Author Archives: Ebube Okoli

Washington Court Dismisses Plaintiff’s Truth in Lending Act (TILA) Complaint

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The court in deciding Pruss v. Bank of Am. Na, 2013 U.S. Dist. LEXIS 157286 (W.D. Wash. Nov. 1, 2013) found that the plaintiff’s claims were barred by time and or otherwise inadequately pleaded. Therefore, the court granted the defendants’ motion to dismiss.

Pruss, the plaintiff, alleged he had been injured financially by unfair and deceptive lending practices, and brought a complaint with five causes of action. The 5 causes included: (1) predatory lending; (2) violations of the Truth in Lending Act (“TILA”) and the Real Estate Settlement Procedures Act (“RESPA”); (3) slander of title; (4) breach of duty; and (5) Consumer Protection Act violations. Defendants subsequently filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), which the court granted.

In regards to the plaintiff’s predatory lending claim, the court noted that the plaintiff failed to present any case law or Washington state statute recognizing a claim for “predatory lending.” Further, because all of plaintiff’s other claims were time-barred or were deemed by the court as failing to state a claim, the court granted the defendants’ motion, thus dismissing the plaintiff’s claims.

Eastern District of California Finds That MERS Was Not Required to Register to do Business in California

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The Eastern District of California in deciding Bogdan v. Countrywide Home Loans, CIV-F-09-1055 AWI SMS (E.D. Cal. 2010), found that MERS was not required to register to do business in California. Based off of this finding the court subsequently dismissed fraud and unfair competition claims against MERS.

Plaintiff brought a litany of claims; (1) violation of Truth-in-Lending Act (“TILA”) against Decision One; (2) violation of California’s Rosenthal Fair Debt Collection Practices Act (“RFDCPA”) against Countrywide, Select Portfolio, Decision One, and Recontrust; (3) negligence against all Defendants; (4) violation of Real Estate Settlement Procedures Act (“RESPA”) against Countrywide, Select Portfolio, and Decision One; (5) breach of fiduciary duty against Morales, Home Sweet, Decision One, and Roman; (6) fraud against all Defendants; (7) violation of California’s Business & Professions Code § 17200 (“UCL”) against all Defendants ; (8) breach of contract agains Countrywide and Decision One; (9) breach of implied covenant of good faith and fair dealing against Countrywide and Decision One; and (10) wrongful foreclosure against Countrywide, Select Portfolio, and Recontrust.

Upon review the court reviewed the claims and subsequently dismissed them, finding that MERS was not required to

California Northern District Court Dismissed Plaintiff’s Claims Due to Flawed Reliance on Non-California Law

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The California Northern District Court in deciding Newbeck v. Washington Mutual Bank, et al., No. C 09-1599 CW (N.D. Cal., 2010), dismissed the plaintiff’s claims.

In reaching this conclusion, the California Northern District Court noted that plaintiff‘s reliance on non-California law was flawed.

The court further noted that the plaintiff, in using non-California law to analyze judicial foreclosures, was erroneous and misplaced. The court noted that the law cited also did not support a claim to set aside a non-judicial foreclosure.

Eastern District of California Found That MERS Was Not Required to Register to do Business in California

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The United States District Court, Eastern District of California, in deciding Bogdan v. Countrywide Home Loans, 09-1055 (E.D. Cal. 2010), found that MERS was not required to register to do business in California.

The Eastern District of California, after considering the plaintiff’s contentions, also dismissed the plaintiff’s fraud and unfair competition claims against MERS.

Eastern District of California Dismisses Plaintiff’s Wrongful Foreclosure Claims Due to Plaintiffs’ Lack of Tender

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The United States District Court, Eastern District of California in deciding the case of Small v. Mortgage Electronic Registration Systems, Inc., et al., No. 2:09-CV-0458 (E. D. Cal., 2010), concluded that dismissing the plaintiff’s wrongful foreclosure claims due to lack of tender by the plaintiffs was appropriate.

Plaintiffs filed their foreclosure action, naming three entities and two individuals as defendants, and alleged causes of action for unlawful foreclosure and unlawful eviction.

Defendants sought dismissal of plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that plaintiffs failed to state any cognizable claim. After considering the plaintiff’s claims, the court dismissed them due to lack of tender by the plaintiff.

California Court Found That MERS Held Interests in the Property and Rejected the Plaintiff’s Argument that MERS Lacked Standing

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The California court in deciding Nacif v. White-Sorensen, et al., NO. D056993. (San Diego Ct. Sup. Ct., 2009), determined that MERS held interests in the property and rejected the plaintiff’s argument that MERS had no standing because it was not qualified as a foreign corporation.

The court found that the under California law, MERS’s status as a “nominee” on a deed of trust means that it had the right to initiate foreclosure proceedings as the lender’s agent.

Court Finds That MERS, as the Beneficiary Under the Deed, Had the Authority to Assign its Beneficial Interest

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The United States District Court, Northern District California in Benham v. Aurora Loan Services, No. C-09-2059, (N.D.Cal. 2009) dismissed the plaintiff’s claims in the entirety.

The plaintiff brought a litany of claims. Among the plaintiff’s claims, was that MERS and violated the Rosenthal Fair Debt Collection Practices Act (“RFDCPA” or “Rosenthal Act”), Cal. Civ. Code 1788 et seq. FAC ¶¶ 62-65. Plaintiff also alleged negligence and fraud.

After considering the plaintiff’s contentions the court dismissed all of the plaintiff’s claims. The court found, that MERS as the beneficiary under the deed of trust had the authority to assign its beneficial interest under the deed of trust to assignee.