Author Archives: Jeffrey Lederman

About Jeffrey Lederman

Jeffrey is a second year student at Brooklyn Law School. He received his B.A. from Colby College. He has completed legal internships with the Kings County Supreme Court Law Department, the Board of Elections for the City of New York, and is currently working in the law school’s Community Development Clinic. He also serves as a 1L Advisor.

Defendant’s Motion to Dismiss Plaintiff Homeowner’s Claims Granted. Claims Dismissed with Prejudice for Lack of Good Faith

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In Ruiz v. Suntrust Mortg., Inc., 2012 U.S. Dist. LEXIS 103239 (E.D. Cal. July 24, 2012), Plaintiff Florida Ruiz brought action against Sun Trust Mortgage, Inc. (SunTrust), MERS, Fannie Mae, and the Wolf Law Firm to challenge the foreclosure of her Bakersfield, California property.  Defendants SunTrust, MERS, and Fannie Mae filed a F.R.Civ.P. 12(b)(6) motion to dismiss the claims brought against them.

Plaintiff had taken out two loans from SunTrust secured by deeds of trust (DOT) in April 2007 with MERS identified as beneficiary under both. Following default and failure to cure, Plaintiff’s property was sold at foreclosure in March 2010, though the sale was rescinded. In August 2011, MERS assigned its interest in the first DOT to Sun Trust. In September 2011, the Wolf Law Firm, acting as trustee, recorded a second notice of default and substituted as trustee. The Wolf Law Firm recorded a notice of trustee’s sale of the property in February 2012.

There were many claims within the Plaintiff’s complaint, which are detailed below.

1) Wrongful Foreclosure Claims:

Failure to Tender: Plaintiff alleged that SunTrust, via the Wolf Firm, did not have authority to initiate foreclosure proceedings, because MERS was the proper beneficiary of the deed of trust. The court noted that to properly challenge a foreclosure proceeding, Plaintiff was required to tender the amount owed on her loan, “nothing short of the full amount due the creditor.” Rauer’s Law etc. Co. v. S. Proctor Co. 40 Cal.App. 524,525, 181 P. 71 (1919). As the record demonstrated that Plaintiff had defaulted, failed to cure, and no evidence was proffered to demonstrate a tender offer, Plaintiff’s attempt to stop foreclosure based on MERS’s alleged status was an “empty remed(y), not capable of being granted.”

Foreclosure Irregularities: Plaintiff alleged that foreclosure irregularities should preclude foreclosure. In California, a lender may proceed with non-judicial foreclosure when a default occurs and the deed of trust contains a power of sale clause. McDonald v. Smoke Creek Live Stock Co., 209 Cal. 231, 236-237, 286 P. 693 (1930). Per Cal Civ Code § 2924, a “trustee, mortgagee or beneficiary of authorized agents” can conduct the foreclosure. There is a presumption that a foreclosure “(is) conducted regularly and fairly.” Melendrez v. D & I Investment, Inc., 127 Cal.App.4th 1238, 1258, 26 Cal.Rptr.3d 413 (2005).

Robo-Signing: Specifically, Plaintiff claimed that MERS Vice President Mr. Mitchell “robo-signed” various documents. The court stated that Plaintiff failed to establish statutory violations such an action would violate, or how such an action, if it occurred, would prevent foreclosure.

Standing: Plaintiff also boldly claimed that Defendants did not have proper standing to foreclose, because the foreclosure sale of her property in March 2010 had divested Defendants of an interest in the property. As the March foreclosure was rescinded and Plaintiff claimed no other irregularities, Plaintiff’s standing allegations were unconvincing.

Securitization / Original Note: Plaintiff alleged that Defendants’ securitization of the loan was unlawful and thereby precluded foreclosure – an argument the court found unsupported by law and case history. Similarly, Plaintiff’s argument that Defendants needed the original note and joint possession of the note and deed of trust to foreclose was not substantiated by California law.

