The court was not persuaded by the Bank’s argument and you will neither is actually we
The bank and alludes to Freecharm Ltd. v. Atlas Wealth Holdings Business (U.S.Dist.Ct., S.D.Fla., WL 4591929, a neighbor hood judge buy in the Southern area Section regarding Fl, into the proposition one “a claim that comes regarding the same damage just like the a main predicate claim falls under a comparable cause for action since the new predicate allege for res judicata intentions.” Immediately after briefing in such a case was finished, this new Eleventh Routine Court of Is attractive confirmed the fresh section courtroom order within the a fall advice. (Freecharm Ltd. v. Atlas Riches Holdings (U.S.Ct.Software., WL 6029136.) The latest Eleventh Routine Court off Appeal’s unpublished decision for the Freecharm does not help the Bank because judge reviewed just the region court’s determination you to definitely collateral estoppel prohibited the fresh says rather than whether-given that right here-res judicata relates to bar relitigation of Bank’s claim against Countrywide Economic.
Depending on the Bank, “[t]right here are going to be no res judicata as to the 5th securitization ? because the no claims about you to definitely securitization have been previously voluntarily ignored about Credit Suisse step.” It argument misses the idea. The problem is whether or not the Financial might have raised a state against Nationwide Economic considering its alleged control of Nationwide Ties when you look at the Borrowing Suisse. What the law states is settled you to definitely a good “previous latest wisdom for the merits not simply settles problems that were not actually litigated plus every question that might possess come elevated and litigated in the first action.” (Mattson v. Town of Costa Mesa (1980) 106 Cal.Software.3d 441, 446.) Whenever an issue is within the “scope of [prior] action, regarding the subject number and strongly related to the difficulties, therefore it could have been raised, the fresh judgment is conclusive on it? Which the laws is the fact that previous wisdom is res judicata on matters which were elevated or could have been increased, towards matters litigated or litigable?” (Villacres v. ABM Marketplaces Inc. (2010) 189 Cal.Software.4th 562, 576, ticket excluded.)
The financial institution appetite this court to conclude res judicata pertains to precisely the four securitizations on which each other Countrywide Bonds and you can CWALT is prosecuted on the Borrowing Suisse step, rather than to help you a fifth securitization about what Countrywide Bonds by yourself try prosecuted
The financial institution cannot argue it had been struggling to improve a good claim concerning your fifth securitization on the Credit Suisse step. (Find eight Witkin, Cal. Procedure (fifth ed. 2008) View, § 406, p. 1041 [zero pub where plaintiff “is actually not able to rely on a specific concept or even to https://clickcashadvance.com/installment-loans-mi/augusta/ look for a particular solution otherwise variety of recovery in the 1st action”].) Instead-and you may without pointing out any expert-the financial institution argues Countrywide Financial’s conflict is not “correct” and that it try “at best [one] you to ? need [been] increased in [Countrywide Financial’s] demurrer. That isn’t an issue which can properly feel fixed for the this focus.” I refute that it argument for 2 causes. Very first, it is not supported by one authority. (Berger v. Ca Ins. Make sure Assn. (2005) 128 Cal.Application.last 989, 1007, fn. omitted [inability to support contention which have authority “constitutes a beneficial waiver of the procedure into notice”].) Second, we come across no reason as to why Nationwide Economic must boost it dispute in demurrer. The financial institution made the new disagreement within its resistance into the demurrer, and you can Nationwide Financial taken care of immediately it in respond.
New Bank’s Section 25504 Allege is similar Cause of Step once the Point 15 Claim They Dismissed having Prejudice in the Borrowing Suisse Step
Another question is whether or not the Bank’s point 25504 allege during the the newest elizabeth “reason for step” once the Part fifteen allege it disregarded that have bias regarding Borrowing from the bank Suisse action. 6 The clear answer try yes.