Doral Bank PR v. Federal Home Loan Mortgage

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:09-cv-01420-AJT-JFA Copies to all parties and the district court/agency. [998829300].. [10-2245]

Appeal: 10-2245

Document: 53

Date Filed: 04/10/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2245

DORAL BANK PR,
Plaintiff - Appellant,
v.
FEDERAL HOME LOAN MORTGAGE CORPORATION,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony J. Trenga,
District Judge. (1:09-cv-01420-AJT-JFA)

Argued:

December 8, 2011

Decided:

April 10, 2012

Before DUNCAN, DAVIS, and WYNN, Circuit Judges.

Affirmed by unpublished opinion. Judge Wynn wrote the majority
opinion, in which Judge Duncan concurred.
Judge Davis wrote a
dissenting opinion.

ARGUED: Charles Andrew Patrizia, PAUL HASTINGS LLP, Washington,
D.C., for Appellant.
William G. Ballaine, LANDMAN, CORSI,
BALLAINE & FORD, PC, New York, New York, for Appellee.
ON
BRIEF: Stephen B. Kinnaird, James E. Anklam, Igor V. Timofeyev,
PAUL HASTINGS LLP, Washington, D.C., for Appellant.
Kenton W.
Hambrick, Associate General Counsel, FEDERAL HOME LOAN MORTGAGE
CORPORATION, McLean, Virginia; Mark S. Landman, LANDMAN, CORSI,
BALLAINE & FORD, PC, New York, New York, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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WYNN, Circuit Judge:
Under an Interim Servicing Agreement (“ISA”) Doral Bank PR
(“Doral”) agreed to take over the servicing of a portfolio of
mortgages (“portfolio”) owned by the Federal Home Loan Mortgage
Corporation

(“Freddie

Mac”).

However,

because

the

existing

servicer of the portfolio brought court actions that restrained
Freddie Mac from transferring the portfolio to Doral, Freddie
Mac terminated the ISA.
alleging

that

Freddie

Thereafter, Doral brought this action
Mac

breached

the

ISA

by,

among

other

things, failing to pay to Doral, pursuant to a provision in the
ISA,

an

amount

equivalent

to

twenty-four

months

of

Doral’s

anticipated service compensation fees under the ISA.
Upon consideration of cross-motions for summary judgment,
the district court agreed with Freddie Mac that Doral’s damages
were limited to its actual damages in the amount of $124,588.
The district court therefore denied Doral’s claim for twentyfour
light

months
of

of

service

Doral’s

compensation

forecast

of

fees

evidence

on

reasoning
damages,

that,
the

in

ISA’s

provision for liquidated damages amounted to an unenforceable
penalty.

For the reasons below, we affirm.

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I.
Freddie Mac engages pre-approved lenders (“servicers”) to
service its portfolio of mortgages. 1

The servicer performs day-

to-day activities such as collecting payments from borrowers,
accounting for and remitting borrowers’ principal and interest
payments
escrows

to
to

Freddie
pay

Mac,

and

borrowers’

maintaining

taxes

and

tax

and

insurance.

insurance

Since

1986,

Doral, a commercial bank organized and operating under the laws
of

the

Commonwealth

of

Puerto

Rico,

has

been

a

qualified

servicer of Freddie Mac’s mortgages.
This

matter

arose

in

2008,

when

Freddie

Mac

began

implementing its plans to terminate its servicing relationship
with R&G Mortgage Corporation and R-G Premier Bank of Puerto
Rico (collectively, “R&G”).

On July 9, 2008, Freddie Mac and

Doral initiated negotiations for Doral to step in for R&G and
serve

as

Freddie

Mac’s

“interim

servicer”

on

a

portfolio

comprising approximately 46,000 Freddie Mac loans with a total
value of over $3.8 billion, which, up to that point in time, had
been serviced by R&G.

Accordingly, on July 11, 2008, Freddie

Mac officially informed R&G that it was being terminated as its
servicer of this portfolio.

On that same date, Freddie Mac and

1

Freddie Mac is a corporate instrumentality of the United
States chartered by Congress in 1970. See 12 U.S.C. §§ 1451-59.

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Doral entered into the ISA under the terms of which Doral agreed
to be its interim servicer of the same portfolio.
The terms of the ISA indicate two dates relevant to this
appeal.

First, in the opening paragraph of the ISA, the terms

indicate that the ISA was “effective” July 11, 2008.

J.A. 30.

Second, in Section 2.6 of the ISA, “Effective Date” is defined
as:
The effective date for commencement of the servicing
of the Mortgages (“Effective Date”) by the Interim
Servicer [Doral] shall be a date that Freddie Mac
determines and communicates to the Interim Servicer
that Interim Servicer will be servicing the Interim
Portfolio.
The Effective Date, when possible, will
correspond to a date when Interim Servicer obtains the
files for the Mortgages.
Id.

at

33.

Additionally,

the

ISA

defined

the

“Interim

Portfolio” as “[t]he portfolio of Freddie Mac loans that were
once serviced by a terminated servicer.”

Id.

at 30.

On July 11 and 12, 2008, a Freddie Mac team met with Doral
representatives.

The Freddie Mac team advised Doral to have

personnel ready on Monday, July 14, 2008 to go with Freddie Mac
personnel

to

R&G’s

offices

to

discuss

a

plan

to

initiate

a

transfer to Doral of the loans R&G was servicing for Freddie
Mac.

On July 14, 2008, Freddie Mac representatives, led by

Russell McKoy, Freddie Mac’s file recovery team leader, went to
R&G’s main offices to meet with R&G management.

Although a

Doral representative accompanied Freddie Mac employees, he was

5

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told

Document: 53

by

Date Filed: 04/10/2012

a Freddie

Mac

Page: 6 of 44

representative

Freddie Mac spoke with R&G.

to

wait

outside,

while

Consequently, Doral did not join

Freddie Mac and R&G for these discussions.
On July 15, 2008, Freddie Mac returned to R&G’s offices,
and during the course of the meeting, Doral representatives were
invited

to

join.

At

this

meeting,

R&G’s

representatives

indicated they would not be able to provide data on the R&G
loans

that

day

and

requested

that

Freddie

Mac

give

R&G

an

additional day to compile the servicing files and the mortgage
notes to give to Doral.
Later

that

day,

Freddie

Mac

was

served

an

ex

parte

temporary restraining order (“TRO”) issued by the U.S. District
Court for the District of Puerto Rico, prohibiting Freddie Mac
from

terminating

transferring
associate

the

its

servicing

portfolio. 2

general

counsel

agreement
That

spoke

by

same

with

R&G

day,

Freddie

Mac’s

with

Doral

telephone

and

a

from

attorney and a senior Doral executive, advising that all efforts
to transfer servicing were on hold because a TRO had been issued
against Freddie Mac.
notification,

which

On July 17, 2008, Freddie Mac sent formal
confirmed

that,

2

because

of

the

TRO,

the

On July 14, 2008, unbeknownst to Freddie Mac, R&G filed an
action under seal in the U.S. District Court for the District of
Puerto Rico to obtain the ex parte TRO. See R&G Mortg. Corp. v.
Fed. Home Loan Mortg. Corp., 584 F.3d 1, 6 (1st Cir. 2009).

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transferring of the Interim Portfolio from R&G to Doral was on
hold.
or

Notably, at no time were any R&G loan files, documents,

electronic

data

transferred

from

R&G

to

Doral

during

the

five-day period spanning from July 11 through July 15, 2008.
On

July

scheduled

July

22,

2008,

23

a

settlement

district

preliminary

settlement conference.
into

the

court

injunction

converted

hearing

into

the
a

Ultimately, Freddie Mac and R&G entered

agreement,

signed

by

the

district

court,

allowing R&G to continue to service Freddie Mac mortgages until
R&G could sell its servicing rights to a qualified third-party
buyer.

