Full opinion text
OPINION AND ORDER RICHARD J. SULLIVAN, District Judge. Plaintiffs Ellington Credit Fund, Ltd., and ECF Special Securities, LLC — two hedge funds that invested in a series of mortgage-backed securities — bring this diversity action against Defendants Manufacturers and Traders Trust Company (“M & T”), Select Portfolio Servicing, Inc. (“SPS”), and various affiliated entities of SPS (“SPS Affiliates”). Plaintiffs allege that Defendants breached various contractual, fiduciary, and common law obligations by mismanaging the mortgages held by the securitization trusts, engaging in self-dealing, and misrepresenting their deficient oversight of these assets. Before the Court are Defendants’ motions to dismiss the First Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motions are granted in part and denied in part. I. Background A. Facts 1. The Securitizations Beginning in 1997 and continuing through 1998, ContiFinancial Corporation, ContiWest Corporation, and their affiliates and subsidiaries (collectively “Conti”) sponsored a series of twenty-one real estate mortgage investment conduit (“REM-IC”) securitization trusts. (FAC ¶¶ 13, 19.) A REMIC trust consists of a pool of mortgages — in this case, loans originated by Conti (id., ¶ 12) — the beneficial ownership of which has been sold to various investors in the form of certificates representing their undivided ownership interest in the total pool. The purchasers of these certificates (referred to as “owners” or “certificateholders”) are entitled to a share of the principal and interest received by the trusts from the mortgage loans. (Id. ¶¶ 12, 14.) The certificates in this case were structured in various classes of interests, ranging from senior certificates, which offered the highest priority of repayment, down to “residual” or “Class R” certificates, which were entitled to essentially any leftover proceeds, and were the first to absorb any losses from defaults on the underlying home mortgages. (Id. ¶ 12.) Conti initially held the Class R certificates of the securitizations, but it declared bankruptcy in May 2000, and in December 2004, Plaintiffs acquired many of the Class R certificates from Conti’s bankruptcy estate. (Id. ¶ 58.) Each trust was governed by a Pooling and Servicing Agreement (“PSA”) between Conti as Servicer (as well as other affiliates not relevant here) and M & T as Trustee. The PSA established the responsibilities of the Servicer, who was required to collect payments due under the loans, enforce the terms of the mortgages, maintain and market properties for foreclosure, and remit the loan payments and proceeds to the Trustee. (FAC ¶ 14.) Likewise, the PSA set out the duties of the Trustee, who was charged with holding the mortgages in trust for the benefit of the certificateholders and distributing the proceeds to them. (Id.) Although the various certificateholders did not execute the PSA, it also set out their rights and powers and recognized them as the beneficiaries of the agreement. (See PSA § 11.09.) On May 17, 2000, following Conti’s bankruptcy filing, SPS assumed Conti’s servicing obligations subject to the PSA. (FAC ¶ 31.) On the same date, Conti, M & T, and MBIA Insurance Corporation — which insured the performance of certain categories of senior certificates — entered into a Side Servicing Agreement that amended ten of the twenty-one PSAs to include additional servicing standards. (Id. ¶ 32 & n. 3.) 2. SPS’s Misconduct According to the Complaint, SPS subsequently engaged in various dishonest and illegal practices while servicing the mortgage loans. (Id. ¶ 36.) Specifically, the Complaint alleges that SPS “manufactured defaults” in order to charge mortgage borrowers illegitimate fees for property inspections, home insurance policies, legal services, and late payments, among others. (Id.) Pursuant to the PSA, the Servicer was responsible for initial payment of “all [of its] ‘out-of-pocket’ costs and expenses incurred in the performance of its servicing obligations,” referred to as “servicing advances.” (PSA § 8.09(b).) However, because SPS was entitled to reimbursement for its servicing advances from either (1) the monthly cash flow collected from the borrowers, or (2) the liquidation proceeds of a loan in foreclosure, SPS and its various “dummy subsidiaries” allegedly performed unnecessary or fictional services to inflate the fees and costs subject to reimbursement. (FAC ¶ 36.) These practices increased the amount of unpaid balances remaining on mortgage loans following foreclosure — called “deficiency balances” — and reduced the proceeds available to the trusts and certificateholders. (Id. ¶¶ 36-37.) In the fall of 2002, the Federal Trade Commission (“FTC”) began an investigation of SPS’s servicing practices. (Id. II43.) At the same time, mortgage loan borrowers brought several class actions against SPS that were consolidated into a single class action in Federal Court in the District of Massachusetts under the caption Curry v. Fairbanks Capital Corporation, No. 03-10895-DPW. (Id.) The class actions alleged that SPS engaged in predatory practices, including failing to post payments, not accepting partial payments, improperly imposing force-placed insurance, and “placing borrowers in default based on manufactured circumstances.” (Id.) In November 2003, SPS agreed to a consent judgment with the FTC and settled the Curry class action. (Id. ¶ 44.) According to the Complaint, SPS was able to settle, in part, by voluntarily agreeing to curtail certain legitimate collection practices that were required by the PSA. (Id. ¶ 45.) For example, SPS agreed not to foreclose on defaulted loans until 92 days after default, even though the Fannie Mae Guidelines, which were incorporated by reference in the PSA, instructed servicers to initiate foreclosure only 60 days after default. (Id.) Plaintiffs claim that these settlements severely restricted SPS’s ability to collect on the mortgages. As a result, collection rates plummeted, diminishing the assets of the securitizations. (Id. ¶ 54.) Plaintiffs further allege that SPS made fraudulent misrepresentations to induce them to exercise certain redemption rights, or “clean-up calls,” in three of the twenty-one trusts in 2005. (Id. ¶¶ 58-60.) Under the PSA, Class R certificateholders were permitted to purchase all of the assets of a trust from the other classes of certificateholders and terminate the trust. (Id. ¶ 58.) In exercising a clean-up call, however, Class R certificateholders were required to pay any unreimbursed, or “trapped,” servicing advances to the Servicer. (Id.) Upon taking control of the mortgage loans following termination of the trusts, the certificateholders were free to appoint a different loan servicer or retain the existing servicer. (Id.) In February 2005, Plaintiffs exercised the clean-up call provision for the 1998-2 and 1998-3 Trusts, and did the same in October 2005 for the 1997-3 Trust. (Id. ¶ 60.) Thereafter, Plaintiffs paid SPS approximately $37 million for trapped servicing advances and then chose to retain SPS to continue servicing the loans. (Id. ¶¶ 59-60, 134.) Plaintiffs were allegedly induced to make these clean-up calls by various false representations made by SPS regarding the legitimacy of its servicing advances and the potential recovery rates for outstanding deficiency balances on the loans. (Id. ¶¶ 59-60, 133-135.) Subsequently, Plaintiffs learned that many of the deficiency balances on the loans were uncollectible from the mortgage borrowers, allegedly as a result of SPS’s neglect and poor servicing practices. (Id. ¶ 63.) 