MERS Authority: Plaintiff claimed that MERS lacked authority to execute certain documents relating to the transfer of the mortgage note. The court stated that prejudice is required to prevent a wrongful foreclosure. “Prejudice is not presumed from mere irregularities in the process.” Meux v. Trezevant, 132 Cal. 487, 490, 64 P. 848 (1901). As Plaintiff failed to allege the prejudice she suffered from foreclosure, given her loan obligations, such a claim does not preclude foreclosure.

2) Fraud:

Plaintiff’s second claim alleged that Mr. Mitchell fraudulently signed a deed of trust claiming to be a MERS employee when employed by SunTrust. The elements of a fraud claim in California are: (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damage. Lazar v. Superior Court, 12 Cal.4th631, 638, 49 Cal.Rptr.2d 377 (1996). Fraud claims are also subject to the heightened pleading standard under F.R.Civ.P. 9(b). Plaintiff’s conclusory allegations not only failed to meet the burden of the heightened standard, but also lacked facts or specifics to support the basic elements of a fraud claim.

3) Slander of Title:

Plaintiff’s third claim alleged that Defendants slandered the title of her property, through preparing, publishing and recording documents including the notice of trustee’s sale and trustee’s deed, actions Defendants knew were improper. The court noted that Plaintiff failed to allege facts to support slander of title claim, because, among other reasons, the documents sent to defendant were not false given her default.

4) Quiet Title:

Plaintiff’s fourth claim, to quiet title, was also found by the court to be lacking. Quiet title claims first require plaintiff to allege that she is the rightful owner of the property. Kelley v. Mortgage Electronic Registration Systems, Inc., 642 F.Supp.2d 1048, 1057 (N.D. Cal. 2009). As the Plaintiff was in default and could not pay the amount owed, her claim to quiet title failed.

5) Declaratory Relief:

Plaintiff’s fifth claim was for declaratory relief. The court noted that since declaratory relief is not an independent claim, and no viable claim existed, relief could not be granted.

6) California Civil Code Violation:

Plaintiff’s sixth claim alleged violations of Cal Civ Code § 2932.5, resulting from Fannie Mae’s failure to record its interest in the deed of trust. The court ruled that a deed of trust assignment is not required for a judicial foreclosure, Plaintiff lacked standing to challenge the transfer, and Plaintiff offered no support for any claim under Cal Civ Code §2932.5.

7) Unfair Competition Claim:

Plaintiff’s seventh claim alleged various violations of California’s Unfair Competition Law, but failed to support such allegations with facts required for UCL relief. The court conveyed that any alleged damages suffered by the Plaintiff were “self-inflicted” as they resulted from her default.

8) Punitive Damages:

Plaintiff’s eighth claim, for punitive damages, failed because this assertion was unsupported by facts and nothing sufficient in the complaint alleged anything sufficient to impose punitive relief.

The court dismissed the complaint with prejudice and denied Plaintiff the right to amend. The court determined that Plaintiff brought this action in the absence of good faith solely to delay the foreclosure of her property, as evidenced by untrue material allegations of fact in its complaint. The court ordered Plaintiff to file papers with the court within a week to show why claims against the remaining defendant, the Wolf Law Firm, should not be dismissed. As Plaintiff did not do so, in Ruiz v Suntrust Mortg. Inc., CV F 12-0878 LJO BAM, 2012 WL 3150081 [ED Cal Aug. 1, 2012], the court dismissed the complaint against the Wolf Law Firm.

Plaintiff Denied Summary Judgment in Foreclosure Proceedings Due to Factual Dispute

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In Bayview Loan Servicing v Sanchez, CV 09 5004156 S, 2009 WL 1874180 [Conn Super Ct June 10, 2009], an unpublished opinion, Plaintiff Bayview Loan Servicing moved for summary judgment against non-appearing Defendant Pedro Sanchez in a foreclosure action. The town of Windham (Defendant), holder of two mortgages on the property, objected – claiming a factual dispute as to whether its mortgages were subordinate to Plaintiff’s mortgages.

In July 2006, Mr. Sanchez delivered an executed note to USMoney Source Inc. doing business as Soluna First (US Money) for a loan and secured the note through a mortgage delivered to MERS as nominee for USMoney. Plaintiff claimed that its mortgage was prior in right to two granted to Sanchez, recorded in 2001, via a subordination agreement.

