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National Credit Union Administration Board v. Bear, Stearns & Co., Inc.

United States District Court, Tenth Circuit

September 3, 2013



JOHN W. LUNGSTRUM, District Judge.

This matter is presently before the Court on defendants' motion to dismiss (Doc. # 19). The Court concludes that certain of plaintiff's claims are time-barred. Accordingly, the motion is granted in part and denied in part, as set forth more specifically herein.

I. Background

Plaintiff National Credit Union Administration Board brings this suit as conservator and liquidating agent of the following four credit unions: U.S. Central Federal Credit Union ("U.S. Central"), Western Corporate Federal Credit Union ("WesCorp"), Members United Corporate Federal Credit Union ("Members United"), and Southwest Corporate Federal Credit Union ("Southwest"). The suit relates to 83 different residential mortgage-backed securities ("RMBS" or "certificates"), each purchased by one of the credit unions between October 2005 and June 2007. By the present suit, filed on December 14, 2012, plaintiff brings claims under the federal Securities Act of 1933 and under California, Kansas, Texas, and Illinois statutes, based on alleged untrue statements or omissions of material facts relating to each RMBS. Defendant Bear, Stearns & Co. was the underwriter or seller for the certificates, while the other two defendants issued the certificates.[1] Defendants have moved to dismiss all claims.

Plaintiff has brought eight other similar suits, involving different certificates, in this district, which cases have been re-assigned to the undersigned judge. In one of those actions, Case No. 12-2648, by Memorandum and Order dated April 8, 2013, the Court granted in part and denied in part the motion to dismiss filed by the Credit Suisse defendants ("Credit Suisse"). See National Credit Union Admin. Bd. v. Credit Suisse Sec. (USA) LLC, ___ F.Supp.2d ___, 2013 WL 1411769 (D. Kan. Apr. 8, 2013) (" Credit Suisse "). In that opinion, the Court held as follows: (1) Credit Suisse did not show that the Court lacked venue over plaintiff's claims asserted on behalf of credit unions WesCorp and Southwest; (2) plaintiff's claims were not untimely as a matter of law with respect to the applicable one- and two-year discovery limitations periods; (3) the so-called Extender Statute, 12 U.S.C. § 1787(b)(14), which provides the limitations period for claims brought by plaintiff as conservator or liquidator, applies to federal and statutory claims; (4) the Extender Statute displaces both limitations periods in the otherwise-applicable federal (Section 13, 15 U.S.C. § 77m) and state statutes; (5) plaintiff's three-year limitations period under the Extender Statute was triggered by plaintiff's appointment as conservator for a credit union, not by its later appointment as liquidator; (6) the Extender Statute's three-year limitations period may not be extended by a tolling agreement; (7) plaintiff's assertion of American Pipe tolling with respect to its federal claims based on some certificates did not fail as a matter of law at this stage; and (8) plaintiff's substantive allegations were sufficient to state plausible and cognizable claims against Credit Suisse. In some of its rulings, the Court followed the reasoning of Judge Rogers in ruling on a motion to dismiss in RBS, another of these nine similar cases (before the case was reassigned). See id. (citing National Credit Union Admin. Bd. v. RBS Sec., Inc., 900 F.Supp.2d 1222 (D. Kan. 2012) (" RBS ")). Last week, in an interlocutory appeal in RBS, the Tenth Circuit affirmed Judge Rogers with respect to two of the issues listed above, holding that the Extender Statute does apply to federal and statutory claims and does displace Section 13's three-year limitations period. See National Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., ___ F.3d ___, 2013 WL 4516997 (10th Cir. Aug. 27, 2013).

After issuing its opinion in Credit Suisse, the Court invited the parties in seven of the other similar cases (one case had not yet been filed) to submit briefs addressing (a) the application of the Court's rulings in Credit Suisse to the motions to dismiss filed by the defendants in those cases and (b) the specific issue of the enforceability of plaintiff's tolling agreements.

II. Analysis

A. Initial Application of Credit Suisse

As an initial matter, the Court notes that defendants, in their supplemental briefing in support of their motion to dismiss, have not renewed their arguments relating to the sufficiency of plaintiff's substantive allegations, the application of the discovery limitations periods, the displacement of Section 13's limitations periods by the Extender Statute, and the application of the Extender Statute to statutory claims. Thus, defendants have not distinguished the Court's Credit Suisse rulings concerning those issues, and the Court resolves the issues in plaintiff's favor in this case as well, for the reasons stated in Credit Suisse and as held by the Tenth Circuit in the appeal in RBS.

Nevertheless, defendants seek dismissal of some of plaintiff's claims on behalf of U.S. Central and WesCorp as time-barred pursuant to the three-year limitations period imposed by the Extender Statute. Absent some form of tolling, plaintiff was required to file those claims by March 20, 2012, three years after its appointment as conservator for those credit unions. Plaintiff did not initiate this action, however, until December 14, 2012. Nor may plaintiff rely on the Extender Statute's alternative reference to the applicable state-law limitations periods, as this case was filed more than five years (the applicable repose period for all four states) after the purchases of these certificates.

Plaintiff has asserted tolling pursuant to an agreement executed by the parties, but the Court has, by an opinion issued in the Credit Suisse case on July 10, 2013, reaffirmed its ruling that plaintiff may not rely on such an agreement to avoid application of the Extender Statute's limitations period, and that ruling will also be applied in the present case. Thus, with respect to certificates for which plaintiff has not asserted some other form of tolling, plaintiff's federal and state claims on behalf of U.S. Central and WesCorp would be time-barred and subject to dismissal. Based on plaintiff's complaint and the parties' supplemental submissions, such claims include those based on the following certificates:

Purchaser Issuing Entity CUSIP U.S. Central AHM 2007-2 02660CAC4 U.S. Central AHM 2007-2 02660CAD2 U.S. Central AHM 2007-2 02660CAE0 U.S. Central BSABS 2006-HE4 07388AAB0 U.S. Central BSABS 2006-HE4 07388AAC8 U.S. Central BSABS 2007-SD3 07387LAA9 U.S. Central BSSLT 2007-1 07401WAA7 U.S. Central BSSLT 2007-1 07401WAP4 U.S. Central BSSLT 2007-1 07401WBA6 U.S. Central GMACM 2006-HE4 38012UAC3 U.S. Central IMSA 2007-2 452570AD6 U.S. Central IMSA 2007-3 45257VAD8 U.S. Central INDS 2006-3 43709RAA2 U.S. Central INDS 2007-1 43708DAA4 U.S. Central NAA 2007-1 65538NAE3 U.S. Central NHELI 2007-1 65537KAY6 U.S. Central SACO 2006-4 785778RD5

WesCorp AHMA 2007-3 026935AD8 WesCorp BALTA 2006-2 07386HF89 WesCorp BALTA 2006-2 07386HF48 WesCorp BSMF 2007-AR4 07401YAQ8 WesCorp BSMF 2007-AR5 07400NAC4 WesCorp BSMF 2007-AR5 07400NAE0 WesCorp BSMF 2007-AR5 07400NAT7 WesCorp BSMF 2007-AR5 07400NAU4 WesCorp IMSA 2006-4 45257BAE0 WesCorp IMSA 2006-4 45257BAA8 WesCorp IMSA 2006-5 45257EAD6 WesCorp IMSA 2007-1 452559AD9 WesCorp IMSA 2007-2 452570AD6 WesCorp LUM 2006-7 55028BAB3 WesCorp NHELI 2007-1 65537KAB6 WesCorp NHELI 2007-1 65537KAC4 ...

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