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Citimortgage, Inc. v. Equity Bank, N.A.

United States District Court, E.D. Missouri, Eastern Division

August 18, 2017

CITIMORTGAGE, INC., Plaintiff,
v.
EQUITY BANK, N.A., Defendant.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff CitiMortgage, Inc.'s (“CMI's”) Motion for Summary Judgment (Doc. 123); Defendant Equity Bank, N.A.'s (“Equity's”) Motion for Summary Judgment (Doc. 115); and Equity's Motion to Strike Portions of Affidavit of Isaac Miller. (Doc. 187). The motions are fully briefed and ready for disposition. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 23).

         I. Factual Background

         A. The Parties' Agreement

         On January 31, 2006, CMI and Equity entered into a contract entitled “Correspondent Agreement Form 200” (the “Agreement”). (Doc. 131-2, Agreement; Doc. 126, CMI's Statement of Uncontroverted Material Facts, ¶ 7; Doc. 128, Equity's Statement of Uncontroverted Material Facts, ¶ 1). The Agreement provides, in part, that “[f]rom time to time, Correspondent [Equity] may sell to CMI and CMI may purchase from Correspondent [Equity] one or more residential mortgage, home equity or other loans (‘Loan(s)') in accordance with the terms, conditions, requirements, procedures, representations and warranties set forth in the ‘CitiMortgage, Inc. Correspondent Manual' and all amendments, bulletins, program requirements and supplements to such Manual [collectively, the ‘CMI Manual'] and the Agreement.” (Doc. 131-2, Agreement, § 1).

         The Agreement states that the CMI Manual is incorporated by reference into the Agreement. (Id.)

         Among the representations and warranties made by Equity to CMI under the Agreement are those set forth in Section 2(k), wherein Equity represented and warranted:

That each mortgage, home equity or other Loan (i) shall be fully enforceable and originated in accordance with the terms, conditions, representations, warranties and covenants contained in the CMI Manual and this Agreement which were in effect as of the Loan closing date, (ii), if applicable, was serviced in accordance with applicable Fannie Mae, Freddie Mac, FHA, VA, and/or HUD requirements and industry standards, and (iii) is subject to no defects or defenses, including but not limited to damage to the property securing the Loan, lien imperfections or environmental risk.

(Id., § 2(k)).

         In addition, pursuant to Section 2(q) of the Agreement, Equity represented and warranted “[t]hat it will fully comply with all additional representations, warranties and covenants contained in the CMI Manual.” (Id., § 2(q)). Section 2202 of the CMI Manual contained several additional representations and warranties, including, but not limited to, representations that all information relating to the loan was complete and accurate, and contained no fraud or misrepresentation; that each individual loan sold met CMI guidelines or investor requirements, with the understanding that CMI may sell each loan to a third party; that the loan complied with all agency guidelines, including Freddie Mac, Fannie Mae, VA, and FHA guidelines, in effect at the time each loan was sold to CMI; and that any appraisal submitted with each loan was completed in accordance with all state and federal laws, was submitted in support of the value of the property, and could be relied upon by CMI. (Doc. 128, ¶¶13-19; Doc. 135-1, CMI Manual, § 2202).

         In addition, Section 11 of the Agreement provides:

         If CMI, in its sole and exclusive discretion, determines any Loan purchased pursuant to this Agreement

(i) was underwritten and/or originated in violation of any term, condition, requirement or procedure contained in this Agreement or the CMI Manual in effect as of the date CMI purchased such Loan;
(ii) was underwritten and/or originated based on any materially inaccurate information or material misrepresentation made by the Loan borrower(s), Correspondent, Correspondent's directors, officers, employees, agents, independent contractors and/or affiliates, or any other party providing information relating to said Loan;
(iii) was or is capable of being rescinded by the applicable borrower(s) pursuant to the provisions of any applicable federal (including but not limited to the Truth-in-Lending Act) or state law or regulation;
(iv) must be repurchased from any secondary market investor (including but not limited to the Fannie Mae, Freddie Mac, FHA, VA, HUD or Government National Mortgage Association) due to a breach by Correspondent of any representation, warranty or covenant contained in this Agreement or the CMI Manual or a failure by correspondent to comply in all material respects with the applicable CMI Manual terms, conditions, requirements and procedures; and/or
(v) was subject to an Early Payment Default (as defined in the CMI Manual), an Early Payoff (as defined in the CMI Manual) or any other payment related defect (as defined in the CMI Manual)

