Bank of New York Mellon v. City of Richmond, California et al

Filing 49

JOINT CASE MANAGEMENT STATEMENT filed by Bank of New York Mellon, Bank of New York Mellon Trust Company, N.A.. (Pollock, Bronwyn) (Filed on 11/1/2013)

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MAYER BROWN LLP
DONALD M. FALK (SBN 150256)
[e-mail]
Two Palo Alto Square, Suite 300
3000 El Camino Real
Palo Alto, CA 94306-2112
Tel: [phone]
Fax: [phone]
BRONWYN F. POLLOCK (SBN 210912)
[e-mail]
NOAH B. STEINSAPIR (SBN 252715)
[e-mail]
MICHAEL D. SHAPIRO (SBN 271912)
[e-mail]
350 S. Grand Ave., 25th Floor
Los Angeles, CA 90071-1503
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiffs
THE BANK OF NEW YORK MELLON
(f/k/a The Bank of New York) and
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A. (f/k/a The Bank of New York Trust
Company, N.A.) as Trustees for the Trusts listed on
Exhibit A to the Second Amended Complaint
[Additional counsel listed on signature pages.]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THE BANK OF NEW YORK MELLON (f/k/a
The Bank of New York) et al.

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Plaintiffs,
v.

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CITY OF RICHMOND, CALIFORNIA, a
municipality; RICHMOND CITY COUNCIL;
MORTGAGE RESOLUTION PARTNERS
L.L.C., a Delaware limited liability company;
and GORDIAN SWORD LLC, a Delaware
limited liability company;

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Case No. 3:13-cv-3664-CRB
JOINT CASE MANAGEMENT
STATEMENT
Date: Nov. 8, 2013
Time: 8:30 a.m.
Courtroom: 6, 17th Floor
Judge: Hon. Charles R. Breyer
Complaint filed: August 7, 2013

Defendants.

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Pursuant to Fed. R. Civ. P. 26(f), Local Rule 16-9, the Standing Order for All Judges of

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the Northern District of California—Contents of Joint Case Management Statement, and this

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Court’s Order Setting Case Management Conference (Dkt. 21) (the “CMC Order”), Plaintiffs

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The Bank of New York Mellon (f/k/a The Bank of New York), as trustee; The Bank of New

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York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Company, N.A.), as

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trustee; U.S. Bank National Association, as trustee; Wilmington Trust Company, as trustee; and

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Wilmington Trust Company, National Association, as trustee (collectively, “Trustees”), and

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Defendants City of Richmond, California (the “City”); Richmond City Council (the “City

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Council”); Mortgage Resolution Partners L.L.C. (“MRP”); and Gordian Sword LLC

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(collectively, “Defendants,” collectively referred to with the Trustees as the “Parties”) submit

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this Joint Case Management Statement.

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On October 9, 2013, counsel for the Parties conducted a telephonic meeting of counsel

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pursuant to Fed. R. Civ. P. 26(f) and this Court’s CMC Order. The Bank of New York Mellon

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(f/k/a The Bank of New York) and The Bank of New York Mellon Trust Company, N.A. (f/k/a

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The Bank of New York Trust Company, N.A.) were represented by Bronwyn F. Pollock and

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Michael D. Shapiro of Mayer Brown LLP. U.S. Bank National Association was represented by

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Brian D. Hershman of Jones Day. Wilmington Trust Company and Wilmington Trust, National

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Association were represented by Whitney Chelgren of Alston & Bird LLP. Defendants were

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represented by Scott Kronland of Altshuler Berzon LLP. The City and the City Council also

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were represented by Carlos Privat of the Richmond City Attorney’s Office.

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I.

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JURISDICTION AND SERVICE
Trustees assert that the Court has jurisdiction over this action pursuant to 28 U.S.C. §§

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1331 (federal question jurisdiction) and 1343(a)(3) and (4) (jurisdiction over actions for

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violations of constitutional and federal rights secured by 42 U.S.C. § 1983), and over Trustees’

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declaratory relief causes of action under 28 U.S.C. §§ 2201 and 2202. Trustees’ state-law claims

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form part of the same case or controversy as their federal claims. Accordingly, Trustees assert

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that this Court has supplemental jurisdiction over the state-law claims pursuant to 28 U.S.C.

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§ 1367(a).
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Defendants deny that the Court has subject matter jurisdiction had have moved to dismiss
the case on standing/ripeness ground.

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No issues exist regarding personal jurisdiction or venue. All parties have been served.
II.

FACTS

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A.