See R&G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584

F.3d 1, 6 (1st Cir. 2009).

Because of these events, Freddie Mac

never transferred the R&G portfolio to Doral.
On August 14, 2008, Doral wrote to R&G, informing R&G that
it

would

move

to

intervene

in

R&G’s

pending

action

Freddie Mac unless it was given a copy of the TRO.

against

R&G refused

this request via e-mail, explaining that paperwork in the case
was under seal.

“The e-mail advised that Doral’s [ISA] was not

directly at issue in the litigation but that, insofar as that
agreement pertained to R&G’s portfolio of Freddie Mac mortgages,
the TRO rendered Doral ‘unable to perform.’”
Doral attempted to intervene in the R&G action.

Id.

Thereafter,

Doral based its

attempted intervention on its alleged contractual rights under

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the ISA.

Date Filed: 04/10/2012

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Doral’s intervention motion was denied, and the denial

was affirmed on appeal.

Id. at 12-13.

In early August 2008, Freddie Mac asked Doral to provide it
with the costs incurred by Doral under the ISA; and on August 5,
2008,

Doral

transmitted

to

Freddie

figures, which totaled $124,588.

Mac

its

costs

incurred

On or about August 13, 2008,

Freddie Mac formally informed Doral that the R&G loans would not
be transferred to Doral for interim servicing under the ISA.
Thereafter, Freddie Mac offered to reimburse Doral for its costs
under

the

ISA

in

the

amount

of

$124,588,

as

well

as

an

additional sum equivalent to forty percent of Doral’s costs.
Doral, in turn, claimed that it was entitled to twenty-four
months

of

service

compensation

fees

under

the

ISA,

which

provided at Section 1.1 that:
Interim Servicer [Doral] agrees to provide servicing
for such Interim Portfolio until such time as Freddie
Mac determines to transfer servicing of such Interim
Portfolio.
Unless
the
Interim
Portfolio
is
transferred pursuant to court order or the Interim
Servicers eleibility [sic] to sell mortgages to or
service mortgages for Freddie Mac is suspended or
terminated pursuant to section 1.3 [of the ISA], the
length of interim servicing will not be less than 24
months.
If the length of interim servicing is less
than 24 months, then Freddie Mac will pay to Interim
Servicer
the
total
of
24
months
of
servicing
compensation fee minus the number of months already
billed by Interim Servicer. Freddie Mac shall not be
responsible for this fee if it is ordered by court to
transfer the Interim Portfolio from the Interim
Servicer before the expiration of 24 months or if
Freddie Mac terminates or suspends the eligibility of

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the Interim Servicer to sell mortgages to or service
mortgages for Freddie Mac pursuant to section 1.3.
J.A. 30.

In response, Freddie Mac rejected Doral’s claim for

damages under Section 1.1, arguing that the “Effective Date”
provision

under

commencement
occurred.

Section

of

the

2.6—i.e.,

servicing

Specifically,

the

of

Freddie

“effective

Mac

for

Mortgages”—had

the

date

not

maintained

that

the

obligations and liabilities in Section 1.1 were not triggered
because Freddie Mac never “determine[d] and communicate[d] to
[Doral]

that

[Doral]

w[ould]

be

Portfolio,” as required by Section 2.6.
On

December

29,

2009,

Doral

servicing

the

Interim

J.A. 33.

brought

an

action

in

the

Eastern District of Virginia alleging that Freddie Mac either
partially or totally breached the ISA “by failing to pay Doral
the servicing compensation fees due to Doral” for twenty-four
months.
rights

Doral also asked for a declaration of the respective
of

Doral

and

Freddie

Mac.

J.A.

27.

Freddie

Mac

responded by moving to dismiss Doral’s complaint, pursuant to
Federal Rule of Civil Procedure 12(b)(6), for failure to state a
claim upon which relief could be granted.

The district court

denied Freddie Mac’s motion, concluding that it was unable to
determine the parties’ contractual intent from the face of the
ISA,

that

transaction

discovery
was

regarding

appropriate,

and

9

the
that

circumstances
custom

and

of

the

practice

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evidence

might

Date Filed: 04/10/2012

be

relevant

to

Page: 10 of 44

understanding

the

parties’

obligations under the ISA.
Following

discovery,

Doral

filed

an

amended

complaint,

which left unchanged its contractual claims but amended certain
factual allegations.

After Freddie Mac answered the amended

complaint, the parties filed cross-motions for summary judgment
on

both

liability

and

damages.

The

district

court

granted

summary judgment in favor of Doral as to its liability claims
for breach of contract and as to its damage claims to the extent
of

$124,588,

(including,

but

denied

specifically,

“on hold” costs).

claims

as

servicing

to

fees,

all

other

ancillary

damages

fees,

and

Freddie Mac’s motion for summary judgment was

denied as to liability but granted as to all damages other than
the amount of $124,588.
was dismissed.

Doral’s claim for declaratory relief

Doral appealed.

II.
This Court reviews the district court’s decision granting
summary judgment de novo.

See Cont’l Airlines, Inc. v. United

Airlines, Inc., 277 F.3d 499, 508 (4th Cir. 2002).

Summary

judgment is appropriate if “the pleadings, depositions, answers
to

interrogatories,

and

admissions

on

file,

together

with

affidavits, if any, show that there is no genuine issue as to
any

material

fact

and

that

the
10

moving

party

is

entitled

to

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Date Filed: 04/10/2012

judgment as a matter of law.”

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Fed. R. Civ. P. Rule 56(c).

Summary judgment is appropriate only if there are no material
facts in dispute and the moving party is entitled to judgment as
a matter of law.

See Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986) (citing Fed. R. Civ. P. 56(c)).
Doral argues on appeal that the district court erred by
misreading ISA Section 2.6 to require a separate communication
of an “Effective Date” and by failing to find—if such a separate
communication

was

We disagree.

As further explained below, we conclude that: (1)

the

ISA

required—that

unambiguously

“Effective

Date”

such

creates—as

under

Section

communication

the
2.6

district
for

was

court

the

given.

found—an

purposes

of

commencement of the interim servicing rights and obligations of
Doral and Freddie Mac, which is separate and distinct from the
ISA’s

“effective

date”

for

other

contractual

obligations,

including, for example, rights and obligations during the preservicing period (e.g., Freddie Mac’s obligations to reimburse
Doral

for

actual

expenses

incurred

during

this

pre-servicing

period under Section 2.5(c) of the ISA); and (2) irrespective of
whether Freddie Mac “determined and communicated” to Doral by
words,

acts,

or

deeds

that

the

interim

servicing

period

had

commenced under Section 2.6—and thus irrespective of whether the
Effective

Date

provision

was

triggered—we

agree

with

the

district court that Doral’s forecast of damages under Section
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1.1, which is over 87 times greater than Doral’s actual damages,
fails

to

provide

a

reasonable

forecast

of

Doral’s

loss.

Accordingly, we conclude, as the district court concluded, that
the liquidated damages established by Section 1.1 are properly
characterized as an unenforceable penalty.

A.
Initially, Doral argues that the “Effective Date” provision
under Section 2.6 has no meaning which is separate and distinct
from the July 11, 2008 effective date clause on the face of the
ISA.

We disagree.
“If the terms of the contract are clear and unambiguous,

then

we

must

afford

those

terms

their

plain

and

ordinary

meaning; however, if the terms are vague or ambiguous, then we
may consider extrinsic evidence to interpret those provisions.” 3
Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846,

3

ISA Section 2.26 provides that the ISA is “governed by and
construed in accordance with the law of the United States.
Insofar as there may be no applicable precedent, then Virginia
laws are deemed reflective of the federal law.”
J.A. 40.
Neither the validity nor the interpretation of the ISA’s choice
of law provision is at issue on appeal.
We note that, under
federal common law, contracts are interpreted under “standard
principles of contract law-more precisely, the core principles
of the common law of contract that are in force in most states.”
S & O Liquidating P’ship v. C.I.R., 291 F.3d 454, 459 (7th Cir.
2002) (quoting United States v. Nat. Steel Corp., 75 F.3d 1146,
1150 (7th Cir. 1996)).

