11.  In addition, RPI alleges U.S. Bank discovered and knew of numerous loan servicer  events of default (“Events of Default”) committed by the loan Servicers or Master Servicers  (collectively “Servicers”) under the Governing Agreements, but failed to give notice and cure those  Events of Default.  U.S. Bank also willfully failed to discharge its fiduciary duty to protect  certificateholders’ interests following Events of Default, once again electing to place its own  financial self-interest ahead of the interests of certificateholders.   12.  The Complaint also alleges that U.S. Bank acted negligently and engaged in willful  malfeasance in connection with the conduct referenced above.  See ¶¶298, 300, 302, 304, 305, 325.   13.  For example, the Complaint catalogs a series of lawsuits regarding specific loans in  specific Covered Trusts that informed U.S. Bank that there were numerous defective mortgage loans  in the Covered Trusts that breached the Warrantors’ representations and warranties.  ¶¶94-101, 103- 104.  Moreover, U.S. Bank had visibility into the breaches of representations and warranties, such as  misstated income or debt ratios, learned through the bankruptcies of the mortgage loan borrowers  and through the due diligence of its own affiliates.  ¶¶153-173, 178-180.   15.  In defending itself against the Litigation, U.S. Bank has spent and continues to spend  an enormous amount on legal expenses, which has been paid from the assets of the Covered Trusts –  the investors’ money.  As of the filing of this complaint, U.S. Bank has filed an Answer to the  Complaint, opposed RPI’s motion for class certification, engaged in a “scorched earth” defense  strategy, and filed unmeritorious motions for sanctions against RPI.  It has undertaken wholly  irrelevant and wasteful discovery, including harassing plaintiff with 117 individual requests for  production, many of which are irrelevant or duplicative, serving approximately 110 requests for  admission, in blatant violation of Pilot Project rules, and taking irrelevant or duplicative fact and  expert depositions, again using investors’ money.   17.  Despite the excessive legal expenses racked up in the Litigation, U.S. Bank has not  paid or advanced any of its own legal costs and attorney fees, nor has it sought to control its  litigation expenses.  One might wonder why a litigant would engage in such excessive, expensive  and unnecessary litigation tactics.  During the course of discovery in the Litigation, the reason  became clear – in early 2017, RPI became suspicious that U.S. Bank may have been billing the costs  of defending the Litigation to the Covered Trusts.  On February 23, 2017, RPI alerted U.S. Bank of  these suspicions and demanded that it provide invoices detailing any costs it was billing the Covered  Trusts.  In a March 3, 2017 letter to RPI’s counsel, U.S. Bank confirmed that it has been improperly  “indemnified” for its defense from funds belonging to the Covered Trusts.  This means that, through  the Covered Trusts’ beneficial ownership structure, RPI and the Class have been paying for U.S.  Bank’s defense in the Litigation even though U.S. Bank’s alleged negligence, willful conduct and  bad faith is the cause of the Litigation, a perverse result specifically forbidden under the Governing  Agreements and the law.  The investors have been damaged by U.S. Bank’s wrongdoing in the  Litigation and U.S. Bank avoids responsibility for such wrongdoing by defending such misconduct  with the funds of the investors it wronged.   19.  While the certificateholders are not a party to the Governing Agreements, the  Governing Agreements require U.S. Bank to administer the Covered Trusts for the sole benefit of the  certificateholders.  See, e.g., Ex. B, an exemplar copy of one of the Governing Agreements, the PSA  for the BAFC 2007-C Covered Trust (the “BAFC 2007 PSA”), §2.01(a).  Thus, as the only intended  beneficiaries of the Covered Trusts, they are directly damaged whenever assets or funds are wrongly  siphoned from the Covered Trusts’ assets.  Accordingly, it is the certificateholders themselves that  are funding the defense of U.S. Bank, the party that wronged them, in the Litigation.  The Governing Agreements   20.  The obligations, duties and rights of U.S. Bank as trustee for the Covered Trusts are  expressly delineated in the Covered Trusts’ Governing Agreements, known as Pooling and Servicing  Agreements, or PSAs, and documents related thereto.  All of the Governing Agreements for the  Covered Trusts are substantially similar and are incorporated herein by reference.  See, e.g., Ex. B,  36.  The members of the Class are so numerous that joinder of all members is  impracticable.  While the exact number of Class members is unknown to plaintiff at this time and  can only be ascertained though appropriate discovery, plaintiff believes that there are at least  hundreds of members of the proposed Class.  Record owners and other members of the Class may be  identified from records maintained by U.S. Bank, The Depository Trust Company or others and may  be notified of the pendency of this action by mail, using the form of notice similar to that  customarily used in securities class actions.   