GLASSCOCK, Vice Chancellor.
This matter involves complicated contractual relationships among lenders whose loans are directly or indirectly secured by real property in the State of Washington. The question presented here, however, is relatively simple. A "Special Servicer" appointed to manage the underlying mortgage loans on behalf of the lenders sought appointment of a receiver over the secured property in a Washington State court. Several lenders appeared to object to the appointment of the receiver, including the Plaintiff here. The Washington court appointed the receiver over the lenders' objections, crafting a detailed order accommodating their concerns and retaining jurisdiction and oversight of the receiver (the "Receiver"). The Plaintiff here, however, elected to forgo one argument available before the Washington court in opposing the appointment of the Receiver: that the Special Servicer was contractually bound to act only under the direction of the Plaintiff here, along with similarly situated lenders. Instead, the Plaintiff split off this issue, and has brought it here in the form of a request for a declaration of its rights under the contracts. The question addressed in this Opinion is whether that issue, as a matter of comity and efficiency, belongs before the Washington State court in the first-filed action, rather than in this Court.
The loans which form the subject matter of both actions include a mortgage loan and several mezzanine loans. A number of agreements provide for various rights and responsibilities of the parties. Pertinently, creditor (and Defendant in this action) Walton Seattle Mezz Holdings VI-G, LLC ("Walton") is designated the "Controlling Holder," giving it the power to appoint and direct a "Special Servicer" over the loans. The Special Servicer has the duty and power to service and manage the mortgage loan in the event of a default by the borrower. Walton appointed CTIMCO as Special Servicer.
The mortgage loan is in default, conferring—according to Walton— management authority over the mortgage loan on CTIMCO. Pursuant to that control, and at Walton's direction, CTIMCO brought suit in Washington State court, seeking appointment of a general receiver to take possession of and manage the mortgaged property (the "Washington Action"). Creditor Landesbank Baden-Wurttemberg ("LBBW"), the Plaintiff here, along with other lenders, appeared in the Washington Action to oppose the appointment of the Receiver. Ultimately, the Washington court appointed the Receiver and retained jurisdiction. The Court enjoined the parties there, including LBBW, from "[s]eeking to enforce any claim, right, or interest against the property or undertaking any self help remedies or taking any action whatsoever to interfere in any way with the receiver and its fulfillment of its duties under" the Washington court's order.
Subsequently, LBBW brought this suit, seeking a declaratory judgment that Walton, because of conflicts of interest, is and has been contractually unable to serve as Controlling Holder, and that the B-1 Participation (which includes LBBW) is in fact the Controlling Holder. LBBW also seeks to enjoin CTIMCO from acting upon Walton's direction. Because this could, and appropriately should, have been raised in the Washington Action as a defense against Walton/CTIMCO's seeking the appointment of a receiver, because there remains no barrier to LBBW litigating the issue in that matter, and because the result LBBW seeks here is likely to conflict with the injunction entered by the Washington court, this action shall be stayed in favor of the first filed Washington Action.
This opinion addresses the Defendants' Motion to Dismiss the Complaint on procedural grounds. The Defendants moved to dismiss the Complaint based on a first-filed case in Washington, failure to join indispensible parties under Rule 12(b)(7), and failure to state a claim under Rule 12(b)(6). Following a Motion for Summary Judgment filed by the Plaintiff that relates to the same substantive issues as the Rule 12(b)(6) Motion, I bifurcated my analysis to dispense with the procedural grounds for dismissal first. This is my analysis as to whether this case should be stayed or dismissed in favor of the prior-filed case in Washington. Because of my decision, I need not reach the issue of the Plaintiff's alleged failure to join indispensible parties.
Plaintiff LBBW is a foreign banking corporation organized under the laws of the Federal Republic of Germany.
The original loans at the heart of this dispute were issued by Column Financial, Inc. (the "Original Lender") in April 2007 in the amount of $900 million, and consisted of a $742,388,000 mortgage loan (the "Mortgage Loan") and three $53,028,000 mezzanine loans, which are junior to the Mortgage Loan and unsecured. These loans were issued to the Mortgage Loan Borrowers and their affiliates to enable the acquisition of various office buildings. Additional mezzanine loans were created in 2007, and the principal balances were restructured among the Original Loans and the additional mezzanine loans (together, the "Loans"). The Loans were securitized, and LBBW and Walton each purchased some of the securities.
