Académique Documents
Professionnel Documents
Culture Documents
No. 10-2245
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony J. Trenga,
District Judge. (1:09-cv-01420-AJT-JFA)
Argued:
December 8, 2011
Decided:
(Freddie
Mac).
However,
because
the
existing
that
Freddie
breached
the
ISA
by,
among
other
an
amount
equivalent
to
twenty-four
months
of
Dorals
months
of
of
service
Dorals
compensation
forecast
of
fees
evidence
on
reasoning
damages,
that,
the
in
ISAs
I.
Freddie Mac engages pre-approved lenders (servicers) to
service its portfolio of mortgages. 1
to
to
Freddie
pay
Mac,
and
borrowers
maintaining
taxes
and
tax
and
insurance.
insurance
Since
1986,
the
Commonwealth
of
Puerto
Rico,
has
been
qualified
matter
arose
in
2008,
when
Freddie
Mac
began
as
Freddie
Macs
interim
servicer
on
portfolio
Doral entered into the ISA under the terms of which Doral agreed
to be its interim servicer of the same portfolio.
The terms of the ISA indicate two dates relevant to this
appeal.
J.A. 30.
at
33.
Additionally,
the
ISA
defined
the
Interim
Id.
at 30.
On July 11 and 12, 2008, a Freddie Mac team met with Doral
representatives.
to
R&Gs
offices
to
discuss
plan
to
initiate
Although a
told
by
a Freddie
Mac
representative
to
wait
outside,
while
to
join.
At
this
meeting,
R&Gs
representatives
that
day
and
requested
that
Freddie
Mac
give
R&G
an
that
day,
Freddie
Mac
was
served
an
ex
parte
terminating
transferring
associate
the
its
servicing
portfolio. 2
general
counsel
agreement
That
spoke
by
same
with
R&G
day,
Freddie
Macs
with
Doral
telephone
and
from
which
that,
because
of
the
TRO,
the
electronic
data
transferred
from
R&G
to
Doral
during
the
July
scheduled
July
22,
2008,
23
settlement
district
preliminary
settlement conference.
into
the
court
injunction
converted
hearing
into
the
a
agreement,
signed
by
the
district
court,
See R&G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584
would
move
to
intervene
in
R&Gs
pending
action
against
R&G refused
Id.
Thereafter,
the ISA.
Id. at 12-13.
Doral
transmitted
to
Freddie
Mac
its
costs
incurred
Freddie Mac formally informed Doral that the R&G loans would not
be transferred to Doral for interim servicing under the ISA.
Thereafter, Freddie Mac offered to reimburse Doral for its costs
under
the
ISA
in
the
amount
of
$124,588,
as
well
as
an
of
service
compensation
fees
under
the
ISA,
which
under
commencement
occurred.
Section
of
the
2.6i.e.,
servicing
Specifically,
the
of
Freddie
effective
the
Mac
date
for
Mortgageshad
not
maintained
that
the
that
[Doral]
w[ould]
be
December
29,
2009,
Doral
servicing
the
Interim
J.A. 33.
brought
an
action
in
the
Doral
and
Freddie
Mac.
J.A.
27.
Freddie
Mac
that
transaction
discovery
was
regarding
appropriate,
and
the
that
circumstances
custom
and
of
the
practice
evidence
might
be
relevant
to
understanding
the
parties
discovery,
Doral
filed
an
amended
complaint,
both
liability
and
damages.
The
district
court
granted
$124,588,
(including,
but
denied
specifically,
on hold costs).
claims
as
servicing
to
fees,
all
other
ancillary
damages
fees,
and
Doral appealed.
II.
This Court reviews the district courts decision granting
summary judgment de novo.
Summary
interrogatories,
and
admissions
on
file,
together
with
material
fact
and
that
the
10
moving
party
is
entitled
to
was
We disagree.
the
ISA
requiredthat
unambiguously
Effective
Date
such
createsas
under
Section
communication
the
2.6
district
for
was
court
the
given.
foundan
purposes
of
effective
date
for
other
contractual
obligations,
including, for example, rights and obligations during the preservicing period (e.g., Freddie Macs obligations to reimburse
Doral
for
actual
expenses
incurred
during
this
pre-servicing
acts,
or
deeds
that
the
interim
servicing
period
had
Date
provision
was
triggeredwe
agree
with
the
to
provide
reasonable
forecast
of
Dorals
loss.
