Wells Fargo Bank, National Association et al v. City of Richmond, California et al

Filing 14

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)
([e-mail])
ROPES & GRAY LLP
Three Embarcadero Center
San Francisco, CA 94111-4006
Telephone: [phone]
Facsimile: [phone]
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)
[e-mail]
WELLS FARGO & COMPANY
Office of General Counsel
45 Fremont Street, Twenty-Sixth Floor
MAC A0194-266
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]

ROPES & GRAY LLP
Attorneys for Plaintiffs
Rocky C. Tsai (SBN 221452)
([e-mail])
ROPES & GRAY LLP
Three Embarcadero Center
San Francisco, CA 94111-4006
Telephone: [phone]
Facsimile: [phone]

Attorney for Wells Fargo Bank

John C. Ertman
([e-mail])
(Pro hac vice applications pending)
Lee S. Gayer
([e-mail])
Evan P. Lestelle
([e-mail])
ROPES & GRAY LLP
1211 Avenue of the Americas
New York, NY 10036-8704
Telephone: [phone]
Facsimile: [phone]

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PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO EXCEED PAGE LIMIT; Case No. CV-13-3663-CRB

Douglas H. Hallward-Driemeier
([e-mail])
(Pro hac vice application pending)
ROPES & GRAY LLP
One Metro Center
700 12th Street, NW
Suite 900
Washington, DC 20005-3948
Phone: [phone]

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Daniel V. McCaughey
([e-mail])
Nick W. Rose
([e-mail])
ROPES & GRAY LLP
800 Boylston St.
Boston, MA
Phone: [phone]

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PLAINTIFFS’ ADMINISTRATIVE MOTION FOR LEAVE TO EXCEED PAGE LIMIT; Case No. CV-13-3663-CRB