Summary
In Evergreen, the court similarly rejected Plaintiff's argument that the statute of limitations for breach of contract action did not begin to run until after the defendant refused, by letter, to indemnify plaintiff for losses it suffered on a loan purchased from defendant.
Summary of this case from Residential Funding Co. v. Cmty. W. Bank, N.A.Opinion
Case No. C10–0172JLR.
2011-06-6
LEHMAN BROTHERS HOLDINGS, INC., Plaintiff,v.EVERGREEN MONEYSOURCE MORTGAGE COMPANY, Defendant.
Christopher A. Pesch, Locke Lord Bissell & Liddell LLP, Chicago, IL, Jason L. Sanders, Locke Lord Bissell & Liddell LLP, Dallas, TX, Sarah Weaver, Sarah Weaver PLLC, Seattle, WA, for Plaintiff.Jordan M. Hecker, Joshua Brittingham, Hecker Wakefield Feilberg PS, Seattle, WA, for Defendant.
Christopher A. Pesch, Locke Lord Bissell & Liddell LLP, Chicago, IL, Jason L. Sanders, Locke Lord Bissell & Liddell LLP, Dallas, TX, Sarah Weaver, Sarah Weaver PLLC, Seattle, WA, for Plaintiff.Jordan M. Hecker, Joshua Brittingham, Hecker Wakefield Feilberg PS, Seattle, WA, for Defendant.
JAMES L. ROBART, District Judge.
I. INTRODUCTION
Before the court are Defendant Evergreen Moneysource Mortgage Company's (“Evergreen”) motion for summary judgment (Dkt. # 27), and Plaintiff Lehman Brothers Holdings, Inc.'s (“LBHI”) motion for summary judgment (Dkt. # 28). Having reviewed the motions, the parties' submissions in support and opposition thereto, the balance of the record, and the governing law, and having heard oral argument on June 2, 2011, the court GRANTS Evergreen's motion for summary judgment on the basis of expiration of the statutory limitations period (Dkt. # 27), and DENIES LBHI's motion for summary judgment as MOOT (Dkt. # 28).
II. BACKGROUND
LBHI filed this action against Evergreen on January 28, 2010. (Compl. (Dkt. # 1).) LBHI alleges claims for breach of contract and breach of express warranty arising out of a Loan Purchase Agreement (“LPA”) entered into between Evergreen and Aurora Loan Services, Inc. (“ALS”) on June 16, 2000. ( See Compl.; Baker Decl. (Dkt. # 29) Exs. 1–A & 1–C.) The LPA incorporates the terms and conditions of ALS's Seller's Guide. ( See Compl.; Baker Decl. Exs. 1–A & 1–C.) Any loans purchased under the LPA were to be made “pursuant to the terms and conditions of the Seller [sic] Guide.” (Baker Decl. Ex. 1–A.)
ALS is the wholly owned subsidiary of Lehman Brothers Bank, FSB n/k/a Aurora Bank, FSB (“LBB”), and LBHI is a parent corporation of both LBB and ALS. (Baker Decl. ¶ 4.) ALS is the authorized agent, servicer, and/or master servicer for LBB and LBHI for certain mortgage loans in which LBB and LBHI have an interest, including the mortgage loan that is the subject of this litigation. ( Id.) LBHI contends that, through assignment, it is the successor-in-interest of LBB and ALS with respect to rights under the LPA with Evergreen. (Compl. at 3.) For ease of reference, both LBB and ALS will be referred to simply as “LBB” throughout the remainder of this order.
Evergreen is a mortgage banker. (Moley Decl. (Dkt. # 27–4) ¶ 2.) On November
16, 2001, Evergreen began selling various loans to LBB pursuant to the LPA. (Baker Decl. ¶¶ 2, 5.) Under sections 703(1), 703(12) and 703(36) of the Seller's Guide, Evergreen made certain representations, warranties and covenants regarding the accuracy and truthfulness of the information contained in “any Mortgage Loan File,” including “the Mortgager's application for the Mortgage Loan,” and “the property appraisal or valuation.” ( Id. Ex. 1–C §§ 703(1), 703(12), 703(36).)