The burden in summary judgment proceedings is on the moving party to prove both that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Curry v. Allan S. Goodman, Inc. 286 Conn. 390, 402, 944 A.2d 925 (2008).  Plaintiff submitted into evidence “… copies of the subordination agreement, certified copies of the note, the mortgage, the assignment of mortgage, and the default letter…”

Defendant claimed its mortgages were not subordinate to the mortgage being foreclosed by Plaintiff because it only agreed subordinate its mortgages to an entity known as “US Money Source DBA Soluna First Mortgage, its successors and assigns” and not to a mortgage “granted by Sanchez to MERS as a nominee for USMoney.”

The court described that the term nominee “connotes the delegation of authority to the nominee in a representative capacity only, and does not connote the transfer or assignment to the nominee of any property or ownership rights…” Mortgage Electronic Registration Systems, Inc. v. Rees, Superior Court, Judicial District of Ansonia-Milford, Docket no, CV 03 081773 (September 4, 2003, Curran, J.T.R.). As such, the court ruled that USMoney was the “true lender.”

However, as there was a factual discrepancy between the mortgage deed (listing lender as USMoney Source, Inc. d/b/a Soluna First) and the subordination agreement (listing mortgagee as US Money source dba Soluna First Mortgage), the court found that a genuine issue of material fact existed. Plaintiff failed to meet its burden and the court denied summary judgment.

Hawaii District Court Dismisses Homeowner Plaintiff Claims Against Defendants For Lack of Factual Support and Legal Authority

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In Phillips v BAC Home Loans Servicing, LP, CV 10-00272DAE-LEK, 2010 WL 5146433 [D Haw Dec. 13, 2010], Plaintiff Mark Phillips filed a complaint on May 7, 2010 against Defendants BAC Home Loans Servicing, MERS, and Does 1 – 20 relating to the mortgage loan and foreclosure proceedings surrounding his property in Kihei, Hawaii. On September 8, 2010, Defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted.

The court, pursuant to Local Rule 7.2(d) ruled upon the matter without a hearing and granted Defendants’ motion to dismiss.

The first four counts of Plaintiff’s complaint alleged various Truth in Lending Act (TILA) violations: “1) unfair trade practices involving noncompliance under TILA; 2) failure to obtain signed loan documents in violation of TILA; 3) failure to give a three-day cooling period in violation of TILA; 4) failure to give conspicuous writings in violation of TILA.”

The court ruled that Plaintiff’s claim for rescission, under 15 U.S.C. §1635, was time barred, as more than three years had lapsed since the consummation of the sale of property. Equitable tolling does not apply to rescission claims. The court also found that Plaintiff’s claim for damages and attorney fees, under 15 U.S.C. §1640, was time barred by a one-year statute of limitations; Plaintiff never alleged facts to support an equitable tolling claim.

The court also dismissed Plaintiff’s claim for recoupment of damages, under 15 U.S.C. §1640. The court noted that for Plaintiff’s claim to survive the one-year TILA statute of limitations, the recoupment claim had to be a “defense in an action to collect a debt.” 15 U.S.C §1640(e). Plaintiff not only failed to provide legal authority for claiming that a “nonjudicial foreclosure is an action to collect a debt within the meaning of TILA,” the district courts within the circuit had ruled to the contrary.

Plaintiff’s fifth claim alleged that Defendants were in violation of the Unfair and Deceptive Trade Practices Act, under Haw.Rev. Stat §480-2, §480-13. The court ruled that the plaintiff’s claims were conclusory allegations unsupported by facts and granted Defendants’ motion to dismiss.

Similarly, the court granted Defendants’ motion to dismiss Plaintiff’s sixth claim, for “declaratory judgment regarding fraud,” and eighth claim, for violations of the implied covenant of good faith and fair dealing, as Plaintiff failed to provide factual support or particularity in its claim.

The court also granted Defendants’ motion to dismiss Plaintiff’s seventh claim for injunctive relief, and eleventh claim for punitive damages, as the court reasoned that neither claim could stand alone.

