YOU ARE COMPLETELY WRONG
I HAVE IN FRONT OF ME THE FDIC VERSUS DB FILLING AND WILL BRING TO YOUR EYES SOME PART OF IT
Read carefully and search for your self in that particular filing.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for the Trusts listed in Exhibits 1-A and 1-B,
Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for Washington Mutual Bank; JPMORGAN CHASE BANK, National Association; and WASHINGTON MUTUAL MORTGAGE SECURITIES CORPORATION,
Defendants.
JURY TRIAL DEMANDED
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B. WaMu’s Contractual Obligations
(1) The Governing Documents for the Trusts
38. The PAA expressly provides that JPMC “specifically assumes all mortgage
servicing rights and obligations of [WMB].” PAA (Exhibit 2), § 2.1.
39. The FDIC assigned to JPMC, and JPMC has assumed, all mortgage servicing rights and obligations of WaMu to the extent provided in the PAA.
40. The mortgage servicing rights and obligations of WaMu with respect to the Trusts
arose under the Governing Documents.
41. To assign to JPMC any rights and obligations under the Governing Documents,the FDIC, as receiver for WMB, was required first to assume, and not repudiate or disaffirm,
such Governing Documents.
42. The Governing Documents:
a. are all in writing;
b. were all executed by WaMu and DBNTC, as Trustee, at the time the associated property interests were transferred;
c. were executed on behalf of WaMu by individuals duly authorized by the applicable WaMu entity’s Board of Directors;
d. have been continuously in existence, since the time of execution, and constitute official books and records of WaMu; and
e. constituted official books and records of WMB at the time of WMB’s closing on
September 25, 2008.
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d. § 6(xxii) – “The origination, underwriting and collection practices used by the Seller with respect to each Mortgage Loan have been in all material respects legal,proper, prudent and customary in the subprime mortgage servicing business.Each Mortgage Loan is currently being serviced by Washington Mutual Bank”.
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48. WaMu(Not WMB) as the Seller, Depositor and/[color=red]48. WaMu as the Seller, Depositor and/or Servicer has exclusive possession of the loan origination and servicing records and, as the Servicer charged with enforcing the terms and conditions of mortgage loans on behalf of the Trusts, WaMu would be the first party acting on
behalf of the Trusts likely to discover facts and circumstances that constitute a breach of a Representation and Warranty with respect to any particular mortgage loan in the Trusts, and in most circumstances is the only party able to confirm the existence of such a breach.
WaMu’s Notice Obligation
49. The Governing Documents require WaMu, as Seller, Depositor and/or Servicer, to give prompt written notice to the Trustee and other parties upon discovery or notice of any breach of the Representations and Warranties that has a material and adverse effect on the value of the mortgage loans in the Trusts or the interests of the Trusts therein (“the Notice Obligation”).
(4) WaMu’s Repurchase Obligation
53. The Governing Documents require WaMu, as Seller and/or Depositor, to cure the defect in the mortgage loan file or breach of the Representations and Warranties in all material respects, repurchase the mortgage loan at a specified repurchase price, or substitute for the affected mortgage loan upon discovery or receipt of notice of any breach of the Representations and Warranties that has a material and adverse effect on the value of the mortgage loans in the Trusts or the interests of the Trusts therein (the “Repurchase Obligation”).
54. Under the Governing Documents for each Primary Trust, WaMu, as Seller and/or Depositor, has Repurchase Obligations to each Primary Trust.
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56. The Trusts’ remedies for breaches of the Representations and Warranties, including, but not limited to, the Repurchase Obligations, are especially important because many of the mortgage loans sold to, and deposited in, the Trusts are subprime and were made to borrowers who represent higher credit risks than traditional borrowers. Thus, seemingly small differences in a borrower’s qualifications, the terms of the mortgage loan, the quality and value of mortgage loan collateral, or the integrity of the mortgage loan-origination process could materially and adversely affect the value of the mortgage loans in the Trusts or the interests of the Trusts therein.
57. Attached hereto as Exhibit 7 is a chart indicating the contractual provisions in the Governing Documents for each Primary Trust setting forth WaMu’s Repurchase Obligations
with respect to each Primary Trust.
(5) The Trustee’s Access and Indemnification Rights
58. Under the Governing Documents for each Primary Trust, WaMu, as Servicer, is obligated to provide the Trustee and other parties with access to all records maintained by WaMu in respect of WaMu’s rights and obligations under the Governing Documents, including
information about the mortgage loans and the mortgage loan files,and access to officers of WaMu responsible for such obligations (the “Access Rights”).
