Tag Archives: assignment

Court Decides That Alleged Defects in Assignments Did not Give Rise to Claims Under the Washington Consumer Protection Act

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The court in deciding Babrauskas v. Paramount Equity Mortg., 2013 U.S. Dist. LEXIS 152561 (W.D. Wash. Oct. 23, 2013) dismissed the plaintiff’s complaint.

Plaintiff alleged that Paramount’s loan origination practices, MERS’ involvement in the original deed of trust, and the subsequent defects in assignments gave rise to claims under the Washington Consumer Protection Act (“CPA”) and/or the Washington Deed of Trust Act (“DTA”).

Plaintiff also asserted claims of fraud, breach of the covenant of good faith and fair dealing, and quiet title. Defendants sought dismissal of all of plaintiff’s claims under Rule 12(b)(6).

The court found that the plaintiff’s insistence that MERS’ involvement somehow strips subsequent holders of beneficiary status was simply incorrect. With regards to the representation regarding MERS’ status as beneficiary, the court found that the plaintiff had not alleged that he relied on that representation or that he suffered damages caused by MERS’ misrepresentation.

The court found that the plaintiff had not, therefore, asserted a viable cause of action under the CPA regarding the representation that MERS was the beneficiary. Further, the plaintiff’s claims under the DTA therefore failed as a matter of law. Plaintiff also had failed to allege facts that gave rise to a plausible claim that defendants could be liable for a breach of the covenant of good faith and fair dealing. Having failed to allege facts raising a plausible inference that plaintiff had satisfied the loan obligation or was otherwise entitled to free and clear title to the property, plaintiff’s quiet title claim was deemed defective.

California Court Finds That the Plaintiff’s Complaint Should be Dismissed as Defendant Owed no Fiduciary Duty

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The court in deciding Lawrence v. Sadek, 2013 U.S. Dist. LEXIS 153074 (C.D. Cal. Oct. 21, 2013) dismissed the plaintiff’s claims.

The plaintiff’s complaint alleged that defendant breached a fiduciary duty by allowing the plaintiff to enter the loan agreement knowing that she would default.

Plaintiff claimed, defendant owed her a fiduciary duty because Quick Loan, plaintiff’s lender, was a “client” of Peterson’s employer and co-defendant ETS Services. Peterson in response, argued that (1) she did not owe a fiduciary duty to plaintiff because neither she nor her employer ETS Services were parties to the loan transaction, and (2) even if she or her employer were parties to the transaction, lenders generally do not owe a fiduciary duty to borrowers.

Defendant Peterson filed a motion to dismiss pursuant to FRCP 12(b)(6). The Court held a hearing and after considering the parties’ arguments, the court found that the plaintiff’s claim should be dismissed because Peterson did not owe a fiduciary duty to plaintiff.

Texas Court Finds That MERS Had Authority to Assign, Thus Defendant Could Enforce Note

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The plaintiff in Hines v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS 153895 (S.D. Tex. Oct. 28, 2013), contended that defendants could not show an unbroken chain of title to enforce the note because MERS had no authority to assign the note to Deutsche Bank. However, the court eventually dismissed the plaintiff’s claims with prejudice.

The plaintiff sought a declaration from the court that any foreclosure of her home would be wrongful because none of the defendants had standing to foreclose. The plaintiff claimed that this was due to defects in the assignment and securitization process.

The plaintiff’s wrongful foreclosure allegations could be grouped into two categories: (1) MERS lacked authority to assign the deed and note from First NLC to Deutsche Bank; and (2) defendants did not comply with the securitization requirements of the applicable Pooling and Servicing Agreement (“PSA”). However, the court found that under recent Fifth Circuit case law, both of the plaintiff’s grounds for her claims failed. Thus, the court decided that her wrongful foreclosure claim must be dismissed.

Michigan Dissmisses Plaintiff’s Action Seeking to Set Aside Sale of His Residence

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The court in deciding Liddell v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 153897 (E.D. Mich. Oct. 28, 2013) granted the defendants’ motion to dismiss plaintiff’s complaint.

