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

Filing 44

MOTION for Leave to File Memorandum of Amicus Curiae in Support of Plaintiffs' Motion for Preliminary Injunction filed by Structured Finance Industry Group, Inc.. (Attachments: # 1 Exhibit [Proposed] Memorandum, # 2 Proposed Order, # 3 Certificate/Proof of Service)(Martin, Sonia) (Filed on 8/29/2013)

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SONIA MARTIN (State Bar No. 191148)
DENTONS US LLP
525 Market Street, 26th Floor
San Francisco, CA 94105
Telephone: [phone]
Facsimile:
[phone]
Email:
[e-mail]
STEPHEN S. KUDENHOLDT
SANDRA HAUSER
RICHARD M. ZUCKERMAN
(pro hac vice pending)
DENTONS US LLP
1221 Avenue of the Americas
New York, NY 10020
Telephone: [phone]
Facsimile:
[phone]
Email:
[e-mail]
[e-mail]
[e-mail]

DENTONS US LLP
525 Market Street, 26th Floor
San Francisco, California 94105-2708
[phone]

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Attorneys for Amicus Curiae
Structured Finance Industry Group, Inc.

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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 NATIONAL
ASSOCIATION, as Trustee, et al.,

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Case No. CV-13-3663-CRB

Plaintiffs
v.
CITY OF RICHMOND, CALIFORNIA, a
municipality, and MORTGAGE
RESOLUTION PARTNERS LLC,

MOTION OF STRUCTURED FINANCE
INDUSTRY GROUP, INC.
FOR LEAVE TO PARTICIPATE AS
AMICUS CURIAE, AND TO FILE
MEMORANDUM, AS AMICUS CURIAE,
IN SUPPORT OF PLAINTIFFS’ MOTION
FOR A PRELIMINARY INJUNCTION;
[PROPOSED] ORDER;

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Defendants
[PROPOSED] MEMORANDUM OF
STRUCTURED FINANCE INDUSTRY
GROUP, INC., AS AMICUS CURIAE, IN
SUPPORT OF PLAINTIFFS’ MOTION
FOR A PRELIMINARY INJUNCTION

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Date: September 13, 2013
Time: 10:00 a.m.
Judge: Hon. Charles R. Breyer

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Case No. CV-13-3663-CRB

MOTION OF STRUCTURED FINANCE INDUSTRY
GROUP, INC. FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

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PLEASE TAKE NOTICE that Structured Finance Industry Group, Inc. (“SFIG”) respectfully

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requests that the Court grant it leave to participate as amicus curiae in this action, and to file a

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Memorandum in support of Plaintiffs’ motion for a preliminary injunction.

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I.

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STANDARD FOR MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE
As Chief Judge Walker held in the Proposition 8 case, in which the Court granted leave for

the filing of more than 20 separate amicus briefs by more than 40 amici:

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The court may welcome amicus curiae submissions “concerning legal issues that
have potential ramifications beyond the parties directly involved or if the amicus has
unique information or perspective that can help the court beyond the help that the
lawyers for the parties are able to provide.”

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DENTONS US LLP
525 Market Street, 26th Floor
San Francisco, California 94105-2708
[phone]

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Perry v. Schwarzenegger, No. 9-cv-2292-JW (N.D. Cal.)(Dkt. 630, Apr. 21, 2010), quoting NGV

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Gaming, LTd. v. Upstream Point Molate, LLC, 355 F.Supp.2d 1061, 1067 (N.D. Cal. 2005). See

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also Sonoma Falls Devs. LLC v. Nev. Gold & Casinos, Inc., 272 F.Supp.2d 919, 925 (N.D. Cal.

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2003); Craigslist, Inc. v. 3Taps, Inc., No. 12-cv-3816-CRB (N.D. Cal.) (Dkt. 93, June 20, 2013)

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(Order granting leave to file amicus brief).

