Tag Archives: standing

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.

California Court Found That MERS Held Interests in the Property and Rejected the Plaintiff’s Argument that MERS Lacked Standing

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The California court in deciding Nacif v. White-Sorensen, et al., NO. D056993. (San Diego Ct. Sup. Ct., 2009), determined that MERS held interests in the property and rejected the plaintiff’s argument that MERS had no standing because it was not qualified as a foreign corporation.

The court found that the under California law, MERS’s status as a “nominee” on a deed of trust means that it had the right to initiate foreclosure proceedings as the lender’s agent.

Court Finds That MERS, as the Beneficiary Under the Deed, Had the Authority to Assign its Beneficial Interest

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The United States District Court, Northern District California in Benham v. Aurora Loan Services, No. C-09-2059, (N.D.Cal. 2009) dismissed the plaintiff’s claims in the entirety.

The plaintiff brought a litany of claims. Among the plaintiff’s claims, was that MERS and violated the Rosenthal Fair Debt Collection Practices Act (“RFDCPA” or “Rosenthal Act”), Cal. Civ. Code 1788 et seq. FAC ¶¶ 62-65. Plaintiff also alleged negligence and fraud.

After considering the plaintiff’s contentions the court dismissed all of the plaintiff’s claims. The court found, that MERS as the beneficiary under the deed of trust had the authority to assign its beneficial interest under the deed of trust to assignee.

California Eastern District Court Notes There is no Requirement for the Production of the Original Note to Initiate a Non-Judicial Foreclosure Sale Under California Law

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The California Eastern District Court in Castaneda et al v. Saxon Mortgage Services, Inc. et al., No. 2:2009cv01124 (E.D. Cal. 2010) dismissed the plaintiff’s claim alleging wrongful foreclosure due to foreclosing party’s lack of note.

Plaintiffs Cesar and Suzzanne Castaneda filed this action against defendants Saxon Mortgage Services, Inc., plaintiffs’ action purported to state a claim for “wrongful foreclosure” against Saxon. Plaintiffs attempted to base this claim on California Commercial Code section 3301, alleging that Saxon was not in possession of the note, was not a beneficiary, assignee or employee of the entity in possession of the note, and was therefore not a “person entitled to enforce” the security interest on the property in accordance with section 3301. (SAC ¶¶ 187-89.)

The court however found that section 3301 did not govern non-judicial foreclosures, which is governed by California Civil Code section 2924.Further, the court noted there is no requirement for the production of the original note to initiate a non-judicial foreclosure sale under California law.

Southern District of California Holds that Production of Original Note is Not Required to Proceed with a Non-Judicial Foreclosure

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The United States District Court for the Southern District of California in Putkkuri v. Recontrust Co., Case No. 08cv1919 WQH (AJB) (S.D.Cal. 2009) granted the defendants’ motion to dismiss.

The plaintiff in this case demanded written proof of the defendants’ right to proceed in foreclosure, and the plaintiff claimed that no such proof had been offered. The plaintiff alleged that the defendants “engaged in a pattern and practice of utilizing the non-judicial foreclosure procedures of this State to foreclose on properties when they do not, in fact, have the right to do so.”

The plaintiff also alleged that in pursuing non-judicial foreclosure, defendants falsely represented that they had a right to payment under plaintiff’s residential loan, which was secured by the deed of trust. However, after considering the plaintiff’s claims the court dismissed them, holding that production of the original note is not required to proceed with a non-judicial foreclosure.