Opinion
4814, 651957/13.
10-26-2017
DEUTSCHE BANK NATIONAL TRUST COMPANY, Solely in its Capacity as Trustee of the Equifirst Loan Securitization Trust 2007–1, Plaintiff–Appellant, v. EQUIFIRST CORPORATION, et al., Defendants–Respondents, EquiFirst Mortgage Corporation of Minnesota, Defendant.
Lowenstein Sandler LLP, New York (Zachary D. Rosenbaum of counsel), for appellant. Sullivan & Cromwell LLP, New York (Jeffrey T. Scott of counsel), for respondents.
Lowenstein Sandler LLP, New York (Zachary D. Rosenbaum of counsel), for appellant.
Sullivan & Cromwell LLP, New York (Jeffrey T. Scott of counsel), for respondents.
TOM, J.P., MANZANET–DANIELS, MAZZARELLI, OING, SINGH, JJ.
Order, Supreme Court, New York County (Marcy Friedman, J.), entered May 26, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss plaintiff's breach of contract claim against defendant Barclays Bank PLC insofar as it was based on Barclays' obligation to cure or repurchase loans affected by EquiFirst's breaches of representations and warranties and to dismiss plaintiff's claim seeking indemnification, including attorneys' fees, unanimously reversed, on the law, with costs, and the motion denied.
Plaintiff trustee sufficiently alleged a claim for indemnification. The indemnification provisions of the Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement reflect the unmistakable intent that plaintiff may recover its legal expenses incurred in enforcing the representations and warranties at issue (see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 492, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989] ; see also Wilmington Trust Co. v. Morgan Stanley Mtge. Capital Holdings LLC, 152 A.D.3d 421, 58 N.Y.S.3d 358 [1st Dept.2017] ; U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 140 A.D.3d 518, 34 N.Y.S.3d 428 [1st Dept.2016] ).
We find that the Representations and Warranties Agreement is ambiguous as to whether Barclays agreed to repurchase mortgage loans containing breaches of representations and warranties by EquiFirst, the originator of the loans. Therefore, dismissal of that portion of plaintiff's breach of contract claim based on Barclays' obligation to cure or repurchase loans affected by EquiFirst's breaches of representations should have been denied (see e.g. Telerep, LLC v. U.S. Intl. Media, LLC, 74 A.D.3d 401, 402, 903 N.Y.S.2d 14 [1st Dept.2010] ).