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Residential Funding Co., LLC v. First Mortgage Corp.

United States District Court, D. Minnesota

December 21, 2018

Residential Funding Company, LLC Plaintiff,
First Mortgage Corporation, Defendant.

          Matthew Scheck, Quinn Emanuel Urquhart & Sullivan, LLP, Donald Heeman, Jessica Nelson, and Randy Winter, Felhaber Larson, for Plaintiff.

          Thomas Sullivan, Thomas M. Sullivan, Jr., Michael J. Minenko, Minenko & Hoff, P.A., for Defendant.



         Before the Court are the parties' cross motions for summary judgment. On November 16, 2018, the Court heard oral argument on the parties' motions. For the reasons set forth below, Plaintiff's Motion for Partial Summary Judgment [Doc. No. 110] is granted in part, denied without prejudice in part, and denied in part, and Defendant's Motion for Partial Summary Judgment [Doc. No. 85] is denied as moot in part and denied in part.


         In December 2013, Plaintiff Residential Funding Company, LLC (“RFC”) commenced this lawsuit against First Mortgage Corporation (“First Mortgage), as well as numerous other individual lawsuits against other loan originators, asserting claims of breach of contract and indemnification. In January 2015, this Court consolidated 68 of RFC's then-pending suits for pretrial purposes (hereafter, the “Consolidated Action”). (See Consol. Action (“CA”), Jan. 29, 2015 Am. Admin. Order at 3 [Doc. No. 100].)[1] Defendant First Mortgage participated in the Consolidated Action until June 2018, when it resumed its prior status as a non-consolidated case.[2]

         In recent months in the Consolidated Action, the Court issued rulings on the parties' motions for summary judgment (CA, “Consolidated Summary Judgment Order” [Doc. No. 4307]), motions to exclude experts (CA, “Daubert Order” [Doc. No. 4471]; and motions in limine (CA, “Motions in Limine Order” [Doc. No. 4551]). In addition, in a related, non-consolidated case, Residential Funding Co., LLC v. Universal American Mortgage Co., LLC, 13-cv-3519 (PAM/HB), Judge Magnuson issued a ruling on the parties' cross motions for summary judgment. (UAM Summ. J. Order [Doc. No. 931].)

         Even more recently, the undersigned judge presided over the first trial against one of the remaining defendants in the Consolidated Action, Home Loan Center (hereafter, “the HLC trial”). Plaintiff proceeded to trial on its claim of contractual indemnity. In the course of the seventeen-day HLC trial, the Court ruled on several motions for judgment as a matter of law which are addressed in this Order, as applicable. On November 8, 2018, the jury found for the Plaintiff and awarded damages of $28, 700, 000 against Home Loan Center.[3] (CA, HLC Trial, Redacted Special Verdict Form [Doc. No. 4705].)

         The Court assumes familiarity with the detailed facts and legal issues addressed in its prior rulings and findings. Because most of the facts and issues contained in these other rulings are identical to those raised by the parties here, they are incorporated by reference.

         In brief, RFC alleges that First Mortgage breached its agreements with RFC and must indemnify it for allegedly defective mortgage loans that First Mortgage sold to RFC, and which RFC then aggregated and sold as residential mortgage-backed securities to various securitized trusts (the “RMBS Trusts”). (See First Am. Compl. ¶¶ 78-89 [Doc. No. 24].) In addition, certain securitizations that RFC sponsored or serviced, or securitizations into which it sold loans, carried financial guaranty insurance furnished by monoline insurers (the “Monolines”). (See Id. ¶¶ 39, 66, 72.) Under the insurance policies, the Monolines generally guaranteed that investors would receive timely payments of principal and interest on their notes or certificates.

         Following the 2008 housing market collapse, the RMBS Trusts experienced significant losses. Similarly, due to the high rate of default in the RFC-sponsored and serviced securitizations, the Monolines also made payments to their insureds under their policies and were likely to incur future payments. Several RMBS Trusts and Monolines sued RFC for the breach of its representations and warranties, eventually causing RFC to file for bankruptcy in the U.S. Bankruptcy Court for the Southern District of New York. (Id. ¶ 71.) The RMBS Trusts and Monolines then filed RMBS-related proofs of claim with the Bankruptcy Court in order to obtain damages. (Id. ¶ 72.)

