Case 1:13-cv AKH Document 30 Filed 06/18/13 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

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1 Case 1:13-cv AKH Document 30 Filed 06/18/13 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FEDERAL HOUSING FINANCE AGENCY, AS CONSERVATOR FOR THE FEDERAL HOME LOAN MORTGAGE CORPORATION, on behalf of the Trustee of the Securitized Asset Backed Receivables LLC Trust 2006-WM4 (SABR WM4), Plaintiff, Case No. 1:13-cv-0584 v. WMC MORTGAGE, LLC f/k/a WMC MORTGAGE CORP. Defendant. STATEMENT REGARDING JURISDICTION On June 11, 2013, this Court heard oral argument on the Motion to Intervene (the Motion ) filed by Deutsche Bank National Trust Company, solely in its capacity as Trustee of the SABR 2006-WM4 trust ( DBNTC or the Trustee ). This is in response to the Court s request for a statement from the Trustee concerning jurisdiction over this matter. This Court has proper jurisdiction over this action. The Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1332(a)(2) because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000 (exclusive of interest and costs). The Court also has personal jurisdiction over defendant WMC Mortgage LLC, f/k/a WMC Mortgage Corporation ( WMC ) because WMC is registered to do business in New York and has substantial contacts with New York. Accordingly, the Trustee respectfully submits that this Court may properly exercise jurisdiction over this matter.

2 Case 1:13-cv AKH Document 30 Filed 06/18/13 Page 2 of 9 I. Subject Matter Jurisdiction This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1332(a)(2) because there is complete diversity of citizenship between the parties and the amount in controversy, exclusive of interest and costs, exceeds $75,000. See 28 U.S.C. 1332(a). A. The Parties Are Citizens Of Different States. For diversity jurisdiction to exist, the action must be between citizens of different States. 28 U.S.C. 1332(a)(1); E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 930 (2d Cir. 1998) ( It is axiomatic that, for diversity jurisdiction to be available, all of the adverse parties in a suit must be completely diverse with regard to citizenship ). 1. Citizenship of the Plaintiff Upon the filing of the Trustee s complaint (the Complaint ), the plaintiff in this action will be the Trustee. DBNTC is a national banking association organized under the laws of the United States to carry on the business of a limited purpose trust company. Compl For diversity purposes, the citizenship of a national banking association is determined solely by the location of its main office. Manufacturers and Traders Trust Co. v. HSBC Bank USA, N.A., 564 F. Supp. 2d 261, 265 (S.D.N.Y. 2008); see also Excelsior Funds, Inc. v. JP Morgan Chase Bank, N.A., 470 F. Supp. 2d 312, 313 (S.D.N.Y. 2006). DBNTC s main office is located at 2000 Avenue of the Stars, 9th Floor, North Tower, Los Angeles, California, Its trust administration offices are located at 1761 East St. Andrew Place, Santa Ana, California Id. Therefore, as a national banking association, the Trustee is a citizen of California for purposes of evaluating diversity jurisdiction. See Manufacturers and Traders Trust, 564 F. Supp. at All references to the Complaint are to the Proposed Complaint filed in the above captioned matter on April 26, 2012 as Exhibit C to the Declaration of Daniel Ward (the Ward Declaration ) in Support of the Trustee s Motion to Intervene. -2-

3 Case 1:13-cv AKH Document 30 Filed 06/18/13 Page 3 of 9 In assessing whether the citizenship of the trustee or the beneficiaries controls, the relevant question is whether [the] trustees are real parties to [the] controversy. Navarro Sav. Ass'n v. Lee, 446 U.S. 458, 462 (1980). If the trustee is a real part[y] to the controversy, the trustee s citizenship, rather than the citizenship of the trust beneficiaries, controls the diversity determination. 2 Id. at A trustee is a real party to the controversy for purposes of diversity jurisdiction when he possesses customary powers to hold, manage, and dispose of assets for the benefit of others. Mills 2011 LLC v. Synovus Bank, No. 12 Civ. 6158(AJN), 2013 WL , at *5 (S.D.N.Y. Feb. 5, 2013) (quoting Navarro, 446 U.S. at ). Customary powers include the authority to: (1) take legal title to trust assets; (2) invest those assets for the benefit of the shareholders; and (3) sue and be sued in their capacity as trustees. Id. at Here, DBNTC is a real party to the controversy because under the Pooling and Servicing Agreement ( PSA ), DBNTC possesses powers to hold assets for the benefit of others, and the power to sue and be sued in its capacity as Trustee. First, DBNTC has legal title to the Trust s assets. See Article I, 2.01(a) (conveying to Trustee all the right, title and interest of the Depositor in and to the Trust Fund, which is defined as the corpus of the trust created [under the PSA] consisting of... the Mortgage Loans and all interest and principal with respect thereto.... ); see also id. 2.01(d) (giving Trustee the power to accept the sale, transfer, assignment, set over and conveyance by the Depositor to the Trust of all the right, title and 2 Compare Bank of Am., N.A. v Atl., No. 10 CV 5204 (FB), 2012 WL , at *1, *3 4 (E.D.N.Y. June 29, 2012) (because suit was brought in trustee s name, Navarro controls), with Pavlov v. Bank of N.Y. Co., 135 F. Supp. 2d 426, 432 (S.D.N.Y. 2001) (noting that the trustee has not sued in his own name and thus that allegations not addressing the trust s members or beneficiaries failed to adequately plead jurisdiction). -3-

