Andrade v. US Bank National Association
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT AND EXPUNGE LIS PENDENS 5 AND GRANTING PLAINTIFF'S MOTION TO TAKE JUDICIAL NOTICE 9 . ~ Excerpt of Conclusion: "Defendant's Motion to Dis miss Complaint and Expunge Lis Pendens, filed on May 28, 2013, is HEREBY GRANTED, and Plaintiff's Motion to Take Judicial Notice, filed June 18, 2013, is HEREBY GRANTED. Defendant's Motion is GRANTED with respect to Count I, which is DISMIS SED WITH PREJUDICE. The Motion is GRANTED with respect to Count II, which is DISMISSED WITHOUT PREJUDICE as to Plaintiff's claim pursuant to Haw. Rev. Stat. § 669-1, and DISMISSED WITH PREJUDICE as to Plaintiff's claim under Haw. Const . art. XVI, § 12. To the extent that the Court has dismissed a portion of Count II in the Complaint without prejudice, the Court GRANTS Plaintiff leave until September 16, 2013 to submit a motion to the magistrate judge seeking permission to fil e an amended complaint consistent with the terms of this Order." ~ Signed by JUDGE LESLIE E. KOBAYASHI on 8/27/2013. [Order follows hearing held August 19, 2013, minutes: doc 15 , and follows the issuance of the Court's min ute order filed on August 20, 2013 as docket entry no. 16 ] (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on WEDNESDAY, AUGUST 28, 2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
US BANK NATIONAL ASSOCIATION, )
as Trustee for the Structured )
Asset Investment Loan Trust, )
MILLICENT M. ANDRADE,
CIVIL NO. 13-00255 LEK-KSC
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
COMPLAINT AND EXPUNGE LIS PENDENS AND GRANTING
PLAINTIFF’S MOTION TO TAKE JUDICIAL NOTICE
On May 28, 2013, Defendant US National Bank
Association, as Trustee for the Structured Asset Loan Trust 2005HE3 (“Defendant” or “US Bank”), filed its Motion to Dismiss
Complaint and Expunge Lis Pendens (“Motion”).
[Dkt. no. 5.]
se Plaintiff Millicent Andrade (“Plaintiff”) jointly filed her
Memorandum in Opposition and Motion to Take Judicial Notice
(“Judicial Notice Motion”) on June 18, 2013.
Defendant filed its Reply on July 1, 2013.
[Dkt. no. 9.]
[Dkt. no. 14.]
These matters came on for hearing on August 19, 2013.
Appearing on behalf of Defendant were Audrey Yap, Esq., and
Carol Eblen, Esq., and Plaintiff appeared by telephone.
careful consideration of the Motion and Judicial Notice Motion,
supporting and opposing memoranda, and the arguments of counsel,
Defendant’s Motion is HEREBY GRANTED, and Plaintiff’s Judicial
Notice Motion is HEREBY GRANTED for the reasons set forth below.
On April 25, 2013, Plaintiff filed her Complaint
against Defendant in state court.
1), Exh. A (“Complaint”).]
[Notice of Removal (dkt. no.
On May 20, 2013, Defendant removed
the instant action to this district court.
[Dkt. no. 1.]
On or about June 14, 2005, Plaintiff executed a
mortgage (“Mortgage”) and promissory note (“Note”) in favor of
B.N.C. Mortgage, Inc. (“BNC”), secured by real property located
at 2090 Hanalima Road, Apt. #DD201, Lihue, Hawai‘i (the
[Complaint at ¶ 2; Motion, Exh. A (“Mortgage”) at
According to Plaintiff, Mortgage Electronic Registration
System, Inc. (“MERS”) acted as “nominee” on behalf of BNC with
respect to BNC’s rights and interests under the Mortgage.
[Complaint at ¶ 2.]
The Mortgage gave MERS, as nominee for BNC,
a security interest in the Property.
[Mortgage at 3.]
about June 13, 2005, Andrade executed a second mortgage
(“Subordinate Mortgage”) and note (“Subordinate Note”) in favor
of BNC, which was also transferred to MERS as nominee for BNC.1
The Subordinate Mortgage also granted MERS, as nominee, a junior
security interest in the Property.
[Complaint, Exh. D
The Court notes that Complaint does not contain
allegations regarding the Subordinate Mortgage or the Subordinate
Note. None of the parties’ memorandum distinguish the
Subordinate Mortgage from the Mortgage, or the Subordinate Note
from the Note, except for Defendant’s Reply.
