of claim . . . sought damages in the tens of billions of dollars, all stemming from allegedly defective mortgage loans, including those sold to RFC by Provident.); id. 75 (These proofs of claim, lawsuits, and demands all alleged, among other things, that the securitized or purchased loans were defective, improperly underwritten . . . .); id. 76-77 (After protracted litigation and a lengthy mediation process, the Bankruptcy Court approved a global settlement including the $10 billion-plus settlement of RMBS-related liabilities); id. 78 (Pursuant to its express contractual obligations, Provident is obligated to compensate RFC for the portion of the global settlement associated with its breaches of representations and warranties . . . .)).

Construing these allegations in favor of RFC, taking them as true, and drawing all

reasonable inferences in favor of RFC, as this Court must, RFC has alleged each of the

required elements of a breach of representation and warranty claim.5

B. RFC Has Adequately Pled An Indemnification Claim In Count Two Of The Complaint.

Defendant does not present any argument regarding RFCs indemnification claim

other than generally contending that it fails for the same reasons as RFCs claim for

breach of representations and warranties. Defendant, however, has once again failed to

5 The Minnesota Supreme Court has accepted for review a certified question of law from the Seventh Circuit regarding whether reliance is a required element of a representation and warranty claim. See Lyon Financial Services, Inc. v. Illinois Paper & Copier Co., Case No. A13-1944 (Minn. Oct. 29, 2013) (accepting certified questions pursuant to Minn. Stat. 480.065); Lyon Financial Services, Inc. v. Illinois Paper & Copier Co., 732 F.3d 755 (7th Cir. 2013). RFC notes that, in Section A200 of the Client Guide itself, Defendant expressly acknowledged that RFC purchases Loans in reliance upon the accuracy and truth of [Defendants] warranties and representations[.]


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identify the law applicable to RFCs indemnification claim, which is separate and distinct

from RFCs claim for breach of representations and warranties.

Indemnity arises out of a contractual relationship, either expressed or implied by

law, which requires one party to reimburse the other entirely. Hernick v. Verhasselt

Construction, Inc., 2003 WL 1814876 at *4 (Minn. Ct. App. April 8, 2003) (quotation

omitted). A claim for indemnification exists [w]here there is an express contract

between the parties containing an explicit undertaking to reimburse for liability of the

character involved. Id. at *5.

Here, RFC has alleged the existence of an express contract, which requires

Defendant to indemnify RFC for RFCs damages. Specifically, RFC alleges that

Defendant entered into a Seller Contract, which incorporates the terms of the Client

Guide. (See First Am. Compl. 17, 18.) A copy of the Seller Contract and relevant

excerpts from the Client Guide are attached as Exhibits A and B to the First Amended

Complaint. (See id., Exs. A, B.)

The Client Guide, in turn, contains broad indemnification provisions obligating

Defendant to indemnify RFC for RFCs damages. Section A212, for example, provides:

[Defendant] shall indemnify GMAC-RFC from all losses, damages, penalties, fines, forfeitures, court costs and reasonable attorneys fees, judgments, and any other costs, fees and expenses includ[ing], without limitation, liabilities arising from (i) any act or failure to act, (ii) any breach of warranty, obligation or representation contained in the Client Guide, (iii) any claim, demand, defense or assertion against or involving GMAC-RFC based on or resulting from such breach, (iv) any breach of any representation, warranty or obligation made by GMAC-RFC in reliance upon any warranty, obligation or representation made by [Defendant]


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contained by the Client Contract and (v) any untrue statement of a material fact, omission to state a material fact, or false or misleading information provided by the [Defendant] in information required under Regulation AB or any successor regulation.

In addition, [Defendant] shall indemnify GMAC-RFC against any and all losses, damages, penalties, fines, forfeitures, judgments, and any other costs, fees and expenses (including court costs and reasonable attorneys fees) incurred by GMAC-RFC in connection with any litigation or governmental proceeding that alleges any violation of local, State or federal law by [Defendant], or any of its agents, or any originator or broker in connection with the origination or servicing of a Loan.

