0 ORRICK ORRICK, HERRINGTON & SUTCLIFFE LLP 51 WEST 52ND STREET NEW YORK, NEW YORK 10019-6142 tel +1-212-506-5000 fax +1-212-506-5151 WWW.ORRICK.COM November 4, 2010 Richard A. Jacobsen (212) 506-3743 Rjacobsen@orrick.corn VIA FACSIMILE AND E-FILE Deborah A. Porder, Esq. Law Clerk to The Honorable Shirley W. Kornreich New York State Supreme Court Part 54, Room 418 60 Centre Street New York, NY 10007 Re: MBIA Insurance Corporation v. Credit Suisse Securities (USA) f.1e, et al., Index No. 603751/09 Dear Ms. Porder: On behalf of both parties, attached is the subpoena to New Century that MBIA issued, as well as MBIA's proposed Amended Schedule A for both New Century and Decision One (in substance they are identical). The parties have agreed on the proposed amended definitions and instructions, as well as Requests 1-3. Credit Suisse objects to Requests 4-11. We look forward to speaking with you tomorrow at 4:00 and appreciate your assistance. Res ectfully submitted, Richard A. sen Attachments cc: Stan Chelney, Esq. David Slarskey, Esq. 01-IS East:160794413.1
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YQRK x MBIA INSURANCE CORPORATION, - against - Plaintiff, CREDIT SUISSE SECURITIES (USA) LLC, DLJ MORTGAGE CAPITAL, INC., and SELECT PORTFOLIO SERVICING, INC. Defendants. : Index No. 603751/09 : Hon. Shirley Werner Kornreich x SUBPOENA DUCES TECUM TO: NEW CENTURY LIQUIDATING TRUST ATTN: ALAN M. JACOBS AMJ ADVISORS LLC 999 CENTRAL AVENUE WOODMERE, NY 11598 YOU ARE HEREBY COMMANDED, pursuant to Articles 23 and 31 of the Civil Practice Law and Rules, to produce and permit plaintiff MBIA Insurance Corporation ("MBIA"), or someone acting on MBIA's behalf, to inspect, copy, test or photograph, at the offices of Patterson Belknap Webb & Tyler LLP, 1133 Avenue of the Americas, New York, New York, 10036, on November 12, 2010, at 9:30 a.m. or at such other date as the parties agree upon, and in accordance with the definitions and instructions herein, the documents set forth in SCHEDULE A, attached hereto. Such disclosure is required because New Century Mortgage Corporation originated or acquired a substantial number of the mortgage loans at issue in the Home Equity Mortgage Trust 2007-2, the transaction that is the subject of this lawsuit.
Dated: New York, New York October 12, 2010 Erik Haas Nicolas Commandeur David N. Slarskey PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, NY 10036-6710 Telephone: (212) 336-2000 Fax: (212) 336-2222 ehaas@pbwt.com ncommandeur@pbwt.com dslarskey@pbwt.com CC: Stan Chelney, Esq. ORRICK HERRINGTON & SUTCLIFFE LLP 51 W. 52nd Street New York, NY Attorneys for Defendants
SCHEDULE A DEFINITIONS A. "MBIA" means MBIA Insurance Corporation, in the broadest sense consistent with the Civil Practice Law and Rules of the State of New York ("CPLR"), including its officers, directors or employees. B. "CS Securities" refers to Credit Suisse Securities (USA) LLC, in the broadest sense consistent with the CPLR, including its officers, directors, employees, partners, corporate parents, subsidiaries, affiliates, and all persons and entities acting on its behalf. C. "DLJ" refers to DLJ Mortgage Capital, Inc., in the broadest sense consistent with the CPLR, including its officers, directors, employees, partners, corporate parents, subsidiaries, affiliates, and all persons and entities acting on its behalf. D. "SPS" refers to Select Portfolio Servicing Inc., in the broadest sense consistent with the CPLR, including its officers, directors, employees, partners, corporate parents, subsidiaries, affiliates, and all persons and entities acting on its behalf. E. "Credit Suisse" refers collectively or individually to Credit Suisse Securities, DLJ, and SPS. F. "You," "Your," and/or "New Century" refers to New Century Mortgage Corporation, in the broadest sense consistent with the CPLR, including its officers, directors, employees, partners, corporate parents, subsidiaries, affiliates, and all persons and entities acting on its behalf. G. "Due Diligence" refers to analysis, evaluation, or review of mortgage loans or mortgage loan origination practices. H. "Credit Suisse Loans" means residential mortgage loans You originated and were offered for sale or purchased by Credit Suisse between November 3, 2005 and April 30, 2007. I. "Mortgage Loans" means residential mortgage loans. J. The terms "originating," or "originated" or "origination" refer to the process of extending a residential mortgage loan or line of credit to a borrower, including the underwriting of that residential mortgage loan or line of credit, either directly or through an intermediary, including but not limited to, a mortgage broker. K. "Originator" refers to the respective entities that originated any of the Credit Suisse Loans.
