United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD, District Judge.
Wells Fargo Bank, NA. ("Wells Fargo"), as Trustee
for a commercial mortgage-backed security trust, brings this
action "by and through" its Special Servicer
CWCapital Asset Management LLC ("CWCapital") to
foreclose a commercial mortgage loan. Defendant 390 Park
Avenue Associates, LLC ("390 Park") moves to
dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction.
For the reasons stated below, 390 Park's motion is
following facts are taken from the Complaint and documents
submitted on this motion. The facts are construed in the
light most favorable to Plaintiff. See McGowan v. United
States, 825 F.3d 118, 125 (2d Cir. 2016).
March 9, 2005, 390 Park entered into a Note and Loan
Agreement evidencing a $110 million loan from Column
Financial, Inc. (the "Original Lender"). On the
same day, 390 Park and the Original Lender entered into
several other agreements to secure the loan, including a
mortgage agreement granting the Original Lender a first
priority lien on certain real property commonly known as The
Lever Building located at 390 Park Avenue; a guaranty
agreement; and an assignment of leases and rents
(collectively with the Note and Loan Agreement, the
"Loan Documents"). Effective May 26, 2005, the
Original Lender assigned "all the right, title and
interest" in the Loan Documents to Plaintiff as Trustee
for Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-C2
Trust is referred to generally as a commercial
mortgage-backed securities trust. More precisely, it is a New
York common law trust designated as a real estate mortgage
investment conduit ("REMIC") for federal income tax
purposes. The "Trust Fund" consists of commercial
and multifamily loans, including the loan to 390 Park. The
beneficiaries of the Trust are the
Trust is governed by a Pooling and Servicing Agreement
("PSA"), which divides responsibility for the
management of the Trust among three parties - the Trustee,
the Master Servicer and the Special Servicer. The Trustee is
charged with "hold[ing] the Trust Fund in trust for the
exclusive use and benefit of all present and future
Certificateholders." Any transfer of mortgage loans to
the Trustee for inclusion in the Trust Fund is
"absolute" and "intended by the parties to
constitute a sale." The Trustee "may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or
attorneys, " including, in the event a default occurs,
the commencement of legal proceedings. The Special Servicer
is generally responsible for administration of defaulted
loans and is specifically authorized "to foreclose upon
or otherwise comparably convert... the ownership of any
property securing such Loans." Before initiating a
foreclosure action, however, the Special Servicer must obtain
the consent of the "Directing Certificateholder."
also limits the control Certificateholders may exercise over
the Trust. Subject to certain exceptions, Certificateholders
do not have a right to vote or otherwise control the
operation or management of the Trust Fund. Additionally,
Certificateholders may not take legal action with respect to
any loan held in the Trust Fund unless a specified percentage
of Certificateholders have made written demand on the Trustee
and the Trustee has refused to file suit in its own name.
Park defaulted on its loan by failing to pay the full amount
due on or before the maturity date, which was March 11, 2015.
On March 19, 2015, counsel for CWCapital, acting "on
behalf of the Trust, " sent a default notice to 390 Park
demanding payment of the outstanding amounts due under the
Loan Documents. On November 22, 2016, Wells Fargo commenced
this action in its own name as Trustee, by and through
CWCapital, its Special Servicer. The Complaint alleges that
subject matter jurisdiction exists pursuant to 28 U.S.C.
§ 1332(a) in that this action is between citizens of
different states - Wells Fargo is a citizen of South Dakota,
while none of the defendants is - and the amount in
controversy exceeds $75, 000.
deciding motions to dismiss under Rule 12(b)(1), a court
accepts as true all factual allegations in the complaint and
draws all reasonable inferences in favor of the plaintiff.
McGowan, 825 F.3d at 125. The plaintiff has the
burden of showing by a preponderance of the evidence that
subject matter jurisdiction exists. Id. "When
subject matter jurisdiction is challenged, we are free to
consider materials extrinsic to the complaint."
Moser v. Pollin, 294 F.3d 335, 339 (2d Cir. 2002);
accord Devi v. Silva, 861 F.Supp.2d 135, 143-44
(S.D.N.Y. 2012) (citing Moser).
Park's motion to dismiss for lack of subject matter
jurisdiction is denied. Wells Fargo, as Trustee, is a real
and substantial party to the controversy, and therefore its
citizenship is used to assess diversity jurisdiction. Because
the Complaint adequately alleges diversity of citizenship
between Plaintiff and all Defendants and the amount in
controversy requirement is met, the Court has subject matter
jurisdiction under 28 U.S.C. § 1332(a).
jurisdiction exists where the amount in controversy exceeds
$75, 000 and is between "citizens of different
States." 28 U.S.C. § 1332(a)(1). The diversity of
citizenship must be "complete" in the sense that
"all plaintiffs must be citizens of states diverse from
those of all defendants." Pa. Pub. Sch. Emps.'