LBHI asserts that Evergreen breached the representations, warranties, and covenants within the Seller's Guide pertaining to a mortgage loan that Evergreen entered into with Mr. Wayne Stiffler (“the Stiffler loan”) and subsequently sold to LBB. ( See generally Compl.) LBHI asserts that certain documents that Evergreen submitted with the Stiffler loan contain untrue statements and misrepresentations. (LBHI Mot. (Dkt. # 28) at 7.) First, LBHI asserts Mr. Stiffler misrepresented his base employment income at the time he executed his application for a mortgage loan. ( Id. at 8–11.) Second, LBHI asserts that the origination appraisal overstates the value of Mr. Stiffler's property. ( Id. at 11–13.) LBHI asserts that pursuant to the Seller's Guide, Evergreen agreed to “indemnify” LBHI for losses pertaining to mortgage loans containing misrepresentations in the loan files. ( Id. at 13–15.) LBHI has moved for summary judgment with regard to these claims. ( Id. at 13–24.)
Evergreen has also moved for summary judgment relying primarily on a variety of affirmative defenses. ( See generally Evergreen Mot. (Dkt. # 27).) One of the affirmative defenses raised by Evergreen in its motion for summary judgment is expiration of the statute of limitations for contract actions. ( Id. at 22.) Mr. Stiffler executed his application for a mortgage loan with Evergreen on April 24, 2003. (Baker Decl. Ex. 1–K.) The origination appraisal with regard to Mr. Stiffler's property is dated March 14, 2003. ( Id. Ex. 1–L.) LBB purchased the Stiffler loan from Evergreen on May 12, 2003. (Moley Decl. (Dkt. # 27–4) Ex. 5; Baker Decl. ¶ 7.) The Stiffler application and the origination appraisal were documents furnished to LBB at the time that the Stiffler loan was sold to LBB. (LBHI Mot. at 8.) On June 3, 2003, LBB sold and assigned the Stiffler loan to LBHI. (Baker Decl. ¶¶ 5–6 & Exs. 1–D & 1–G.)
On September 18, 2008, LBHI filed for voluntary bankruptcy under Chapter 11 of of the United States Bankruptcy Code. See In re Lehman Brothers Holdings, Inc., et al., No. 08–1355(JMP) (Bankr.S.D.N.Y.). LBHI filed this action against Evergreen on January 28, 2010 in an effort to preserve the value of its assets for the benefit of its creditors in the bankruptcy proceedings. (LBHI Resp. (Dkt. # 35) at 21.) However, LBB did not execute a written agreement to assign its rights under the LPA and the Seller's Guide to LBHI until February 24, 2011 (Baker Decl. Ex. 1–H), more than one year after LBHI filed suit on January 28, 2010, and more than two years after LBHI filed for bankruptcy on September 18, 2008.
III. ANALYSIS
A. Standards
Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits, when viewed in the light most favorable to the nonmoving party, “show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007). The moving party bears the initial burden of showing there is no genuine issue of material fact and that
he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets his or her burden, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Cline v. Indus. Maint. Eng'g. & Contracting Co., 200 F.3d 1223, 1229 (9th Cir.2000). The non-moving party “must make a showing sufficient to establish a genuine dispute of material fact regarding the existence of the essential elements of his case that he must prove at trial.” Galen, 477 F.3d at 658.
B. Statute of Limitations
Both parties agree that New York substantive law governs this contract action. ( See LBHI Mot. at 15–16; Evergreen Mot. at 3; see also Baker Decl. Ex. 1–C § 713 (“The [LPA] shall be construed in accordance with the substantive law of the State of New York....”).) In New York, the statute of limitations with regard to a contract action is six years. CPLR § 213(2) (McKinney). The statute of limitations for contract actions begins to run from the date of the first alleged breach, even in the event that damages do not accrue until a later date. Nat'l Urban Ventures, Inc. v. City of Niagara Falls, 78 A.D.3d 1525, 910 N.Y.S.2d 615, 616 (2010) (citing Ely–Cruikshank Co., Inc. v. Bank of Montreal, 81 N.Y.2d 399, 402, 599 N.Y.S.2d 501, 615 N.E.2d 985 (1993)).