L. "Transaction" means the residential mortgage-backed securities transaction at issue in this action known as Home Equity Mortgage Trust 2007-2 or HEMT 2007-2. M. "Underwriting Guidelines" means all loan underwriting guidelines, product matrices, lending manuals, technical manuals, seller guides, and all other written materials purporting to govern the processes, procedures, and standards pursuant to which any of the Credit Suisse Loans were, or were represented to have been, originated by the applicable originator thereof. N. The term "document" has the broadest possible meaning ascribed to it under CPLR 3120. "documents" includes all written, typed, recorded, or graphic matter, however produced or reproduced, of any kind or description, including originals, non-identical copies and drafts, and all other materials discoverable under New York law. This definition also includes papers, books, letters, correspondence, e-mails, faxes, telegrams, telexes, contracts, agreements, notes, memoranda, inter-office communications, messages, notices, transcripts, meeting minutes, reports, analyses, investigations, recommendations, instructions, opinions, summaries, charts, computer printouts, statements, transcripts, receipts, account statements, evaluations, business records, accounting records, financial statements, billing records, tax records, tax returns, ledgers, invoices, drafts, desk calendars, appointment books, diaries, date books, organizers, journals, electronically stored information, computer disks or tapes, computer input or output, files, filings, folders, lists, schedules, and all communicative materials of any kind (to include data stored in a computer or other electronic device, data stored on removable magnetic or optical media, backup copies of data, digitized pictures and video, digitized audio, and voicemail). 0. The term "communication" means any written, oral or mechanical transmittal of information (in the form of facts, ideas, inquiries, or otherwise), whether formal or informal, including email or other computerized mail, text messages, instant messages, correspondence, memoranda, notes, facsimiles, telexes, diaries, telephone conversations (whether in recorded form or otherwise), in-person meetings, Documents or files in computer format and any written Documents concerning any such communications. P. The term "concerning" means in any way, directly or indirectly, alluding to, amending, assisting with, canceling, commenting on, comprising, concerning, confirming, considering, constituting, contradicting, describing, discussing, endorsing, evidencing, identifying, incorporating, mentioning, modifying, negating, pertaining to, qualifying, referring to, regarding, relating to, relevant to, representing, revoking, showing, suggesting, supplementing, supporting, terminating, underlying, or otherwise involving the subject matter of the specified request. Q. The teims "including," "include," or "includes" are used in their broadest sense and are not meant to be limiting. Any list following these terms contains
illustrative examples of the types of documents responsive to the request, but the list is without limitation and does not constitute an exclusive, all-encompassing, or exhaustive listing of every type of document responsive to the request. R. The words "and," "or," and "any" are intended to be construed as necessary to bring within the scope of these requests for production any documents or information that otherwise might be construed to be outside the scope of any of them. Use of a singular noun shall be construed to include the plural noun and use of a plural noun shall be construed to include the singular noun. The use of a verb in any tense shall be construed as the use of that verb in all other tenses whenever necessary to bring within the scope of these Requests for Production documents or information that might otherwise be construed to be outside their scope. S. "Request" or "Requests" means the requests stated herein. INSTRUCTIONS 1. Unless otherwise specified, each Request concerns the time period from October 1, 2005 through the present. 2. In answering these demands, You are under an obligation to make a diligent search of all files that You reasonably believe may contain responsive documents. You are required to produce all responsive and non-privileged documents in Your possession, custody or control, including all documents contained in records or files of Your employees, agents, representatives, attorneys or any other persons or entities acting on Your behalf or direction, and any other files that you are authorized to inspect and copy. 3. If You cannot comply in full with any specific Request, You shall comply to the extent possible and explain (a) what information You refuse to produce, and (b) why full compliance is not possible. 