Tag Archives: MERS

Central District of California Court Finds Plaintiff Lacks Standing as There Was No “Injury in Fact”

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The United States District Court for the Central District of California in deciding Ellis v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 157173 (C.D. Cal. Oct. 28, 2013) concluded that plaintiff did not have standing to challenge defendants’ initiating foreclosure proceedings.

Plaintiff brought a complaint with a litany of claims. The claims included (1) dissemination of false advertising pursuant to 15 U.S.C. § 52; (2) violation of the Fair Debt Collection Practices Act (“FDCPA“), 15 U.S.C. § 1692 et seq.; (3) violation of the Real Estate Settlement Procedures Act (“RESPA“), [2] 12 U.S.C. § 2601 et seq.; (4) violation of California Civil Code §§ 2923.5 et seq., 2924 et seq., 2932.5, and 1095; (5) violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; (6) false advertising pursuant to Cal. Bus. & Prof. Code § 17500; and (7) Quiet Title.

On September 12, 2013, MERS filed a motion to dismiss. The court, as an initial matter, noted that plaintiff failed to explain how she had been injured by defendants’ conduct. The court also noted that the previous foreclosures were rescinded, and plaintiff did not allege a pending foreclosure proceeding. Thus, to have standing to bring her claims, the court noted, “the plaintiff must have suffered an ‘injury in fact.'” Accordingly, the court dismissed the plaintiff’s claims granting the defendant’s motion.

Michigan Court Concludes that the Servicer of the Loan Was Not in Violation of the Notice or Loan-Modification Requirements of Michigan’s Foreclosure-by-Advertisement Statute

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The Michigan court in deciding the home mortgage foreclosure case of Pettey v. CitiMortgage, Inc., 2013 U.S. App. LEXIS 22299, 2013 FED App. 0936N (6th Cir.), 2013 WL 5832535 (6th Cir. Mich. 2013), concluded that the servicer of the loan was not in violation of the notice or loan-modification requirements of Michigan’s foreclosure-by-advertisement statute, Mich. Comp. Laws § 600.3204, because the mortgagors failed to take action under the statute that would have triggered the servicer’s notice and loan-modification obligations.

In doing so, the court affirmed the district court’s rejection of the mortgagors’ unjust-enrichment and deceptive acts and unfair practices claims. Moreover, the court was persuaded that the district court’s grant of the servicer’s motion to dismiss and denial of the mortgagors’ motion for reconsideration were proper. The court relied on the reasoning handed down by the lower court in their opinion, with the caveat that defects or irregularities in a foreclosure proceeding resulted in a foreclosure that was voidable, not void ab initio.

Washington Court Dismisses Plaintiff’s Truth in Lending Act (TILA) Complaint

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The court in deciding Pruss v. Bank of Am. Na, 2013 U.S. Dist. LEXIS 157286 (W.D. Wash. Nov. 1, 2013) found that the plaintiff’s claims were barred by time and or otherwise inadequately pleaded. Therefore, the court granted the defendants’ motion to dismiss.

Pruss, the plaintiff, alleged he had been injured financially by unfair and deceptive lending practices, and brought a complaint with five causes of action. The 5 causes included: (1) predatory lending; (2) violations of the Truth in Lending Act (“TILA”) and the Real Estate Settlement Procedures Act (“RESPA”); (3) slander of title; (4) breach of duty; and (5) Consumer Protection Act violations. Defendants subsequently filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), which the court granted.

In regards to the plaintiff’s predatory lending claim, the court noted that the plaintiff failed to present any case law or Washington state statute recognizing a claim for “predatory lending.” Further, because all of plaintiff’s other claims were time-barred or were deemed by the court as failing to state a claim, the court granted the defendants’ motion, thus dismissing the plaintiff’s claims.

Eastern District of California Finds That MERS Was Not Required to Register to do Business in California

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The Eastern District of California in deciding Bogdan v. Countrywide Home Loans, CIV-F-09-1055 AWI SMS (E.D. Cal. 2010), found that MERS was not required to register to do business in California. Based off of this finding the court subsequently dismissed fraud and unfair competition claims against MERS.

Plaintiff brought a litany of claims; (1) violation of Truth-in-Lending Act (“TILA”) against Decision One; (2) violation of California’s Rosenthal Fair Debt Collection Practices Act (“RFDCPA”) against Countrywide, Select Portfolio, Decision One, and Recontrust; (3) negligence against all Defendants; (4) violation of Real Estate Settlement Procedures Act (“RESPA”) against Countrywide, Select Portfolio, and Decision One; (5) breach of fiduciary duty against Morales, Home Sweet, Decision One, and Roman; (6) fraud against all Defendants; (7) violation of California’s Business & Professions Code § 17200 (“UCL”) against all Defendants ; (8) breach of contract agains Countrywide and Decision One; (9) breach of implied covenant of good faith and fair dealing against Countrywide and Decision One; and (10) wrongful foreclosure against Countrywide, Select Portfolio, and Recontrust.

Upon review the court reviewed the claims and subsequently dismissed them, finding that MERS was not required to

Eastern District of California Found That MERS Was Not Required to Register to do Business in California

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The United States District Court, Eastern District of California, in deciding Bogdan v. Countrywide Home Loans, 09-1055 (E.D. Cal. 2010), found that MERS was not required to register to do business in California.

The Eastern District of California, after considering the plaintiff’s contentions, also dismissed the plaintiff’s fraud and unfair competition claims against MERS.

Eastern District of California Dismisses Plaintiff’s Wrongful Foreclosure Claims Due to Plaintiffs’ Lack of Tender

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The United States District Court, Eastern District of California in deciding the case of Small v. Mortgage Electronic Registration Systems, Inc., et al., No. 2:09-CV-0458 (E. D. Cal., 2010), concluded that dismissing the plaintiff’s wrongful foreclosure claims due to lack of tender by the plaintiffs was appropriate.

Plaintiffs filed their foreclosure action, naming three entities and two individuals as defendants, and alleged causes of action for unlawful foreclosure and unlawful eviction.

Defendants sought dismissal of plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that plaintiffs failed to state any cognizable claim. After considering the plaintiff’s claims, the court dismissed them due to lack of tender by the plaintiff.

United States Court of Appeals, First Circuit, Remands Lower Court’s Decision by Ordering a Hearing With Reasonable Notice on the Whether the Injunction Should be Continued

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After the decision handed down from Fryzel v. MERS, No. CA 10-352 (D.Ri., 2011) On appeal, the plaintiff-appellees in United States Court of Appeals, First Circuit, [(Fryzel, et. al. v. Mortgage Electronic Registration Systems, Inc., No. 12–1526 (D.Ri., 2013)] brought suit to prevent foreclosure or eviction, on the shared ground that ostensible assignments of their mortgagees’ legal titles are invalid, leaving the assignees without the right to foreclose.

By appeal and mandamus petition, the group of plaintiffs claimed error in the district court’s failure to provide notice and hearing before issuing successive orders imposing a stay in the nature of a preliminary injunction against foreclosure and possessory proceedings, and in its failure to set limits of time and cost when referring the mortgagors’ cases challenging foreclosure to a Special Master for mandatory mediation.

After considering the plaintiffs’ collective arguments, the First Circuit remanded with instructions to hold a prompt hearing with reasonable notice on the question whether the injunction should be continued, in belated compliance with Federal Rule of Civil Procedure 65(a)(1), and to establish specific limits of time and expense if the reference for mediation is to remain in effect.