         Correspondent will, upon notification by CMI, correct or cure such defect within the time prescribed by CMI to the full and complete satisfaction of CMI. If, after receiving such notice from CMI, Correspondent is unable to correct or cure such defect within the prescribed time, Correspondent shall, at CMI's sole discretion, either (i) repurchase such defective Loan from CMI at the price required by CMI (“Repurchase Price”) or (ii) agree to such other remedies (including but not limited to additional indemnification and/or refund of a portion of the Loan purchase price) as CMI may deem appropriate. If CMI requests a repurchase of a defective Loan, Correspondent shall, within ten (10) business days of Correspondent's receipt of such purchase request, pay to CMI the Repurchase Price by cashier's check or wire transfer of immediately available federal funds. If such defective Loan is owned by CMI at the time of repurchase by Correspondent, CMI shall, upon receipt of the Repurchase Price, release to Correspondent the related mortgage file and shall execute and deliver such instruments of transfer or assignment, in each case without recourse or warranty, as shall be necessary to vest in Correspondent or its designee title to the repurchased Loan. (Doc. 131-2, Agreement, § 11).

         The “Repurchase Price” mentioned in Section 11 is defined in the CMI Manual as follows:

REPURCHASE PRICE: The Repurchase Price is defined as the sum of: (i) the current principal balance on the loan as of the paid-to date; (ii) the accrued interest calculated at the mortgage loan Note rate from the mortgage loan paid-to date up to and including the repurchase date; (iii) all unreimbursed advances (including but not limited to tax and insurance advances, delinquency and/or foreclosure expenses, etc.) incurred in connection with the servicing of the mortgage loan, (iv) any price paid in excess of par by CitiMortgage on the funding date, and (v) any other fees, costs or expenses charged by or paid to another investor in connection with the repurchase of the mortgage loan from such investor but only to the extent such fees, costs and expenses exceed the total of items (i) through (iv) above.

(Doc. 136-1, CMI Manual, § 2301).

         The Agreement also contains two other provisions relevant to the instant motions. Section 1 of the Agreement states, in relevant part:

CMI may purchase loans with or without conducting a complete review of the Loan documentation. CMI's review of, or failure to review, all or any portion of the loan documentation shall not affect CMI's rights to demand repurchase of a loan or any other CMI right or remedy provided by this Agreement.

(Doc. 131-2, Agreement, § 1).

The failure of either party to exercise any right given to it under this Agreement or to insist on strict compliance of any obligation under the Agreement shall not constitute a waiver of any right, including the right to insist on strict compliance in the future.

(Id., § 14).

         B. The Twelve Loans at Issue in the Instant Action

         Pursuant to the Agreement, Equity sold approximately 470 loans to CMI. (Doc. 126, ¶ 24. Those included the twelve residential mortgage loans at issue in this lawsuit (the “Loans”): the Degrey Loan #XXXXXX2989, the Dewey (Gatesville) Loan #XXXXXX2169, the Dewey (Whistling Straits) Loan #XXXXXX5637, the Hansen Loan #XXXXXX6934, the Henry Loan #XXXXXX3494, the Hunt Loan #XXXXXX0081, the Jensen Loan #XXXXXX2857, the Loucks Loan #XXXXXX8634, the Paulos Loan #XXXXXX9538, the Rivers Loan #XXXXXX0529, Russell Loan #XXXXXX3017, and the Seemungal Loan #XXXXXX1270. (Id., ¶ 26). Equity underwrote and/or originated each of the Loans. (Id., ¶ 30). The Loans were sold to CMI between August 24, 2007, and January 22, 2009. (Id., ¶¶ 32-43). CMI subsequently sold some of the Loans to investors such as Fannie Mae and Freddie Mac. (Id., ¶ 3.)

