Tag Archives: Downstream Litigation

Washington Court Dismisses Plaintiff’s State Consumer Protection Act Claim

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The court in deciding Massey v. BAC Home Loans Servicing LP, 2013 U.S. Dist. LEXIS 148402 (W.D. Wash. 2013) granted the defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.

Plaintiff Cindy T. Massey claimed that Northwest Trustee’s conduct in connection with the nonjudicial foreclosure proceedings on her property violated the Washington Consumer Protection Act (“CPA”). Ms. Massey had not filed an opposition to Northwest Trustee’s motion for summary judgment. The court considered Northwest Trustee’s motion, all submissions filed in support, the applicable law, and the balance of the record. After considering the arguments, the court eventually granted Northwest Trustee’s motion.

Supreme Court of Vermont Denied a Motion Requesting a Declaration That U.S. Bank Had Violated Vermont’s Consumer Fraud Act (CFA)

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The court in deciding Dernier v. Mortgage Network, Inc., 2013 VT 96 (Vt. 2013) reversed the trial court’s dismissal of the counts that alleged irregularities in the transfer of the note and mortgage unconnected to the PSA. The court also partially remanded certain claims.

Plaintiff borrowers brought suit against defendant bank in which they sought a declaratory judgment that defendant had no right to enforce either a note or a mortgage and that defendant had violated the Consumer Fraud Act (CFA).

Plaintiffs appealed the dismissal for failure to state a claim, of their action for (1) a declaratory judgment that defendant U.S. Bank National Association cannot enforce the mortgage and promissory note for the debt associated with plaintiffs’ purchase of their house based on irregularities and fraud in the transfer of both instruments, (2) a declaration that U.S. Bank has violated Vermont’s Consumer Fraud Act (CFA) by asserting its right to enforce the mortgage and note, and (3) attorney’s fees and costs under the CFA.

Plaintiffs also appealed the trial court’s failure to enter a default judgment against defendant Mortgage Electronic Registration Systems, Inc. (MERS). After considering the merits of both claims, the court ultimately affirmed in part and reversed in part.

Georgia Court Dismisses Wrongful Foreclosure Claim

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The court in deciding Bowman v. U.S. Bank Nat’l Ass’n, 2013 U.S. Dist. LEXIS 149660 (N.D. Ga. 2013) eventually granted the defendant’s motion to dismiss.

Plaintiff’s complaint was wide-ranging and repetitive, the gravamen of the complaint was a wrongful foreclosure claim which was premised on plaintiff’s allegations that: (1) Castle Rock Trustee was not the “secured creditor,” (2) the actual “secured creditor” was not identified to plaintiff in any notice, (3) the Castle Rock Trustee did not send notice of the November 6, 2012, foreclosure sale to plaintiff, (4) the assignments were invalid, and (5) the discharge of the underlying debt in a Chapter 7 bankruptcy case precluded foreclosure.

The court eventually held that plaintiff had fraudulently joined the LLC did not defeat diversity; the value of the property was the appropriate benchmark for the amount in controversy and there was no dispute that tax records value the property at $188,900. The court also found that plaintiff’s Chapter 7 discharge did not bar defendants from initiating foreclosure proceedings against the property nor did the Chapter 7 discharge render “false” defendants description that plaintiff had failed to pay the mortgage debt.

The court also found that plaintiff’s complaint failed to state a claim for wrongful foreclosure due to errors in the Foreclosure Notice where the Notice was sent to the property address, which was authorized under the statute, and plaintiff had not alleged that he requested the Notice be sent to an alternate address.

After considering the merits of both claims, the court ultimately agreed with the defendant and granted the defendant’s motion to dismiss, and dismissed with prejudice.

Michigan Court Dismisses Fraud & RESPA Claims

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The court in deciding Neroni v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 149190 ( E.D. Mich. 2013) eventually granted the defendant’s motion to dismiss.

Plaintiffs alleged claims against defendant [Bank of America, N.A.] for infringement of the Real Estate Settlement Procedures Act (“RESPA”) (Counts I–IV), common law fraud (Count V), common law silent fraud (Count VI), and common law breach of contract (Count VII).

