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Case: 13-664 Document: 15-1 Page: 1 03/04/2013 864093 7 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Docket Number(s): Caption [use short title] Motion for: Set forth below precise, complete statement of relief sought: MOVING PARTY: Plaintiff Appellant/Petitioner Defendant Appellee/Respondent OPPOSING PARTY: MOVING ATTORNEY: OPPOSING ATTORNEY: [name of attorney, with firm, address, phone number and e-mail] Court-Judge/Agency appealed from: Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? Yes No Yes No (explain): Has this relief been previously sought in this Court? Yes No Requested return date and explanation of emergency: Opposing counsel s position on motion: Unopposed Opposed Don t Know Does opposing counsel intend to file a response: Yes No Don t Know Is oral argument on motion requested? Yes No (requests for oral argument will not necessarily be granted) Has argument date of appeal been set? Yes No If yes, enter date: Signature of Moving Attorney: Date: Service by: CM/ECF Other [Attach proof of service] ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED. FOR THE COURT: CATHERINE O HAGAN WOLFE, Clerk of Court Date: By: Form T-1080 (rev. 7-12) 1 of 24

Case: 13-664 Document: 15-1 Page: 2 03/04/2013 864093 7 13-664 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT RETIREMENT BOARD OF THE POLICEMEN S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, WESTMORELAND COUNTY EMPLOYEE RETIREMENT SYSTEM, CITY OF GRAND RAPIDS GENERAL RETIREMENT SYSTEM, AND CITY OF GRAND RAPIDS POLICE AND FIRE RETIREMENT SYSTEM (on Behalf of Themselves and Similarly Situated Certificate Holders), v. Plaintiffs-Respondents, THE BANK OF NEW YORK MELLON (as Trustee Under Various Pooling and Servicing Agreements), Defendant-Petitioner. On Petition for Interlocutory Appeal from an Order of the United States District Court for the Southern District of New York, William H. Pauley II, District Judge, Case No. 1:11-cv-5459 MOTION FOR LEAVE TO FILE BRIEF OF THE AMERICAN BANKERS ASSOCIATION AND THE NEW YORK BANKERS ASSOCIATION AS AMICI CURIAE IN SUPPORT OF THE BANK OF NEW YORK MELLON S PETITION FOR PERMISSION TO FILE INTERLOCUTORY APPEAL Eric A. Schaffer Colin E. Wrabley Paige H. Forster REED SMITH LLP 225 Fifth Avenue, Suite 1200 Pittsburgh, PA 15222 Telephone: (412) 288-3131 Facsimile: (412) 288-3063 Counsel for Amici Curiae the American Bankers Association and the New York Bankers Association 2 of 24

Case: 13-664 Document: 15-1 Page: 3 03/04/2013 864093 7 CORPORATE DISCLOSURE STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 26.1 As required by Fed. R. App. P. 26.1, amici curiae disclose that they have no parent corporation. No publicly-held company owns ten percent or more of either amicus curiae. 3 of 24

Case: 13-664 Document: 15-1 Page: 4 03/04/2013 864093 7 Pursuant to Fed. R. App. P. 27, the American Bankers Association ( ABA ) and the New York Bankers Association ( NYBA ) move this Court for permission to file the attached proposed brief as amici curiae in support of the petition for permission to appeal filed by Petitioner The Bank of New York Mellon ( BNY Mellon ) under 28 U.S.C. 1292(b). In support of their motion, amici state as follows: 1. The ABA is the principal national trade association of the financial services industry in the United States. Founded in 1875, the ABA is the voice for the nation s $13 trillion banking industry and its two million employees. ABA members are located in each of the fifty States and the District of Columbia, and include financial institutions of all sizes and types. The ABA, members of which hold a substantial majority of domestic assets of the banking industry and are leaders in all forms of consumer financial services, often appears as amicus curiae in litigation that affects the banking industry. The members of the ABA s Corporate Trust Committee, which focuses on the role of banks in providing corporate trust services, provide more than 95 percent of corporate trust services in the United States. 2. The NYBA, founded in 1894, is composed of commercial banks and thrift institutions that engage in the banking business in New York State. Its - 1-4 of 24