4 Case 1:13-cv AKH Document 30 Filed 06/18/13 Page 4 of 9 interest of the Depositor in and to the Trust Fund (including the Mortgage Loans... ) pursuant to Section 2.01(a) [of the PSA]. ). 3 Second, DBNTC holds Trust assets for the benefit of the Certificateholders. See Id (Trustee agreed to hold[ ] such other assets as are included in the Trust Fund, in trust for the exclusive use and benefit of all present and future Certificateholders. ); see also id ( No Certificateholder shall have any right to in any manner otherwise control the operation and management of the Trust Fund ). Third, the PSA expressly provides that the Trustee is vested with the authority to bring suit on behalf of the Trust, and the Certificateholders are prohibited from doing so except where certain criteria are met. See Exhibit 1, 2.03(c) ( [t]he Trustee shall enforce the rights of the Trust under the Sponsor Representation Letter. ); id ( No Certificateholder shall have any right to institute any suit, action or proceeding with respect to this Agreement, unless such Holder previously shall have given to the Trustee a written notice of an Event of Default and unless the Holders not less than 25% shall also have made written request to the Trustee to institute such action in its own name as Trustee ). Therefore, because the Trustee is the holder and owner of the Mortgage Loans, as well as of all of the rights relating to the Mortgage Loans on behalf and for the benefit of the Certificateholders, the Trustee is a real party in interest. Consequently, the Trustee s citizenship is determinative for diversity purposes. See Navarro, 446 U.S. at Citizenship of the Defendant WMC, a limited liability corporation, is the defendant in this action. For purposes of diversity jurisdiction, a limited liability company has the citizenship of its membership. Handelsman v. Bedford Village Associates L.P., 213 F.3d 48, (2d Cir. 3 The PSA was attached as Exhibit A to the Ward Declaration. -4-

5 Case 1:13-cv AKH Document 30 Filed 06/18/13 Page 5 of ); Strother v. Harte, 171 F. Supp. 2d 203, 205 (S.D.N.Y. 2001); see also New Millennium Capital Partners, III, LLC v. Juniper Group Inc., No. 10 Civ. 46(PKC), 2010 WL , at *1 (S.D.N.Y. Mar. 26, 2010) ( A complaint premised upon diversity of citizenship must allege the citizenship of the place of incorporation and principal place of business of any corporate entities who are members of the limited liability company. ); Castillo Grand LLC v. Sheraton Operating Corp., No. 09 Civ. 7197(RPP), 2009 WL , at *1 (S.D.N.Y. Dec. 9, 2009) ( For purposes of assessing diversity jurisdiction, an unincorporated entity such as a limited liability company is deemed to be a citizen of all states of which its partners or members are citizens. ) (citation omitted). WMC has only one member, General Electric Capital Corporation ( GE Capital ). A corporation is deemed to be a citizen of both the state of its incorporation and the state where it has its principal place of business for purposes of diversity jurisdiction. Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 59 (2d Cir. 2009). GE Capital is a Delaware corporation with a principal place of business in Connecticut. Compl. 14. Thus, WMC is a citizen of Delaware and Connecticut for diversity purposes. See Castillo Grand, 2009 WL , at *1. Because the Trustee is a citizen of California and WMC is a citizen of Delaware and Connecticut, complete diversity of citizenship exists between the parties. B. The Amount In Controversy Exceeds $75,000. Diversity jurisdiction also requires that the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. 28 U.S.C. 1332(a) (2006); Correspondent Servs. Corp. v. First Equities Corp. of Fla., 442 F.3d 767, 769 (2d Cir. 2006). Because this action concerns WMC s liability to repurchase or pay damages with respect to over 4,000-5-