Defendant responded by asserting that plaintiffs’ RESPA claims should be dismissed because (1) defendant had no legal obligation under RESPA to respond or, alternatively, (2) plaintiffs failed to plead any actual damages related to their RESPA claims. Defendant further asserted that plaintiffs had failed to adequately plead claims for fraud or breach of contract relating to defendant’s legal standing to foreclose on Plaintiffs’ Home.

After considering the merits of both claims, the court ultimately agreed with the defendant and granted the defendant’s motion to dismiss.

Court Dismisses Plaintiffs’ RESPA Claims Because Defendant Was Not Under Legal Obligation to Respond to Plaintiffs

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The court in deciding Neroni v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 149190 ( E.D. Mich. Oct. 17, 2013) granted defendant’s motion to dismiss plaintiffs’ complaint pursuant to F.R.C.P. 12(b)(6).

Plaintiffs alleged several claims in their complaint against Defendant for infringement of the Real Estate Settlement Procedures Act (“RESPA“) (Counts I–IV), common law fraud (Count V), common law silent fraud (Count VI), and common law breach of contract (Count VII).

Defendant asserted that plaintiffs’ RESPA claims should be dismissed because (1) defendant had no legal obligation under RESPA to respond or, alternatively, (2) plaintiffs failed to plead any actual damages related to their RESPA claims.

Defendant further asserts that plaintiffs have failed to adequately plead claims for fraud or breach of contract relating to defendant’s legal standing to foreclose on plaintiffs’ Home. After considering both sides’ arguments, the court agreed with the defendant’s reasoning and dismissed the case.

Plaintiffs Failed to Allege Facts Sufficient to Set Aside the Foreclosure Sale After the Expiration of the Statutory Redemption Period

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The court in deciding Glover v. JPMorgan Chase Bank, N.A., 2013 U.S. Dist. LEXIS 149354 (E.D. Mich. 2013) granted defendant’s motion to dismiss plaintiffs’ complaint pursuant to F.R.C.P. 12(b)(6).

All of the plaintiffs’ claims stemmed from the defendant’s purported refusal to modify the plaintiffs’ mortgage obligations due to “title issues.” However, the plaintiffs’ allegations did not support their claims because the parties entered into a modification agreement in October of 2010. Consequently, since the defendant did in fact grant the plaintiffs a loan modification, the court found that their claim lacked any factual support suggesting that the defendant was liable to plaintiffs.

Additionally, the court noted that the plaintiffs had failed to allege facts sufficient to set aside the foreclosure sale after the expiration of the statutory redemption period. Once the redemption period following a foreclosure of a parcel of real property has expired, the former owner’s rights in and title to the property are extinguished.

The court dismissed the plaintiff’s claims.

Michigan Court Finds That Defendants Were Not Acting Under Color of State Law

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The court in deciding El-Jabazwe v. Wells Fargo Home Mortg., 2013 U.S. Dist. LEXIS 149854 ( E.D. Mich. Oct. 18, 2013) denied the plaintiff’s motions and granted the defendants’ motions.

Plaintiff’s complaint listed the following Counts: 42 U.S.C. §1983 (Count I); 42 U.S.C. § 1985(3) (Count II); 42 U.S.C. § 1983: refusing or neglecting to prevent (Count III); Malicious Abuse of Process (Count IV); 18 U.S.C. §§ 241 and 242 (Count V); Intentional Infliction of Emotional Distress (Count VI); and Mail Fraud (Count VIII). The Court dismissed Plaintiff’s state-law claims (Counts IV and VI) on March 6, 2013.

The court found that the plaintiff’s argument under Fed. R. Civ. P. 12(c) rested solely on conclusory statements. The court found plaintiff’s motion for summary judgment is similarly deficient. The court noted that plaintiff wholly failed to meet the evidentiary burdens required under Fed. R. Civ. P. 12(c) and 56(a), and thus the court denied both of Plaintiff’s motions. Lastly, the court found that even when construing the facts in a light most favorable to the plaintiff, Counts I and III must be dismissed against the defendants, as they were not acting under color of state law.

Consequently, pursuant to E.D. Mich. L.R. 7.1(f)(2), the court ordered that the motions be resolved on the briefs submitted, without oral argument. The court then denied the plaintiff’s motions and granted the defendants’ motions.