3. The SPS Affiliates’ Misconduct Defendants Mountain West Realty Corporation (“Mountain West”), Residential Real Estate Services, Inc. (“Residential”), Alta Real Estate Services, Inc. (“Alta”), and Pelatis Insurance Agency Corporation (“Pelatis”) (collectively, the “SPS Affiliates”) are all companies organized and controlled by SPS, based out of SPS’s office in Salt Lake City, Utah, that were allegedly complicit in SPS’s wrongful conduct. (Id. ¶¶ 6-9, 38-42, 64-91.) According to the Complaint, the SPS Affiliates participated in schemes with SPS to charge unearned fees to the securitizations and homeowners, but performed no actual services that can be verified or valued. (Id. ¶ 39.) For example, Plaintiffs allege that SPS required real estate brokers responsible for selling the trusts’ foreclosed properties to pay 25% of their sales commission to either SPS or Mountain West as a referral fee, despite the fact that Mountain West performed little or no work in connection with the sales. (Id. ¶¶39 & n. 4, 67) Similarly, the Complaint alleges that SPS and Pelatis engaged in a scheme that tunneled commissions for mandatory lender-placed home insurance to Pelatis. (Id. ¶¶ 40, 73.) Residential and Alta are likewise alleged to have engaged in a scheme with SPS to charge the trusts for an “excessive number” of broker price opinions and inspections on defaulted loans in the trusts. (Id. ¶ 74.) 4. M & T’s Misconduct The allegations against M & T, as Trustee, largely arise out of its insufficient supervision of SPS, its failure to report SPS’s misconduct to the owners, and its decision not to terminate SPS after SPS’s alleged predatory and dishonest practices had come to light in the FTC and Curry settlements. (Id. ¶¶ 51-56.) According to the Complaint, M & T failed to remove SPS as Servicer even though it was permitted to do so after certain cumulative loss triggers enumerated in the PSA were exceeded. (Id. ¶ 71.) In addition, Plaintiffs allege that M & T engaged in “self-dealing” by arranging to be included in a global release reached in the Curry settlement. (Id. ¶ 51.) B. Procedural History Plaintiffs commenced this action by filing a Complaint in the 345th Judicial District Court for Travis County, Texas on April 17, 2007. Defendants removed the case to the United States District Court for the Western District of Texas on May 30, 2007, where it was assigned to the Honorable Lee Yeakel, District Judge. On June 13, 2007, Defendants moved to dismiss or transfer the lawsuit. Subsequently, on July 10, 2007, Plaintiffs filed the First Amended Complaint. The FAC contains no less than nineteen claims for relief, including breach of contract, unjust enrichment, breach of duty to disclose, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, fraud, negligent misrepresentation, negligence, conversion, money had and received, breach of duty of good faith and fair dealing, waste of collateral, and concealment. These claims are lodged on behalf of Plaintiffs’ interests in the three called securitizations, as well as the remaining eighteen uncalled securitizations. On August 3, 2007, Defendants again moved to dismiss or transfer the action. Defendants then filed a Joint Notice on August 10, 2007 withdrawing those portions of the prior motions to dismiss the original complaint “that raise[d] grounds for dismissal other than venue and choice of forum issues.” On November 2, 2007, 2007 WL 8256210, the Honorable Andrew W. Austin, Magistrate Judge, issued a Report and Recommendation in which he recommended that Judge Yeakel transfer this matter to this District pursuant to 28 U.S.C. § 1404(a). On February 21, 2008, after reviewing objections from the parties to the Report, Judge Yeakel transferred the matter to this District, where it was assigned to the undersigned. In the closing lines of his Order, Judge Yeakel stated that all motions not addressed therein, including the substantive motions to dismiss the FAC, remained pending. Subsequently, upon Defendants’ motions, the Court stayed discovery pending resolution of Defendants’ motions to dismiss. The Court heard oral argument on October 23, 2009. On March 31, 2010, Plaintiffs and MBIA entered into a stipulation dismissing MBIA with prejudice. The Court permitted the parties to submit letter briefs supplementing arguments made in the omnibus motions to dismiss and transfer this action, the most recent of which was submitted in March 2011. II. Legal Standard Defendants move to dismiss the Complaint for lack of standing and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. ATSI Commc’ns Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). By contrast, a pleading that only “offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). If Plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. III. Discussion A. Choice of Law Federal courts sitting in diversity apply state substantive law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). In this case, each PSA contained a choice of law provision selecting New York law. (PSA § 11.11.) The choice of law provision is only designated, however, for construing the PSA and each certificate, and is silent regarding the common law tort and fiduciary duty claims at issue here. (Id.) Regardless, the parties have relied on New York law in their briefs and at oral argument, which is sufficient to establish the governing law in this action. See Krumme v. WestPoint Stevens, Inc., 238 F.3d 133, 138 (2d Cir.2000) (“The parties’ briefs assume that New York law controls, and such implied consent ... is sufficient to establish choice of law.” (internal quotation marks and citations omitted)). Accordingly, the Court will apply New York law in resolving Defendants’ motions to dismiss. B. Standing 1. M & T M & T first argues that the Complaint should be dismissed for lack of standing. (See M & T Mem. 14-16.) Specifically, M & T contends that all of its alleged misconduct occurred prior to Plaintiffs’ acquisition of the certificates in December 2004, and that, as a result, Plaintiffs cannot show that they suffered any injury traceable to M & T’s actions. (Id.) To establish standing, a plaintiff must allege that (1) it has suffered an injury in fact, (2) which is fairly traceable to the challenged action of the defendant, and (3) which is likely to be redressed by the requested relief. