The Bank of New York Mellon, solely as Securities Administrator for J.P. Morgan Mortgage Acquisition Trust 2006-WMC4, Respondent,v.WMC Mortgage, LLC, Defendant, J.P. Morgan Mortgage Acquisition Corporation, et al., Appellants.

Brief

N.Y.October 19, 2016

TABLE OF CONTENTS Page PRELIMINARY STATEMENT ...............................................................................1 ARGUMENT .............................................................................................................3 I. BONY’S POST-HOC RATIONALIZATIONS CONTRADICT THE OBVIOUS PURPOSE OF JPMMAC’S “GAP” WARRANTIES AND CREATE SURPLUSAGE...............................................................................3 A. JPMMAC’s “Gap” Warranties Have Specific Start Dates Because They Are Intended To Create Seamless Warranty Coverage. ....................................................................4 B. BONY Cannot Avoid That Its Reading of the Contract Renders the Express Temporal Limitation Surplusage. .............8 II. BONY DOES NOT DISPUTE THAT THE MOTION COURT ERRED IN ITS REASONING AND ANALYSIS. ......................................12 III. BONY IS WRONG THAT THIS COURT LACKS THE AUTHORITY TO REVERSE AND REMAND IF IT CONCLUDES THAT THE WARRANTY LANGUAGE IS AMBIGUOUS. ....................17 CONCLUSION........................................................................................................19 TABLE OF AUTHORITIES Page(s) Cases Banco Espirito Santo, S.A. v. Concessionaria Do Rodoanel Oeste S.A., 100 A.D.3d 100 (1st Dep’t 2012) .......................................................................15 Beal Sav. Bank v. Sommer, 8 N.Y.3d 318 (2007) ...........................................................................................11 Coventry Real Estate Advisors, L.L.C. v. Developers Diversified Realty Corp., 84 A.D.3d 583 (1st Dep’t 2011) ...................................................................15, 16 Equivalent Pharm. Indus. Corp. v. Sec. Pac. Bus. Credit, Inc., 177 A.D.2d 351 (1st Dep’t 1991) .......................................................................16 Merrill Lynch Mortg. Inv. Trust, Series 2006-RM4 v. Merrill Lynch Mortg. Lending, Inc., 118 A.D.3d 555 (1st Dep’t 2014) .......................................................................17 Vectron Int’l, Inc. v. Corning Oak Holding, Inc., 106 A.D.3d 1164 (3d Dep’t 2013)......................................................................16 -ii- PRELIMINARY STATEMENT Unable to defend the flawed reasoning in the motion court’s November 21, 2013 Order, BONY mostly ignores it.1 BONY instead offers its own post-hoc rationalizations for why the motion court’s reading of JPMMAC’s mortgage loan schedule warranty “is consistent with the Trust’s structure” and “does not render any portion of [the warranty] meaningless.” (Opp. at 20, 26.) But BONY cannot plug the most gaping hole in the motion court’s analysis—that its reading of this warranty ignores the only conceivable purpose of JPMMAC’s “gap” warranties and makes the inclusion of a specific start date for those warranties utterly meaningless. Far from being “obvious” and “unremarkable,” as BONY suggests, the motion court’s interpretation of this one warranty as an all- embracing warranty that “in two lines” rendered JPMMAC liable for potential origination defects and fraud in WMC’s loans, just as if JPMMAC had re-made, one by one, all of WMC’s “40 or 60 separate warranties,” without temporal limitations, is extraordinary and commercially unreasonable on its face. (Opp. at 26 n.5; R. 21.) 1 (See Brief for Plaintiff-Respondent, dated January 20, 2015 (“Opposition Brief” or “Opp.”), at 17-31.) Unless otherwise noted, capitalized terms herein have the meanings ascribed to them in the Brief for Defendants-Appellants, dated November 5, 2014 (“Opening Brief” or “Br.”). Indeed, BONY’s arguments on appeal boil down to the contention that a demonstrably unsound analysis somehow still led to a sound interpretation. BONY does not, and cannot, dispute that the motion court’s analysis contravened basic rules of contract construction. Rather, BONY argues that any errors in the motion court’s reasoning were “immaterial” and “had no effect on the soundness of its decision.” (Opp. at 24, 28.) Thus, on this appeal, there is no dispute that: • The motion court found that it “makes sense” to interpret JPMMAC’s other warranties in Section 2.06(a)(iii) of the PSA as “bring down” or “gap” warranties, but refused to interpret JPMMAC’s mortgage loan schedule warranty—which is prefaced by the exact same qualifying language—in the same manner. (R. 21-22.) Under the motion court’s reading, then, the same phrase—the “with respect to the period” language—means different things depending on the warranty: It imposes a temporal limitation for all other warranties in Section 2.06(a)(iii), but somehow does not impose a temporal limitation for JPMMAC’s mortgage loan schedule warranty. (R. 21-22.) • The motion