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ResCap v. Terrace - 8th Circuit Decision

ResCap v. Terrace - 8th Circuit Decision

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Published by Chris Herzeca
ResCap v. Terrace - 8th Circuit Decision
ResCap v. Terrace - 8th Circuit Decision

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Published by: Chris Herzeca on Jun 09, 2014
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United States Court of Appeals
For the Eighth Circuit
 ___________________________  No. 12-2569 ___________________________ Residential Funding Company, LLClllllllllllllllllllll
 Plaintiff - Appellee
v.Terrace Mortgage Company, a Georgia corporationlllllllllllllllllllll
 Defendant - Appellant 
 ____________  Appeal from United States District Court for the District of Minnesota - Minneapolis ____________  Submitted: March 12, 2013 Filed: August 7, 2013 ____________ Before WOLLMAN, BYE, and COLLOTON, Circuit Judges. ____________ BYE, Circuit Judge.Residential Funding Company, LLC ("Residential"), sued Terrace MortgageCompany ("Terrace"), alleging Terrace breached the parties' contract when it refusedto repurchase thirteen loans Residential had purchased from Terrace. The district
Appellate Case: 12-2569 Page: 1 Date Filed: 08/07/2013 Entry ID: 4062605
CASE 0:09-cv-03455-SRN-AJB Document 75 Filed 08/07/13 Page 1 of 17
 
court granted Residential's motion for summary judgment. Terrace appeals and we
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affirm.ITerrace originates residential mortgage loans. On May 18, 1994, Terrace andResidential signed a contract which allowed Terrace to sell to Residential loansTerrace had originated. The contract incorporated the "Residential Funding Seller and Servicer Guides" ("Client Guide"). Appellant's App. 8. By signing the contract,Terrace acknowledged it had received and read the Client Guide and made therepresentations contained within it. Id. at 8-9.The Client Guide contained the following important provisions:1. "[Terrace] is fully liable for any misrepresentation or breach of warranty [in each loan Residential purchased from Terrace] regardlessof whether [Terrace] or [Residential] actually had, or reasonably couldhave been expected to obtain, knowledge of the facts giving rise to suchmisrepresentation or breach of warranty." Id. at 337.2. Each of the loans Terrace sells to Residential "is in compliance with. . . all representations, warranties, and requirements contained in thisClient Guide." Id. at 341.3. Each of the following events, among others, constitutes an Event of Default:a. "[Terrace] . . . breaches any of the representations, warranties,or covenants set forth in this Client Guide." Id. at 356. b. "The Borrower or any other person or entity involved in theLoan transaction or in its underwriting or documentation . . . hasThe Honorable Susan Richard Nelson, United States District Judge for the
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District of Minnesota.-2-
Appellate Case: 12-2569 Page: 2 Date Filed: 08/07/2013 Entry ID: 4062605
CASE 0:09-cv-03455-SRN-AJB Document 75 Filed 08/07/13 Page 2 of 17
 
made any false representation and/or has failed to provideinformation that is true, complete and accurate in connection withsuch transaction, whether or not [Terrace] was a party to or hadknowledge of such misrepresentation or incorrect information." Id.4. "If [Residential] determines that an Event of Default has occurredwith respect to a specific Loan, [Terrace] agrees to repurchase the Loanand its servicing . . . within 30 days of receiving a repurchase letter or other written notification from [Residential]." Id. at 357 (emphasisremoved).5. "[Terrace] may appeal [Residential's] decision by providing anyadditional information or documentation it believes may affect[Residential's] determination. . . . [Residential] will in its sole discretiondetermine the validity of any appeal filed by [Terrace]. If [Residential's]decision remains firm following an appeal, [Terrace] shall repurchasethe Loan and its servicing . . . within 10 days of notification by[Residential], in writing, that the appeal has been denied." Id. at 362.6. "[Terrace] shall indemnify [Residential] from all losses, damages, penalties, fines, forfeitures, court costs and reasonable attorneys' fees, judgments, and any other costs, fees and expenses resulting from anyEvent of Default. This includes, without limitation, liabilities arisingfrom (i) any act or failure to act, (ii) any breach of warranty, obligation,or representation contained in the Client Contract . . . ." Id. at 364(emphasis removed).7. "[Residential] is not required to demand repurchase within any particular period of time, and may elect not to require immediaterepurchase. However, any delay in making this demand does notconstitute a waiver by [Residential] of any of its rights or remedies." Id.at 358.8. "[Residential] may waive any default by [Terrace] in the performanceof [Terrace's] obligations hereunder and its consequences, but only bya written waiver specifying the nature and terms of such waiver."-3-
Appellate Case: 12-2569 Page: 3 Date Filed: 08/07/2013 Entry ID: 4062605
CASE 0:09-cv-03455-SRN-AJB Document 75 Filed 08/07/13 Page 3 of 17

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