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Page: 13 of 44

850 (4th Cir. 2000) (citing Shoup v. Shoup, 31 Va. App. 621, 525
S.E.2d 61, 63-64 (2000)).
The first step for a court asked to grant summary
judgment based on a contract’s interpretation is,
therefore, to determine whether, as a matter of law,
the contract is ambiguous or unambiguous on its face.
If a court properly determines that the contract is
unambiguous on the dispositive issue, it may then
properly interpret the contract as a matter of law and
grant summary judgment because no interpretive facts
are in genuine issue.
Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1126 (4th Cir.
1993) (citation omitted).

An unambiguous contract should be

construed by the Court as a matter of law, without reference to
extrinsic evidence.
Inc.,

955

F.2d

See World-Wide Rights Ltd. P’ship v. Combe

242,

245

(4th

Cir.

1992).

The

proper

interpretation of a clear and unambiguous contract is that which
assigns the plain and ordinary meaning to the contract terms.
See Providence Square Assocs., 211 F.3d at 850.
Under

Section

commencement

of

the

2.6

of

the

servicing

ISA,
of

the

“effective

Mortgages

date

(Effective

would be determined and communicated by Freddie Mac.

for

Date)”

J.A. 33.

Although the ISA was “effective” July 11, 2008, the date on
which it was signed, ISA Section 2.6 specifically provides for
the establishment of a separate “Effective Date” on which Doral
would actually commence servicing the R&G loans for Freddie Mac
and begin to earn servicing compensation fees.

As the district

court pointed out in its Memorandum Opinion, “the role that the
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‘effective date’ under Section 2.6 plays with respect to certain
rights, duties and obligations on the part of Doral, apart from
Section

1.1,

makes

clear

that

the

parties

contemplated

the

‘effective date’ as a date communicated to Doral as the start of
its

obligations

with

portfolio.”

with

to

the

servicing

of

the

loan

J.A. 1532

We

respect

agree

unambiguous,

and

the

that

district

the

only

court

that

reasonable

Section

2.6

is

interpretation

of

Section 2.6–and the ISA as a whole—is that the parties intended
the

“Effective

Date”

to

“be

a

date

that

Freddie

Mac

would

communicate to Doral as the date when Doral would begin its
servicing obligations.”

Id.

It was “not just the date on which

Freddie Mac [told] Doral that it will at some point be the
interim servicer.”

Id.

Because we find that the language of

the ISA and Section 2.6 in particular, is clear and unambiguous,
we must disregard extrinsic evidence.

See Providence Square

Assocs., 211 F.3d at 850.

B.
Next, Doral contends that, even if this Court upholds the
district court’s interpretation that a separate “Effective Date”
communication

from

Freddie

Mac

to

Doral

was

required

under

Section 2.6 of the ISA, this Court should nevertheless conclude
that

Freddie

Mac

did

in

fact
14

determine

and

communicate

the

Appeal: 10-2245

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Effective

Date

to

Date Filed: 04/10/2012

Doral.

communication

triggered

under,

other

among

Doral

the

Page: 15 of 44

further

parties’

provisions,

contends

rights

Section

1.1,

and

that

such

obligations

which

includes

Freddie Mac’s obligation to pay Doral an amount equivalent to
twenty-four months of service compensation fees in the event of
early termination.

Doral argues on appeal that the district

court’s finding that there were genuine issues of material fact
“concerning

whether

Freddie

Mac,

through

word

or

deed,

‘communicated’ a date that would serve as the ‘Effective Date’
for the purposes of [ISA Section] 2.6,” J.A. 1532-33, cannot be
reconciled with Freddie Mac’s actions and statements after July
11, 2008, when the ISA became effective. 4

We disagree.

Indeed, as explained below, the district court’s relevant
conclusion of law—namely, that Freddie Mac’s potential liability
to

pay

liquidated

damages

to

Doral

under

Section

1.1

is

an

unenforceable penalty—may be reconciled both with circumstances

4

According
to
Doral,
Freddie
Mac
determined
and
communicated the Effective Date for the purposes of Section 1.1:
(1) as early as July 11, 2008, when the ISA was executed; or (2)
no later than July 14, 2008, when Doral was told to appear with
Freddie Mac at the offices of R&G to begin the process of
transferring the portfolio; or (3) in no event later than July
15, 2008, when Doral continued to meet with Freddie Mac and plan
for the transfer of the portfolio from R&G to Doral.
As
explained, resolution of Doral’s factual allegations is not
material to the legal conclusion of the district court, as well
as our holding today, that the liquidated damages established by
Section 1.1 are an unenforceable penalty.

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Page: 16 of 44

where Freddie Mac determined and communicated the Effective Date
to Doral, as well as with circumstances where no such Effective
Date was determined or communicated by Freddie Mac.

Given that

the district court concluded, as we conclude today, that the
liquidated damages established by Section 1.1 are, as a matter
of

law,

an

unenforceable

penalty,

it

follows

that

whether

Freddie Mac did, as a matter of fact, determine and communicate
the

Effective

Date

to

Doral

is

not

material

to

either

the

district court’s legal conclusions and our holding today.
Thus, regardless of Doral’s contentions, there is no need
to address the merits of Doral’s arguments of whether Freddie
Mac communicated to Doral an Effective Date.
arguendo—as

the

district

court

assumed—that

Even assuming,
the

twenty-four

month servicing fee provision of Section 1.1 was triggered, we
find—as the district court found—that, as a matter of law, the
provision would amount to an unenforceable penalty.

1.
As a threshold matter, Doral contends the district court
erred in concluding that Section 1.1 of the ISA is a liquidated
damage

provision,

which

is

subject,

under

appropriate

circumstances, to characterization as an unenforceable penalty.
Instead, Doral asks this Court to construe Section 1.1 as a

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provision

Date Filed: 04/10/2012

establishing,

performance contract.”
“[T]he
performance,

primary
and

among

things,

an

“alternative

We decline to do so. 5

objective

it

other

Page: 17 of 44

thus

of

an

alternative

looks

to

a

contract

continuation

of

is
the

relationship between the parties, rather than its termination,
whereas a liquidated damages provision provides for an agreed
result

to

follow

from

nonperformance.”

24

Williston

on

Contracts § 65:7 (4th ed.); see also In the Matter of Cmty. Med.
Ctr., 623 F.2d 864, 867 (3rd Cir. 1980) (explaining that, in an
alternative

performance

contract,

“either

one

of

two

performances may be given by the promisor and received by the
promisee as the agreed exchange for the return performance by
the promisee”).
5

The dissent’s characterization of Section 1.1 as an
alternative performance provision that must be enforced if the
“Effective Date” was communicated to Doral is misplaced. To the
extent that Freddie Mac did communicate the “Effective Date,”
under the ISA’s express terms, Doral is specifically precluded
from recovering 24 months of damages.
Section 1.1 provides:
“Freddie Mac shall not be responsible for this [24-month damage]
fee if [Freddie Mac] is ordered by [a] court to transfer the
Interim Portfolio from [Doral] before the expiration of 24
months.” Here, of course, Freddie Mac’s decision was not based
on an economic calculus—as the dissent suggests—but rather a TRO
(issued by the United States District Court for the District of
Puerto Rico) prohibiting Freddie Mac from terminating its
servicing agreement with R&G and transferring the portfolio to
Doral. See R&G Mortg. Corp., 584 F.3d at 6. As a consequence,
the dissent’s characterization of Section 1.1 as an alternative
performance
provision
does
not
change
the
outcome
and,
therefore, this matter was properly resolved by the district
court on summary judgment.

