Judge Harold Baer
Through trustee U.S. Bank, the plaintiff mortgage trusts alleged UBS Real Estate Securities’ breach of contractual duties to repurchase defective mortgage loans under governing pooling and serving agreements (PSAs). Bikal and other proposed intervenors hold senior certificates in a subject trust. In addition to the same repurchase claim, the proposed intervenors asserted claims charging U.S. Bank with breach of fiduciary duty and violating the Trust Indenture Act. They also claimed the trusts’ counsel as a result of its representation in a related case. The court found neither intervention as of right, nor permissive intervention appropriate. By bringing new claims against trustee U.S. Bank, the proposed intervenors attempted to radically change the existing case—and related one—from a contract action against UBS under the PSAs to a case against the trustee for breach of fiduciary duty and violations of the Trust Indenture Act. The proposed intervenors’ PSA claims against UBS were identical to plaintiff trusts’. Further they shared the same “ultimate objective”— maximal recovery for all certificate holders by showing UBS breached its obligations under the PSAs.