On April 10, 2025, the First Department recently issued a decision in U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 2025 NY Slip Op. 02139, issuing its latest guidance on notice relating to put-back claims.
Among the rulings were that:
- The claims in both actions based on DLJ’s failure to notify plaintiff of R&W breaches should have been dismissed because DLJ had a repurchase obligation.
- The claims in both actions based on defendants’ obligation to cure or repurchase as triggered by breach notices sent in 2012 were dismissed for failure to give timely pre-suit loan-by-loan notice.
- Regarding pre-suit notice for the 2019 action, the First Department explained:
The claims based on defendants’ obligation to cure or repurchase as triggered by breach notices sent in 2019 (portions of the first, second, and third causes of action) (the 2019 Notice Claims) were properly dismissed from the 2015 action but not the 2019 action due to plaintiff’s failure to provide pre-suit notice, as required by the Backstop Provision and paragraph 2 of MLPA § 7.04. Where, as here, an RMBS contract requires notice as a contractual condition precedent to suit, that notice must be loan-specific and must be provided “pre-suit”. Where, as in the 2015 action, loan-specific notice is provided after suit is initiated but before an amended complaint is filed, such notice has not been provided “pre-suit”. Where, however, as in the 2019 action, notice is provided prior to initiation of the instant suit but after initiation of a prior suit on which the instant suit relies (pursuant to CPLR 205[a]) to establish timeliness, the pre-suit notice condition is satisfied.
(Emphasis added).