As noted above, LBB purchased the Stiffler loan from Evergreen on May 12, 2003. (Moley Decl. Ex. 5; Baker Decl. ¶ 7 & Ex. 1–J.) According to LBHI, at the time that LBB purchased the loan, the Mortgage Loan File “contained untrue statements and misrepresentations” (LBHI Mot. at 7), including misrepresentations concerning Mr. Stiffler's income ( id. at 8–11), and misrepresentations concerning the value of the property ( id. at 11–13). Evergreen asserts, therefore, that the statute of limitations with regard to LBHI's breach of contract claims began to run on May 12, 2003, the date that LBB acquired the loan. See, e.g. Hernandez v. Bank of Nova Scotia, 76 A.D.3d 929, 908 N.Y.S.2d 45, 46 (2010) (holding that limitations period for breach of contractual undertakings against a bank began to run when the bank allegedly provided false information to an accounting firm in breach of those undertakings).
If the accrual date is May 12, 2003, then the applicable six-year limitations period expired on May 12, 2009. Because LBHI did not file suit until January 28, 2010, more than eight months after termination of the limitations period, Evergreen asserts that LBHI's breach of contract claims are barred. (Evergreen Mot. at 22.)
The fact that LBHI may not have discovered Evergreen's alleged misrepresentations until a later date does not alter the initiation of the limitations period. Hernandez, 908 N.Y.S.2d at 46.
LBHI responds to Evergreen's statute of limitations argument in a number of ways. First, LBHI asserts that the statute of limitations accrual date is actually November 7, 2009, rather than May 12, 2003. On October 8, 2009, a representative of LBHI sent a letter to Evergreen demanding payment for the $135,662.66 loss LBHI suffered on the liquidated Stiffler loan. (Moley Decl. Ex. 12.) LBHI asserts that Evergreen breached sections 710 and 711 of the Seller's Guide by failing to “indemnify” LBHI for this loss within thirty (30) days of LBHI's demand. (LBHI Resp. (Dkt. # 35) at 22 n. 7.) As a result, according to LBHI, its breach of contract claims against Evergreen actually accrued on November 7, 2009 (30 days following LBHI's October 8, 2009 demand), rather than on May 12, 2003. ( Id.)
LBHI's argument concerning the statute of limitations accrual date is
flawed. First, Evergreen's duty under sections 710 and 711 to either repurchase mortgage loans or “indemnify”
for losses incurred as a result of a mortgage loan is only triggered by “a breach of any of the representations, warranties, or covenants contained in Section 700 through 710 herein....” (Baker Decl. Ex. 1–C at § 710.) As noted above, Evergreen is alleged to have provided the subject misrepresentations to LBB on May 12, 2003. Under New York law, the statute of limitations begins to run from the date of the first alleged breach of a contract. See Nat'l Urban Ventures, 910 N.Y.S.2d at 616. Thus, even assuming that Evergreen's failure to pay LBHI $135,662.66 by November 7, 2009 constituted a breach of the LPA and Seller's Guide, it would not have commenced the running of the statute of limitations. LBHI may not extend the accrual date of the statute of limitations simply by delaying its demand for payment. Hahn Automotive Warehouse, Inc. v. Am. Zurich Ins. Co., 81 A.D.3d 1331, 916 N.Y.S.2d 678, 680 (2011) (finding contention that contract claims did not accrue until demand for payment without merit). To find otherwise would allow LBHI to essentially circumvent the statute of limitations by indefinitely deferring its demand for payment. A cause of action for breach of contract accrues when the party making the claim possesses a legal right to demand payment. Id. “Where, as here, the claim is for payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the [party making the claim] possesses a legal right to demand payment.” Id. (quoting Minskoff Grant Realty & Mgmt. Corp., 71 A.D.3d 843, 897 N.Y.S.2d 485, 487 (2010)). The date upon which LBHI (or its predecessor LBB) could have initially demanded payment for Evergreen's alleged misrepresentations was May 12, 2003—the same day that LBB purchased the Stiffler loan from Evergreen.