         Bankruptcy Judge Martin Glenn, who oversaw RFC's bankruptcy proceedings, appointed another sitting federal bankruptcy judge, Judge James Peck, as mediator, and additionally authorized Lewis Kruger as the Chief Restructuring Officer to negotiate a settlement of the claims against Plaintiff. (CA, Scheck Decl., Ex. 30 (Mediator Order) [Doc. No. 3303]); id., Ex. 31 (Kruger Direct Testimony ¶¶ 11-12) [Doc. No. 3258-9].) In May 2013, after lengthy discovery, RFC entered into settlement agreements with the RMBS Trustees and Monolines MBIA, FGIC, Ambac, and Syncora, which were incorporated into the parties' proposed Chapter 11 Bankruptcy Plan (“the Plan”). The Plan reflected that the parties had resolved the RMBS Trustees' claims against RFC for $7.091 billion (the “RMBS Settlement”), and the Monolines' claims against RFC as follows: MBIA ($1.45 billion), FGIC ($415 million), Ambac ($22.8 million), and Syncora ($7 million) (collectively, the “Monoline Settlements, ” and collectively with the RMBS Settlement, the “Settlements”). Judge Glenn approved the Plan and found that the Settlements were reasonable. (CA, Scheck Decl. [Doc. No. 3258], Ex. 28 (Bankr. Findings of Fact ¶¶ 51, 178, 201.)

         The Bankruptcy Court's Confirmation Order and the Plan authorized the creation of a “Liquidating Trust, ” i.e., the Rescap Liquidating Trust, into which RFC was to transfer and assign its assets, and preserved the Liquidating Trust's (and Estates') causes of action. (Id., Ex. 32 (Bankr. Confirm. Order ¶ 48); id., App. 1 (Bankr. Plan at 74-75).)

         Exercising that authority, Plaintiff filed the instant suit, originally alleging claims for breach of contract and contractual indemnification. The Court assumes that Plaintiff will pursue only its contractual indemnification claim at trial.

         Specifically, with respect to indemnification, RFC alleges that under the parties' agreements and the Client Guide, First Mortgage expressly agreed to indemnify RFC for all liabilities, losses, and damages, including attorneys' fees and costs incurred by RFC attributable to First Mortgage's breaching loans. (First Am. Compl. ¶ 88.) It contends that it has incurred such liabilities, losses, and damages arising from the alleged material defects in First Mortgage's loans. (Id. ¶ 87.) Specifically, RFC points to over $10 billion in allowed claims approved by the Bankruptcy Court, as well attorneys' fees, litigation-related expenses, and other costs associated with defending numerous lawsuits and proofs of claim against RFC stemming, in part, from the Defendant's allegedly defective loans. (Id.)

         First Mortgage denies the allegations in Plaintiff's Second Amended Complaint and asserts several defenses, including, among others, defenses concerning the statute of limitations, waiver and estoppel, and that RFC's losses were caused by its own actions or omissions. (See generally Ans. to First Am. Compl. [Doc. No. 49].)

         A. Standard of Review

          Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is ‘material'” only if it may affect the outcome of the lawsuit. TCF Nat'l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701, 707 (8th Cir. 2016). Likewise, an issue of material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the burden of establishing a lack of genuine issue of fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and the Court must view the evidence and any reasonable inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In responding to a motion for summary judgment, however, the nonmoving party may not “‘rest on mere allegations or denials,' but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.” Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).