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id. at 561, 112 S.Ct. 2130. The Supreme Court has commented that at the pleading stage, “general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss [a court] ... presume[s] that general allegations embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. To demonstrate a justiciable injury, a plaintiff must allege “a distinct and palpable injury to himself,” and “cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Nonetheless, a plaintiff generally has standing to pursue a cause of action that was properly assigned to him. See Connecticut v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110, 117 (2d Cir.2002) (“[A] valid and binding assignment of a claim (or a portion thereof) — not only the right or ability to bring suit — may confer standing on the assignee.” (emphasis in original)); see also W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 107 (2d Cir.2008); Banque Arabe et Internationale D'Investissement v. Md. Nat'l Bank, 57 F.3d 146, 151-53 (2d Cir.1995). New York General Obligations Law (“N.Y.G.O.L.”) § 13-101 allows certain causes of action to be freely assigned, provided that the assignment is express. The transferor must make some statement or act to demonstrate its intent to transfer an accrued claim. See Miller v. Wells Fargo Bank Int’l Corp., 540 F.2d 548, 557 (2d Cir.1976) (“[A]ny act or words are sufficient which ‘show an intention of transferring the [cause of action] to the assignee.’ ”) (quoting Advance Trading Corp. v. Nydegger & Co., 127 N.Y.S.2d 800, 801 (Sup.Ct.1958)). The Complaint’s sole reference to the circumstances under which Plaintiffs obtained their certificates — “Plaintiffs acquired many of the Class R Certificates of the Securitizations from the Conti bankruptcy estate in December 2004” (FAC ¶ 58) — does not allege any express assignment of claims. Instead, Plaintiffs argue that upon purchasing their certificates, they automatically assumed Conti’s accrued causes of action for harm to trust assets. (See Pis. M & T Opp’n 8 (citing Pis. Omnibus Opp’n 11-12).) According to Plaintiffs, such automatic assumption occurs by operation of both the general law of trusts and N.Y. G.O.L. § 13-107. Defendants fail to respond to either argument. For the reasons that follow, the Court finds that Plaintiffs have standing to assert Conti’s claims against M & T pursuant to § 13-107. Upon a transfer of “bonds,” § 13-107 automatically vests the transferee with all of the transferor’s bond-related causes of action against the obligor, the indenture trastee or depositary, or the guarantor of the obligation. The statute provides, 1.Unless expressly reserved in writing, a transfer of any bond shall vest in the transferee all claims or demands of the transferrer, whether or not such claims or demands are known to exist, (a) for damages or rescission against the obligor on such bond, (b) for damages against the trustee or depositary under any indenture under which such bond was issued or outstanding, and (c) for damages against any guarantor of the obligation of such obligor, trustee or depositary. 2. As used in this section, “bond” shall mean and include any and all shares and interests in an issue of bonds, notes, debentures or other evidences of indebtedness of individuals, partnerships, associations or corporations, whether or not secured. 3. As used in this section, “indenture” means any mortgage, deed of trust, trust or other indenture, or similar instrument or agreement (including any supplement or amendment to any of the foregoing), under which bonds as herein defined are issued or outstanding, whether or not any property, real or personal, is, or is to be, pledged, mortgaged, assigned, or conveyed thereunder. N.Y. G.O.L. § 13-107. Section 13-107 thus “expressly permits a bondholder to sue an indenture trustee for breaches of duty that occur prior to his purchase of the bond, regardless of the bondholder’s knowledge of these breaches.” LNC Invs., Inc. v. First Fidelity Bank, N.A. New Jersey, 173 F.3d 454, 462 (2d Cir.1999); see Bluebird Partners, L.P. v. First Fidelity Bank, N.A., 97 N.Y.2d 456, 741 N.Y.S.2d 181, 183, 767 N.E.2d 672 (2002). (“[N]either the plain language nor the legislative history of General Obligations Law § 13-107 requires that a transferee demonstrate its own injury in order to bring a claim for damages.”). To the extent there is any question whether § 13-107 applies to the pass-through certificates at issue here, it is one to which Defendants offer no argument. The provision applies to “trusts” under which “bonds” are issued, including “any and all shares and interests in an issue of bonds, notes, debentures or other evidences of indebtedness of individuals, partnerships, associations or corporations, whether or not secured.” NY. G.O.L. § 13 — 107(2)—(3). Defendants do not argue that the certificates issued by the trusts pursuant to the PSAs are dispositively different from ordinary debt securities governed by § 13-107. Indeed, as many courts have observed, pass-through certificates are structurally similar in form and function to bonds issued under an indenture. See, e.g., Greenwich Fin. Servs. Distressed Mortg. v. Countrywide Fin. Corp., 654 F.Supp.2d 192, 197 (S.D.N.Y.2009) (“Where the indentures contain the details of the borrowing, the duties of the trustee, and the legal relationship between the trustee, borrower, and bondholders, the sample PSA ... sets out the distribution of mortgage principal and interest payments to the various certificate classes, the duties of the trustee, and the legal relationship between the trustee, the master servicer, and the certificateholders.” (internal citations omitted)); LaSalle Bank Nat. Ass’n v. Nomura Asset Capital Corp., 424 F.3d 195, 200 (2d Cir.2005) (noting, with respect to pass-through certificates issued by a trust governed by a PSA, “[i]t is these stakes — the ‘bonds’ or ‘certificates’ — 'that are ordinarily referred to as commercial mortgage-backed securities”); Trust for Certificate Holders of Merrill Lynch Mortg. Passthrough Certificates Series 1999-C1 v. Love Funding Corp., No. 04 Civ. 9890(SAS), 2005 WL 2582177, at *1 (S.D.N.Y. Oct. 11, 2005) (“The holders of the certificates issued by the Trust are referred to as Certificateholders. These certificates are essentially bonds secured by a pool of commercial mortgages that the Trust has purchased from lenders”); cf. Fraternity Fund Ltd. v. Beacon Hill Asset Mgmt., LLC, 479 F.Supp.2d 349, 373-74 (S.D.N.Y.2007) (stating that investors in a hedge fund which invested primarily in mortgage-backed securities could not assert standing under § 13-107). Significantly, Plaintiffs acquired their certificates from Conti’s bankruptcy sale in New York and Defendants do not contest that § 13-107 governs that transfer. See Excelsior Fund, Inc. v. JP Morgan Chase Bank, N.A., 06 Civ. 5246(JGK), 2007 WL 950134, at *6 (S.D.N.Y. Mar. 28, 2007) (finding it “inappropriate to dismiss the claim predicated on § 13-107 at this stage where there is no showing that New York law did not govern each prior transfer of the [notes] at issue.”). Accordingly, at this stage, the Court is satisfied that the certificates at issue are sufficiently analogous to bonds to warrant standing under § 13-107 for Plaintiffs’ claims against M & T. 2. SPS and the SPS Affiliates However, Plaintiffs fail to plausibly allege standing for claims against SPS and the SPS Affiliates that accrued prior to Plaintiffs’ purchase of the certificates, a deficiency the Court must address