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Here, Section 1.1 of the ISA cannot reasonably be construed
as

a

provision

relationship.”

that

“looks

to

a

continuation

of

the

By its terms, this provision would apply only if

Freddie

Mac

were

Interim

to

Portfolio

terminate

away

the

from

ISA

Doral

by

transferring

the

after

commencement

of

servicing but before it has had an opportunity to service the
loans for the full twenty-four month period.

Rather than an

alternative performance provision, we agree with the district
court’s finding that Section 1.1 plainly reflects the parties’
advance agreement to a liquidated sum that Freddie Mac would owe
to

Doral,

Doral’s

under

certain

servicing

twenty-four

month

of

conditions,

the

term

for

portfolio

under

the

its

before
ISA.

termination

expiration
See

of

Williston

of
a
on

Contracts § 65:7 (“[O]ne of the principal characteristics of a
stipulated
advance

damages

by

the

provision
parties

as

is
a

that

it

remedy

is
for

agreed

upon

breach.

in

This

characteristic provides the basis on which a liquidated damages
provision

is

distinguishable

from

provisions

for

alternative

performance of a contract, which are otherwise similar.”) 6

6

Doral also asserts that Section 1.1 is simply a
“contractual option.” According to Doral, the ISA thus provides
for an option allowing Freddie Mac’s early termination of the
contract without breach subject to its payment of compensation
to Doral pursuant to Section 1.1. The district court, however,
declined to interpret Section 1.1 as a contractual option.
We
(Continued)
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2.
Next,

in

the

alternative,

Doral

asserts

that

even

if

Section 1.1 is a liquidated damages clause, the district court
erred by finding this provision to be an unenforceable penalty.
Doral argues that in granting summary judgment to Freddie Mac,
the district court erred by requiring Doral to present detailed
support for its damage estimates.

We disagree.

We review the district court’s “determination de novo as to
whether

a

contractual

unconscionable,

or

provision

void

on

is

an

unenforceable

account

of

public

penalty,

policy.”

NML

Capital v. Republic of Argentina, 621 F.3d 230, 236 (2d. Cir.
2010) (internal citations omitted); see also Midwest Oilseeds,
Inc. v. Limagrain Genetics Corp., 387 F.3d 705, 715 (8th Cir.
2004) (“[T]he question whether a contract provision is a valid
liquidated damages provision or an unenforceable penalty is a
question of law for the court.” (citation omitted)); Colorado
Interstate Corp. v. CIT Group/Equip. Finan., Inc., 993 F.2d 743,
751

(10th

Cir.

1993)

(“[T]he

determination

of

whether

a

contractual provision is an unenforceable penalty is a matter of
law.” (citation omitted)); see also Scarborough v. Ridgeway, 726
F.2d 132, 135 (4th Cir. 1984) (“[I]nterpretation of a written

agree, as the language of Section 1.1 does not support Doral’s
contention.

19

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contract

is

a

Date Filed: 04/10/2012

question

of

law

Page: 20 of 44

subject

to

de

novo

appellate

review.” (citation omitted)). 7
“To recover damages in any case, a plaintiff must prove
with

reasonable

certainty

the

amount

cause from which they resulted.”

of

his

damages

and

the

Parkridge Phase Two Assocs. v.

Lockheed Martin Corp., 172 F.3d 44, 1999 WL 44173, *2 (4th Cir.
1999) (unpublished) (citing Hale v. Fawcett, 214 Va. 583, 202
S.E.2d 923, 925 (Va. 1974)).
Damages for breach by either party may be liquidated
in the agreement but only at an amount that is
reasonable in the light of the anticipated or actual
loss caused by the breach and the difficulties of
proof of loss.
A term fixing unreasonably large
liquidated damages is unenforceable on grounds of
public policy as a penalty.
Restatement

(Second)

of

Contracts

§

356. 8

If

a

liquidated

damages provision is intended to punish a party for breach, the

7

Virginia law also treats the question of whether a
contractual provision is an unenforceable penalty as a matter of
law. See Teachers’ Ret. Sys. v. Am. Title Guar. Corp., 1996 WL
1065475, *2 (Va. Cir. Ct. 1996) (“Because this particular clause
calls for damages in excess of Plaintiff's actual damages, I
find that, as a matter of law, it constitutes an unenforceable
penalty.”); cf. Perez v. Capital One Bank, 522 S.E.2d 874, 87576 (Va. 1999) (“[W]hen the damages caused by the breach are
prone to definite measurement or when the stipulated amount
would grossly exceed actual damages, courts of law usually
construe such a provision as an unenforceable penalty.”
(citation omitted)).
8

Federal courts use the Restatement of Contracts in
determining federal common law of contracts. In re Peanut Crop
Ins. Litig., 524 F.3d 458, 470 (4th Cir. 2008) (“The Restatement
of Contracts reflects many of the contract principles of federal
(Continued)
20

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provision is unenforceable.

Page: 21 of 44

Id. at § 356, cmt. a; see also

Comstock Potomac Yard, L.C. v. Balfour Beatty Const., LLC, 694
F. Supp. 2d 468, 484 (E.D.Va. 2010) (“Under Virginia law, a
clause for liquidated damages ‘will be construed as a penalty
when

the

susceptible

damage
of

resulting

definite

from

a

measurement,

breach
or

of

where

contract

the

is

stipulated

amount would be grossly in excess of actual damages.’”

(quoting

Brooks v. Bankson, 248 Va. 197, 208, 445 S.E.2d 473 (1994)); see
also WRH Mortg., Inc. v. S.A.S. Assocs., 214 F.3d 528, 534 (4th
Cir.

2000)

(“[C]ontract

provisions

calling

for

breach

of

contract damages grossly in excess of actual damages generally
are

unenforceable

as

penalties

or

forfeitures.”

(citation

omitted)).
Here, Doral’s forecast of evidence of its damages pursuant
to Section 1.1 consisted of a model that it created to calculate
its

anticipated

servicing

compensation

fees. 9

The

model

multiplied the per-loan servicing fee, as specified in Exhibit C
to the ISA, by the number of loans in the portfolio, with an

common law.” (quoting Long Island Sav. Bank,
States, 503 F.3d 1234, 1245 (Fed. Cir. 2007))).
9

FSB

v.

United

During negotiations with Freddie Mac, Doral instructed its
then-Senior Vice President of Investor Relations, Roberto Reyna,
to create a model projecting revenue, expenses, and profits
associated with servicing the Interim Portfolio for two years.

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assumption of an annual thirteen percent decrease in the number
of loans in the portfolio from year one to year two.

Doral

asserts that the sum of this formula, $10,876,954, encompasses
the agreed damages under Section 1.1 for twenty-four months.
Bearing in mind that Doral’s actual damages, as calculated by
Doral, total a mere $124,588, Doral’s model mandates damages
that are 87.3 times greater than Doral’s own estimate of its
actual damages.

Notably, only five days elapsed between the

execution of the ISA and the date of a TRO that prohibited
Freddie Mac from transferring the portfolio to Doral.

Moreover,

given that the servicing had not yet begun, the Section 1.1
penalties were in their most extreme form (e.g., as compared to
a hypothetical termination of the ISA after twenty-one months of
servicing, which under Section 1.1 would have required Freddie
Mac to pay Doral for only three months of servicing fees).
Furthermore, it appears from the record that Doral seeks an
award

without

associated

a

with

reduction

servicing

based

the

loan

on

its

estimated

portfolio.

The

costs

district

court pointed out that “incurred but unrecovered out of pocket
costs can be determined and in fact, Doral makes such a claim in
the amount of $124,588.”