37.  Plaintiff’s claims are typical of the claims of the members of the Class, as they all  acquired RMBS certificates in the Covered Trusts and held the RMBS certificates during the time  when U.S. Bank began impermissibly billing the Covered Trusts for its Litigation fees and costs; all  the claims are based upon the Governing Agreements substantially in the same form as the BAFC  2007-C PSA; U.S. Bank’s alleged misconduct was substantially the same with respect to all Class  members; and all Class members suffered similar harm as a result.  Thus, all members of the Class  are similarly affected by U.S. Bank’s contractual breaches and common law violations that are  alleged herein.   38.  Plaintiff will fairly and adequately protect the interests of the members of the Class  and has retained counsel competent and experienced in class action and RMBS litigation.   40.  Common questions of law and fact exist as to all members of the Class and  predominate over any questions solely affecting individual members of the Class.  Among the  questions of law and fact common to the Class are:  (a)  whether U.S. Bank is contractually permitted under the Governing  Agreements to receive indemnification of any of its legal fees and costs from the Covered Trusts  incurred in relation to the Litigation;  (b)  whether U.S. Bank must seek indemnification from the Warrantors and/or  Servicers for legal fees and costs incurred in relation to the Litigation;  (c)  whether U.S. Bank is permitted to obtain indemnification of legal fees and  costs incurred in relation to the Litigation because of willful misconduct, bad faith or negligence in  the performance of any of the its duties;  (d)  whether U.S. Bank’s legal fees and costs incurred in relation to the Litigation  were unreasonable;  (e)  whether U.S. Bank, as trustee, was permitted to bill the Covered Trusts for the  Litigation expenses as a principle of trust law;  (f)  whether U.S. Bank’s conduct in obtaining its legal fees and costs out of the  Covered Trusts’ assets is tortious or inequitable; and  (g)  whether U.S. Bank is entitled to the advancement of its legal fees and costs  incurred in relation to the Litigation.   42.  Plaintiff repeats and realleges each and every allegation set forth in the preceding  paragraphs as if fully set forth herein.   43.  As set forth in detail above, the Governing Agreements are contracts setting forth the  duties U.S. Bank owed to plaintiff, the Class and the Covered Trusts, along with the conditions and  limitations governing U.S. Bank’s right to indemnification or use of Covered Trust funds.  U.S.  Bank took actions not permitted by the Governing Agreements or by New York law, including,  without limitation:  (a)  using the Covered Trusts’ funds for legal fees and costs U.S. Bank incurred in  defending the Litigation because the Governing Agreements and New York law do not permit  indemnification of first-party claims or those between indemnitor and indemnitee;  (b)  using the Covered Trusts’ funds for legal fees and costs incurred in defending  against allegations of negligence, bad faith and willful misconduct in the Litigation because the  Governing Agreements and New York law prohibit the use of the Covered Trusts’ funds for such  purposes;  (c)  using the Covered Trusts’ funds for unreasonable legal fees and costs incurred  in defending itself in the Litigation; and  (d)  obtaining advancement of its legal fees and costs from the Covered Trusts  incurred in relation to the Litigation.   45.  Plaintiff and the Class did not receive the benefit of their bargain under the Governing  Agreements when U.S. Bank took actions that resulted in the payment of legal fees and costs from  the Covered Trusts incurred in defending against allegations of bad faith and willful or negligent  misconduct.   46.  Furthermore, plaintiff and the Class did not receive the benefit of their bargain under  the Governing Agreements when U.S. Bank took actions that resulted in it receiving an advancement  of legal fees and costs from the Covered Trusts incurred in relation to the Litigation.   47.  Finally, plaintiff and the Class did not receive the benefit of their bargain under the  Governing Agreements when U.S. Bank billed unreasonable legal fees and costs to the Covered  Trusts.   48.  As a result of U.S. Bank’s multiple breaches of the Governing Agreements alleged  herein, U.S. Bank is liable to plaintiff, the Class and the Covered Trusts for the damages they  suffered as a direct result of U.S. Bank’s actions alleged herein in contravention of the Governing  Agreements.   50.  Plaintiff repeats and realleges each and every allegation set forth in the preceding  paragraphs as if fully set forth herein.   51.  U.S. Bank has received a specific benefit from its use of the Covered Trusts’ funds  for legal fees and costs at the expense of plaintiff and the Class.   52.  As trustee, U.S. Bank had a fiduciary relationship to plaintiff, the Class and the  Covered Trusts, and U.S. Bank was aware of that relationship.   53.  In light of the egregious use of the Covered Trusts’ funds to finance the defense of the  Litigation, restitution is necessary because equity and good conscience cannot permit U.S. Bank to  retain the legal fees and costs.  