(“Stipulation”) at 2.]2
According to the Stipulation, both the Mortgage and
Subordinate Mortgage were transferred to Lehman Brothers Bank FSB
(now known as Aurora Bank FSB) on July 22, 2005, and then from
Lehman Brothers Bank FSB to LBHI, and from LBHI to Structured
Asset Securities Corporation (“SASCO”) on August 30, 2005.
immediately sold the Mortgage and Subordinate Mortgage into a
securitization trust called SAIL 2005-HE3 (the “Trust”), of which
Defendant is the Trustee.
[Id. at 2-3.]
The Complaint alleges that BNC filed for Chapter 11
bankruptcy in the United States Bankruptcy Court for the Southern
District of New York on January 9, 2009.
[Complaint at ¶¶ 2, 3,
Plaintiff learned that MERS subsequently executed an
assignment of the Mortgage and Note (“Assignment”) to Defendant,
dated July 22, 2009.
On May 5, 2011, Defendant recorded a
Mortgagee’s Affidavit of Foreclosure Sale under Power of Sale
(“Mortgagee’s Affidavit”) in the Land Court System as Document
The Mortgagee’s Affidavit states that, pursuant to
The Complaint asserts that the Stipulation, attached as
“Exhibit D” to the Complaint, is an order titled, “Stipulation,
Agreement and Order Between BNC Mortgage LLC and Millicent
Andrade Providing Relief From the Automatic Stay With Regard to
Certain Real Property Located in Lihue, Hawaii.” The Stipulation
asserts that it is related to the bankruptcy proceedings of
Lehman Brothers Holdings, Inc. (“LBHI”) and some of its
Haw. Rev. Stat. § 667-53 regarding nonjudicial foreclosure, the
Property was sold to Defendant by public auction on April 26,
Defendant also filed a complaint for an action to
foreclose (“Foreclosure Action”) on the Property on April 2,
2012, which is still pending.
[Id. at ¶ 24.]
The Complaint alleges that, because BNC filed for
Chapter 11 bankruptcy six months before MERS executed the
Assignment in favor of Defendant, the Assignment is invalid.
According to Plaintiff, MERS, which was acting as “nominee” for
BNC, “had no authority to transfer and/or assign all of [BNC’s]
rights, title and interest in Plaintiff’s mortgage[.]”
Plaintiff further alleges that, Defendant, as a named
creditor in BNC’s bankruptcy case, had knowledge of BNC’s
bankruptcy petition, but nevertheless executed the Assignment for
the purpose of collection.
[Id. at ¶¶ 4, 6.]
states that, “[d]efendant cannot show proper receipt, possession,
transfer, negotiations, assignment and ownership of the
borrower’s original Promissory Note, resulting in imperfect
security interest and claims.”
[Id. at ¶ 7.]
Plaintiff’s First Cause of Action - Wrongful
Foreclosure (“Count I”) alleges that Defendant’s foreclosure on
the Property was wrongful on multiple grounds.
Although in effect at the time of Defendant’s foreclosure
of the Property, Haw. Rev. Stat. § 667-5 was repealed effective
June 28, 2012. See Haw. Sess. Laws 2012, ch. 182, § 50.
Plaintiff alleges Defendant did not have the
right to foreclose on the Property because
the Assignment of Mortgage made on July 22,
2009 by MERS quintessentially lacked the
approval of the U.S. bankruptcy court that
holds this asset in Trust.
Plaintiff alleges Defendant, knowingly and
willfully, evaded bankruptcy laws when it
proceeded enforcement under the authority of
the defective Assignment[.]
. . . .
Plaintiff is also informed and believes and
there upon alleges Defendant does not own the
Note nor has any legal relationship to the
Note. Without ownership of the note, the
beneficiary of the Mortgage cannot foreclose.
Plaintiff contends that Defendant does not
have the right to foreclose on the Property
because it does not own the Note executed by
Plaintiff is informed and believes and there
upon alleges that the only individual entity
which may have standing to foreclose is BNC
[Id. at ¶¶ 23-27.]
The Complaint further alleges that, in order for
Defendant to have a valid and enforceable secured claim against
the Property, Defendant must prove and certify that it obtained
the Mortgage in compliance with its pooling and service agreement
(“PSA”) with BNC.