court construed JPMMAC’s mortgage loan schedule warranty differently from its other warranties in the same provision based on an incorrect factual assumption about the contents of the mortgage loan schedule. (See R. 22 (“[I]t is hard to see the logic of a ‘bring down’ loan tape warranty, since the accuracy of the loan tape cannot change.”).) • As part of its analysis, the motion court considered a separate RMBS contract between different parties that BONY neither cited nor referenced in its Complaint. (R. 22 (finding that another PSA “highlight[ed] how JPMMAC might have drafted its PSA if it did not intend to insure loan level defects”).) As none of this is disputed, the only question here is whether the motion court nevertheless reached the right interpretation. The bottom line is that it did not: A flawed analysis led to a flawed interpretation. The motion court’s -2- reading of JPMMAC’s warranty is not a reasonable construction, let alone the only plausible reading as a matter of law. Its ruling should be reversed. ARGUMENT I. BONY’S POST-HOC RATIONALIZATIONS CONTRADICT THE OBVIOUS PURPOSE OF JPMMAC’S “GAP” WARRANTIES AND CREATE SURPLUSAGE. BONY argues that the motion court correctly interpreted the temporal limitation in JPMMAC’s mortgage loan schedule warranty—“[w]ith respect to the period from such Whole Loan Sale Date to and including the Closing Date” (R. 225)—to mean that “JPMMAC is liable if the MLS and loan tape information is not ‘true, correct and complete’ at any point during the warranty period, regardless of when the MLS misrepresentation first was made.” (Opp. at 18.) Under this reading, if there were breaches in WMC’s loans at or near origination and those breaches persisted into the temporal period covered by JPMMAC’s warranty, then both WMC and JPMMAC are contractually obligated to repurchase the loans. This reading makes no sense for at least two reasons: first, it ignores the obvious purpose of JPMMAC’s “gap” warranties—to ensure that there was complete warranty coverage up until the Closing Date; and second, it renders the phrase “with respect to the period from such Whole Loan Sale Date” surplusage— the start date in that phrase serves no purpose at all under BONY’s reading. Put simply, if JPMMAC had intended to take on warranty exposure for all errors in the -3- mortgage loan schedule occurring any time prior to closing, then it would have made its mortgage loan schedule warranty “as of the Closing Date,” and not qualified it with a specified start date.2 A. JPMMAC’s “Gap” Warranties Have Specific Start Dates Because They Are Intended To Create Seamless Warranty Coverage. Under the motion court’s reading, JPMMAC’s mortgage loan schedule warranty replicates WMC’s mortgage loan schedule warranty in its entirety—they both “warranted the loan tapes’ truth.” (R. 22.) But this reading wholly ignores the structure of this transaction, which, if viewed in proper context, demonstrates that JPMMAC’s “gap” warranties were intended to fill the gaps in warranty coverage created by certain of WMC’s warranties. It is undisputed that WMC, as the originator and/or owner of the loans in the Trust, made extensive warranties about the loans that were passed through to the Trustee and that the Trustee therefore has direct recourse against WMC for any 2 BONY argues that JPMMAC “discard[ed]” the argument that its mortgage loan schedule warranty “was among various ‘bring down’ representations and warranties.” (See Opp. at 28 (internal quotation marks omitted).) This is a puzzling argument. JPMMAC’s core argument on this appeal has been, and continues to be, that its mortgage loan schedule warranty has the same temporal limitation as its other warranties in Sections 2.06(a)(iii) and (v) of the PSA, which the motion court rightly interpreted as “bring down” warranties. Whether referred to as a “bring down” or “gap” warranty (the terms are interchangeable for purposes of this appeal), JPMMAC’s mortgage loan schedule warranty does not attest to the condition of WMC’s loans at origination—i.e., before the start date of its warranties. -4- breaches of those warranties. It is also undisputed that WMC made most of its warranties as of December 20, 2006, the Closing Date, but made a few others as of dates prior to closing, leaving a gap in warranty coverage between the “as of” date of its warranties and the closing of the transaction. Typically, in mortgage securitization contracts, representations and warranties are made as of the closing of the transaction, when the loans are transferred to the trust and the contracts are executed by the parties. Here, however, WMC made some of its warranties as of dates prior to closing (the Whole Loan Sale Date or Servicing Transfer Date), which created the risk that the loans might suffer breaches after the “as of” date of WMC’s warranties but before they were transferred to the Trust at closing. In that instance, the Trustee would have no recourse against WMC, as WMC