A.
Initially, Doral argues that the Effective Date provision
under Section 2.6 has no meaning which is separate and distinct
from the July 11, 2008 effective date clause on the face of the
ISA.
We disagree.
If the terms of the contract are clear and unambiguous,
then
we
must
afford
those
terms
their
plain
and
ordinary
12
850 (4th Cir. 2000) (citing Shoup v. Shoup, 31 Va. App. 621, 525
S.E.2d 61, 63-64 (2000)).
The first step for a court asked to grant summary
judgment based on a contracts interpretation is,
therefore, to determine whether, as a matter of law,
the contract is ambiguous or unambiguous on its face.
If a court properly determines that the contract is
unambiguous on the dispositive issue, it may then
properly interpret the contract as a matter of law and
grant summary judgment because no interpretive facts
are in genuine issue.
Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1126 (4th Cir.
1993) (citation omitted).
955
F.2d
242,
245
(4th
Cir.
1992).
The
proper
Section
commencement
of
the
2.6
of
the
servicing
ISA,
of
the
effective
Mortgages
date
(Effective
for
Date)
J.A. 33.
Although the ISA was effective July 11, 2008, the date on
which it was signed, ISA Section 2.6 specifically provides for
the establishment of a separate Effective Date on which Doral
would actually commence servicing the R&G loans for Freddie Mac
and begin to earn servicing compensation fees.
As the district
court pointed out in its Memorandum Opinion, the role that the
13
1.1,
makes
clear
that
the
parties
contemplated
the
obligations
with
portfolio.
J.A. 1532
We
with
agree
unambiguous,
and
respect
the
that
to
district
the
only
the
servicing
court
that
reasonable
of
the
Section
loan
2.6
is
interpretation
of
Effective
Date
to
be
date
that
Freddie
Mac
would
Id.
Id.
B.
Next, Doral contends that, even if this Court upholds the
district courts interpretation that a separate Effective Date
communication
from
Freddie
Mac
to
Doral
was
required
under
Freddie
Mac
did
in
fact
14
determine
and
communicate
the
Effective
Date
to
Doral.
communication
triggered
under,
other
among
Doral
the
further
parties
provisions,
contends
rights
Section
1.1,
and
that
such
obligations
which
includes
whether
Freddie
Mac,
through
word
or
deed,
We disagree.
pay
liquidated
damages
to
Doral
under
Section
1.1
is
an
According
to
Doral,
Freddie
Mac
determined
and
communicated the Effective Date for the purposes of Section 1.1:
(1) as early as July 11, 2008, when the ISA was executed; or (2)
no later than July 14, 2008, when Doral was told to appear with
Freddie Mac at the offices of R&G to begin the process of
transferring the portfolio; or (3) in no event later than July
15, 2008, when Doral continued to meet with Freddie Mac and plan
for the transfer of the portfolio from R&G to Doral.
As
explained, resolution of Dorals factual allegations is not
material to the legal conclusion of the district court, as well
as our holding today, that the liquidated damages established by
Section 1.1 are an unenforceable penalty.
15
Given that
law,
an
unenforceable
penalty,
it
follows
that
whether
Effective
Date
to
Doral
is
not
material
to
either
the
the
district
court
assumedthat
Even assuming,
the
twenty-four
1.
As a threshold matter, Doral contends the district court
erred in concluding that Section 1.1 of the ISA is a liquidated
damage
provision,
which
is
subject,
under
appropriate
16
provision
establishing,
performance contract.
[T]he
performance,
primary
and
among
things,
an
alternative
We decline to do so. 5
objective
it
other
thus
of
an
alternative
looks
to
contract
continuation
of
is
the
to
follow
from
nonperformance.
24
Williston
on
Contracts 65:7 (4th ed.); see also In the Matter of Cmty. Med.
Ctr., 623 F.2d 864, 867 (3rd Cir. 1980) (explaining that, in an
alternative
performance
contract,
either
one
of
two
17
provision
relationship.