Pursuant to the terms of the PSA, BNC agreed
to transfer and endorse the Mortgage and Note to Defendant before
the closing of the Trust on August 23, 2005.
alleges that any security interest that Defendant claims in the
Property is rendered invalid by:
(1) “[t]he splitting or
separation of title, ownership and interest in Plaintiff’s Note
and Mortgage of which BNC Mortgage is the holder, owner and
beneficiary of Plaintiff’s mortgage;” and (2) the failure to
comply with the terms of the PSA, including transfer of the
Mortgage before August 20, 2005, in accordance with the PSA, or
before August 23, 2005, the closing date of the Trust.
Plaintiff’s Second Cause of Action:
(“Count II”) is to quiet title to the Property pursuant to Haw.
Rev. Stat. § 669-1(a) and Haw. Const. art. XVI, § 12.
contends that she is the true owner of the Property pursuant to
her Warranty Deed, which was recorded in the State of Hawai‘i
Land Court System on June 23, 2005, as Document No. 3286066.
[Id. at ¶¶ 32-34 (citing Complaint, Exh. C).]
The Complaint provides:
The foundation for Plaintiff’s quiet title
action is based upon the receipt of [the
. . . .
Plaintiff is informed and believes that
Defendant, by claiming any legal or equitable
title, estate, lien or interest in the
property is an adverse claim against the
original lender, BNC and adverse to the
[Id. at ¶¶ 35, 38 (emphasis omitted) (citing Stipulation).]
Plaintiff alleges that the Stipulation grants her relief from the
bankruptcy stay to exercise her non-bankruptcy rights and
remedies as to the Property, including the commencement of an
action to quiet title.
[Id. at ¶ 36.]
Plaintiff seeks the following relief:
relief stating that the “Mortgage Originator, the Depositor and
the Sponsor” have released the Property to Plaintiff pursuant to
the August 6, 2012 Stipulation;4 declaratory relief stating that
Defendant has no legitimate enforceable secured or unsecured
claim to the Property against Plaintiff; an injunction
permanently enjoining Defendant from claiming any right adverse
to Plaintiff with regard to the Property; actual and punitive
damages; and any other appropriate relief.
Defendant asks the Court to dismiss the Complaint for
failure to state a claim upon which relief may be granted.
[Motion at 2.]
At the outset, Defendant contends that it is
currently the owner of the Mortgage and Note pursuant to the
Assignment, which was filed in the Office of the Assistant
Registrar of the Land Court of the State of Hawai‘i as Document
Defendant also notes that it sought to foreclose on
the Property on April 2, 2012 because Plaintiff defaulted on the
The Complaint states that the Stipulation is dated
August 6, 2012. The Stipulation attached to the Complaint,
however, is dated August 7, 2012. [Stipulation at 5.]
Mortgage and Note.
[Mem. in Supp. of Motion at 4.]
Defendant contends that Count I fails as a matter of
law because Plaintiff lacks standing to challenge the validity of
According to Defendant, “[o]nly parties to a
voidable contract can seek avoidance of that contract.”
7 (citation omitted).]
Defendant cites several cases in support
of its contention that “only the parties to the pooling and
service agreement may argue that a mortgage was not made a part
[Id. at 7-8 (some citations omitted) (citing Benoist v.
U.S. Bank Nat’l Ass’n, Civil No. 10-00350 JMS-KSC, 2012 WL
3202180, at *4 (D. Hawai‘i Aug. 3, 2012)).]
Defendant next argues that BNC’s Chapter 11 bankruptcy
status does not render its Assignment void.
that this district court has previously rejected theories similar
to Plaintiff’s theory that the Assignment is invalid because BNC
had already filed for bankruptcy.
[Id. at 8 (citing Camat v.
Fed. Nat’l Mortg. Ass’n, Civil No. 12-00149 SOM/BMK, 2012 WL
2370201, at *7-8 (D. Hawai‘i June 22, 2012)).]
Defendant also relies on Kiah v. Aurora Loan Services,
LLC, Civil Action No. 10-40161-FDS, 2011 WL 841282, at *1 n.1 (D.
Mass. Mar. 4, 2011), for an explanation as to the role of MERS.
Essentially, Defendant asserts that MERS acts as the mortgagee of
record for mortgage loans that are registered in its system, and
remains as such so long as the parties involved in any sale of
the mortgage are members.
Based on the foregoing assertion,
Defendant argues that, “the mere fact that the Assignment from
MERS to US Bank was recorded on July 22, 2009, does not mean that
the transfer of ownership from BNC to its successor-in-interest
actually occurred on July 22, 2009.”
[Mem. in Supp. of Motion at
According to Defendant, “[t]he Mortgage explicitly
appoints MERS ‘as nominee for the Lender and Lender’s successors
and assigns[,]’” with the term “Lender” referring to BNC.