Trustees’ Statement

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On April 2, 2013, the City Council approved an Advisory Agreement with MRP. Under

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that agreement, MRP identified certain mortgage loans held by private label residential

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mortgaged-backed securitization (“RMBS”) trusts for the City to seize through eminent domain.

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MRP sent letters dated June 28, 2013 to Trustees, among other recipients, stating that

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“underwater” mortgage “loans would be acquired as part of a public program.” The City

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followed by sending letters dated July 31, 2013 to Trustees, trustees of other RMBS trusts, and

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mortgage loan servicers, offering to purchase certain loans held in RMBS trusts at prices selected

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by Defendants. The City’s July 31, 2013 letters included a pamphlet on the eminent domain

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process in California.

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On August 7, 2013, The Bank of New York Mellon, as trustee, sued Defendants,

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asserting eight claims for declaratory relief and alleging that the City’s seizure plan violated

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multiple provisions of the Constitutions of the United States and California, as well as other

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provisions of California law. On August 9, 2013, the complaint was amended to add U.S. Bank

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National Association, as trustee, as an additional plaintiff. On August 22, 2013, the complaint

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was amended to add The Bank of New York Mellon Trust Company, N.A., Wilmington Trust

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Company, and Wilmington Trust, National Association, as trustees, as additional plaintiffs.

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At a September 10, 2013 Richmond City Council meeting, a motion to “direct the city

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manager to withdraw any offers made to servicers of mortgage loans to purchase such mortgages

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based on fair market value (letters dated July 31, 2013), and to amend the advisory services

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agreement with Mortgage Resolution Partners, LLC to eliminate the option of utilizing eminent

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domain as an option to acquire mortgages” was rejected by supermajority vote.

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http://www.ci.richmond.ca.us/ArchiveCenter/ViewFile/Item/5398 (Item I-1). The Council

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passed a motion to work to establish a Joint Powers Authority as an additional avenue to
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implement Defendants’ loan seizure program.

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B.

Defendants’ Statement

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The City of Richmond has been considering a public program to address the underwater

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mortgage crisis in the City and has made offers to purchase pools of underwater mortgage loans.

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The City Council has not adopted a resolution of necessity to authorize the use of eminent

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domain authority, and such a resolution could be adopted only after considering the information

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presented at a noticed public hearing. At the present time, no hearing has been scheduled. At its

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September 10, 2013 meeting, the City Council approved a motion to work on establishing a Joint

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Powers Authority with other municipalities to address the underwater mortgage crisis.

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III.

LEGAL ISSUES

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A.

Trustees’ Statement

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1.

Whether Defendants’ seizure program violates the “public use” requirements of

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the Fifth Amendment to the U.S. Constitution; article I, section 19 of the California Constitution;

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and article II, section 19 of the Richmond City Charter.

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2.

Whether Defendants’ seizure program violates the prohibitions against

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extraterritorial seizures in the Takings, Due Process, and Commerce Clauses of the U.S.

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Constitution and section 1240.050 of the California Code of Civil Procedure.

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3.

Whether Defendants’ seizure program violates article I, section 8, clause 3 of the

U.S. Constitution (the “Commerce Clause”).
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Whether Defendants’ seizure program violates article I, section 10 of the U.S.

Constitution (the “Contracts Clause”).
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Whether Defendants’ seizure program violates the “just compensation”

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requirement of the Fifth Amendment to the U.S. Constitution and article I, section 19 of the

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California Constitution.

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6.

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contract.

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7.

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Whether Defendants’ seizure program constitutes tortious interference with

Whether Defendants’ seizure program meets the requirements for the exercise of

eminent domain in section 1240.030 of the California Code of Civil Procedure, including the
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requirement that it “planned or located in the manner that will be most compatible with the

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greatest public good and the least public injury.”

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Whether Defendants’ seizure program violates article I, section 19(b) of the

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California Constitution, which provides that “local governments are prohibited from acquiring by

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eminent domain an owner-occupied residence for the purpose of conveying it to a private

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person.”

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B.

Defendants’ Statement

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1.

Whether a plaintiff that alleges harm that could occur only after formal legislative

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action has standing to pursue its claim when that formal legislative action has not occurred and

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may never occur.

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2.

Whether a plaintiff that alleges harm that could occur only after formal legislative

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action has a ripe claim when that formal legislative action has not occurred and may never occur.

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IV.

MOTIONS

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On September 20, 2013, Defendants filed a motion under Fed. R. Civ. P. 12 (b)(1) (Dkt.

