Tag Archives: motion to dismiss

Kansas Court of Appeals Upholds Summary Judgment in Favor of Wells Fargo

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The Court of Appeals of Kansas in deciding Wells Fargo Bank, N.A. v. Richards, 2013 Kan. App. LEXIS 1160 (Kan. Ct. App. 2013) ultimately affirmed the lower court’s granting of summary judgment for Wells Fargo.

Plaintiff appealed the lower court’s decision granting summary to Wells Fargo Bank.

In this appeal, plaintiff asserted that (1) Wells Fargo lacked standing to bring the foreclosure action; (2) the lower court erred in holding Wells Fargo’s possession of the promissory note he signed was insufficient to enforce and foreclose the mortgage it secures; (3) Wells Fargo did not experience/suffer a default; (4) there was no contract because the note and mortgage were split; and (5) Richards was not afforded due process.

After examining the record and considering the arguments of the parties, this court held that there was no merit to any of Richards’ arguments. Consequently, this court affirmed the lower court.

 

 

Kansas Court of Appeals Finds Note Splitting Argument Lacked Merit

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The court in deciding Wells Fargo Bank, N.A. v. Richards, 2013 Kan. App. 1160 (Kan. Ct. App. 2013) ultimately upheld the lower court’s decision.

The plaintiff [Chester E. Richards, Jr.], appealed the lower court’s decision which granted summary judgment to Wells Fargo.

Plaintiff had asserted (1) Wells Fargo lacked standing to bring the foreclosure action; (2) the lower court erred in holding Wells Fargo’s possession of the promissory note he signed was insufficient to enforce and foreclose the mortgage it secures; (3) Wells Fargo did not experience/suffer a default; (4) there was no contract because the note and mortgage were split; and (5) Richards was not afforded due process.

The court examined the record and considered the arguments of both the parties and held that there was no merit to any of the plaintiffs’ arguments. Consequently, the court affirmed the decision from the lower court.

 

Nevada Court Dismisses TILA and Fraud Claims Brought Against Chase and MERS

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The court in deciding Leong v. JPMorgan Chase, 2013 U.S. Dist. LEXIS 144678 (D. Nev. 2013) ultimately granted the defendant’s motion to dismiss.

This action arose out of the foreclosure proceedings initiated against the property of the plaintiff Teresa Leong. Defendants Chase and MERS filed a motion to dismiss plaintiff’s action. Plaintiff alleged two causes of action, one of which was fraud: “wrongful use of a non existent co-borrower” and the other was “fraudulent documentation.” Plaintiff also requested, “to see her original documents, note and deed.”

After considering the plaintiff’s contentions, the court found that the plaintiff failed to allege that she was current on her mortgage payments or had otherwise satisfied the conditions and terms under the deed of trust. Accordingly, the court found that plaintiff failed to state a legally cognizable claim for wrongful foreclosure, and the action must be dismissed.

Plaintiff also insisted that defendant failed to provide the original note, plaintiff cited Nev. Rev. Stat. § 107.086(4). However, the court found that the defendants correctly point out that the plaintiff failed to cite to any authority that required defendants to produce the original note. As such, this cause of action was dismissed with prejudice.

Plaintiff lastly alleged that defendant failed to comply with the Federal Truth in Lending Act (“TILA”), codified at 15 U.S.C. § 1601 et seq. TILA contained many provisions concerning accurate and meaningful credit disclosures. However, the court found that the plaintiff’s complaint did not specify any particular provision with which defendant failed to comply. Accordingly, plaintiff provided only a conclusory statement as support for a vague TILA claim, and to the extent that this cause of action is alleged, it must be dismissed.

 

Nevada Court Dismisses Show-me-the-Note Action Brought Against Chase and MERS

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The court in Leong v. JPMorgan Chase, 2013 U.S. Dist. LEXIS 144678 (D. Nev. Oct. 7, 2013) granted defendants’ motion to dismiss.

This action arose out of the foreclosure proceedings initiated against the property of pro se Plaintiff Teresa Leong. Pending before the court was a motion to dismiss filed by defendants JPMorgan Chase Bank, N.A. (“Chase”) and Mortgage Electronic Registration Systems, Inc. (“MERS”) (collectively, “Defendants”). Plaintiff continued to request “to see my original documents Note and Deed.”

Plaintiff insisted that defendant failed to provide the original note. The court found that the only possibly relevant Nevada statute requiring the presentation of the original note or a certified copy is at a Foreclosure Mediation. Nev. Rev. Stat. § 107.086(4). Moreover, the court noted that it treats copies in the same way as it treats originals: “a duplicate is admissible to the same extent as an original.” Nev. Rev. Stat. § 52.245.