Case: 13-664 Document: 15-1 Page: 5 03/04/2013 864093 7 members have aggregate assets in excess of $10 trillion and more than 200,000 New York employees. 3. The decision of the district court in this case will have substantial implications for ABA and NYBA members, some of which regularly act as corporate trustees. 4. In the attached proposed amicus brief, the ABA and the NYBA provide the Court with their views as to the serious implications of the district court s April 3, 2012 order concluding that residential mortgage-backed securities ( RMBS ) are subject to the Trust Indenture Act ( TIA ). The ABA and the NYBA express their concern over the potential effects of regulating RMBS, which are security instruments, under the TIA s complex and exacting regulatory regime, which is designed for the oversight of another type of instrument entirely namely, debt instruments. 5. Attempting to fit the square peg of RMBS into the round hole of the TIA and its associated regulations could create confusion and costly disruption for market participants, including trustee banks and investors. The upheaval also could extend to residential mortgage borrowers. Thus, there is a critical need for this Court to grant an immediate appeal and issue a ruling that will clarify the legal requirements applicable to current and future residential mortgage-backed securities transactions. - 2-5 of 24

Case: 13-664 Document: 15-1 Page: 6 03/04/2013 864093 7 6. All parties to this action have been informed of amici s intent to file a brief. Defendant-Petitioner BNY Mellon has consented to the filing of the brief. Plaintiffs-Respondents the Retirement Board of the Policemen s Annuity and Benefit Fund of the City of Chicago, et al., have not taken a position as to the filing of the brief. CONCLUSION The ABA and the NYBA respectfully request that this Court grant this motion to file the attached proposed amici curiae brief in support of Defendant- Petitioner BNY Mellon s petition for permission to appeal. Dated: March 4, 2013 REED SMITH LLP By: /s/ Eric A. Schaffer Eric A. Schaffer eschaffer@reedsmith.com Colin E. Wrabley cwrabley@reedsmith.com Paige H. Forster pforster@reedsmith.com 225 Fifth Avenue, Suite 1200 Pittsburgh, Pennsylvania 15222 Telephone: (412) 288-3131 Facsimile: (412) 288-3063 Counsel for Amici Curiae the American Bankers Association and the New York Bankers Association - 3-6 of 24

Case: 13-664 Document: 15-1 Page: 7 03/04/2013 864093 7 CERTIFICATE OF SERVICE I hereby certify that on March 4, 2013, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. Dated: March 4, 2013 /s/ Eric A. Schaffer 7 of 24

Case: 13-664 Document: 15-2 Page: 1 03/04/2013 864093 17 13-664 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT RETIREMENT BOARD OF THE POLICEMEN S ANNUITY AND BENEFIT FUND OF THE CITY OF CHICAGO, WESTMORELAND COUNTY EMPLOYEE RETIREMENT SYSTEM, CITY OF GRAND RAPIDS GENERAL RETIREMENT SYSTEM, AND CITY OF GRAND RAPIDS POLICE AND FIRE RETIREMENT SYSTEM (on Behalf of Themselves and Similarly Situated Certificate Holders), v. Plaintiffs-Respondents, THE BANK OF NEW YORK MELLON (as Trustee Under Various Pooling and Servicing Agreements), Defendant-Petitioner. On Petition for Interlocutory Appeal from an Order of the United States District Court for the Southern District of New York, William H. Pauley II, District Judge, Case No. 1:11-cv-5459 BRIEF OF THE AMERICAN BANKERS ASSOCIATION AND THE NEW YORK BANKERS ASSOCIATION AS AMICI CURIAE IN SUPPORT OF THE BANK OF NEW YORK MELLON S PETITION FOR PERMISSION TO FILE INTERLOCUTORY APPEAL Eric A. Schaffer Colin E. Wrabley Paige H. Forster REED SMITH LLP 225 Fifth Avenue, Suite 1200 Pittsburgh, PA 15222 Telephone: (412) 288-3131 Facsimile: (412) 288-3063 Counsel for Amici Curiae the American Bankers Association and the New York Bankers Association 8 of 24

Case: 13-664 Document: 15-2 Page: 2 03/04/2013 864093 17 CORPORATE DISCLOSURE STATEMENT PURSUANT FEDERAL RULE OF APPELLATE PROCEDURE 26.1 As required by Fed. R. App. P. 26.1, amici curiae disclose that they have no parent corporation. No publicly-held company owns ten percent or more of either amicus curiae. 9 of 24