         After purchasing the Loans from Equity, CMI determined that each of the Loans contained one or more defects, including but not limited to the following: the loan application package misrepresented the borrower's income; the debt-to-income ratio for the loan exceeded applicable guidelines; the appraisal contained in the loan application package failed to comply with applicable guidelines and was unsupported; the loan-to-value ratio for the loan exceeded applicable guidelines; the required documentation verifying monthly payments was missing from the loan application; CMI was required to repurchase the loan from an investor, Freddie Mac or Fannie Mae; and/or the loan application package was missing necessary income documentation. (Id., ¶¶ 44, 47-86). For each loan, CMI sent a letter to Equity providing notice of the loan defects (the “Initial Repurchase Letters”). (Id., ¶ 98). In addition, in cases where CMI received a letter from an investor (such as Fannie Mae or Freddie Mac) identifying a potential defect in a loan, CMI sent a letter notifying Equity of the investor's findings (the “Citing Notification Letters”). (Id., ¶ 100). Equity did not cure or correct the alleged defects to the full and complete satisfaction of CMI. (Id., ¶ 102). CMI subsequently sent letters to Equity with respect to each loan informing Equity that repurchase was required, stating that repurchase must be confirmed on or before thirty days from the date of the letter, and stating that if Equity failed to honor its contractual obligations by confirming repurchase of the loan on or before thirty days from the date of the letter, CMI would aggressively pursue its options due to Equity's breach of the Agreement (the “Final Repurchase Letters”). (Doc. 126, ¶¶ 104-05; Docs. 139-5, 143-1, 148-4, 151-5, 152-5, 153-4, 156-5, 157-5, 158-5, 159-5, 160-5, 161-5). None of the Section 11-related correspondence CMI sent to Equity for any of the Loans stated the amount of the “Repurchase Price, ” nor did any of the correspondence contain wiring instructions for how to send funds. (Id.; Doc. 128, ¶ 52). To date, Equity has not repurchased any of the Loans. (Doc. 126, ¶ 107).

         The Final Repurchase Letters for the Loans were sent between July 7, 2010 and November 10, 2011. (Doc. 128, ¶¶ 78, 105, 130, 151, 167, 186, 210, 229, 246, 266, 281, 296). For six of the Loans (the Degrey, Dewey (Gatesville), Dewey (Whistling Straits), Hunt, Jensen, and Paulos Loans), CMI sent the Final Repurchase Letters demanding repurchase to Equity only after the Loans had been foreclosed on and the underlying property sold. (Id., ¶¶ 70, 78, 98, 105, 126, 130, 181, 186, 205, 210, 242, 246; Doc. 118-32, at pp. 8-9; Doc. 118-45, at pp. 26-27; Doc. 119-8, at pp. 5-6); Doc. 119-31, at p. 13; Doc. 119-39, at p. 10; Doc. 122-9, at p. 3).

         On February 3, 2015, CMI filed its Complaint in the instant action. CMI asserted breach of contract claims against Equity with respect to each of the Loans. For each loan, CMI alleged that it made a determination of certain defects, that it demanded cure and/or repurchase of the loan from Equity, and that Equity failed to cure the defects and failed to repurchase the loan. CMI seeks damages in the amount of $2, 819, 162.21, which it asserts represents the sum of the Repurchase Price amounts for each loan. (Doc. 123, at p. 3; Doc. 138-2).

         II. Motion to Strike

         In support of its summary judgment motion, CMI submitted the affidavit of Isaac Miller, a Repurchase Coordinator at CMI. Mr. Miller's affidavit includes his calculations of CMI's damages. Equity moves to strike the several portions of the affidavit, contending that Mr. Miller's calculations are inconsistent with the text of the Repurchase Price formula and are based on Mr. Miller's interpretation of CMI documents that Mr. Miller lacks the necessary knowledge to interpret.