The court dismissed Plaintiff’s ninth claim, for equitable estoppel, because the court was “unclear” as to how the Plaintiff wanted it to “utilize the doctrine of equitable estoppel” relating to Defendants’ allegedly fraudulent paperwork.

Plaintiff’s tenth claim alleged negligent infliction of emotional distress and intentional infliction of emotional distress (NIIED) and intentional infliction of emotional distress (IIED). The court noted that for the NIIED claim, Plaintiff never proffered a physical injury. With regard to the IIED claim, the court stated that Plaintiff failed to present evidence to support any element of an IIED claim. The court granted Defendants’ motion to dismiss these claims.

Lastly, Plaintiff made a series of additional claims, such as violations of the Equal Opportunity Act and the Gramm leach Bliley Act, for failing to provide documentation. Plaintiff did not provide any information detailing what provisions of these laws were violated. Plaintiff also asserted that Defendants could not enforce the mortgage and note provisions because they did not possess the original note, but provided no legal or evidentiary support for these claims.  The court granted Defendants’ motion to dismiss these claims.

The court granted Plaintiff 30 days to amend any claims not specifically time barred.

Plaintiff Homeowner’s Complaint and Temporary Restraining Order to Halt Foreclosure Sale Dismissed for Lacking Articulated Legal Claim and Vagueness

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In Sakala v BAC Home Loans Servicing, LP, CV 10-00578 DAE-LEK, 2011 WL 719482 [D Haw Feb. 22, 2011], Plaintiff Steven J. Sakala filed a pro se complaint and a motion to stay foreclosure against Defendants BAC Home Loan Servicing (BAC), Routh Crabtree Olsen Law Firm (RCO), and MERS on September 16, 2010.

Defendants BAC and MERS removed the action to federal court on October 6, 2010. BAC and MERS also filed a motion to dismiss on October 12th, 2011. Defendant RCO later joined this motion. On February 4, 2011, Plaintiff later filed a motion in opposition to Defendant’s motion to dismiss as well as a motion for order to emergency temporary restraining order to cancel trustee’s sale set for February 24, 2011.

MERS had assigned its interest in Plaintiff’s $910,000 mortgage to Bank of New York, who had moved to foreclose on Plaintiff’s property on September 10, 2009, with a foreclosure sale scheduled for February 24, 2011.

The Plaintiff’s difficult to read motion alleged that 1) as the Defendants do not have the original promissory note, they cannot enforce it; and 2) that MERS’s failure to notify Plaintiff of transfer of mortgage constitutes a TILA violation. The court, noting that the Plaintiff proceeded pro se, considered his untimely filed motion in opposition to dismiss, but disregarded new claims included therein because they were never included in his original complaint.

The Plaintiff’s five specific claims were as follows:

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“1) Defendant is not a note holder of due course; 2) Defendants do not have the original wet ink signature note, nor allonge 3) Defendants lack standing as creditor in this controversy; 4) Defendants have no standing to have the right of enforcement; 5) alteration, destruction and/or mutilation of documents.”

The court agreed with Defendants BAC and MERS that Plaintiff’s complaint was vague and conclusory, failing to comply with FRCP 8 and 12(b)(6) and thus necessitating dismissal. Throughout the various claims of the complaint, Plaintiff failed to state the basic, general elements of legal claims and failed to allege factual support for such claims. The Court granted this ruling without a hearing, pursuant to Local Rule 7.2(d).

The most noteworthy of Plaintiff’s claims was that Defendants were in violation of a TILA requirement mandating that if mortgage loan was sold or transferred to a third party, the new owner was required to notify the borrower within 30 days. 15 U.S.C.1641(g). Such a violation can result in civil liability. In this case, the third party that could be subject to this violation, Bank of New York Mellon, was not a party to the lawsuit, and thus was dismissed.

Plaintiff’s temporary restraining order motion (TRO) to prevent foreclosure sale was also denied. The court noted that injunctive relief is an “extraordinary remedy” only granted “upon a clear showing that plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc. 129 S.Ct. 365, 376 (2008). A party must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 365.

