Judge Denies Dexia’s Bid to Dismiss MBS Claims as Time-Barred

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On June 6, Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York denied Dexia Real Estate Capital Markets’ (Dexia) motion to dismiss breach of contract claims brought by U.S. Bank National Association (U.S. Bank), in its capacity as trustee for a CMBS trust. U.S. Bank alleges that Dexia breached a representation concerning the enforceability of all agreements related to a particular loan and then refused to repurchase the loan when notified of the breach. Moving to dismiss, Dexia argued that U.S. Bank’s claim was untimely because it was filed more than 6 years after the governing agreements were entered into and the representation at issue was made. Rejecting Dexia’s argument, Judge Scheindlin concluded that under the terms of the governing agreements, U.S. Bank was only entitled to make a repurchase demand upon Dexia once a breach had “materially and adversely” affected a loan. She further found that U.S. Bank’s complaint pled facts sufficient to suggest, in connection with the particular representation breach alleged by U.S. Bank, that there was no material and adverse effect until a 2011 Minnesota state court decision holding that a guaranty securing the loan was unenforceable. Order.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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