J.A. 1538.

We agree with the district

court that Doral’s forecast of its damages under Section 1.1,
which

would

award

Doral

twenty-four

22

months

of

servicing

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compensation fees without any reduction for Doral’s costs and
expenses, amounts to an unenforceable penalty.
Thus, even if Section 1.1 is applied, and it is assumed
that the “Effective Date” in Section 2.6 was triggered by the
acts

and

deeds

of

Freddie

Mac,

Doral’s

forecast

of

damages

pursuant to Doral’s own model posits that Doral would reap a
windfall exceeding $10 million in damages without any deduction
for

expenses. 10

Any

such

recovery

would

be

grossly

out

of

proportion to Doral’s actual incurred costs of $124,588, and far
in excess of what it might have reasonably expected to earn if
it had actually incurred the significant cost of servicing more
than 46,000 loans for a period of twenty-four months.

In sum,

Doral has failed to present a reasonable forecast of the loss
caused by the breach.

See Kraft Foods N. Am., Inc. v. Banner

Eng’g Sales, Inc., 446 F. Supp. 2d 551, 573 (E.D.Va. 2006).

10

In addition to expenses of $124,588 that Doral actually
incurred in preparing to service the loan portfolio, it contends
that it is entitled to service compensation fees of $10,876,954
for the twenty-four month period under the ISA, ancillary fees
it would have earned from late and back check fees of $3,776,376
and the expense of remaining on hold after the TRO per Freddie
Mac’s request.
Similar to its holding that the model was
inadequate, the district court found Doral’s figures with
regards to these claims to be speculative and unsupported by the
facts in the record.

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III.
For the foregoing reasons, we affirm summary judgment as to
Doral’s breach of contract claim and damages entered in favor of
Doral in the amount of $124,588.
AFFIRMED

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DAVIS, Circuit Judge, dissenting:
The
Servicing

majority

holds

Agreement

that

(“ISA”)

§

1.1

of

constitutes

the
a

parties’

Interim

liquidated

damages

clause, and that the payment Freddie Mac agreed to make pursuant
to that clause is an unenforceable penalty. My examination of
the record persuades me, however, that Freddie Mac could satisfy
its obligations under the ISA with any of several alternative
means of performance. Accordingly, when viewed in light of the
full scope of the parties’ interests and incentives, § 1.1 is
enforceable. Because § 1.1 is enforceable and because (as the
district court concluded) there exists a genuine dispute as to
whether Freddie Mac “determine[d] and communicate[d]” to Doral
that Doral would be servicing the portfolio, I would vacate the
judgment

and

remand

the

case

for

a

trial

on

that

question.

Respectfully, therefore, I dissent.

I.
I

begin

by

briefly

describing

the

context

in

which

the

parties entered negotiations with each other. Sometime prior to
2008,

Freddie

Corporation

Mac

contracted

(together

with

with

R&G

affiliated

Financial

entities,

Mortgage

“R&G”)

to

service approximately 46,000 mortgage loans with a face value of
$3.8 billion, secured by property located mostly in Puerto Rico.
Pursuant to that agreement, R&G agreed to assume what is known
25

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as the portfolio’s “recourse obligation”: in the event any of
the loans in the portfolio were to default (or if some other
“triggering event” were to occur), R&G would absorb the loss by
repurchasing the delinquent loans and repaying Freddie Mac the
associated value. In 2008, Freddie Mac itself calculated the
value of the recourse obligation as $106 million; at any given
time

the

estimated

entity

assuming

liability

of

the
$106

recourse

obligation

million

on

its

carried

books.

an

R&G’s

compensation for servicing the portfolio’s loans and bearing the
recourse obligation was set at a percentage of the borrower’s
monthly interest payments.
In mid-2008, with the nationwide mortgage crisis coming to
a head, R&G faced serious financial difficulties. Freddie Mac,
as the owner of the debt, worried that an R&G collapse would
create two problems: (1) the portfolio would be left without a
servicer

and

(2)

the

$106

million

recourse

obligation

would

revert to Freddie Mac. To ensure continuity in the servicing of
the portfolio and prevent the recourse obligation from reverting
to Freddie Mac, Freddie Mac began working to terminate R&G as
servicer

of

the

portfolio

and

to

find

another

qualified

servicer. One of the banks Freddie Mac approached to take R&G’s
place was Doral, a large bank with numerous branches in Puerto
Rico.

26

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Doral found the opportunity worth pursuing: as servicer, it
would

not

only

substantial
to

sell

collect

servicing

“cross-selling”

other

banking

fees

but

opportunities,

services

to

the

also

i.e.,
huge

would

have

opportunities

number

of

new

customers who would pass through Doral’s bank branches to make
their monthly payments. (Apparently, borrowers in Puerto Rico
customarily make mortgage payments in person at banks, at least
at rates substantially higher than in the mainland U.S.) Doral
was concerned, however, that an increasing number of loans in
the

portfolio

would

default,

and

so

recourse

loomed

as

a

particularly unsavory risk. Doral determined that the risk of
assuming the recourse obligation would only be worthwhile if
Freddie Mac would allow Doral to collect a greater percentage of
the portfolio’s revenue than apparently is typical.
Freddie

Mac

thought

the

premium

Doral

demanded

was

too

high, but it desperately needed a servicer, and Doral -- a large
financial institution with a substantial presence in Puerto Rico
and over ten years of experience servicing Freddie Mac mortgages
-- fit the bill. Thus, the parties agreed that Doral would be an
“interim” servicer: it would service the loans but would not
carry

the

recourse

obligation.

The

recourse

obligation,

meanwhile, would revert to Freddie Mac. But Freddie Mac was also
wary of the risk that more and more borrowers would default,
forcing

Freddie

Mac

to

swallow
27

losses

potentially

over

$100

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million. Thus, Freddie Mac, in exchange for allowing Doral to
forgo the recourse obligation, demanded the ability to transfer
the portfolio to a “permanent” servicer, i.e., one willing to
accept the recourse obligation, at any time, so long as it gave
Doral 30 days’ notice.
Doral was willing to accept Freddie Mac’s condition, but
not without imposing its own condition. Freddie Mac was asking
Doral to rapidly ramp up its operations to service a huge number
of loans, all in a matter of days. Doral was incurring far too
many

up-front

costs

to

give

Freddie

Mac

carte

blanche

to

terminate the ISA at will. If Freddie Mac were to terminate the
ISA quickly, Doral’s up-front expenditures would be for naught.
As Doral’s General Counsel explained, Doral “did not want to be
a stopgap,” allowing Freddie Mac to “shop around the portfolio”
while Doral did “all the setup,” only to have to “fire a lot of
people” once Freddie Mac found a permanent servicer. J.A. 376.
An early termination by Freddie Mac would also prevent Doral
from “cross-selling” its other banking services -- a benefit
that was crucial to making the ISA worthwhile for Doral in the
first place.
Thus, the parties’ risk-allocation calculus came down to
the

following:

transfer

the

Freddie

portfolio

Mac
to

wanted
a

to

permanent

retain

the

servicer

as

right

to

soon

as

possible, in order to minimize the time during which it would
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carry the recourse obligation. Accordingly, it proposed a monthto-month arrangement. Doral wanted to service the portfolio as
long as possible in order to maximize its servicing fees and
cross-selling

opportunities.

The

question

was

how

long

Doral

would need to service the portfolio in order to make entering
the ISA economically worthwhile.
Doral instructed its then-Senior Vice President of Investor
Relations, Roberto Reyna, to create a model projecting revenue
and

expenses

associated

with

servicing

the

portfolio.

Reyna

determined that only with a guaranteed two-year servicing term
would

Freddie

Doral.