54.  Plaintiff repeats and realleges each and every allegation set forth in the preceding  paragraphs as if fully set forth herein.   55.  As described above, U.S. Bank’s administration of the Covered Trusts and the funds  therein must only be for the benefit of the certificateholders unless provided for by the Governing  Agreements.   56.  By using the Covered Trusts’ funds for unlawful and unreasonable legal fees and  costs, U.S. Bank has wrongfully converted the Covered Trusts’ funds belonging to plaintiff and the  Class.   58.  At no point did plaintiff or Class members consent to U.S. Bank’s use of the Covered  Trusts’ funds for defending itself in the Litigation.   59.  U.S. Bank’s conduct was gross, willful and wanton, and at the least was undertaken  with reckless disregard of plaintiff’s rights, and therefore warrants the imposition of punitive  damages.  60.  Plaintiff repeats and realleges each and every allegation set forth in the preceding  paragraphs as if fully set forth herein.   61.  Under the common law, U.S. Bank had a duty to plaintiff and the Class to only seek  indemnification of permitted legal fees and costs incurred for the benefit of the Covered Trusts.   62.  As a result of U.S. Bank’s actions in relation to allegations in the Litigation, U.S.  Bank is not entitled to indemnity.   63.  U.S. Bank breached its duty of trust owed to plaintiff and the Class by advancing its  own interests at the expense of plaintiff and the Class, because it is being sued in the Litigation in its  capacity as trustee for failing to protect the interests of plaintiff and the Class but billing the Covered  Trusts for its defense.  Accordingly, the legal fees and expenses incurred in defending itself in the  Litigation are for the exclusive benefit of U.S. Bank and not for the benefit of the Covered Trusts.   64.  In addition, U.S. Bank breached its duty of trust owed to plaintiff and the Class by  seeking unreasonable legal fees and expenses from the Covered Trusts’ assets.   66.  As a result of U.S. Bank’s breach of its duty of trust, unpermitted legal fees and costs  were billed to and paid from the Covered Trusts’ assets, causing the plaintiff and Class damages.   67.  U.S. Bank’s conduct was gross, willful and wanton, and at the least was undertaken  with reckless disregard of plaintiff’s rights, and therefore warrants the imposition of punitive  damages.  68.  Plaintiff repeats and realleges each and every allegation set forth in the preceding  paragraphs as if fully set forth herein.   69.  As an RMBS trustee, U.S. Bank had, and continues to have, a fiduciary relationship  with and duty to certificateholders regarding the assets of the Covered Trusts in which  certificateholders have a beneficial interest.   70.  The funds held in the Covered Trusts are entrusted to U.S. Bank’s administration and  oversight.   71.  U.S. Bank’s fiduciary duty and control of entrusted funds impose a burden of  accounting.   72.  Plaintiff and the Class require an accounting of the legal fees and costs paid for using  the Covered Trusts’ assets to determine the amount improperly taken.   73.  U.S. Bank has declined to provide such an accounting upon plaintiff’s request.  75.  A valid and justiciable controversy exists between plaintiff and U.S. Bank regarding  U.S. Bank’s right to indemnification from the Covered Trusts for legal fees and costs U.S. Bank  incurred in defending the Litigation.  Plaintiff contends, and U.S. Bank denies, that U.S. Bank is not  entitled to indemnification from the Covered Trusts for any loss, liability or expense associated with  the Litigation, because the Governing Agreements and New York law prohibit:  (a)  indemnification of first-party claims or those between indemnitor and  indemnitee;  (b)  the use of the Covered Trusts’ funds for legal fees and costs incurred in  defending against allegations of negligence, bad faith and willful misconduct;  (c)  using the Covered Trusts’ funds for the unreasonable legal fees and costs  incurred in defending itself in the Litigation; and  (d)  obtaining advancement of U.S. Bank’s legal fees and costs from the Covered  Trusts incurred in relation to the Litigation.   9.  RPI is the plaintiff in the Litigation currently proceeding against U.S. Bank.  In that  case, RPI alleges that U.S. Bank failed to fulfill its duties as trustee of the Covered Trusts and  thereby damaged RPI and the class of RMBS certificateholders.  The operative complaint in the  Litigation (the “Complaint”) is found at Dkt. No. 2 of the Litigation and incorporated by reference  herein.  RPI has also filed a supplemental complaint (“Supplement”) (Dkt. No. 242), which alleges  that U.S. Bank failed to fulfil its contractual obligations to certificateholders by failing to pursue  claims on behalf of Covered Trusts impacted by the Lehman Brothers bankruptcy.2   Breach of Contract   Breach of Trust   Conversion   Declaratory Judgment Regarding U.S. Bank’s Right  to Indemnification from the Covered Trusts for Legal Fees  and Costs Incurred in Defending the Litigation   Equitable Accounting   Unjust Enrichment  