The fact that LBHI refers to Evergreen's alleged obligation as one of “indemnity” does not alter the commencement date of the limitations period. Under New York law, a claim for contractual indemnity ordinarily accrues either when judgment is entered or liability is imposed upon the party seeking indemnification, see, e.g., Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 544 N.Y.S.2d 359, 363 (1989), or when the party seeking indemnification has satisfied a judgment, see, e.g., McCabe v. Queensboro Farm Prods., Inc., 22 N.Y.2d 204, 292 N.Y.S.2d 400, 402–03, 239 N.E.2d 340 (1968). However, despite LBHI's characterization of its claim as one for “indemnity,” and despite the imprecise use of this term in the Seller's Guide, LBHI has not alleged it suffered any liability to a third-party. Rather, LBHI's allegations comprise a straightforward claim for damages pertaining to its predecessor's purchase of the Stiffler loan. ( See Compl.) New York courts have rejected similar attempts by plaintiffs to improperly circumvent statutes of limitations by simply recasting their claims as ones for indemnity. See, e.g., Germantown Central School Dist. v. Clark, Clark, Millis & Gilson, 294 A.D.2d 93, 743 N.Y.S.2d 599, 605 (2002) (citing Town of Brookhaven v. MIC Property and Cas. Ins. Corp., 245 A.D.2d 365, 668 N.Y.S.2d 37, 37 (1997)).
LBHI also counters that its claims are saved from Evergreen's statute of limitations defense pursuant to provisions contained within Title 11 of the United States Code (“the Bankruptcy Code”). On September 15, 2008, LBHI commenced voluntary bankruptcy under Chapter 11 of the Bankruptcy Code.
Section 108(a) of the Bankruptcy Code states:
The court is permitted to take judicial notice of documents filed in a bankruptcy case. In re Soporex, Inc., 446 B.R. 750, 765 n. 12 (Bankr.N.D.Tex.2011). The court, therefore, takes judicial notice of LBHI's Chapter 11 bankruptcy filing. See In re Lehman Brothers Holdings, Inc., et al., No. 08–13555(JMP) (Bankr.S.D.N.Y.). Pursuant to sections 1107(a) and 1108 of the Bankruptcy Code, LBHI is authorized to operate its business and manage its properties as a debtor in possession for the benefit of its creditors, and it is on this basis that LBHI is prosecuting the present action. See 11 U.S.C. §§ 1107(a) & 1108.
If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of—(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) two years after the order for relief.11 U.S.C. § 108(a). The commencement of a voluntary Chapter 11 case constitutes an “order of relief” under section 108(a)(2). 11 U.S.C. § 301(b). Thus, pursuant to section 108(a)(2), LBHI asserts that it had two years from the date it filed for voluntary bankruptcy to commence this lawsuit because the six year limitations period had not yet expired when LBHI filed its bankruptcy petition. According to LBHI, therefore, the limitations period, adjusted by section 108(a)(2), would not expire until September 15, 2010, more than eight months following the date that LBHI filed suit. (LBHI Mot. at 21–22.)
LBHI's arguments with regard to application of the Bankruptcy Code, however, are also flawed. The only written assignment agreement before the court between LBHI and LBB with regard to rights under the LPA and Seller's Guide is dated February 24, 2011—more than a year after LBHI commenced suit in this action on January 28, 2010. ( Compare Baker Decl. Ex. 1–H with Compl.) Thus, by the time LBHI had acquired rights on February 24, 2011 to bring an action under the LPA and Seller's Guide against Evergreen, the statute of limitations on LBB's claim against Evergreen had already expired—irrespective of whether the statute of limitations expired on May 12, 2009, or on September 15, 2010 as adjusted by section 108(a)(2) of the Bankruptcy Code.