Freddie
Mac
Interim
that
looks
to
continuation
of
the
were
to
Portfolio
terminate
away
the
from
ISA
Doral
by
transferring
the
after
commencement
of
Rather than an
Doral,
Dorals
under
certain
servicing
twenty-four
month
of
conditions,
the
term
for
portfolio
under
the
its
before
ISA.
termination
expiration
See
of
Williston
of
a
on
damages
by
the
provision
parties
as
is
a
that
it
remedy
is
for
agreed
upon
breach.
in
This
is
distinguishable
from
provisions
for
alternative
2.
Next,
in
the
alternative,
Doral
asserts
that
even
if
We disagree.
contractual
unconscionable,
or
provision
void
on
is
an
unenforceable
account
of
public
penalty,
policy.
NML
(10th
Cir.
1993)
([T]he
determination
of
whether
19
contract
is
question
of
law
subject
to
de
novo
appellate
reasonable
certainty
the
amount
of
his
damages
and
the
Lockheed Martin Corp., 172 F.3d 44, 1999 WL 44173, *2 (4th Cir.
1999) (unpublished) (citing Hale v. Fawcett, 214 Va. 583, 202
S.E.2d 923, 925 (Va. 1974)).
Damages for breach by either party may be liquidated
in the agreement but only at an amount that is
reasonable in the light of the anticipated or actual
loss caused by the breach and the difficulties of
proof of loss.
A term fixing unreasonably large
liquidated damages is unenforceable on grounds of
public policy as a penalty.
Restatement
(Second)
of
Contracts
356. 8
If
liquidated
provision is unenforceable.
the
susceptible
damage
of
resulting
definite
from
measurement,
breach
or
of
where
contract
the
is
stipulated
(quoting
Brooks v. Bankson, 248 Va. 197, 208, 445 S.E.2d 473 (1994)); see
also WRH Mortg., Inc. v. S.A.S. Assocs., 214 F.3d 528, 534 (4th
Cir.
2000)
([C]ontract
provisions
calling
for
breach
of
unenforceable
as
penalties
or
forfeitures.
(citation
omitted)).
Here, Dorals forecast of evidence of its damages pursuant
to Section 1.1 consisted of a model that it created to calculate
its
anticipated
servicing
compensation
fees. 9
The
model
FSB
v.
United
21
Doral
Moreover,
given that the servicing had not yet begun, the Section 1.1
penalties were in their most extreme form (e.g., as compared to
a hypothetical termination of the ISA after twenty-one months of
servicing, which under Section 1.1 would have required Freddie
Mac to pay Doral for only three months of servicing fees).
Furthermore, it appears from the record that Doral seeks an
award
without
associated
with
reduction
servicing
based
the
loan
on
its
estimated
portfolio.
The
costs
district
J.A. 1538.
would
award
Doral
twenty-four
22
months
of
servicing
and
deeds
of
Freddie
Mac,
Dorals
forecast
of
damages
expenses. 10
Any
such
recovery
would
be
grossly
out
of
In sum,
10
23
III.
For the foregoing reasons, we affirm summary judgment as to
Dorals breach of contract claim and damages entered in favor of
Doral in the amount of $124,588.
AFFIRMED
24
majority
holds
Agreement
that
(ISA)
1.1
of
constitutes
the
a
parties
Interim
liquidated
damages
clause, and that the payment Freddie Mac agreed to make pursuant
to that clause is an unenforceable penalty. My examination of
the record persuades me, however, that Freddie Mac could satisfy
its obligations under the ISA with any of several alternative
means of performance. Accordingly, when viewed in light of the
full scope of the parties interests and incentives, 1.1 is
enforceable. Because 1.1 is enforceable and because (as the
district court concluded) there exists a genuine dispute as to
whether Freddie Mac determine[d] and communicate[d] to Doral
that Doral would be servicing the portfolio, I would vacate the
judgment
and
remand
the
case
for
trial
on
that
question.
I.
I
begin
by
briefly
describing
the
context
in
which
the
Freddie
Corporation
Mac
contracted
(together
with
with
R&G
affiliated
Financial
entities,
Mortgage
R&G)
to
the
estimated
entity
assuming
liability
of
the
$106
recourse
obligation
million
on
its
carried
books.
an
R&Gs
and
(2)
the
$106
million
recourse
obligation
would
of
the
portfolio
and
to
find
another
qualified
26
not
only
substantial
to
sell
collect
servicing
cross-selling
other
banking
fees
but
opportunities,
services
to
the
also
i.e.,
huge
would
have
opportunities
number
of
new
portfolio
would
default,
and
so
recourse
loomed
as
Mac
thought
the
premium
Doral
demanded
was
too
the
recourse
obligation.
