Judge Javier Vargas

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Defendant moved to dismiss complaint over defendant’s marketing of a collateralized loan obligation that issued three subordinated classes of notes linked to a portfolio of loans and derivative transactions. Plaintiff obtained exposure to the portfolio through credit default swap transactions with defendant. Following litigation filed by Arco Capital relating to breach of the swap agreements, Arco and plaintiff sued defendant, which was dismissed for lack of standing. Thereafter, the trustee of the proceeds purported to assign its rights against defendant. Plaintiff then commenced the present action, alleging defendant breached the swap agreements. In support of its motion to dismiss, defendant again asserted that plaintiff lacked standing because the purported assignment between plaintiff and the trustee was void and the trustee had no viable claims to assign. Defendant further asserted that plaintiff’s action was untimely under applicable statutes of limitations, although plaintiff contended it timely commenced its action under the New York Savings Statute. The court agreed that plaintiff’s claims were untimely when the trustee assigned them and held that as an assignee plaintiff was not the same party as in its prior action.