BANK NATIONAL ASSOCIATION v. EQUIFIRST CORPORATION (2025)

Order, Supreme Court, New York County (Robert R. Reed, J.), entered October 31, 2023, which granted in part and denied in part defendants’ motion to dismiss the amended complaint, unanimously modified, on the law, to grant the motion in its entirety, and otherwise affirmed, without costs.  The Clerk is directed to enter judgment accordingly.

Defendant EquiFirst Corporation had a repurchase obligation under the mortgage loan purchase agreement.  Therefore, the failure-to-notify (FTN) claim should have been dismissed as against it (see Bank of N.Y. Mellon v. WMC Mtge., LLC, 151 A.D.3d 72, 76, 81, 56 N.Y.S.3d 1 [1st Dept. 2017];  see also Matter of Part 60 RMBS Put–Back Litig., 195 A.D.3d 40, 53, 146 N.Y.S.3d 109 [1st Dept. 2021]).

LDIR, LLC v. DB Structured Prods., Inc., 172 A.D.3d 1, 99 N.Y.S.3d 327 (1st Dept. 2019) allowed a FTN claim to proceed (see id. at 4, 99 N.Y.S.3d 327), even though defendant DB Structured Products was subject to the repurchase protocol (id. at 3, 99 N.Y.S.3d 327).  However, in LDIR, the notice provision was ambiguous (see id. at 4–5, 99 N.Y.S.3d 327 see also Katz v. Hampton Hills Assoc. Gen. Partnership, 186 A.D.3d 688, 690, 130 N.Y.S.3d 542 [2d Dept. 2020]).  By contrast, the notice provision in this case is not ambiguous.

Since no FTN claim lies against EquiFirst, Barclays cannot be liable as EquiFirst's alter ego or successor.  Were we to consider those claims, we would find them unavailing.