4. If You object to the production of any document on grounds of privilege, You must identify the document and the basis of the privilege, and provide sufficient information for Plaintiff to assess the applicability of the stated basis In particular, You must provide: (a) the author of the document; (b) the name and title of each person who prepared, received, reviewed, or has or had custody, possession, or control of an original or copy of the document; (c) the date of the document; (d) the subject matter of the document; (e) the identity and length of any attachments to the document; and (f) the basis for the claim of privilege or other grounds for withholding the document. 5. If You believe that only a portion of a document is protected by an applicable privilege, the non-privileged portion shall be produced with the allegedly privileged portion redacted and indicated as such. You shall provide the information set forth in Instruction No. 4 for each such redaction. Any attachment to an allegedly privileged document shall be produced unless You also
contend that the attachment is privileged, in which case the information required in Instruction No. 4 shall be provided separately for each such attachment. 6. If You fail to produce a document or provide information requested on the grounds that such document or information is no longer in Your possession, custody or control, You shall state what disposition was made of that document or information, including, when applicable, the circumstances of any loss or destruction of such document or information. 7. The original of each document requested should be produced. Identical copies of a document need not be produced. Any copy of a document that varies from the original, whether by reason of handwritten or other notation or any omission, shall constitute a separate document and must be produced, whether or not the original of such a document is within Your possession, custody or control. 8. Each document requested should be produced in its entirety without deletion or redactions, except as subject to applicable privileges, regardless of whether You consider the entire document to be responsive to these Requests or relevant to the claims. 9. You should produce all documents as they are kept in the usual course of business or shall organize and label them to correspond to the categories of these Requests. 10. Documents not otherwise responsive to these Requests shall be produced if such documents mention, discuss, refer to, or explain the documents that are called for by the Requests, or if such documents are attached to documents called for by these Requests and constitute routing slips, transmittal memoranda, letter, emails, comments, evaluations or similar materials. 11. These Requests are continuing in nature. If, subsequent to Your production of documents, You obtain, locate, create, or otherwise become aware of a document that would have been included in the production had it been in Your possession at the time of the production, You shall promptly produce that document to Plaintiff by supplemental production. DOCUMENT REQUESTS Request 1: All communications concerning the following: (a) Proposed or effective contracts/agreements for the sale of Mortgage Loans to Credit Suisse; (b) The types of loan products Credit Suisse would purchase and the types of borrowers it would accept as borrowers for Mortgage Loans; (c) Credit Suisse's review or due diligence of your origination and underwriting policies and practices;
(d) Credit Suisse's acceptance or rejection of any Mortgage Loan in any sale of loans to Credit Suisse; (e) Requests from, or information provided to, Credit Suisse, including applications or questionnaires, concerning the sale of Mortgage Loans to Credit Suisse; (f) The subject matters identified in Requests 5, 6 and 9. (g) Communications with Credit Suisse concerning Your marketing or advertising, including such communications with Credit Suisse. (h) The Transaction or Mortgage Loans considered for or included in the Transaction. Request 2: All contracts/agreements for the sale of Mortgage Loans to Credit Suisse. Request 3: All documents You provided to and all requests You received from Credit Suisse, including but not limited to all applications or questionnaires completed or not, concerning Credit Suisse's Due Diligence of You as an originator or seller of Mortgage Loans. Request 4: All documents You provided and all requests You received from Credit Suisse, concerning Credit Suisse's approval or re-approval of You as a seller of mortgage loans to Credit Suisse. Request 5: All origination files for the Mortgage Loans in the Transaction. Request 6: All documents You received from Credit Suisse concerning requests or demands for the repurchase, cure, substitution or re-pricing of residential mortgage loans You originated on the grounds that the mortgage loans breached representations and warranties, experienced early payment defaults, or any other basis. Request 7: Documents sufficient to show the representations and warranties Credit Suisse claimed as the basis for asserting each of the requests or demands responsive to Request 6, including, but not limited to, the contractual agreements in which the representations and warranties are set forth, and the repurchase remedy provided for therein. Request 8: All documents concerning Your response to, and Credit Suisse's resolution of, each request or demand responsive to Request 6, and the date on which each request or demand was resolved, including, but not limited to, documents concerning settlement agreements between You and Credit Suisse Request 9: Documents sufficient to show instructions You issued to any underwriter, mortgage brokers, loan officers, and loan processors or which You expected such individuals to rely upon from November 2004 through May 2007, including, but
