Republic Mtge. Ins. Co. v Countrywide Fin. Corp.
Annotate this CaseDecided on July 22, 2010
Supreme Court, New York County
Republic Mortgage Insurance Company and Republic Mortgage Insurance Company of North Carolina, Plaintiffs,
against
Countrywide Financial Corporation, Countrywide Home Loans, Inc., The Bank of New York Mellon Trust Company, N.A. BAC Home Loans Servicing, LP, and Bank of America, N.A., as successor interest to Countrywide Bank, N.A., , Defendants.
603915/2009
APPEARANCES:
BUTLER RUBIN SALTARELLI & BOYD LLP
Attorneys at Law
70 West Madison Street, Suite 1800
Chicago, IL 60607-4527
BY: MICHAEL R. HASSAN, ESQ. CHAFFETZ LINDSEY LLP
Attorneys at Law
1350 Avenue of the Americas
New York, NY 10019
BY: CELIA FROELICH MOSS, ESQ.
REED SMITH LLP
Attorneys at Law
599 Lexington Avenue
New York, NY 10022
BY: JOHN N. ELLISON, ESQ.
JEAN M. FARRELL, ESQ.
PILLSBURY WINTHROP SHAW PITTMAN LLP
Attorneys at Law
1540 Broadway
New York, NY 10038-4039
BY: LEO T. CROWLEY, ESQ.
Bernard J. Fried, J.
This case involves Republic Mortgage Insurance Company and Republic Mortgage Insurance Company of North Carolina (collectively "RMIC"), and Countrywide Financial Corporation ("CFC"), Countrywide Homes Loans, Inc. ("CHL"), BAC Home Loan Servicing, LP (formerly Countrywide Home Loan Servicing, LP) ("Servicing LP"), and Bank of America, N.A., as successor in interest to Countrywide Bank, N.A ("BANA") (collectively "Countrywide Defendants"), and The Bank of New York Mellon Trust Company, N.A., as trustee for certain investors ("BNY Mellon Defendant").
Motion Sequence No.001 (motion by Countrywide Defendants to dismiss this action and to
compel arbitration or to stay the court proceedings pending completion of arbitration) and
Motion Sequence #
002 (motion by BNY Mellon Defendants seeking similar relief [FN1]), together with RMIC's
cross-motion to stay arbitration are consolidated for disposition.
The lawsuit principally concerns the interpretation of the Arbitration Clause found in
§ 7.6 (a) of RMIC's Master Policies ("the Policies"), (Farrell Aff. Ex. C-G.), which
provides, in relevant part, that "[u]nless prohibited by applicable law, the Insured, at its option,
may elect to settle by arbitration a controversy, dispute, or other assertion of liability or rights
which it [*2]initiates arising out of or relating
to this Policy, including the breach, interpretation, or construction thereof ." (Farrell Aff. Ex.
C-G, § 7.6(a)).
It is undisputed that RMIC and Countrywide Defendants were undergoing
negotiations to settle a dispute surrounding unpaid claims under five mortgage insurance
policies.[FN2] (See
Affirmation of Jean M. Farrell ("Farrell Aff.") ¶ 3.) Countrywide Defendants requested that
RMIC enter into a tolling agreement to facilitate discussions. Id. RMIC did not enter into
the tolling agreement; instead, they filed this action on December 31, 2009 [FN3] seeking a declaration that "[their]
rescissions were proper and consistent with the terms of the mortgage insurance policies [,][and]
a declaration that the procedures [they used] to investigate defaulted loans and claims submitted
by Countrywide were consistent with the terms of the [five] Policies and applicable law."
(See Plaintiffs' Response to Defendants' Motion to dismiss and Compel Arbitration and
Cross-Motion to Stay Arbitration. ("RMIC's Response") at 4.) Defendants CHL, CFC, and
Servicing LP were served with the Amended Summons and Amended Complaint.[FN4] (Farrell Aff. ¶ 3.)
Thereafter, on January 29, 2010, Countrywide Defendants filed a Demand for Arbitration in Los
Angeles, California. Id. at ¶ 4.