sua sponte. See United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (“The federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’ ” (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990))). By its terms, § 13-107 is plainly limited to claims against the obligor, the indenture trustee or depositary, or the guarantor of the obligation. See Banque Arabe et Internationale D’Investissement v. Maryland Nat’l Bank, 850 F.Supp. 1199, 1209 (S.D.N.Y.1994). Here, it is clear that SPS and the SPS Affiliates are not obligors, depositaries, or guarantors and thus § 13-107 does not confer standing on Plaintiffs to advance Conti’s accrued claims. Plaintiffs’ other argument, that they have standing as successor beneficiaries of a trust pursuant to common law trust principles, is unavailing. As Plaintiffs’ own authorities reflect, the use of commercial trusts as securitization vehicles, as here, necessarily requires the application of specialized law distinct from generalized trust principles. See, e.g., 1 Austin W. Scott, The Law of Trusts § 2.1.22 (5th Ed.2006) (“The use of trusts in security transactions involves the general principles that apply to such transactions. Thus the ordinary principles of trust law do not always apply. Accordingly, none of the Restatements of Trusts addresses the rules applicable to a deed of trust to secure debt obligations. Neither does this treatise.”). Moreover, even if common law trust principles applied here, Plaintiffs have not cited any authority for the proposition that a transferee of an interest in a trust automatically assumes all of the transferor’s claims against parties other than the trustee, such as SPS and the SPS Affiliates. (See, e.g., Pls. Omnibus Opp’n 11 (citing Mfrs. Trust Co. v. Kelby, 125 F.2d 650, 653 (2d Cir.1942)) (“[I]f the trustee could ... have been shown to have misappropriated any of the trust res, the right of action to compel restoration would have passed with an assignment for the bonds, being regarded as an incident or part of the res itself’ (emphasis added)).) Therefore, in the absence of a plausible allegation that Plaintiffs were expressly assigned claims against SPS and the SPS Affiliates, all claims premised on these entities’ misconduct prior to Plaintiffs’ December 2004 purchase of the relevant pass-through certificates are dismissed for lack of standing. C. Contractual Prerequisites for Filing Suit 1. Application of § 6.07 Defendants argue that this action should be dismissed in its entirety because Plaintiffs have not complied with the prerequisites for filing a suit set forth in § 6.07 of the PSA. That section, commonly referred to as a “no-action clause,” provides, in relevant part: No owner shall have any right to institute any proceeding, judicial or otherwise, with respect to this Agreement, the Insurance Agreement, the Indemnification Agreement or the Certificate Insurance Policies or for the appointment of a receiver or trustee of the Trust, or for any other remedy with respect to an event of default hereunder, unless: (1) such Owner has previously given written notice to the Depositor, the Certificate Insurer and the Trustee of such Owner’s intention to institute such proceeding; (2) the Owners of not less than 25% of the Percentage Interests represented by the Class A and Class B Certificates then Outstanding or, if there are no Class A or Class B Certificates then Outstanding, by such percentage of the Percentage Interests represented by the Class R Certificates, shall have made written request to the Trustee to institute such proceeding in its own name as Trustee establishing the Trust; (3) such Owner or Owners have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such requests; [and] (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute such proceeding .... (PSA § 6.07.) The purpose of no-action clauses like § 6.07 is to protect the securitizations—and in turn other certificateholders—from the expense of litigating an action brought by a small group of certificateholders that most investors would consider not to be in their collective economic interest. Feldbaum v. McCrory Corp., Civ. A. Nos. 11866, 11920, 12006, 1992 WL 119095, at *6 (DeLCh. June 2, 2002). Such clauses are “strictly construed” in New York. Cruden v. Bank of N.Y., 957 F.2d 961, 968 (2d Cir.1992). While the FAC generally avers that Plaintiffs “fully satisfied all procedural prerequisites for filing suit set forth in Section 6.07,” Plaintiffs admit that they made a written demand on M & T only on April 27, 2007 (FAC ¶ 94), ten days after the original Complaint was filed. Plaintiffs thus have failed to comply with the 60-day pre-suit notice requirement set forth in § 6.07(4). The letter itself nominally requested the Trustee to institute proceedings against SPS and the SPS Affiliates, as required by § 6.07(2). {See Pis. Omnibus Opp’n, Ex. D.) However, it simultaneously asserted that as a named defendant in Plaintiffs’ already-initiated action, M & T could not appropriately pursue such claims. Moreover, the letter failed to offer to indemnify M & T for its costs and expenses in complying with the demand, as necessitated by § 6.07(3). Despite these obvious failures to comply with § 6.07, Plaintiffs contend that pursuant to Rule 9(c) of the Federal Rules of Civil Procedure, the Court should credit their general averment that they “fully satisfied” all the prerequisites to filing suit. {See Pis. Omnibus Opp’n 15-16.) But while Rule 9(c) allows parties, in pleading conditions precedent to bringing suit, to “allege generally that all conditions precedent have occurred or been performed,” Plaintiffs cannot allege something they know to be untrue, see Fed.R.Civ.P. 11(b), and they admit that they have not complied with either the sixty-day pre-suit requirement or the indemnification provisions of § 6.07. See Sterling Fed. Bank, F.S.B. v. DLJ Mortg. Capital, Inc., No. 09 Civ. 6904(JFG), 2010 WL 3324705, at *4 (N.D.I11. Aug. 20, 2010) {“Sterling II”) (refusing to credit similar general averments of compliance with a no-action clause in light of plaintiffs’ contrary admissions); see also In re Livent, Inc. Noteholders Sec. Litig., 151 F.Supp.2d 371, 405 (S.D.N.Y. 2001) (“[A] court need not feel constrained to accept as truth conflicting pleadings that make no sense, or that would render a claim incoherent, or that are contradicted [ ] by statements in the complaint itself____”). Indeed, at oral argument, counsel for Plaintiffs “freely admitted] that if read literally the no-action clause would apply here.” (Oral Arg. Tr. Oct. 23, 2009 (“Oral Arg.”), at 29:1-2.) Plaintiffs next argue that § 6.07 only applies to suits arising out of an “event of default,” and does not cover their contract and tort claims here. (See Pis. Omnibus Opp’n 19.) However, by its terms, § 6.07 applies to “any proceeding, judicial or otherwise, with respect to this Agreement ... or for the appointment of a receiver or trustee of the Trust, or for any other remedy with respect to an event of default hereunder ...” (PSA § 6.07 (emphasis added).) This language makes “any other remedy with respect to an event of default” simply one category