         B. Summary Judgment Motions

         Plaintiff seeks summary judgment on the following issues: (1) the Client Guide applies to all of First Mortgage's At-Issue Loans; (2) the Client Guide confers upon Plaintiff the sole discretion to (a) determine breaches of Defendant's R&Ws, and (b) settle claims; (3) the Settlements were reasonable and made in good faith; (4) the Client Guide should be broadly interpreted to permit recovery for (a) all liabilities, not just losses, or, alternatively, (b) all losses on breaching loans; (5) Plaintiff's Allocated Breaching Loss Approach provides a reasonable, non-speculative basis to allocate the Settlements; (6) to establish liability, Plaintiff need only establish that First Mortgage's breaches were a “but for” cause of Plaintiff's origination-related losses and liabilities; (7) Defendant's affirmative defenses that contradict the Client Guide fail; (8) Defendant's liability for indemnity is not extinguished by (a) RFC's bankruptcy or (b) RFC's alleged wrongdoing; and (9) Plaintiff may use statistical sampling to prove their claims and need not re-underwrite each at-issue loan. (See generally Pl's. Mem. Supp. Mot. for Summ. J. (“Pl's. Mem.”) [Doc. No. 112].)

         In response, First Mortgage does not contest Plaintiff's motion with respect to the applicability of the Client Guide and RFC's discretion to determine instances of breach and to settle disputes. (Def.'s Mem. in Opp'n (“Def.'s Opp'n”) at 1-2 [Doc. No. 131].) Nor does it contest the dismissal of its defense of accord and satisfaction. (Id. at 23.) Accordingly, Plaintiff's motion is granted on these bases.

         In all other respects, First Mortgage opposes Plaintiff's motion. It also argues that during discovery, RFC subjected it to a “data dump, ” making many of its defenses difficult to develop. (Id. at 28-32.) First Mortgage acknowledges, however, that “[w]e have knowingly and intentionally not raised this issue previously.” (Id. at 32.)

         In its affirmative motion for summary judgment, First Mortgage seeks judgment in its favor on several issues, which the Court categorizes as follows[5]: (1) the dismissal of 93 loans on statute of limitations grounds; (2) the dismissal of 35 loans because there was no material breach; (3) RFC was itself the “sole cause” of its losses and liabilities; (4) the dismissal of 35 additional loans on several causation bases[6]; (5) Plaintiff must prove its damages on a loan-by-loan basis, using the best evidence; (6) Plaintiff's damages model is speculative; and (7) Plaintiff is only entitled to indemnity for its losses, not liabilities. (See generally Def.'s Mem. Supp. Mot. for Summ. J. (“Def.'s Mem.”) [Doc. No. 87]; see also Def.'s Ex. L (Oral Argument Slides at DF-MPSJ-EX-L-4) [Doc. No. 142].)

         In response, Plaintiff argues that this Court has rejected the argument that Plaintiff's claims are time-barred, the “material breach” arguments are inapplicable to Plaintiff's claims, Defendant's causation arguments misapply the law, Plaintiff may be indemnified for its losses and liabilities, and Plaintiff may use statistical sampling to determine damages. (Pl.'s Mem. in Opp'n (“Pl.'s Opp'n”) at 4-20 [Doc. No. 130].)

         1. Reasonableness and Good Faith of the Settlements (Plaintiff's Motion)

         As noted, Plaintiff moves for a ruling from this Court that the Settlements were reasonable and made in good faith. (Pl.'s Mem. at 9-10.) First Mortgage opposes Plaintiff's motion, arguing that the Court has previously found reasonableness and good faith to be fact questions for the jury. (Def.'s Opp'n at 2.)

         First Mortgage is correct that in the August 15, 2018 Consolidated Summary Judgment Order, the Court denied Plaintiff's motion on theses issues. (CA, Consol. Summ. J. Order at 80.) The Court cited the need for a full record on such a fact-intensive inquiry. (Id. at 80-81.)

         Subsequently, in the HLC trial, prior to the submission of the case to the jury, Plaintiff moved for judgment as a matter of law on the good faith and reasonableness of the Settlements. (See CA, HLC Trial Tr. at 2972-90 [Doc. No. 4724].) Under Federal Rule of Civil Procedure 50(a), when “a party has been fully heard on an issue, ” and the court “finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, ” the court may “resolve the issue against the party, ” and “grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.” Fed.R.Civ.P. 50(a). After receiving written and oral argument from the parties, the Court found no triable issue as to reasonableness and good faith and granted Plaintiff's motion under Rule 50(a). (CA, HLC Trial Tr. at 2984.)

