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MBIA Ins. Corp. v Countrywide Home Loans, Inc.

MBIA Ins. Corp. v Countrywide Home Loans, Inc.

Supreme Court of New York, New York County

December 22, 2010, Decided

602825/08

Opinion

Eileen Bransten, J.

Plaintiff MBIA Insurance Corporation ("MBIA") moves in limine for a decision allowing MBIA to use statistical sampling to present evidence to prove its causes of action for fraud and breach of contract and to prove damages. Defendants Countrywide Home Loans, Inc., Countrywide Securities Corp. and Countrywide Financial Corp. (collectively, "Countrywide") oppose.

BACKGROUND

The facts of this matter have been discussed extensively in previous decisions of this court. Thus, only details necessary to this motion are referenced herein.

Plaintiff filed the instant motion on April 30, 2010. After oral argument on June 16, 2010, the parties held the motion pending additional discussions. The parties filed supplemental memoranda of law of law in August 2010. An evidentiary hearing was held on September 27, 2010, at which  [***2] Plaintiff presented its expert witness, statistician Charles D. Cowan, Ph.D., for direct and cross-examination. Dr. Cowan testified about his proposed method of sampling the fifteen residential mortgage-backed securitizations ("RMBS") at issue in this matter. By request of the court, the parties submitted additional arguments by letter on October 13, 2010, the final submissions of this motion.

ANALYSIS

I. Timeliness of Plaintiff's Motion

 [****2]  A. New York Statute and Code Does Not Preclude the Instant Motion

Defendants first contest Plaintiff's motion on grounds of timeliness. Defendants claim that the motion is premature, that the timing of the instant motion is not contemplated by New York law and that New York courts have held that it is premature to rule on the admissibility of evidence prior to the determination of that evidence's relevance. Defendants' arguments are unavailing.

First, the governing rules of this court do not mandate an outside time limit for a movant to initiate a motion in limine. The Rules of the Commercial Division of the Supreme Court state that:

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30 Misc. 3d 1201(A) *; 958 N.Y.S.2d 647 **; 2010 N.Y. Misc. LEXIS 6182 ***; 2010 NY Slip Op 52239(U) ****

 [****1]  MBIA Insurance Corporation, Plaintiff, against Countrywide Home Loans, Inc., Countrywide Securities Corp., and Countrywide Financial Corp., Defendants.

Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

PUBLISHED IN TABLE FORMAT IN THE NEW YORK SUPPLEMENT.

Subsequent History: Motion denied by MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 35 Misc. 3d 1205[A], 950 N.Y.S.2d 724, 2011 N.Y. Misc. LEXIS 6589 (2011)

Prior History: MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 36 Misc. 3d 1215[A], 2010 N.Y. Misc. LEXIS 6766, 2010 NY Slip Op 52452U (N.Y. Sup. Ct., Apr. 27, 2010)

CORE TERMS

sampling, statistical, methodology, motion in limine, securitizations, present evidence, trier of fact, scientific, damages, scientific evidence, memoranda of law, instant motion, loans, parties, statistically significant, reliable, contest, cases, novel