Court of Appeals Weighs If Contracts Can Extend Limitations Period for Breach
The case was brought by Deutsche Bank against Quicken Loans over a set of allegedly fraudulent residential mortgage-backed securities sold immediately preceding the financial crisis between December 2006 and May 2007.
September 07, 2018 at 12:42 PM
6 minute read
The New York Court of Appeals is likely to decide next month whether companies may include a contract provision that extends or delays the start of the statute of limitations for a breach of that contract.
The court heard arguments this week in the case, which was brought by Deutsche Bank against Quicken Loans over a set of allegedly fraudulent residential mortgage-backed securities sold immediately preceding the financial crisis between December 2006 and May 2007.
In its agreements to sell the loans, Quicken made certain representations and warranties about the quality and risk level of the securities and included a provision to either cure a breach of those warranties, buy back the loans, or replace them with another loan if a breach is found.
But the contract included another provision that Quicken argued this week should not be enforced. The provision delayed the accrual of a breach-of-contract claim on those loans until three conditions were met. There had to be a discovery of the breach, a failure by Quicken to rectify the breach, and a demand by the loan buyer for Quicken to comply with the contract.
That provision also, in theory, was supposed to delay the statute of limitations on a breach-of-contract claim until all of those conditions were met, rather than when the loans were sold. The statute of limitations for such claims is limited to six years.
So, for example, the contract would suggest that the statute of limitations would not start until 2010 if the three conditions were met that year rather than when they were sold in 2006.
The Federal Home Loan Mortgage Corp., or Freddie Mac, was one of the loans' buyers between December 2006 and May 2007. In 2013, a review found that many of the loans Freddie Mac invested in breached the agreement with Quicken.
Deutsche Bank is the trustee for Freddie Mac's loan trust. When Deutsche Bank found out about the alleged breaches, it started a breach-of-contract action against Quicken in August 2013, more than six years after the sale of the loans, which happened sometime before June 2007.
Both Manhattan Supreme Court Justice Marcy Friedman and the Appellate Division, First Department granted a motion to dismiss from Quicken, saying the part of the contract that attempted to delay or extend the beginning of the statute of limitations was unenforceable. Both courts decided that the statute of limitations could only begin when the loans were sold, not when the three conditions were met in the agreement.
Howard Sidman, a partner at Jones Day in Manhattan, represents Quicken. He argued that, in this case, the statute of limitations could not be delayed because if any breach of warranty had occurred, it would have happened when the loans were sold, not when a demand to cure the breach happened.
Judge Jenny Rivera asked Sidman in an exchange why the parties involved would not be able to set a different condition for when a breach occurs, and therefore start the statute of limitations later.
“Why aren't they correct that what the parties agreed to was the way they craft what is truly a breach?” Rivera said. “[That] the breach is the promise to do something when that happens?”
“That could have been what they contracted to, but that's not what they contracted to here,” Sidman said. “The provision itself refers to a breach of a representation in warranty and the notice of demand requirement that follows from that breach all presuppose that breach in the first place.”
In other words, when Deutsche Bank demanded that the breach be cured, it was admitting that the breach happened at the point of sale, which was past the statute of limitations, Sidman argued.
Zachary Rosenbaum, a partner at Lowenstein Sandler, represented Deutsche Bank. He was asked by Judge Eugene Fahey why they should allow the accrual provision of the contract when it could set a precedent for future contracts to delay the start of a statute of limitations.
“If you have the authority to do this, how are we not left with a situation where parties can always contract to extend the statute of limitations and in essence we've created a contractual discovery rule?” Fahey said.
“I would submit that in every contract it is a bundle of rights and obligations,” Rosenbaum said. “So, virtually in every contract, the parties are setting forth when the obligations come due.”
Rosenbaum argued that there is not an overriding policy reason or statute that would prohibit parties to enter into a contract with an accrual provision, such as seen between Quicken and its investors. He said the contract made clear that the cause of action in this case did not occur until the conditions of the contract were met.
“The breach of the contract occurs when the conditions, the elements of the accrual clause, are complete,” Rosenbaum said. “It is not seeking or requiring a remedy for a pre-existing wrong because by design these parties agreed that the contractual wrong occurs when the demand is made for compliance by the purchaser, in this case, the trustee.”
The Court of Appeals is expected to issue a decision in the case in October.
READ MORE:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All'No Evidence'?: Big Law Firms Defend Academic Publishers in EDNY Antitrust Case
3 minute readDapper Labs $4M Settlement, $1.3M in Attorney Fees Reveal NFT Settlement Trend
4 minute readSyracuse Courtroom Dedicated to Trailblazing City Court Judge Langston McKinney
Trending Stories
- 1Infant Formula Judge Sanctions Kirkland's Jim Hurst: 'Overtly Crossed the Lines'
- 2Abbott, Mead Johnson Win Defense Verdict Over Preemie Infant Formula
- 3Guarantees Are Back, Whether Law Firms Want to Talk About Them or Not
- 4Trump Files $10B Suit Against CBS in Amarillo Federal Court
- 5Preparing Your Law Firm for 2025: Smart Ways to Embrace AI & Other Technologies
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250