Since Plaintiff’s allegations failed to state a claim for which relief could be granted against the Defendants, plaintiffs TRO motion was denied.

The court granted BAC and MERS’s motion to dismiss, RCO’s motion for joinder, and dismissed the complaint against all defendants without prejudice with leave to amend within thirty days.

Hawaii District Court Dismisses Homeowner Plaintiffs Claims Against Defendants, But Breach of Fiduciary Duty Claims Against Brokers Survives

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In Mier v. Lordsman Inc., 2011 U.S. Dist. LEXIS 8484 (D. Haw. Jan. 26, 2011), Plaintiffs Carmelita and Clarence Mier sought in their complaint filed on October 6, 2010, declaratory and injunctive relief, damages, and rescission of their mortgage transaction. Lending Tree filed a motion to dismiss all counts on November 11, 2010. The court granted Lending Tree’s motion to dismiss with leave to amend and applied its decision to claims against all Defendants (excepting a breach of fiduciary duty claim against Lordsman and Fidelity).

Plaintiffs signed two mortgages relating to their Waipahu, Hawaii property, the first on March 14, 2006 for $412,500 from Lending Tree and the second from IndyMac on Feb 27, 2007 for $85,500.

Specifically, Plaintiffs alleged twelve separate counts against the various defendants, rarely distinguishing between them in their complaint. The court took a liberal approach to the Plaintiffs’ pleadings, as they were pro se.

The court ruled that Plaintiffs’ first two claims, for declaratory relief and injunctive relief, both failed to state a claim upon which relief can be granted because such “claims are remedies, not independent causes of action.” The court dismissed these claims against all defendants without leave to amend.

Plaintiffs’ third claim, asserted a contractual breach of the implied covenant of good faith and fair dealing, for withholding loan disclosures and offering a loan Plaintiffs were not qualified for. The court, following Best Place v. Penn Am. Ins. Co., 82 Haw. 120 (Haw. 1996), noted that while Hawaii recognizes bad faith torts in insurance contracts because they “require a contractual relationship between an insurer and an insured,” Hawaii has yet to recognize such a tort in mortgage loan agreements. The court added that a party cannot breach a covenant of good faith and fair dealing before a contract is formed. As the relevant claims pertain to pre-contract activity, the court dismissed these claims for all defendants without leave to amend.

Plaintiffs’ fourth claim alleges that the defendants were in violation of the Truth in Lending Act   (TILA) 15 U.S.C. § 1601 et seq.. Plaintiffs’ TILA claim for damages, under 15 U.S.C. § 1640(e) were time barred against all defendants. The court dismissed all claims against the defendants with leave to amend to submit evidence for equitable tolling. Plaintiff’s rescission claims under 15 U.S.C. § 1635(a) and 15 U.S.C. § 1635(f) were time barred and dismissed with respect to all defendants without leave to amend.

Plaintiffs’ fifth claim under RESPA alleges that the defendants’ loan fees were excessive and that hidden fees existed under 12 U.S.C. § 2607.  The court ruled that § 2607 does not prohibit gross billing for services performed. Furthermore, the court agreed with the defendant in suggesting claims may be time barred. The court dismissed Plaintiffs’ RESPA claims without leave to amend for claims under § 2607, as well as any claims under §2603 or §2604, but is otherwise free to amend

The court ruled that Plaintiffs’ sixth claim, rescission, was not an independent cause of action and it was dismissed with respect to all defendants without leave to amend.

Plaintiffs’ seventh claim alleges defendants are liable for Unfair and Deceptive Acts and Practices for their allegedly fraudulent business practices, under HRS § 480-2(a). The court noted that lenders owed no duty of care to borrower in standard loan transactions.  The court dismissed all charges and granted Plaintiffs leave to amend, but stated that Plaintiffs should consider statute of limitations concerns prior to refilling.