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28). Defendants contend that this action is not ripe because the City Council has not passed a

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Resolution of Necessity and may never do so. Trustees assert that Defendants’ overt threats to

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seize loans through eminent domain present a substantial controversy of sufficient immediacy

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and reality to warrant issuance of a declaratory judgment.

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scheduled for November 1, 2013.

The hearing on that motion is

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A.

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Trustees anticipate bringing a motion for summary judgment and other pretrial motions

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Trustees’ Statement

such as motions in limine and discovery motions as necessary or appropriate.

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B.

Defendants’ Statement

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Defendants anticipate that if this action is not dismissed they would bring a motion for a

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protective order to preclude discovery that would interfere with the deliberations of the City

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Council.

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V.

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AMENDMENT OF PLEADINGS
The Parties propose July 1, 2014 as the deadline for amending pleadings.
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A.

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Trustees have requested leave to file an amended complaint in the event the Court grants

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Trustees’ Statement

Defendants’ motion to dismiss.

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B.

Defendants’ Statement

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Defendants have argued that leave to amend should be denied for the same reasons that

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leave to amend was denied in the related Wells Fargo v. City of Richmond case.

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VI.

EVIDENCE PRESERVATION

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The Parties have reviewed the Guidelines Relating to the Discovery of Electronically

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Stored Information. The Parties have not thoroughly discussed preservation of electronically

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stored information because Defendants refuse to discuss discovery until after the hearing on their

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motion to dismiss.

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VII.

DISCLOSURES

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A.

Trustees’ Statement

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Trustees fully and timely complied with the initial disclosure requirements set forth in

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Fed. R. Civ. P. 26(a), notwithstanding Defendants’ unilateral refusal to provide their reciprocal

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initial disclosures. Trustees each disclosed (1) the names of individuals likely to have

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discoverable information that Trustees may use to support their claims; (2) descriptions of

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categories of documents likely to have discoverable information that Trustees may use to support

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their claims, and the location of those documents; (3) a statement that that Trustees would

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produce documents that establish the attorneys’ fees and costs they seek; and (4) a statement

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regarding insurance.

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B.

Defendants’ Statement

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In light of the Court’s dismissal of the Wells Fargo case for lack of jurisdiction,

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Defendants object to providing initial disclosures until after their motion to dismiss this action

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for lack of subject matter jurisdiction is resolved.

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VIII. DISCOVERY

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A.

Trustees’ Statement

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Trustees each have served their Rule 26 initial disclosures. They anticipate serving
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interrogatories, requests for admission, and requests for production of documents. Trustees also

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anticipate taking a number of depositions. They do not propose limiting or modifying the

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discovery rules.

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Trustees are unable to submit a proposed joint discovery plan because Defendants

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unilaterally refuse to serve their Rule 26(a)(1) initial disclosures, or to even discuss discovery

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prior to the hearing on their motion to dismiss.

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B.

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In light of the Court’s dismissal of the Wells Fargo case for lack of jurisdiction, any

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Defendants’ Statement

discussion of a discovery plan for this case is premature.
IX.

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RELATED CASE
On August 26, 2013 (Dkt. 19), the Court deemed this action related to Wells Fargo,

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National Association, as Trustee, et al. v. City of Richmond et al., case no. 13-cv-03663-CRB.

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The Wells Fargo case is currently pending before the U.S. Court of Appeals for the Ninth

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Circuit, case no. 13-17080. The Parties are not aware of any other related cases or proceedings

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pending before another judge of this Court, or another court or administrative body.

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X.

RELIEF

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A.

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Trustees’ respectfully request that the Court:

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1.

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Trustees’ Statement

Declare that Defendants’ implementation their loan seizure program violates the

Takings Clause of the Fifth and Fourteenth Amendments to the Constitution of the United States;
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Declare that Defendants’ implementation of their loan seizure program violates

the Commerce Clause of the Constitution of the United States;
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Declare that Defendants’ implementation of their loan seizure program violates

the Contracts Clause of the Constitution of the United States;
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Declare that Defendants’ implementation of their loan seizure program violates

Article I, section 19(a) of the Constitution of the State of California;
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Alternatively, declare that Defendants’ implementation of their loan seizure

program violates Article I, section 19(b) of the California Constitution;
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Article II, section 19 of the Richmond City Charter;

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Grant preliminary relief enjoining Defendants, their officers, employees, agents,

successors, and assigns from implementing their loan seizure program;

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Declare that Defendants’ implementation of their loan seizure program constitutes

a violation of 42 U.S.C. § 1983;

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Declare that Defendants’ implementation of their loan seizure program constitutes

tortious interference with contract;

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Declare that Defendants’ implementation of their loan seizure program violates

section 1240.030 of the California Code of Civil Procedure;

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Declare that Defendants’ implementation of their loan seizure program violates

section 1240.050 of the California Code of Civil Procedure;

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Declare that Defendants’ implementation of their loan seizure program violates

section 1263.320 of the California Code of Civil Procedure;

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Declare that Defendants’ implementation of their loan seizure program violates

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Issue a permanent injunction restraining Defendants, their officers, employees,

agents, successors, and assigns from implementing their loan seizure program;

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Award to Trustees their attorneys’ fees and costs pursuant to 42 U.S.C. § 1988;

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Award to Trustees such other and further relief as this Court may deem just and

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B.