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The FDIC’s and JPMC’s Contentions Regarding Successor Liability
86. Upon the FDIC’s appointment as receiver for WMB, on September 25, 2008, the FDIC as receiver for WMB, the FDIC in its corporate capacity, and JPMC entered into the PAA. The PAA is incorporated by reference and attached hereto as Exhibit 2. Section 2.1 of the PAA :
“Subject to Sections 2.5 and 4.8, the Assuming Bank expressly assumes at Book Value(subject to adjustment pursuant to Article VII) and agrees to pay, perform, and discharge,
all of the liabilities of the Failed Bank which are reflected on the Books and Records of the Failed Ban as of Ban Closing, including the Assumed Deposits and all liabilities associated with any and all employee benefit plans, except as listed on the attached Schedule 2.1, and as otherwise provided in this Agreement (such liabilities referred to as “Liabilities Assumed”). Notwithstanding Section 4.8, the Assuming Bank specifically
assumes all mortgage servicing rights and obligations of the Failed Bank.”
87. Section 3.1 of the PAA provides that JPMC purchased “all mortgage servicing rights and obligations” of WaMu; and Schedule 2.1 of the PAA sets forth “Certain Liabilities Not Assumed” by JPMC. The list of liabilities not assumed by JMPC pursuant to the PAA does not include or reference any liabilities or obligations arising under the Governing Documents, including, without limitation, WaMu’s obligations as Seller, Depositor, and/or Servicer.
88. The FDIC contends that it transferred to JPMC all of the obligations and liabilities relating to the Trusts at issue in this action. In its motion to dismiss (pp. 18-19), the FDIC states: “Under the unambiguous terms of the [PAA], as well as FIRREA, all risk of liability to DBNTC or the Trusts is borne by JPMC, not FDIC Receiver.”
89. More specifically, the FDIC contends in its motion to dismiss (p. 19) that: “As the structure of the [PAA] makes clear, WaMu’s Trust-related seller and servicer obligations are among the liabilities that FDIC Receiver transferred to JPMC and that JPMC expressly agreed to assume. See [PAA] § 2.1.”
90. JPMC contends that “JPMC acquired only liabilities ‘reflected on the Books and Records of the Failed Bank as of Bank Closing’ and only if and to the extent they had a ‘Book Value.’” Letter from Stacey R. Friedman to Robin A. Henry dated August 25, 2010, at p. 1.
91. JPMC further contends that “[a]ll other liabilities of Washington Mutual Bank,including the DBNTC liabilities, remain with the Federal Deposit Insurance Corporation as receiver for the failed bank.” Id. (emphasis a
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100. The Trustee has performed all of its obligations under the Governing Documents for the Trusts by performing services both before and after the appointment of the FDIC as receiver for WMB, and has not breached any such obligations or excused the performance by WaMu of any of its obligations under the Governing Documents.
101. As a direct and proximate cause of these breaches of contract, the Trusts have suffered and continue to suffer significant damages.
Count II Declaratory Judgment
102. The Trustee incorporates by reference all prior paragraphs as if they were fully set forth herein.
103. The FDIC contends that under the PAA, as well as FIRREA, JPMC assumed from the FDIC, as receiver, all of WaMu’s liabilities and obligations “as seller, servicer, sponsor or in any other capacity under the Governing [Documents].”
104. JPMC contends that under the PAA it did not assume WaMu’s liabilities or obligations to the Trusts and the Trustee under the Governing Documents.
105. A justiciable controversy exists as to the rights and obligations of the FDIC and JPMC regarding whether, and to what extent, the FDIC and/or JPMC has successor liability for WaMu’s breaches of the Governing Documents, as well as for WaMu’s ongoing obligations to the Trusts and the Trustee under the Governing Documents, including, but not limited to, the Repurchase Obligations, the Notice Obligations, the Access Rights and the Indemnification Rights.
obligations to the Trusts and the Trustee under the Governing Documents, including, but not
limited to, the Repurchase Obligations, the Notice Obligations, the Access Rights and the
Indemnification Rights, and (ii) the extent to which each of the FDIC or JMPC have assumed
those liabilities and ongoing obligations.
WHEREFORE, the Trusts and the Trustee request the following relief from this Court:
A. A judgment in their favor against JPMC, in an amount to be determined, plus
pre-and post-judgment interest, costs of suit, and attorneys’ fees; and/or
B. in the alternative, against the FDIC, in an amount to be determined, plus pre-and
post-judgment interest, costs of suit, and attorney’s fees;
C. a declaratory judgment declaring: (i) which, or in the alternative, that both of,
WaMu’s two potential successors-in-interest – the FDIC or JPMC – succeed(s) to
WaMu’s liabilities for breaches of Governing Documents and WaMu’s ongoing
obligations to the Trusts and the Trustee under the Governing Documents,
including, but not limited to, the Repurchase Obligations, the Notice Obligations,
the Access Rights and the Indemnification Rights, and (ii) the extent to which
each of the FDIC or JMPC have assumed those liabilities and ongoing
obligations;
D. costs, expenses and attorneys’ fees incurred by the Trustee in connection with this
action.
JURY TRIAL DEMAND
The Trustee hereby demands a jury trial to the fullest extent allowed by law.
Dated: September 8, 2010 Armonk, NY
