Exhibit,Appendix: Hsbc Bank Usa, National Association, In Its Capacity As Trustee Of Nomura Home Equity Loan, Inc., Asset Backed Certificates, Series 2007-2 v. Nomura Credit & Capital, Inc.

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                                FILED:         NEW     YORK       COUNTY        CLERK        03/18/2015             02:44        PM                 INDEX    NO.   650337/2013
   NYSCEF     DOC.   NO.   133                                                                                RECEIVED      NYSCEF:     03/18/2015




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                             Case 1:11-cv-10952-GAO               Document 416          Filed 05/01/14        Page 1 of 3



                                                    UNITED STATES DISTRICT COURT
                                                      DISTRICT OF MASSACHUSETTS

                                                      CIVIL ACTION NO. 11-10952-GAO

                                               FEDERAL HOME LOAN BANK OF BOSTON,
                                                                       Plaintiff,

                                                                           v.

                                                        ALLY FINANCIAL, INC., et al.,
                                                                     Defendants.


                                                                        ORDER
                                                                     May 1, 2014

                  O’TOOLE, D.J.

                           This   case   arises   from    allegations    that  the   defendants,     various    banks    and   ratings

                  companies, made false or misleading representations, by statements or omissions, to the plaintiff,

                  the Federal Home Loan Bank of Boston (“the Bank”), regarding 111 mortgage certificates. Each

                  of  the  111   certificates   is backed    by   a  supporting    loan   group   (“SLG”)     of  residential   home

                  mortgages.    Mortgages     given   by  approximately      215,000    homebuyers     are  potentially   at  issue  in

                  this case.

                           Specifically, the Bank alleges that the defendants misrepresented or omitted information

                  regarding the underwriting guidelines used to originate these loans. As one means of proving this

                  allegation,   the  Bank    plans   to  re-underwrite     loans   from   each    of  the  111   SLGs    at  issue   to

                  determine    whether    those   loans  were   in  compliance     with   relevant   underwriting    guidelines.    To

                  reduce   the  expense    and  time  associated    with  the  re-underwriting     process,   the  Bank   proposes    a

                  statistical  sampling    methodology      that  would    allow   itto  re-underwrite     only  a  relatively   small

                  sample of the 215,000 loans at issue.
                             Case 1:11-cv-10952-GAO               Document 416          Filed 05/01/14        Page 2 of 3



                           The   Bank   has   moved    for  an  order  approving    its expert’s   proposed    statistical  sampling

                  methodology,      arguing primarily that     the methodology is both        reliable and    relevant, will   greatly

                  simplify   this  litigation,  and   will  significantly   reduce   expense    and   time   for  all parties.  Some

                  defendants oppose this motion on a number of grounds: that the Bank’s expert has not begun to

                  apply his methodology to the loans at issue, and thus there are no results to be evaluated; that the

                  methodology omits critical information and is not designed to answer non-binary questions; and

                  that the methodology will have little, if any, effect on the scope of fact discovery. In effect, the

                  Bank seeks Daubert pre-clearance for its expert’s methodology.

                           Courts in this district and others have resolved this issue differently. Compare Mass. Mut.

                  Life Ins. Co. v. Residential Funding Co., No. 11-30035-PBS, 2013 WL 6490125 (D. Mass. Dec.

                  9,  2013)   (determining     the  admissibility    of  an  expert’s   sampling     methodology      before   it was

                  applied to the mortgage loans at issue, because “[e]arly resolution of the viability of the sampling

                  methodology      makes    sense  as  a  case  management       matter”),   with  Capital   Ventures    Int’l v.  J.P.

                  Morgan     Mortg.   Acquisition    Corp.,   No.  12-10085-RWZ,        dkt.  no.  86,  at 1–2  (D.   Mass.   Aug.   2,

                  2013) (concluding that “the better course . . . is to continue with fact discovery and resolve any

                  Daubert    issues  thereafter”),   and  Capital   Ventures    Int’l  v. UBS    Sec.  LLC,    No.  11-11937-DJC,

                  dkt. no. 59 (D. Mass. July 2, 2013) (“[T]he better course is to allow fact discovery to go forward

                  with expert disclosures to follow . . . .”). The decision is primarily one of case management.