Defendants’ Statement

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Defendants request that this case be dismissed for lack of jurisdiction.

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and

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proper.

XI.

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SETTLEMENT AND ADR
Currently, there is no prospect for settlement. The Parties agree that ADR procedures are

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impractical given the nature of this declaratory judgment action. ADR Local Rule 3-5 is

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inapplicable because the case has not been assigned to the ADR Multi-Option Program.

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XII.

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CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES
All parties do not consent to have a magistrate judge conduct all further proceedings
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including trial and entry of judgment.

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XIII. OTHER REFERENCES

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The Parties agree that this case is not suitable for reference to binding arbitration, a

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special master, or, at this time, the Judicial Panel on Multidistrict Litigation.

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XIV. NARROWING OF ISSUES

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A.

Trustees’ Statement

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The issues could be narrowed through summaries of stipulated facts and through trying

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the threshold legal issue of the location of the loans first. In addition, if Defendants would

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stipulate to providing Trustees sufficient notice before filing a condemnation action, it would

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eliminate the need for Trustees to seek a temporary restraining order from the Court.

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B.

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The issues would be narrowed by the dismissal of this case for lack of jurisdiction.

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XV.

Defendants’ Statement

EXPEDITED TRIAL PROCEDURE
The Parties agree that this is not the type of case that can be handled under the Expedited

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Trial Procedure of General Order No. 64 Attachment A.

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XVI. SCHEDULING

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A.

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Trustees are unable to submit jointly proposed scheduling dates because Defendants

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Trustees’ Statement

unilaterally refuse to discuss scheduling until after the hearing on their motion to dismiss.

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B.

Defendants’ Statement

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Defendants submit that scheduling should await a ruling on Defendants’ pending motion

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to dismiss this case for lack of jurisdiction.

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XVII. TRIAL

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A.

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Trustees expect to try this case to the Court and anticipate the trial taking 10-20 days.

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B.

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Defendants are unable to estimate how long it would take to conduct a trial when, at the

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Trustees’ Statement

Defendants’ Statement

present time, there is nothing to have a trial about.
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XVIII. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS

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A.

Trustees’ Statement

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Trustees each have filed the “Certification of Interested Entities or Persons” required by

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Civil Local Rule 3-16. The following persons, firms, partnerships, corporations (including

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parent corporations) or other entities are known by the Parties to have either (i) a financial

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interest in the subject matter in controversy or in a Party to the proceeding; or (ii) any other kind

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of interest that could be substantially affected by the outcome of the proceeding: Plaintiffs The

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Bank of New York Mellon (f/k/a The Bank of New York) and The Bank of New York Mellon

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Trust Company, N.A. (f/k/a The Bank of New York Trust Company, N.A.), as Trustees for the

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Trusts listed in Exhibit A to the Second Amended Complaint; The Bank of New York Mellon

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Corporation, parent corporation of Plaintiffs The Bank of New York Mellon (f/k/a The Bank of

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New York) and The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New

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York Trust Company, N.A.); Plaintiff U.S. Bank National Association, as Trustee for the Trusts

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listed in Exhibit B to the Second Amended Complaint; U.S. Bancorp, parent corporation of

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Plaintiff U.S. Bank National Association; M&T Bank (a/k/a Manufacturers and Traders Trust

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Company), parent of Plaintiff Wilmington Trust Company; Wilmington Trust Corporation,

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parent of Plaintiff Wilmington Trust, National Association, and of M&T Bank; M&T Bank

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Corporation, parent of Wilmington Trust Corporation; any person or entity holding an interest in

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the loans listed in Exhibits D, E, and F to the Second Amended Complaint; any person or entity

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providing funding for Defendants’ seizure program.

