Wells Fargo Bank, National Association et al v. City of Richmond, California et al
Filing
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MOTION for Leave to File Excess Pages filed by Deutsche Bank National Trust Company, Deutsche Bank Trust Company Americas, Wells Fargo Bank, National Association. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Tsai, Rocky) (Filed on 8/8/2013)
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ROCKY C. TSAI (SBN 221452)
(rocky.tsai@ropesgray.com)
ROPES & GRAY LLP
Three Embarcadero Center
San Francisco, CA 94111-4006
Telephone: (415) 315-6300
Facsimile: (415) 315-6350
Attorneys for Plaintiffs Wells Fargo Bank,
N.A., as Trustee, et al.
ADDITIONAL COUNSEL LISTED
ON SIGNATURE PAGE
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee, et al.
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Plaintiffs,
v.
CITY OF RICHMOND, CALIFORNIA, a
municipality, and MORTGAGE
RESOLUTION PARTNERS LLC,
Defendants.
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Case No. CV-13-3663-CRB
PLAINTIFFS’ ADMINISTRATIVE
MOTION FOR LEAVE TO EXCEED
STANDING ORDER PAGE LIMIT
CIVIL L.R. 7-11
ACCOMPANYING PAPERS: Declaration of Rocky
C. Tsai; [Proposed] Order
Honorable Charles R. Breyer
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_________________________________________________________________________________________________
PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO EXCEED PAGE LIMIT; Case No. CV-13-3663-CRB
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Pursuant to Civil Local Rule 7-11, Plaintiffs respectfully move this Court for an order granting
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Plaintiffs leave to file a memorandum of points and authorities in support of Plaintiffs’ accompanying
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Motion for Preliminary Injunction in excess of the 15-page limit set forth in Paragraph 5 of the Court’s
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Standing Order. Good cause exists for granting this motion for the following reasons:
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1.
Plaintiffs commenced this suit yesterday (August 7, 2013), to challenge the eminent
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domain mortgage seizure program of the City of Richmond, California (“Richmond”), and its partner
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Mortgage Resolution Partners LLC (“MRP”), a private, for-profit investment firm (collectively,
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“Defendants”). This is a highly complex case involving myriad violations of both federal and state
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constitutional law, and a complex factual background involving the securitization of residential
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mortgages, the structure, valuation, and rules governing residential mortgage-backed securitization
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trusts (“RMBS Trusts”), and the intricacies of both the mortgage lending and securities markets.
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2.
In conformance with the 25-page limit specifications of Civil Local Rule 7-2, Plaintiffs
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prepared and are filing concurrently herewith, a Motion for Preliminary Injunction (“PI Motion”) and
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supporting Memorandum of Points and Authorities in support of the PI Motion (“PI Memorandum”)
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requesting that the Court enjoin Defendants’ unconstitutional eminent domain mortgage seizure
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program (the “Richmond Seizure Program” or “Program”). Given the urgency of the PI Motion,
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Plaintiffs are hereby filing this administrative motion for leave to file their PI Memorandum which is
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in excess of the 15-page limit, but is otherwise in conformity with the Court’s Standing Order.
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3.
By way of brief background, Plaintiffs have filed a 48-page Complaint (not including
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its multiple schedules and exhibits) that includes allegations detailing Defendants’ unprecedented
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Program to seize, through Richmond’s power of eminent domain, RMBS Trusts of which Plaintiffs are
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the trustees. The Complaint alleges that the Program, if allowed to be implemented, would violate
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fundamental provisions of the U.S. Constitution and the California Constitution, including: the “public
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use” requirement of the Takings Clauses (Count I); the prohibitions on extraterritorial seizures under
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the Takings Clauses (Count II); the dormant Commerce Clause of the U.S. Constitution (Count III);
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the Contracts Clause of the U.S. Constitution (Count IV); the “just compensation” requirement of the
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Takings Clauses (Count V); and the Equal Protection Clauses of the U.S. and California Constitutions
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(Count VI).
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PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO EXCEED PAGE LIMIT; Case No. CV-13-3663-CRB
4.
