Foreclosure Defense FloridaGeneral Information

The JPMogan v. Deutsche Bank v. FDIC Fight- Just What Assets Did JPMorgan get in the WAMU Purchase?

The big, big lawyers are fighting out a question that anyone involved in WAMU/JPMorgan litigation cases should be asking.   The fundamental issue is JPMorgan made a “whole bank” purchase of WAMU assets, through the FDIC.   But what exactly was included in the “whole bank”?
Regarding individual loans that WAMU was servicing and maybe even holding onto original promissory notes, the allegations made by the big boys and girls in their legal skirts and suits is that WAMU didn’t actually own all those notes.
On a much bigger level, I don’t think JPMorgan inked this deal without cutting a side deal, something along the lines of a loss share agreement that makes FDIC/taxpayers pay for many of the known “losses” they would incur in the deal.   Here are the outlines:
Plaintiff Deutsche Bank National Trust Company, as Trustee for the Trusts listed inExhibits 1-A and 1-B of the Amended Complaint (” DBNTC” or the ” Trustee”) respectfully submits this memorandum of law in opposition to: (i) FDIC Receiver’s Motion to Dismiss datedNovember 22, 2010; (ii) JPMorgan Chase Bank, National Association (” JPMC”) andWashington Mutual Mortgage Securities Corporation’s (” WMMSC”) motion to dismiss datedNovember 22, 2010; and (iii) JPMC and WMMSC’s motion for partial summary judgment datedNovember 22, 2010.

A number of core facts are undisputed:
The FDIC became receiver for Washington Mutual Bank on September 25, 2008.
Pursuant to a Whole Bank Purchase and Assumption Agreement (” PAA” or ” P&A”) of  that same date between JPMC and the FDIC, JPMC assumed all of Washington MutualBank’s ” mortgage servicing rights and obligations.” PAA § § 2.1, 3.1.
The Trustee timely filed with the FDIC, as receiver for Washington Mutual Bank, a proof  of claim, a copy of which is set forth as Exhibit 3 to the Amended Complaint, and theFDIC failed to make any determination to allow or disallow the claims asserted thereinwithin the 180-day period mandated by 12 U.S.C. § 1821(d)(5)(A)(i).
JPMC, as Servicer for the Trusts, is in sole possession of the over half million loan filesowned by the Trusts.
Pursuant to its contractual rights under the Governing Documents, the Trustee has made awritten request to JPMC for access to, and review of, all the loan files and JPMC has todate refused that request.
None of WaMu, JPMC, or the FDIC has provided DBNTC with contractually requirednotice of breaches of the Representations and Warranties set forth in the GoverningDocuments.Against these facts, the present motions present three fundamental legal issues: (i) do thebreach of contract claims brought by the Trustee adequately state a claim on which relief couldbe granted; (ii) are the claims brought by the Trustee barred by the governing statute of  limitations; and (iii) is it the FDIC or JPMC (or some combination of the two) that is responsiblefor any liability on the claims alleged? JPMC alone raises the pleading and statute of limitationsissues (the FDIC moved against the original complaint on pleading grounds, but has not renewedthat motion against the Amended Complaint). Each of the FDIC and JPMC contend that thePAA ““ which governs who is liable on the claims alleged ““ is unambiguous and directs that theother is liable.As detailed below, JPMC’s pleading and statute of limitations arguments are entirelybaseless. For the reasons set forth below, as well as in the Memorandum of Law accompanyingthe FDIC’s motion to dismiss the claims against it, it is apparent that JPMC is the responsibleparty and that the litigation should proceed against it without delay. In addition, until and unlessthis Court determines that JPMC has assumed
all of the liabilities under the Governing Documents, the Trustee’s claims against the FDIC, as receiver of Washington Mutual Bank,should not be dismissed because the proof of claim clearly asserts all claims set forth in theAmended Complaint and, to the extent any claims were not asserted, such claims would not be subject to the administrative exhaustion requirement and would be entitled to priority becausethey assert that the FDIC acted outside its statutory authority and continued and did not cure, orcause JPMC as its successor to cure, WaMu’s breaches


 3subject to the administrative exhaustion requirement and would be entitled to priority becausethey assert that the FDIC acted outside its statutory authority and continued and did not cure, orcause JPMC as its successor to cure, WaMu’s breaches.
BACKGROUNDA. The Trusts and the Governing Documents
Washington Mutual Bank and its affiliates, including WMMSC, sponsored, originated,sold and/or serviced 99 separate trusts (the ” Primary Trusts”) for which DBNTC serves asTrustee and in various related capacities.

Each Trust is governed by a set of  interrelated executory contracts and agreements memorializing the rights, interests, liabilities andcontinuing obligations of the contracting parties (the ” Governing Documents”). AC ¶ ¶ 29-30.All of the Governing Documents were maintained in the books and records of WaMu, and weretransferred to JPMC in connection with its acquisition of WaMu. AC ¶ 42.The Governing Documents typically include a mortgage loan purchase agreement(” MLPA”), which effectuates and governs the conveyance of mortgage loans from the sponsor orSeller to the Depositor, and/or a pooling and servicing agreement (” PSA”), which generallygoverns the rights and obligations of, among others, the Trustee and Servicer of the Trusts. AC ¶29. The MLPAs and/or PSAs for the Primary Trusts, and the relevant agreements for theSecondary Trusts, contain representations, warranties and covenants made by WaMu, as Sellerand/or Depositor, regarding the nature, characteristics, history and quality of the mortgage loansand the mortgage loan files sold to, and deposited in, the Trusts (the ” Representations and Warranties”). AC ¶ ¶ 30, 45-48. A representative sample of the Representations and Warrantiesis set forth in Paragraph 46 and Exhibit 5 of the Amended Complaint. As detailed in Section Cinfra, the Governing Documents contain ongoing contractual obligations by WaMu to notify theTrustee upon discovery of loans that breach the Representations and Warranties and torepurchase any loans not in compliance with the Representations and Warranties. This case isabout breaches of those ongoing notice and repurchase obligations, as well as the ongoing breachof the Trustee’s contractual right to access the loan files.
And this here

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