United States District Court, D. Colorado
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT
ROBERT E. BLACKBURN, District Judge.
The matters before me are (1) Universal's Motion for Summary Judgment [#57],  filed November 21, 2013; and (2) Plaintiff's Motion for Partial Summary Judgment [#55], filed November 4, 2013. I grant defendant's motion, deny plaintiff's cross-motion, and dismiss plaintiff's claims as barred by limitations.
I have jurisdiction over this matter pursuant to 28 U.S.C. § 1332 (diversity of citizenship).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). By contrast, a movant who bears the burden of proof must submit evidence to establish every essential element of its claim or affirmative defense. See In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 209 F.Supp.2d 1106, 1111 (D. Colo. 2002). In either case, once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999).
On June 19, 2006, plaintiff's predecessor-in-interest, Lehman Brothers Bank, FSB ("LBB"), purchased a residential mortgage loan from defendant. LBB resold the loan to Freddie Mac on July 28, 2006. Within a year, the property securing the loan was foreclosed, and Freddie Mac demanded that LBB make it whole for its resulting losses. Plaintiff, as LBB's assignee, paid Freddie Mac and then filed suit against defendant in the United States District Court for the District of Florida to recoup its own losses as to that loan and seven others. Concluding that those claims were consolidated improperly, the Florida court severed and dismissed without prejudice the claims relevant to seven of the eight loans - including the claims now brought in this lawsuit. Plaintiff now alleges a single claim for breach of contract against defendant.
The relevant contract documents, which include the parties' Loan Purchase Agreement (the "Agreement") and the Seller's Guide incorporated by reference therein, contains the following choice of law provision:
This Agreement and the Seller's Guide shall be construed in accordance with the laws of the State of New York and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with the laws of the State of New York, except to the extent preempted by Federal law.
(Am. Compl., Exh. 1 § 8 at 2.) Absent special circumstances, courts will honor such contractual choice-of-law provisions. See Yavuz v. 61 MM, Ltd., 465 F.3d 418, 427-28 (10th Cir. 2006); Tax Services of America, Inc. v. Mitchell, 2008 WL 2834271 at *2 (D. Colo. July 21, 2008). The parties here do not contend that any special circumstances warrant disregarding their contractual choice of law, but instead disagree as to whether one particular provision of New York law - its so-called "borrowing statute" - is applicable. The New York borrowing statute provides that
[a]n action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.
N.Y. Civ. Prac. Law and Rules ("CPLR") § 202. Defendant insists that the borrowing statute applies to plaintiff's breach of contract claim and that, as a consequence, ...