Nomura Asset Acceptance Corporation Alternative Loan Trust, Series 2007 v. Nomura Credit & Capital, Inc.
Filing
43
OPINION AND ORDER re: 13 MOTION to Dismiss Plaintiff's Amended Complaint filed by Nomura Credit & Capital, Inc. For the foregoing reasons, Defendant's motion to dismiss for lack of subject matter jurisdiction is GRANTED, and this case is dismissed without prejudice. The Clerk of Court is directed to close the entry at Docket No. 13. (Signed by Judge J. Paul Oetken on 6/24/2014) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
NOMURA ASSET ACCEPTANCE
:
CORPORATION ALTERNATIVE LOAN
:
TRUST, SERIES 2007-1, by HSBC BANK USA, :
N.A., in its capacity as trustee,
:
Plaintiff,
:
:
:
-against:
:
NOMURA CREDIT & CAPITAL, INC.,
Defendants. :
:
------------------------------------------------------------ X
13 Civ. 3138 (JPO)
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
Plaintiff, 1 a residential mortgage-backed securities trust, brings this action against
Defendant, the “sponsor” of the trust. Plaintiff alleges that Defendant misrepresented the quality
of a substantial portion of the mortgages it packaged in the trust. This Court does not reach the
merits of that claim because, for the reasons that follow, it lacks subject matter jurisdiction over
this action. Therefore, Defendant’s motion to dismiss is granted and Plaintiff’s complaint is
dismissed without prejudice.
I.
Background
Defendant Nomura Credit & Capital, Inc., (“Nomura”) created Plaintiff Nomura Asset
Acceptance Corporation Alternative Loan Trust, Series 2007-1, (the “Trust”) through a Pooling
and Servicing Agreement (“PSA”) dated April 1, 2007. The trust was settled under New York
common law, with HSBC as the trustee, GMAC Mortgage LLC and Wells Fargo as servicer and
master servicer (respectively), and a pool of residential mortgages as the trust res. The trust
1
Exactly who is suing here is the subject of some dispute and, ultimately, will be dispositive of
the issue at hand.
1
received the pool of mortgage loans in May of 2007 and issued securities—known as
“certificates”—using the pool of loans as collateral shortly thereafter. One of the buyers of the
certificates was American International Group, Inc. (“AIG”).
Nomura made certain representations and warranties as to the quality of the loans in the
trust and promised to “repurchase” any loans that failed to meet the warranted conditions.
Plaintiff alleges that Nomura breached the PSA by misrepresenting the quality of the loans and
failing to repurchase them when various entities gave notice that the loans were defective.
Defendant has moved to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure, arguing that this court lacks subject matter jurisdiction and that the
Plaintiff has failed to state a claim on which relief can be granted. Because this Court concludes
that it lacks jurisdiction to hear this case, it does not address Defendant’s Rule 12(b)(6) motion.
I.
Discussion
A.
Legal Standard
To survive a motion to dismiss under Rule 12(b)(1), a plaintiff “asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence that it exists.”
Makarova v. United States, 201 F.3d 110, 113 (2d. Cir. 2000). If a factual dispute arises in the
context of a 12(b)(1) motion, the Court may consider evidence outside the pleadings. Id. (citing
Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). Well-pleaded facts are
taken as true, but the plaintiff is not entitled to all favorable inferences that can be drawn from
those facts. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing
Norton v. Larney, 266 U.S. 511, 515 (1925)).
B.
Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. Plaintiffs assert diversity of citizenship
as the only ground for invoking that limited jurisdiction. While Article III of the Constitution
2
requires only minimal diversity—that is, diversity of citizenship between any two parties on
opposite sides of an action—the diversity jurisdiction statute requires more. State Farm Fire &
Casualty Co. v. Tashire, 386 U.S. 523, 530-31 (1967). A case can be heard in federal court on
the basis of diversity of citizenship only if no two parties on opposite sides of a case are from the
same state. Id. In this case, Plaintiff is a New York common-law trust bringing an action “by
and through” a National Banking Association whose principal place of business is Virginia;
Defendant is a Delaware corporation whose principal place of business is New York.
The question is how to determine the citizenship of a trust. Courts are split. See Emerald
Investors v. Gaunt Parsippany Partners, 492 F.3d 192, 198-99 (3rd Cir. 2007) (“[T]he method
for determination of a trust’s citizenship rather than being settled is a subject of great differences
of opinion.”). Several options present themselves: (1) The trust could be a citizen of wherever
its trustee is a citizen; (2) the trust could be a citizen of wherever its beneficiaries are citizens; (3)
the trust could be a citizen of wherever its beneficiaries and its trustee are citizens; (4) the trust
could be a citizen of the state whose laws created it; or (5) the trust could share the citizenship of
whatever person or entity is in charge of the litigation—if the trustee controls the litigation, the
trustee’s citizenship controls, but if the beneficiaries control the litigation, their citizenship
controls. See id. at 201-04.