The structure of the Loans, along with the identities and relationships of their holders, is quite complicated and is described in the Complaint as follows:
Defendants and not directly relevant to this action.
The Loans are governed by several agreements including a mortgage loan agreement, participation and servicing agreement, a pooling and servicing agreement, mezzanine loan agreements, mezzanine pledge and security agreements, and an intercreditor agreement. The Mortgage Loan is governed by the Amended and Restated Participation and Servicing Agreement (the "Participation Agreement"). Under the Participation Agreement, there is a senior participant (the A Holder) and two junior participants (the B-1 and B-2 Holders).
The Participation Agreement identifies the B-1 Holder as Dekabank Deutsche Girozentrale ("DekaBank"). At some point after the Participation Agreement was created, Plaintiff LBBW acquired a portion of the outstanding B-1 participation interests. However, the Plaintiff holds only a minority position in the B-1 Participation, and the Plaintiff has not alleged any basis under which it is authorized to act on behalf of the B-1 Participation, as a whole, nor on behalf of the other B-1 Holders. In April 2011, Defendant Walton acquired all of the outstanding interests in the B-2 Participation, with a principal value of $30 million.
The servicing and management of the Mortgage Loan is ordinarily the responsibility of the Master Servicer (an entity appointed by the Participation A Holder) on behalf of all holders of the Participations. In an event of default by the Mortgage Loan Borrower, however, the "Controlling Holder" has the right to select a Special Servicer to assume responsibility over the Mortgage Loan. Under the Participation Agreement, the B-2 Holder is the designated "Controlling Holder;" therefore, Walton, as the B-2 Holder, is the Controlling Holder, absent some contractual reason to exclude Walton. As Controlling Holder, Walton has enumerated rights under the Participation Agreement, including rights to approve or disapprove of certain actions following an event of default. Expressly stated in the Participation Agreement is the Controlling Holder's right to "take or refrain from taking actions that favor the interests of the Controlling Holder or its Affiliates over the other Holders." The Participation Agreement also states the "no Controlling Holder shall be liable by reason of its having acted or refrained from acting solely in its interest or in the interest of its Affiliates."
An Event of Default occurred in April 2012. Therefore, Walton, as Controlling Holder, has the right to select the Special Servicer, the entity that will oversee the Loans, unless Walton is disqualified from serving as the Controlling Holder. Walton had designated CTIMCO as Special Servicer on October 12, 2011. LBBW alleges that the relationship between Walton and the Mezzanine Borrowers disqualifies Walton from acting as Controlling Holder, and that the B-1 Participation, and not Walton, has the authority to direct the actions of, or replace, CTIMCO. This is the basis for the claims in the Delaware Action.
Some related entities of Walton own the Mezzanine Loans ("the Mezzanine Loan Borrowers").
Under the Participation Agreement, in the event that there is an occurrence of a default or the imminent risk of default, the Master Servicer of the Loans is required to transfer servicing of the Mortgage Loan to a Special Servicer. The Controlling Holder has the authority to replace any Special Servicer, with or without cause, and to appoint a successor. Walton exercised this right on October 12, 2011, before any default or imminent risk of default had arisen, by appointing Defendant CTIMCO as Special Servicer to the Mortgage Loan.
Around December 23, 2011, the Master Servicer determined that there was an imminent risk of default occurring under the Mortgage Loan that was likely to continue unremedied for sixty or more days. Consequently, the servicing of the Mortgage Loan was transferred to CTIMCO, as Special Servicer, around the same time.
In April 2012, the Mortgage Loan Borrowers defaulted on the Loans. At that point, LBBW theorizes that the Walton Mezzanine Borrowers became the effective owners of the Mortgage Loan Borrowers, since the Walton Mezzanine Borrowers held a security interest in 100% of the equity of the Mortgage Loan Borrowers. Because Walton is owned by the same parent entity as the Walton Mezzanine Borrowers, this relationship arguably renders Walton disqualified from serving as the Controlling Holder under the Participation Agreement. If so, there will presumably be a new Controlling Holder, with the right to replace the Special Servicer and petition to remove the Receiver. According to LBBW, the B-1 Participants (which includes LBBW) should be found to be the Controlling Holder, on account of Walton's disqualification.