not limited to, underwriting manuals, operations or technical manuals, and sales scripts. Request 10: All studies, memoranda, analyses, reports and other similar materials concerning the following subjects, as concerned the Credit Suisse Loans: (a) Deviations from Underwriting Guidelines, with or without exceptions; (b) Incidence of borrower or broker fraud or misrepresentation by any borrower or broker involved in the origination of any Credit Suisse Loan; (c) Evaluation or verification of information represented by borrowers in reduced documentation programs; (d) Correlations between documentation type and incidence of misrepresentations, defaults, or poor performance; (e) Improvement of competitive position through relaxation of underwriting standards. Request 11: Documents sufficient to show the compensation and bonus structure for Your mortgage brokers, loan officers and loan processors from 2003 through 2007. Request 12: Documents sufficient to show the organizational structure of your employees involved with the following areas, or analogous functions if differently named: loan underwriting, secondary markets, quality control, due diligence, and risk management, including, but not limited to, the names and titles of officers, directors, managers, and supervisors, the department they worked for, the years they worked, and to whom they reported. Request 13: All documents produced by You in response to any regulatory or government inquiry or subpoena concerning Your origination practices or the origination of Mortgage Loans.
AMENDED SCHEDULE A DEFINITIONS A "Credit Suisse" refers collectively or individually to Credit Suisse Securities (USA) LLC, DLJ Mortgage Capital, Inc. and Select Portfolio Servicing, Inc., each in the broadest sense consistent with the CPLR, including its officers, directors, employees, partners, corporate parents, subsidiaries, affiliates, and all persons and entities acting on its behalf. B "You," "Your," and/or "New Century" refers to New Century Mortgage Corporation, in the broadest sense consistent with the CPLR, including its officers, directors, employees, partners, corporate parents, subsidiaries, affiliates, and all persons and entities acting on its behalf C "Credit Suisse Loans" refers to all residential mortgage loans that (i) were offered to Credit Suisse as part of any bulk or minibulk portfolio from which any loans were that were included in the Transaction were selected or (ii) were offered to or acquired by Credit Suisse between November 5, 2005 and April 30, 2007 through any wholesale, loan-by-loan, or "flow" arrangement out of which were selected any loans in the Transaction. D E "Originating," "originated," or "origination" refers to the process of extending a residential mortgage loan or line of credit to a borrower, including the underwriting of that residential mortgage loan or line of credit, either directly or through an intermediary, including but not limited to, a mortgage broker. "Transaction" means the residential mortgage-backed securities transaction at issue in this action known as Home Equity Mortgage Trust 2007-2 or HEMT 2007-2. F "Underwriting Guidelines" means all loan underwriting guidelines, product matrices, lending manuals, technical manuals, seller guides, and all other written materials purporting to govern the processes, procedures, and standards pursuant to which any of the Credit Suisse Loans were, or were represented to have been, originated by the applicable originator thereof G The term "document" has the broadest possible meaning ascribed to it under CPLR 3120. "Documents" includes all written, typed, recorded, or graphic matter, however produced or reproduced, of any kind or description, including originals, non-identical copies and drafts, and all other materials discoverable under New York law. This definition also includes papers, books, letters, correspondence, e-mails, faxes, telegrams, telexes, contracts, agreements, notes, memoranda, inter-office communications, messages, notices, transcripts, meeting minutes, reports, analyses, investigations, recommendations, instructions, opinions, summaries, charts, computer printouts, statements, transcripts, receipts, account statements, evaluations, business records, accounting records, financial statements, billing records, tax records, tax returns, ledgers, invoices, drafts, desk 4266850v.5