is not liable for problems in the loans occurring after the “as of” date of its warranties. This is where JPMMAC, as the sponsor of the transaction, stepped in. To ensure that the Trustee had complete recourse for any breaches in the loans as of closing, JPMMAC agreed to fill the gaps in WMC’s warranty coverage by making some of the same warranties as WMC but only for the time not covered by WMC’s warranties. In this way, as illustrated below, the parties established full warranty coverage as of closing: -5- Consistent with this structure, where WMC made warranties as of the Closing Date (December 20, 2006) (PSA § 2.06(a)(i)), leaving no coverage gap, JPMMAC had no reason to make—and therefore did not make—any of the same warranties for any period of time. BONY does not—and cannot—dispute this fact. For warranties made by WMC as of either the Whole Loan Sale Date or the Servicing Transfer Date, however, there were coverage gaps resulting from the fact that the warranties were not made as of the Closing Date. Absent JPMMAC’s “gap” warranties in Sections 2.06(a)(iii) and (v) of the PSA, the Trustee would have no recourse to remedy breaches if something were to happen to the loans after -6- the “as of” date for WMC’s warranties but before the Closing Date that rendered the information on the mortgage loan schedule false. Thus, JPMMAC agreed to fill the temporal gaps between these “as of” dates and the Closing Date by making the same warranties, but only for that narrow window from October 30, 2006 or December 1, 2006 (depending on the warranty) to December 20, 2006. In so doing, JPMMAC assumed limited repurchase liability for any potential breaches of loan-level warranties that arose during those periods. Put differently, under this arrangement, for the warranties it made as of the Closing Date, WMC bears all of the repurchase risk. For the others, however, both WMC and JPMMAC share the repurchase risk: WMC is liable for any breaches occurring in its loans between their origination and the “as of” date of its warranties, and JPMMAC is liable for any breaches occurring between the “as of” date of WMC’s warranties and the Closing Date. By interpreting the warranty language to mean that JPMMAC insured against pre-existing loan-level defects, both BONY and the motion court ignore the obvious purpose of JPMMAC’s “gap” warranties—to create complete warranty coverage as of the closing, not to replicate WMC’s warranties in their entirety. Indeed, for all its post-hoc rationalizations, BONY cannot offer a reasonable explanation for why the parties would have structured warranty coverage in this manner if they had intended that JPMMAC would also be liable -7- for potential origination defects or fraud in WMC’s loans. Were that the case, JPMMAC should have simply made its warranties as of the Closing Date without specifying a start date. Far from being a “self-serving alternative interpretation” (Opp. at 18), the JPMorgan Defendants’ proposed interpretation of the disputed warranty is the only reading that makes any sense when the warranty is viewed in its proper context. B. BONY Cannot Avoid That Its Reading of the Contract Renders the Express Temporal Limitation Surplusage. BONY argues that its reading does not render the “with respect to the period” qualifier in JPMMAC’s warranty surplusage. More specifically, BONY argues that this warranty period “make[s] clear that JPMMAC is not liable for loan misrepresentations reflected only in pre-warranty-period documents” and “is only liable if those misrepresentations were retained on the MLS or loan tape during the warranty period.” (Opp. at 20-21.) This argument fails for two basic reasons. First, it negates the only conceivable purpose for specifying a start date for JPMMAC’s warranty. The start date in the warranty period means, and can only mean, that JPMMAC assumed repurchase liability only for breaches occurring after the start date. Again, if the parties had intended for both WMC and JPMMAC to be liable for breaches occurring at any time before the start date, including at origination, then JPMMAC would have made its warranties “as of the -8- Closing Date,” as WMC sometimes did, and as JPMMAC itself did in PSA § 2.06(b). The start date simply serves no purpose under BONY’s reading. BONY’s own examples illustrate this point. BONY argues that “because the MLS Representation includes the warranty period, JPMMAC could have declined, prior to the warranty period, to purchase loans from WMC that it determined suffered from loan-level defects” and that “[t]his would prevent the MLS from bearing false information during the warranty period[.]” (Opp. at 21.) But the same logic holds true if JPMMAC had simply made its warranty as of the Closing Date without specifying a start date: JPMMAC could have avoided liability by ferretting out loans that “suffered from loan-level defects” before the transaction closed. Because JPMMAC has no potential repurchase liability before