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Defendants have already begun to implement the Richmond Seizure Program by
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making offers to seize certain loans in trusts of which Plaintiffs are the Trustees – the first step in the
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California eminent domain process – after which Defendants can, under California eminent domain
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law, quickly seize mortgage loans. Because of the exigent circumstances, Plaintiffs are promptly filing
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the PI Motion and the PI Memorandum and other supporting papers concurrently herewith, requesting
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that the Court issue an order preliminarily enjoining Defendants from further implementing the
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Richmond Seizure Program. The PI Memorandum, which was prepared prior to the assignment of the
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case to this Court, comports with the 25-page limit set forth in Civil Local Rule 7-2. As discussed in
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the PI Memorandum, and in the various Declarations submitted in support thereof, if the Program is
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permitted to proceed, Plaintiffs will experience significant and irreparable harm because, among other
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reasons, the Program primarily targets performing loans (meaning loans where the borrower is not in
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default), and once a loan is seized, it will be extinguished and cannot be restored and put back in the
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Trust’s pool of loans. Accordingly, the seizures and extinguishment of these performing loans will
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immediately affect the cash flows of the RMBS Trusts, causing the Trusts immediate and irreparable
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harm.
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5.
The PI Memorandum addressed the various factors which support the PI Motion,
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including that Plaintiffs are likely to prevail on the merits of their claims that the Program runs afoul of
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multiple provisions of the U.S. Constitution and the California Constitution, that the RMBS Trusts and
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their beneficiaries will suffer irreparable harm absent a preliminary injunction, and that the balance of
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equities and the public interest warrant the proposed injunction (which involves discussion of the
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catastrophic effects on both the Richmond and national housing markets if the Program is permitted to
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proceed).
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6.
To adequately address each of their constitutional claims, and the other factors that
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weigh in favor of granting a preliminary injunction, and to provide the Court with an adequate
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discussion of the relevant facts and authorities that support the Plaintiffs’ Motion, Plaintiffs
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respectfully request that the Court issue an order relieving Plaintiffs from the 15-page limit for
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memoranda of points and authorities set forth in Paragraph 5 of this Court’s Standing Order, and
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accept the PI Memorandum in its current form, which is within the 25-page default page limit
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PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO EXCEED PAGE LIMIT; Case No. CV-13-3663-CRB
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specifications of Civil Local Rule 7-2 and is otherwise in accordance with Paragraph 5 of the Court’s
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Standing Order.
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7.
As attested in the accompanying Declaration of Rocky C. Tsai, counsel for Plaintiffs
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have not been able to obtain a stipulation regarding the requested extension because the Complaint was
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recently filed on August 7, 2013, and Plaintiffs’ counsel do not know the identities of Defendants’
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counsel in this matter at this time.
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DATED: August 8, 2013
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Respectfully submitted,
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By: /s/ Rocky C. Tsai
______________________________________
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Thomas O. Jacob (SBN 125665)
tojacob@wellsfargo.com
WELLS FARGO & COMPANY
Office of General Counsel
45 Fremont Street, Twenty-Sixth Floor
MAC A0194-266
San Francisco, CA 94105
Telephone: (415) 396-4425
Facsimile: (415) 975-7864
ROPES & GRAY LLP
Attorneys for Plaintiffs
Rocky C. Tsai (SBN 221452)
(rocky.tsai@ropesgray.com)
ROPES & GRAY LLP
Three Embarcadero Center
San Francisco, CA 94111-4006
Telephone: (415) 315-6300
Facsimile: (415) 315-6350
Attorney for Wells Fargo Bank
John C. Ertman
(john.ertman@ropesgray.com)
(Pro hac vice applications pending)
Lee S. Gayer
(lee.gayer@ropesgray.com)
Evan P. Lestelle
(evan.lestelle@ropesgray.com)
ROPES & GRAY LLP
1211 Avenue of the Americas
New York, NY 10036-8704
Telephone: (212) 596-9000
Facsimile: (212) 596-9090
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PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO EXCEED PAGE LIMIT; Case No. CV-13-3663-CRB
Douglas H. Hallward-Driemeier
(douglas.hallward-driemeier@ropesgray.com)
(Pro hac vice application pending)
ROPES & GRAY LLP
One Metro Center
700 12th Street, NW
Suite 900
Washington, DC 20005-3948
Phone: 202-508-4600
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Daniel V. McCaughey
(daniel.mccaughey@ropesgray.com)
Nick W. Rose
(nick.rose@ropesgray.com)
ROPES & GRAY LLP
800 Boylston St.
Boston, MA
Phone: 617-951-7000
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PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO EXCEED PAGE LIMIT; Case No. CV-13-3663-CRB
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