Tag Archives: motion to dismiss

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.

California Court Dismisses Show-Me-the-Note Claim

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The court in deciding Newman v. Bank of N.Y. Mellon, 2013 U.S. Dist. LEXIS 147562 (E.D. Cal. 2013) granted the defendant’s motion and dismissed the complaint.

Plaintiff (Newman) argued that he was not challenging the authorization to foreclose, nor was he requiring defendants to “produce the note.” Rather, he was challenging whether the correct entity is initiating foreclosure. He claimed that BONY did not have the right to enforce the mortgage because it did not own the loan, the note, or the mortgage.

Plaintiff alleged claims for declaratory relief, quasi-contract, California Civil Code § 2923.5, the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et. seq.) (“FDCPA”),California Business & Professions Code § 17200 (“UCL”), and negligence.

Defendants argue that dismissal is appropriate for several reasons. First, Newman could not bring an action to determine whether the person initiating the foreclosure was authorized to do so. Second, Newman’s allegations that the assignments of the deed of trust involved illegible signatures and “robo-signers” were irrelevant. Third, Newman had no standing to challenge any violations of the Pooling and Servicing Agreement (“PSA”).

After reviewing the arguments the court found that the claims for declaratory relief, quasi-contract, under Cal. Civ. Code § 2923.5, and under the Fair Debt Collection Practices Act (FDCPA) failed because any claims that were based on violation of the pooling and servicing agreement were not viable, the borrower was estopped from arguing that the assignment violated the automatic stay, and the allegations of fraudulent assignments were insufficient and implausible.

The negligence claim also failed. The claim under Cal. Bus. & Prof. Code § 17200 (UCL) failed because the complaint did not state a claim for violation of the FDCPA, Cal. Penal Code § 532f(a)(4) could not have formed the basis of a UCL claim, and no violation of the Security First Rule was apparent.

Michigan Court Holds That Plaintiffs Were Not Subject to Double Liabilty on Their Debt and Thus Lacked Standing

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The court in deciding Laues v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 147912 ( E.D. Mich. Oct. 15, 2013) granted the defendant’s motion and dismissed the plaintiff’s claim.

Plaintiffs Roy A. Laues and Kristin G. Laues (“the Laues”), preceded pro se, and filed a complaint claiming that the defendants fraudulently conveyed their property and improperly bifurcated their note and mortgage. The plaintiff’s sought to quiet title by extinguishing Defendants’ interest in the property. Defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). After considering the arguments the court ultimately granted the defendant’s motion.

Plaintiff alleged that MERS lacked authority to assign the mortgages, which would make the subsequent assignments invalid. MERS acted as nominee for lender AWL in assigning the mortgages. The court found that the plaintiffs were not a party to the assignment and as such was not threatened with double liability on the debt. Thus the court determined that they had no standing to challenge the assignment.

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 Plaintiff’s Claim that Foreclosure Proceedings Violated Mich. Comp. Laws §§ 600.3204(1) and (3) Unpersuasive

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The court in deciding Anderson v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 152765 (E.D. Mich. Oct. 24, 2013) dismissed plaintiff’s claims that foreclosure violated Michigan state law.

Plaintiff sought a declaratory judgment that foreclosure proceedings violated Mich. Comp. Laws §§ 600.3204(1) and (3). The basis of plaintiff’s claim was a challenge to the assignment of the mortgage from MERS to defendant. Plaintiff alleged that this assignment was invalid. Ultimately, the court found this argument has no merit.

Plaintiff contended that defendant did not have standing to foreclose on the property because the assignment of the mortgage from MERS to defendant was invalid. Plaintiff argued that TBW was no longer in business at the time MERS assigned the mortgage to the defendant. Therefore, as the plaintiff reasoned, the assignment was invalid. Additionally, plaintiff complained that the assignment was “robo-signed” and that it was insufficient to create a record chain of title.

The court concluded that the plaintiff was wrong. The court noted that the Michigan Supreme Court had made clear that, under Michigan law, a mortgage granted to MERS as nominee for lender and lender’s successors and assigns was a valid and assignable mortgage.

California Court Denies Petition for Preliminary Injunction on Foreclosure Proceeding

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The court in deciding Vazquez v. Select Portfolio Servicing, 2013 U.S. Dist. LEXIS 152454 (N.D. Cal. Oct. 23, 2013) denied the plaintiff’s petition for a preliminary injunction prohibiting defendants from proceeding with the foreclosure sale of his home.

Plaintiff alleged that MERS claimed to have a legal and effective lien on the property, and that it owned the note and mortgage without providing the plaintiff proof of those claims. Plaintiff asserted that he had the right to inspect the original note and deed of trust, pursuant to the Truth in Lending Act, 15 U.S.C. §§ 1601–1667f, and U.C.C. § 3-501.

The plaintiff further alleged that he had proof that the foreclosing entities did not have standing to foreclose. Id. Plaintiff asserted that defendants did not hold any instrument, note, or deed that would entitle them to foreclose.

The court denied the plaintiff’s verified petition for injunction, concluding that plaintiff failed to establish a likelihood of success on the merits of any of his potential claims.

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.