On October 10, 2019, the First Department issued a decision in U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 2019 NY Slip Op. 07327 [176 AD3d 466], holding that when an initial put-back demand is timely made and gives notice of the possibility that other nonconforming loans might later be identified, later notices of nonconforming loans relate back to the initial, timely notice, explaining:
The written notice sent from plaintiff to defendant dated December 6, 2011, made within the statutory limitations period and well in advance of any lawsuit, informed defendant that a substantial number of identified loans were in breach, and that the pool of loans remained under scrutiny, with the possibility that additional nonconforming loans might be identified. The notice complied with the contractual condition precedent of notifying defendant of its default, such that subsequently identified loans, including the 480 identified by plaintiff’s expert during discovery, related back to the time of the initial notice (see Home Equity Mtge. Trust Series 2006-1 v DLJ Mtge. Capital, Inc., 175 AD3d 1175, 1176 [1st Dept 2019] [HEMT 2006-1]; U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., 147 AD3d 79, 88-89 [1st Dept 2016]; Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc., 133 AD3d 96 [1st Dept 2015], mod on other grounds 30 NY3d 572 [2017]). Since defendant was placed on written notice of breach as to all loans on December 6, 2011, it follows that March 5, 2012—under the applicable contractual repurchase protocol, the end of the applicable 90-day cure period, at which point defendant was required to repurchase any uncured, nonconforming loans—is likewise the appropriate date of repurchase.
(Emphasis added).