(quoting Mortgage at 3).]
Based on the language in the Mortgage,
Defendant argues that MERS was at all times authorized to take
any action required of BNC and/or its successors and assigns,
including the right to execute the Assignment.
contends, “BNC’s bankruptcy would not prevent its successors and
assigns, including US Bank, from seeking transfer of the mortgage
[Id. at 9-10 (citation omitted).]
According to Defendant, in order to assert a claim for
quiet title, “a borrower must allege he or she has paid, or is
able to tender the amount of indebtedness.”
[Id. at 10 (citing
Fed. Nat’l Mortg. Ass’n v. Kamakau, Civil No. 11-00475 JMS/BMK,
2012 WL 622169, at *9 (D. Hawai‘i Feb. 23, 2012)).]
Defendant emphasizes that Plaintiff has not indicated that she
has paid the outstanding balance on the Mortgage, or even that
she is able to do so.
a matter of law.
Thus, Defendant argues, Count II fails as
In conclusion, Defendant argues that the Complaint
should be dismissed, and that any and all lis pendens filed in
connection to the instant matter should be expunged and released.
[Id. at 10-11.]
Memorandum in Opposition
Plaintiff’s Right to Quiet Title to the Property
Plaintiff maintains that she is the rightful owner of
the Property, and appears to argue that, pursuant to the
Stipulation, she has satisfied her obligations under the
Plaintiff argues that Defendant’s pending Foreclosure
Action and Mortgagee’s Affidavit are both clouds on Plaintiff’s
title to the Property.
[Mem. in Opp. at 3.]
In conjunction with her Memorandum in Opposition,
Plaintiff also filed her Judicial Notice Motion, requesting that
the Court take judicial notice of the Stipulation.
argues that the Stipulation between her and BNC served to release
the Property to Plaintiff so that she could exercise her nonbankruptcy rights, which includes the commencement of an action
to quiet title.
Thus, Plaintiff argues, the Stipulation is
evidence that MERS, as nominee, executed the Assignment to
Defendant without BNC’s knowledge.
Plaintiff further contends
that the Stipulation demonstrates that the Property was being
held subject to BNC’s bankruptcy estate, and required Defendant
to obtain the bankruptcy court’s express approval of the
Assignment before obtaining “standing to pursue foreclosure.”
[Id. at 4-5.]
Validity of the Assignment
Plaintiff again relies on the Stipulation in support of
her next arguments that BNC’s bankruptcy renders the Assignment
void and that Defendant is in violation of United States
Plaintiff’s main argument appears to be that,
because MERS and Defendant executed the Assignment without the
express approval of the bankruptcy court, the Assignment is
[Id. at 5.]
In making this argument,
Plaintiff relies on various cases.
First, Plaintiff cites Deutsche Bank National Trust Co.
v. Williams, Civil No. 11-00632 JMS/RLP, 2012 WL 1081174 (D.
Hawai‘i Mar. 29, 2012), and Deutsche Bank National Trust Co. v.
McKiernan, Case I.D. 1CC09-000910 (Haw. 1st Cir.).5
Plaintiff, the district court granted Williams’s motion to
dismiss because Home 123 Corporation (“Home 123”) assigned the
mortgage and note to Deutsche Bank National Trust Co. (“Deutsche
Bank”) after filing its bankruptcy petition, and without approval
Plaintiff appears to refer to an order issued in
connection with McKiernan in support of her argument, but failed
to supply the Court with a copy of the referenced documents.
of the bankruptcy court.
[Mem. in Opp. at 6.]
Second, Plaintiff cites New Century Mortgage Corp. v.
Braxton, No. 09 MISC 393485(GHP), 2010 WL 59277 (Mass. Land Ct.
Jan. 11, 2010).
According to Plaintiff, “the court held that
plaintiffs had not proved standing without express trustee
[Mem. in Opp. at 6 (emphasis omitted).]
Defendant’s Standing to Foreclose on the Property
Plaintiff contends that, without receiving leave of the
bankruptcy court to execute the Assignment, Defendant lacked
standing to foreclose on the Property.
Plaintiff takes issue
with Defendant’s argument that BNC’s bankruptcy does not render
the Assignment from MERS to Defendant void.
in Supp. of Motion at 8).]
[Id. (quoting Mem.
Plaintiff contends that, in making
this argument, Defendant has “intentionally omitted BNC from the
equation[,] escalating MERS into the status as an autonomous
Plaintiff also takes issue with Defendant’s assertion
that the Mortgage authorized MERS to take any action required of
BNC and/or its successors or assigns.
