Anolik v. Bank of America Home Loans et al

Filing 26

ORDER signed by Judge Morrison C. England, Jr. on 4/21/11 ORDERING 6 Motion to Dismiss is GRANTED. The Clerk is directed to close this file. CASE CLOSED.(Matson, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JERRY I. ANOLIK, No. 2:11-cv-00406-MCE-JFM 11 Plaintiff, 12 MEMORANDUM AND ORDER v. 13 14 BANK OF AMERICA HOME LOANS; et al., 15 Defendants. 16 ----oo0oo---17 Through the present action, Plaintiff Jerry I. Anolik 18 (“Plaintiff”) challenges the validity of non-judicial foreclosure 19 proceedings instituted following default on the Deed of Trust 20 executed with respect to certain residential property located at 21 9132 Fair Oaks Boulevard in Fair Oaks, California. Defendants 22 Bank of America Home Loans and Recontrust Company, N.A. 23 (“Defendants”) have moved to dismiss Plaintiff’s complaint, 24 pursuant to Federal Rule of Civil Procedure 12(b)(6),1 on 25 numerous grounds. 26 27 28 1 As used in this Memorandum and Order, the term “Rule” or “Rules” refers to the Federal Rules of Civil Procedure unless otherwise indicated. 1 1 Defendants’ arguments include the assertion that because 2 Plaintiff was not the borrower on the loan subject to the Deed of 3 Trust, because Plaintiff never assumed the loan, and because 4 foreclosure proceedings were instituted before Plaintiff recorded 5 any alleged ownership interest in the property whatsoever, 6 Plaintiff has no standing to take issue with the pending 7 foreclosure. 8 tendered the amounts owed under the loan in any event, and cannot 9 proceed with the instant lawsuit for that reason as well. Defendants further argue that Plaintiff has not As set 10 forth below, because the Court believes both those arguments to 11 be dispositive, Defendants’ motion will be granted. 12 BACKGROUND 13 14 15 The residential property at issue in this litigation A Deed of Trust2 was 16 initially belonged to Patrick Carboni. 17 recorded on August 13, 2007 which reflected Mr. Carboni as the 18 borrower under the Deed of Trust. 19 provided by Countrywide Home Loans, Inc. The underlying loan was 20 2 21 22 23 24 25 26 27 28 Defendants have requested that the Court judicially notice, pursuant to Federal Rule of Evidence 201, not only said Deed of Trust, but also the Notice of Default recorded in this matter on August 14, 2009 and the Grant Deed recorded in Plaintiff’s favor on December 1, 2009. Because all of these documents were duly recorded by Sacramento County, Defendants maintain that they are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, and can be judicially noticed on that basis. Plaintiff has not opposed Defendants’ request in that regard. The Court also notes that because the documents in question are referred to in Plaintiff’s complaint but not physically attached, they may properly be considered in conjunction with a Rule 12(b)(6) motion to dismiss on that ground as well. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Defendants’ Request for Judicial Notice is accordingly granted. 2 1 While Plaintiff contends he began to make payments on the 2 loan beginning in November of 2008, when he claims to have 3 “purchased” the property for the amount of $215,000 (which 4 represented the principal amount of the Countrywide loan) 5 Plaintiff’s complaint does not allege that he ever formally 6 assumed the obligations represented by the Countrywide loan. 7 Indeed, Plaintiff’s counsel conceded at the time of the April 7, 8 2011 hearing in this matter that Plaintiff never made any such 9 assumption. 10 That omission is significant. The Deed of Trust makes it 11 clear that the status of any purported successor in interest like 12 Plaintiff had to be both in writing and be approved by the 13 lender. 14 for Judicial Notice. 15 occurred in this case. 16 seize on the fact that Countrywide’s loan portfolio, including 17 the loan at issue herein, was later assumed by Bank of America, 18 and while Plaintiff apparently contends that neither he nor 19 Carboni ever assented to that transfer, any shortcoming in that 20 regard cannot excuse Plaintiff’s own failure to effectuate a 21 proper assumption of the loan. 22 specifically permits the loan to be sold to another lending 23 institution without prior notice to the Borrower. 24 /// 25 /// 26 /// 27 /// 28 /// Deed of Trust, ¶ 13, attached as Ex. A to Defs.’ Request It is undisputed their neither prerequisite Moreover, while Plaintiff attempts to Indeed, the Deed of Trust 3 Id. at ¶ 20. 1 On August 14, 2009, Defendant Recontrust, as Trustee for 2 Defendant Bank of America Home Loans, recorded a Notice of 3 Default and Election to Sell Under Deed of Trust. 4 Default indicates a deficiency owed of $13,026.65 as of 5 August 12, 2009. 6 for Judicial Notice. 7 That Notice of Notice of Default, p. 1, Ex. B to Defs’ Request Although Plaintiff claims to have “purchased” the property 8 in November of 2008, and while he claims to have made certain 9 payments after that time, Plaintiff did not record any Grant Deed 10 memorializing that transaction until December 1, 2009, more than 11 a year later and well after the Notice of Default had been filed 12 more than four months beforehand. 