Kenneth E. Romney Jr. et al v. Bank of America, N.A. et al

Filing 28

MINUTE ORDER DISMISSING FOR LACK OF STANDING AND NON-OPPOSITION 20 by Judge Stephen V. Wilson: Plaintiffs lacks standing under Article III for each of their claims. Plaintiffs also failed to oppose the motion, as required under Local Rule 7-12. Accordingly, this Court DISMISSES Plaintiffs claims. (Made JS-6. Case Terminated.) (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES - GENERAL
Case No.

5:18-cv-00842-SVW-AFM

Title

Kenneth E. Romney, Jr. et al v. Bank of America, N.A. et al

Present: The Honorable

Date

June 25, 2018

STEPHEN V. WILSON, U.S. DISTRICT JUDGE

Paul M. Cruz

N/A

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

N/A

N/A

Proceedings:

I.

ORDER DISMISSING FOR LACK OF STANDING AND NONOPPOSITION [20]

Introduction

The Court finds that Plaintiffs here lack standing to bring their claims. As explained below, the
Court DISMISSES Plaintiffs’ claims.
II.

Factual and Procedural Background

Pro se Plaintiffs Kenneth Romney, Jr. and Tamy Romney brought this action in federal court on
April 23, 2018. They filed a First Amended Complaint (FAC) on May 3, 2018. In the FAC, Plaintiffs
allege claims against Defendants Bank of America and Shellpoint Mortgage under the Fair Debt
Collection Practices Act (FDCPA), the California Rosenthal Fair Debt Collection Practices Act
(RFDCPA), Real Estate Settlement Procedures Act (RESPA), and California Code of Civil Procedure
336a, which is the California Statute of Limitations. Plaintiffs allege numerous other state law claims.
Dkt. 1.
Plaintiffs acquired the relevant property, located at 1025 Holden Avenue, Big Bear City,
California, 92314 (legally described as Lot 25, Tract 2705, in the County of San Bernardino), on
December 15, 2004. The 2004 mortgage lender was United Pacific Mortgage (UPM). According to
Plaintiffs, UPM’s license was revoked on November 28, 2017. Based on the complaint, it is unclear
what claims occurred with regard to UPM or another mortgage company Plaintiffs mention, Freedom

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

5:18-cv-00842-SVW-AFM

Date

Title

June 25, 2018

Kenneth E. Romney, Jr. et al v. Bank of America, N.A. et al

Home Mortgage (FHM).
Plaintiffs then allege that in 2011 Defendant Bank of America recorded an Assignment of Deed
of Trust of the Freedom Home Mortgage Corporation’s void mortgage after FHM was no longer in
business, and while it was not licensed to do business in California. Plaintiffs allege that Bank of
America recorded the assignment in favor of BAC Home Loans Servicing by having Cynthia Santos,
Bank of America’s employee, pose as an assistant secretary of MERS. Plaintiffs do not explain what
MERS is or how BAC is related to this action.
Plaintiffs then allege that there is no recorded authority for Cynthia Santos to execute documents
on behalf of what Plaintiffs state is the “defunct entity Bank of America” or BAC. Accordingly,
Plaintiffs claim the mortgage was void and fraudulently prepared. Plaintiffs state a number of other
allegations that are related to this property; however, the pleadings are not clear as to how those
allegations lead to the claims in this case.
Plaintiffs twice filed for emergency injunctive relief. Dkts. 6, 13. The Court denied both motions.
Dkts. 11, 16. Defendant Bank of America filed a Motion to Dismiss on May 29, 2018. Dkt. 20. Among
other things, the Motion to Dismiss argues that Plaintiffs lack standing. Id. at 3:26-4:22. Defendant
Shellpoint Mortgage filed a motion to join Bank of America’s Motion to Dismiss on June 4, 2018. Dkt.
24. Plaintiffs have not filed anything with the Court since submitting their First Amended Complaint.
Plaintiffs have neither filed an opposition nor provided notice of non-opposition, despite the
deadline passing on June 11, 2018. Plaintiffs have not provided the Court with any rationale for the lack
of opposition. Pursuant to Local Rule 7-12, the “Court may decline to consider any memorandum or
other document not filed within the deadline set by order or local rule. The failure to file any required
document, or the failure to file it within the deadline, may be deemed consent to the granting . . . of the
motion.” L.R. 7-12. Accordingly, the Court deems Plaintiffs’ failure to file consent to the motion.
Furthermore, the Court holds that Plaintiffs lack standing to bring this claim. Accordingly, the Court
GRANTS Defendants’ Motion to dismiss pursuant to Local Rule 7-12 and on the merits.
III.