(Id., Ex. B A212.) Similarly, in Section A202, Defendant agreed:

to indemnify and hold GMAC-RFC harmless from and against any loss, damage, penalty, fine, forfeiture, court cost, reasonable attorneys fees, judgment, cost, fee, expense or liability incurred by GMAC-RFC as a result of any material misstatement in or omission from any information provided by [Defendant] to GMAC-RFC; or from any claim, demand, defense or assertion against or involving GMAC-RFC based on or grounded upon, or resulting from such misstatement or omission or a breach of any representation, warranty or obligation made by GMAC-RFC in reliance upon such misstatement or omission.

(See Id. A202, A212.) These indemnification provisions are one of the non-exclusive,

cumulative remedies available to RFC under the Client Guide. Notably, Defendant does

not expressly discuss these indemnification provisions in any detail in its motion.

In sum, RFC has alleged the existence of a contract requiring Defendant to

indemnify RFC for its damages. This is sufficient to state a claim for indemnity under

Minnesota law and the notice pleading standards of Rule 8. Accordingly, Defendants

motion should be denied with respect to Count Two of the Complaint as well.


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IV. RFC Has Pled Facts Sufficient To Establish Standing.

Defendant contends that RFC lacks constitutional standing to bring this lawsuit

because, purportedly RFC has failed to plead facts sufficient to demonstrate injury as a

result of Defendants conduct. Defendant, however, has ignored both the applicable law

(again) and the actual allegations in the First Amended Complaint.

While constitutional standing requires injury-in-fact, that standard is easily met at

the pleading stage. Specifically, general factual allegations of injury resulting from the

defendants conduct are sufficient and on a motion to dismiss we presume that general

allegations embrace those specific facts that are necessary to support the claims.

Frankle v. Best Buy Stores, L.P., 609 F. Supp. 2d 841, 844-45 (D. Minn. 2009).

Here, the First Amended Complaint easily satisfies this standard. The First

Amended Complaint contains detailed factual allegations of the injuries and damages

suffered by RFC, and the causal connection between those injuries and damages, and

Defendants conduct:

Defendant originated and sold residential mortgage loans to RFC. (See First Am. Compl. 4, 19.)

Defendant made numerous material representations and warranties to RFC

regarding the loans. (Id. 5, 24(a)-(m).)

The terms and conditions of the parties agreement, including the representations and warranties, are contained in the Client Guide. (Id. 18; id., Ex. B (attaching excerpts.))

The Client Guide provides that Defendants failure to comply with its

representations and warranties to RFC or any other requirements constitute an Event of Default. (Id. 26-27.)


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The Client Guide also provides numerous non-exclusive, cumulative remedies available to RFC in case of an Event of Default. (Id. 28-30.)

RFC may demand Defendant to repurchase defective loans but is not required to

do so. If repurchase is not feasible, RFC can still recover all losses, costs and expenses it has incurred as the result of an Event of Default. RFC can also assert any remedy allowed by law or equity. (Id.)

Defendant also agreed to broad indemnification provisions in the Client Guide,

pursuant to which Defendant is required to indemnify RFC for all losses, damages, etc. arising from Defendants breach of representations and warranties and other obligations. (Id. 33.)

Defendant sold more than 6,900 loans worth in excess of $2.6 billion to RFC,

which RFC pooled and sold into some 160 RMBS trusts. (Id. 4, 19, 37.)

Over time, many of the loans Defendant sold to RFC defaulted or became seriously delinquent. (Id. 48.) These delinquency and default rates exceed what would normally be expected in a given population of mortgage loans. (Id. 49.)

Numerous loans Defendant sold to RFC sustained losses totaling over $187.5 million, exposing RFC to claims from investors, monoline insurers, and others. (Id. 48.)