the transaction closed, it could have avoided liability, under BONY’s theory, by removing all breaching loans from the Trust before closing, regardless of when those breaches occurred. In other words, the start date for the warranty adds nothing under this construction. Similarly, BONY argues that “if, prior to the Whole Loan Sale Date . . . JPMMAC had required WMC to substitute new non-breaching loans for breaching loans, it would have avoided allowing false information to remain on the MLS during the warranty period.” (Opp. at 21.) But again, the same logic would apply if JPMMAC had simply made its warranty as of the closing of the -9- transaction without specifying a start date. As JPMMAC only made its warranties when it signed the PSA on the Closing Date, it could have substituted non- breaching loans for breaching loans at any time prior to closing. Thus, it is simply not true, as BONY urges, that “[o]nly the inclusion of the warranty period . . . made this option possible.” (Opp. at 21.) That option was available to JPMMAC at any time prior to the Closing Date. The start date adds nothing; it remains meaningless under BONY’s explication. If, as BONY contends, JPMMAC is liable for origination errors or other breaches occurring before the temporal period covered by its warranties, then it could have made its warranties as of the Closing Date instead of making them, as it indisputably did, “[w]ith respect to the period from such Whole Loan Sale Date [October 30, 2006] to and including the Closing Date [December 20, 2006].”3 (R. at 225.) Second, BONY’s reading disregards the difference in language among the various warranties in Section 2.06 of the PSA. JPMMAC’s “gap” warranties 3 BONY’s arguments further assume that JPMMAC engaged in pre- securitization due diligence and therefore should have been aware of potential pre- existing loan-level defects. (See Opp. at 11-12.) Setting aside the fact that BONY alleged nothing of the sort in its Complaint (see R. 493-94), the narrow question here is whether, under the terms of the PSA, JPMMAC assumed contractual repurchase obligations for origination defects or fraud in WMC’s loans through its mortgage loan schedule warranty. Whether or not JPMMAC or any of its affiliates engaged in due diligence has nothing to do with that question. As in any securities offering, investors who believe that the offering materials materially misstated the risks of the transactions have potential recourse under the securities laws. -10- repeat warranties made by WMC, but only “[w]ith respect to the period from such [Whole Loan Sale Date or Servicing Transfer Date] to and including the Closing Date.” (R. 225 (emphasis added).) WMC’s warranties do not contain this language establishing a start date for warranty coverage, because WMC is attesting to the condition of its loans at origination. Yet, under BONY’s reading, JPMMAC is likewise attesting to the condition of WMC’s loans at origination. If this were true, then JPMMAC’s mortgage loan schedule warranty would mean the same thing with or without the “with respect to the period” qualifying language. Similarly, the “with respect to the period” qualifier is absent from JPMMAC’s warranty in PSA § 2.06(b), in which JPMMAC warranted that, “as of the Closing Date,” the loans complied with law and were not subject to certain lending laws. There is no dispute that this warranty covers issues at origination. Yet, if BONY is correct, so do JPMMAC’s “gap” warranties, again leaving the “with respect to the period” qualifier in those warranties without meaning. Under basic tenets of contract interpretation, the inclusion of the “with respect to the period” language in certain warranties and not in others must be interpreted to give the additional language meaning. See, e.g., Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324 (2007); (see also Br. at 19-20). This can only be accomplished by reading JPMMAC’s warranties in PSA §§ 2.06(a)(iii) and (v) as “gap” warranties, designed to impose liability upon JPMMAC only for breaches resulting from -11- changes with respect to the loans that occurred during the express warranty period, where the Trustee lacks recourse against WMC. BONY has no answer for these arguments, which perhaps explains why it chooses to ignore them. II. BONY DOES NOT DISPUTE THAT THE MOTION COURT ERRED IN ITS REASONING AND ANALYSIS. BONY’s feeble defense of the motion court’s actual analysis further confirms why the motion court’s interpretation is flawed as a matter of law. To begin, BONY wholly ignores that the motion court’s analysis is internally inconsistent—it interprets the same language in the same contract provision in different ways. And BONY does not dispute that the motion court (i) incorrectly assumed that “the accuracy of the loan tape cannot change” and (ii) considered a separate contract between separate parties concerning an entirely different RMBS transaction. BONY insists that these errors were “immaterial” and “had no effect on the soundness of the [motion court’s] decision.” (Opp. at 24, 28.) This is not true: The motion court’s unsound analysis led to an unsound interpretation. Giving Divergent Meanings to the Same Language. BONY’s arguments on appeal overlook that the motion court actually found that most of JPMMAC’s warranties in Sections 2.06(a)(iii) and (v) are, in fact, “bring down” or “gap” warranties. Specifically, the motion court found, correctly, that “most of the representations in Section 2.06 contain a temporal limitation” and that it “makes sense” to read these warranties as “bring down” warranties, in which JPMMAC -12- “merely warranted that ‘nothing had changed’ with respect to the loans.” (R. 20- 21.) The salient issue here is that the motion court refused to interpret JPMMAC’s mortgage loan schedule warranty in the same manner. Even after its basis for doing so—the supposedly “fixed” nature of the mortgage loan schedule—had been shown to be false, the motion court still offered no explanation for why the same language in the same contract—indeed, in the very same contractual provision— should be read differently depending on the warranty. (See R. 21 (noting that JPMMAC’s interpretation “makes sense with respect to some of the listed warranties (e.g. insurance [coverage] . . . )”).) Nor has BONY offered any explanation for this anomalous result. Incorrect Factual Assumption. It is undisputed that the motion court incorrectly found that “[e]ither the loan tape accurately reflected reality at origination, or it did not.” (R. 22.) In fact, many of the data fields on the mortgage loan schedule can and do change after origination. (See Br. at 21-22.) In arguing that the motion court’s incorrect factual assumption had no bearing on its analysis, BONY points the Court to the motion court’s denial of reargument and its explanation that the “‘majority of information in the loan schedule [was] fixed at origination’” and this “‘is some of the most crucial information to RMBS investors.’” (Opp. at 24 (quoting R. 856-57).) That explanation, however, does not address the basic flaw in the analysis, let alone cure it. The motion court -13- interpreted JPMMAC’s mortgage loan schedule warranty differently from its other “gap” warranties not based on any difference in contract language (there is none), but rather based on its own assumption about the contents of the mortgage loan schedule, without receiving evidence that would bear upon its correctness. The motion court could not “see the logic of a ‘bring down’ loan tape warranty” as a result of its erroneous view that all the information on the loan tape or mortgage loan schedule was fixed. (R. 22.) The significance of this error is not so much that the motion court simply misconstrued the contents of the mortgage loan schedule (even though it did), but rather that the motion court has only offered one explanation for interpreting this one particular warranty differently from the others in the same section of the contract—and that explanation turned out to be false. Improper Reliance on Extrinsic Evidence. BONY’s arguments for why the motion court properly considered a separate contract between separate parties in construing JPMMAC’s warranty as a matter of law fail. First, BONY contends that “it was JPMMAC that went outside the four corners of the pleadings.” (Opp. at 28.) This is a bewildering argument. JPMMAC simply put forth an interpretation of the contract as one reason why BONY failed to adequately allege breaches of its warranties. BONY then introduced extrinsic evidence in the form of a separate RMBS contract entered into by different, unrelated parties, which it neither cited nor referenced in its Complaint. (See -14- R. 538-39.) The motion court plainly erred by considering this evidence in construing a disputed warranty as a matter of law on a motion to dismiss. See Coventry Real Estate Advisors, L.L.C. v. Developers Diversified Realty Corp., 84 A.D.3d 583, 586 (1st Dep’t 2011) (on a motion to dismiss, a court should “consider[] only the allegations of the complaint, as well as the plain meaning of the documents appended to the complaint itself”). Second, relying on this Court’s decision in Banco Espirito Santo, S.A. v. Concessionaria Do Rodoanel Oeste S.A., BONY argues that the separate, unrelated contract considered by the motion court was not “extrinsic evidence.” (Opp. at 29 (citing 100 A.D.3d 100 (1st Dep’t 2012).) In that case, however, this Court compared certain language in an “ISDA Master Agreement” executed by the parties with other language in a contemporaneous “ISDA Schedule” also executed by the same parties, and not by “other parties,” as BONY wrongly suggests. Compare Banco Espirito, 100 A.D.3d at 103-05, with Opp. at 29. As the “ISDA Master Agreement” included the “ISDA Schedule,” both of which were executed by the parties at the same time and as part of the same transaction, Banco Espirito is readily