IN RE: PART 60 RMBS PUT–BACK LITIGATION (2018)

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered on September 28, 2017, which denied defendant/counterclaim plaintiff/third-party plaintiff Natixis Real Estate Capital, Inc.'s challenge to a special master's order holding that the subject documents are protected by the common interest privilege, unanimously affirmed, with costs.

In this residential mortgage-backed securities put-back action, the securities administrator, Wells Fargo Bank, N.A., separate securities administrator, Computershare Trust Company, National Association, and the nonparty certificateholders, shared the common legal interest of pursuing the mortgage put-back claims.  Due to the “no-action” clause in the applicable pooling and servicing agreement, the allegedly injured certificateholders may not directly pursue their claims, and must rely on the securities administrator and separate securities administrator to litigate on behalf of the trust.  Within this limited context, we find that the standard articulated in Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 628, 57 N.E.3d 30 [2016] ) concerning the application of the common interest privilege, is met (see ACE Sec. Corp. v. DB Structured Prods., Inc., 55 Misc.3d 544, 561–563, 40 N.Y.S.3d 723 [Sup. Ct., N.Y. County 2016] ).

Moreover, the documents were exchanged at a time when the parties shared their common interest of pursuing the put-back claims, and were made in furtherance of that common interest.