Plaintiffs’ eighth claim, for breach of fiduciary duty, claims that all defendants failed to advise Plaintiffs of their likelihood of default. While the court dismissed claims against the lenders, who owed no fiduciary duty to their borrowers, brokers and escrow depositories owe a fiduciary duty to their clients. All claims against defendants were dismissed with leave to amend, except as to Lordsman (a broker) and Fidelity (title and escrow company).

Plaintiffs’ ninth claim, for unconscionability under UCC-2-3202 (sic 2-302), was dismissed with respect to all defendants with leave to amend. A “stand alone” claim of unconscionability is improper and specific terms of the contract need to be identified.

Plaintiffs’ tenth claim alleged “predatory lending” violations, but as Hawaii has no common law claim for “predatory lending” the courts dismissed with leave to amend to all parties to state a cause of action based on specific illegal activities.

Plaintiff’s eleventh cause of action, to quiet title under HRS § 669-1(a), failed to allege sufficient facts about the interest of the parties involved. The court dismissed claims with respect to all parties with leave to amend.

Plaintiff’s twelfth and final cause of action, claimed MERS lacks standing as an “improper fictitious entity.” The court ruled that a claim stating a defendant lacks standing does not make sense, and dismissed the claim with leave to amend, as perhaps the Plaintiffs are claiming MERS could not foreclose because it is not a holder of the note.

Hawaii District Court Grants Defendants Motion for Summary Judgment against Plaintiff Homeowners for Foreclosure

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In Krakaeur v. Indymac, 2010 U.S. Dist. Lexis 132284 (2010), the United States District Court for the District of Hawaii granted motion for summary judgment of Defendants IndyMac Mortgage Services and OneWest Bank, entitling Defendants to a decree of foreclosure on the disputed property and a possible deficiency judgment.

On March 31, 2006, to build a home on their property, Plaintiffs Dean and Robbin Krakaeur executed and delivered a promissory note in favor of IndyMac Bank in the amount of $546,00. A mortgage was recorded on April 7, 2006 and assigned to OneWest as early as March 19, 2009. Plaintiffs made mortgage payments from August 2008 – April 2009. In September 2009, OneWest recorded a “notice of intent to foreclose under power of sale” for $636,274.15.

Initially Plaintiffs offered to settle with defendants for $749,000, conditioned upon Defendants sending original note to a third-party escrow agent.

Plaintiffs asserted five counts against Defendants:

Plaintiffs first allege that Defendants violated the Unfair Trade Practices Involving Non Compliance Under 15 U.S.C. § 1802 et. seq. for failing to disclose original documentation pertaining to the mortgage. As the court found this section of law is only found in the “US Code Chapter on Newspaper Preservation,” Defendants were granted summary judgment.

The Plaintiffs’ second and third claims allege Defendants violated TILA, 15 U.S.C. § 1601 et seq., by failing to give Plaintiffs three day right to rescind and other required documentation disclosures. Plaintiff’s rescission, 15 U.S.C. § 1635 and statutory damage, 15 U.S.C. § 1640, claims were both time barred. The court did not grant Plaintiffs’ equitable tolling protection under the statutory damage provision because Plaintiffs offered no evidence as to demonstrate why they failed to discover the alleged deceptive business practices earlier.

The Plaintiffs’ fourth claim alleged Defendants violated Hawaii’s Unfair and Deceptive Trade Practices Act H.R.S. §§ 480-2 and 480-13, which the court dismissed for failure to submit evidence to support their conclusory allegations.

The Plaintiffs’ fifth claim, alleging Unfair and Deceptive Acts in Violation of UCC 1-304, 3-302.C., 3-309. 8-102.17, 8-105, 8-107, 9-0203, were found by the court to be unintelligible and without evidentiary support for their claims, granted summary judgment.

The Defendants’ motion for summary judgment as to counterclaims for foreclosure were granted. Plaintiffs opposition rooted in the claim that Defendants are not in possession of the original note and mortgage, their failure to produce these items, and their failure to record assignment of mortgage until July 6, 2010.

As there was no genuine dispute that Defendants possessed the original note and the Hawaii courts have rejected “show me the note arguments” the court dismissed these first two motions.

