The First Department, in a full-fledged opinion by Justice Gische, over a dissent, ruled on the timeliness of claims that defendant, GreenPoint Mortgage Funding, had breached representations and warranties regarding the quality of mortgages underlying residential mortgage backed securities (RMBS). The court determined the claims were timely with regard to defective mortgages discovered by the defendant itself, despite the absence of notices of breach. But the claims were not timely with respect to the defective mortgages discovered by the plaintiff but for which no timely notices of breach were provided:
The issues before us are related to the contractual requirement and sufficiency of notices of breach (breach notice). We consider whether a breach notice is required when the underlying contract claim is based upon a defendant’s independent discovery or knowledge of the nonconforming mortgages. We also consider whether an otherwise late breach notice can relate back in time to the commencement of the underlying action in order to avoid dismissal. … [W]e hold that the breach of contract claims based upon defendant’s alleged independent discovery or likely knowledge of nonconforming mortgage loans do not require breach notices to be sent before an action may be brought. We further hold that the doctrine of relation back does not save claims that do require that a breach notice be sent as a precondition to bringing an action. U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., 2016 NY Slip Op 08968, 1st Dept 12-29-16
SECURITIES (RE TIMELINESS OF CLAIMS ALLEGING DEFECTIVE MORTGAGES UNDERLYING RESIDENTIAL MORTGAGE BACKED SECURITIES, WHERE THE CONTRACT CALLS FOR TIMELY NOTICES OF BREACH, NO NOTICE OF BREACH REQUIRED WHERE DEFENDANT ITSELF DISCOVERS THE DEFECTIVE MORTGAGE)/RESIDENTIAL MORTGAGE BACKED SECURITIES (RE TIMELINESS OF CLAIMS ALLEGING DEFECTIVE MORTGAGES UNDERLYING RESIDENTIAL MORTGAGE BACKED SECURITIES, WHERE THE CONTRACT CALLS FOR TIMELY NOTICES OF BREACH, NO NOTICE OF BREACH REQUIRED WHERE DEFENDANT ITSELF DISCOVERS THE DEFECTIVE MORTGAGE)/CONTRACT LAW (RESIDENTIAL MORTGAGE BACKED SECURITIES, RE TIMELINESS OF CLAIMS ALLEGING DEFECTIVE MORTGAGES UNDERLYING RESIDENTIAL MORTGAGE BACKED SECURITIES, WHERE THE CONTRACT CALLS FOR TIMELY NOTICES OF BREACH, NO NOTICE OF BREACH REQUIRED WHERE DEFENDANT ITSELF DISCOVERS THE DEFECTIVE MORTGAGE)