March 17, 2014
The court in deciding Koenig v. Bank of Am., N.A., 2013 U.S. Dist. (E.D. Cal., 2013) ultimately granted the defendant’s motion to dismiss.
Plaintiff Philip A. Koenig commenced this action against defendant Bank of America. Plaintiff alleged causes of action for violations of the Fair Debt Collections Practices Act (“FDCPA”) and the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Plaintiff also brought claim requesting declaratory relief against the defendant. Defendant filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). After considering the arguments, the court granted the defendant’s motion to dismiss.
The theory underlying the totality of plaintiff’s complaint was that defendant had no right to affect foreclosure on the property. The second cause of action was a request for declaratory relief. Plaintiff sought a declaration from the court indicating that the defendant did not have and had never had any interest in the property.
Plaintiff alleged that the entity that intended to foreclose on the property was not the lender that originated any mortgage and was not an assignee of any mortgagee or a duly appointed trustee, thus the entity lacked the legal authority to foreclose.
After consider the plaintiff’s arguments, the court rejected them and granted the defendant’s motion to dismiss.| Permalink