Tag Archives: banks

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.

Northern District of California Court Dismisses Plaintiff’s Claims for Lack of Subject Matter Jurisdiction

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The court in deciding Murphy v. Bank of N.Y. Mellon, 2013 U.S. Dist. LEXIS 155923, 2013 WL 5883675 (N.D. Cal. Oct. 29, 2013) dismissed the plaintiff’s action without prejudice.

The plaintiff in this case brought this action against defendants [Bank of New York Mellon and MERS] for (1) violations of 18 U.S.C. § 1001; (2) violations of 18 U.S.C. § 1341; (3) violations of the Fair Debt Collection Practices Act (“FDCPA”); (4) violations of California’s Business and Professions Code Section 17200; (5) slander of title; (6) cancellation of void instruments; (7) quiet title; and (8) wrongful foreclosure. Compl., ECF No. 1.

The plaintiff’s complaint revolved around the main theory that the defendants lacked the authority to execute any foreclosure proceedings. After considering the plaintiff’s arguments, the court first concluded that the plaintiff’s action must be dismissed for lack of subject matter jurisdiction. Second, the court found that the federal claims in the operative complaint failed as a matter of law.

Michigan Court Finds MERS Had Capacity to Assign Mortgage, and Bank of New York Mellon Had Capacity to Accept MERS’s Assignment of the Mortgage

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The court in Maslowski v. Mortgage Elec. Registration Sys., 2013 U.S. Dist. LEXIS 155970, 2013 WL 5876608 (W.D. Mich. Oct. 31, 2013) found that dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate.

The plaintiff in this case [Maslowski] challenged a foreclosure and foreclosure sale. Essentially, the plaintiff claimed that the foreclosure proceedings were invalid because defendant MERS lacked capacity to assign the mortgage, and defendant Bank of New York Mellon lacked capacity to accept MERS’s assignment of mortgage.

The court rejected the plaintiff’s reasoning and noted that once the redemption period has expired, a plaintiff must meet a high standard for a federal court to invalidate or set aside a mortgage foreclosure by advertisement in Michigan. In particular, a plaintiff must show both fraud related to the foreclosure process itself and that he or she was prejudiced by the defendant’s failure to comply with the foreclosure statute’s requirements. The Court agreed with the lower court and found that the plaintiff had made no allegations or showing of prejudice, and that therefore, dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate.

Georgia Court Affirms That The Holder of a Deed to Secure Debt is Authorized to Exercise the Power of Sale in Accordance With the Terms of the Deed

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The court in deciding Sanford v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 156084, 2013 WL 5899238 (N.D. Ga. Oct. 31, 2013), found that each of the plaintiff’s arguments lacked merit and subsequently granted defendant’s motion to dismiss.

Plaintiff’s claim for wrongful foreclosure against BANA was based on three theories: (1) invalid assignment of the security deed; (2) improper notice under O.C.G.A. § 44-14-162.2; and (3) BANA’s lack of authority to foreclose as a non-secured creditor.

The court rejected plaintiff’s second and third arguments based on previous case law. The court cited a previous holding, noting that “the holder of a deed to secure debt is authorized to exercise the power of sale in accordance with the terms of the deed even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the deed.”

Furthermore, the court noted that the notice requirement is satisfied if the notice identifies the individual or entity with full authority to negotiate, amend, and modify the terms of the mortgage, regardless of whether that entity is a secured creditor, note holder, deed holder, or none of the above.

Massachusetts Land Court Finds Defendant Was Not Entitled to Service Member Relief Act

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The Massachusetts Land Court in deciding Suntrust Mortg., Inc. v. Forsberg, 2013 Mass. LCR LEXIS 159 (Mass. Land Ct. 2013) found that defendant (Alfred Forsberg) was not entitled to the protection of the Servicemembers Civil Relief Act, 50 U.S.C. §§ 510 et seq., at the time of foreclosure; and that service and publication of the notice naming SunTrust Mortgage LLC rather than SunTrust Mortgage Inc. did not invalidate the foreclosure sale.

Michigan Court Finds Assignment From MERS to Bank of New York Was Valid

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The United States District Court for the Western District of Michigan, Southern Division in Maslowski v. Mortg. Elec. Registration Sys., 2013 U.S. Dist. LEXIS 156299 (W.D. Mich. Sept. 26, 2013) granted defendants’ motion to dismiss.

The crux of plaintiff’s claim is that the state foreclosure proceedings should be invalidated because MERS lacked the capacity to assign the Mortgage and BONY could not accept the MERS’ Assignment of Mortgage. Defendants successfully sought dismissal pursuant to Fed. R. Civ. P. 12(b)(6).

The court reasoned even if the assignment from MERS to BONY was invalid, thereby creating a defect in the foreclosure process under M.C.L. § 600.3204(1)(d), the plaintiff had not alleged that he was prejudiced.

While plaintiff claimed various damages, which arose from the alleged fraudulent assignment, plaintiff did not allege that he suffered any prejudice due to the alleged fraudulent assignment. Plaintiff failed to show that he would be subject to liability from someone other than BONY (i.e., double liability) or that he would have been in any better position to keep the Property absent the assignment Accordingly, the court granted the defendants’ motion to dismiss.

The Superior Court of New Jersey, Appellate Division, Finds That Wells Fargo Had Standing to File Foreclosure Action

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The Superior Court of New Jersey, Appellate Division, in deciding Wells Fargo Bank, N.A. v. Garner, 2013 N.J. Super. LEXIS 2648, 2013 WL 5827033 (App.Div. Oct. 31, 2013) affirmed the lower court’s decision and dismissed motions to vacate the judgment of foreclosure.

Defendant argued that plaintiff, Wells Fargo Bank, N.A., lacked standing to file the foreclosure action. The defendant claimed that Wells Fargo did not own the note and mortgage on the date it filed the complaint. For the same reason, the defendant maintained that plaintiff improperly issued the notice of intent to foreclose.

The court found defendant was not entitled to relief under any subsection of Rule 4:50-1, and subsequently dismissed her complaint.