The court also denied Plaintiff’s argument that Defendants lacked standing due to delayed recordation of ownership. Following IndyMac v. Miguel, 117 Haw. 506 (Haw. Ct. App. 2008), to “hold form over substance” would burden the court, especially considering that the same result would occur in this case, and no meaningful delay affected any parties’ rights, since OneWest perfected its rights soon after filing for foreclosure against the plaintiffs.

Lastly, there is no genuine issue of material fact regarding the existence of the terms of the note, no dispute as to whether Plaintiffs received the loan, and no dispute as to whether the Plaintiff neglected to cure the default on the mortgage, meeting the criteria necessary for summary judgment.

Hawaii District Court Dismisses Plaintiff Homeowners’ Complaint with Prejudice for Various Failures to Plead with Particularity

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In Gambing v. OneWest Bank, 2011 U.S. Dist. LEXIS 77924 (D. Haw. July 18, 2011), Plaintiffs Lorenzo and Lorie Gambing’s filed a twelve-count motion against OneWest Bank, MERS, and other parties to prevent the foreclosure of their property. OneWest and MERS’s motion to dismiss the complaint was granted with prejudice when the Plaintiffs failed to file opposition documentation and failed to appear at their hearing. The court granted Plaintiffs leave to file a request to reopen the case within 15 days.

The court noted that to survive a motion to dismiss, per Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (U.S. 2007), the Plaintiffs needed to do more than provide a laundry list of different causes of action. Rather, Plaintiffs should supply facts to support their claims with “plausible grounds for relief.” The court further noted that for allegations of fraud or mistake, the Plaintiffs are required to “state with particularity the circumstances constituting fraud and mistake.” Fed. R. Civ. P. 9(b). The court considered and ruled upon the myriad claims of the plaintiffs using these criteria as its starting point for analysis.

The court dismissed Plaintiffs’ claims for declaratory relief and injunctive relief to prevent foreclosure of their property because they failed to provide factual support for their conclusions relating to Defendant’s compliance with RESPA procedures or violations of relevant State and Federal laws.

The court similarly dismissed Plaintiffs’ claims for contractual breach of implied covenant of good faith and fair dealings, as they failed to allege any facts demonstrating defendants charged excessive fees or withheld disclosures and notices.

Plaintiffs’ TILA violation claims for both rescission, under 15 U.S.C. § 1635, and for damages under 5 U.S.C. § 1640  were both time barred. Claims for equitable tolling do not apply for rescission and plaintiffs never alleged any facts to support a claim that they could not have found TILA violations with reasonable diligence justifying equitable tolling.

Plaintiffs’ unfair and deceptive business practices claims were also dismissed because they only included conclusory statements and no factual support.

Plaintiffs’ claim for beach of fiduciary duty by the defendants was dismissed, as no fiduciary duty was owed to Plaintiffs beyond the “arms-length” lender-borrower relationship.

The Plaintiffs’ claim under UCC-2302 that the loan agreement was unconscionable, was dismissed, because the plaintiffs did not provide any evidence of contractual terms or behavior that support such a claim,

The Plaintiffs also alleged that the defendants engaged in a variety of predatory lending practices, but did not point to any state or federal law which these practices violate, The court dismissed these claims, as it noted that the court is not required to speculate as to which laws these would be.

Furthermore, Plaintiffs sought to quiet title against all the defendants, but the court dismissed these claims as well. The Plaintiffs in their filing did not recognize or isolate which defendant they were making claims against and the court was unable to determine the specific claims against each named party, and as such, Plaintiffs failed to property state a claim to quiet title.

Plaintiffs also made the bold claim that the assignment of mortgage to MERS was illegal and thereby gave MERS no standing to foreclose, a claim the court found confusing given that standing is required only for plaintiffs, not defendants and because no facts were supplied to support this claim.

Lastly, Plaintiffs alleged the defendants’ conduct constituted fraud, but much like all the other claims, these failed to meet the burden of Fed. R. Civ. P. 8 or the heightened requirements for fraud under Fed. R. Civ. P. 9(b).

Nonetheless, the court granted Plaintiffs’ leave to file a request to reopen the case within 15 days of the filing.