2761-2762. IN RE PART 60 PUT-BACK LITIGATION FEDERAL HOUSING FINANCE AGENCY, ETC., Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, IN ITS CAPACITY AS TRUSTEE FOR THE MSAC 2007-NC1 TRUST, plf-ap, v. MORGAN STANLEY ABS CAPITAL I INC., def-res — IN RE: PART 60 PUT-BACK LITIGATION FEDERAL HOUSING FINANCE AGENCY, ETC., Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, IN ITS CAPACITY AS TRUSTEE FOR THE MSAC 2007-NC3 TRUST, plf-ap, v. MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC, AS SUCCESSOR-BY-MERGER TO MORGAN STANLEY MORTGAGE CAPITAL INC., def-res — MoloLamken LLP, New York (Robert K. Kry of counsel), for ap — Davis Polk & Wardwell LLP, New York (Brian S. Weinstein of counsel), for res — Orders, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 20, 2016, which, insofar as appealed from, granted defendant’s motions to dismiss, unanimously affirmed, with costs. The NC3 Trust
The tolling agreement between nonparty National Credit Union Administration (NCUA) — a certificateholder in the NC3 Trust — and various Morgan Stanley entities — the sponsor of the securitization — states, “the Potential Claims do not include causes of action and claims by any person or entity that is not a party to this tolling agreement as set forth in the first paragraph,” i.e., any person or entity other than NCUA and Morgan Stanley. Hence, plaintiff is not an intended third-party beneficiary (see e.g. Fort Lincoln Civic Assn., Inc. v. Fort Lincoln New Town Corp., 944 A2d 1055, 1069 [DC App 2008]). (The NCUA tolling agreement is governed by District of Columbia law.) Plaintiff contends that we should infer that NCUA and Morgan Stanley intended to benefit plaintiff because it was the only one who could pursue a claim. That is incorrect. First, while certificateholders’ rights to sue “upon or under or with respect to” the Pooling and Servicing Agreement (PSA) are limited (emphasis added), that is not the same as saying that only plaintiff (the trustee under the PSA) can pursue a claim. Second, the tolling agreement was not limited to claims under the PSA. To the extent NCUA had noncontract claims, they would not have been barred by the no-action clause in the PSA (see Quadrant Structured Prods. Co., Ltd. v. Vertin, 23 NY3d 549, 552 [2014]). Third, as a matter of fact, NCUA brought its own lawsuit.