6 Case 1:13-cv AKH Document 30 Filed 06/18/13 Page 6 of 9 mortgage loans with an average principal balance of $183,689.00, the amount in controversy exceeds $75,000, many times over. See Compl. 15. Therefore, because there is complete diversity of citizenship between the parties and the amount in controversy, exclusive of interest and costs, exceeds $75,000, the Court has subject matter jurisdiction over this action. II. Personal Jurisdiction A federal court sitting in diversity cases may exercise personal jurisdiction to the same extent as courts of general jurisdiction in the state in which it sits. Indelible Media Corp. v. Meat and Potatoes, Inc., No. 12 CV 0978 (GBD), 2012 WL , at *3 (S.D.N.Y. Sept. 07, 2012) (citing Fed. R. Civ. P. 4(k)(1)(A)). To exercise jurisdiction in New York, there must be (1) a statutory basis for the exercise of jurisdiction under New York law and (2) it must comport with the Due Process Clause of the Fourteenth Amendment. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir. 2002). Under 301 of the New York Civil Practice Law and Rules, a court may exercise personal jurisdiction over a non-domiciliary corporation if the corporation is found to have been doing business in the State of New York at the time that the complaint was filed. Speed v. Pelican Resort N.V., No. 91 Civ (SWK), No WL , at *1 (S.D.N.Y. June 16, 1992) (applying New York law); see also Sino Clean Energy Inc. v. Little, No /2011, 2012 WL , at *4 (N.Y. Sup. Ct. May 21, 2012). [I]f a foreign corporation is authorized to do business in [New York], a court is justified in inferring that it is doing business so that it is subject to jurisdiction of the courts. Speed, 1992 WL , at *1 (internal citation and quotations omitted). [I]t is well settled that a foreign corporation that registers under the New York Business Corporation Law has consented to personal jurisdiction in the State of New York. People ex -6-

7 Case 1:13-cv AKH Document 30 Filed 06/18/13 Page 7 of 9 rel. Spitzer v. H & R Block, Inc., No /2006, 2007 WL , at *4 (N.Y. Sup. Ct. July 9, 2007); see also Speed, 1992 WL , at *2 ( [defendant] has registered to do business in New York, thereby consenting to this Court's jurisdiction ) (applying New York law); Advance Realty Assoc. v. Krupp, 636 F. Supp. 316, 317 (S.D.N.Y 1986) (Under New York law, [a] foreign corporation is deemed to have consented to general jurisdiction over it when it registers to do business in New York. ). Additionally, due process is satisfied so long as a defendant s conduct with the forum state resulted from purposeful conduct such that he or she could reasonably anticipate being haled into court there. LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 216 (2000) (quoting World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). Here, WMC is a foreign corporation that registered to do business in New York. See WMC Registration Document; Compl. 14. Consequently, it is deemed to be doing business in New York pursuant to N.Y.C.P.L.R. 301, and to have consented to personal jurisdiction in New York. See Speed v. Pelican Resort, 1992 WL , at *1. Furthermore, WMC s purposeful conduct, in signing the PSA that created a New York trust, governed under New York laws, with a New York Depositor, establishes a sufficient basis for the exercise of personal jurisdiction over WMC, consistent with due process. See LaMarca, 95 N.Y.2d at 216. Accordingly, this Court properly exercises personal jurisdiction over WMC. Finally, WMC availed itself of the jurisdiction of this Court by removing the action. -7-

8 Case 1:13-cv AKH Document 30 Filed 06/18/13 Page 8 of 9 VENUE Venue is proper in this district pursuant to 28 U.S.C. 1391(b)(2) because a substantial part of the events or omissions giving rise to the claim occurred, and a substantial part of property that is subject to the action is situated, in this judicial district. 28 U.S.C. 1391(b)(2). The Trust at issue is an express New York trust. See Exhibit 1, 2.01(c) ( The Depositor does hereby establish, pursuant to the further provisions of this Agreement and the laws of the State of New York, an express trust ). Additionally, the PSA s Depositor is located this judicial district. See PSA, 10.05(c). Finally, numerous of the mortgage loans owned by the Trust are secured by real property located in New York, including in this judicial district. Accordingly, venue is proper in the Southern District of New York. -8-

9 Case 1:13-cv AKH Document 30 Filed 06/18/13 Page 9 of 9 CONCLUSION For the foregoing reasons, the Trustee respectfully submits that this Court may properly take jurisdiction over this action upon the filing of the Trustee s intervening Complaint. Dated: June 18, 2013 ROPES & GRAY LLP /s/ Harvey J. Wolkoff Harvey J. Wolkoff Daniel V. Ward Prudential Tower 800 Boylston Street Boston, MA Tel: (617) Fax: (617) harvey.wolkoff@ropesgray.com daniel.ward@ropesgray.com Carly B. Baratt 1211 Avenue of the Americas New York, NY Tel: (212) Fax: (212) carly.baratt@ropesgray.com Attorneys for Deutsche Bank National Trust Company in its capacity as Trustee for the SABR 2006-WM4 Trust -9-