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This is a “modest standard,” easily met in this case. Perry v. Schwarzenegger.
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RESPONSE OF THE PARTIES TO REQUESTS FOR CONSENT
Plaintiffs have consented to SFIG’s participation as amicus curiae and filing of a

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Memorandum on the motion for a preliminary injunction, provided that the filing does not cause a

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delay in the hearing on that motion (which it should not cause). On August 27, 2013, requests were

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made, by telephone conference call, to Scott A. Kronland, Esq., counsel for Defendants, to consent

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to the filing of amicus briefs by the following amici represented by the following counsel:

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Structured Finance Industry Group, Inc. (SFIG), represented by Dentons US LLP;

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California Bankers Association, American Bankers Association, California Mortgage

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Bankers Association, and Mortgage Brokers Association, represented by DLA Piper LLP

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(US).

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Securities Industry and Financial Markets Association (SIFMA) and the United States
Chamber of Commerce, represented by Sidley Austin LLP
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Case No. CV-13-3663-CRB

MOTION OF STRUCTURED FINANCE INDUSTRY
GROUP, INC. FOR LEAVE TO APPEAR AS AMICUS CURIAE

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On August 28, 2013, Defendants’ counsel sent an email declining to consent, stating:

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Defendants do not consent to the filing of amicus briefs. They would be untimely
and unfair because Defendants already filed their opposition to the preliminary
injunction motion.

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In response, DLA Piper suggested by email.

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Your concern about timing may be resolved by a stipulation, subject to the approval
of the Court, that Defendants may have one week, to September 4 (or Sept. 5, if that
works for the Court) to reply to the short amicus brief.

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On August 29, 2013, Defendants’ counsel replied, “Defendants' position re amicus briefs remains

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unchanged.”

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The accompanying proposed Order includes a provision granting Defendants until
September 5 to reply to SFIG’s amicus brief. That schedule will ensure that the date of the hearing

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DENTONS US LLP
525 Market Street, 26th Floor
San Francisco, California 94105-2708
[phone]

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is not affected.

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III.

STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE

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SFIG is a member-based trade industry advocacy group, with over 120 members from all

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sectors of the structured finance and securitization market, including investors, issuers, financial

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intermediaries, law firms, accounting firms, technology firms, rating agencies, servicers, and

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trustees. SFIG was established in March 2013. A list of SFIG’s corporate members appears as

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Appendix A. SFIG’s purposes include: educating members, legislators, regulators, and others about

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structured finance, securitization and related capital markets; building the broadest possible

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consensus on policy, legal, regulatory and other matters affecting or potentially affecting these

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markets; and advocating on behalf of the structured finance and securitization industry.

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REASONS WHY THE EXPERTISE OF AMICUS CURIAE
WILL BE BENEFICIAL TO THIS COURT

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The City of Richmond’s proposed use of eminent domain to seize mortgage loans from

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private securitization trusts—especially performing mortgage loans with borrowers capable of

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continuing to pay without hardship—will cause substantial, irreparable harm not only to the Trusts

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which have loans targeted for seizure, but also to the nation’s home mortgage system. SFIG

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respectfully requests leave to participate as amicus from its members’ unique position as industry

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participants to highlight the serious conflict between the “Seizure Program,” on one hand, and the

IV.

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Case No. CV-13-3663-CRB

MOTION OF STRUCTURED FINANCE INDUSTRY
GROUP, INC. FOR LEAVE TO APPEAR AS AMICUS CURIAE

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very structure, nature, and reasonable investor expectations in Private Label Securitizations (“PLS”),

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on the other hand. The consequences of this clash—and specifically, of yanking performing

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mortgage loans out of PLS Trusts—are serious and, absent injunctive relief, will cause irreparable

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injury not only to investors but to the entire mortgage system and thus to prospective homeowners

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across the country.

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SFIG is in a unique position to address, and intends to address, the following in its amicus
brief:
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The role that PLS Trusts play in the nation’s home mortgage market, and how that role is
expected to increase as the roles of Fannie Mae and Freddie Mac are diminished.