RFC conducted a forensic review of the loans Defendant sold to RFC. The forensic review determined that the loans were in breach of Defendants representations and warranties at rates of up to 43% of the sampled loans. (Id. 39-47.)

Internal reviews of loan files conducted by RFC after the loans were acquired

from Defendant also determined that numerous loans sold to RFC by Defendant violated the Client Guide and/or other representations or warranties made by Defendant, resulting in an Event of Default under the Agreement. (Id. 50.)

The types of defects included income and employment misrepresentation, insufficient credit scores, owner occupancy misrepresentation, appraisal misrepresentations or inaccuracies, undisclosed debt, and missing or inaccurate documents. (Id. 51)

Examples of defective loans Defendant sold to RFC are contained in the First Amended Complaint. (Id. 52.)


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RFC incurred billions of dollars in liabilities and losses stemming from defective loans, including those sold to RFC by Defendant. (Id. 56.)

Beginning in 2008, RFC faced a growing number of claims and lawsuits stemming

from the defective loans that it purchased from Defendant and others. (Id. 58-71.) Various bond insurers, trustees and institutional investors made repurchase demands and/or filed lawsuits against RFC. (Id.) All of the lawsuits alleged that the loans RFC sold into RMBS securitizations were defective in a variety of ways, including, among other things, borrower fraud, missing or inaccurate documentation, fraudulent or inflated appraisals, and failure to comply with state and federal law. (Id. 68.) The lawsuits involved RMBS securitizations containing loans sold to RFC by Defendant. (Id. 64, 66, 67.)

RFC filed for bankruptcy protection in May 2012. (Id. 72.) In the bankruptcy

proceedings, hundreds of proofs of claims were filed by insurers, trustees and investors alleging that loans in the RMBS securitizations were defective including loans Defendant sold to RFC for the same reasons as alleged in the pre-bankruptcy lawsuits. (Id. 73-75.)

RFC settled many of these claims and lawsuits in the bankruptcy proceedings for

allowed claims totaling billions of dollars, including claims arising out of loans sold by Defendant to RFC. (Id. 76-77.)

RFC has also paid millions of dollars in attorneys fees to defend against, negotiate, and ultimately settle claims relating to allegedly defective loans, including those sold to RFC by Defendant. (Id. 78.)

These losses and exposures stem in part from Defendants breaches of

representations and warranties to RFC with respect to the loans Defendant sold to RFC. (Id. 76-78.)

RFC has suffered loss, harm, and financial exposure directly attributable to Defendants material breaches, including liability and losses stemming from defective loans, as well as attorneys fees, litigation-related expenses, and other costs associated with both defending dozens of lawsuits and proofs of claim filed against RFC stemming in part from materially defective loans sold to RFC by Defendant. (Id. 85)

RFC is entitled to indemnification from Defendant for damages related to loans sold to RFC by Defendant. (Id. 88-90.)


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Construing these allegations in favor of RFC, accepting them as true, and drawing

all reasonable inferences in favor of RFC, as this Court must, RFC has clearly alleged

facts sufficient to establish constitutional standing: Defendant made numerous material

representations and warranties to RFC concerning the loans Defendant sold to RFC;

Defendant contractually agreed to various remedies for any breach of its representations

and warranties, including broad indemnification provisions; Defendants loans in fact

contained numerous breaches of the representations and warranties traceable to those

loans; and RFC has been damaged as a result of Defendants breaches. These allegations

are more than sufficient to demonstrate standing at the pleading stage. Frankle, 609 F.

Supp. 2d at 844-845 (general factual allegations of injury resulting from the defendants

conduct are sufficient).

V. RFC Is Not Required To Plead The Alleged Defect In Each And Every One Of The Large Number Of Loans At Issue In This Lawsuit.

A. Defendant Fails To Cite Any Authority Imposing Such A Requirement

Upon RFC.