At the outset, the Court notes that options two and three above will produce the same
result in this case. Because one of the beneficiaries of the trust—AIG—is a New York citizen,
the Court would lack subject matter jurisdiction if it considers the beneficiaries at all, regardless
of the citizenship of the trustee. Therefore, the question in this case is whether to consider the
citizenship of the trustee or the beneficiaries, rather than the citizenship of the trustee and the
beneficiaries.
3
The penultimate option is foreclosed by the Supreme Court’s holding in Carden v.
Arkoma Associates, 494 U.S. 185 (1990), and the long line of precedent upon which it relies:
only corporations are treated as citizens of the state that created them. See, e.g., FMAC Loan
Receivable Trust 1997-C v. Strauss, 2003 WL 1888673 (S.D.N.Y. Apr. 14, 2003) (“[Carden held
that] whether legal entities other than corporations . . . ought to be analogized to corporations for
diversity of citizenship purposes was a matter for Congress, not the courts.”).
So, the question becomes: in determining the citizenship of a trust, should courts look to
the citizenship of the trustee or the citizenship of the beneficiaries? “[T]he Second Circuit has
not spoken on the question . . . .” Mills 2011 LLC v. Synovus Bank, 921 F. Supp. 2d 219, 226
(S.D.N.Y. 2013) (Nathan, J.)). 2 And courts within this district are split on this exact question.
Compare id., with Manufacturers and Traders Trust v. HSBC Bank USA, 564 F. Supp. 2d 261,
263-64 (S.D.N.Y. 2008).
The Supreme Court of the United States has spoken to similar issues twice. In Navarro
Sav. Ass’n v. Lee, 446 U.S. 458 (1980), the Court held that, where trustees of an express business
trust sue in their own names, the citizenship of the plaintiff is determined by the citizenship of
the trustee, provided that the trustee has “certain customary powers to hold, manage, and dispose
of assets for the benefit of others.” Id. at 464. Where a trustee brings the action in her own
name, and where she is a bona fide trustee, she is entitled to rely on her own citizenship for
diversity purposes. Id. at 462 (“[T]rustees of an express trust are entitled to bring diversity
actions in their own names and upon the basis of their own citizenship.”).
2
Catskill Dev., L.L.C. v. Park Place Entmt Corp., 547 F.3d 115, 123–24 (2d Cir. 2008)
(Sotomayor, J.), did not decide the issue. See Mills 2011 LLC v. Synovus Bank, 921 F. Supp. 2d
219, 226 (S.D.N.Y. 2013).
4
In Carden, 494 U.S. 185, the Court held that a limited partnership’s citizenship is to be
judged by the citizenship of each of its “members,” limited or otherwise. Carden explicitly
rejected the argument that Navarro changed the basic rules for a trust. “Navarro,” the Court
wrote, “had nothing to do with the citizenship of the ‘trust,’ since it was a suit by the trustees in
their own names.” Id. at 192-93 (emphasis added). Nonetheless, Carden was a case about
limited partnerships, not trusts. So the question remains: does Carden apply to an express trust?
Several courts have cited Navarro for the broad proposition that a trust takes the
citizenship of the trustee. E.g., Mullins v. TestAmerica Inc., 564 F.3d 386, 397–98 & n.6 (5th
Cir. 2009); Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 48 (7th Cir. 2006) (Easterbrook, J.)
(“The citizenship of a trust is that of the trustee . . . .”); Johnson v. Columbia Props. Anchorage,
LP, 437 F.3d 894, 899 (9th Cir. 2006) (Fletcher, J.) (“A trust has the citizenship of its trustee or
trustees.”); Homfeld II, L.L.C. v. Comair Holdings, Inc., 53 Fed. App’x 731, 732 (6th Cir. 2002)
(unpublished); Indiana Gas Co. v. Home Ins. Co., 141 F.3d 314, 317–319 (7th Cir. 1998);
Manufacturers and Traders Trust v. HSBC Bank USA (MTT), 564 F. Supp. 2d 261 (S.D.N.Y.