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The irreparable injury that the Seizure Program will cause at three levels: the nationwide

DENTONS US LLP
525 Market Street, 26th Floor
San Francisco, California 94105-2708
[phone]

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home mortgage industry; the PLS Trusts directly affected; and the individual loans

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seized.

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The potentially severe adverse tax consequences to investors.

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The broad range of industry programs already in place which provide relief to

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homeowners in need.

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Each of the three proposed amicus briefs is from a different perspective. In addition, to ensure that

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the Court is not burdened, counsel representing the separate amici have conferred with each other

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about the subjects which each will address and will seek to avoid duplication.

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SFIG is filing its proposed amicus brief on August 29, 2013, the same date as Plaintiffs’

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reply—just three weeks after the motion for a preliminary injunction was filed, and approximately

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two weeks before the hearing on the motion.1

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V.

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CONCLUSION
WHEREFORE, SFIG respectfully requests that its motion for leave to participate as amicus

curiae, and to file the accompanying Memorandum in support of Plaintiffs’ motion for a preliminary

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No counsel for a party authored SFIG’s brief in whole or in part, and no such counsel or party
made a monetary contribution intended to fund the preparation or submission of the brief. No
person other than SFIG and its counsel made a monetary contribution to its preparation or
submission. Plaintiffs Wells Fargo and Deutsche Bank are members of SFIG and pay general
membership dues.
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Case No. CV-13-3663-CRB

MOTION OF STRUCTURED FINANCE INDUSTRY
GROUP, INC. FOR LEAVE TO APPEAR AS AMICUS CURIAE

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injunction, be granted.

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Dated: August 29, 2013

DENTONS US LLP
By /s/Sonia Martin (State Bar No. 191148)
SONIA MARTIN

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STEPHEN S. KUDENHOLDT
SANDRA HAUSER
RICHARD M. ZUCKERMAN
(pro hac vice pending)

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Attorneys for Amicus Curiae
Structured Finance Industry Group, Inc.

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DENTONS US LLP
525 Market Street, 26th Floor
San Francisco, California 94105-2708
[phone]

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Case No. CV-13-3663-CRB

MOTION OF STRUCTURED FINANCE INDUSTRY
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APPENDIX A
—
CORPORATE MEMBERS OF SFIG

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DENTONS US LLP
525 Market Street, 26th Floor
San Francisco, California 94105-2708
[phone]

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Ford Motor Credit Company*
Freddie Mac
General Electric Capital Corporation*
Global Securitization Services, LLC
GM Financial Company, Inc. *
GMO
Goldman, Sachs & Co.*
Goodwin Procter LLP
Harley-Davidson Financial Services, Inc.*
Hildene Capital Management*
Hogan Lovells US LLP*
HSBC Securities (USA) Inc.*
Hunton & Williams LLP*
Hyundai Capital America
Impac Mortgage Holdings, Inc.
Intex Solutions, Inc.*
J.P. Morgan Chase Bank
J.P. Morgan Investment Management Inc.
J.P. Morgan Securities LLC
John Deere*
Jones Day*
JPMorgan Chase & Co.*
K&L Gates LLP*
Kanerai*
Katten Muchin Rosenman LLP*
Kaye Scholer LLP*
Kirkland & Ellis LLP*
KPMG LLP*
Kramer Levin Naftalis & Frankel LLP*
Kroll Bond Rating Agency, Inc.*
Latham & Watkins LLP*
Lender Processing Services*
Lewtan*
Locke Lord LLP*
Lord Capital LLC*
LordSPV, a TMF Group Company
Lowenstein Sandler LLP*
Maples and Calder*
Mayer Brown LLP*
MBSData, LLC
McCarthy Tetrault LLP*
McDermott Will & Emery*
Mercedes-Benz Financial Services USA
LLC*
Mitchell Silberberg & Knupp LLP*
Mitsubishi Motors Credit of America, Inc.*
Mitsubishi UFJ Securities (USA)*
Moody’s Analytics
Moody’s Investors Service*
Morgan Stanley*
Morningstar Credit Ratings, LLC*

