11-940-cv

Teachers Ins. & Annuity Assoc. of Am. v. CRIIMI Mae Servs. Ltd., et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE

32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A

PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH

THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the Daniel Patrick Moynihan United

States Courthouse, 500 Pearl Street, in the City of New York, on

the 5th day of June, two thousand twelve.

PRESENT:

RALPH K. WINTER,

DENNY CHIN, 

CHRISTOPHER F. DRONEY,

Circuit Judges.

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TEACHERS INSURANCE AND ANNUITY

ASSOCIATION OF AMERICA et al.,

Plaintiffs-CounterDefendants-Appellants,

v. 11-940-cv

CRIIMI MAE SERVICES LIMITED

PARTNERSHIP and CMSLP MANAGEMENT

COMPANY, INC.,

Defendants-CounterClaimants-Appellees.

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FOR PLAINTIFFS-COUNTER- JOHN GROSS (pro hac vice), Taylor 

DEFENDANTS-APPELLANTS: English & Duma LLP, Atlanta,

Georgia, (Daniel S. Ratner, Heidell

Pittoni Murphy & Bach LLP, New

York, New York, on the brief).

FOR DEFENDANTS-COUNTER GREGORY A. CROSS, (Colleen M. 

CLAIMANTS-APPELLEES: Mallon, on the brief), Venable LLP,

Baltimore, Maryland.
2

Appeal from a judgment of the United States District

Court for the Southern District of New York (Kaplan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

Appellants Teachers Insurance and Annuity Association

of America ("TIAA"), Minnesota Life Insurance Company, Advantus

Series Fund, Inc., and Mortgage and Bond Portfolios appeal from

the district court's judgment of February 8, 2011, granting

defendants' renewed motion for summary judgment dismissing the

complaint. The judgment was entered pursuant to a memorandum

opinion also dated February 8, 2011. The plaintiffs also

challenge aspects of the district court's prior grant of partial

summary judgment, in a memorandum opinion of February 3, 2010, as

well as portions of the district court's order on the motion to

dismiss of September 7, 2007. We assume the parties’ familiarity

with the underlying facts, procedural history of the case, and

the issues on appeal.

We review both the district court's grant of a motion

to dismiss and grant of summary judgment de novo. See Licci ex

rel. Licci v. Lebanese Canadian Bank, SAL, 672 F.3d 155, 156 (2d

Cir. 2012) (per curiam); Miller v. Wolpoff & Abramson, L.L.P.,

321 F.3d 292, 300 (2d Cir. 2003).

We affirm substantially for the reasons set forth in

the district court's thorough and carefully considered order of

September 7, 2007 and memorandum opinions of February 3, 2010 and

February 8, 2011.
3

The governing agreement in this case is the Pooling and

Servicing Agreement (the "PSA"). The PSA contained a "no-action

clause" -- a condition precedent that prohibited any investor

from suing unless at least 25 percent of each class of

certificates adversely affected by the challenged transaction

made a written request to the Trustee of the Trust to institute

the suit in its own name as Trustee. See PSA § 10.02; see also

McMahan & Co. v. Wherehouse Entm't, Inc., 65 F.3d 1044, 1050-51

(2d Cir. 1995) (noting that such clauses are common and

"'strictly construed'") (quoting Cruden v. Bank of N.Y., 957 F.2d

961, 967-68 (2d Cir. 1992)). Here, the question is whether Class

A-1 Certificateholders were adversely affected by the sale of the

Hardage loan. Plaintiff TIAA only possessed a small amount of

Class A-1 Certificates, well below the 25-percent threshold, and

did not have the participation of other Class A-1

Certificateholders necessary to meet this threshold. Therefore,

if Class A-1 Certificateholders were adversely affected, section

10.02 would preclude plaintiffs from suing.

The district court correctly found that plaintiffs had

failed to raise a genuine issue of material fact as to whether

Class A-1 Certificateholders were adversely affected by the sale

of the Hardage loan. Specifically, it found as a matter of law

that Class A-1 Certificateholders were adversely affected because

they did not receive interest income that they otherwise would

have received had defendants not sold the loan. Plaintiffs

failed to present any non-speculative evidence that Class A-1
4

Certificateholders could have received equivalent interest income

elsewhere in the market.

We have considered Appellants' other arguments on

appeal and have found them to be without merit. Accordingly, the

judgment of the district court is hereby AFFIRMED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk