FILED: NEW YORK COUNTY CLERK 11/29/2023 03:54 PM
`NYSCEF DOC. NO. 351
`
`INDEX NO. 656028/2021
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`RECEIVED NYSCEF: 11/29/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`In the Matter of the Application of
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`U.S. BANK NATIONAL ASSOCIATION (as
`Trustee, Securities Administrator, Paying Agent,
`and/or Calculation Agent under various Pooling and
`Servicing Agreements),
`
`Petitioner,
`
`For Judicial Instructions Under CPLR Article 77
`
`Index No. 656028/2021
`
`Justice Andrew Borrok
`
`IAS Part 53
`
`Mot. Seq. No. 015
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`NOTICE OF ENTRY
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`PLEASE TAKE NOTICE that the attached is a true and correct copy of the Decision and
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`Order on Motion for Motion Sequence No. 015 in this matter dated November 27, 2023, and duly
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`filed and entered on November 28, 2023.
`
`Dated: November 29, 2023
`New York, New York
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`Respectfully submitted,
`
`AKIN GUMP STRAUSS HAUER & FELD LLP
`
`By: /s/ Michael Chen
`Uri A. Itkin
`Richard J. D’Amato
`Michael Chen
`Andrew A. McWhorter
`Jennifer Harp
`
`One Bryant Park
`New York, NY 10036
`Tel: (212) 872-8003
`
`Attorneys for HBK Master Fund L.P.
`
`1 of 6
`
`

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`FILED: NEW YORK COUNTY CLERK 11/28/2023 09:00 AM
`FILED: NEW YORK COUNTY CLERK 11/29/2023 03:54 PM
`NYSCEF DOC. NO. 350
`NYSCEF DOC. NO. 351
`
`INDEX NO. 656028/2021
`INDEX NO. 656028/2021
`RECEIVED NYSCEF: 11/27/2023
`RECEIVED NYSCEF: 11/29/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53
`
`INDEX NO.
`
`656028/2021
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`MOTION DATE
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`MOTION SEQ. NO.
`
`N/A
`
` 015
`
`DECISION + ORDER ON
`MOTION
`
`-----------------------------------------------------------------------------------X
`U.S. BANK NATIONAL ASSOCIATION (AS TRUSTEE,
`SECURITIES ADMINISTRATOR, PAYING AGENT, AND/
`OR CALCULATION AGENT UNDER VARIOUS POOLING
`AND SERVICING AGREEMENTS), U.S. BANK TRUST
`COMPANY, NATIONAL ASSOCIATION (AS TRUSTEE,
`SECURITIES ADMINISTRATOR, PAYING AGENT, AND/
`OR CALCULATION AGENT UNDER VARIOUS POOLING
`AND SERVICING AGREEMENTS),
`
`N/A,
`
`Plaintiff,
`
`- v -
`
`Defendant.
`
`-----------------------------------------------------------------------------------X
`
`HON. ANDREW BORROK:
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`The following e-filed documents, listed by NYSCEF document number (Motion 015) 340, 341, 342, 343,
`344, 345, 346, 347, 348, 349
`were read on this motion to/for
`
`STAY
`
`.
`
`P
`
`acific Investment Management C
`ompany LLC and HBK Master Fund L.P.’s (hereinaf
`
`ter,
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`collectively, the Moving Respondents) motion to stay this proceeding or, alternatively, to
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`adjourn the final hearing in this matter is granted to the extent of adjourning the final hearing
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`from December 11-December 15, 2023, to November 4-November 8, 2025.
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`In the Second Amended Complaint (the SAP; NYSCEF Doc. No. 290), the Petitioners seek
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`instruction as to (i) the manner in which distributions are calculated and applied after the
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`outstanding principal balances of the primary classes of certificates are reduced to zero and (ii)
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`whether deferred principal collections should be treated as subsequent recoveries under the
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`Pooling and Service Agreements (PSAs) for the relevant trusts. In a related case, the court
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`656028/2021 U.S. BANK NATIONAL ASSOCIATION (AS TRUSTEE, SECURITIES
`ADMINISTRATOR, PAYING AGENT, AND/OR CALCULATION AGENT UNDER VARIOUS
`POOLING AND SERVICING AGREEMENTS) vs. N/A
`Motion No. 015
`
`Page 1 of 3
`
`1 of 3
`2 of 6
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`