The
recourse
obligation,
meanwhile, would revert to Freddie Mac. But Freddie Mac was also
wary of the risk that more and more borrowers would default,
forcing
Freddie
Mac
to
swallow
27
losses
potentially
over
$100
up-front
costs
to
give
Freddie
Mac
carte
blanche
to
following:
transfer
the
Freddie
portfolio
Mac
to
wanted
a
to
permanent
retain
the
servicer
as
right
to
soon
as
carry the recourse obligation. Accordingly, it proposed a monthto-month arrangement. Doral wanted to service the portfolio as
long as possible in order to maximize its servicing fees and
cross-selling
opportunities.
The
question
was
how
long
Doral
expenses
associated
with
servicing
the
portfolio.
Reyna
Freddie
Doral.
Doral
negotiable
Macs
saw
proposal
the
requirement
be
two-year
of
economically
term
entering
as
the
an
ISA.
advantageous
to
essential,
non-
deal
two-year
the
loan,
and,
perhaps
even
more
important,
give
it
30,
45.
The
parties
also
agreed
that,
unless
(a)
the
Dorals
eligibility
to
sell
or
service
mortgages
were
issue,
which
will
call
the
early
transfer
provision,
between
Dorals
and
Freddie
Macs
concerns:
it
recourse
obligation
liability
off
its
books),
while
of
the
early-transfer
language
would
be
relevant,
30
loans
would
commence,
along
with
its
right
to
collect
servicing fees.
II.
The primary question in this appeal is whether 1.1 of the
ISA
is
(1)
an
alternative-performance
provision,
(2)
an
in
my
view,
oversteps
its
role
and
undermines
hold
that
1.1
is
enforceable
as
an
alternative-
31
A.
The
first
component
of
whether
1.1
is
enforceable
is
11-58
Corbin
on
Contracts
58:18.
liquidated
(1981).
If
ISA
1.1
is
an
alternative
performance
or
difficulties
of
actual
proof
loss
of
caused
loss.
by
the
breach
Restatement
and
(Second)
the
of
Contracts 356.
To determine whether a contract provides for alternative
performances or liquidated damages, we look to the substance of
the agreement. Id. 356, cmt. c. As the majority correctly
notes,
one
distinction
liquidated
damages
continuation
than
its
of
the
is
between
alternative
whether
the
relationship
termination,
or
32
provision
between
instead
performances
the
serves
looks
parties,
as
to
and
a
rather
stipulated
65:7
(emphasis
added);
see
also
11-58
Joseph
M.
whether
contract
performances,
the
relative
decisive.).
For
value
contractual
is
of
one
the
for
alternative
alternatives
provision
to
be
may
one
be
for
of
transform
an
liquidated
sum
of
money
alternative-performance
does
clause
not
into
necessarily
a
liquidated
not
alone
make
the
contract
one
for
single
most
instances
of
alternative
contracts
involve
the
864,
867
(3d
Cir.
1980).
An
alternative
performance
argues
1.1
is
proper
alternative-performance
million
default
risk,
and
compensating
Doral
with
the
35
would
end
up
spending
more
money
on
the
servicing
of
the
transfer
would
not
necessarily
be
more
expensive
to
Freddie Mac when one considers, as one should, the $106 million
recourse
obligation.
Every
month
the
recourse
obligation
remained on Freddie Macs books, the company faced the risk that
borrowers with many millions of dollars in loans would default,
and Freddie Mac would bear the full brunt of those losses. This
risk was palpable in mid-2008, just as the proverbial housing
bubble was beginning to burst. At any given time during Dorals
24-month interim servicing term, Freddie Mac could rationally
have decided that invoking the early transfer clause in 1.1
would be in its best interests, even if doing so would mean
essentially paying double servicing fees during the remainder of
the 24 months.