The court noted that the defendants correctly point out that plaintiff failed to cite to any authority that requires defendants to produce the original note, and defendants additionally provided non-binding legal authority to the contrary. As such, the court dismissed this cause of action with prejudice.

California Court Dismisses Action Brought Against MERS and Aurora Loan Services for Wrongfully Initiated Foreclosure Proceedings

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The court in Morgan v. Aurora Loan Servs., LLC, 2013 U.S. Dist. LEXIS 145623 (C.D. Cal. 2013) granted defendants’ motion to dismiss plaintiff’s claims. The court concluded that the “allegation of other facts consistent with the challenged pleading could not possibly cure the deficiencies” of either the first or third through tenth claims, thus the court dismissed these claims with prejudice.

Plaintiff Cherie J. Morgan filed this action against Aurora Loan Services, LLC (“Aurora”), Mortgage Electronic Registration Systems, Inc. (“MERS”), and Does 1-100, inclusive (collectively, “defendants”).

Plaintiff principally complained that defendants wrongfully initiated foreclosure proceedings against her property and that a subsequent trustee’s sale was invalid because defendants lacked any interest in the property. Plaintiff’s claim asserted the following claims for relief: (1) lack of standing; (2) breach of written contract; (3) intentional misrepresentation; (4) negligent misrepresentation; (5) cancellation of instruments; (6) quiet title; (7) promissory estoppel; (8) breach of implied covenant of good faith and fair dealing; (9) premature and unlawful filing of notice of default; and (10) unfair business practices under Cal. Bus. & Prof. Code §§ 17200 et seq. (“UCL”).

Defendants moved to dismiss plaintiff’s SAC. Plaintiff opposed the motion, but after considering the parties’ arguments, the court granted defendant’s motion to dismiss.

 

 

Tennessee Court Finds Allegation of Fraud Was Pled With Sufficient Particularity Pursuant to Tenn. R. Civ. P. 12.03

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The court in deciding Zhong v. Quality Loan Serv. Corp., 2013 U.S. Dist. LEXIS 145916 (W.D. Wash. 2013) reversed the lower court’s ruling dismissing the mortgagor’s intentional misrepresentation claim on the pleadings pursuant to Tenn. R. Civ. P. 12.03.

Plaintiff defaulted on her mortgage and defendants advised plaintiff of their plan to foreclose. Plaintiff subsequently sought an injunction and a declaratory judgment. The trial court entered a temporary restraining order preventing foreclosure, which it dissolved after granting defendants’ motion for judgment on the pleadings. Plaintiff appeals the trial court’s grant of defendants’ motion for judgment on the pleadings.

This court ruled that the lower court erred in dismissing the mortgagor’s intentional misrepresentation claim on the pleadings pursuant to Tenn. R. Civ. P. 12.03 because her allegation of fraud stemming from an intentional misrepresentation were pleaded with sufficient particularity.

Moreover, because the amended complaint alleged particular intentional misrepresentations of a material fact, that signatories possessed authority to execute the deed of trust, as well as the mortgagor’s detrimental reliance upon such, the claim satisfied the heightened requirements of Tenn. R. Civ. P. 9.02. Further, this court found that the mortgagor’s claim was not correctly dismissed based upon the statute of limitations, Tenn. Code Ann. § 28-3-105, because it was at least plausible that the mortgagor was unable to discover the alleged intentional misrepresentation until the mortgagees commenced foreclosure against her.

New York Court Finds Chase Had the Right to Enforce the Loan

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The court in deciding Beka Realty LLC v JP Morgan Chase Bank, N.A., 41 Misc. 3d 1213(A) (N.Y. Sup. Ct. 2013) ultimately granted Chase’s motion for an order dismissing plaintiff’s claims.

Beka Realty LLC (plaintiff) brought an action against defendant JP Morgan Chase Bank, N.A. (Chase) for a judgment declaring that the enforcement or foreclosure of the mortgage held by Chase is barred on the claimed basis that Chase lacked ownership of the mortgage, cancelling the mortgage, and awarding it damages for fraud, negligent misrepresentation, and unjust enrichment.

Chase moved, pursuant to CPLR 3211 (a) (1) and (7) and 3016 (b), for an order dismissing plaintiff’s complaint in its entirety, and awarding it reasonable attorneys’ fees, costs, and expenses. The court granted this motion, moreover, the court found that the plaintiff’s five causes of action all failed as a matter of law because each of them was predicated on the unfounded assertion that Chase did not have the right to enforce the Loan. Since the court found that the unrefuted documentary evidence flatly contradicted this assertion, the court found that none of these causes of action stated legally viable claims.

Accordingly Chase’s motion for an order dismissing plaintiff’s complaint in its entirety was granted, and it was declared that Chase is entitled to enforce the Loan.