                           Even   if the  Bank’s   motion    were   allowed,   it is likely  that  this Court   would   still need   to

                  revisit the methodology, and its application to the relevant loans, after the Bank’s supplemental

                  expert report and the defendants’ response. For that reason, it is uncertain whether allowing the

                  Bank’s motion would have any appreciable effect on the scope of discovery, on the parties’ costs

                  or time expended, or on        judicial resources used.     I therefore conclude that      the Bank’s motion is



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                             Case 1:11-cv-10952-GAO               Document 416          Filed 05/01/14        Page 3 of 3



                  premature. To avoid relitigation of this issue, the parties are to continue with fact discovery and

                  take   up  the  issue   of  methodology,      as  well   as  its application    and   the  experts’   conclusions,

                  thereafter. The Bank’s Motion for Approval of Statistical Sampling Methodology (dkt. no. 391)

                  is therefore DENIED WITHOUT PREJUDICE.

                           It is SO ORDERED.

                                                                                          /s/ George A. O’Toole, Jr.
                                                                                          United States District Judge




                                                                            3
                       CASE 0:13-cv-03447-SRN-JJK-HB                    Document 65         Filed 11/26/14        Page 1 of 4




                                                    UNITED STATES DISTRICT COURT
                                                         DISTRICT OF MINNESOTA


                    RESIDENTIAL FUNDING COMPANY, LLC                                   Case No. 13-CV-3447 (PJS/JSM)
                    and RESCAP LIQUIDATING TRUST,

                                               Plaintiffs,
                                                                                                      ORDER
                    v.

                    THE MORTGAGE OUTLET, INC.,

                                               Defendant.
                    RESIDENTIAL FUNDING COMPANY, LLC                                   Case No. 13-CV-3466 (PJS/JJK)
                    and RESCAP LIQUIDATING TRUST,

                                               Plaintiffs,

                    v.

                    GOLDEN EMPIRE MORTGAGE, INC.,

                                               Defendant.
                    RESIDENTIAL FUNDING COMPANY, LLC,                                  Case No. 13-CV-3513 (PJS/JSM)

                                               Plaintiff,

                    v.

                    BRANCH BANKING & TRUST CO.,

                                               Defendant.
                    RESIDENTIAL FUNDING COMPANY, LLC                                  Case No. 13-CV-3531 (PJS/TNL)
                    and RESCAP LIQUIDATING TRUST,

                                               Plaintiffs,

                    v.

                    iSERVE RESIDENTIAL LENDING, LLC, as
                    successor to United Residential Lending LLC,

                                               Defendant.
                       CASE 0:13-cv-03447-SRN-JJK-HB                    Document 65         Filed 11/26/14        Page 2 of 4




                    RESIDENTIAL FUNDING COMPANY, LLC,                                 Case No. 14-CV-1740 (PJS/TNL)

                                               Plaintiff,

                    v.

                    RESCUE MORTGAGE, INC.,

                                               Defendant.
                    RESIDENTIAL FUNDING COMPANY, LLC,                                 Case No. 14-CV-1760 (PJS/TNL)

                                               Plaintiff,

                    v.

                    AMERICAN MORTGAGE NETWORK, LLC,
                    f/k/a American Mortgage Network, Inc., d/b/a
                    Vertice; AMNET MORTGAGE LLC, f/k/a
                    Amnet Mortgage, Inc., f/k/a American
                    Residential Investment Trust, Inc.; WELLS
                    FARGO BANK, N.A.,

                                               Defendants.
                    RESCAP LIQUIDATING TRUST,                                          Case No. 14-CV-3093 (PJS/JJK)

                                               Plaintiff,

                    v.