Case: 13-664 Document: 15-2 Page: 3 03/04/2013 864093 17 TABLE OF CONTENTS IDENTITY AND INTEREST OF AMICI CURIAE...1 ARGUMENT...2 I. The SEC And Commentators Consistently Have Treated RMBS As Equity Securities That Are Not Subject To The TIA...3 II. Grafting The TIA s Specific Requirements Onto The PSAs Here Conflicts With The Parties Intent, Creates Irreconcilable Tension Between The Statute And The PSAs Terms, And Portends Substantial Resulting Disruption And Uncertainty In The Securitization Markets...4 CONCLUSION...10 - i - 10 of 24

Case: 13-664 Document: 15-2 Page: 4 03/04/2013 864093 17 TABLE OF AUTHORITIES Page(s) Cases Hertz Corp. v. Friend, 130 S.Ct. 1181 (2010)...3 Statutes 15 U.S.C. 77ccc(12)...6 15 U.S.C. 77jjj(a)(5)...9 15 U.S.C. 77mmm...7 15 U.S.C. 77nnn(c)...7 15 U.S.C. 77ooo(a)...8 15 U.S.C. 77ppp(a)(1)...9 Asset-Backed Securities, Final Rule, 70 Fed. Reg. 1506 (Jan. 7, 2005) (codified at 17 C.F.R., pts. 210, 228, et al.)...6 Trust Indenture Act, 303(12)...6 Trust Indenture Act, 310(a)(5)...9 Trust Indenture Act, 313...7 Trust Indenture Act, 314(c)...7 Trust Indenture Act, 315(a)...8 Trust Indenture Act, 316(a)(1)...9 Rules L. R. 29.1...1 Fed. R. App. P. 29...1 Other Authorities - ii - 11 of 24

Case: 13-664 Document: 15-2 Page: 5 03/04/2013 864093 17 Citytrust, SEC No-Action Letter, Fed. Sec. L. Rep. (CCH) 79,700, at 3 n.1 (request letter) (Dec. 19, 1990)...4 Compliance and Disclosure Interpretations, Trust Indenture Act of 1939, SEC, 202.01, http://www.sec.gov/divisions/corpfin/guidance/tiainterp.htm (last visited Mar. 1, 2013)...4 Marion Bass Secs., Inc., SEC No-Action Letter, Fed. Sec. L. Rep. (CCH) 77,801 (July 9, 1984)...4 SEC Div. of Corp. Fin., Manual of Pub. Avail. Tel. Interp., 10, http://www.sec.gov/interps/telephone/cftelinterps_tia.pdf (last visited Mar. 1, 2013)...4 Tamar Frankel, Mortgage-Backed Securities 6:67 (2012)...4 Tamar Frankel, Securitization 12.26 (2d ed. 2005)...4 - iii - 12 of 24

Case: 13-664 Document: 15-2 Page: 6 03/04/2013 864093 17 IDENTITY AND INTEREST OF AMICI CURIAE The American Bankers Association ( ABA ) is the principal national trade association of the financial services industry in the United States. Founded in 1875, the ABA is the voice for the nation s $13 trillion banking industry and its two million employees. ABA members are located in each of the fifty States and the District of Columbia, and include financial institutions of all sizes and types. The ABA, members of which hold a substantial majority of domestic assets of the banking industry and are leaders in all forms of consumer financial services, often appears as amicus curiae in litigation that affects the banking industry. The members of the ABA s Corporate Trust Committee, which focuses on the role of banks in providing corporate trust services, provide more than 95 percent of corporate trust services in the United States. The New York Bankers Association ( NYBA ), founded in 1894, is composed of commercial banks and thrift institutions that engage in the banking business in New York State. Its members have aggregate assets in excess of $10 trillion and more than 200,000 New York employees. 1 1 Pursuant to Fed. R. App. P. 29 and 2d Cir. L. R. 29.1, amici curiae state that no party s counsel authored this brief in whole or in part; that no party or party s counsel contributed money that was intended to fund preparing or submitting the brief; and that no persons other than amici, their members, and their counsel contributed money that was intended to fund preparing or submitting this brief. Additionally, amici believe that the views expressed in this brief reflect the views Continued on following page - 1-13 of 24

