SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
—————————————~—————————-)(
U.S. BANK NATIONAL ASSOCIATION, as Trustee,
for HarborView Mortgage Loan Trust, Series 2005-10,
Plaintiff,
-against-
COUNTRYWIDE HOME LOANS, INC. (d/b/a BANK
OF AMERICA HOME LOANS), BANK OF AMERICA
CORPORATION, COUNTRYWIDE FINANCIAL
CORPORA TION, BANK OF AMERICA N.A., AND
NB HOLDINGS CORPORATION,
Defendants
Judge: Eileen Bransten
I. Background
This matter comes before the Court on the pre-answer motion to dismiss filed by
Defendants Countrywide Home Loans, Inc. (“CHL”), Countrywide Financial
Corporation, Bank of America Corporation, Bank of America N.A., and NB Holdings
Corporation (collectively “Defendants”) pursuant to CPLR 3211(a)(7).1 Plaintiff U.S.
Bank National Association, as Trustee for HarborView Mortgage Loan Trust, Series
2005-10 (“U.S. Bank” or “Trustee”) opposes. For the reasons that follow, Defendants’
motion is granted in part and denied in part.
This case arises from the pooling of 4,484 mortgage loans (“Loans”) into the
HarborView Mortgage Loan Trust 2005-10 (“Trust”).
The Trust was comprised of Loans originated by Defendant CHL. After
origination, CHL sold the Loans to non-party Greenwich Capital Financial Products, Inc.
(“GFCP”), the transaction Sponsor, pursuant to the Master Mortgage Loan Purchase and
Servicing Agreement (the “Servicing Agreement”). GFCP then sold the Loans to the
Depositor, non-party Greenwich Capital Acceptance, Inc., through the Mortgage Loan
Purchase Agreement (“MLPA”). Finally, pursuant to the Pooling Agreement, the
Depositor conveyed the Loans to the Trust, which issued approximately $1.75 billion in
certi fi cate s.
In addition to conveying the Loans the Trust, the Pooling Agreement granted the
Trustee, inter alia, the right to exercise all of GFCP’ s rights under the Servicing
Agreement against Countrywide. See Compl.3 Ex. C (“Pooling Agreement”), § 2.01(a).
Through this action, the Trustee seeks to assert these rights, claiming breach pf the
Servicing Agreement and the Pooling Agreement. Specifically, the Trustee asserts that
the Loans in the Trust breach the representations and warranties made by Countrywide4 in
Sections 7.01 and 7.02 of the Servicing Agreement.
[…]
C. Count Two – Breach of Contract Seeking Repurchase of Individual Loans
Defendants next seek dismissal of Count Two, deeming the Amended Complaint
conc1usory because it does not list and describe the breaches found in each of the 495
loans for which the Trustee seeks repurchase. While Defendants may have preferred a
more robust pleading, Count Two of the Amended Complaint as it stands is sufficient to
state a breach of contract claim.
CPLR 3016(b)’s particularity requirements do not apply to breach of contract
claims. See Shilkoff, Inc. v. 885 Third Avenue Corp., 299 A.D.2d 253, 254 (1st Dep’t
2002) (“Defendants’ contention that the breach of contract cause of action is
insufficiently pled would hold plaintiff to particularity in a contract pleading that is not
required … “); East Hampton Union Free Sch. Dist. v. Sandpebble Builders, Inc., 66
A.DJd 122, 125 (2d Dep’t 2009) (concluding that complaint asserting breach of contract
“is not required to meet any heightened level of particularity in its allegations.”).
Plaintiff pleads that Defendants breached Sections 7.01, 7.02, and 7.03 of the Servicing
Agreement and that as a result, it suffered damages. Under CPLR 3103, these allegations
are “sufficiently particular to give the court and parties notice of the transactions,
occurrences, or series of transactions or occurrences, intended to be proved and the
material elements of the breach of contract cause of action.” Mee Direct, LLC v.
Automatic Data Processing, Inc., 102 A.DJd 569,569 (1st Dep’t 2013) (citing CPLR
3013). Accordingly, the Court concludes that Plaintiff was not required to list and
provide particularized details as to the specific loans allegedly in breach. Since
Defendants present no additional arguments for dismissal of Count Two, Defendants’
motion to dismiss is denied.
[…]