Defendant also suggests that RFC should have pled in the First Amended

Complaint loan specific allegations regarding the breach of each loan that Defendant sold

to RFC. Yet, Defendant sold more than 6,900 loans worth billions of dollars to RFC

during the course of the parties relationship. (First Am. Comp. 4, 17, 80.) As

alleged, these loans had a value of more than $2.6 billion and were sold into some 160

RMBS trusts. (Id. 4, 37.) In other RMBS litigation where, as here, a large number of

loans are involved, courts have routinely refused to require plaintiffs to set forth in the

complaint each and every breach for every one of the dozens, hundreds or even thousands


625046.v1 20

of loans involved. And for good reason. Rule 8(a)(2) only requires a short and plain

statement of the claim[.] That standard is satisfied here.

Indeed, this principle was recently confirmed in another RMBS case involving

defective loans. See Ace Secs. Corp. v. DB Structured Prods., Inc., 2014 WL 1116758

(S.D.N.Y. March 20, 2014). In Ace Securities, the defendant argued that the complaint

should be dismissed because the plaintiff had not alleged specific defects regarding each

loan at issue. The court rejected this contention noting, as the defendant itself conceded,

several courts have found that, as a matter of pleading sufficiency, a complaint for

repurchase need not contain specific allegations regarding each loan at issue. Id. at *13

(citing cases).

Numerous other courts have reached the same conclusion both under the liberal

notice pleading standards applicable to contract claims, and even under the heightened

pleading standards for fraud claims (which are not applicable here). See Oklahoma

Police Pension & Retirement Sys. v. U.S. Bank Natl Assn, 291 F.R.D. 47, 66-67

(S.D.N.Y. May 31, 2013) (allegations render plausible the plaintiffs claims that the

issuer breached its obligations despite failure to allege the specific facts necessary to

show that any of the mortgages . . . were in fact defective); Hapoalim B.M. v. Bank of

Am. Corp., 2012 WL 6814194 (C.D. Cal. Dec. 21, 2012) (There is no need to allege that

the specific loans backing a plaintiffs securities contained underwriting defects); see

also Assured Guar. Mun. Corp. v. Flagstar Bank FSB, 920 F. Supp. 2d 475, 512

(S.D.N.Y. 2013) (To the extent that [loan seller] argues that it must be notified as to

each loan as to which a material breach is claimed with sufficient specificity to allow


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[loan seller] to identify the loan and investigate the alleged breach, this requirement

inappropriately places the burden of notification on [loan purchaser].); ACE Sec. Corp. v

DB Structured Products, Inc., Index. No. 650327/2013, 2013 WL 6153206 (N.Y. Sup.

Ct. Nov. 21, 2013) (Denying motion to dismiss: [P]laintiff is not precluded from

maintaining put-back claims for loans not specified in its demand letters. It is

commercially unreasonable to require plaintiff to effectively re-underwrite the balance of

the trust.); Home Equity Mortgage Trust Series 2006-1 v. DLJ Mortgage Capital, Inc., et

al., No. 156016/2012 (N.Y. Sup. Ct. Nov. 19, 2013) ([T]he court agrees that plaintiffs

use of statistical sampling to prove liability and damages [in this repurchase case] would

streamline the trial, promote judicial economy, and conserve the resources of the parties

and the court.); CIFG Assur. N. Am., Inc. v. Goldman, Sachs & Co., Index No.

652286/2011, 2012 WL 1562718 (N.Y. Sup. Ct. May 1, 2012) (under the liberal notice

pleading standards for contract claims, the complaint need not make specific

representations as to each of the individual loans) affd, 2013 WL 1876243, at *2 (1st

Dept May 7, 2013) (Notice of breach was sufficiently alleged.); MBIA Ins. Corp. v.

Morgan Stanley, No. 29951/2010, 2011 WL 2118336, at *4 (N.Y. Sup. Ct. May 26,

2011) (denying motion to dismiss fraud/contract claims: The Complaint details the

results of MBIA's forensic review which found a level of material discrepancies from the

requirements of the Seller's Guide so significant that one can infer Morgan Stanley's pre-

contractual representations to have been false. Plaintiff is not limited, as Defendant

argues, to a loan by loan remedy as provided in the contract, but rather can seek a pool

wide remedy based on its sampling and extrapolation.).