Case: 13-664 Document: 15-2 Page: 7 03/04/2013 864093 17 ARGUMENT In its April 3, 2012 Memorandum and Order, the district court became the first court to conclude that issuances of residential mortgage-backed securities ( RMBS ) in the form of certificates that represent a beneficial ownership interest, pursuant to pooling and servicing agreements ( PSAs ), constitute debt securities subject to the Trust Indenture Act ( TIA ). The effect of this unprecedented decision in direct conflict with longstanding guidance provided by the Securities and Exchange Commission ( SEC ) and the settled practice in the industry is to subject the PSAs at issue to the TIA s statutory scheme even though (1) the parties to the PSAs manifestly did not intend to invoke the TIA and (2) the TIA is incompatible with the rights and obligations as negotiated by the parties. The Order may portend the same outcome in existing and future securitizations, thereby injecting enormous uncertainty into the securitization markets and the rights and obligations of those who participate in it. The district court certified the Order for interlocutory appeal, recognizing that the applicability of the TIA raises novel and complex issues that could impact a large number of cases and contributes to industry uncertainty. Amici Continued from previous page of virtually all U.S. banks that are active in the U.S. corporate trust market. The views in this brief, however, are those of amici and are not expressed as representing the views of any single bank. - 2-14 of 24

Case: 13-664 Document: 15-2 Page: 8 03/04/2013 864093 17 curiae agree and have deep concerns about the wide-ranging and unsettling implications of the district court s Order. Amici accordingly urge this Court to grant the petition for permission to appeal filed by The Bank of New York Mellon ( BNY Mellon ) and to restore the predictability that has long prevailed in the securitization markets, and which is critical to their proper functioning. 2 Hertz Corp. v. Friend, 130 S.Ct. 1181, 1193 (2010) ( Predictability is valuable to corporations making business and investment decisions. ). I. The SEC And Commentators Consistently Have Treated RMBS As Equity Securities That Are Not Subject To The TIA. As BNY Mellon s petition makes clear, an RMBS issued under a PSA is not a debt obligation of identifiable obligors to debt holders. Rather, it is a mechanism for managing a pool of mortgage assets on behalf of its owners largely institutional securities holders who chose to invest in an equity interest in a PSAstructured trust rather than a debt interest in a trust covered by the TIA. The SEC consistently has recognized this common sense distinction and, in well-settled, longstanding guidance, has concluded that securities like the ones at 2 It is important to note that the views expressed in this brief are not an attempt to avoid the duties of care that the TIA imposes on trustees. Indeed, PSAs typically apply exactly the same substantive standards as TIA-qualified indentures do. Rather, amici s members are concerned about the uncertainty, confusion, and risks (described below) that would result if the myriad specific requirements of the TIA regime were grafted onto securitization structures. - 3-15 of 24

Case: 13-664 Document: 15-2 Page: 9 03/04/2013 864093 17 issue here do not fall within the TIA s purview. 3 So, too, have respected commentators. 4 In the absence of a single contrary judicial decision prior to the district court s Order, the market understandably relied on the SEC s consistent guidance, as reinforced by the uniform views of commentators. The district court s Order contravenes this uniform guidance, thereby threatening extreme and costly disruption in the securitization markets. II. Grafting The TIA s Specific Requirements Onto The PSAs Here Conflicts With The Parties Intent, Creates Irreconcilable Tension Between The Statute And The PSAs Terms, And Portends Substantial Resulting Disruption And Uncertainty In The Securitization Markets. As parties to thousands of PSAs similar to those at issue in this case, under which trillions of dollars of RMBS have been issued, our members have no doubt 3 See Compliance and Disclosure Interpretations, Trust Indenture Act of 1939, SEC, 202.01, http://www.sec.gov/divisions/corpfin/guidance/tiainterp.htm (last visited Mar. 1, 2013); SEC Div. of Corp. Fin., Manual of Pub. Avail. Tel. Interp., 10, http://www.sec.gov/interps/telephone/cftelinterps_tia.pdf (last visited March 1, 2013); Citytrust, SEC No-Action Letter, Fed. Sec. L. Rep. (CCH) 79,700, at n.1 (request letter) (Dec. 19, 1990) (agreement in question, like pooling and servicing agreements used in pass-through securitizations generally, will not be qualified under the [TIA] ); Marion Bass Secs., Inc., SEC No-Action Letter, Fed. Sec. L. Rep. (CCH) 77,801 (July 9, 1984) (certificates representing ownership interests in pool of mortgage bonds need not meet TIA requirements). 4 See, e.g., Tamar Frankel, Securitization 12.26 (2d ed. 2005) ( The TIA applies only to some types of asset-backed securities. If an SPV issues equity securities, the TIA does not apply to them because the TIA excudes equity securities); Thomas P. Lemke et al., Mortgage-Backed Securities 6:67 (2012) ( Pass-through certificates, because they represent ownership of the underlying mortgages, are regarded as equity rather than debt and are not issued under a qualified indenture. ). - 4-16 of 24