LBBW was purportedly aware of these facts before the Washington Action, based on a representation made at oral argument by the Defendant's counsel. Specifically, Defendant's counsel said that "the B-1s raised this issue of lack of controlling holder status in correspondence before that receiver action was ever initiated."
In June 2012, CTIMCO filed an action in a Washington state court seeking the appointment of a general receiver to take possession of and manage the mortgaged property (the "Washington Action").
The Plaintiffs filed an objection in the Washington Action opposing Walton's involvement in the receivership.
The B-1 Participants objected to the proposed receiver, Talon Portfolio Services LLC ("Talon"), on the ground that Talon's main employee overseeing the receivership has close ties to Walton.
On July 2, 2012, the Washington court granted the Plaintiff's request for a general receiver over the B-1 Participants' objections. In doing so, the Washington Court expressly noted that "Pursuant to the Participation and Surviving Agreements . . ., [CTIMCO] has the authority to initiate these proceedings and seek the appointment of a Receiver and Special Servicer is authorized to act on behalf of Plaintiff and Lender."
The Washington court's Order implementing the Receiver is lengthy and detailed. The court retained exclusive jurisdiction over the underlying real property,
Most importantly, the Washington court devoted several sections of the Order to "Actions Stayed." These sections apply to "all third parties, including . . . lessors, lessees, customers, principals, investors, suppliers, and or creditors and their officers, agents, servants, employees, and attorneys, who have actual or constructive knowledge of [the] Order."
Finally, the court hand-wrote the following section of the Order:
This section mirrors the language that the B-1 Participants suggested that the court include in the Order. Thus, the retention by the Washington court of direct control over certain actions of the Receiver appears to have been an effort to allay the B-1 Participants' concerns that Walton may use its influence over the Receiver to restructure the Loans.
LBBW filed the Complaint in this Action on October 5, 2012. Although DekaBank and DGH had joined LBBW in objecting to the Washington Action, neither of those parties has decided to join LBBW in this action.
A growing phenomenon, particularly in the area of corporate law, is the proliferation of suits involving common operative facts proceeding simultaneously in multiple jurisdictions. This Court has expressed Delaware's strong interest in adjudicating matters brought before the Court involving the internal affairs of its corporate citizens, as opposed to deferring to earlier-filed actions in jurisdictions that have in personam jurisdiction over the defendants but otherwise may have little interest in applying (or creating) Delaware law to govern a Delaware entity. However, where a first-filed action exists not involving Delaware law or the internal governance of a Delaware entity, this Court must carefully consider whether principles of comity and economy dictate deference to the court overseeing the first-filed action, particularly, as here, where that court has enjoined the now-Delaware plaintiff from taking actions that would impinge upon the operation of an order (crafted in part to accommodate that party) that that court has put in place.
Under our Supreme Court's holding in McWane, an action that is substantially or functionally identical to an earlier suit may be stayed or dismissed.
CTIMCO filed the Washington Action in June 2012 before LBBW filed the Complaint here in October 2012. Therefore, the Washington Action was the prior-filed action. The suit in Washington is ongoing, and the court there retained jurisdiction. I have no doubts that the Washington court is capable of ruling on LBBW's objections to Walton's status as the Controlling Holder.
The Plaintiff argues that the Washington court "did not have [personal] jurisdiction to hear disputes between foreign-based participants over who can act as Controlling Holder under agreements governed by New York law."
In the Washington Action, LBBW specifically discussed its reasons for objecting to the receivership: LBBW's fear that Walton will exercise its influence over CTIMCO and its designated receiver to restructure the Loan to the detriment of LBBW. LBBW chose not to raise the issue it seeks to litigate here in that Washington Action, although presumably it would have been dispositive in Washington: that Walton's direction to CTIMCO to proceed with the Washington Action was a nullity because Walton is contractually disqualified from acting as Controlling Holder. To the extent that LBBW is concerned that that argument is now precluded, due to LBBW's failure to act, that issue is a matter for the court before which the action has been proceeding, the Washington court. That concern may merit a stay rather than a dismissal, but cannot form the basis for a decision that the Washington court is unable to provide the relief sought here.
