Editor: David Reiss
Brooklyn Law School

March 11, 2013

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

By Jeffrey Lederman

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:

“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.

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