         Rule 12(f) provides that a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). “A motion to strike is properly directed only to material contained in pleadings.” Khamis v. Bd. of Regents, Se. Mo. State Univ., No. 1:09-CV-145-RWS, 2010 WL 1936228, at *1 (E.D. Mo. May 13, 2013) (quoting Mecklenberg Farm, Inc. v. Anheuser-Busch, Inc., No. 4:07-CV-1719-CAS, 2008 WL 2518561, at *1 (E.D. Mo. June 19, 2008)). Rule 7(a) defines “pleadings” as a complaint, an answer to a complaint, an answer to a counterclaim, an answer to a crossclaim, a third-party complaint, and if the court orders one, a reply to an answer. Fed.R.Civ.P. 7(a). An affidavit submitted in support of summary judgment is not a pleading, and courts in this district have generally not permitted parties to attack such affidavits through motions to strike. See, e.g., Shea v. Peoples Nat. Bank, No. 4:11-CV-1415 CAS, 2013 WL 74374, at *1-*2 (E.D. Mo. Jan. 7, 2013) (citing cases); Khamis, 2010 WL 1936228, at *1 (“The affidavit attached to Khamis's memorandum in opposition is not a pleading and cannot be attacked with a motion to strike. As a result, I will deny Defendants' motion to strike.”). Thus, the Court will deny Equity's motion to strike portions of Mr. Miller's affidavit.

         However, Equity correctly points out that under Rule 56(c)(4), “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Thus, in ruling on the parties' summary judgment motions, the Court will not consider any portions of the affidavit that are not based on personal knowledge or that contain inadmissible evidence. See, e.g., Khamis, 2010 WL 193622, at *1.

         III. Motions for Summary Judgment

         A. Legal Standard

         The standards applicable to summary judgment motions are well settled, and they do not change when both parties have moved for summary judgment. See Tower Rock Stone Co. v. Quarry & Allied Workers Local No. 830, 918 F.Supp.2d 902, 905 (E.D. Mo. 2013) (citing Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983)). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). See also Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). The movant “bears the initial responsibility of informing the district court of the basis for its motion” and must identify “those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quotation marks omitted). “On a motion for summary judgment, ‘facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks omitted)).

         Where parties file cross-motions for summary judgment, each summary judgment motion must be evaluated independently to determine whether a genuine dispute of material fact exists and whether the movant is entitled to judgment as a matter of law. Husinga v. Federal-Mogul Ignition Co., 519 F.Supp.2d 929, 942 (S.D. Iowa 2007). “[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits.” Wermager, 716 F.2d at 1214.

         B. Discussion

         CMI's claim in this case is that Equity breached the Agreement by failing to repurchase the Loans from CMI, as required by Section 11 of the Agreement. The parties agree that Missouri law governs the interpretation of the Agreement.[1] Under Missouri law, “[a] breach of contract action includes the following essential elements: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff.” Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. 2010). “[P]roof of the existence of a contract and its breach make a submissible case on damages, no matter whether actual damages have been proven.” Carter v. St. John's Reg'l Med. Ctr., 88 S.W.3d 1, 12 (Mo.Ct.App. 2002).

         In CMI's motion for summary judgment, CMI argues that it has established each of the elements of its breach of contract claim, because it is undisputed that the Agreement provided that if CMI, in its sole and exclusive determined that one of the listed loan defects occurred, Equity was obligated to repurchase the loan after being given notice and an opportunity to cure; that CMI determined that each of the Loans contained one or more of the defects listed in Section 11; that CMI demanded repurchase after giving Equity notice and an opportunity to cure; and that Equity did not repurchase the Loans.

         Equity does not dispute the existence of the Agreement, does not dispute CMI's determination that the Loans contained defects that would permit CMI to demand repurchase; does not dispute that CMI demanded repurchase after giving Equity notice and an opportunity to cure; and does not dispute that it did not repurchase the Loans. However, Equity argues that CMI is not entitled to summary judgment, and/or that Equity is entitled to summary judgment instead, for several reasons: (1) Equity had no contractual obligation to repurchase the Loans, because CMI did not include certain required information in its repurchase requests; (2) Equity had no contractual obligation to repurchase the Loans, because CMI did not demand repurchase within a reasonable time after learning of the loan defects; (3) Equity had no contractual obligation to repurchase six of the Loans (the Degrey, Dewey (Gatesville), Dewey (Whistling Straits), Hunt, Jensen, and Paulos Loans) (collectively, the “Liquidated Loans”), because by the time CMI demanded repurchase of those Loans, the Loans had been liquidated, no longer existed, and could not be repurchased; (4) CMI failed to establish a lack of genuine issues of material fact as to damages; (5) CMI's claims are barred by the applicable statute of limitations; and (6) CMI failed to mitigate damages as to the six Liquidated Loans. CMI opposes each of these contentions.