Analysis
a. Requirements for Article III Standing

Standing doctrine stems from Article III of the Constitution, which limits the judicial power of

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

5:18-cv-00842-SVW-AFM

Date

Title

June 25, 2018

Kenneth E. Romney, Jr. et al v. Bank of America, N.A. et al

federal courts to “actual cases or controversies.” Spokeo v. Robins, 136 S.Ct. 1540, 1547 (2016) (citing
Raines v. Byrd, 521 U.S. 811, 818 (1997)). "The doctrine limits the category of litigants empowered to
maintain a lawsuit in federal court to seek redress for a legal wrong." Id. The “'irreducible constitutional
minimum' of standing consists of three elements. The plaintiff must have (1) suffered an injury-in-fact,
(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision." Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992). This case concerns the first element.
"To establish injury-in-fact, a plaintiff must show that he or she suffered 'an invasion of a legally
protected interest' that is 'concrete and particularized' and 'actual or imminent.'" Id. at 1548 (quoting
Lujan, 504 U.S. at 560). A “concrete injury must be de facto; that is, it must actually exist." Id. A
plaintiff cannot automatically satisfy the injury-in-fact requirement “whenever a statute grants a person a
statutory right and purports to authorize that person to sue to vindicate that right. Article III standing
requires a concrete injury even in the context of a statutory violation." Id. at 1549. A "bare procedural
violation, divorced from any concrete harm," does not satisfy the injury-in-fact requirement of Article
III. Id.
“The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan,
504 U.S. at 561. Without constitutionally-required, Article III jurisdiction, this Court cannot proceed.
b. Discussion
“[D]ebtors that fail to disclose pending litigation in bankruptcy lack standing to pursue their
claim because, by operation of law, any ‘unscheduled’ asset remains in the bankruptcy estate’s property.
. . . Because the debtor does not have an interest in the asset, the debtor does not have standing.” Skinner
v. Ladder, 2017 U.S. Dist. LEXIS 211038 at *3 (C.D. Cal. June 26, 2017) (citing Cusano v. Klein, 264
F.3d 936, 945-46 (9th Cir. 2001) and Dunmore v. United States, 358 F.3d 1107, 1112 (9th Cir. 2004)).
Here, Plaintiffs defaulted on their mortgage in April 2017. Dkt. 20 at 3:3-4. They filed their
initial Complaint on April 23, 2018 and then filed for bankruptcy on May 7, 2018. Dkt. 20 at 3:11-13.
Plaintiffs did not disclose any of their claims against Defendants in their bankruptcy proceedings. Id. at
4:13-14. Consequently, Plaintiffs lack standing to bring suit against Defendants.1
1

Plaintiffs could perhaps have standing under an exemption to the undisclosed asset rule; however, Plaintiffs here have not

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

5:18-cv-00842-SVW-AFM

Date

Title

June 25, 2018

Kenneth E. Romney, Jr. et al v. Bank of America, N.A. et al

V. Conclusion
For the foregoing reasons, Plaintiffs lacks standing under Article III for each of their claims.
Plaintiffs also failed to oppose the motion, as required under Local Rule 7-12. Accordingly, this Court
DISMISSES Plaintiffs’ claims.

provided any reason for their failure to disclose, and thus no exemption to the general rule above is available. Id. at 4:13-20.

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