LBHI nevertheless asserts that the February 24, 2011 assignment is valid because it was executed prior to trial. ( See LBHI Reply (Dkt. # 38) at 11–12.) Some courts have found that such assignments, executed after suit has been filed but before trial, are valid so long as the defendant suffers no prejudice. See, e.g., Dubuque Stone Prods. Co. v. Fred L. Gray Co., 356 F.2d 718, 723–24 (8th Cir.1966) (“We cannot accept [the defendant's] argument that the assignment was invalid because it was made after this suit had been filed ... [, where] [t]he assignment occurred after filing, but before trial, and [the defendant] suffered no prejudice therefrom ....”); Decorative Ctr. of Houston, L.P. v. Direct Response Pubs., Inc., 264 F.Supp.2d 535, 543–44 (S.D.Tex.2003) (finding that plaintiff had standing to bring suit even though assignment providing basis for suit was made one year after the initiation of litigation, after the close of discovery, and after defendant moved for summary judgment, where there was no prejudice to defendant based on the timing of the assignment); Malikyar v. Sramek, No. C07–03533, 2008 WL 4891020 at *4 (N.D.Cal. Nov. 12, 2008) (“An assignment made after the suit has been filed is not invalid if the assignment was made before trial, and the defendant is not prejudiced ... [and] ... does not ... lose the right to assert any defenses against the assignee which it could have asserted against the assignor.”).
In this case, however, Evergreen would suffer prejudice if the court were to recognize the post-filing assignment. LBHI filed suit on January 28, 2010, and thus did not assert a claim based on the LPA and
the Seller's Guide prior to the expiration of the May 12, 2009 statute of limitations on the original claim. Thus, the timeliness of LBHI's claim depends on the two-year extension to the statute of limitations provided by the Bankruptcy Code in section 108(a)(2), 11 U.S.C. § 108(a)(2), and the relation back of the February 24, 2011 assignment to the date that the complaint was filed on January 28, 2010. In remarkably similar circumstances, the Ninth Circuit refused to recognize an assignment that was granted after the filing of a complaint, where such recognition would serve to revive a claim previously extinguished by the limitations period. See United States ex rel. Wulff v. CMA, Inc., 890 F.2d 1070, 1075 (9th Cir.1989) (citing United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 34 S.Ct. 550, 58 L.Ed. 893 (1914)). In Wulff, the Ninth Circuit held that a complaint that was amended to reflect acquisition of a cause of action by assignment did not relate back under Federal Rule of Civil Procedure 15(a) where the action had been commenced in circumstances in which a “party with no cause of action file[d] a lawsuit to toll the statute of limitations and [eight months] later obtain[ed] a cause of action through assignment.” Id.
Further, courts have held that the extension of time to file suit provided by section 108(a)(2) applies only to claims that the debtor could have brought prior to or on the date of the bankruptcy filing. Sender v. Mann, 423 F.Supp.2d 1155, 1166 (D.Colo.2006) (citing In re Dry Wall Supply, Inc., 111 B.R. 933, 935 n. 2 (D.Colo.1990)); In re Read, 442 B.R. 839, 844 (Bankr.M.D.Fla.2011) (“Section 108(a) is only available to extend the period for prepetition claims”). Section 108(a)(2) does not afford relief with regard to claims for which the limitations period has expired prior to filing of the debtor's bankruptcy petition. See In re Soporex, Inc., 446 B.R. 750, 772 (Bankr.N.D.Tex.2011). At the time that LBHI filed bankruptcy on September 15, 2008, LBHI had no right to sue Evergreen based on the LPA or the Seller's Guide because the assignment of LBB's rights under those documents did not occur under February 24, 2011. Because LBB's claims were assigned to LBHI after the date of LBHI's bankruptcy petition, the extended statute of limitations does not apply to these claims. Sender, 423 F.Supp.2d at 1166 (“Since [plaintiff's] claim on behalf of the ... trust were assigned to him after the date of the bankruptcy petition, the extended statute of limitations does not apply to these claims.”) (citing In re Ward, 42 B.R. 946, 950 (Bankr.M.D.Tenn.1984)). Accordingly, the court finds that section 108(a) of the Bankruptcy Code does not apply to extend the statute of limitations with regard to LBHI's contract claims against Evergreen.