At issue is whether the Arbitration Clause conditions Countrywide Defendants' right
to demand arbitration on Countrywide Defendants initiating arbitration before litigation is
brought by RMIC.
Countrywide Defendants contend that under the Arbitration Clause, "which it
initiates" modifies "arbitration," permitting them to initiate arbitration regardless of the
prior suit by RMIC. (See Transcript of Proceedings, May 25, 2010 ("Transcript") at 6.)
Under this interpretation, the clause is: "Unless prohibited by applicable law, the [I]nsured at its
option may elect to settle by arbitration which it initiates a controversy, dispute, or other
assertion of liability or rights." Id. Countrywide Defendants further argue that any other
interpretation "of the Arbitration Provisions would lead to absurd results, contrary to the
reasonable expectations of the parties, and would undermine the parties' obvious purpose to
permit [Countrywide Defendants] to arbitrate claims arising under the Policies." (See
Countrywide Defendants' Reply Memorandum of Law in Further Support of Their Motion to
Dismiss and Compel Arbitration, or to Stay Arbitration, and in Opposition to RMIC's Motion to
Stay Arbitration ("Countrywide Defendants' Response") at 6.) In addition, Countrywide
Defendants claim RMIC's argument that the clause requires any arbitration to be brought before
a lawsuit is commenced "defies law and logic that the parties would have willingly agreed to
such a procedure, which would pervert the [*3]twin goals of
arbitration[:] to settle disputes efficiently, and avoid long and expensive litigation." Id. at
4. Therefore, they contend that their motion to compel arbitration should be granted and RMIC's
motion to stay arbitration should be denied.
In opposition, RMIC argues that the words "which it initiates" modify the phrase "a
controversy, dispute, or other assertion of liability or rights." (RMIC's Response at 6.) Under this
interpretation, "the clause permits the [I]nsured to arbitrate disputes which it initiates and
does not permit the [I]nsured to require arbitration of any dispute initiated by RMIC."
Id. Therefore, so the argument runs, Countrywide Defendants' option to elect arbitration
is limited to only disputes they — Countrywide Defendants — have initiated.
Id. at 7. RMIC further argues that since the disputes were initiated by them and not by
Countrywide Defendants, Countrywide Defendants have lost the option to demand arbitration.
Id Additionally, RMIC claims that if the interpretation offered by Countrywide
Defendants is accepted, RMIC would be forced to participate in an arbitration it has not agreed
to, which would violate both federal and state law, which provide that a party cannot be
compelled to participate in an arbitration to which it had not agreed.
It is basic law that "arbitration agreements are contracts and must be interpreted
under contract law." (E.g., Matter of Salvano v. Merrill Lynch, Pierce, Fenner &
Smith, 85 NY2d 173, 182 [1995]). It is also basic law that when interpreting a contract, "the
Court should arrive at a construction which will give fair meaning to all of the language
employed by the parties to reach a practical interpretation of the expressions of the parties so that
their reasonable expectations will be realized." (E.g., Herzfeld v. Herzfeld, 50 AD3d 851, 851 [2d Dept. 2008]). After
close review of the Arbitration Clause, it is clear that the only logical interpretation of the clause
is that offered by Countrywide Defendants.
There is no merit to the claim that, if compelled to arbitration, RMIC would be
subjected to arbitration they did not agree to. Indeed, it is evident that the phrase "a controversy,
dispute, or other assertion of liability or rights" is a dependent clause modifying the word
"arbitration," and that it therefore falls within the broad scope of the Arbitration Clause. Thus, it
is disingenuous to claim that they did not agree to submit the subject matter of the dispute to
arbitration, and having done so, they certainly can be compelled to submit to arbitration.
(E.g., Gerling Global Reins. Corp. v. Home Ins. Co., 302 AD2d 118, 123 [1st
Dept. 2002]).
Moreover, this issue is not a matter of chronology or priorities; Countrywide Defendants'
right to initiate arbitration is not dependent on which party filed suit first. If Countrywide
Defendants initiate the arbitration, that claim must be arbitrated, even if RMIC may have brought
a pre-existing lawsuit. To hold otherwise, in face of the unambiguous language of the Arbitration
Provision, would sanction "procedural gamesmanship and [reward RMIC] for winning a race to
the courthouse which [they] had completed before [their] adversary heard the starting gun."
(Hartford Accident and Indem. Co. v. Hop-On Int'l Corp., 568 F. Supp. 1569, 1573
[1983]). A "race to the courthouse should not be determinative [and] the case should be heard by
the forum with the most reason to hear the case." (E.g., White Light Prods. v. On The
Scene [*4]Prods., 231 AD2d 90, 99 [1st Dept. 1997]). Here,
that forum, as agreed upon by the parties, is arbitration and the fact that RMIC reached the
courthouse first does not change this.
RMIC further argues that BNY Mellon's motion to compel arbitration and dismiss
RMIC's complaints should be denied because BNY Mellon has not demanded that RMIC
arbitrate any disputes and is not a party to Countrywide Defendants' arbitration. (RMIC's
Response at 8.) In opposition, Countrywide Defendants argue that BNY Mellon is a party
because "Servicing LP is fully authorized to bring the arbitration on behalf of BNY Mellon"
under the Pooling and Servicing agreements. (Countrywide Defendants' Response at 15.)
The Pooling and Servicing agreements state, in relevant part, "the Master Servicer
[Servicing LP] agrees to present, on behalf of itself, the Trustee [BNY Mellon] and the
Certificateholders, claims to the insurer under any primary insurance policies, and, in this regard,
to take any reasonable action necessary to permit recovery ." (Farrell Aff., Ex H). In addition,
BNY Mellon has, through counsel, "ratif[ied]the Servicer's defending, filing and maintaining
Countrywide Arbitration and defense of the Claims in the Countrywide Litigation for the benefit
of the BNY Mellon Companies [and] will be bound by the outcome [of the litigation and
arbitration] as to the Claims." (Farrell Aff., Ex. I.) As demonstrated by these submissions,
Servicing LP is authorized to bring claims on behalf of BNY Mellon; therefore, RMIC's
argument is rejected.
Finally, RMIC's request to stay arbitration because the disputes allegedly are not
arbitrable is denied. This goes to the merits of the claims and is a matter left to the arbitrators.
(Silverman v. Bennor Coats, Inc., 61 NY2d 299, 301 [1984]).
Turning to that portion of the motion to dismiss the complaint on grounds that under the
FAARMIC's claims are covered by the Arbitration Provisions and there will be nothing left for
this Court to adjudicate, Countrywide Defendants cite Spencer-Franklin v.
Citigroup/Citibank N.A.,No. 06 Civ. 3475, 2007 WL 521295, at *4 (S.D.NY Feb. 21, 2007),
which provides that when "all of the issues raised in the Complaint must be submitted to
arbitration, the Court may dismiss an action rather than stay proceedings," dismissal is
appropriate. Countrywide Defendants also seek dismissal under New York Civil Practice Law
and Rules ("CPLR") § 3211(a)(1). Since the documentary evidence presented by
Countrywide Defendants demonstrates that arbitration will dispose of all the claims asserted in
the Amended Complaint, Countrywide Defendants' motion to dismiss RMIC's claims is granted.
Accordingly, it is
ORDERED that the motions (Seq. Nos. 001 and 002) to compel arbitration and to dismiss the Amended Complaint are granted; and it is further
ORDERED that the cross-motion is denied; and it is further [*5]
ORDERED that the Clerk is directed to enter judgment
dismissing the action, with prejudice, and with costs and disbursements to defendants as taxed by
the Clerk.
DATED:_____________________
ENTER: ________________________________
J.S.C.
Footnotes
Footnote 1:
BNY Mellon
Defendant joined in the motion of the Countrywide Defendants.
Footnote 2:
The Policies consist
of Flow Policy 06854 and Bulk Policies 067L5-00, 067L5-01, 067L5-02, and 6854-42. (Farrell
Aff., Ex. C-G.)
Footnote 3:
Plaintiffs later filed
an Amended Complaint on January 5, 2010.
Footnote 4:
CHL was served on
January 11, 2010. CFC and Servicing LP were served on January 15, 2010. (Farrell Aff. ¶
3.)
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