Plaintiff commenced the action seeking to set aside a sheriff’s sale of his residential property. Plaintiff’s Complaint raised the following claims: Count I, Fraudulent Misrepresentation; Count II, Estoppel; Count III, Negligence; Count IV, Violation of Michigan’s Occupational Code, Mich. Comp. Laws §§ 339.915 and .918; and Count V, Violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k.

Defendants maintained that all of plaintiff’s claims challenging the foreclosure sale were subject to dismissal because plaintiff failed to redeem the property within the redemption period. Defendants further argued that even if plaintiff’s claims were not barred by the expiration of the statutory redemption period, his claims were subject to dismissal because he failed to state any valid claims upon which relief can be granted.

The Court agreed that plaintiff’s complaint failed to allege any claims upon which relief may be granted.

Texas Court Dismisses Plaintiff’s Wrongful Foreclosure Action, as MERS was Authorized to Assign the Note and Deed of Trust to Defendant

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The court in deciding Perez v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 153947, 2013 WL 5781208 (W.D. Tex. Oct. 25, 2013) dismissed the plaintiff’s wrongful foreclosure.

Plaintiff alleged that the defendant’s foreclosure action was wrongful. Also plaintiff alleged that the deed of trust was not enforceable due to that lack of ownership in the note by the defendants.

Plaintiff asserted that First NLC, rather than MERS, was the only party authorized to assign the note and deed of trust to the defendant; she asserted that assignment is only complete upon recording, and recording has not been effectuated; and she asserted that the deed of trust and the transfer of lien document were fraudulently created, and therefore ineffective as a security instrument and assignment, respectively. Additionally, plaintiff asserted that the note and deed of trust were not enforceable because they had been split.

Defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant argued that plaintiff has not stated a claim for wrongful foreclosure because she has not alleged that her home had been foreclosed.

Ultimately, the court rejected the plaintiff’s claims and the broader legal theories she asserted; however, the court granted the plaintiff leave to amend to allow her an opportunity to assert a valid claim.

United States District Court Dismisses Plaintiff’s Wrongful Foreclosure, Wrongful Ejectment, and Quiet Title Claims

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The court in deciding Billete v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 155544, 2013 WL 5840105 (D. Haw. Oct. 30, 2013) dismissed with prejudice the portions of plaintiff’s actions, including: Count I (wrongful foreclosure, wrongful ejectment, and quiet title), Count III (fraud), and Count V (unfair and deceptive acts and practices) based upon the closure of Deutsche Bank’s trust, to which MERS purportedly assigned plaintiffs’ loan, and any other alleged violations of the Trust’s Pooling and Servicing Agreement (“PSA”).

The court granted in part and denied in part Deutsche Bank’s motion to dismiss plaintiff’s complaint. Specifically, the defendant’s motion was denied as to the portions of Amended Counts I, III, and V based on the assertion that the assignment was invalid because HCL was dissolved prior to the assignment.

Further, the defendant’s motion regarding the portions of the plaintiffs’ claims that alleged that the foreclosure was invalid because Deutsche Bank failed to comply with Haw. Rev. Stat. § 667-5 were denied without prejudice.

California Court Determines Plaintiff’s Claims are Barred by Res Judicata

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The court in deciding Maxwell v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 155930, 2013 WL 5882457 (N.D. Cal. Oct. 30, 2013) concluded that the plaintiff’s claims were barred by res judicata and therefore granted [with prejudice] the defendant’s motion to dismiss.

Plaintiffs brought this action against defendants Deutsche, OneWest, and MERS. Plaintiff alleged various violations of California and federal consumer protection statutes. The plaintiff asserted a claim for an invalid transfer of a trust deed, and sought declaratory and injunctive relief.

The defendants moved to dismiss the proceedings, arguing that the claims were barred by res judicata. The court, after considering the evidence presented, concluded that the plaintiff’s claims were barred by res judicata. Accordingly, the court granted the defendant’s motion to dismiss.