11-940-cv
Teachers Ins. & Annuity Assoc. of Am. v. CRIIMI Mae Servs. Ltd., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 5th day of June, two thousand twelve.
PRESENT:
RALPH K. WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA et al.,
Plaintiffs-Counter-
Defendants-Appellants,
v. 11-940-cv
CRIIMI MAE SERVICES LIMITED
PARTNERSHIP and CMSLP MANAGEMENT
COMPANY, INC.,
Defendants-Counter-
Claimants-Appellees.
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FOR PLAINTIFFS-COUNTER- JOHN GROSS (pro hac vice), Taylor
DEFENDANTS-APPELLANTS: English & Duma LLP, Atlanta,
Georgia, (Daniel S. Ratner, Heidell
Pittoni Murphy & Bach LLP, New
York, New York, on the brief).
FOR DEFENDANTS-COUNTER GREGORY A. CROSS, (Colleen M.
CLAIMANTS-APPELLEES: Mallon, on the brief), Venable LLP,
Baltimore, Maryland.
Appeal from a judgment of the United States District
Court for the Southern District of New York (Kaplan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Appellants Teachers Insurance and Annuity Association
of America ("TIAA"), Minnesota Life Insurance Company, Advantus
Series Fund, Inc., and Mortgage and Bond Portfolios appeal from
the district court's judgment of February 8, 2011, granting
defendants' renewed motion for summary judgment dismissing the
complaint. The judgment was entered pursuant to a memorandum
opinion also dated February 8, 2011. The plaintiffs also
challenge aspects of the district court's prior grant of partial
summary judgment, in a memorandum opinion of February 3, 2010, as
well as portions of the district court's order on the motion to
dismiss of September 7, 2007. We assume the parties’ familiarity
with the underlying facts, procedural history of the case, and
the issues on appeal.
We review both the district court's grant of a motion
to dismiss and grant of summary judgment de novo. See Licci ex
rel. Licci v. Lebanese Canadian Bank, SAL, 672 F.3d 155, 156 (2d
Cir. 2012) (per curiam); Miller v. Wolpoff & Abramson, L.L.P.,
321 F.3d 292, 300 (2d Cir. 2003).
We affirm substantially for the reasons set forth in
the district court's thorough and carefully considered order of
September 7, 2007 and memorandum opinions of February 3, 2010 and
February 8, 2011.
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The governing agreement in this case is the Pooling and
Servicing Agreement (the "PSA"). The PSA contained a "no-action
clause" -- a condition precedent that prohibited any investor
from suing unless at least 25 percent of each class of
certificates adversely affected by the challenged transaction
made a written request to the Trustee of the Trust to institute
the suit in its own name as Trustee. See PSA § 10.02; see also
McMahan & Co. v. Wherehouse Entm't, Inc., 65 F.3d 1044, 1050-51
(2d Cir. 1995) (noting that such clauses are common and
"'strictly construed'") (quoting Cruden v. Bank of N.Y., 957 F.2d
961, 967-68 (2d Cir. 1992)). Here, the question is whether Class
A-1 Certificateholders were adversely affected by the sale of the
Hardage loan. Plaintiff TIAA only possessed a small amount of
Class A-1 Certificates, well below the 25-percent threshold, and
did not have the participation of other Class A-1
Certificateholders necessary to meet this threshold. Therefore,
if Class A-1 Certificateholders were adversely affected, section
10.02 would preclude plaintiffs from suing.
The district court correctly found that plaintiffs had
failed to raise a genuine issue of material fact as to whether
Class A-1 Certificateholders were adversely affected by the sale
of the Hardage loan. Specifically, it found as a matter of law
that Class A-1 Certificateholders were adversely affected because
they did not receive interest income that they otherwise would
have received had defendants not sold the loan. Plaintiffs
failed to present any non-speculative evidence that Class A-1
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Certificateholders could have received equivalent interest income
elsewhere in the market.
We have considered Appellants' other arguments on
appeal and have found them to be without merit. Accordingly, the
judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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