Nevertheless, LBHI asserts that despite the February 24, 2011 date on the assignment agreement between LBHI and LBB, the assignment of LBB's claims to LBHI actually occurred earlier than this date. (LBHI Reply at 12 n. 5.) The only evidence in the record that LBHI cites to support this notion is a statement in the recitals of the February 24, 2011 assignment. The portion of the recitals relied upon by LBHI states in full:
WHEREAS, in furtherance of Assignor's [LBB] sale of the Mortgage Loans to Assignee [LBHI] and of Assignee's investment purposes in acquiring the Mortgage Loans, Assignor and Assignee have previously agreed to have Assignor assign, transfer and convey to Assignee rights and remedies Assignor may have with respect to the Mortgage Loans under the Agreements between Assignor and those Sellers identified on Exhibit A, to the extent such rights and remedies are assignable under the terms of such Agreements, and Assignor and Assignee
now wish to document that prior agreement. ( Id.) LBHI argues that the statute of limitations is an affirmative defense with respect to which Evergreen bears the burden of proof. (LBHI Reply at 12 n. 5.) LBHI further argues that because “Evergreen has not offered any summary judgment evidence as to when the previous agreement of the assignment of rights and remedies referenced in the Assignment Agreement occurred,” Evergreen “has failed to meet its burden.” ( Id.)
LBHI's argument concerning the recital in the February 24, 2011 assignment agreement also fails. Evergreen carries the burden of establishing a failure to comply with the statute of limitations. Chachas v. City of Ely, 615 F.Supp.2d 1193, 1203 (D.Ariz.2009) (citing Houghton v. South, 965 F.2d 1532, 1536 (9th Cir.1992)). As the party moving for summary judgment, Evergreen also carries the initial burden of establishing the absence of a genuine issue of fact with regard to the affirmative defense. Id. The only assignment between LBB and LBHI that is actually before the court is the one dated February 24, 2011. (Baker Decl. Ex. 1–H.) Indeed, the February 24, 2011 assignment is the only assignment that LBHI has offered into evidence.
As demonstrated by Evergreen and discussed above, this assignment, which occurred after LBHI filed for bankruptcy on September 15, 2008 and after LBHI filed suit against Evergreen on January 28, 2010, is ineffective to save LBHI's contract claims from Evergreen's defense of expiration of the statute of limitations. Thus, Evergreen has carried its initial burden with regard to its motion for summary judgment on the statute of limitations.
In his declaration on LBHI's behalf, John Baker states that “LBB and LBHI entered into an Assignment Agreement (the ‘Assignment’) whereby LBB assigned to LBHI all of its rights and remedies in and to its agreements with Evergreen relating to the Stiffler Loan, including all rights in and to any and all representations, warranties, and covenants Evergreen made to LBB in its agreements and the Seller's Guide and rights to repurchase and indemnify remedies, among other things.” (Baker Decl. ¶ 6.) In making the foregoing statement, Mr. Baker cites only the February 24, 2011 assignment agreement. ( Id. (citing Ex. H–1).) He makes no reference to any earlier assignment agreement between LBB and LBHI.