2008). But some of these cases do not address Carden at all, and most are not concerned—at
least as a principal matter—with the issue facing the Court here. Cf. Mills 2011 LLC v. Synovus
Bank, 921 F. Supp. 2d 219, 224 (S.D.N.Y. 2013) (Nathan, J.) (“The courts . . . that have
concluded that the citizenship of a trust turns exclusively on the citizenship of its trustees have
not been presented with th[is] question . . . because the trustees have sued in their own names, or
have failed to squarely address the question and instead relied, without analysis, on Navarro as
controlling.”) (citing Catskill, 547 F.3d at 123–24, Mullins, 564 F.3d at 397–98 & n. 6; Hicklin
Eng’g, 439 F.3d at 347–48; Johnson, 437 F.3d 894, 900; Homfeld II, 53 Fed. App’x at 732); see
also MTT, 564 F. Supp. 2d 261 (relying on Navarro and not citing Carden).
5
On the other hand, several courts have relied on Carden to distinguish Navarro and have
held that the citizenship of a trust is determined—at least in part—by the citizenship of its
beneficiaries. E.g., Emerald Investors v. Gaunt Parsippany Partners, 492 F.3d 192, 203-04 (3d
Cir. 2007); Riley v. Merrill Lynch, Pierce, Fenner, & Smith, 292 F.3d 1334, 1337 (11th Cir.
2002), abrogated in part on other grounds as recognized in Instituto De Prevision Militar v.
Merrill Lynch, 546 F.3d 1340, 1348 (11th Cir. 2008); Mills, 921 F. Supp. 2d at 226; Arias v.
Budget Truck Trust I, 2009 WL 604864, at *1, (E.D.N.Y. Mar. 5, 2009); FMAC Loan Receivable
Trust 1997–C v. Strauss, 2003 WL 1888673, at *1 (S.D.N.Y. Apr. 14, 2003); Pavlov v. Bank of
N.Y. Co., 135 F. Supp. 2d 426, 432 (S.D.N.Y. 2001), vacated on other grounds 25 Fed. App’x 70
(2d Cir. 2002); Yueh-Lan Wang ex. rel. Wong v. NM-US Trust, 841 F. Supp. 2d 198 (D.D.C.
2012) (Boasberg, J.). 3
The problem with the cases that look only to the trustee is that they ignore Carden. To
hold that Navarro controls when the action is brought in the name of the trust ignores the Carden
Court’s clear statement that Navarro did not decide how to determine the citizenship of a trust.
494 U.S. at 192-93 (“Navarro had nothing to do with the citizenship of the ‘trust . . . .’”). Absent
Navarro, the Carden Court reiterated the general rule, which the Court has followed with
“admirable consistency.” Id. at 189. “Artificial entities”—that is to say, organizations other
than corporations 4—have the citizenship of all their members. Id.
3
Defendants argue that Quantlab Financial v. Tower Research Capital, 715 F. Supp. 2d. 542
(S.D.N.Y. 2010) decided the issue in their favor. It did not. Compare (Dkt. No. 14, Defendant’s
Memorandum of Law in Support of Motion to Dismiss at 16) (“[Quantlab] hold[s] that diversity
jurisdiction should consider citizenship of both trustees and beneficiaries[.]”), with Quantlab,
715 F. Supp. 2d. at 547 n.2 (“While the citizenship of a trust may also depend on the citizenship
of a trust’s beneficiaries, this action does not present an occasion to address this issue.”)
(emphasis added).
4
There is one possible exception: certain creatures of Puerto Rican civil law that are more or less
identical to corporations. See Puerto Rico v. Russell & Co., 288 U.S. 476 (1933).
6
Carden’s use of the word “members” to describe the interest-holders in an
unincorporated association—such as a trust—might suggest that it did not mean to cover trusts
because, as a matter of general legal usage, one does not ordinarily refer to any of the parties to a
trust as “members.” See Emerald Investors, 492 F.3d at 203 (“[S]o far as we are aware,
historically the term ‘members’ has not been applied in the context of a trust.”). Two
observations suffice to dismiss this objection. First, the Carden Court viewed trusts as analogous
to the unincorporated associations it specifically addressed. Otherwise, why the extended
discussion of Navarro? Second, the Carden Court reinforced the “doctrinal wall” separating
corporations from all other unincorporated associations for the purposes of diversity jurisdiction.
See Carden, 494 U.S. at 189 (citing Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 151
(1965)). If the world of diversity jurisdiction is divided between corporations on one side of the
wall, and every other kind of organization on the other, it would be incongruous to treat trusts
differently from all other artificial entities merely because lawyers do not ordinarily refer to
trustees, settlors, and beneficiaries as “members” of the trust. Carden’s use of the word
“members,” therefore, does not relieve this Court of the responsibility to decide whether that
case applies to trusts.
