Editor: David Reiss
Brooklyn Law School

January 7, 2014

California Court Dismisses Claim Due to lack of Standing and Failure to State a Claim

By Ebube Okoli

The court in deciding Britto v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 146978 (N.D. Cal. 2013) granted defendant’s motion to dismiss.

In this foreclosure action, defendants moved to dismiss the complaint for lack of standing and failure to state a claim. The court granted defendants’ motion to dismiss.

Plaintiffs alleged a host of violations during the securitization process. Realty Mortgage allegedly did not endorse or record a sale or assignment of the deed of trust to any entity and Countrywide Home Loans allegedly did not endorse or record a sale or assignment to BNY Mellon.

Plaintiffs also argued that BOA did not retain servicing rights to the deed of trust, BNY Mellon did not have any interest as legal trustee of the trust, and “no entity . . . had any valid lien or legal, recorded, documentable, standing on the plaintiff’s mortgage loan”

Moreover, defendant (MERS) was named beneficiary and nominee in the deed of trust prior to the securitization. In 2011, MERS transferred all of its beneficial interest under the deed of trust to BNY Mellon. Plaintiffs thus alleged that after the deed of trust and promissory note were securitized in 2006 and improper transfers of ownership to the deed of trust occurred, MERS’ nominal rights were extinguished. Thus, MERS could not have properly transferred its interests to BNY Mellon in 2011, and BNY Mellon cannot foreclose on the property.

The court rejected these arguments finding that the plaintiff’s argument failed.

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