Woori Bank v. Lynch

923 F. Supp. 2d 491, 2013 WL 449912, 2013 U.S. Dist. LEXIS 17476
CourtDistrict Court, S.D. New York
DecidedFebruary 6, 2013
DocketNo. 12 Civ. 3993 (VM)
StatusPublished
Cited by15 cases

This text of 923 F. Supp. 2d 491 (Woori Bank v. Lynch) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Woori Bank v. Lynch, 923 F. Supp. 2d 491, 2013 WL 449912, 2013 U.S. Dist. LEXIS 17476 (S.D.N.Y. 2013).

Opinion

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Plaintiff Woori Bank (‘Woori”) filed the complaint in this action on May 18, 2012 asserting common law claims for fraud, rescission, negligent misrepresentation, and unjust enrichment (the “Complaint”) arising out of its $143 million investment in seven collateralized debt-obligations (“CDOs”). By letter dated September 20, 2012, Merrill Lynch & Co., Inc., Merrill Lynch International, Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., and Bank of America Corporation (collectively “Merrill Lynch”) asserted that Plaintiffs action should be dismissed based on the applicable statute of limitations. Woori responded on October 3, 2012 and Merrill Lynch submitted its reply on October 18, 2012.1 The Court deems Merrill Lynch’s submission as constituting a motion to dismiss the Complaint. For the reasons discussed below, Merrill Lynch’s motion to dismiss is [493]*493GRANTED, and Woori’s Complaint is DISMISSED.

I. BACKGROUND

Woori brings this action against Merrill Lynch; Centre Square CDO, LLC; IMAC CDO 2006-1, LLC; Istana High Grade AJBS CDO I, LLC; Libertas Preferred Funding I, LLC; Mantoloking CDO 2006-1, LLC; Taberna Preferred Funding II, Inc.; and Taberna Preferred Funding VI, Inc.2 (collectively, “Defendants”) alleging that Defendants made false and misleading misrepresentations and omissions that induced Woori to invest $143 million in a number of CDOs. Specifically, Woori claims that Defendants misrepresented the riskiness of these investments by concealing inside information relating to the quality of the underlying mortgages and the credit ratings assigned to these CDOs.

From 2005 to 2006, Woori purchased interests from Merrill Lynch in the following seven CDOs: (1) Taberna Preferred Funding II; (2) Libertas; (3) Taberna Preferred Funding VI; (4) IMAC; (5) Istana; (6) Centre Square; and (7) Mantoloking. According to Woori, Merrill Lynch “acquired and supplied the assets underlying the CDOs, established the issuers, arranged for Moody’s and/or Standard and Poor to supply ratings for the CDOs, and then marketed and sold the CDOs to Woori and other investors.” Compl. ¶ 6. On January 30, 2009, Woori sold its interest in all of the CDOs except Taberna Preferred Funding II and Taberna Preferred Funding VI, which it continues to hold.

During 2006 and 2007, the United States residential real estate market suffered a massive decline that paralyzed credit markets and sent Shockwaves through the entire financial system. Much has been written detailing the causes of the resulting financial crisis; the Court will not attempt to replicate those efforts here. However, suffice it to say that two major factors widely attributed as being responsible for the crisis were the failure of many financial institutions to adhere to mortgage-lending standards — a problem that was exacerbated by the packaging and securitization of residential mortgages — and the failure of the credit-rating agencies to report the underlying risks posed by securities structured with these mortgages as underlying assets.

Merrill Lynch’s role at the center of the financial crisis has also been widely reported in the media as well as its being the subject of multiple lawsuits and regulatory investigations. According to some of these reports and court filings, serious problems existed with Merrill Lynch’s securitization practices. Between late 2007 and May 18, 2009, Merrill Lynch was the target of multiple lawsuits alleging that the firm misrepresented mortgage underwriting standards, significantly understating the risk of various investments.

II. DISCUSSION

Merrill Lynch argues that Woori’s claims are time-barred because Woori was on notice and had the practical ability to bring the current action prior to May 18, 2009. Specifically, Merrill Lynch cites a multitude of pre-May 18, 2009 press reports, government investigations, and private lawsuits that contain substantially similar allegations as the current Complaint. Woori disagrees, claiming that de[494]*494spite the many reams dedicated to exposing Merrill Lynch’s role in the financial crisis — including sources cited in Woori’s Complaint and legal actions alleging substantially similar claims to those detailed in the Complaint — it did not have the practical ability to bring its current claims, and therefore the statute of limitations did not begin to run, until January 27, 2011 when the Financial Crisis Inquiry Commission (“FCIC”) provided its official censure of Merrill Lynch’s mortgage-related activities through the publication of its report detailing the causes of the financial crisis. See Financial Crisis Inquiry Commission, Final Report of the Nat’l Comm’n on the Causes of the Financial and Economic Crisis in the United States (2011) (“FCIC Report”), available at http://fcic.law.stanford.edu/ report. For the reasons stated below, the Court finds that Woori’s claims are time-barred.

A.LEGAL STANDARD

Defenses based on statutes of limitations are properly brought under Federal Rule of Civil Procedure 12(b)(6) as motions to dismiss for failure to state a claim. See Ghartey v. St. John’s Queens Hosp., 869 F.2d 160, 162 (2d Cir.1989). In considering a motion to dismiss pursuant to Rule 12(b)(6), a court construes the complaint broadly, “accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). However, mere “conclusions of law or unwarranted deductions of fact” need not be accepted as true. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994) (quotation marks and citation omitted). A court should not dismiss a complaint for failure to state a claim if the factual allegations sufficiently “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

B. CHOICE OF LAW

Where a cause of action accrues outside of New York to a non-New York resident, New York’s choice of law borrowing statute applies to determine the appropriate statute of limitations. N.Y. C.P.L.R. § 202 (McKinney 2011); see, e.g., In re Coudert Bros. LLP, 673 F.3d 180, 190 (2d Cir.2012); Stuart v. Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir.1998). Under the borrowing statute, a plaintiffs claim is not barred if it is timely under both the statute of limitations of New York and of the jurisdiction in which the cause of action accrued. See Antone v. Gen. Motors Corp., 64 N.Y.2d 20, 484 N.Y.S.2d 514, 473 N.E.2d 742 (1984). Here, in order to determine the location where Woori’s cause of action accrued, the Court must first determine (1) the residency of Woori and (2) the location of the injury.

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Bluebook (online)
923 F. Supp. 2d 491, 2013 WL 449912, 2013 U.S. Dist. LEXIS 17476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woori-bank-v-lynch-nysd-2013.