Tag Archives: MERS

Texas Court Dismisses Action Claiming Fraud in Concealment, Fraud in Inducement, Quiet Title, & Rescission

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The court in deciding Diaz-Angarita v. Countrywide Home Loans, Inc., 2013 U.S. Dist. LEXIS 147091 (S.D. Tex. 2013) eventually dismissed the plaintiff’s claims.

Plaintiff asserted causes of action for “fraud in the concealment,” fraud in the inducement, to quiet title, and for rescission. Defendants moved to dismiss.

In claims one and seven, plaintiff sought a declaratory judgment that the substitute trustee’s deed was void as there was no valid notice of foreclosure and no appointment of a substitute trustee recorded, and because there was no assignment of the note and deed of trust recorded.

In claim two, plaintiff sought a declaratory judgment that Defendants had no standing to foreclose. Claim three asserted “fraud in the concealment” based on the allegation that Defendants failed to inform Schonacher, the original borrower, that the loan was securitized. Plaintiff’s fourth claim asserted a fraud in the inducement claim based on the allegation that defendants misrepresented their entitlement to foreclose and that they were the holder and owner of the note.

In claim five, plaintiff asserted a quiet title claim under Texas law. In claim six, plaintiff asserted a cause of action for rescission, which is a remedy and not a recognized cause of action. After categorically analyzing the plaintiff’s claims the court ultimately dismissed all seven of the plaintiff’s claims.

Although a court typically may grant the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the action with prejudice. In this case, the court found that the plaintiff, who is represented by counsel, filed a complaint based on key facts that were within his own knowledge. The court noted that it appeared unlikely that the plaintiff could amend to state viable claims for relief. As a result, the Court enters the dismissal without leave to amend and dismissed with prejudice.

California Court Finds That Defendants Complied With Statutory Mandate That the Notice of Default Include Sufficient Contact Information

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The court in deciding Wagma Safi v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 147005 (E.D. Cal. Oct. 9, 2013) ultimately granted defendant’s motion to dismiss.

In her first cause of action, the plaintiff asked for declaratory relief in the form of a judicial declaration that the plaintiff had the right to reinstate the loan for which the deed of trust was collateral, and that the defendants were required to provide her with the information necessary to do so.

The court dismissed the plaintiff’s first cause of action for declaratory relief. Despite defendants’’ alleged refusal to provide plaintiff with information regarding the loan, their compliance with the notice requirements of section 2924c(b)(1) provided plaintiff with sufficient information to exercise her right to reinstate the loan.

In her second cause of action, plaintiff asked for declaratory relief, contending that “Bank of America was the sole beneficiary under the deed of trust and that MERS had no authority to transfer or assign any rights under the deed” Plaintiff alleged that MERS signed the deed of trust “solely as nominee” and thus lacked the authority to assign its interest to a third party.

The court found that plaintiff made no showing that would call into question the validity of MERS’ assignment. The court found that she failed to state a claim and the second cause of action was dismissed.

Utah Court Dismisses HAMP, RICO, ECOA, RESPA & FDCPA Claims

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The court in deciding Cornia v. Countrywide Home Loans, Inc., 2013 U.S. Dist. LEXIS 149592 (D. Utah 2013) granted defendant’s motion to dismiss. Plaintiffs’ claims based on securitization, assignment to MERs, or “robo-signing,” were dismissed with prejudice.

Plaintiffs’ complaint sought to quiet title in the property in plaintiffs’ names. As the basis for this relief, plaintiffs claimed that defendant (1) engaged in predatory lending, mail fraud, and wire fraud, (2) violated the Real Estate Settlement  Procedures Act (“RESPA”), the Fair Debt Collection Practices Act (“FDCPA”), the Racketeer Influence and Corrupt Organizations Act (“RICO”), Homeowners Affordable Modification Program (“HAMP”), Equal Credit Opportunity Act (“ECOA”), the Utah Fraudulent Transfer Act and other statutes, regulations and unspecified consent orders, (3) fraudulently “robosigned,” the deeds of trust, and (4) securitized the loan.

Defendant moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”) and also pursuant to FRCP 8(a) and 9(a)(2) to dismiss all Plaintiffs’ claims. After considering both arguments, the court granted defendant’s motion.

Michigan Court Dismisses MCPA & HOEPA Claims

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The court in deciding Huff v. Fannie Mae, 2013 U.S. Dist. LEXIS 148053 (E.D. Mich. Oct. 2013) granted Bank of America’s motion to dismiss.

Plaintiff advanced a claim against defendants for quiet title (Count I) and alleged that defendants violated the Michigan Consumer Protection Act (“MCPA”) (Count II). In response plaintiff filed a motion to dismiss for failure to state a claim.

Defendants asserted that all of the plaintiff’s claims should be barred either by res judicata or by the expiration of the applicable statute of limitations. Additionally, defendants argued that plaintiff’s quiet title claim; claims under the MCPA, and HOEPA lacked the factual allegations required for the court to find in plaintiff’s favor.

Plaintiff asserted that his complaint adequately plead claims against defendants for quiet title and violations of state and federal law. The court ultimately found that plaintiff failed to state a claim upon which relief may be granted.

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.