In opposition, Plaintiff
asserts that the language contained in the Mortgage was
insufficient to establish MERS’s status as BNC’s agent. [Id. at
6-7 (citing In re Agard, 444 B.R. 231, 252 (Bankr. E.D.N.Y.
Plaintiff then quotes the Agard court in stating, “the
fact that MERS is named ‘nominee[’] in the Mortgage is not
dispositive of the existence of an agency relationship and does
not, in and of itself, give MERS any ‘authority to act.’”
at 7 (emphasis in Mem. in Opp.) (quoting Agard, 444 B.R. at
Plaintiff points to Defendant’s reliance on Camat and
Kiah for its proposition that courts have previously rejected
Plaintiff’s theory that assignments are void due to bankruptcy
Plaintiff appears to assert that, because there is
“a clear distinction between bankruptcy and dissolution[,]” these
cases are not on point.
[Id. at 7-8.]
Plaintiff then points to the Motion where, after
quoting Kiah, Defendant stated the following:
mere fact that the Assignment from MERS to US Bank was recorded
in July 22, 2009 does not mean that the transfer of ownership
from BNC to its successor-in interest actually occurred on
July 22, 2009.”
[Id. at 8 (emphasis in Mem. in Opp.) (quoting
Mem. in Supp. of Motion at 9).]
According to Plaintiff, this
statement constitutes Defendant’s admission that the execution
date is not indicative of the actual transfer date, and thereby
discredits its own Assignment.
Plaintiff posits that “if an
Assignment does not transfer anything on the executed date, then
how is it being used as evidence of ownership to prove standing?”
Plaintiff argues that Defendant’s statement should give the Court
good cause for a closer examination of the Assignment.
Plaintiff does not contest Defendant’s argument that
BNC’s bankruptcy status would not stop transfers of the Mortgage
Plaintiff does, however, argue that any transfer of the
Mortgage by MERS that took place after BNC filed for bankruptcy
would only be valid with leave of the bankruptcy court.
Plaintiff asserts that the main issue in this case is whether the
Assignment is a nullity such that Defendant would have “failed to
prove standing without the express approval of the bankruptcy
In conclusion, Plaintiff argues that this Court should
deny Defendant’s Motion.
Plaintiff’s Standing to Challenge the Assignment
Defendant argues that Plaintiff has failed to address
the fact that she “lacks standing to bring any affirmative claim
challenging the Assignment of the Mortgage.”
[Reply at 2
Defendant argues that, contrary to
Plaintiff’s assertions, legal standing is a plaintiff’s
Because Defendant has not asserted affirmative
claims in this case, Defendant contends that it does not need to
establish standing to defend against Plaintiff’s Complaint.
at 3 (some citations omitted) (citing Benoist, 2012 WL 3202180,
The LBHI Bankruptcy Estate
According to Defendant, Plaintiff has argued that the
Stipulation is evidence of her satisfaction of the Mortgage, and
that the Property was being held under the LBHI bankruptcy
Defendant responds by asserting that the Stipulation is
actually in direct conflict with Plaintiff’s arguments.
Defendant quotes the Stipulation, “[a]s of the Commencement Date,
therefore, none of the Debtors held a direct interest in the
[Mortgage or Subordinate Mortgage].”
omitted) (quoting Stipulation at 3).]
[Id. at 3-4 (emphasis
Based on this language,
Defendant argues that the Stipulation establishes that LBHI and
Debtors held no interest regarding the Property as of
September 15, 2008, the date that LBHI and Debtors filed for
[Id. at 4 (citing 11 U.S.C. § 541(a)(1) (stating
that a bankruptcy estate “is comprised of . . . all legal or
equitable interests of the debtor in the property as of the date
of the commencement of the case.”)).]
Validity of the Assignment
Defendant maintains that the Assignment is valid.
Defendant argues that, because the Mortgage was not part of the
LBHI bankruptcy estate, the Assignment did not require bankruptcy
[Id. at 4-5 (citing Stalford v. Lion Fin., LLC
(In re Lancaster Mortg. Bankers, LLC), 391 B.R. 714, 723 (Bankr.
Defendant also maintains its argument that, despite
BNC’s bankruptcy petition, MERS did not require the bankruptcy
court’s approval in executing the Assignment.
that this district court has expressly rejected the argument that
MERS would require the bankruptcy court’s approval to assign a
mortgage after the original mortgagee has filed for bankruptcy.
