The fresh new judge wasn’t persuaded of the Bank’s disagreement and neither is i
The financial institution and cites Freecharm Ltd. v. Atlas Wide range Holdings Agency (You.S.Dist.Ct., S.D.Fla., WL 4591929, a location court order on the South Area off Florida, with the proposition one “a declare that comes on the exact same spoil as the a main predicate claim belongs to a comparable cause of action because the the newest predicate claim for res judicata intentions.” Immediately following briefing in cases like this was complete, the new Eleventh Routine Court out-of Appeals confirmed the latest section legal acquisition into the a slip opinion. (Freecharm Ltd. v. Atlas Money Holdings (U.S.Ct.App., WL 6029136.) Brand new Eleventh Circuit Court of Appeal’s unpublished decision inside the Freecharm does perhaps not help the Financial given that courtroom analyzed just the district court’s dedication one to guarantee estoppel barred the newest claims and never if-once the here-res judicata relates to pub relitigation of one’s Bank’s allege up against Nationwide Monetary.
With regards to the Bank, “[t]here are going to be zero res judicata from what fifth securitization ? given that no claims connected with one securitization were ever before willingly dismissed regarding the Credit Suisse action.” That it conflict misses the point. The issue is whether the Lender have elevated a claim facing Countrywide Monetary according to its alleged control of Countrywide Bonds inside Credit Suisse. Regulations is settled one to an effective “previous finally view with the deserves just settles issues that just weren’t actually litigated and also all issue which could has actually come increased and you will litigated in the first step.” (Mattson v. City of Costa Mesa (1980) 106 Cal.Application.3d 441, 446.) Whenever a matter is in the “scope of your own [prior] step, about the subject count and you may strongly related to the issues, so it might have been elevated, the latest judgment are definitive in it? And therefore brand new signal is the fact that the past judgment try res judicata into matters that happen to be increased or could have been increased, into the matters litigated or litigable?” (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.fourth 562, 576, pass excluded.)
The financial institution cravings so it court to close out res judicata pertains to just the four securitizations on what one another Countrywide Ties and you may CWALT try sued on Credit Suisse action, rather than to a 5th securitization on what Countrywide Ties alone is actually prosecuted
The financial institution does not dispute it had been not able to boost good claim about your 5th securitization from the Borrowing Suisse step. (Find seven Witkin, Cal. Processes (5th ed. 2008) View, § 406, p. 1041 [zero bar in which plaintiff “is struggling to have confidence in a particular concept or even to seek a specific answer or type of save in the first action”].) Instead-and you may without citing any expert-the financial institution contends Countrywide Financial’s argument isn’t “correct” and that it are “at best [one] that ? need to have [been] raised when you look at the [Countrywide Financial’s] demurrer. This isn’t a problem that can properly feel fixed towards the which focus.” I refute this conflict for 2 grounds. Very first, that isn’t supported by one authority. (Berger v. California Ins. Be sure Assn. (2005) 128 Cal.App.fourth 989, 1007, fn. excluded [inability to support contention that have expert “comprises a good waiver of the topic to your focus”].) Second, we see no reason why Countrywide Economic needed to raise so it disagreement in demurrer. The bank generated the fresh argument in resistance on the demurrer, and you will Countrywide Monetary responded to they http://cashadvancecompass.com/installment-loans-de/houston/ within its respond.
The newest Bank’s Area 25504 Claim is the same Factor in Action given that Area fifteen Claim They Dismissed which have Bias from the Borrowing from the bank Suisse Step
Another question is whether or not the Bank’s point 25504 claim into the the e “cause of step” as Part fifteen claim it disregarded which have prejudice in the Borrowing from the bank Suisse action. six The answer are sure.
