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AIG-Countrywide Court Order re Motion to Dismiss

AIG-Countrywide Court Order re Motion to Dismiss

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Published by Isaac Gradman
Order issued by Judge Pfaelzer in the Central District of California granting Countrywide's Motion to Dismiss UG's tort and statutory claims.
Order issued by Judge Pfaelzer in the Central District of California granting Countrywide's Motion to Dismiss UG's tort and statutory claims.

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Published by: Isaac Gradman on Oct 10, 2009
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Countrywide Financial Corp.,
et al.
Case No.CV-09-1888-MRP (JWJx)ORDER Granting Motions toDismiss the Amended Complaint
In this mortgage insurance case, an insurer (“United Guaranty”)
sues twoaffiliated mortgage companies (collectively, “Countrywide”; separately,“Countrywide Financial” and “Countrywide Home”)
and a mortgagesecuritization trustee (“BNY Trust”).
 The original complaint asserted contract, tort, and statutory claims.
United Guaranty Mortgage Indemnity Company.
Countrywide Financial Corporation and Countrywide Home Loans, Inc.Countrywide Financial is the parent company. Amended Compl. ¶¶ 19-20.Countrywide Home is a wholly owned subsidiary that “originates and servicesresidential home mortgage loans.”
¶ 20.
The Bank of New York Trust Company, N.A. BNY Trust is now “Bank of New York Mellon Trust Company, N.A.” This order nevertheless uses the namethat appears on the complaint. BNY Trust is sued “solely in its trustee (rather thanindividual) capacity.”
Case 2:09-cv-01888-MRP-JWJ Document 105 Filed 10/05/2009 Page 1 of 46
Countrywide and BNY Trust moved to dismiss the original complaint. The claimsfor breach of contract and breach of implied covenant survived. The other claimswere dismissed with leave to amend, primarily for failure to overcome theeconomic loss rule, which generally bars tort claims for contractual breaches.United Guaranty then filed the Amended Complaint (“AC”). Now before theCourt are motions to dismiss the tort and statutory claims reasserted in the AC.The motions are granted in their entirety.
I.BACKGROUNDA. Procedural posture.
This insurance dispute has generated three court cases and severalarbitrations. Two of the cases are pending before this Court.United Guaranty filed the present case in this Court. The other case was filedby Countrywide in California state court; United Guaranty subsequently removedthat case to this Court. United Guaranty filed the third case in North Carolinafederal court, citing forum selection clauses. Each side also initiated arbitrationproceedings against the other. A prior order, the “Omnibus Order Resolving ThreeJurisdiction-Related Motions,” details the parties’ procedural maneuvers. Docketno. 84 (July 1, 2009).Of the two cases before this Court, the present case is narrower in factualscope and broader in legal theories. In it, United Guaranty sues on eleven “MasterPolicies” that insure first-lien mortgages that Countrywide securitized.
UnitedGuaranty asserts claims in contract, in tort, and under California statutory law.
B. The securitizations.
In the securitizations, Countrywide affiliates conveyed a pool of mortgages
Countrywide’s removal case implicates more types of loans, policies, andsecuritizations.
Omnibus Order at 9-10, 38-45. Its claims are much narrower inlegal scope, however.
Case 2:09-cv-01888-MRP-JWJ Document 105 Filed 10/05/2009 Page 2 of 46
to a first trustee. In exchange for the mortgages, this first trustee issued debtinstruments that represent a right to proceeds from trust assets (such as incomingmortgage payments by homeowners or, perhaps, mortgage insurance proceeds).Countrywide and a second trustee, BNY Trust, obtained mortgage insuranceon a subset of the securitized loans from United Guaranty. BNY Trust (in its roleas a trustee) is the sole named “insured” on the policies. The first trustee is notparty to the mortgage insurance transaction; it is likewise not a party to this case.
 Altogether, the securitizations in issue “encompass[] over $13 billion” of mortgage loans. AC ¶ 35.
C. The complaints.
United Guaranty’s original complaint asserted seven claims. Countrywideand BNY Trust each filed a motion to dismiss. Two contract claims survived themotions. They are: (claim 1) breach of contract against Countrywide Home andBNY Trust; and (claim 2) breach of the implied duty of good faith and fair dealingagainst Countrywide Home. In granting the remainder of the motions, the Courtprovided United Guaranty brief statements of its reasoning. The Court furthergranted United Guaranty leave to amend.
 United Guaranty amended by filing the AC. The AC substantially reassertsthe dismissed claims, though it adds allegations, attaches two appendices, andrearranges some defendants. Countrywide and BNY Trust each filed a motion todismiss the AC. These motions are now before the Court. / / / 
Omnibus Order at 2-7 (providing more detail on the transactions).
Order Granting in Part Motions to Dismiss at 2, docket no. 85 (July 1, 2009).
Case 2:09-cv-01888-MRP-JWJ Document 105 Filed 10/05/2009 Page 3 of 46

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