Doral

negotiable

Mac’s
saw

proposal

the

requirement

be

two-year
of

economically
term

entering

as

the

an

ISA.

advantageous

to

essential,

non-

A

deal

two-year

would give Doral time to recoup the costs it would expend to
service

the

loan,

and,

perhaps

even

more

important,

give

it

sufficient time to cross-sell its other banking services and
thereby potentially make a profit. Doral estimated that over the
course of the 24-month interim servicing term it would receive
$10,876,954 in service compensation fees. It does not appear to
have estimated the revenue it would generate from cross-selling
to the portfolio’s borrowers.
The compromise the parties reached was memorialized in §
1.1. Doral agreed to service the portfolio, and be compensated
with a per-month, per-mortgage fee, “until such time as Freddie
29

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Mac determines to transfer servicing” to a permanent servicer.
J.A.

30,

45.

The

parties

also

agreed

that,

unless

(a)

“the

Interim Portfolio is transferred pursuant to a court order,” or
(b)

Doral’s

eligibility

to

sell

or

service

mortgages

were

suspended or terminated, “the length of the interim servicing
will not be less than 24 months.” J.A. 30. In the crucial term
at

issue,

which

I

will

call

the

“early

transfer

provision,”

Freddie Mac agreed that, “[i]f the length of interim servicing
is less than 24 months, then Freddie Mac will pay to Interim
Servicer the total of 24 months of servicing compensation fee
minus the number of months already billed by Interim Servicer.”
Id.
This carefully negotiated early-transfer provision struck a
compromise

between

Doral’s

and

Freddie

Mac’s

concerns:

it

allowed Freddie Mac the flexibility to transfer the portfolio,
at any time, to a permanent servicer (and thereby take the $106
million

recourse

obligation

liability

off

its

books),

while

ensuring that Doral would either (1) have 24 months to service
the loans, collect servicing fees, and cross-sell other banking
services, or (2) lose the cross-selling opportunities but still
collect the servicing fees it would have received.
None

of

the

early-transfer

language

would

be

relevant,

however, if the ISA never went into effect. According to § 2.6,

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the “Effective Date” for “commencement of the servicing of the
Mortgages” was agreed to be the following:
a date that Freddie Mac determines and communicates to
the Interim Servicer that Interim Servicer will be
servicing the Interim Portfolio. The Effective Date,
when possible, will correspond to a date when Interim
Servicer obtains the files for the Mortgages.
J.A. 33 (emphases added). Once the requisite “determin[ation]
and communicat[ion]” were made, Doral’s obligation to service
the

loans

would

commence,

along

with

its

right

to

collect

servicing fees.

II.
The primary question in this appeal is whether § 1.1 of the
ISA

is

(1)

an

alternative-performance

provision,

(2)

an

enforceable liquidated damages clause, or (3) an unenforceable
penalty. In holding that § 1.1 is an unenforceable penalty, the
majority,

in

my

view,

oversteps

its

role

and

undermines

a

carefully negotiated compromise among sophisticated parties. I
would

hold

that

§

1.1

is

enforceable

as

an

alternative-

performance provision. The second question presented, which the
majority does not reach (and as to which Freddie Mac has not
filed a cross-appeal), is whether a reasonable jury could find
that Freddie Mac “determine[d] and communicate[d]” to Doral that
Doral “will be servicing the Interim Portfolio.”

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A.
The

first

component

of

whether

§

1.1

is

enforceable

is

whether it is an alternative-performance clause or a liquidated
damages clause. An alternative-performance provision is one in
which “either one of the two alternative performances is to be
given by the promisor and received by the promisee as the agreed
exchange.”

11-58

Corbin

on

Contracts

§

58:18.

A

liquidated

damages clause is one that fixes an amount of damages to be paid
in the event of “breach.” Restatement (Second) of Contracts §
356

(1981).

If

ISA

§

1.1

is

an

alternative

performance

provision, it is enforceable according to its terms. 24 Richard
A. Lord, Williston on Contracts § 65:7 (4th ed. 2002). If it is
a liquidated damages provision, it still is enforceable, but
only if the liquidated amount is “reasonable in the light of the
anticipated

or

difficulties

of

actual
proof

loss
of

caused
loss.”

by

the

breach

Restatement

and

(Second)

the
of

Contracts § 356.
To determine whether a contract provides for alternative
performances or liquidated damages, we look to “the substance of
the agreement.” Id. § 356, cmt. c. As the majority correctly
notes,

one

distinction

liquidated

damages

continuation
than

its

of

the

is

between

alternative

whether

the

relationship

termination,”

or

32

provision

between

instead

performances

the

serves

“looks
parties,

as

a

to

and
a

rather

stipulated

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calculation of damages by the parties “as a remedy for breach.”
Williston

§

65:7

(emphasis

added);

see

also

11-58

Joseph

M.

Perillo ed., Corbin on Contracts § 58.1 (a liquidated damages
provision “determine[s] in advance what damages will be assessed
in the event of a breach”). In addition, crucial factors in
assessing the distinction between these two types of contractual
provisions include “[1] whether the promisor had a ‘true option’
on which alternative to perform, [2] whether the money payment
is equivalent to performance of the option, and [3] the relative
values of the performances.” 14 Williston on Contracts § 42:10;
see also Restatement (Second) of Contracts § 356 cmt. c (“In
determining

whether

a

contract

performances,

the

relative

decisive.”).

For

a

value

contractual

is
of

one

the

for

alternative

alternatives

provision

to

be

may
one

be
for

alternative performance, at the time the parties entered the
contract there must have been “a reasonable relationship between
the alternatives.” 14 Williston on Contracts § 42:10. That is,
the promisor must have “conceived [it to be] possible that at
the time fixed for performance, either alternative might prove
the more desirable.” Id.
The fact that “one of the alternative performances is the
payment

of

transform

a

an

liquidated

sum

of

money”

alternative-performance

does

clause

not

into

necessarily
a

liquidated

damages clause. 11-58 Corbin on Contracts § 58:18; see also 24
33

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Williston on Contracts § 65:7, at 263 (The fact that “one of the
alternative performances is the payment of a fixed sum of money”
does

not

“alone

.

.

.

make

the

contract

one

for

single

performance with a liquidated damage provision for a breach.”).
Indeed,

“most

instances

of

alternative

contracts

involve

the

payment of money as an alternative to actual conduct in carrying
out the terms of an agreement.” Matter of Cmty. Med. Ctr., 623
F.2d

864,

867

(3d

Cir.

1980).

An

alternative

performance

provision will not be enforced, however, if it is a “disguised”
penalty. Restatement (Second) of Contracts § 356 cmt. c.
B.
Doral

argues

§

1.1

is

a

proper

alternative-performance

clause because it allowed Freddie Mac to perform its obligations
under the ISA in either of two ways: (1) keeping the portfolio
with Doral for the entire 24-month period, at the cost of having
to bear the potential $106 million default risk for the entire
24 months, while compensating Doral with monthly servicing fees,
or (2) transferring the portfolio to a permanent servicer at
some point during the 24 months, relieving Freddie Mac of the
$106

million

default

risk,

and

compensating

Doral

with

the

equivalent of the servicing fees Doral would have earned during
the remainder of the 24 months. I agree. In my view, Freddie Mac
had a true option on which alternative to perform, as the values
of the two options were reasonably equivalent and either option
34

Appeal: 10-2245

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Date Filed: 04/10/2012

Page: 35 of 44

could have proven to be the more desirable one depending on
extrinsic factors. 11
There is no dispute that if Freddie Mac were to transfer
the portfolio early (i.e., if it chose the second option), it
11

