United States District Court, S.D. New York
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF WACHOVIA BANK COMMERCIAL MORTGAGE TRUST, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-C28, ACTING BY AND THROUGH ITS SPECIAL SERVICER CWCAPITAL ASSET MANAGEMENT LLC, Plaintiff, -
DEXIA REAL ESTATE CAPITAL MARKETS F/K/A ARTESIA MORTGAGE CAPITAL CORPORATION, Defendant
For Plaintiff: Michael C. Hartmere, Esq., Venable LLP, New York, NY; Gregory A. Cross, Esq., Heather Deans Foley, Esq., Venable LLP, Baltimore, MD.
For Defendant: David D. Ferguson, Esq., G. Edgar James, Esq., Polsinelli Shughart PC, Kansas City, MO.
Shira A. Scheindlin, U.S.D.J.
OPINION AND ORDER
Plaintiff U.S. Bank National Association, as Trustee for the Registered Holders of Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2006-C28 (" Trust" ), acting by and through its Special Servicer CWCapital Asset Management LLC (" CWCAM" ), brings this action for breach of contract against Dexia Real Estate Capital Markets f/k/a Artesia Mortgage Capital Corporation (" Dexia" ). Dexia moves to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6) on statute of limitations grounds. For the following reasons, Dexia's motion to dismiss is denied.
In October 2006, Wachovia Commercial Mortgage Securities, Inc. (" WCMS" ) and Dexia entered into a Mortgage Loan Purchase Agreement (" MLPA" ) whereby Dexia sold commercial mortgage loans (" Loan Pool" ) to WCMS to be deposited into a trust fund (" Trust Fund" ) and securitized through the issuance of mortgage pass-through certificates (" Certificates" ). The Certificates were to be issued pursuant to a Pooling and Servicing Agreement (" PSA" ) -- dated the same day as the MLPA -- which established Plaintiff as Co-Trustee for the Trust. In the MLPA, Dexia made several representations and warranties (" Representations" ) regarding the quality and characteristics of the loans in the Loan Pool. At issue here is the Representation that each agreement executed by Dexia in connection with the loans was " a legal, valid and binding obligation . . . enforceable in accordance with its terms" for which there was no " valid offset, defense . . . or right to rescission." 
A. The Repurchase Protocol
Section 3 of the MLPA and Section 2.03 of the PSA set out the sole remedy available to the Trust for violation of any of the Representations, namely, cure or repurchase (" Repurchase Protocol" ). Section
2.03 of the PSA describes the Repurchase Protocol: If a breach of a Representation is discovered, and it is determined that such breach " materially and adversely affects the value of the [loan],"  then the Special Servicer (here, CWCAM) must request in writing that Dexia either (i) cure the breach or (ii) repurchase the affected loan. Dexia was obligated to cure -- or else ...