Brief Pro Se Amicus Curiae, in ACE Securities Corp. v. DB Structured Products, Inc.

Abstract

ACE Securities vs. DB Structured Products is one of several similar cases pending in New York courts relating to residential mortgage-backed securities that were created prior to the financial crisis and that lost value during and after the crisis. In the transaction underlying this case, as in such transactions generally, DB Structured Products (DBSP) made various representations and warranties to the purchasers of the securities about the quality of the mortgage loans being sold, and also promised that, if any of these representations and warranties turned out to be false with respect to a particular loan, DBSP would repurchase the non-conforming loan at face value. The plaintiff has alleged that a large percentage of the loans did not conform to the representations and warranties, but DBSP has denied this. At this stage of the litigation, the issue is whether ACE’s claim is barred by New York’s six-year statute of limitations for contract claims. DBSP argues that, if the representations and warranties were breached, then that breach occurred at the time the loans were first sold in 2006, which means that the statutory period ran out in 2012. The plaintiff argues that the period began to run not at the time the representations and warranties were breached, but only when, much later, the plaintiff demanded that DBSP repurchase the allegedly non-conforming loans and DBSP refused. The case thus concerns a complex allocation of risk among sophisticated commercial parties: how long should DBSP bear the risk that the loans did not conform to the representations and warranties — for six years, or until six years after some indeterminate time in the future when the purchasers claim that the representations and warranties were breached and demand that DBSP repurchase the loans? This brief argues that the efficient solution would be for DBSP to bear the risk only for the statutory period of six years beginning at the time the agreement was made. The brief also calls the court’s attention to the fact that, within the securitization market, there is a menu of standard provisions that the parties can choose to include or not to include in their agreement. The key provision at issue in ACE vs. DB Structured Products is a Sole Remedy but some other agreements include an additional provision called a Accrual Provision. The brief argues that, in deciding this case, the court ought not to prejudge the issue of whether, in an agreement that also includes a Claims Accrual Provision, the outcome may be different.