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)
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
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?