The majority declines to explain why it believes Freddie
Mac did not have a true choice between two plausibly desirable
options. Instead, my good colleagues apparently believe that,
assuming § 1.1 is enforceable, the express exception in § 1.1,
which would apply if Freddie Mac had been “ordered by court to
transfer the Interim Portfolio from the Interim Servicer before
the expiration of 24 months,” J.A. 30, excused Freddie Mac from
making the early-transfer payment. The majority asserts that “of
course” the Puerto Rico court’s temporary restraining order
constitutes such a court order. Maj. Op. at 17 n.5. But Freddie
Mac does not argue on appeal that the “ordered-by-court”
exception excused its performance under § 1.1. Rather, its
argument related to § 1.1 is entirely and solely that (1) § 1.1
does not apply because there was no “determin[ation]” and
“communicat[ion]” under § 2.6, or, alternatively, (2) § 1.1 is
unenforceable. Moreover, although Freddie Mac raised in the
district court the argument now relied on by the majority, the
district court easily (and correctly, in my view) rejected it:
While Freddie Mac admits that no such court order to
transfer the loan portfolio was ever issued because R
& G never transferred the files to Doral in the first
place, Freddie Mac contends the TRO should be
considered the same as a court order transferring the
files away from Doral. This argument fails as a matter
of law . . . . [A]s Freddie Mac concedes, the TRO did
not transfer the portfolio from Doral. This Court will
not assume that the TRO is the same as an order
transferring the portfolio for the purposes of Section
1.1. In this regard, it is impossible to determine
what the district court issuing the TRO would have
done had the portfolio, in fact, already been
transferred to Doral.
Doral Bank PR v. Federal Home Loan Mortgage Corp., 2010 WL
3984667, *5 (E.D. Va. Oct. 7, 2010)(emphasis added). Therefore,
the majority’s reliance on the “ordered-by-court” exception to
avoid the requisite economic analysis is misplaced.

35

Appeal: 10-2245

would

Document: 53

end

up

Date Filed: 04/10/2012

spending

more

money

Page: 36 of 44

on

the

servicing

of

the

portfolio than it would have otherwise. For example, if it were
to transfer after 10 months, it would still owe Doral 14 months’
worth of servicing fees but would also have to pay 14 months of
servicing fees to the new permanent servicer. But, crucially, an
early

transfer

would

not

necessarily

be

more

expensive

to

Freddie Mac when one considers, as one should, the $106 million
recourse

obligation.

Every

month

the

recourse

obligation

remained on Freddie Mac’s books, the company faced the risk that
borrowers with many millions of dollars in loans would default,
and Freddie Mac would bear the full brunt of those losses. This
risk was palpable in mid-2008, just as the proverbial housing
bubble was beginning to burst. At any given time during Doral’s
24-month interim servicing term, Freddie Mac could rationally
have decided that invoking the early transfer clause in § 1.1
would be in its best interests, even if doing so would mean
essentially paying double servicing fees during the remainder of
the 24 months.
When viewed in these terms, I conclude that Freddie Mac had
a “true option” to elect either to leave the portfolio with
Doral for the full 24 months or to transfer it to a permanent
servicer earlier. When one compares “the relative values of the
performances,” it is clear that the “money payment” pursuant to
§

1.1

(the

value

of

remaining
36

servicing

fees)

is

reasonably

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Date Filed: 04/10/2012

Page: 37 of 44

equivalent to “performance of the option” (leaving the portfolio
with Doral while retaining the recourse obligation), precisely
because it was in Freddie Mac’s interest to unload the recourse
obligation as soon as possible.
The majority places apparently dispositive weight on three
facts: (1) that the early-transfer payment turned out to be 87.3
times

larger

than

what

the

majority

sees

as

Doral’s

“actual

damages,” i.e., the money Doral expended to prepare to service
the 46,000 loans in the portfolio; (2) that the early transfer
payment was to be the full amount Freddie Mac would have paid
Doral

in

servicing

fees,

with

no

deduction

for

the

expenses

Doral would have incurred if it had continued to service the
loans

(and

portfolio
Freddie

would
early);

Mac

were

save

if

and

(3)

to

Freddie

Mac

were

that

1.1

“would

§

terminate

the

ISA”

by

to

transfer
apply

only

transferring

the
if
the

portfolio to a permanent servicer, thereby ending the parties’
contractual relationship. Maj. Op. at 17-18. But these facts do
not render § 1.1 unenforceable, for the following reasons.
First, the ratio between the expenses Doral incurred in
preparing to service the portfolio and the servicing fees it
would

have

collected

whether Freddie

Mac

over
had

a

the

24

true

months

option

is

not

between

relevant

two

to

plausibly

beneficial options. It is true $10.9 million is much larger than
the

$124,588

Doral

actually

expended.
37

But

when

Freddie

Mac

Appeal: 10-2245

Document: 53

arguably
because

Date Filed: 04/10/2012

transferred
there

is

the
a

Page: 38 of 44

portfolio

genuine

back

dispute

to

R&G

whether

(“arguably”
Freddie

Mac

determined and communicated that Doral would be servicing the
portfolio, see infra), Freddie Mac benefited by avoiding any
more time carrying the $106 million recourse obligation. The
question whether § 1.1 provides for alternative performances is
assessed from Freddie Mac’s perspective, because Freddie Mac was
the “promisor” with respect to the early transfer payment. See
14

Williston

on

Contracts

§

42:10

(looking

to

whether

“the

promisor had a ‘true option’ on which alternative to perform”);
11-58 Corbin on Contracts § 58:18 (describing an alternativeperformance contract as one in which “either one of the two
alternative

performances

is

to

be

given

by

the

promisor

and

received by the promisee as the agreed exchange”). The amount
Doral expended on preparations is immaterial to the relative
attractiveness

to

Freddie

Mac,

the

promisor,

of

the

two

alternative ways it could discharge its obligations under the
ISA.
Second,
Doral

were

even

if

relevant,

the

relative

Doral

would

benefit
not

of

the

necessarily

options
have

to

been

better off with an early transfer. While an early transfer would
allow

Doral

expenses

to

from

collect
actually

its

servicing

servicing

the

fees

without

portfolio,

incurring
an

early

transfer would also have stripped Doral of the potentially very
38

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Date Filed: 04/10/2012

Page: 39 of 44

significant cross-selling opportunities it would have had during
the remainder of the 24 months. Freddie Mac does not dispute
that a substantial portion of the borrowers in the portfolio
were not existing Doral customers, and that Doral’s new crossselling opportunities would have led to new business for Doral.
Indeed, the influx of new customers would have increased Doral’s
mortgage servicing business by nearly one-third. Thus, to the
extent the majority insists on considering the relative benefit
of the options to Doral, the relevant comparison is not between
the

$124,588

in

preparation

expenses

and

the

$10.9

million

early-transfer payment. Rather, it is between (1) the expenses
Doral would have incurred during a particular portion of the 24
months,

and

cross-selling

(2)

the

during

revenue
those

Doral

months.

would
There

have
is

received

every

from

reason

to

believe the parties saw the value of these two items as roughly
equivalent.

Therefore,

viewed

not

only

perspective

but

Doral’s

as

well,

from

from

Freddie

Freddie

Mac’s

Mac’s
two

alternative means of performance were reasonably equivalent.
Third, the ISA expressly grants Freddie Mac the option to
transfer the portfolio to a permanent servicer within the 24
months. A liquidated damages clause stipulates damages in the
event of a “breach” by one of the parties. Restatement (Second)
of Contracts § 356. Because the ISA expressly allows Freddie Mac
to transfer the portfolio early, an early transfer would not
39

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Date Filed: 04/10/2012

Page: 40 of 44

constitute a breach. This is so even though, as the majority
notes,

Freddie

Mac’s

would

essentially

invocation

terminate

of

“the

its

early-transfer

relationship

option

between

the

parties.” Maj. Op. at 17 (quoting Williston § 65:7). While the
continuation of a contractual relationship can help demonstrate
that a particular performance is a true alternative rather than
liquidated

damages,

see,

e.g.,

Cmty.