                    RBC MORTGAGE COMPANY,

                                               Defendant.

                           The Court recently wrote a letter to the parties concerning Fed. R. Civ. P. 12(f) motions

                  that plaintiffs have filed or intend to file in the above-captioned cases.            Among other things, the

                  Court instructed the parties to determine a hearing date on which all such motions could be heard

                  and required plaintiffs to withdraw the memoranda that they have already filed.                  It appears that

                  the parties are unable to agree on a hearing date.          It also appears that plaintiffs have not

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                       CASE 0:13-cv-03447-SRN-JJK-HB                    Document 65         Filed 11/26/14        Page 3 of 4



                  withdrawn their memoranda as instructed.            The Court will therefore take matters into its own

                  hands.

                           The Court will hear argument on plaintiffs’ motions on Friday, March 6, 2015, at

                  9:00 a.m.    As previously instructed, plaintiffs may file their motions on the dates necessitated by

                  Rule 12(f)(2).    All other papers — including memoranda and any accompanying materials —

                  should be filed in accordance with the schedule set forth below.

                           The Court has also been informed that plaintiffs would like to bring early motions under

                  Fed. R. Evid. 702 to determine whether plaintiffs may use statistical sampling in order to prove

                  their cases at trial.  Plaintiffs apparently hope to obtain an early ruling on this issue in order to

                  limit the scope of discovery.

                           The Court declines to hear such motions.           In these as in all other federal civil cases,

                  parties generally may “obtain discovery regarding any nonprivileged matter that is relevant to

                  any party’s claim or defense . . . .”      Fed. R. Civ. P. 26(b)(1).      Although the Court may ultimately

                  agree with plaintiffs that they may prove their cases at trial using statistical sampling, the Court

                  will not limit defendants from obtaining discovery to which they have a right under the Federal

                  Rules of Civil Procedure.       Indeed, defendants will need broad discovery from plaintiffs in order

                  to assess and perhaps challenge the reliability of the statistical sampling that plaintiffs propose to

                  do at trial.

                           As in any case, discovery disputes should be brought before the assigned magistrate

                  judge in the first instance.     And as is its practice, the Court will not hear Daubert or summary-

                  judgment motions until discovery is completed, unless a magistrate judge recommends otherwise

                  and the Court agrees with that recommendation.


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                       CASE 0:13-cv-03447-SRN-JJK-HB                    Document 65         Filed 11/26/14        Page 4 of 4



                                                                       ORDER

                           Accordingly, IT IS HEREBY ORDERED THAT:

                           1.       Plaintiffs’ memoranda in support of their motions to strike [ECF No. 72 in 13-

                                    CV-3513 (PJS/JSM), ECF No. 82 in 13-CV-3531 (PJS/TNL), and ECF No. 40 in

                                    14-CV-1760 (PJS/TNL)] are STRICKEN.

                           2.       A hearing will be held before the undersigned on plaintiffs’ motions to strike on

                                    Friday, March 6, 2015, at 9:00 a.m.

                           3.       The briefing schedule is as follows:

                                    a.       Plaintiffs’ consolidated memorandum and accompanying materials must

                                             be served and filed no later than Friday, January 16, 2015.

                                    b.       Defendants’ memoranda and accompanying materials must be served and

                                             filed no later than Friday, February 6, 2015.         As the Court stated in its

                                             November 14, 2014 letter, the Court would prefer defendants to file a

                                             single, consolidated brief, if possible.

                                    c.       Plaintiffs’ consolidated reply must be served and filed no later than

                                             Friday, February 20, 2015.

                                    d.       Plaintiffs’ combined opening and reply briefs must not exceed 12,000

                                             words.    If defendants file a single consolidated brief, it must not exceed

                                             18,000 words.      If defendants file individual briefs, each brief may not

                                             exceed 6,000 words.

                    Dated: November 26, 2014                                  s/Patrick J. Schiltz
                                                                              Patrick J. Schiltz
                                                                              United States District Judge


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