625046.v1 22

The cases cited by Defendant, in contrast, have no application to RMBS cases

such as this one. Defendant, for example, cites Motley in support of its contention that

the First Amended Complaint is impermissibly vague. Yet, in Motley which only

involved five loans the court noted the plaintiffs had not attached the allegedly

violated contracts to the Complaint, nor have they pleaded the terms of those contracts[.]

See Motley v. Homecomings Financial, LLC, 557 F. Supp. 2d 1005, 1013 (D. Minn.

2008). Here, RFC has attached relevant excerpts of the parties voluminous contract, and

has pled the relevant terms. (See First Am. Compl. 18, 24(a)-(m); see also id., Ex. B.)

Accordingly, Motley has no bearing on this case.6

6 The other cases cited by Defendant likewise have no bearing on this matter. For example, in LaSalle, the court dismissed two of three claims where there was no allegation whatsoever regarding how the subject warranties were breached. Nothing in the courts opinion, however, suggests that plaintiff was required to allege specific defects in each of the subject loans. See Wells Fargo Bank, N.A. v. LaSalle Bank, N.A., 2011 WL 4837493 (N.D. Ill. Oct. 11, 2011). In Schlief, plaintiffs claim for breach of a confidentiality agreement by a former employee was dismissed because plaintiff failed to plead that the former employee was in fact in possession of, or had access to, any confidential information belonging to plaintiff in the first place. See Schlief v. Nu-Source, Inc., 2011 WL 1560672 *4 (D. Minn. 2011). As such, the complaint in Schlief was dismissed because there were no facts alleged in the complaint which, if true, could state a claim for relief. Id. The cases cited by Defendant simply have no legal or factual relevance to this matter. Lastly, in Torchlight Loan Servs., LLC v. Column Fin., Inc., 2012 WL 3065929 (D. Minn. July 25, 2012), the Court dismissed breach of representation and warranty claims only as to those claims where the Complaint failed to allege facts showing that the complained-of defects actually existed at the time the loan was closed (and thus at the time the representation and/or warranty at issue was made). Id. at *6-7. Here, in stark contrast, RFC has alleged that Defendant breached its representations and warranties through defects that expressly existed in the loans when they were sold to RFC. Torchlight is thus completely inapposite to this case.


625046.v1 23

In sum, RFC has made numerous factual allegations supporting its claims,

including the allegations that an investigation of Defendants loans sold to RFC revealed

breaches of the applicable representations and warranties. (See First Am. Compl. 38-

54.) RFC is not asserting fraud claims and is not required to plead its claims with

particularity. Rather, only the liberal notice pleading standards of Rule 8 apply. Thus,

drawing all reasonable inferences in favor of RFC, as this Court must, these allegations

are more than sufficient to establish a plausible claim against Defendant.

B. Defendant Ignores The Controlling Decision In The Terrace Case Demonstrating That RFC Has Asserted Plausible Claims Against Defendant.

Notably, Defendant also ignores controlling legal precedent from this Court and

the Eighth Circuit holding that under RFCs Client Guide RFC has the sole discretion

to determine whether an Event of Default has occurred, and the lender cannot challenge

that determination. See Residential Funding Company, LLC v. Terrace Mortgage

Company, 850 F. Supp. 2d 961 (D. Minn. 2012) affd 725 F.3d 910 (8th Cir. 2013). As a

result, it is not necessary for RFC to prove the existence of specific breaches by

Defendant.

