NCU Admin. Bd. v. Nomura Home Equity Loan, No. 13-56620 (9th Cir. 2016)
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The NCUA filed suit under the Securities Act of 1933, 15 U.S.C. 77a et seq., against Wachovia and Nomura for making false and misleading statements in their offerings of residential mortgage-backed securities (RMBS) purchased by Wescorp. The district court dismissed the claims, ruling that 12 U.S.C. 1787(b)(14) (the Extender Statute) did not supplant the statute of repose contained within 15 U.S.C. 77m, and therefore that the NCUA’s claims were time-barred. The court concluded that the district court erred in holding that the Extender Statute does not supplant the 1933 Act's statute of repose. The court held that the Extender Statute replaces all preexisting time limitations - whether styled as a statute of limitations or a statute of repose - in any action by the NCUA as conservator or liquidating agent. The court further held that the Extender Statute’s scope - “any action brought by the [NCUA]” - includes actions such as this one, in which the NCUA asserts statutory claims rather than common law tort
or contract claims. Because the court concluded that NCUA claims were timely filed, the court vacated and remanded the district court's dismissal of the claims as time-barred.
Court Description: Securities. The panel vacated the district court’s judgment dismissing as time-barred claims brought under the Securities Act of 1933. The National Credit Union Administration Board (NCUA), liquidating agent for a failed credit union, sued defendants for making false and misleading statements in their offerings of residential mortgage-backed securities purchased by the credit union. The “Extender Statute,” 12 U.S.C. § 1787(b)(14), part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, establishes the applicable statute of limitations with regard to any action brought by the NCUA as conservator or liquidating agent for a failing or failed credit union. The panel held that the Extender Statute supplants the statute of repose contained within 15 U.S.C. § 77m, which provides that a private investor pursuing a claim under § 11 or § 12(a)(2) of the Securities Act must bring suit within three years after the security was offered or NCU ADMIN. BD. V. NOMURA HOME EQUITY LOAN 3 sold. Joining other circuits, the panel held that the Extender Statute replaces all preexisting time limitations, whether styled as a statute of limitations or a statute of repose, in any action by the NCUA as conservator or liquidating agent. The panel also held that the Extender Statute’s scope includes actions such as this one, in which the NCUA asserted statutory claims rather than common law tort or contract claims. The panel distinguished CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014), which addressed a preemption provision of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. The panel held that the NCUA’s claims were timely filed. It remanded the case for further proceedings consistent with its opinion.
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