         The Court will address each disputed issue below.

1. Whether Equity Had a Contractual Obligation to Repurchase Loans Where the Repurchase Request Did Not Include the Repurchase Price Amount or Wiring Instructions

         Equity first argues that it is entitled to summary judgment on CMI's breach of contract claims because CMI failed to include certain information in its repurchase requests. Specifically, Equity argues that under the Agreement, a necessary prerequisite to Equity's obligation to pay the Repurchase Price was CMI's including in the repurchase request the amount of the Repurchase Price and wiring instructions. Equity contends that because CMI's repurchase requests did not include that information, CMI failed to establish that it had satisfied a condition precedent to Equity's obligation to pay to CMI the Repurchase Price under Section 11, and Equity's obligation to pay did not arise. CMI, on the other hand, argues that the Agreement does not require it to include any specific information in its repurchase requests.

         Under Missouri law, “[t]he primary rule of contract construction is to ‘ascertain the intent of the parties and give effect to that intention.'” Whelan Sec. Co. v. Kennebrew, 379 S.W.3d 835, 846 (Mo. 2012) (quoting DeBaliviere Place Ass'n v. Veal, 337 S.W.3d 670, 676 (Mo. 2011)). “If a contract is unambiguous, ‘the intent of the parties is to be discerned from the contract alone' based on the plain and ordinary meaning of the language used.” Id. “A condition precedent is a condition which must be fulfilled before the duty to perform an existing contract arises.” Lowery v. Air Support Int'l, Inc., 982 S.W.2d 326, 329 (Mo.Ct.App. 1998). See also Wheelhouse Marina Real Estate, L.L.C. v. Bommarito, 284 S.W.3d 761, 771 (Mo.Ct.App. 2009) (“The condition must occur before the duties prescribed by the contract must be performed.”). “Conditions precedent are usually created by such phrases as ‘on condition, ' ‘provided that, ' ‘so that, ' and the like, although such expressions are not necessary if the contract is of such a nature as to show that parties intended to provide for a condition precedent.” Kansas City Live Block 125 Retail, LLC v. Bhakta, 476 S.W.3d 326, 332 (Mo.Ct.App. 2015) (quotation marks omitted). “Missouri law clearly does not favor conditions precedent, ” and “[c]ourts should not construe contract provisions to be conditions precedent unless required to do so by plain, unambiguous language or by necessary implication.” James E. Brady & Co. v. Eno, 992 F.2d 864, 869 (8th Cir. 1993).

         The Court finds that the Agreement does not contain a condition precedent requiring that CMI include in its repurchase request the either the amount of the Repurchase Price or wiring instructions. Section 11 of the Agreement, which addresses repurchase requests, does not specify any particular information that must be contained in a repurchase request. The Agreement states, simply, “If CMI requests a repurchase of a defective Loan, Correspondent shall, within ten (10) business days of Correspondent's receipt of such repurchase request, pay to CMI the Repurchase Price by cashier's check or wire transfer of immediately available federal funds.” (Doc. 131-2, Agreement, § 11). The Agreement contains no language conditioning Equity's obligation to pay the Repurchase Price on the inclusion of specific information in the repurchase request (such as “on condition that” or “provided that”).[2] The parties easily could have included such language, but they did not. In light of the clear language of Section 11 and the Missouri law disfavoring conditions precedent, the Court finds that the Agreement does not condition Equity's obligation to pay on the inclusion of a Repurchase Price or wiring instructions in the repurchase request.