to which the no-action clause applies, in addition to “any proceeding ... with respect to this Agreement.” Consistent with other courts interpreting similar clauses, the Court concludes that the breadth of this provision— applying to “any proceeding, judicial or otherwise, with respect to this Agreement” — requires that the prerequisites for filing suit apply to Plaintiffs’ contract and tort claims. See Peak Partners, LP v. Republic Bank, 191 Fed.Appx. 118, 126-27 (3d Cir.2006) (holding, under New York law, that a no-action provision containing similar “with respect to this Indenture” language barred negligence claims against a servicer); Feldbaum, 1992 WL 119095, at *6 (interpreting similar language to bar common law fraud claims). Therefore, all claims on behalf of Plaintiffs’ interests in the eighteen uncalled securitizations are governed by the no-action clause. The same cannot be said for Plaintiffs’ claims on behalf of the three called securitizations. No-action clauses do not bar a plaintiff who alleges that it was fraudulently induced to purchase or sell its certificates, as Plaintiffs do here. See Feldbaum, 1992 WL 119095, at *8. Moreover, nothing in § 6.07 indicates that the prerequisites to bringing suit survive the termination of the trusts or provide standing for the former trustee to litigate claims on behalf of the terminated securitizations. By contrast, the PSA clearly provides that the Trustee’s liability for misconduct continues post-termination. (Compare PSA § 10.13 (describing the Trustee’s liability under the PSA and noting that this section “survive[s] the termination of this Agreement”) with § 6.07 (omitting such a survival statement).) Nor would there be any rationale for enforcing a no-action provision that purported to apply after a clean-up call. Plaintiffs have bought out the interests of any certificate-holders who would otherwise need to be protected from the expense of a frivolous suit and there is no longer a Trustee (or even a trust) through whom such a dispute could be channeled. Accordingly, Plaintiffs were only required to make a demand on the Trustee for claims on behalf of the uncalled securitizations. 2. Futility of Compliance with § 6.07 Plaintiffs next argue that compliance with § 6.07’s demand requirement would have been futile. The Court finds that to be the case with respect to Plaintiffs’ claims against M&T, but not SPS and the SPS Affiliates. a. Claims against M&T The Second Circuit has held that noncompliance with a no-action provision is excused in a suit by bondholders against the indenture trustee. See Cruden, 957 F.2d at 968 (“The district court held that the ‘no action’ clause applied only to debenture holder suits against [the issuer], not the Indenture Trustees----This construction of [the limitation on suits provision] obviously is correct, as it would be absurd to require the debenture holders to ask the Trustee to sue itself’). The same “absurdity]” is present here, where Plaintiffs have alleged that M&T “knew” of SPS’s predatory servicing and failed to report its breaches of the PSA to the eertificateholders. (FAC ¶¶ 80, 102-103.) See Capital, S.A. v. Lexington Capital Funding III, Ltd., No. 10 Civ. 25(PGG), 2011 WL 3251554, at *8 (S.D.N.Y. July 28, 2011) (excusing non-compliance with a provision that “would require Plaintiff to demand that the Trustee initiate proceedings against itself to rectify the alleged error.”); Peak Partners, 191 Fed.Appx. at 126 n. 11 (applying Cruden and finding that excusing non-compliance with a no-action clause in a suit against the trustee of a securitized pool of mortgage loans “because it would have required [the trustee] ... in effect, to sue itself’). Accordingly, the no-action provision does not bar suit against M&T. b. Claims against SPS and SPS Affiliates Plaintiffs contend that compliance with § 6.07 would be similarly futile with respect to their claims against SPS and its Affiliates. Although they concede that “Cruden ... applies only to the trustee” (Oral Arg. at 24:17-18), Plaintiffs nevertheless argue that M & T’s misconduct is generally based on its failure to monitor SPS, and that M&T would, in essence, prove the case against itself if it were to sue SPS. But even though demand may be excused where the trustee is plainly conflicted or makes it impossible for certificateholders to comply with a no-action clause, see, e.g., First Bank Richmond, N.A. v. Credit Suisse First Boston Corp., No. 07 Civ. 1262(LJM), 2008 WL 4410367, at *11 (S.D.Ind. Sept. 24, 2008), Plaintiffs here have not sufficiently pleaded any such circumstances. First, Plaintiffs appear to suggest that by virtue of its supervisory position, a trustee is always subject to a conflict of interest whenever eertificateholders allege misconduct on the part of the servicer and name the trustee as a co-defendant for its deficient supervision. However, such a reading would essentially expand the exception recognized by Cruden for suits brought against the trustee into one that swallows a no-action clause as a whole. See In re E.F. Hutton Southwest Props. II, Ltd., 953 F.2d 963, 972 (5th Cir.1992) (“A mere hypothetical possibility that the indenture trustee might favor the interests of the issuer merely because the former is an indenture trustee does not suffice.”). Indeed, there is “an important difference between asking the trustee to sue itself— an ‘absurd’ requirement [the Court] presume[s] the parties did not intend — and asking it to sue a third party, even when the investor alleges wrongdoing by the trustee.” Sterling II, 2010 WL 3324705, at *6 (reviewing New York law and finding that a no-action provision barred claims by purchasers of mortgage-backed securities against the trustee, but not against the servicer and seller of the loans); see also Bankers Ins. Co. v. DLJ Mortg. Capital, Inc., No. 10 Civ. 419(EAJ), 2010 WL 4867533, at *4-6 (M.D.Fla. Oct. 8, 2010) (same). Notably, other provisions of the PSA seek to lessen this potential “conflict of interest” by requiring SPS to indemnify M & T for: any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, fees and expenses that the Trustee ... may sustain in any way related to the failure of the Servicer to perform its duties and service the Home Equity Loans in compliance with the terms of this Agreement. (PSA § 8.05(b).) Therefore, by establishing SPS’s liability for failing to abide by the PSA, M & T would likely secure a right to indemnification from SPS for any liability it might have to the certificate-holders. Plaintiffs’ remaining allegations of a conflict of interest are entirely conclusory. They contend that M & T should have terminated SPS when it learned of its misconduct in the Curry and FTC settlements, and, instead proceeded to “engineer ] a release for itself.” (FAC ¶¶ 50-51, 124). It is undisputed, however, that M & T was not a party to the Curry and FTC lawsuits or a signatory to the global release, and was merely included along with all “persons or entities that are or have been investors, owners, trustees or beneficiaries” of the loans at issue in those cases. See Medina v. Manufacturer’s & Traders Trust Co., No. 04 Civ. 