Med.

Ctr.,

623

F.2d

at

865, 12 such a continuation is not necessary. See, e.g., River
East Plaza, LLC v. Variable Annuity Life Ins. Co., 498 F.3d 718,
724

(7th

Cir.

2007)

(interpreting

a

contract

as

one

for

alternative performance even though the promisor’s election of
one

option

effectively

terminated

the

parties’

contractual

relationship) 13; Las Vegas Sands Corp. v. Ace Gaming, LLC, 713 F.

12

In Community Medical Center, the contract at issue was
for the provision of information technology services to the
Center. 623 F.2d at 865. The Center agreed to either (a) pay
InfoMed, the IT company, on a monthly basis for the services it
provided, which were around $3,400 on average, or (b) pay a
minimum monthly fee of $1,500. Id. at 866. The Third Circuit
held that the $1,500 minimum monthly fee was a true alternative
performance, in part because the fee “look[ed] more to a
continuance of the relationship between Info Med and the debtor
rather than termination.” Id. at 867. The court did not,
however, indicate that the continuance of the relationship was a
necessary condition to finding the contract to be one for
alternative performances.
13

In River East, a development company (River East), took
out a $12 million loan to build a large retail store. 498 F.3d
at 719. The loan agreement included a “yield maintenance
prepayment clause,” which provided that, in the event River East
chose to pre-pay the loan, it would have to pay back not only
(Continued)
40

Appeal: 10-2245

Supp.

Document: 53

2d

427

performance

Date Filed: 04/10/2012

(D.N.J.

contract

2010)
a

Page: 41 of 44

(upholding

as

an

trademark-licensing

alternative-

agreement

that

provided for the contract to continue until the year 2086, but
permitted

early

termination

with

the

condition

that

the

terminating party would nevertheless pay the licensing fees due
until the 14th anniversary of the contract plus an additional
one-year “termination fee”).
For

these

reasons,

I

would

hold

that

§

1.1

is

a

true

alternative-performance provision that must be enforced if the

the principal but also the return the lender would have received
if it had invested the remaining balance in Treasuries over the
remaining years on the loan. Id. River East pre-paid and tried
to
avoid
paying
the
pre-payment
amount,
calling
it
an
unenforceable “penalty.” The Seventh Circuit rejected that
argument, and conducted a detailed analysis of the “relative
value of the alternatives” from the perspective of the parties
at the time they negotiated the loan agreement. Id. at 722-23
(applying
Restatement (Second) of Contracts § 356). Because
River East could achieve a substantial benefit by pre-paying,
even though it would also have to pay the pre-payment penalty,
the court concluded that River East had a true choice between
two options; the eventual relative value of the two alternatives
(and
thereby
River
East’s
eventual
decision
whether
to
refinance) would depend entirely on whether interest rates
increased or decreased. The clause was not one whose “sole
purpose is to secure performance of the contract.” Id. at 723.
Therefore, the alternative-performance clause was enforceable
according to its terms, notwithstanding the fact that it
operated to terminate the parties’ relationship.

41

Appeal: 10-2245

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condition

Date Filed: 04/10/2012

precedent

(the

determination

Page: 42 of 44

and

communication

from

Freddie Mac) occurred. 14
C.
Because I would hold that the early-transfer provision in §
1.1

is

enforceable,

I

simply

highlight

the

district

court’s

treatment of the issue of whether the parties’ obligations under
the

ISA

became

effective.

The

district

court

concluded,

correctly in my view, that there was a genuine dispute on this
issue. 15 Manifestly, a reasonable jury could reasonably find that
Freddie

Mac

“determine[d]

and

communicate[d]”

to

Doral

that

14

In the alternative, even if § 1.1 is analyzed as a
liquidated damages clause, it would be enforceable for largely
the same reasons. Under federal common law, a liquidated damages
provision is enforceable if, at the time of contracting, (1)
“the harm that would be caused by a breach is difficult to
estimate” and (2) the liquidated amount is “a reasonable
forecast of the loss that may be caused by the breach.” DJ Mfg.
Corp. v. United States, 86 F.3d 1130, 1133 (Fed. Cir. 1996); see
also O’Brian v. Langley School, 507 S.E.2d 363, 365 (Va. 1998)
(applying the same test under Virginia law). As discussed, one
aspect of the harm to Doral of an early transfer was the loss of
cross-selling opportunities, the precise value of which was very
difficult to calculate. Moreover, the early-transfer payment was
a reasonable forecast of the value of those opportunities.
Although § 1.1 does not deduct the amount Doral would have
expended over the remaining months, it is reasonable to conclude
that the parties considered Doral’s servicing expenses as
roughly equivalent to the value of Doral’s cross-selling
opportunities. Therefore, in my view, even construed as a
liquidated damages clause, § 1.1 is enforceable.
15

I agree with the majority that the “Effective Date”
described in § 2.6 is distinct from the effective date clause on
the face of the ISA.

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Date Filed: 04/10/2012

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Doral would “be servicing the Interim Portfolio.” Accordingly, I
would remand this case for trial.
As the majority explains, on Friday, July 11, 2008, Freddie
Mac instructed Doral to come to the R&G offices to facilitate
transfer of loan files to Doral on the following Monday. That
same day, a Freddie Mac team arrived in Puerto Rico intending to
terminate R&G’s eligibility to sell loans to, and service loans
for,

Freddie

Mac.

Freddie

Mac

also

instructed

Doral’s

Vice

President of Mortgage Servicing to prepare for the transfer of
certain physical mortgage files from R&G and to have personnel,
information technology support, and transportation support ready
by Monday morning. Over the weekend (July 12-13), Freddie Mac’s
representatives in Puerto Rico worked together with Doral staff
at Doral’s headquarters to set in place the necessary elements
of servicing. Freddie Mac provided Doral with electronic files
containing information about the loans in the Interim Portfolio,
including detailed personal and financial information about the
mortgage

borrowers.

Furthermore,

Freddie

Mac’s

representative

told Doral on Saturday, July 12, that Freddie Mac anticipated
obtaining the R&G files in three calendar days.
On

the

morning

of

July

14,

representatives

of

the

two

companies met at Doral’s offices in San Juan to discuss, as
Freddie Mac characterized it, the “anticipated initiation of the
transfer of R&G’s files (including data) to Doral.” J.A. 143. In
43

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Date Filed: 04/10/2012

Page: 44 of 44

addition, Freddie Mac provided Doral with an electronic copy of
the “trial balance data,” the loan data for the 46,132 Freddie
Mac mortgage loans then constituting the Interim Portfolio. J.A.
208,

1848-59.

According

to

Doral,

upon

receiving

this

data,

together with the loan data received over the weekend, Doral had
all the information it needed to begin servicing the portfolio
by

sending

welcome

letters

to

borrowers,

accepting

loan

payments, performing reconciliations, and making remittances to
Freddie

Mac.

Furthermore,

Freddie

Mac’s

internal

documents,

created prior to the evening of July 15, indicate that Freddie
Mac had “already assigned the servicing” to Doral and refer to
Doral as “the Interim Servicer.” J.A. 275-78, 534-36.
Based on this evidence, a reasonable jury could conclude
that Freddie Mac had “determine[d]” to transfer the servicing
rights

to

Doral,

determination

to

and

Doral.

had

effectively

Only

after

the

“communicated”
temporary

that

restraining

order enjoined Freddie Mac from transferring the portfolio to
Doral did Freddie Mac show any intention other than that Doral
imminently would become the interim servicer, and should make
every effort to prepare to begin servicing the portfolio.

III.
For

these

reasons,

I

would

vacate

the

grant

of

judgment to Freddie Mac and remand this action for trial.
44

summary