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Defendants MRP and Gordian Sword LLC have failed to comply with Civil Local Rule

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3-16. Rule 3-16 requires disclosure of any person with a financial interest in the subject matter

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in controversy or in a party to the proceeding. “Financial interest” means, in part, “ownership of

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a legal or equitable interest, however small.” 28 U.S.C. § 455(d)(4)(i). MRP and Gordian

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Sword LLC disclose that “together [they] have about 60 members” (Dkt. 44), yet they do not

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identify those members nor any of the investors who have provided the $46 million to effectuate

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Defendants’ loan seizure program (Dkt. 34-7 at 34), nor anyone else with a financial interest. At

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a minimum, their members have an ownership interest in the LLC and must be disclosed. L.R.
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3-16(b); 28 U.S.C. § 455(d)(4); Del. Code Ann. tit. 6, § 18-701.

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Contrary to Defendants’ assertions, the Trustees are not required to disclose the identity

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of the certificateholders of the trusts because ownership in a common investment vehicle is

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expressly excluded from the definition of “financial interest.” 28 U.S.C. 455(d)(4)(i); L.R. 3-

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16(b).

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B.

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Defendants have filed the “Certification of Interested Entities or Persons” identifying

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Defendants’ Statement

Mortgage Resolution Partners LLC and Gordian Sword LLC.

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Defendants submit that if the Trustees were correct about the obligation to identify

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investors, then the Trustees should have disclosed the investors in the trusts whose financial

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interests the Trustees allege would be impacted by this action. According to media reports, this

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action is being brought at the behest of such investors but the Trustees have not disclosed the

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parties actually behind this action. The Trustees are misreading 28 U.S.C. 455(d)(4)(1), which

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says only that “[o]wnership in a mutual or common investment fund that holds securities is not a

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‘financial interest’ in such securities.”

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Dated: November 1, 2013

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Respectfully submitted,
MAYER BROWN LLP
DONALD M. FALK
BRONWYN F. POLLOCK
NOAH B. STEINSAPIR
MICHAEL D. SHAPIRO

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By: /s/ Bronwyn F. Pollock
Bronwyn F. Pollock
Attorneys for Plaintiffs
THE BANK OF NEW YORK MELLON
(f/k/a The Bank of New York) and
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.(f/k/a The Bank of New York
Trust Company, N.A.), as Trustees for the trusts
listed on Exhibit A of the Second Amended
Complaint

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Dated: November 1, 2013

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JONES DAY
BRIAN D. HERSHMAN (SBN 168175)
[e-mail]
555 South Flower Street, 50th Floor
Los Angeles, CA 90071-2300
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Tel: [phone]
Fax: [phone]

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JONES DAY
MATTHEW A. MARTEL
(pro hac vice)
[e-mail]
JOSEPH B. SCONYERS
(pro hac vice)
[e-mail]
100 High Street, 21st Floor
Boston, MA 02110
Telephone: [phone]
Facsimile: 617-449-6999

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By: /s/ Brian D. Hershman
Brian D. Hershman
Attorneys for Plaintiff
U.S. BANK NATIONAL ASSOCIATION,
as Trustee

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Dated: November 1, 2013
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ALSTON & BIRD LLP
KURT OSENBAUGH (SBN 106132)
[e-mail]
WHITNEY CHELGREN (SBN 285362)
[e-mail]
333 South Hope Street, Sixteenth Floor
Los Angeles, California 90071
Telephone:
213-576-1000
Facsimile:
213-576-1100

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By: /s/ Kurt Osenbaugh
Kurt Osenbaugh
Attorneys for Plaintiff
WILMINGTON TRUST COMPANY and
WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Trustees

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Dated: November 1, 2013

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ALTSHULER BERSON LLP
SCOTT A. KRONLAND (SBN 171693)
[e-mail]
177 Post Street, Suite 300
San Francisco, CA 94108
By: /s/ Scott A. Kronland
Scott A. Kronland
Attorneys for Defendants
CITY OF RICHMOND, RICHMOND CITY
COUNCIL, MORTGAGE RESOLUTIONS
PARTNERS L.L.C. and GORDIAN SWORD
LLC

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SIGNATURE ATTESTATION

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I, Bronwyn F. Pollock, attest that the concurrence in the filing of this Joint Case

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Management Statement has been obtained from Brian D. Hershman, Kurt Osenbaugh, and Scott

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A. Kronland.

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By: /s/ Bronwyn F. Pollock_____________
Bronwyn F. Pollock
Attorneys for Plaintiffs
THE BANK OF NEW YORK MELLON
(f/k/a The Bank of New York) and THE BANK
OF NEW YORK MELLON TRUST
COMPANY, N.A. (f/k/a The Bank of New York
Trust Company, N.A.), as Trustees for the Trusts
listed in Exhibit A to the Second Amended
Complaint

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