This Court concludes that Carden applies to trusts. The thorough and well-reasoned
opinions of Judges Greenberg, Nathan, and Boasberg are persuasive on the point. See Emerald
Investments, 492 F.3d 192 (Greenberg, J.); Mills, 921 F. Supp. 2d 219 (Nathan, J.); Yueh-Lan,
841 F. Supp. 2d 198 (Boasberg, J.). These opinions recognize that Navarro was a case in which
the trustee sued—and recognize that Carden found that fact dispositive. So they reject the
trustee-only approach. Similarly, these courts reject the real-party in interest test—option (5)
above—as inconsistent with Carden. The real-party test applies only when the suit is in the
name of the trustee. Carden, 494 U.S. at 187 n.1.
7
The rule is, accordingly, as follows: where the action is brought in the name of the trust,
the citizenship of the beneficiaries—at least in part—controls. Courts need inquire no further.
Where the action is brought in the name of the trustee, courts must inquire into whether the
trustee is more than just a “sham” who has no real power to control the litigation or the property
at issue. Navarro, 446 U.S. at 465. If the trustee possesses “certain customary powers to hold,
manage, and dispose of assets for the benefit of others,” id. at 464, she is not a sham trustee, and
her citizenship controls. If she does not possess those customary powers, courts will look to the
real party who does.
This rule might seem overly technical. After all, it places much weight on the name of
the parties in the caption, a fact that rarely has legal significance. It exalts form over function.
But exalting form over function accords with the Supreme Court’s interpretation of § 1332. E.g.,
Carden, 494 U.S. at 195 (“The resolutions we have reached above can validly be characterized
as technical, precedent-bound, and unresponsive to policy considerations . . . . But . . . that has
been the character of our jurisprudence in this field . . . .”). And the rule is easy to apply—and,
therefore, leads to predictability and uniformity of results. Even if there are thousands of
beneficiaries to a given trust, courts need only find one from the same state as the opposing
party. Contra MTT, 564 F. Supp. 2d at 263 (“[T]he only efficient and practical course to
prosecute the action [where there are many beneficiaries of a trust] is for the . . . trustee to be
treated as a representative party in any lawsuit involving a trust.”) Because jurisdictional
decisions ought to be made at the beginning of a court’s inquiry, the ease with which those
decisions may be made is of particular importance.
This Court has decided to consider the citizenship of the trustee when the action is
brought in her name and to consider that of the beneficiaries when the action is brought in the
name of the trust. The dispositive question, then, is who is suing Nomura.
8
Plaintiff’s First Amended Complaint reads:
“Plaintiff, Nomura Asset Acceptance Corporation Alternative Loan Trust, Series 20071 (the ‘Trust’ or ‘NAA 2007-1’), acting by and through HSBC Bank USA, National
Association, not individually but solely in its capacity as Trustee (the ‘Trustee’ or
‘HSBC’) of the Trust acting by and through its attorneys McKool Smith P.C. and at the
direction of certain holders of residential mortgage-backed securities issued by the
Trust, brings this complaint . . . .”
(Dkt. No. 41.) The Plaintiff is captioned “NOMURA ASSET ACCEPTANCE CORPORATION
ALTERNATIVE LOAN TRUST, SERIES 2007-1, by HSBC BANK USA, N.A., in its capacity
as trustee.” Id. (capitalization in original).
The complaint says the trust is bringing the action. Perhaps, though, the phrase “by and
through” can be stretched to mean that the entity through whom the action is brought is the
plaintiff. But if the phrase “by and through” in the complaint meant that HSBC is the plaintiff,
then the fact that HSBC is acting “by and through” counsel, McKool Smith, would make counsel
the plaintiff. Id. That cannot be right.
Plaintiff is the Trust and, therefore, the Court will look to the citizenship of its
beneficiaries to determine its citizenship. One of the beneficiaries of the trust is AIG. (See Dkt.
No. 15, Craner Declaration, Ex. G.) “AIG is a Delaware corporation whose principal place of
business is in New York, New York.” Duncan v. Am. Int’l Grp., Inc., 2002 WL 31873465, at *1
(S.D.N.Y. Dec. 23, 2002); see also Dkt. No. 15, Craner Declaration, Exhibit L. A corporation is
treated as a citizen of both its state of incorporation and the state of its principal place of
business. 28 U.S.C. § 1332(c). AIG—and, therefore, the Trust—are New York citizens.
Accordingly, diversity is defeated and this Court lacks subject matter jurisdiction.
III.
Conclusion
For the foregoing reasons, Defendant’s motion to dismiss for lack of subject matter
jurisdiction is GRANTED, and this case is dismissed without prejudice.
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The Clerk of Court is directed to close the entry at Docket No. 13.
SO ORDERED.
Dated: June 24, 2014
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge
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