Case: 13-664 Document: 15-2 Page: 10 03/04/2013 864093 17 that the contracting parties to the transactions in this case intended to create, and that investors believed that they were buying, TIA-exempt participations in pools of mortgage loans beneficially owned by investors. That intent, and those beliefs, are evident from the underlying documents. First, the parties sought and obtained opinions of nationally recognized securities counsel that the PSAs were exempt from qualification under the TIA. Second, the prospectuses for the PSA transactions do not state, as do TIA-qualified debt prospectuses, that the governing agreements (i.e., the PSAs) are TIA-qualified indentures and do not describe the mandatory terms and conditions that the TIA would impose. Indeed, PSAs typically do not even mention the TIA. By contrast, agreements governing trusts that use debt structures expressly incorporate TIA provisions. Third, RMBS certificates created under PSAs uniformly state that they evidence undivided ownership interests in a trust corpus consisting principally of mortgage loans and that investors are entitled to payments from that trust corpus, not from the assets of an obligor, as would be expected for a debt security. The district court s interpretation of the contracts at issue did not give due regard to the contracting parties intentions as clearly evidenced in the contracts. With all this in mind, RMBS transactions using PSAs typically do not include a number of provisions that would be mandatory if the TIA applied, and parties typically do not receive a variety of options that the TIA would offer, - 5-17 of 24

Case: 13-664 Document: 15-2 Page: 11 03/04/2013 864093 17 including the right to opt out of automatically imputed contract terms. It would be extremely difficult, if not impossible, to shoehorn these PSAs into the TIA s statutory scheme years into the administration of affected trusts. A few examples show why the district court s ruling creates an unworkable, square-peg-round-hole scenario for investors and trustees alike: The TIA imposes obligations on the obligor of the indenture securities, but PSA-governed RMBS have no obligor. The TIA obligor is defined as every person who is liable upon the securities (or upon the securities in which the certificates evidence a participation). TIA 303(12), 15 U.S.C. 77ccc(12). With RMBS, however, there is no obligor. Rather than entitling investors to payment by a debtor (i.e., obligor), RMBS are payable solely from the trust corpus, which consists of mortgage loans. To point to one example of the problems this mismatch would create, without an obligor to file TIA-mandated reports with the SEC, how could such a requirement be fulfilled? 5 5 Faced with similar questions regarding disclosure and reporting requirements for asset-backed securities under the Securities Act of 1933 and the Securities and Exchange Act of 1934, the SEC promulgated Regulation AB. Asset-Backed Securities, Final Rule, 70 Fed. Reg. 1506 (Jan. 7, 2005) (codified at 17 C.F.R., pts. 210, 228, et al.). That 495-page release, issued after extensive comments from market participants, contains not one reference to the TIA. The SEC presumably saw no need to address the TIA in Regulation AB because it considered the TIA to be irrelevant to these instruments. - 6-18 of 24

Case: 13-664 Document: 15-2 Page: 12 03/04/2013 864093 17 The TIA requirements could be cumbersome and intrusive for loan servicers and for homeowners whose mortgages are part of the trust corpus. Under the TIA, a release of property subject to the lien of the indenture requires the obligor to deliver officers certificates and opinions of counsel as to satisfaction of all conditions. TIA 314(c), 15 U.S.C. 77nnn(c). In the context of RMBS, this provision could be read to require loan servicers (who are not obligors, but who manage mortgage collateral releases) to obtain legal and accounting opinions every time a mortgage is released or modified. Such a requirement could hinder routine releases and modifications of residential mortgages. TIA-mandated annual reports to investors do not contain information that would be useful for RMBS investors and, conversely, contain information that would be confusing and misleading for RMBS investors. The TIA requires annual reports to investors containing information about (1) the amount of debt owed to the trustee, in its individual capacity, by the obligor, (2) the release of property from the lien of the indenture, and (3) any change to the property and funds physically in its possession as indenture trustee. TIA 313, 15 U.S.C. 77mmm. These requirements are irrelevant to the securities at issue in this case. Under PSAs, very little of the property that constitutes the trust corpus is held physically in the trustee s possession. Moreover, PSAs generally do not place a lien on property because the investors already own an undivided equity interest - 7-19 of 24