1st Financial Bank USA*
20 Gates Management
ADS Alliance Data Systems, Inc.
Allen & Overy LLP*
Ally Financial, Inc.*
Ally Investment Management, LLC
Alston & Bird LLP*
American Credit Acceptance, LLC
Amherst Securities Group, LP*
Andrew Davidson & Co., Inc.*
Andrews Kurth LLP*
Ashurst LLP*
Assured Guaranty Corp
Babson Capital Management LLC*
Baker & McKenzie*
Bank of America*
Barclays*
BB&T Capital Markets*
Bingham McCutchen LLP*
Blake, Cassels & Graydon LLP*
Blank Rome LLP
Bloomberg LP
BlueMountain Capital Management*
BMO Capital Markets CORP.*
BNP Paribas*
BNY Mellon*
Cadwalader, Wickersham & Taft LLP*
Cassels Brock & Blackwell LLP*
Chapman and Cutler LLP*
Chase Bank USA, N.A.
Citi*
Clayton Holdings LLC*
Cleary Gottlieb Steen & Hamilton LLP*
Clifford Chance*
CNH Capital*
CoreLogic
Credit Agricole*
Credit Suisse*
CREMAC
CrossCheck Compliance LLC*
DBRS*
Dechert LLP*
Deloitte & Touche LLP*
Dentons US LLP*
Deutsche Asset Management
Deutsche Bank*
Discover Financial Services*
Emmet, Marvin & Martin, LLP*
Ernst & Young*
Exeter Finance Corp.*
Fitch Ratings*
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Case No. CV-13-3663-CRB

MOTION OF STRUCTURED FINANCE INDUSTRY
GROUP, INC. FOR LEAVE TO APPEAR AS AMICUS CURIAE

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DENTONS US LLP
525 Market Street, 26th Floor
San Francisco, California 94105-2708
[phone]

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Morrison & Foerster LLP*
Nationstar Mortgage LLC
Natixis*
Nelnet, Inc.*
NORD/LB*
Ocwen Financial Corporation*
Opus Capital Markets Consultants, LLC*
Orrick, Herrington & Sutcliffe LLP*
Osler, Hoskin & Harcourt LLP*
Pillsbury Winthrop Shaw Pittman LLP*
PNC Capital Markets LLC*
PNC real Estate/Midland Loan Services
PricewaterhouseCoopers*
Prudential Fixed Income*
R&R Consulting*
Rabobank International*
RBC Capital Markets
RBS Securities Inc.*
Redwood Trust*
Richards, Layton & Finger*
Risk Management Group LLC
RiskSpan, Inc.*
Sallie Mae*
Santander Consumer USA*
Schulte Roth & Zabel LLP*
Seward & Kissel LLP*
Shearman & Sterling LLP*
Shellpoint Partners LLC*
Sidley Austin LLP*
Skadden, Arps, Slate, Meagher & Flom LLP*
Societe Generale*
South Street Securities, LLC*
Standard & Poor’s*
Standard & Poor’s Financial Services, LLC
Stikeman Elliott LLP*
Stonegate Mortgage Corporation
Stroock & Stroock & Lavan LLP*
Structured Asset Services
Sullivan & Worcester LLP
Synterra Capital Management LLC
TD Bank Group (TD)*
The Midway Group*
Two Harbors Investment Corp.*
U.S. Bank National Assocation*
Vanguard Group
VantageScore Solutions LLC*
Volvo Financial Services*
VW Credit, Inc.*
Wells Fargo*
Willkie Farr & Gallagher LLP
Wilmington Trust *
Winston & Strawn LLP*

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* Founding Member.
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Case No. CV-13-3663-CRB

MOTION OF STRUCTURED FINANCE INDUSTRY
GROUP, INC. FOR LEAVE TO APPEAR AS AMICUS CURIAE