Tag Archives: standing

Texas Court Finds That MERS Had Authority to Assign, Thus Defendant Could Enforce Note

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The plaintiff in Hines v. Wells Fargo Bank, N.A., 2013 U.S. Dist. LEXIS 153895 (S.D. Tex. Oct. 28, 2013), contended that defendants could not show an unbroken chain of title to enforce the note because MERS had no authority to assign the note to Deutsche Bank. However, the court eventually dismissed the plaintiff’s claims with prejudice.

The plaintiff sought a declaration from the court that any foreclosure of her home would be wrongful because none of the defendants had standing to foreclose. The plaintiff claimed that this was due to defects in the assignment and securitization process.

The plaintiff’s wrongful foreclosure allegations could be grouped into two categories: (1) MERS lacked authority to assign the deed and note from First NLC to Deutsche Bank; and (2) defendants did not comply with the securitization requirements of the applicable Pooling and Servicing Agreement (“PSA”). However, the court found that under recent Fifth Circuit case law, both of the plaintiff’s grounds for her claims failed. Thus, the court decided that her wrongful foreclosure claim must be dismissed.

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 Grants Defendant’s Motion to Dismiss Plaintiff’s TILA, RESPA, and GLBA Claims

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The court in deciding Hopkins v. Green Tree Servicing, LLC, 2013 U.S. Dist. LEXIS 155547, 2013 WL 5888086 (D. Md. Oct. 30, 2013) granted defendant’s motion to dismiss plaintiff’s TILA, RESPA, and GLBA claims.

Plaintiff referenced three statutes in their complaint: TILA, RESPA, and GLBA. Plaintiff alleged that the defendant violated TILA by “withholding certain disclosures and documentation.” Plaintiff also claimed that defendant violated RESPA by making “loan servicing errors.” Plaintiff, however, did not state which provisions of these statutes defendant violated. With regard to the GLBA, Plaintiff alleged neither how defendant violated the statute, nor which provision defendant violated.

Accordingly, the defendant alleged that the plaintiff’s complaint failed to meet the pleading requirements set forth in Fed. R. Civ. P. 8, and the complaint did not include any of the basic information necessary to be properly considered a complaint. Defendant also claimed that plaintiff’s complaint contained none of the information required by Rule 8(a). Specifically, with regard to Rule 8(a)(2)‘s requirement of “a short and plain statement of the claim showing the pleader is entitled to relief.”

The defendant claimed that the plaintiff’s complaint was nothing more than an unadorned collection of vague and conclusory statements, in which the plaintiff failed to plead any specific facts supporting the claim that Green Tree somehow violated the law. Additionally, defendant argued that plaintiff failed to identify a single provision of RESPA and TILA that Green Tree allegedly violated. The court agreed and dismissed the plaintiff’s complaint.

United States District Court Dismisses Plaintiff’s Wrongful Foreclosure, Wrongful Ejectment, and Quiet Title Claims

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The court in deciding Billete v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 155544, 2013 WL 5840105 (D. Haw. Oct. 30, 2013) dismissed with prejudice the portions of plaintiff’s actions, including: Count I (wrongful foreclosure, wrongful ejectment, and quiet title), Count III (fraud), and Count V (unfair and deceptive acts and practices) based upon the closure of Deutsche Bank’s trust, to which MERS purportedly assigned plaintiffs’ loan, and any other alleged violations of the Trust’s Pooling and Servicing Agreement (“PSA”).

The court granted in part and denied in part Deutsche Bank’s motion to dismiss plaintiff’s complaint. Specifically, the defendant’s motion was denied as to the portions of Amended Counts I, III, and V based on the assertion that the assignment was invalid because HCL was dissolved prior to the assignment.

Further, the defendant’s motion regarding the portions of the plaintiffs’ claims that alleged that the foreclosure was invalid because Deutsche Bank failed to comply with Haw. Rev. Stat. § 667-5 were denied without prejudice.

Northern District of California Court Dismisses Plaintiff’s Claims for Lack of Subject Matter Jurisdiction

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The court in deciding Murphy v. Bank of N.Y. Mellon, 2013 U.S. Dist. LEXIS 155923, 2013 WL 5883675 (N.D. Cal. Oct. 29, 2013) dismissed the plaintiff’s action without prejudice.

The plaintiff in this case brought this action against defendants [Bank of New York Mellon and MERS] for (1) violations of 18 U.S.C. § 1001; (2) violations of 18 U.S.C. § 1341; (3) violations of the Fair Debt Collection Practices Act (“FDCPA”); (4) violations of California’s Business and Professions Code Section 17200; (5) slander of title; (6) cancellation of void instruments; (7) quiet title; and (8) wrongful foreclosure. Compl., ECF No. 1.

The plaintiff’s complaint revolved around the main theory that the defendants lacked the authority to execute any foreclosure proceedings. After considering the plaintiff’s arguments, the court first concluded that the plaintiff’s action must be dismissed for lack of subject matter jurisdiction. Second, the court found that the federal claims in the operative complaint failed as a matter of law.

Georgia Court Affirms That The Holder of a Deed to Secure Debt is Authorized to Exercise the Power of Sale in Accordance With the Terms of the Deed

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The court in deciding Sanford v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 156084, 2013 WL 5899238 (N.D. Ga. Oct. 31, 2013), found that each of the plaintiff’s arguments lacked merit and subsequently granted defendant’s motion to dismiss.

Plaintiff’s claim for wrongful foreclosure against BANA was based on three theories: (1) invalid assignment of the security deed; (2) improper notice under O.C.G.A. § 44-14-162.2; and (3) BANA’s lack of authority to foreclose as a non-secured creditor.

The court rejected plaintiff’s second and third arguments based on previous case law. The court cited a previous holding, noting that “the holder of a deed to secure debt is authorized to exercise the power of sale in accordance with the terms of the deed even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the deed.”

Furthermore, the court noted that the notice requirement is satisfied if the notice identifies the individual or entity with full authority to negotiate, amend, and modify the terms of the mortgage, regardless of whether that entity is a secured creditor, note holder, deed holder, or none of the above.

Michigan Court Dismisses Plaintiff’s State Law Based Claims of Wrongful Foreclosure

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The United States District Court for the Eastern District of Michigan, Southern Division after considering the arguments in Ashford v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 156159, 2013 WL 5913411 (E.D. Mich. Oct. 31, 2013), dismissed the plaintiff’s complaint, with prejudice.

Plaintiff alleged claims against Defendant BANA for breach of contract (Count I), wrongful foreclosure/declaratory judgment (Count II), wrongful foreclosure (Count III), and violation of the Michigan Mortgage Brokers, Servicers, and Lenders Licensing Act, Mich. Comp. Laws § 445.1651 et seq. (Count IV). Defendant BANA filed the instant Motion.

Defendant argued that Plaintiff’s complaint should be dismissed because there is no valid basis to overturn the sale of the Property after the redemption period terminated. The Court agreed and found the rest of the plaintiff’s claims lacking or without merit.