Case: 13-664 Document: 15-2 Page: 13 03/04/2013 864093 17 in the property backing their securities. Accordingly, TIA-mandated trustee annual reports would tend to confuse or mislead investors about the structure of the securities that they own indeed, disclosures about property subject to the (nonexistent) lien of the indenture could incorrectly suggest that the trust fund is empty. Concomitantly, TIA-mandated reports would provide information on insignificant or irrelevant matters. It is unclear how the trustee could meet the TIA requirement to examine the evidence furnished to it by obligors. TIA 315(a), 15 U.S.C. 77ooo(a). Because it is unclear who the obligors could be under PSAs, our members are confused as to the scope of trustees obligations (if any) in light of the district court s Order. 6 At least one of our members has been sued in a putative class action by an investor who alleges that the trustee violated the TIA because it allegedly failed to examine evidence provided by an entity that served as document custodian, master servicer, and securities administrator. Corrected Second Am. Class Action Cplt. (Dkt. 24), Okla. Police Pension & Ret. Sys. v. U.S. Bank Nat l Ass n, No. 11-cv-8066 (S.D.N.Y. May 15, 2012). 6 The types of certifications envisioned by the TIA are, under PSAs, typically provided by a servicer but because the Order holds that the servicer is not the TIA obligor for these purposes, the Order further begs the question of who the obligor might be. The only other candidates are the homeowners whose mortgages are held in the trusts, but homeowners have no contractual duty to report to the trustee. - 8-20 of 24

Case: 13-664 Document: 15-2 Page: 14 03/04/2013 864093 17 The TIA default shareholder voting rules would disrupt the voting rights of investors in RMBS. Under the TIA, holders of a majority in principal amount of the indenture securities may direct the time, method, and place of conducting any proceeding for any remedy available to [the] trustee or consent to the waiver of any past default and its consequences. TIA 316(a)(1), 15 U.S.C. 77ppp(a)(1). This provision is problematic because the RMBS structure divides interests in the mortgage pools into classes or tranches possessing very different payment rights and potentially conflicting interests. Imposing the majority rule of the TIA, without requiring approval of separate classes in the manner provided by the PSAs, could force a material change in parties bargains. The TIA requirements regarding the trustee s ownership of the trust assets could be diametrically opposed to the PSA requirements. If the answer to the question of who is the obligor? turns out to be the trust fund, it will be impossible for trustees such as our members to comply with both the TIA and the PSAs. The TIA prohibits the trustee from directly or indirectly controlling the obligor. TIA 310(a)(5), 15 U.S.C. 77jjj(a)(5). By contrast, PSAs like the ones at issue here require the trustee to hold legal title to the trust assets (for the benefit of certificateholders). This irreconcilable tension subjects trustees to the risk of - 9-21 of 24

Case: 13-664 Document: 15-2 Page: 15 03/04/2013 864093 17 costly and unproductive litigation and requires them to pursue what would appear to be hopeless efforts at compliance. These are just some of the unintended consequences of placing securities universally thought to be exempt from the TIA under the TIA s regime. Since the Order was issued, thirteen financial institutions have been sued in five cases in which courts will be required to decide on the applicability of the TIA; three of those cases involve claims against an RMBS trustee for violating the TIA. In addition, securities offering documents relating to many new securitizations have expressly declined to comply with the TIA. In short, the concerns raised by the ABA and NYBA in their April 27, 2012 letter to the district court have been realized. Grant of BNY Mellon s petition is the only course that will allow market participants to obtain the necessary certainty regarding the legal requirements applicable to their current and future transactions. CONCLUSION The district court s Order threatens to create enormous disruption, uncertainty, and costs for a wide variety of market participants, including investors and banks who serve as trustees, as well as residential mortgage borrowers. This Court should grant BNY Mellon s petition for permission to appeal in order to allow these important issues to be addressed promptly. - 10-22 of 24

Case: 13-664 Document: 15-2 Page: 16 03/04/2013 864093 17 Dated: March 4, 2013 REED SMITH LLP By: /s/ Eric A. Schaffer Eric A. Schaffer eschaffer@reedsmith.com Colin E. Wrabley cwrabley@reedsmith.com Paige H. Forster pforster@reedsmith.com 225 Fifth Avenue, Suite 1200 Pittsburgh, Pennsylvania 15222 Telephone: (412) 288-3131 Facsimile: (412) 288-3063 Counsel for Amici Curiae the American Bankers Association and the New York Bankers Association - 11-23 of 24

Case: 13-664 Document: 15-2 Page: 17 03/04/2013 864093 17 CERTIFICATE OF SERVICE I hereby certify that on March 4, 2013, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. Dated: March 4, 2013 /s/ Eric A. Schaffer 24 of 24