calendars, appointment books, diaries, date books, organizers, journals, electronically stored information, computer disks or tapes, computer input or output, files, filings, folders, lists, schedules, and all communicative materials of any kind (to include data stored in a computer or other electronic device, data stored on removable magnetic or optical media, backup copies of data, digitized pictures and video, digitized audio, and voicemail). H The term "communication" means any written, oral or mechanical transmittal of information (in the form of facts, ideas, inquiries, or otherwise), whether formal or informal, including email or other computerized mail, text messages, instant messages, correspondence, memoranda, notes, facsimiles, telexes, diaries, telephone conversations (whether in recorded form or otherwise), in-person meetings, Documents or files in computer format and any written Documents concerning any such communications. The term "concerning" means in any way, directly or indirectly, alluding to, amending, assisting with, canceling, commenting on, comprising, concerning, confirming, considering, constituting, contradicting, describing, discussing, endorsing, evidencing, identifying, incorporating, mentioning, modifying, negating, pertaining to, qualifying, referring to, regarding, relating to, relevant to, representing, revoking, showing, suggesting, supplementing, supporting, terminating, underlying, or otherwise involving the subject matter of the specified request. J The terms "including," "include," or "includes" are used in their broadest sense and are not meant to be limiting. Any list following these terms contains illustrative examples of the types of documents responsive to the request, but the list is without limitation and does not constitute an exclusive, all-encompassing, or exhaustive listing of every type of document responsive to the request. K The words "and," "or," and "any" are intended to be construed as necessary to bring within the scope of these requests for production any documents or information that otherwise might be construed to be outside the scope of any of them. Use of a singular noun shall be construed to include the plural noun and use of a plural noun shall be construed to include the singular noun. The use of a verb in any tense shall be construed as the use of that verb in all other tenses whenever necessary to bring within the scope of these Requests for Production documents or information that might otherwise be construed to be outside their scope. INSTRUCTIONS 1. In answering these demands, You are under an obligation to make a diligent search of all files that You reasonably believe may contain responsive documents. You are required to produce all responsive and non-privileged documents in Your possession, custody or control, including all documents contained in records or files of Your employees, agents, representatives, attorneys or any other persons or 4266850v.5 2
entities acting on Your behalf or direction, and any other files that you are authorized to inspect and copy. 2. If You cannot comply in full with any request, You shall comply to the extent possible and explain (a) what information You refuse to produce, and (b) why full compliance is not possible. 3. If You object to the production of any document on grounds of privilege, You must identify the document and the basis of the privilege, and provide sufficient information for Plaintiff to assess the applicability of the stated basis. In particular, You must provide: (a) the author of the document; (b) the name and title of each person who prepared, received, reviewed, or has or had custody, possession, or control of an original or copy of the document; (c) the date of the document; (d) the subject matter of the document; (e) the identity and length of any attachments to the document; and (f) the basis for the claim of privilege or other grounds for withholding the document. 4. If You believe that only a portion of a document is protected by an applicable privilege, the non-privileged portion shall be produced with the allegedly privileged portion redacted and indicated as such. You shall provide the information set forth in Instruction No. 3 for each such redaction. Any attachment to an allegedly privileged document shall be produced unless You also contend that the attachment is privileged, in which case the information required in Instruction No. 3 shall be provided separately for each such attachment. 5. If You fail to produce a document or provide information requested on the grounds that such document or information is no longer in Your possession, custody or control, You shall state what disposition was made of that document or information, including, when applicable, the circumstances of any loss or destruction of such document or information. 