13 Plaintiff takes issue with Defendants’ foreclosure proceedings 14 despite the fact that they were instituted before anyone was put 15 on notice of his purported ownership interest in the property. Through the present lawsuit, 16 STANDARD 17 18 19 On a motion to dismiss for failure to state a claim under 20 Rule 12(b)(6), all allegations of material fact must be accepted 21 as true and construed in the light most favorable to the 22 nonmoving party. 23 337-38 (9th Cir. 1996). 24 plain statement of the claim showing that the pleader is entitled 25 to relief,” to “give the defendant fair notice of what the ... 26 claim is and the grounds upon which it rests.” 27 v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and 28 quotations omitted). Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, Rule 8(a)(2) requires only “a short and 4 Bell Atl. Corp. 1 Though “a complaint attacked by a Rule 12(b)(6) motion” need not 2 contain “detailed factual allegations, a plaintiff’s obligation 3 to provide the ‘grounds’ of his ‘entitlement to relief’ requires 4 more than labels and conclusions, and a formulaic recitation of 5 the elements of a cause of action will not do.” 6 (quoting Papasan v. Allain, 478 U.S. 265, 2869 (1986)). 7 plaintiff’s “factual allegations must be enough to raise a right 8 to relief above the speculative level.” 9 & A. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) Id. at 555 A Id. (citing 5 C. Wright 10 (“[T]he pleading must contain something more ... than ... a 11 statement of facts that merely creates a suspicion [of] a legally 12 cognizable right of action.”)). 13 Further, “Rule 8(a)(2) ... requires a ‘showing,’ rather than 14 a blanket assertion, of entitlement to relief. 15 factual allegation in the complaint, it is hard to see how a 16 claimant could satisfy the requirements of providing ... grounds 17 on which the claim rests.” 18 (internal citations omitted). 19 enough facts to state a claim to relief that is plausible on its 20 face.” 21 claims across the line from conceivable to plausible, their 22 complaint must be dismissed.” 23 Id. at 570. Without some Twombly, 550 U.S. at 555 n.3 A pleading must then contain “only If the “plaintiffs ... have not nudged their Id. Once the court grants a motion to dismiss, it must then 24 decide whether to grant a plaintiff leave to amend. 25 authorizes the court to freely grant leave to amend when there is 26 no “undue delay, bad faith, or dilatory motive on the part of the 27 movant.” Foman v. Davis, 371 U.S. 178, 182 (1962). 28 /// 5 Rule 15(a) 1 In fact, leave to amend is generally only denied when it is clear 2 that the deficiencies of the complaint cannot possibly be cured 3 by an amended version. 4 957 F.2d 655, 658 (9th Cir. 1992); Balistieri v. Pacifica Police 5 Dept., 901 F. 2d 696, 699 (9th Cir. 1990) (“A complaint should 6 not be dismissed under Rule 12(b)(6) unless it appears beyond 7 doubt that the plaintiff can prove no set of facts in support of 8 his claim which would entitle him to relief.”) (internal 9 citations omitted). See DeSoto v. Yellow Freight Sys., Inc., 10 ANALYSIS 11 12 13 As the Background section of this Memorandum and Order makes 14 clear, Plaintiff was not the borrower on the subject loan and had 15 not assumed the obligations under the loan in writing and with 16 the lender’s consent, as required by the Deed of Trust. 17 addition, foreclosure proceedings were well underway (having been 18 commenced by the August 14, 2009 Notice of Default) before any 19 interest in the property was recorded by Plaintiff in the form of 20 the December 1, 2009 Grant Deed. 21 make on behalf of the borrower, Patrick Carboni, in the meantime 22 can only be deemed voluntary on his behalf absent some formal 23 assumption of the loan. 24 legal rights inuring to Plaintiff’s benefit. 25 /// 26 /// 27 /// 28 /// In Any payments Plaintiff chose to Without more, those payments confer no 6 1 Were the Court to permit Plaintiff’s now-asserted interest 2 in the property to subvert the foreclosure proceedings, its 3 ruling would amount to permitting any third party to halt 4 foreclosure proceedings simply by claiming that it made some 5 payment on the loan and did not thereafter receive the requisite 6 procedure/notice attendant to foreclosure. 7 Court would amount to an utterly unwarranted intrusion by the 8 Court into the orderly mechanics of non-judicial foreclosure. 9 This the Court categorically declines to do. Such a finding by the Absent assumption, 10 from the lender’s standpoint any payments made by Plaintiff were 11 nothing other than voluntary. 12 relative decides to assist a distressed homeowner by making 13 certain payments in order to help the homeowner stay in his or 14 her home, does that give the friend or relative the right to 15 assert his or her own interests in the context of a resulting 16 foreclosure proceeding? 17 If, for example, a friend or The answer has to be no. The circumstances of the present case are drawn into even 18 higher relief by the fact that the property was already in 19 foreclosure by the time that Plaintiff recorded his Grant Deed to 20 the property. 