Specifically, in Terrace, RFC sued one of its correspondent lenders for refusal to

repurchase 13 loans. This Court held that, under the Client Guide, RFC has the

exclusive authority to determine if a default occurred and that the Client Guide confirms

RFC has the sole discretion to make such determinations. 850 F. Supp. 2d at 966

(emphasis in original). Accordingly, this Court held that the defendant had no legal basis

to challenge RFCs determination:


625046.v1 24

Nevertheless, Terrace asks this Court to review and evaluate whether there was, in fact, an Event of Default under the terms of the parties agreement. Terrace, however, may not contractually agree to give that authority solely to Residential and then seek to have this Court independently review the validity of Residentials determinations. The Court's exercise of such authority to review Residentials determinations would deprive Residential of part of the benefit of the bargain it obtained from Terrace and for which Terrace was well compensated.

Id. at 970. On appeal, the Eighth Circuit affirmed, holding that the Client Guide gives

[RFC] sole discretion to determine whether an Event of Default has occurred with

respect to each loan. Terrace, 725 F.3d at 916. The Eighth Circuit also noted it was

irrelevant that RFC had behaved during litigation as if it needed to prove to the court the

violations of the warranties in the Client Guide. Id. Although RFC pled violations of

the warranties in its complaint and conducted discovery, the Eighth Circuit noted that the

contract language not the parties litigation conduct controlled. Id.

Applied here, this controlling legal precedent demonstrates the sufficiency of

RFCs allegations. Under the parties agreement, RFC has the sole discretion to

determine whether Events of Default have occurred with respect to the loans Defendant

sold to RFC. In that regard, RFC has specifically alleged that, under the Client Guide,

breaches of representations and warranties constitute Events of Default and that

Defendant has in fact breached the representations and warranties it made to RFC. (See

First Am. Compl. 38-54.) These allegations are more than sufficient to state a


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plausible claim, particularly considering Defendant has no legal basis to challenge RFCs

determination regarding Events of Default. Defendants motion should be denied.7

C. RFC Is Not Required To Plead Expert Testimony In Its Complaint.

Defendants contention that the First Amended Complaint must allege the defects

in each and every loan fails for one additional reason. In RMBS litigation, breaches of

the subject representations and warranties are typically proven with expert witnesses,

who re-underwrite a sample of the loans involved. Indeed, courts in RMBS litigation

have approved the use of expert testimony to prove defect rates in loan pools through

statistical sampling, particularly where a large number of loans is involved. See

generally Assured Guar. Mun. Corp. v. Flagstar Bank, FSB, 920 F. Supp. 2d 475, 512

(S.D.N.Y. 2013) (Sampling is a widely accepted method of proof . . . in cases relating to

RMBS . . . .); Federal Hous. Fin. Agency v. JPMorgan Chase & Co., 2012 WL 6000885

(S.D.N.Y Dec. 3, 2012) (approving use of expert testimony to demonstrate loan defects

through statistical sampling). In other words, statistical sampling is often used instead of

re-underwriting each and every loan in the subject loan pool.

The foregoing is particularly true as to RFCs claim for indemnity. Under

Minnesota law, [l]iability need not be in the form of a verdicta [reasonable and

prudent] settlement can trigger the duty to indemnify. Jackson Nat'l Life Ins. Co. v.

7 In Terrace, RFC chose to pursue the non-exclusive remedy of repurchase against the defendant. This Court noted that the Client Guide permits RFC at its option to exercise [any of the] remedies set forth in the Guides if an Event of . . . Default shall occur. 850 F. Supp. 2d at 966 (alterations in original). In fact, repurchase is only one of several non-exclusive and cumulative remedies that RFC may choose to pursue under the Client Guide. (See First Am. Compl. 28-30.)


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Workman Sec. Corp., 803 F. Supp. 2d 1006, 1012 (D. Minn. 2011) (citing Miller v.