When viewed in these terms, I conclude that Freddie Mac had
a true option to elect either to leave the portfolio with
Doral for the full 24 months or to transfer it to a permanent
servicer earlier. When one compares the relative values of the
performances, it is clear that the money payment pursuant to
1.1
(the
value
of
remaining
36
servicing
fees)
is
reasonably
larger
than
what
the
majority
sees
as
Dorals
actual
in
servicing
fees,
with
no
deduction
for
the
expenses
(and
portfolio
Freddie
would
early);
Mac
were
save
if
and
(3)
to
Freddie
Mac
were
that
1.1
would
terminate
the
ISA
by
to
transfer
apply
only
transferring
the
if
the
have
collected
whether Freddie
Mac
over
had
the
24
true
months
option
is
not
between
relevant
two
to
plausibly
$124,588
Doral
actually
expended.
37
But
when
Freddie
Mac
arguably
because
transferred
there
is
the
a
portfolio
genuine
back
dispute
to
R&G
whether
(arguably
Freddie
Mac
Williston
on
Contracts
42:10
(looking
to
whether
the
performances
is
to
be
given
by
the
promisor
and
to
Freddie
Mac,
the
promisor,
of
the
two
were
even
if
relevant,
the
relative
Doral
would
benefit
not
of
the
necessarily
options
have
to
been
Doral
expenses
to
from
collect
actually
its
servicing
servicing
the
fees
without
portfolio,
incurring
an
early
$124,588
in
preparation
expenses
and
the
$10.9
million
and
cross-selling
(2)
the
during
revenue
those
Doral
months.
would
There
have
is
received
every
from
reason
to
believe the parties saw the value of these two items as roughly
equivalent.
Therefore,
perspective
but
from
viewed
not
only
Dorals
as
well,
from
Freddie
Freddie
Macs
Macs
two
Freddie
Macs
would
essentially
invocation
terminate
of
the
its
early-transfer
relationship
option
between
the
damages,
see,
e.g.,
Cmty.
Med.
Ctr.,
623
F.2d
at
(7th
Cir.
2007)
(interpreting
contract
as
one
for
option
effectively
terminated
the
parties
contractual
relationship) 13; Las Vegas Sands Corp. v. Ace Gaming, LLC, 713 F.
12
Supp.
2d
427
performance
(D.N.J.
contract
2010)
a
(upholding
as
an
trademark-licensing
alternative-
agreement
that
provided for the contract to continue until the year 2086, but
permitted
early
termination
with
the
condition
that
the
these
reasons,
would
hold
that
1.1
is
true
the principal but also the return the lender would have received
if it had invested the remaining balance in Treasuries over the
remaining years on the loan. Id. River East pre-paid and tried
to
avoid
paying
the
pre-payment
amount,
calling
it
an
unenforceable penalty. The Seventh Circuit rejected that
argument, and conducted a detailed analysis of the relative
value of the alternatives from the perspective of the parties
at the time they negotiated the loan agreement. Id. at 722-23
(applying
Restatement (Second) of Contracts 356). Because
River East could achieve a substantial benefit by pre-paying,
even though it would also have to pay the pre-payment penalty,
the court concluded that River East had a true choice between
two options; the eventual relative value of the two alternatives
(and
thereby
River
Easts
eventual
decision
whether
to
refinance) would depend entirely on whether interest rates
increased or decreased. The clause was not one whose sole
purpose is to secure performance of the contract. Id. at 723.
Therefore, the alternative-performance clause was enforceable
according to its terms, notwithstanding the fact that it
operated to terminate the parties relationship.
41
condition
precedent
(the
determination
and
communication
from
is
enforceable,
simply
highlight
the
district
courts
ISA
became
effective.
The
district
court
concluded,
Mac
determine[d]
and
communicate[d]
to
Doral
that
14
42
Freddie
Mac.
Freddie
Mac
also
instructed
Dorals
Vice
borrowers.
Furthermore,
Freddie
Macs
representative
the
morning
of
July
14,
representatives
of
the
two
1848-59.
According
to
Doral,
upon
receiving
this
data,
together with the loan data received over the weekend, Doral had
all the information it needed to begin servicing the portfolio
by
sending
welcome
letters
to
borrowers,
accepting
loan
Mac.
Furthermore,
Freddie
Macs
internal
documents,
to
Doral,
determination
to
and
Doral.
had
effectively
Only
after
the
communicated
temporary
that
restraining
III.
For
these
reasons,
would
vacate
the
grant
of
summary