Editor: David Reiss
Brooklyn Law School

December 28, 2013

California Court Dismisses Show-Me-the-Note Claim

By Ebube Okoli

The court in deciding Newman v. Bank of N.Y. Mellon, 2013 U.S. Dist. LEXIS 147562 (E.D. Cal. 2013) granted the defendant’s motion and dismissed the complaint.

Plaintiff (Newman) argued that he was not challenging the authorization to foreclose, nor was he requiring defendants to “produce the note.” Rather, he was challenging whether the correct entity is initiating foreclosure. He claimed that BONY did not have the right to enforce the mortgage because it did not own the loan, the note, or the mortgage.

Plaintiff alleged claims for declaratory relief, quasi-contract, California Civil Code § 2923.5, the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et. seq.) (“FDCPA”),California Business & Professions Code § 17200 (“UCL”), and negligence.

Defendants argue that dismissal is appropriate for several reasons. First, Newman could not bring an action to determine whether the person initiating the foreclosure was authorized to do so. Second, Newman’s allegations that the assignments of the deed of trust involved illegible signatures and “robo-signers” were irrelevant. Third, Newman had no standing to challenge any violations of the Pooling and Servicing Agreement (“PSA”).

After reviewing the arguments the court found that the claims for declaratory relief, quasi-contract, under Cal. Civ. Code § 2923.5, and under the Fair Debt Collection Practices Act (FDCPA) failed because any claims that were based on violation of the pooling and servicing agreement were not viable, the borrower was estopped from arguing that the assignment violated the automatic stay, and the allegations of fraudulent assignments were insufficient and implausible.

The negligence claim also failed. The claim under Cal. Bus. & Prof. Code § 17200 (UCL) failed because the complaint did not state a claim for violation of the FDCPA, Cal. Penal Code § 532f(a)(4) could not have formed the basis of a UCL claim, and no violation of the Security First Rule was apparent.

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