Shugart, 316 N.W.2d 729, 735 (Minn. 1982) (en banc)). Accordingly, where a party

seeks indemnity as to a settlement, The ultimate issue to be decided is the

reasonableness of [the] settlement. Petco v. Ins. Co. of N. Am., 2011 WL 2490298,

*7-8 (D. Minn. Jun. 10, 2011), quoting Alton M. Johnson Co. v. M.A.I. Co., 463 N.W.2d

277, 279 (Minn. 1990). Reasonableness, therefore, is not determined by conducting the

very trial obviated by the settlement, but rather is assessed in light of factors such as

settlements or jury verdicts in similar cases (id.), expert deposition testimony on the

reasonableness of the settlement (id.), expert opinion testimony on the possible total

jury damage award (id.), and opinions of attorneys retained as experts (id.). There is

no support, under this assessment, for Branch Bankings argument that loan-level proof

will be required at trial in this actionlet alone for the suggestion that it is required on

the pleadings.

In sum, it is not necessary on either a contract or indemnity claim, for RFC to

allege each and every breach with respect to each and every loan in the Complaint when a

large number of loans is involved. That level of detail is reserved for discovery and, in

particular, expert testimony. See Meecorp, 2010 WL 330324, at *3 (plaintiff is not

required to prove its claims in the complaint; Twombly only requires enough fact[s] to

raise a reasonable expectation that discovery will reveal evidence of [the claim]).

VI. RFCs Claims Are Not Barred By The Statute Of Limitations.

Defendant also contends that RFCs claims are time-barred because all of the

subject loans were sold prior to August 28, 2007 (over six years before the filing of the


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Complaint). (See Mem. in Supp. of Defendants Motion to Dismiss Pl.s First Am.

Compl. 17-20 (ECF No. 38)). Defendant, however, has yet again ignored the applicable

law. With respect to RFCs breach of representations and warranties claim, the statute of

limitations was extended by virtue of RFCs bankruptcy filing, and as a result, the claim

is timely at least as to all loans sold to RFC on or after May 14, 2006. With respect to

RFCs indemnification claim, the statute of limitations did not begin to run until at the

earliest December 2013, when the Plan which included the various settlements of

RMBS-related liabilities was confirmed and became effective. Accordingly, RFCs

indemnification claim is timely as to all of the subject loans.

First, with respect to RFCs breach of representations and warranties claim, 11

U.S.C. 108(a) extended the underlying six year statute of limitations for up to two years

after the date of the May 14, 2012 bankruptcy filing. See 11 U.S.C. 108(a) (authorizing

trustee to commence action before the end of the applicable statute of limitations or two

years after the order for relief, whichever is later); see also 11 U.S.C. 1107(a)

(providing debtor in possession with most rights of a trustee, including rights under

108(a)); First Am. Compl. 72 (noting that RFC filed for bankruptcy on May 14,

2012).

Here, on the date of the bankruptcy filing, the statute of limitations had not yet run

as to loans sold to RFC on or after May 14, 2006 within six years of the bankruptcy

filing. Section 108(a), in turn, extended the time for RFC to file this action until two

years after the order for relief. RFC filed its original Complaint on December 13, 2013

within two years of its May 14, 2012 bankruptcy petition. As a result, RFCs breach of


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representations and warranties claim at a minimum as to loans sold to RFC on or after

May 14, 2006 remains timely.8

Second, with respect to RFCs indemnification claim, it is black-letter law in

Minnesota that the statute of limitations does not begin to run until the underlying

liability of the party seeking indemnification has become fixed or ascertained through a

settlement or judgment. Hernick, 2003 WL 1814876 at *5 (The statute of limitations in

an indemnification case ordinarily is six years after final judgment or settlement);

Mason v. Spiegel, Inc., 610 F. Supp. 401, 404 n.3 (D. Minn. 1985) ([U]nder Minnesota

law, the statute of limitations does not begin to run on a right to claim . . . indemnity until

liability by the party claiming such right actually occurs.); see also Metro. Prop. &

Casualty Ins. Co. v. Metro. Transit Commn, 538 N.W.2d 692, 695 (Minn. 1995) (statute

of limitations does not begin to run until the liability of the party seeking indemnity has

become finally fixed and ascertained, or until after the claimant has settled or has paid the

judgment or more than a commensurate share of it) (quotation omitted).