Because Evergreen has met its initial burden, the burden then shifts to LBHI to set forth specific facts showing the existence of genuine issues of material fact with regard to Evergreen's statute of limitations affirmative defense. Chachas, 615 F.Supp.2d at 1203. In order to save its claim from Evergreen's statute of limitations defense, LBHI must raise a factual issue concerning an assignment of LBB's rights and remedies that occurred prior to the filing of LBHI's September 15, 2008 bankruptcy petition. If such an assignment exists, then it is incumbent upon LBHI to produce evidence of the previous assignment to withstand summary judgment. Other than vague statements concerning the possible existence of an earlier assignment contained within the recitals of the February 24, 2011 assignment, LBHI has offered no such evidence. Indeed, a careful reading of the recital language does not indicate that an earlier assignment was actually executed. The recital language merely states that the parties “previously agreed to have [LBB] assign” its rights. It does not state that any such assignment was ever actually executed.
“A non-movant's bald assertions or a mere scintilla of evidence are both insufficient to withstand summary judgment.” FTC v. Stefanchik, 559 F.3d 924, 929 (9th Cir.2009) (citing Galen v. Cnty. of Los Angeles, 477 F.3d 652, 658 (9th Cir.2007)).
At most, LBHI has offered a mere scintilla of evidence concerning an alleged assignment that occurred prior to the February 24, 2011 assignment. Further, there is not even a scintilla of evidence concerning the date of any purported earlier assignment, or more specifically that the date was prior to LBHI's bankruptcy petition. LBHI has failed to produce this evidence even though such evidence logically would be both within LBHI's control and critical to LBHI's ability to withstand summary judgment regarding the limitations period. Absent any evidence concerning the actual execution of a prior assignment or the date of any such execution, the court finds that the scintilla of evidence offered by LBHI in the recitals of the February 24, 2011 assignment is insufficient to withstand summary judgment.
During oral argument, counsel for LBHI asserted that there was an earlier 2008 written assignment between LBB and LBHI that named numerous entities and included various LPAs. Counsel for LBHI admitted, however, that the LPA involving Evergreen was not included in the earlier 2008 written assignment. In any event, there is no evidence of this earlier written assignment before the court. Counsel for LBHI also indicated during oral argument that there may have been an earlier oral assignment between LBHI and LBB concerning the Evergreen LPA. Again, LBHI has not submitted any such evidence to the court even though, as a party to the alleged oral assignment, this evidence logically would be within LBHI's control. Further, under New York law, an oral agreement to assign a right to purchase a mortgage loan is governed by the Statute of Frauds, and therefore ordinarily unenforceable. See Ognenovski v. Wegman, 275 A.D.2d 1013, 713 N.Y.S.2d 594, 595–96 (2000).
Finally, LBHI asserts that the court should not enter summary judgment with regard to the statute of limitations because Evergreen failed to raise it as an affirmative defense in its answer to the complaint. Although in a diversity action, the federal court must apply the applicable state statute of limitations, the Federal Rules of Civil Procedure determine the manner and time in which the defense may be raised and when waiver occurs. Han v. Mobil Oil Corp., 73 F.3d 872, 877 (9th Cir.1995); Perry v. O'Donnell, 749 F.2d 1346, 1353 (9th Cir.1985). Under federal law, absent a showing of prejudice by the plaintiff, a defendant may raise an affirmative defense for the first time in a motion for summary judgment, including the defense of the statute of limitations. Han, 73 F.3d at 877 (stating that “we have ruled that an affirmative defense based on the lapse of a statutory limitation period may be raised for the first time on a motion for summary judgment when there is no prejudice to the plaintiff.”); Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir.1984).
LBHI has asserted that it is prejudiced because “it has not been afforded any opportunity to respond until now or conduct any discovery related to this defense.” (LBHI Resp. at 20.) First, the fact that LBHI's initial opportunity to respond to Evergreen's statute of limitations defense occurred during the course of summary judgment briefing does not demonstrate prejudice. The parties have had had ample opportunity to address the issue in their summary judgment briefs and accompanying filings. Under these circumstances, LBHI has not been prejudiced in its ability to respond. See Sedivy v. City of Boise, No. 1:05CV00083, 2006 WL 1793607, at *3 (D.Idaho June 28, 2006) (finding that although statute of limitations was not raised until motion for summary judgment, plaintiff had ample opportunity to respond in her opposition brief); see also Cedars–Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1128–29 (9th Cir.1999) (finding no prejudice to plaintiff where affirmative defense of the statute of limitations was not raised until defendant's reply
brief because plaintiff was able to file a sur-reply). Second, LBHI does not indicate what discovery it would need to undertake from Evergreen in order to avoid any alleged prejudice with regard to Evergreen's statute of limitations defense. Information concerning an earlier assignment by LBB to LBHI concerning rights under the LPA or the Seller's Guide would logically be within LBHI's, and not Evergreen's, control. Although LBHI had the opportunity to present any such evidence that may exist in response to Evergreen's motion for summary judgment, LBHI chose not to do so.