         As the Court noted, under Minnesota law, the analysis of good faith and reasonableness requires evidence concerning what the parties knew or could have known at the time of the settlement. (Id. at 2974); see Miller v. Shugart, 316 N.W.2d 729, 735 (Minn. 1982). Subsequent knowledge of new facts and law is irrelevant to the question of whether a settlement was reasonable at the time it was made. (CA, HLC Trial Tr. at 2974.) Instead, the fact finder must consider whether a reasonable, prudent person would have entered into the settlement based on an analysis of the defendant's potential exposure at trial, the factual and legal strengths and weaknesses of the claims and defenses, the risks of proceeding to trial, and the burden of litigation. (Id.); Miller, 316 N.W.2d at 735; see also Glass v. IDS Fin. Servs., Inc., 778 F.Supp. 1029, 1084 (D. Minn. 1981). The focus is on whether the settlement falls within a reasonable range of potential recoveries, not whether it is an ideal settlement. (CA, HLC Trial Tr. at 2974); see, e.g., Nelson v. Am. Home Assur. Co., 824 F.Supp.2d 909, 917 (D. Minn. 2011), aff'd, 702 F.3d 1038 (8th Cir. 2012). Particularly relevant to this analysis is the consideration of the law that governed the claims and defenses at the time of the settlement. (CA, HLC Trial Tr. at 2974.)

         In ruling that the Settlements were reasonable and made in good faith, the Court considered the record evidence. Regarding reasonableness, the Court first found that the Settlements were entered into after a lengthy mediation, conducted by a federal bankruptcy judge. (Id. at 2976; see CA, Pl.'s Tr. Exs. 15 (Order Appointing Mediator) & 6 (Hawthorne Rpt. ¶¶ 24, 131-32, 170-86).) Second, the Court noted that an independent Chief Restructuring Officer, Lewis Krueger, participated in the mediation and testified at trial that he sought to achieve consensus and that his decision to enter into the Settlements was informed by his discussions with his advisors and all of RFC's principal creditors. (CA, HLC Trial Tr. at 2976; see CA, Pl.'s Tr. Ex. 19 (Krueger Dep. at 32, 67, 88, 168).) Third, RFC's bankruptcy expert, Frank Sillman, testified to the reasonableness of the Settlements. (CA, HLC Trial Tr. at 2976-77); see CA, Pl.'s Tr. Exs. 29 (Sillman Reply Decl. at 12) & 19 (Krueger Dep. at 168).) Fourth, the RMBS Trustees' expert, Allen Pfeiffer, testified that the Settlements were reasonable. (CA, HLC Trial Tr. at 2977.) Fifth, all of the constituencies to RFC's bankruptcy supported the Settlements, including the Creditors' Committee-a group that had opposed an earlier settlement. (Id. at 2976-77; see CA, Pl.'s Tr. Exs. 17 (Order confirming Second Am. Joint Chapter 11 Plan), 19 (Krueger Dep. at 168) & 6 (Hawthorne Rpt. ¶ 144).) Sixth, the RMBS Trustees supported the Settlements. (CA, HLC Trial Tr. at 2977; CA, Pl.'s Trial Ex. 16 (Krueger Decl. ¶ 3).) Seventh, Plaintiff's expert on the RMBS litigation, Donald Hawthorne, an experienced RMBS litigator, opined that the Settlements were reasonable and made in good faith.[7] (CA, HLC Trial Tr. at 2977; CA, Pl.'s Trial Ex. 6 (Hawthorne Rpt.).) Mr. Hawthorne testified about the complexity of the law at that time concerning certain defenses, the legal burden of causation, and the unique causes of action available to monoline insurers at the time of the settlements by virtue of their contracts and certain applicable insurance law.[8] (CA, HLC Trial Tr. at 2974-75.) Eighth, U.S. Bankruptcy Court Judge Martin Glenn, who presided over the bankruptcy proceedings, approved the Settlements, finding them reasonable. (Id. at 2977.) These facts and findings were uncontroverted-no fact or expert witness testified to the contrary. These same facts are equally applicable here. First Mortgage has identified no evidence that raises a disputed question of material fact on reasonableness. First Mortgage offers no expert opinion to the contrary.