For parties to be the "same" under McWane, it is sufficient that related entities are involved, but not named, in both actions.
The named parties to the Washington Action are CTIMCO (the Special Servicer) and various LLCs that own the real property collateral securing the Loans.
"When comparing the similarity of issues in two actions under McWane, the primary question is whether the issues arise out of a `common nucleus of operative facts.'"
The issues in this action are a subset of the issues that were raised, or should have been raised, in the Washington Action. Though, once again, the actions facially involve different issues—in that the Washington Action is a receivership action and the Delaware Action is for declaratory and injunctive relief—the claims in this action arise under the same nucleus of operative fact as the claims in the Washington Action. That is, CTIMCO, operating as the Special Servicer appointed by the Controlling Holder under the Participation Agreement, petitioned the Washington Court for a receiver. LBBW objected to this appointment, not because a receivership was inappropriate, but because Walton was involved. Whether Walton had the authority to appoint and direct CTIMCO as the Special Servicer is relevant to whether CTIMCO has the authority to direct the Receiver. The issue in this action, in effect, is an objection to the receivership that LBBW should have brought in the Washington Action, but failed to assert. That is, if LBBW did not want a receiver appointed that was connected to Walton, LBBW should have raised the defense that it, and not Walton, had the right to appoint and direct the Special Servicer, including the right to control whether the Special Servicer would seek to appoint a particular receiver, or any receiver.
That defense was not raised. Although LBBW already knew of the facts on which it now bases its argument that Walton should no longer be the Controlling Holder, and although LBBW had notice of the Washington Action before the petition was filed,
If I consider what should have been raised in Washington, and indeed, what LBBW can still raise, it becomes apparent that the issues in this case arise out of the same nucleus of operative fact.
The Plaintiff argues that it is not attempting to disturb the Washington Action, but rather to obtain a declaration of the contractual rights of the Loan Participants. Furthermore, the Plaintiff argues that, because the Washington legislature intended for the receivership action to be a stream-lined procedure, the Washington Action was not the correct forum for litigating whether CTIMCO had the authority to request a receiver.
The Defendants have argued that both actions relate to a "battle . . . over how the parties to the transaction should handle the defaulted loans, and who should be making those decisions."
The Washington Action is ongoing. If LBBW wants to disturb that ruling, it will have to raise the issue of CTIMCO's authority with the Washington court.
Delaware has no particular interest in this case. While the Defendants, CTIMCO and Walton, are Delaware entities, the real property collateral secured by the Loans is in Washington. The Receiver is in Washington. The court order enjoining LBBW from interfering with the Receiver was entered in Washington. DekaBank and DGH have filed an objection in Washington. Walton concedes that it could be joined in the Washington Action. The relevant Loan agreements are governed by New York law, which is neutral to both Delaware and Washington. Delaware simply has no unique interest in this case sufficient to justify taking the case out of the hands of the Washington court.
The suit in Washington is ongoing, and the court there retained jurisdiction. As the Plaintiff pointed out in its Answering Brief, the creditors have broad rights to challenge the Receiver:
This seems to be the course that LBBW should take if it seeks to replace the Receiver with one of its own choosing, or to direct the Receiver. If the court in Washington finds that LBBW waived the right to assert this course of action, or that LBBW is enjoined from seeking such self-help at this time, that is the prerogative of the Washington court. Comity suggests that I not usurp that function. Consequently, I find that this action should be stayed under McWane.
Although the Defendants have moved to dismiss, rather than stay, under McWane, I have the discretion to order a stay under these circumstances.
For the reasons above, I find that the Defendants' Motion to Dismiss in favor of the Washington Action should be DENIED. Instead, I hold that this action should be stayed in favor of the prior-filed Washington Action. A form of Order accompanies my decision.