The fresh courtroom was not persuaded of the Bank’s argument and neither is we

The bank and additionally alludes to Freecharm Ltd. v. Atlas Riches Holdings Company (U.S.Dist.Ct., S.D.Fla., WL 4591929, a location courtroom order regarding South Section from Fl, on proposal one to a claim that derives regarding exact same harm since the a main predicate claim belongs to bank loans for bad credit the same reason behind action once the brand new predicate allege for res judicata intentions. Just after briefing in this case try complete, the fresh new Eleventh Circuit Courtroom of Is attractive affirmed the fresh new area court order in a fall opinion. (Freecharm Ltd. v. Atlas Riches Holdings (You.S.Ct.Application., WL 6029136.) The Eleventh Circuit Judge out of Appeal’s unpublished choice into the Freecharm really does not assist the Financial since legal reviewed only the area court’s devotion one security estoppel banned the brand new says and not if-due to the fact here-res judicata applies to club relitigation of the Bank’s claim against Countrywide Economic.

With regards to the Financial, [t]here should be zero res judicata as to the 5th securitization ? given that no-claims associated with that securitization was in fact ever willingly dismissed on the Credit Suisse action. This argument misses the purpose. The problem is if the Financial possess increased a state against Nationwide Monetary based on the so-called control of Countrywide Securities when you look at the Credit Suisse. The law is actually paid you to an excellent earlier final wisdom into the merits not only settles problems that just weren’t in reality litigated in addition to all the point which may have become elevated and you may litigated in the 1st step. (Mattson v. City of Costa Mesa (1980) 106 Cal.Software.three dimensional 441, 446.) Whenever an issue is in the extent of your [prior] step, associated with the niche matter and you will strongly related the issues, so it could have been elevated, the latest wisdom try conclusive in it? Which brand new code is that the past judgment try res judicata on the issues which were increased otherwise might have been increased, into the matters litigated or litigable? (Villacres v. ABM Markets Inc. (2010) 189 Cal.Software.4th 562, 576, violation excluded.)

The financial institution appetite it judge to summarize res judicata applies to only the five securitizations about what both Countrywide Securities and you may CWALT was charged about Borrowing Suisse action, and never so you’re able to a 5th securitization on what Countrywide Securities by yourself is actually prosecuted

The bank doesn’t argue it absolutely was struggling to boost an excellent claim regarding the fifth securitization on the Borrowing Suisse step. (Discover 7 Witkin, Cal. Processes (fifth ed. 2008) Judgment, 406, p. 1041 [zero bar where plaintiff are not able to trust a certain principle or perhaps to look for a certain solution or kind of rescue in the first step].) Instead-and you may in the place of citing people expert-the lending company argues Nationwide Financial’s disagreement isnt correct and this is actually at the best [one] that ? have to have [been] raised from inside the [Countrywide Financial’s] demurrer. It is not difficulty that may securely be resolved on it appeal. We refuse which disagreement for a couple of explanations. First, that isn’t backed by any authority. (Berger v. California Ins. Ensure Assn. (2005) 128 Cal.Application.4th 989, 1007, fn. omitted [inability to help with contention having authority constitutes a waiver of the matter on notice].) Next, we come across absolutely no reason as to why Nationwide Monetary was required to improve it conflict with its demurrer. The lending company generated the new dispute with its resistance on the demurrer, and you can Nationwide Economic responded to they in answer.

The newest Bank’s Point 25504 Claim is the identical Cause of Step once the Section 15 Claim It Dismissed that have Prejudice on the Borrowing from the bank Suisse Step

The next question is if the Bank’s section 25504 allege from inside the the new elizabeth cause for step once the Point 15 allege it ignored with bias about Borrowing Suisse action. 6 The clear answer was yes.