Jones v. ReconTrust Company NA et al
Filing
76
ORDER - IT IS ORDERED GRANTING the Bank's motion to strike sur-reply (doc. 74 ), DENYING plaintiff's motion to compel agency (doc. 63 ), and DENYING plaintiff's motion to compel production of documents (doc. 51 ). IT IS FURTHER ORD ERED GRANTING the Bank's motion for summary judgment (doc. 60 ), and DENYING plaintiffs motion for summary judgment (doc. 69 ). The clerk shall enter final judgment. (See document for full details). Signed by Senior Judge Frederick J Martone on 6/19/13. (LAD)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
)
)
)
Plaintiff,
)
)
vs.
)
ReconTrust Co., Bank of America)
Mortgage Corporate Office/Headquarters,)
)
)
Defendants.
)
)
No. CV-12-8079-PCT-FJM
James L. Jones, Jr.,
9
10
11
12
13
14
ORDER
15
16
The court has before it Bank of America’s (“Bank”) motion for summary judgment
17
(doc. 60), plaintiff’s response (doc. 67), the Bank’s reply (doc. 70), plaintiff’s sur-reply (doc.
18
71), the Bank’s motion to strike the sur-reply (doc. 74), and plaintiff’s response (doc. 75).
19
We also have before us plaintiff’s motion for summary judgment (doc. 69), the Bank’s
20
response (doc. 72), plaintiff’s reply (doc. 73); plaintiff’s motion to compel production of
21
documents (doc. 51), the Bank’s response (doc. 56); and plaintiff’s motion to compel agency
22
(doc. 63), and the Bank’s response (doc. 66).
23
I
24
On March 15, 2007, Countrywide Bank made a mortgage loan to Joy Sondeno in the
25
principal amount of $123,000.00 (“Loan”) related to the purchase of real property located
26
in Kingman, Arizona (“Property”). DSOF, ex. 1. On February 13, 2012, Sondeno executed
27
a quit claim deed purporting to transfer her interest in the Property to James L. Jones, Jr.,
28
plaintiff in this case. Sondeno was in default and the loan was in foreclosure at the time of
1
the transfer, the last payment having been made in May 2011. Compl., ex. B. On February
2
21, 2012, plaintiff sent the Bank a purported “Electronic Fund Transfer (EFT) instrument
3
#227" in the amount of $148,468.82 for payment on the Loan. Id. Although plaintiff refers
4
to the alleged payoff document an “EFT,” the copy of the item plaintiff attached as exhibit
5
B to his complaint appears to be a personal check. See Compl., ex. B. Shortly after sending
6
the purported payoff funds, plaintiff filed this action on March 21, 2012, seeking to quiet title
7
to the Property. On April 11, 2012, the Bank sent Plaintiff a letter rejecting EFT #227,
8
explaining that the EFT was an unacceptable form of tender and informing plaintiff that the
9
payoff must be made with “certified funds,” including “money order, cashier’s check, or wire
10
transfer.” DSOF, ex. 5, ex. E. It is undisputed that the Bank never accepted funds from
11
plaintiff. There is no claim that plaintiff ever re-tendered the funds in a form acceptable to
12
the Bank. The Loan remains in default and carries a balance of $155,317.48.
II
13
14
15
Plaintiff’s sur-reply to the Bank’s motion for summary judgment (doc. 71) is not
authorized by LRCiv 7.2 and is therefore stricken (doc. 74).
III
16
17
Plaintiff’s motion to compel agency (doc. 63) demands that the Bank’s lawyer provide
18
proof of his status as agent of the Bank. We have already held that defendant’s lawyers are
19
not required to prove that they have a contract to represent defendant and that plaintiff’s
20
demand is frivolous. See Order (doc. 26) at 2. Plaintiff’s motion to compel agency is denied
21
(doc. 63).
22
IV
23
Rule 26(b)(1), Fed. R. Civ. P., provides that a party may discover information that is
24
relevant to the party’s claim or defense. Plaintiff’s motion to compel seeks the production
25
of documents related to a loan to which he is not a party. Specifically, plaintiff seeks to
26
compel a currency trace, an S3-A registration statement, a 424 B-5 prospectus, the original
27
deed of trust and promissory note, and answers to various legal questions. None of these
28
documents are relevant to plaintiff’s quiet title claim, and the burden of the compelled
-2-
1
discovery would outweigh its likely benefit. Plaintiff’s motion to compel production of
2
documents is denied (doc. 51).
3
V
4
Both parties move for summary judgment on plaintiff’s quiet title claim. To quiet title
5
a plaintiff must allege that he possesses title to the property, and that he has paid off any
6
mortgage in full. Farrell v. West, 57 Ariz. 490, 491, 114 P.2d 910, 911 (1941) (“[I]f it
7
appears there is an unsatisfied balance due a defendant-mortgagee, or his assignee, the court
8
will not quiet the title until and unless he pays off such mortgage lien.”). The mere offer to
9
pay without actual payment is insufficient to maintain an action to quiet title.
10
Plaintiff’s claim to title is questionable. There is a lawful security interest on the
11
Property that pre-dated plaintiff’s acquisition. Therefore, even assuming plaintiff has any
12
title to the Property it is subject to that security interest. In the absence of a tender of the full
13
amount due on the Loan and in a form acceptable to the Bank, plaintiff cannot successfully
14
maintain an action for quiet title. Plaintiff has not shown that he has paid off the Loan.
15
Therefore, he is not entitled to quiet title to the Property. Plaintiff’s motion for summary
16
judgment is denied (doc. 69). The Bank’s motion for summary judgment is granted (doc.
17
60).
VI
18
19
IT IS ORDERED GRANTING the Bank’s motion to strike sur-reply (doc. 74),
20
DENYING plaintiff’s motion to compel agency (doc. 63), and DENYING plaintiff’s motion
21
to compel production of documents (doc. 51).
22
23
IT IS FURTHER ORDERED GRANTING the Bank’s motion for summary
judgment (doc. 60), and DENYING plaintiff’s motion for summary judgment (doc. 69).
24
The clerk shall enter final judgment.
25
DATED this 19th day of June, 2013.
26
27
28
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?