         As to good faith, the Court found in the HLC trial that “[n]o fact witness, no expert at the time of the bankruptcy nor any expert in this case has ever testified that the settlements were entered into in bad faith. There is no indicia of bad faith in the record and the defense cites to none.” (Id.) This is equally true here, as First Mortgage has failed to identify any facts giving rise to a disputed issue of fact concerning good faith.

         In addition, after this Court ruled on summary judgment in the consolidated cases, Judge Paul Magnuson, who presided over a small group of non-consolidated RFC cases, ruled that the Settlements were made in good faith and were reasonable, as a matter of law. Universal Am. Mortg. Co., No. 13-cv-3519 (PAM/HB) (D. Minn. Oct. 12, 2018 [UAM Doc. No. 931 at 12-13]. While Judge Magnuson acknowledged that reasonableness may in some instances be a question of fact, he found that the facts before him allowed a reasonable factfinder to draw only one conclusion-that the Settlements were reasonable and made in good faith. Id. at 13.

         In opposition to Plaintiff's motion, First Mortgage argues here that the Court has already decided that the questions of reasonableness and good faith are disputed factual issues that must go to the jury. (Def.'s Opp'n at 2.) Granted, Defendant made this argument prior to the Court's ruling on judgment as a matter of law in the HLC trial. But First Mortgage reiterates this position in its Revised Proposed Order and Order on Summary Judgment, submitted to the Court via email on November 14, 2018-after the Court's ruling on reasonableness and good faith in the HLC trial. First Mortgage appears to argue that the Settlements were unreasonable because they were made based on incomplete facts. (Id. at 39.) For instance, it asserts that a statistical analysis performed by the financial advisory firm of Duff & Phelps failed to consider causation. (Id.)

         The Court finds First Mortgage's argument unpersuasive. Duff & Phelps was not retained by RFC. Rather, it was hired by certain RMBS Trustees to identify and quantify their claims. Mr. Sillman was Plaintiff's bankruptcy expert. Further, Alan Pfeiffer, of Duff & Phelps, testified that his firm considered causation but did not find it to be particularly important because the underlying claims were “put-back” claims, which did not have the causality requirement that the RMBS defendants were seeking. (See CA, Pl.'s Trial Ex. 22 (Pfeiffer Dep. at 167-68).)

         Beyond mere speculation and inapposite facts, First Mortgage does not identify any non-speculative, admissible evidence to rebut the overwhelming evidence that the Settlements were reasonable and made in good faith. The Court therefore rejects Defendant's argument that the Settlements were based on incomplete facts. The evidence on which the Court based its prior ruling remains unchanged and uncontroverted. Accordingly, the Court grants summary judgment to Plaintiff on the issue of the reasonableness and good faith of the Settlements.

         2. Recovery for All Liabilities or, Alternatively, All Losses on Breaching Loans (Cross Motions)

         Plaintiff moves for a summary judgment ruling that the Client Guide provides broad remedies, including recovery for all liabilities and all losses on breaching loans. (Pl.'s Mem. at 10.) It asks the Court to reconsider its consolidated summary judgment ruling limiting Plaintiff's remedies to its actual out-of-pocket losses and liabilities it incurred, as reflected in the Allowed Claims. (Id. at 12.) Essentially, it seeks to recover all losses that resulted from Defendant's breaching loans. (Id. at 12-13.)

         Conversely, First Mortgage seeks a summary judgment ruling that RFC may only seek indemnity for its actual, out-of-pocket losses, not all losses, nor for its incurred liabilities. (Def.'s Mem. at 33-34.) It argues that RFC is entitled to no more than the bankruptcy-settled out-of-pocket amounts for any individual loan. (Def.'s Opp'n at 24- 25.) It seeks clarification that the Court's ruling in the Consolidated Summary Judgment Order ruling was consistent with its understanding. (Id. at 24.)