2175(JBZ), 2004 WL 3119019, at *1 (N.D.Ill. Dec. 14, 2004). Plaintiffs make no particularized allegations that M & T financially benefit-ted from its decision not to terminate SPS or otherwise conspired with SPS to defraud the trusts, which are the classic hallmarks of a conflict of interest. See, e.g., Elliott Assocs. v. J. Henry Schroder Bank & Trust Co., 838 F.2d 66, 73 (2d Cir.1988) (“Because no evidence was offered in the instant case to suggest that [the trustee] benefitted, directly or indirectly, from its decision to waive the 50-day notice, [it ... ] thus did not engage in a conflict of interest .... ”); Velez v. Feinstein, 87 A.D.2d 309, 451 N.Y.S.2d 110, 115 (1982). Nor do Plaintiffs allege that demand was futile because M & T’s actions “made it impossible for Plaintiff[s] to comply” with the no-action clause. First Bank Richmond, N.A., 2008 WL 4410367, at *11 (excusing demand in part because the trustee refused to respond to any of plaintiffs multiple requests for information regarding the other certificateholders); Sterling Federal Bank, F.S.B. v. Credit Suisse First Boston Corp., No. 07 Civ. 2922(RMD), 2008 WL 4924926, at *11 (N.D.Ill. Nov. 14, 2008) (“Sterling /”) (same). Accordingly, the Court concludes that pursuant to § 6.07, Plaintiffs must channel their grievances against SPS and SPS Affiliates through the Trustee in the first instance. Accordingly, all claims on behalf of the uncalled securitizations against SPS and SPS Affiliates are dismissed. D. Derivative Pleading Requirements As its final threshold challenge to the Complaint, SPS briefly characterizes all of Plaintiffs’ claims as derivative and argues that they have failed to meet federal and state prerequisites to bringing derivative suits. (SPS Mem. 7 n. 11, 24). Specifically, SPS contends that Plaintiffs violated Federal Rule of Civil Procedure 23.1 and New York Business Corporation Law § 626 in failing to (1) file a verified complaint, (2) allege Plaintiffs’ contemporaneous ownership of the certificates at the time of Defendants’ wrongdoing, and (3) sufficiently allege having made a demand on the trustee or the existence of demand futility. M & T does not move for dismissal on these grounds. It is well established in the context of shareholder litigation that “where an injury is suffered by a corporation and the shareholders suffer solely through depreciation in the value of their stock, only the corporation itself, its receiver, ... or a stockholder suing derivatively in the name of the corporation may maintain an action against the wrongdoer.” Vincel v. White Motor Corp., 521 F.2d 1113, 1118 (2d Cir.1975) (emphasis added). Consequently, an “action must be asserted derivatively if the alleged injury ‘was suffered by the corporation and thus by stockholders only through diminution in the value of their shares,’ and directly if the injury ‘was suffered in some fashion separately and distinctly from injury to the corporation.’ ” See Dallas Cowboys Football Club, Ltd. v. Nat’l Football League Trust, No. 95 Civ. 9426(SAS), 1996 WL 601705, at *2 (S.D.N.Y. Oct. 18, 1996) (quoting Deborah A. DeMott, Shareholder Derivative Actions § 2.01, at 1 (1994)). Derivative suits may also be brought by the beneficiaries of a trust in New York. See id., at **4-5 (reviewing New York precedent for applying shareholder derivative standards to suits brought by beneficiaries of a trust and finding that “when an alleged injury is not unique to the plaintiff, a suit brought by a beneficiary against the trustees can only be brought derivatively.”). “In analyzing whether a claim is derivative, a court ‘must look to the nature of the alleged wrong rather than the designation used by plaintiffs.’ ” Primavera Familienstiftung v. Askin, No. 95 Civ. 8905(RWS), 1996 WL 494904, at **14-15 (S.D.N.Y. Aug. 30, 1996) (quoting Rabkin v. Philip A. Hunt Chem. Corp., 547 A.2d 963, 968 (Del.Ch.1986)). The Court has already dismissed all claims on behalf of the uncalled securitizations against SPS for failure to comply with § 6.07. Accordingly, the Court' need not determine at this stage (1) whether those claims were additionally subject to dismissal because they were stated derivatively or (2) that Rule 23.1, which governs only derivative actions brought “one or more shareholders or members of a corporation or an unincorporated association,” applies to certificateholders’ claims against the trustee and servicer of a securitization trust: As for Plaintiffs’ claims with respect to the three called securitizations, such claims plainly seek relief for Plaintiffs’ own unique injuries — chief among them a payment of $37 million to SPS for trapped servicing advances. Accordingly, these claims are direct and derivative pleading standards do not apply. Therefore, SPS’s motion to dismiss the complaint for failure to comply with derivative pleading standards is denied. Having thus dismissed all claims against SPS and the SPS Affiliates (1) arising from conduct prior to Plaintiffs’ acquisition of their certificates for lack of standing, or (2) made on behalf Plaintiffs’ interests in the eighteen uncalled securitizations for failure to comply with § 6.07, the Court proceeds to analyze the sufficiency of the remaining claims. E. Sufficiency of Remaining Claims 1. Breach of PSA by M & T Plaintiffs bring a claim against M & T for breach of the PSA. Under New York law, there are four elements to a breach of contract claim: “(1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages.” Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir.1996). To plead these elements “a plaintiff must identify what provisions of the contract were breached as a result of the acts at issue.” Wolff v. Rare Medium, Inc., 171 F.Supp.2d 354, 358 (S.D.N.Y.2001) (dismissing breach of contract claim because plaintiffs failed to identify the contractual provisions that defendant breached). Moreover, “[sjtating in a conclusory manner that an agreement was breached does not sustain a claim of breach of contract.” Berman v. Sugo L.L.C., 580 F.Supp.2d 191, 202 (S.D.N.Y.2008) (citing Posner v. Minn. Mining & Mfg. Co., 713 F.Supp. 562, 563-64 (E.D.N.Y.1989)). In determining a party’s obligations under a contract, “the initial interpretation of a contract is a matter of law for the court to decide.” K. Bell & Assocs., Inc. v. Lloyd’s Underwriters, 97 F.3d 632, 637 (2d Cir.1996) (citation omitted). Plaintiffs allege that M & T breached the PSA by failing to (1) “monitor the performance of the Servicer,” (2) “safeguard the assets of the Securitizations,” and (3) “promptly notify the Owners of any breaches of the PSA by the Servicer.” (FAC ¶¶ 101-104.) Although this cause of action does not identify which provisions of the PSA imposed “monitoring]” and “safeguarding]” duties on M & T, it grounds M & T’s notification duties in § 8.20(m). For the reasons that follow, the Court concludes that only the third “notification” claim is sufficiently stated to survive dismissal. As an initial matter, the PSA does not require the Trustee to undertake any generalized monitoring or safeguarding duties beyond those explicitly provided in the PSA. (See PSA § 10.01(a) (“The Trustee ... undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Trustee”).) Indeed, far from imposing a proactive duty on M & T to investigate the information conveyed to it by SPS, the PSA explicitly states that “the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note or other paper or document, but the Trustee in its discretion may make such further inquiry or investigation into such facts or matters as it may see fit.” (PSA § 10.03(f)). The breach of contract claim itself is silent on the contractual source of any “safeguarding” or “monitoring” duties, but in a section titled “The Trustee’s Duties Under the PSA,” the Complaint references § 6.03 of the PSA. (See FAC ¶¶ 21-23.) That provision states that the Trustee (1) “will hold the Trust Estate in trust for the benefit of the Owners” (PSA § 6.03(a)), and (2) “shall have the power to enforce, and shall enforce the obligations and rights of the other parties to this Agreement .... ” (id. § 6.03(b)). However, to the extent these general provisions conferred any affirmative monitoring and safeguarding duties on M & T, they are subject to a right of indemnification. (See id. § 6.03(b) (“[N]othing in this Section shall require any action by the Trustee unless the Trustee ... shall first (i) have been furnished indemnity satisfactory to it .... ”).) Plaintiffs do not allege to have provided indemnity to the Trustee, rendering unavailing any claim based on § 6.03. Plaintiffs appear to change course in their briefing, arguing that “the duty to monitor [SPS] does not spring from the language in § 6.03 of the PSA quoted by M & T,” but rather from M & T’s status “as trustee under applicable law.” (Pis. M & T Opp’n 7 (emphasis added).) But the “applicable law” cited by Plaintiffs concerns fiduciary duties present in ordinary testamentary trusts, see, e.g., In re Couch Trust, 723 A.2d 376 (Del.Ch.1998), which, as explained below in Part E.2, are not applicable with respect to the securitizations governed by PSAs here. Accordingly, in the absence of any contractual provisions conferring a specific obligation to “monitor” and “safeguard” trust assets, these contractual claims must be dismissed. Nevertheless, Plaintiffs plausibly allege the existence of M & T’s duty to notify certificateholders of SPS’s various breaches of the PSA pursuant to § 8.20(m). According to that provision, the “Trustee shall give notice to the Owners ... of the occurrence of any event described in [§ 8.20(a) or (b) ] ... of which the Trustee is aware.” (PSA § 8.20(m).) The qualifying events in § 8.20(a) include the Servicer’s failure to cure any breach of its representations and warranties (id. § 8.20(a)(iv)), such as the representation that its collection practices “have been, in all material respects, legal, proper, prudent and customary in the mortgage servicing business and in conformity with relevant Fannie[ ]Mae guidelines (id. § 3.02(j)).” M & T does not dispute that Plaintiffs have plausibly alleged SPS’s breach of its servicing standards (see, e.g., FAC ¶¶ 43-56), and SPS has not moved to dismiss the breach of contract claim stated against it. Instead, M & T asserts that Plaintiffs (1) do not have standing to bring claims for M & T’s misconduct prior to their acquisition of the residual certificates, and (2) have not alleged that M & T was “aware” of any of SPS’s breaches thereafter. (M & T Mem. 12-13, 16.) As explained above, however, Plaintiffs need not show their own injury to bring claims against M & T that they assumed upon transfer of Conti’s certificates. See supra Part III.B.l (citing N.Y. G.O.L § 13-107). In any event, taking all well-pleaded allegations contained in the Complaint as true, and drawing all reasonable inferences in favor of Plaintiffs, the Complaint sufficiently alleges that M & T was “aware” of SPS’s breaches even after Plaintiffs purchased them certificates. For instance, Plaintiffs describe in considerable detail the legitimate collection practices that SPS was forced to abandon as a result of the Curry and FTC settlements. (See FAC ¶¶ 45-48.) Plaintiffs further allege that M & T knew about the SPS’s servicing defaults, both as a result of the settlements and due to Moody’s public downgrade of SPS’s servicer rating as “below average,” and that M & T breached its duty to report these conditions to the certificate-holders pursuant to PSA § 8.20. (Id. ¶¶ 53-56, 80.) These factual allegations allow for the reasonable inference, at this stage, that Plaintiffs are entitled to relief on their breach of contract claim. Accordingly, the Court finds that Plaintiffs have sufficiently alleged a breach of contract claim premised on M & T’s failure to promptly notify certificateholders of SPS’s breaches of the PSA. 2. Breach of Fiduciary Duty Plaintiffs next allege that M & T and SPS owed and breached various fiduciary duties to the certificateholders, and that the SPS Affiliates aided and abetted these breaches. (FAC ¶¶ 112-116, 123-125). For the reasons that follow, these claims are dismissed. a. M & T The Complaint asserts that, as Trustee, M & T had fiduciary responsibilities over trust assets and breached these duties by (1) failing to monitor and supervise SPS, (2) failing to prevent the depletion of the trust assets caused by SPS’s deficient conduct, and (3) engaging in self-dealing by “engineerpng] a release for itself’ in the Curry and FTC settlements. (FAC ¶ 124.) To state a claim for a breach of fiduciary duties under New York law, a plaintiff must establish: “(1) a fiduciary duty existing between the parties; (2) the defendant’s breach of that duty; and (3) damages suffered by the plaintiff which were proximately caused by the breach.” Metropolitan West, 2004 WL 1444868, at *8 (citing Weiss, Peck & Greer, LLC v. Robinson, No. 03 Civ. 0209, 2003 WL 1396436, at *7 (S.D.N.Y. Mar. 19, 2003)). While acknowledging the amorphous nature of a fiduciary relationship, New York courts have generally described it as one in which a party “reposes confidence in another and reasonably relies on the other’s superior expertise or knowledge.” See Henneberry v. Sumitomo Corp. of Am., 532 F.Supp.2d 523, 550 (S.D.N.Y.2007) (citing WIT Holding Corp. v. Klein, 282 A.D.2d 527, 724 N.Y.S.2d 66, 68 (App.Div.2001) (internal citation omitted)); accord Penato v. George, 52 A.D.2d 939, 383 N.Y.S.2d 900, 904 (App.Div.1976). An ordinary trustee generally owes a fiduciary duty to act with undivided loyalty and administer the trust solely in the interests of the beneficiaries. See In re Heller, 6 N.Y.3d 649, 655, 816 N.Y.S.2d 403, 849 N.E.2d 262 (2006) (citing Restatement (Second) of Trusts § 170(1)). As explained above, however, much of the common law of trusts, and its corresponding fiduciary obligations, are not applicable to commercial trusts. Rather, the duties of an indenture trustee are generally “strictly defined and limited to the terms of the indenture.” Elliott Assocs., 838 F.2d at 71 (citations omitted); AG Capital Funding Partners, L.P. v. State Street Bank & Trust Co., 11 N.Y.3d 146, 156, 866 N.Y.S.2d 578, 896 N.E.2d 61 (2008) (“The trustee under a corporate indenture ... has his [or her] rights and duties defined, not by the