distinguishable from this case, where the motion court relied on an unrelated contract executed by unrelated parties. Furthermore, in Banco Espirito, this Court was reviewing a ruling on a motion for summary judgment, id. at 111, and not a motion to dismiss, where reference to documents outside the pleadings is -15- generally improper. Coventry, 84 A.D.3d at 586.4 Nothing in Banco Espirito supports BONY’s argument that “the RMBS Contract that [BONY] cited in its motion opposition papers was [not] extrinsic evidence.” (Opp. at 29.) Third, BONY argues that courts commonly point out how a contract could or should have been drafted, even where the plain language is unambiguous. (Opp. at 30-31.) That may be true, but it is not what actually happened here: Suggesting different language that might have worked is not the same as relying on another document from a separate and unrelated transaction to support the conclusion that the language in the other document should have been used by the parties here. (See R. 22.) The motion court erred because, if extrinsic evidence was to be considered at all, JPMMAC should have been afforded the same opportunity as BONY to present all pertinent extrinsic evidence as to the meaning, purpose and context of the disputed warranty. The motion court’s one-sided consideration of a single piece of extrinsic evidence constitutes reversible error. See Vectron Int’l, Inc. v. Corning Oak Holding, Inc., 106 A.D.3d 1164, 1165 (3d 4 As this Court held in Equivalent Pharmaceutical Industry Corp. v. Security Pacific Business Credit, Inc., 177 A.D.2d 351, 352 (1st Dep’t 1991), “other agreements . . . to which defendant was not a party . . . have no relevance” to construing a contract between the parties. It makes no difference, as BONY suggests, whether the other agreement is being cited to “undermine” or “reinforce” the purported plain meaning of the contract language in dispute. (See Opp. at 30.) -16- Dep’t 2013) (in the event of ambiguity, both parties should have the opportunity “to discover and present extrinsic evidence of the parties’ intent”). III. BONY IS WRONG THAT THIS COURT LACKS THE AUTHORITY TO REVERSE AND REMAND IF IT CONCLUDES THAT THE WARRANTY LANGUAGE IS AMBIGUOUS. BONY argues that the JPMorgan Defendants’ alternative argument— that the Court should reverse and remand for further proceedings if it finds the warranty language ambiguous—“has no place in an appeal directed to the facial sufficiency of the pleadings.” (Opp. at 31.) This is another puzzling argument. It should not be controversial that, in the event this Court finds the contract language ambiguous, despite the contrary arguments of the parties, it should reverse and remand so that the motion court can consider all pertinent extrinsic evidence. Indeed, that is exactly what the Court did in Merrill Lynch Mortgage Investors Trust, Series 2006-RM4 v. Merrill Lynch Mortgage Lending, Inc., 118 A.D.3d 555 (1st Dep’t 2014). There, the Court reversed the trial court’s decision interpreting a disputed contractual provision as a matter of law and remanded the case on the grounds that the contract language was ambiguous and that the motion court should have reserved judgment pending consideration of extrinsic evidence. Although BONY argues, again rather curiously, that “the precedential value” of this Court’s own decision of last year is “dubious at best” (Opp. at 34), Merrill -17- Lynch is in fact on all fours with this case. Here, too, to the extent the Court finds the contract language ambiguous, it should reverse on that basis. -18- CONCLUSION For all the foregoing reasons, and those set forth in the JPMorgan Defendants' Opening Brief, the November 21, 2013 Order should be reversed to the extent that the motion court misconstrued JPMMAC' s mortgage loan schedule warranty as a matter of law, and BONY's third and fourth causes of action should be dismissed in their entirety and its seventh cause of action should be dismissed to the extent that it is based on alleged breaches of JPMMAC's warranty. In the alternative, in the event the Court finds the disputed warranty language ambiguous, it should reverse and remand for consideration of all pertinent extrinsic evidence. Dated: February 13, 2015 New York, New York -19- Respectfully submitted, SULLIVAN & CROMWELL LLP ?rt-~.d obert A. Sacks 1888 Century Park East Los Angeles, California 90067-1725 Tel: (310) 712-6600 Fax: (310) 712-8800 Darrell S. Cafasso 125 Broad Street New York, New York 10004-2498 Tel: (212) 558-4000 Fax: (212) 291-9307 Attorneys for Defendants-Appellants APPELLATE DIVISION – FIRST DEPARTMENT PRINTING SPECIFICATION STATEMENT This brief was prepared on a computer using Microsoft Word and a proportionally spaced typeface. Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in this brief, inclusive of headings and footnotes and exclusive of pages containing the table of contents, table of authorities and this Statement is , as counted by Microsoft Word.