`

`FILED: NEW YORK COUNTY CLERK 11/28/2023 09:00 AM
`FILED: NEW YORK COUNTY CLERK 11/29/2023 03:54 PM
`NYSCEF DOC. NO. 350
`NYSCEF DOC. NO. 351
`
`INDEX NO. 656028/2021
`INDEX NO. 656028/2021
`RECEIVED NYSCEF: 11/27/2023
`RECEIVED NYSCEF: 11/29/2023
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`(Friedman, J.) and the Appellate Division reviewed the language of certain PSAs and held that
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`deferred principal payments should be treated as subsequent recoveries under the PSAs (In re
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`Wells Fargo Bank, 2020 WL 735683 [Sup Ct, NY County 2023, Friedman, J.], affd Wells Fargo
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`Bank v Aegon USA Investment Management, LLC, 198 AD3d 156 [1st Dept 2021]) (the JPM
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`Order). In another related case, this Court held that the JPM Order resolved the issue of
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`whether deferred principal payments should be treated as subsequent recoveries under the PSAs
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`(In the Matter of Wells Fargo Bank, N.A., 154984/2021, NYSCEF Doc. No. 823) (the Wells
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`Fargo Decision). The JPM Order and the Wells Fargo Decision are both still subject to final
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`appeal and the Court has been advised that appeals of both decisions are being taken.
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`Trial courts are given broad discretion to control their own calendar, including adjournments of
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`motions or hearings (174 Second Equities, Corp. v Hee Nam Bae, 57 AD3d 319, 321 [1st Dept
`
`2008]). A stay is appropriate to avoid a duplication of effort, waste of judicial resources, and
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`possibility of inconsistent rulings (OneBeacon America Ins. Co. v Colgate-Palmolive Co., 86
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`AD3d 541, 541 [1st Dept 2012]). An adjournment of the final hearing in this case is appropriate
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`here pending a final resolution of the appeals of the JPM Order and the Wells Fargo decision in
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`order to avoid the risk of inconsistent verdicts and to preserve court resources by ensuring the
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`final resolution of the issues raised in both decisions prior to the final hearing in this case.
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`Certain respondents have objected to the adjournment, arguing that (i) the JPM Order is the
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`operative order and the Petitioner should be ordered to comply with it and (ii) the issue of post-
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`zero balance collections is not sufficiently connected to the issue of deferred principal collections
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`being treated as subsequent recoveries, such that the hearing should proceed. These arguments
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`are unavailing because (i) court resources are persevered by adjourning the hearing pending
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`656028/2021 U.S. BANK NATIONAL ASSOCIATION (AS TRUSTEE, SECURITIES
`ADMINISTRATOR, PAYING AGENT, AND/OR CALCULATION AGENT UNDER VARIOUS
`POOLING AND SERVICING AGREEMENTS) vs. N/A
`Motion No. 015
`
`Page 2 of 3
`
`2 of 3
`3 of 6
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`

`

`FILED: NEW YORK COUNTY CLERK 11/28/2023 09:00 AM
`FILED: NEW YORK COUNTY CLERK 11/29/2023 03:54 PM
`NYSCEF DOC. NO. 350
`NYSCEF DOC. NO. 351
`
`INDEX NO. 656028/2021
`INDEX NO. 656028/2021
`RECEIVED NYSCEF: 11/27/2023
`RECEIVED NYSCEF: 11/29/2023
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`resolution of appeal of the JPM Order and the Wells Fargo Decision and (ii) all issues raised in
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`the petition should be heard together, such that the alleged lack of connection between the post-
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`zero balance collections and the deferred principal collections is not a sufficient basis to proceed.
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`The hearing is therefore adjourned to November 4-November 8, 2025.
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`The Court has considered the parties’ remaining arguments and finds them unavailing.
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`It is hereby ORDERED that the motion is granted to the extent of adjourning the final hearing in
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`this case to November 4-November 8, 2025.
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`11/27/2023
`DATE
`CHECK ONE:
`
`APPLICATION:
`CHECK IF APPROPRIATE:
`
`X
`
`X
`
`CASE DISPOSED
`GRANTED
`SETTLE ORDER
`INCLUDES TRANSFER/REASSIGN
`
`DENIED
`
`
`
`ANDREW BORROK, J.S.C.
`NON-FINAL DISPOSITION
`GRANTED IN PART
`SUBMIT ORDER
`FIDUCIARY APPOINTMENT
`
` OTHER
`
`
`
`REFERENCE
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`656028/2021 U.S. BANK NATIONAL ASSOCIATION (AS TRUSTEE, SECURITIES
`ADMINISTRATOR, PAYING AGENT, AND/OR CALCULATION AGENT UNDER VARIOUS
`POOLING AND SERVICING AGREEMENTS) vs. N/A
`Motion No. 015
`
`Page 3 of 3
`
`3 of 3
`4 of 6
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`

`

`FILED: NEW YORK COUNTY CLERK 11/29/2023 03:54 PM
`NYSCEF DOC. NO. 351
`
`INDEX NO. 656028/2021
`
`RECEIVED NYSCEF: 11/29/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`In the Matter of the Application of
`
`U.S. BANK NATIONAL ASSOCIATION (as
`Trustee, Securities Administrator, Paying Agent,
`and/or Calculation Agent under various Pooling and
`Servicing Agreements),
`
`Petitioner,
`
`For Judicial Instructions Under CPLR Article 77
`
`Index No. 656028/2021
`
`Justice Andrew Borrok
`
`IAS Part 53
`
`AFFIRMATION OF SERVICE
`
`I, Michael Chen, an attorney duly admitted to practice law before the courts in the State of
`
`New York, herby affirm the following:
`
`1.
`
`2.
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`I am not a party to this action and I am over eighteen years of age;
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`I am an associate with the law firm of Akin Gump Strauss Hauer & Feld LLP, One Bryant
`
`Park, New York, New York 10036, counsel for HBK Master Fund L.P.; and
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`3. On November 29, 2023, I caused to be served on the parties to this action a true and correct
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`copy of the foregoing Decision and Order on Motion with Notice of Entry via NYSCEF.
`
`Dated: November 29, 2023
`New York, New York
`
`Respectfully submitted,
`
`AKIN GUMP STRAUSS HAUER & FELD LLP
`
`By: /s/ Michael Chen
`Uri A. Itkin
`Richard J. D’Amato
`Michael Chen
`Andrew A. McWhorter
`
`5 of 6
`
`

`

`FILED: NEW YORK COUNTY CLERK 11/29/2023 03:54 PM
`NYSCEF DOC. NO. 351
`
`INDEX NO. 656028/2021
`
`RECEIVED NYSCEF: 11/29/2023
`
`Jennifer Harp
`
`One Bryant Park
`New York, NY 10036
`Tel: (212) 872-8003
`
`Attorneys for HBK Master Fund L.P.
`
`6 of 6
`
`