Miller-Swift v. Mortgage Electronic Registration Systems, Inc. et al

Filing 43

ORDER GRANTING MOTION TO DISMISS. Signed by Judge Vince Chhabria on 2/26/2018. (knm, COURT STAFF) (Filed on 2/26/2018)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

JULIE A. MILLER-SWIFT,

Case No. 17-cv-03408-VC

Plaintiff,
ORDER GRANTING MOTION TO
DISMISS

v.
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., et al.,

Re: Dkt. Nos. 29, 30, 35

Defendants.
The first amended complaint is dismissed with prejudice as to all claims.1 The Court
previously dismissed Julie Miller-Swift's wrongful foreclosure claim for not adequately alleging
that Mortgage Electronic Registration Systems ("MERS") had exited the chain of title given that
the Deed of Trust, Notice of Default, and assignment of the loan from MERS to BAC Home
Loans Servicing, LP each lists MERS as the beneficiary. See Dkt. No. 27. The operative
complaint does not remedy this defect.
Miller-Swift primarily bases her wrongful foreclosure claim on her allegation that MERS
exited the chain of title when Countrywide sold the loan to a non-MERS member, Countrywide
Home Lending. However, this claim is inadequately alleged because the Deed of Trust says that
MERS remains the nominal beneficiary in the event of such transfers. Dkt. No. 30-1 at 2
("MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's

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The defendants' request for judicial notice is granted. Each document was recorded in the
Alameda County Recorder's Office and is part of the public record. The plaintiff's request for
judicial notice is denied, because the accuracy of the documents' sources cannot be verified and it
is unclear whether the documents are being introduced for the truth of their contents or the fact
of their existence. See Fed. R. Evid. 201.

successors and assigns. MERS is the beneficiary under this Security Instrument."). Miller-Swift
does not explain how MERS necessarily dropped off the chain of title given that MERS was
expressly intended to remain the beneficiary. See Avila v. Wells Fargo Bank, National
Association, No. C 16-05904 WHA, 2016 WL 7425925, at *3 (N.D. Cal. Dec. 23, 2016). Nor is
it clear, given the successors-and-assigns clause, why MERS would not have remained the
beneficiary despite the securitization. See Ratliff v. JPMorgan Chase Bank, N.A., No. 17-cv02155-EMC, 2017 WL 2876141, at *8 (N.D. Cal. July 6, 2017). To the extent Miller-Swift
alleges that robo-signing rendered the assignments defective, she describes voidable
assignments, which are insufficient to establish standing to sue for wrongful foreclosure. See
Pratap v. Wells Fargo Bank, N.A., 63 F. Supp. 3d 1101, 1109 (N.D. Cal. 2014); Yvanova v. New
Century Mortgage Corp., 62 Cal. 4th 919, 936-42 (2016); Mendoza v. JPMorgan Chase Bank,
N.A., 212 Cal. Rptr. 3d 1, 14 (Cal. Ct. App. 2016).
Miller-Swift's claim for slander of title is also dismissed, since it depends on her claim
that the documents misrepresented the beneficiary because MERS had dropped off the chain of
title. Her claim for cancelation of instruments is dismissed as well, because cancelation of
instruments is an equitable remedy and not an independent basis for liability. As before, MillerSwift has not plausibly alleged a distinct basis for liability.
IT IS SO ORDERED.
Dated: February 26, 2018
______________________________________
VINCE CHHABRIA
United States District Judge

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