21 alleged interest in the property until after the machinery of 22 foreclosure had already begun. 23 standing to complain about the basis for that foreclosure. 24 /// 25 /// 26 /// 27 /// 28 /// Plaintiff therefore did nothing to perfect his As such, Plaintiff has no 7 1 Under Article III of the United States Constitution, a 2 federal court can only adjudicate an actual live “case or 3 controversy,” which requires a plaintiff to demonstrate standing. 4 Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149-50 (2009) 5 In order to establish standing, the plaintiff must demonstrate 6 (1) an injury in fact, which is defined as a concrete and 7 particularized invasion of a legally protected interest; (2) 8 causation which is fairly traceable between the alleged injury in 9 fact and alleged conduct of the defendant; and (3) 10 redressability. Sprint Communications Co., L.P. v. APCC Serv.’s, 11 Inc., 554 U.S. 269, 273-74 (2008). 12 accordingly focuses on whether the plaintiff is the proper party 13 to bring the lawsuit. A standing inquiry Raines v. Byrd, 521 U.S. 811, 818 (1997). 14 The circumstances of this case, as delineated above, mandate 15 a conclusion that Plaintiff lacks the requisite standing to bring 16 the present lawsuit, whose allegations hinge entirely on the 17 propriety of a foreclosure to which Plaintiff was not a party, 18 and which involved both a default that had already occurred, and 19 foreclosure proceedings that had already commenced, by the time 20 Plaintiff memorialized any ownership interest in the property 21 whatsoever. 22 standing and dismisses the lawsuit on that basis. The Court therefore concludes that Plaintiff lacks 23 Plaintiff would fare no better even if he was successful in 24 arguing he had the right, as the borrower under Defendants’ Deed 25 of Trust, to contest the foreclosure. 26 equitable power of this Court to halt or set aside foreclosure 27 proceedings, a borrower must establish his or her own equity in 28 performing on the subject loan. 8 In order to invoke the 1 Arnolds Mgmt. Corp. v. Eishen, 158 Cal. App. 3d 575, 577 (1984). 2 Courts have uniformly found that without having “done equity” by 3 tendering the obligation due under the note in full, Plaintiff 4 lacks standing to challenge the foreclosure sale, set it aside, 5 or bring any claim that arises from the foreclosure. 6 United Savings Bank, 43 Cal. App. 4th 1101, 1109 (1996) (in 7 affirming the sustaining of a demurrer without leave to amend, 8 the court explained that the so- called “tender rule” applies to 9 “any cause of action for irregularity in the sale procedure”). 10 The tender rule is strictly applied under California law. Abdallah v. Nguyen v. Calhoun, 105 Cal. App. 4th 428, 439 (2003). 11 See, e.g., 12 Absent an alleged and actual tender, Plaintiff’s complaint in its 13 entirety fails to state a cause of action. 14 App. 4th at 1109; Karlsen v. Am. Sav. & Loan Ass’n, 15 Cal. App. 15 3d 112, 121 (1971). 16 law, federal district court have made the same finding. 17 e.g., Anaya v. Advisors Lending Group, 2009 WL 2424037 at *10 18 (E.D. Cal. 2009) (“Plaintiff offers nothing to indicate that she 19 is able to tender her debt to warrant disruption of non-judicial 20 foreclosure”, and citing Abdallah, supra, in requiring such 21 tender to maintain any foreclosure-related claim); Montoya v. 22 Countrywide Bank, F.S.B., 2009 WL 1813973 (N.D. Cal. 2009) 23 (“Under California law, the ‘tender rule’ requires that as a 24 precondition to challenging a foreclosure sale, or any cause of 25 action implicitly integrated to the sale, the borrower must make 26 a valid and viable tender of payment of the debt”). 27 /// 28 /// Abdallah, 43 Cal. Significantly, too, in construing California 9 See, 1 Here, Plaintiff has not alleged, either in his papers or at 2 the time of the hearing, that he has tendered or is able to 3 tender the amount of the secured debt in response to Defendants’ 4 reliance on the tender rule. 5 on that basis from proceeding with this lawsuit as well. Therefore Plaintiff is foreclosed 6 CONCLUSION 7 8 9 Based on the foregoing, Defendants’ Motion to Dismiss (ECF 10 No. 6) is GRANTED. Because the Court does not believe the 11 deficiencies of Plaintiff’s complaint (and in particular the 12 standing deficit) can be cured by amendment, no leave to amend 13 will be permitted. 14 Plaintiff’s lawsuit in its entirety, Plaintiff’s corresponding 15 request for preliminary injunctive relief is also denied. 16 fundamental prerequisite for issuance of injunctive relief rests 17 with a finding that the requesting party is likely to succeed on 18 the merits, a finding that obviously is absent here given the 19 Court’s dismissal of this matter. 20 Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter v. 21 Natural Resources Defense Council, 129 S. Ct. 365, 374 (2008). In addition, because the Court has found that A See, e.g., Stormans, Inc. v. 22 The Clerk of Court is directed to close this file. 23 IT IS SO ORDERED. 24 Dated: April 21, 2011 25 26 27 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 28 10

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