At page 684 Holding action barred by no-action clause in PSAs2 citing casesOrder, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or about March 29, 2012, which, in this action alleging breach of representations…
- Alden Global Value Recovery Master Fund, L.P. v. KeyBank N.A., 2018 NY Slip Op 2241 (N.Y. App. Div. 1st Dep't 2018).publishedIn ACE , we cited our earlier decision in Walnut Place LLC v Countrywide Home Loans, Inc. ( 96 AD3d 684, 684 [1st Dept 2012]), in which we affirmed the motion court's granting of the defendants' motion to dismiss based on our holding that…
- STS Partners Fund, LP v. Deutsche Bank Sec., Inc., 149 A.D.3d 667 (N.Y. App. Div. 1st Dep't 2017).publishedEven if, arguendo, plaintiffs were third-party beneficiaries of the trust agreements (see Walnut Place LLC v Countrywide Home Loans, Inc., 35 Misc 3d 1207[A] , 2012 NY Slip Op 50601[U] , *1 n 2 [Sup Ct, NY County 2012], affd 96 AD3d 684 [1…
948 N.Y.S.2d at 581 Excusability of failure to show event of default1 citing caseholding that plaintiffs were not “excused from complying with the ‘Event of Default’ provision because of the alleged impossibility of showing such an event
- Chatham Capital Holdings, Inc. v. Conru, 92 F.4th 107 (2d Cir. 2024).published(holding that plaintiffs were not “excused from complying with the ‘Event of Default’ provision because of the alleged impossibility of showing such an event)
At page 685 Interpreting default provisions and impossibility doctrine1 citing casethe event of a breach, and does not reference or contemplate actions by certificate holders to achieve that remedy. Plaintiffs’ argument that the “Event of…
- Matter of HBK Master Fund L.P. v. NewRez LLC, 2026 NY Slip Op 05146 (N.Y. App. Div. 1st Dep't 2026).publishedNo additional meaning should be implied that would add new terms to the PSA ( see Walnut Place LLC v Countrywide Home Loans, Inc., 96 AD3d 684, 685 [1st Dept 2012]).
Other citing cases
- Homeward Residential, Inc. v. Sand Canyon Corp., 298 F.R.D. 116 (S.D.N.Y. 2014).published
v.
Countrywide Home Loans, Inc., , Nominal
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered on or about March 29, 2012, which, in this action alleging breach of representations and warranties made by defendant sellers in pooling and service agreements (PSAs), granted defendants’ motion to dismiss the complaint, unanimously affirmed, with costs.
The court correctly held that plaintiff certificate holders’ action is barred by the “no-action” clause in the PSAs, which plainly limits certificate holders’ right to sue to an “Event of Default,” which, under section 7.01 of the PSAs, involves only the master servicer (cf. Sterling Fed. Bank, F.S.B. v DLJ Mtge. Capital, Inc., 2010 WL 3324705, *4, 2010 US Dist LEXIS 85771, *14 [ND Ill, Aug. 20, 2010, No. 09-C-6904]). Contrary to plaintiffs’ contention, section 2.03 of the PSAs does not render the no-action clause ambiguous, nor does it permit plaintiffs’ to bring this action. That section merely provides for a remedy in[*685] the event of a breach, and does not reference or contemplate actions by certificate holders to achieve that remedy. Plaintiffs’ argument that the “Event of Default” provision does not apply in this case is unavailing. Plaintiffs’ interpretation of the “no-action” clause would improperly excise the “Event of Default” provision and distort the plain meaning of the clause (see Bailey v Fish & Neave, 8 NY3d 523, 528 [2007]). Nor are plaintiffs excused from complying with the “Event of Default” provision because of the alleged impossibility of showing such an event. The “prevention/impossibility” doctrine, upon which plaintiffs’ argument relies, only applies, where, unlike here, nonperformance of a condition precedent was caused by the party insisting that the condition be satisfied (see Ellenberg Morgan Corp. v Hard Rock Cafe Assoc., 116 AD2d 266, 271 [1986]).
We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Saxe, J.P., Friedman, Renwick, DeGrasse and Richter, JJ. [Prior Case History; 35 Misc 3d 1207(A), 2012 NY Slip Op 50601(U).]