         The provisions of the CMI Manual cited by Equity, which are incorporated by reference into the Agreement, do not alter the Court's conclusion. Section 2202 of the CMI Manual states, “In the event of a Breach [of representations or warranties], a Correspondent will, immediately after receipt of notification from CitiMortgage, repurchase all such relevant Loans from CitiMortgage at the Repurchase Price specified in said notification.” (Doc. 135-1, CMI Manual, § 2202, at p. 83). In addition, Section 901 of the CMI Manual, which “outlines the guidelines Correspondents should follow when preparing the loan file for submission to CitiMortgage, ” states, “CitiMortgage's policy regarding outstanding documentation is that upon the occurrence of any one of the following events, the Correspondent shall, upon notice from CitiMortgage, immediately repurchase all affected Loan(s) from CitiMortgage at the Repurchase Price(s) specified in said notice.” (Doc. 135-1, CMI Manual, § 901, at p. 2 & p. 4). Although the cited sections of the CMI Manual imply that a repurchase request will include a Repurchase Price, they do not actually impose any obligation on CMI to include a Repurchase Price or wiring instructions in the notification sent to Equity, nor do they condition Equity's obligation to repurchase on the inclusion of such information.

         Equity also suggests that CMI's own internal policy documents show that CMI believed that the Repurchase Price and wiring instructions were necessary components of the repurchase requests. These documents are not a part of the Agreement, and to the extent that Equity attempts to rely on them to create a contractual obligation, that attempt is unavailing. Equity suggests that CMI's belief about what the Agreement meant is relevant because “[t]he construction put on a contract by the parties thereto in the course of its performance, as evidenced by their actions, is an aid to the court in determining the meaning of a contract which is ambiguous.” See Leggett v. Mo. State Life Ins. Co., 342 S.W.2d 833, 852 (Mo. 1960) (internal quotation marks omitted). If the language of the contract were ambiguous, evidence of CMI's understanding of its obligations under the contract might be relevant. However, the language of Section 11 is clear and unambiguous with respect to the circumstances under which Equity's obligation to pay the Repurchase Price arises, and there is no need to resort to examinations of CMI's internal documents to address that issue. See, e.g., Cromeans v. Morgan Keegan & Co., 859 F.3d 558, 567 (8th Cir. 2017) (applying Missouri law) (“Where, as here, the contract is subject to only one reasonable interpretation, ‘the parties' intent may be gathered from the terms of the contract alone, and no extrinsic evidence may be introduced to contradict the terms of the contract or to create an ambiguity.'”) (quoting State ex rel. Greitens v. Am. Tobacco Co., 509 S.W.3d 726, 741 (Mo. 2017)).

         Equity also argues that the condition precedent necessarily exists because in order to comply with any obligation to pay the Repurchase Price, Equity needed to know the amount and that how to pay it, and most of the elements needed to calculate the “Repurchase Price” were within the knowledge of CMI, not Equity. This argument is without merit. Assuming, arguendo, that most of the elements of the Repurchase Price were within the knowledge of CMI, not Equity, that fact does not create a contractual obligation for Equity to include the Repurchase Price in the repurchase request where none was written into the contract. Equity cites no authority in support of its position that a condition precedent is created whenever a party with a contractual obligation might require some additional information prior to performing, nor has the Court found any such authority. The contract imposed on CMI an unconditional obligation to pay the Repurchase Price after receiving the repurchase request. If Equity needed additional information (from CMI or elsewhere) in order to perform that obligation, then it was obligated to seek that information in order to perform or risk being found in breach of the contract.

         Equity also suggests that CMI's failure to include the Repurchase Price prevented it from performing, citing cases holding that a party who prevents the other party from performing may not then sue for breach based on the nonperformance. See, e.g., Weitz Co. v. MH Washington, 631 F.3d 510, 525 (8th Cir. 2011) (“A party may not prevent another from performing on the contract and then sue for failing to perform.”). Here, however, CMI did not prevent Equity from performing or make it impossible for Equity perform. At worst, CMI did not volunteer to provide information that would have made it easier for Equity to perform. Notably, Equity does not assert that CMI refused, upon Equity's request, to give Equity any information in CMI's control that Equity needed in order to perform.

         For all of the above reasons, the Court finds that Equity's contractual obligation to repurchase the Loans upon demand was not affected by CMI's failure to include the Repurchase Price amount and wiring instructions in its repurchase demands. Thus, Equity is not entitled to summary judgment based on this argument, and this ...


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