8 RFC does not concede that loans sold prior to May 14, 2006 are time-barred. RFCs claim for breach of representations and warranties as to such loans may still be timely depending on the facts and circumstances of each loan. The resolution of such factual issues is not appropriate at the pleading stage. See Moore v. Medtronic, Inc., CIV. 99-2066 (ADM/AJB), 2001 WL 1636248 (D. Minn. Jan. 31, 2001) (Where a contract provides for continuing performance over a period of time, each breach may begin the running of the statute anew such that accrual occurs continuously.); Airco Alloys Div. v. Niagara Mohawk Power Corp., 76 A.D.2d 68, 80 (4th Dept 1980) (same); City of Pipestone v. Wolverine Ins., 1985 WL 1845 (D. Minn. 1985) (Where a warranty relates to a future event that will determine whether or not it is breached, the statute does not begin to run until the happening of such future event.). And, as discussed above, RFCs indemnification claim remains timely as to all of the subject loans, regardless of the date the loans were sold.


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Applying the foregoing rule, courts routinely deem claims for contractual

indemnification timely even where the statute of limitations for breach of contract has

lapsed. See Discovery Group v. Chapel Dev., 574 F.3d 986, 990 (8th Cir. 2009) (statute

of limitation bars contract claim for breach of representations and warranties, but does

not bar claim for indemnity for liability/losses to third parties resulting from breaches of

those representations and warranties) (applying Missouri law); Smith Intl v. Egle Group,

490 F.3d 380, 388-89 (5th Cir. 2007) (same); Italia Marittima, S.P.A. v. Seaside Transp.

Services, LLC, 2010 WL 3504834 (N.D. Cal. Sept. 7, 2010) (same); TIB-The Independent

Bankersbank v. Canyon Community Bank, 2014 WL 1373507 (N.D. Tex. April 8, 2014)

(same as to contract for purchase of mortgage loans).

Here, RFC is seeking indemnification for liabilities and losses which were

primarily fixed and ascertained during the bankruptcy proceedings, which began in May

2012. (See First Am. Compl. 58-71.) RFC filed this lawsuit on December 13, 2013

less than two years later. There can be no argument that indemnification for these

liabilities and losses is somehow time-barred. It is not. In short, Defendant has ignored

the law applicable to RFCs claim for breach of representations and warranties and for

indemnification. RFCs claims are not time-barred as a matter of law.

CONCLUSION

For the foregoing reasons, RFC respectfully requests the Court to deny

Defendants motion to dismiss (ECF No. 36) the First Amended Complaint (ECF No.

30).


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Dated: May 15, 2014

FELHABER LARSON By: s/Jessica J. Nelson

Donald G. Heeman, #286023 David L. Hashmall, #138162 Jessica J. Nelson, #347358 220 South Sixth Street, Suite 2200 Minneapolis, MN 55402-4504 Telephone: (612) 339-6321 Facsimile: (612) 338-0535 [email protected] [email protected] [email protected]

QUINN EMANUEL URQUHART & SULLIVAN, LLP Peter E. Calamari (admitted pro hac vice) 51 Madison Avenue, 22nd Floor New York, New York 10010 Telephone: (212) 849-7000 Facsimile: (212) 849-7100 [email protected]

CARPENTER LIPPS & LELAND LLP Jeffrey A. Lipps (admitted pro hac vice) 280 Plaza, Suite 1300 280 North High Street Columbus, Ohio 43215 Telephone: (614) 365-4100 Facsimile: (614) 365-9145 [email protected] ATTORNEYS FOR PLAINTIFF RESIDENTIAL FUNDING COMPANY, LLC


INTRODUCTION

RESCU Memo in Opposition to Dismiss (Provident)

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Transcript of RESCU Memo in Opposition to Dismiss (Provident)