Counsel for LBHI also asserted during oral argument that LBHI was unable to obtain the information it needed from LBB to respond to the statute of limitations issue because by the time Evergreen raised the issue the discovery cutoff had already occurred, and therefore LBHI could not issue any formal discovery requests to LBB. The court is not persuaded with regard to LBHI's inability to obtain the information from LBB. First, because LBHI is a party to the alleged earlier assignment, any evidence concerning this assignment would logically be within LBHI's, as well as LBB's, control. Further, LBB is a wholly owned subsidiary of LBHI and so the court does not understand why LBHI would need to issue formal discovery requests in order to obtain information from LBB. Indeed, the Ninth Circuit has stated that “[a] corporation must produce documents possessed by a subsidiary that the parent company owns or wholly controls.” United States v. Int'l Union of Petroleum and Indus. Workers, AFL–CIO, 870 F.2d 1450, 1452 (9th Cir.1989); see also In re ATM Fee Antitrust Litigation, 233 F.R.D. 542, 544–45 (N.D.Cal.2005). Thus, the inability to issue formal discovery to LBB is no excuse for LBHI's failure to produce evidence in contravention to Evergreen's statute of limitations defense or to raise a material issue of fact warranting the denial of summary judgment in favor of Evergreen.
Finally, the court notes that LBHI failed to move pursuant to Federal Rule of Civil Procedure 56(d) (formerly denominated as Rule 56(f))
for a continuance to conduct additional discovery on the statute of limitations issue, and failed to demonstrate its need for such a continuance “by affidavit or declaration.” See Fed.R.Civ.P. 56(d). “ ‘References in memoranda and declarations to a need for discovery do not qualify as motions under Rule 56(f) [now 56(d) ],’ ” and “ ‘[f]ailure to comply with the requirements of Rule 56(f) [now 56(d) ] is a proper ground for denying discovery and proceeding to summary judgment.’ ” California v. Campbell, 138 F.3d 772, 779 (9th Cir.1998) (quoting Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir.1986)).
The advisory committee's notes to Fed.R.Civ.P. 56 with regard to the 2010 amendments state that “[s]ubdivision (d) carries forward without substantial change the provisions of former subdivision (f).” Fed.R.Civ.P. 56 advisory committee's notes.
Accordingly, the court finds that the entry of summary judgment in favor of Evergreen based on an expiration of the statute of limitations for contracts is appropriate.
The court also notes that LBHI did not even execute the February 24, 2011 assignment until after the November 17, 2010 deadline for amending pleadings and the January 18, 2011 discovery cutoff had already passed. In light of this timing, LBHI is in a poor position to complain that Evergreen did not timely amend its answer to plead the statute of limitations affirmative defense in order to allow discovery on the assignment issue. If there were any prejudice to LBHI in the timing of Evergreen's assertion of the statute of limitations defense, which the court finds there is not, the prejudice would be at least in part of LBHI's own creation.
IV. CONCLUSION
Based on the foregoing, the court GRANTS Evergreen's motion for summary judgment with regard to the statute of limitations affirmative defense. (Dkt. # 27.) Because the court grants Evergreen's motion on this ground, the court finds it unnecessary to reach the various other grounds for summary judgment asserted in Evergreen's motion. In addition, the court DENIES LBHI's motion for summary judgment (Dkt. # 28) as MOOT.