         “Actual losses” refer to the amounts that RFC paid out of pocket in the settlements, “liabilities” refer to liabilities that were incurred in the Settlements and allowed by the Bankruptcy Court, and “all losses on breaching loans” refers to all losses that RFC incurred on First Mortgage's breaching loans. For the reasons set forth in the Consolidated Summary Judgment Order, (see CA, Consol. Summ. J. Order at 81-90), the Court finds that, as a matter of law, First Mortgage must indemnify RFC's incurred liabilities, as reflected in the Allowed Claims, not merely its actual, out-of-pocket losses. Section A212 of the Client Guide, including earlier versions and post-December 2005 versions, provides for indemnity for such liabilities. (Horst Decl., Ex. 1 (Client Guide § A212) [Doc. No. 113-1].) Alternatively, § A202(II) of the Client Guide also provides for indemnity for liabilities. (Id., § A212.) This means that RFC may seek indemnification for all claims that were allowed by the Bankruptcy Court. Accordingly, the Court grants Plaintiff's motion for summary judgment in part on this basis, and denies Defendant's motion.

         The Court will not, however, reconsider its prior ruling-as Plaintiff requests- concerning recovery of all losses.[9] As the Court explained in the Consolidated Summary Judgment Order, this approach would result in a windfall to RFC. (CA, Consol. Summ. J. Order at 162-63.) RFC's damages ultimately sound in indemnity and are fixed by the Allowed Claims for the losses and liabilities that RFC incurred in the Settlements. Accordingly, to the extent that Plaintiff seeks summary judgment permitting it to obtain damages for all losses on breaching loans, its motion is denied in part on this basis.

         3. Allocated Breaching Loss Damages Model (Cross Motions)

         Plaintiff moves for summary judgment on the question of whether its Allocated Breaching Loss damages model provides a reasonable, non-speculative basis to allocate the Settlements. (Pl.'s Mem. at 14-15.) Defendant also moves for summary judgment on this basis, seeking a ruling that this damages model is speculative. (Def.'s Mem. at 31- 41.)

         In the Consolidated Action, Plaintiff presented three damages models offered through its expert, Dr. Karl Snow. In its first model for measuring and allocating damages, RFC offered a “Breaching Loss Approach” that attempted to quantify the economic harm to the RMBS Trusts caused by breaching loans sold to RFC by each individual defendant. (CA, Scheck Decl. [Doc. No. 3258], Ex. 38 (Corr. Snow Rpt. ¶¶ 69-78).) In its second model for measuring damages, RFC offered an “Allocated Breaching Loss Approach” that attempted to assess and allocate damages by measuring each defendant's share of the liabilities RFC incurred in the Settlements rather than the economic harm caused by breaching loans. (Id. ¶¶ 79-86.) In the third model for measuring damages, RFC offered an “Allocated Loss Approach” that again measured damages in relation to the liabilities RFC incurred in the Settlements, but this time assessed damages based on each Defendant's share of total losses on all at-issue loans, not just breaching loans. (Id. ¶ 3.)

         Ultimately, the Court found that the Allocated Breaching Loss Approach was an appropriate method for measuring damages, and rejected the Breaching Loss Approach and the Allocated Loss Approach. (CA, Consol. Summ. J. Order at 173-76.) Again, the Allocated Breaching Loss Approach assesses damages by measuring each defendant's share of the liabilities RFC incurred in the Settlements, and does not provide a windfall to RFC.

         First Mortgage does not present any expert opinion or other evidence to challenge the validity of this damages model. However, First Mortgage apparently seeks to challenge Dr. Snow's opinion as speculative, via a Daubert motion. (Def.'s Mem. at 31) (“[T]here are a couple of troubling trial issues we seek to resolve now. Significantly, the Court left the door open for Dr. Snow to testify about a loss approach. Our position is that Dr. Snow's testimony is merely an ...

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