6. The original of each document requested should be produced. Identical copies of a document need not be produced. Any copy of a document that varies from the original, whether by reason of handwritten or other notation or any omission, shall constitute a separate document and must be produced, whether or not the original of such a document is within Your possession, custody or control. 7. Each document requested should be produced in its entirety without deletion or redactions, except as subject to applicable privileges, regardless of whether You consider the entire document to be responsive to these Requests or relevant to the claims. 8. You should produce all documents as they are kept in the usual course of business, including as an intact database where applicable, or shall organize and label them to correspond to the categories of these Requests. 9. Documents not otherwise responsive to these Requests shall be produced if such documents mention, discuss, refer to, or explain the documents that are called for 4266850v.5 3
by the Requests, or if such documents are attached to documents called for by these Requests and constitute routing slips, transmittal memoranda, letter, emails, comments, evaluations or similar materials. 10. These Requests are continuing in nature. If, subsequent to Your production of documents, You obtain, locate, create, or otherwise become aware of a document that would have been included in the production had it been in Your possession at the time of the production, You shall promptly produce that document to Plaintiff by supplemental production. DOCUMENT REQUESTS Request 1: All communications concerning the following: (a) (b) (c) (d) (e) (f) Contracts/agreements for the sale of Credit Suisse Loans to Credit Suisse; The loan products Credit Suisse agreed to purchase and the types of borrowers it would accept, both in connection with Credit Suisse Loans; Credit Suisse's review or due diligence of your origination and underwriting policies and practices relied upon by Credit Suisse in connection with the Credit Suisse Loans; Credit Suisse's acceptance or rejection of any Credit Suisse Loan; Requests from, or information provided to, Credit Suisse, including applications or questionnaires, concerning the sale of Credit Suisse Loans to Credit Suisse; The Transaction or any of the Credit Suisse Loans. Request 2: All contracts/agreements for the sale of Credit Suisse Loans. Request 3: All documents You provided to and all requests You received from Credit Suisse concerning Credit Suisse's evaluation of You as an originator or seller of Credit Suisse Loans as it pertains to the Credit Suisse Loans. Request 4: All origination files for the Credit Suisse Loans. Request 5: All documents concerning any requests or demand made by Credit Suisse for the repurchase, cure, substitution or re-pricing of Credit Suisse Loans, including documents reflecting the negotiation or resolution of such demands. Request 6: Documents sufficient to show the representations and warranties Credit Suisse claimed as the basis for asserting each of the requests or demands responsive to Request 5, including, but not limited to, the contractual agreements in which the representations and warranties are set forth, and the repurchase remedy provided for therein. 4266850v.5 4
Request 7: Documents sufficient to show instructions You issued to any underwriter, mortgage brokers, loan officers, and loan processors or which You expected such individuals to rely upon in originating the Credit Suisse Loans, including, but not limited to, underwriting manuals, operations or technical manuals, and sales scripts. Request 8: All studies, memoranda, analyses, reports and other similar materials concerning the following subjects, as concerned the Credit Suisse Loans: (a) (b) (c) (d) (e) Deviations from Underwriting Guidelines, with or without exceptions; Incidence of borrower or broker fraud or misrepresentation by any borrower or broker involved in the origination of any Credit Suisse Loan; Evaluation or verification of information represented by borrowers in reduced documentation programs; Correlations between documentation type and incidence of misrepresentations, defaults, or poor performance; Improvement of competitive position through relaxation of underwriting standards. Request 9: Documents sufficient to show the compensation and bonus structure for Your mortgage brokers, loan officers and loan processors in connection with the Credit Suisse Loans. Request 10: Request 11: Documents sufficient to show the organizational structure of your employees involved with the following areas, or analogous functions if differently named: loan underwriting, secondary markets, quality control, due diligence, and risk management, including, but not limited to, the names and titles of officers, directors, managers, and supervisors, the department they worked for, the years they worked, and to whom they reported. All documents produced by You in response to any regulatory or government inquiry or subpoena concerning Your origination practices or the origination of the Credit Suisse Loans. 4266850v.5 5