Tag Archives: foreclosure

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.

Court Dismisses Plaintiff’s Wrongful Foreclosure, Fraud, Quiet Title and Declaratory Relief Claims

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The plaintiff in Cuddeback v. Bear Stearns Residential Mortg. Corp., 2013 U.S. Dist. LEXIS 152989 (W.D. Wash. Sept. 10, 2013) brought claims against Bear Stearns, EMC, Wells Fargo (collectively, “Defendants”) for wrongful foreclosure, fraud, quiet title and declaratory relief pursuant to Washington law. The plaintiff also sought damages arising from violations of the Real Estate and Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2607, and the Truth in Lending Act (“TILA”), 15 U.S.C. § 1641(g).

Defendants filed a motion to dismiss plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(6). The court granted the defendants’ motion to dismiss as they found that plaintiff failed to state a claim for which relief could be granted.

California Court Dismisses Plaintiffs Suit Brought for Wrongful Foreclosure Defendants Bank of America & Freddie Mac

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The court in deciding Bergman v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 153173 (N.D. Cal. Oct. 23, 2013) dismissed the plaintiff’s complaint.

Most of plaintiffs’ claims were based on one of two legal theories.

First, the plaintiffs based their arguments on the alleged sale of the DOT from Bank of America to the Securitized Trust, the plaintiffs argued that the sale divested Bank of America of its beneficial interest in the DOT. Plaintiff also alleged that because the DOT was never properly assigned, the Securitized Trust also did not hold the beneficial interest. They alleged that, accordingly, the true beneficiaries are the Securitized Trust’s certificate holders.

Second, the plaintiffs based their argument on the alleged involvement of PK Properties in illegal bid-rigging activities, including activities that allegedly tainted the trustee’s sale for the Property.

The court, after considering the arguments provided by the plaintiff, granted the defendants’ motion and dismissed the complaint.

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.

Supreme Court of New York Grants Plaintiff’s Motion to Dismiss and Denied Defendant’s Cross-Motion

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The court in deciding Bank of N.Y. Mellon v Arthur, 2013 N.Y. Misc. LEXIS 4875, 2013 NY Slip Op 32625(U) (N.Y. Sup. Ct. Oct. 23, 2013) granted the plaintiff’s motion to dismiss and denied the defendant’s [Arthur] cross-motion.

The Plaintiff commenced a foreclosure of a mortgage. Plaintiff moved for an order: (i) pursuant to CPLR § 3212 granting summary judgment on its foreclosure claim; (ii) pursuant to CPLR § 3211(b) and § 3212, dismissing with prejudice each of the affirmative defenses and counterclaims raised by the defendant in his answer.

The court noted that in a mortgage foreclosure case, “a plaintiff may establish a prima facie right to foreclosure by producing the mortgage documents underlying the transaction and undisputed evidence of nonpayment.” Thus, once the plaintiff established its right to foreclosure, the burden is on the defendant “to raise a triable issue regarding his affirmative defenses and counterclaims in opposition to foreclosure.”

Here, the plaintiff made out its prima facie by producing undisputed affidavits. The court found that Arthur’s response failed to produce competent evidence of any defense to raise an issue of fact. Thus, the court eventually granted the plaintiff’s motion and denied Arthur’s cross-motion.

United States District Court Dismisses Plaintiff’s Intentional Misrepresentation and Negligent Misrepresentation Claims

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The court in Hoffman v. Goldman, Sachs & Co., 2013 U.S. Dist. LEXIS 155092, 2013 WL 5797623 (D. Nev. Oct. 28, 2013) dismissed both of the plaintiff’s intentional misrepresentation and negligent misrepresentation claims.

Plaintiffs asserted two claims in their complaint: intentional misrepresentation and negligent misrepresentation. In regards to the first claim, the court found that the plaintiffs’ claim for the misrepresentation failed because it was not pled with specificity as required by Rule 9(b). Nowhere in the complaint did plaintiffs allege who made the fraudulent statements, when the statements were made, or where they were made.

Plaintiffs failed to allege the specific content of the fraudulent statements—their allegations include only broad generalizations. Plaintiffs also failed to identify precisely what reliance they placed on the “misrepresentations” such that plaintiffs are entitled to damages or equitable relief.

Lastly, the court found that the plaintiffs also nakedly assert a claim for “negligent misrepresentation,” and that the claim suffered from the same deficiencies as the first claim.