fiduciary relationship, but exclusively by the terms of the agreement.” (citations omitted)); accord Meckel v. Cont’l Res. Co., 758 F.2d 811, 816 (2d Cir.1985) (citation omitted). In New York, an indenture trustee owes to bondholders limited extra-contractual duties that expand after the occurrence of an event of default. Prior to an event of default, an indenture trustee’s duty is governed solely by the terms of the indenture, with two exceptions: a trustee must (1) avoid conflicts of interest, and (2) perform all basic, non-discretionary, ministerial tasks with due care. See Elliott Assocs., 838 F.2d at 71; LNC Invs., Inc. v. First Fidelity Bank, Nat’l Ass’n, 935 F.Supp. 1333, 1347 (S.D.N.Y.1996). These two pre-default obligations are not construed as “fiduciary duties,” but as obligations whose breach may subject the trustee to “tort liability.” AG Capital Funding Partners, L.P., 11 N.Y.3d at 157, 866 N.Y.S.2d 578, 896 N.E.2d 61 (emphasis in original). Following an event of default, however, an indenture trustee’s duties to noteholders “come more closely to resemble those of an ordinary fiduciary, regardless of any limitations or exculpatory provisions contained in the indenture.” Beck v. Mfrs. Hanover Trust Co., 218 A.D.2d 1, 632 N.Y.S.2d 520, 527 (1995); see also BNP Paribas Mortg. Corp. v. Bank of America, N.A., 778 F.Supp.2d 375, 401 (S.D.N.Y.2011). Consistent with other courts that have addressed this issue, the Court here finds that these constraints apply with similar force to securitization trustees subject to PSAs, which are “trust agreements similar to bond indentures in many respects.” Greenwich Fin. Servs. Distressed Mortg. Fund 3 LLC v. Countrywide Financial Corp., 603 F.3d 23, 29 (2d Cir.2010); see Bank of N.Y. Mellon v. Walnut Place LLC, 819 F.Supp.2d 354, 364-65 & n. 6, 2011 WL 4953907, at *9 & n. 6 (S.D.N.Y.2011) (observing that a securitization trustee governed by a PSA is subject to narrow pre-default obligations to avoid conflicts of interest and perform basic non-discretionary ministerial tasks); accord Sterling I, 2008 WL 4924926, at *15; First Bank Richmond, N.A., 2008 WL 4410367, at *15. Upon careful consideration of the language of the PSA and the nature of the parties’ relationship, the Court finds that M & T did not assume any broader fiduciary obligations. Nothing in the PSA states that the Trustee is subject to the fiduciary duties imposed on ordinary trustees. Rather, as noted above, the PSA expressly limits the trustee’s duties to those enumerated within the agreement. (See PSA § 10.01(a); § 10.03(f) (“Except as otherwise provided in Section 10.01 hereof ... the right of the Trustee to perform any discretionary act enumerated in this Agreement shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act”).) Plaintiffs’ attempt to fashion a fiduciary duty from the PSA’s terms is unpersuasive. (See Pis. M & T Opp’n 12-16.) For instance, while § 6.03 provides that the Trustee “will hold the Trust Estate in trust for the benefit of the Owners” and “shall have the power to enforce, and shall enforce the obligations and rights of the other parties to this Agreement,” any obligations derived from this Section — as opposed to M & T’s other, enumerated duties' — are subject to a right of indemnification that has not been satisfied. (See § 6.03(b) (“[N]othing in this Section shall require any action by the Trustee unless the Trustee shall first ... have been furnished indemnity satisfactory to it ....”); § 10.03(g) (“The Trustee shall be under no obligation to institute any suit, or to take any remedial proceeding under this Agreement, or to take any steps ... in the enforcement of any rights and powers hereunder until it shall be indemnified to its satisfaction against any and all costs and expenses ... and against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct, in connection with any action so taken.”).) Although Plaintiffs place much emphasis on the PSA’s sole reference to M & T’s “fiduciary duties” in § 6.03(c), that section simply exculpates the Trustee from the requirement that it execute certain instruments if such instruments “conflict with [the PSA] or with the Trustee’s fiduciary duties, or adversely affect its rights and immunities hereunder.” It does not confer any specific fiduciary duties and is in no way inconsistent with the requirement that an event of default must occur for such duties to generate. And contrary to Plaintiffs’ argument, the fact that M & T maintained some “control” and “responsibility” over the mortgage pool is true of all securitization trustees and does not establish a fiduciary duty in this context. See Sterling I, 2008 WL 4924926, at *15; (rejecting the argument that the trustee owed historic common law fiduciary duties to certificateholders by being “placed in a position of trust in which it was required to manage the securities for the benefit of the certificateholders”); First Bank Richmond N.A., 2008 WL 4410367, at *15 (dismissing, under New York law, fiduciary duty allegations, premised on the analogous claim that the securitization trustee “was in a position to prevent financial injury to the certificateholders”). Accordingly, because no event of default has been alleged, M & T’s sole extra-contractual obligations were to avoid conflicts of interest and perform its ministerial functions with due care. Neither of these obligations is plausibly alleged to have been breached here. M & T’s broadly-stated failures to monitor SPS and safeguard trust assets (FAC ¶ 124) plainly do not involve the performance of “basic non-discretionary ministerial tasks.” LNC Invs., Inc., 935 F.Supp. at 1347. The claim of “self-dealing,” which superficially implicates M & T’s duty to avoid conflicts of interest, fares little better. As explained above, the Complaint alleges no specific acts of self-dealing other than the fact that M & T, a non-party to the Curry and FTC settlements, allowed itself to be included among all trustees in the global release of those settlements. (See FAC ¶ 53.) Plaintiffs weakly suggest that this global release, coupled with M & T’s decision not to subsequently terminate SPS, “created the appearance of impropriety” and “did not remove[ ] any suggestion” of a potential quid pro quo arrangement between SPS and M & T. (Pis. M & T Opp’n 20.) It is well established in the post-Twombly world, however, that such speculative pleading is no substitute for plausible factual content, and none has been supplied here. The Complaint entirely fails to allege that M & T conspired with SPS or received any benefit from its decision not to terminate SPS. Accordingly, all fiduciary duty claims against M & T are subject to dismissal. Even if Plaintiffs had adequately alleged the existence and breach of a fiduciary duty, their claims would nonetheless be “merely a restatement, albeit in slightly different language, of the ‘implied’ contractual obligations asserted in the cause of action for breach of contract.” Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 390, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987). (Compare FAC ¶ 102 (breach of contract claim premised on failure to monitor and