[Id. at 5 (citing Cooper v. Bank of New York Mellon, Civil No.
11-00241 LEK-RLP, 2011 WL 3705058, at *13 (D. Hawai‘i Aug. 23,
Defendant contends that, where MERS holds a mortgage as
a “nominee” for the original mortgagee and/or its successors and
assigns, MERS retains authority to assign the mortgage, even
after the mortgagee has filed for bankruptcy.
Defendant asserts that, because the Mortgage explicitly
appoints MERS as nominee for BNC, the Mortgage authorized MERS to
take any action required of BNC or its successors and assigns,
including the right to assign the Mortgage.
asserts that the Assignment expressly provides that MERS was
acting in its capacity “‘as a nominee for [BNC], . . . its
successors and assigns’ in executing the Assignment.”
(quoting Reply, Decl. of Audrey M. Yap, Exh. B at 1).]
[Id. at 6
contends that, based on the express disclosures in the Mortgage
regarding MERS’s authority to transfer the Mortgage to Defendant,
Plaintiff has no basis to assert that the Assignment is void.
In conclusion, Defendant argues that the Complaint
should be dismissed, and any and all lis pendens or notices of
pendency of action filed in connection with this matter should be
expunged and released.
Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) permits a
motion to dismiss a claim for “failure to state a claim upon
which relief can be granted[.]”
Under Rule 12(b)(6), review is generally
limited to the contents of the complaint.
Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir. 2001). . . .
On a Rule 12(b)(6) motion to dismiss,
all allegations of material fact are taken as
true and construed in the light most
favorable to the nonmoving party. Fed’n of
African Am. Contractors v. City of Oakland,
96 F.3d 1204, 1207 (9th Cir. 1996). To
survive a motion to dismiss, a complaint must
contain sufficient factual matter to “state a
claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007). “A claim has facial plausibility
when the plaintiff pleads factual content
that allows the court to draw the reasonable
inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal,
--- U.S. ----, 129 S. Ct. 1937, 1949, 173 L.
Ed. 2d 868 (2009). “Threadbare recitals of
the elements of a cause of action, supported
by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at
554, 127 S. Ct. 1955).
Hawaii Motorsports Inv., Inc. v. Clayton Group
Servs., Inc., 693 F. Supp. 2d 1192, 1195-96 (D.
This Court, however, notes that the tenet
that the court must accept as true all of the
allegations contained in the complaint — “is
inapplicable to legal conclusions.” Iqbal, 129 S.
Ct. at 1949. Factual allegations that only permit
the court to infer “the mere possibility of
misconduct” do not show that the pleader is
entitled to relief. Id. at 1950.
“Dismissal without leave to amend is improper
unless it is clear that the complaint could not be
saved by any amendment.” Harris v. Amgen, Inc.,
573 F.3d 728, 737 (9th Cir. 2009) (citation and
quotation marks omitted).
Enriquez v. Countrywide Home Loans, FSB, 814 F. Supp. 2d 1042,
1055 (D. Hawai`i 2011) (some citations omitted).
Defendant attached the Mortgage to the instant Motion,
and there are several relevant exhibits attached to the Complaint
itself, including the Stipulation.
This district court has
When a defendant attaches exhibits to a motion to
dismiss, the court ordinarily must convert the
motion into a summary judgment motion so that the
plaintiff has an opportunity to respond. Parrino
v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir.
1998). However, a court “may consider evidence on
which the complaint ‘necessarily relies’ if: (1)
the complaint refers to the document; (2) the
document is central to the plaintiff’s claim; and
(3) no party questions the authenticity of the
copy attached to the 12(b)(6) motion.” Marder v.
Lopez, 450 F.3d 445, 448 (9th Cir. 2006). The
court may treat such a document as “part of the
complaint, and thus may assume that its contents
are true for purposes of a motion to dismiss under
Rule 12(b)(6).” United States v. Ritchie, 342
F.3d 903, 908 (9th Cir. 2003).
Yamalov v. Bank of Am. Corp., CV. No. 10–00590 DAE–BMK, 2011 WL
1875901, at *7 n.7 (D. Hawai`i May 16, 2011).
Rule 201 of the Federal Rules of Evidence governs when
a federal district court may take judicial notice of an
Rule 201 provides in pertinent part:
The court may judicially notice a fact that is not
subject to reasonable dispute because it:
(1) is generally known within the trial
court’s territorial jurisdiction; or
(2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be
Fed. R. Evid. 201.
Judicial Notice of the Stipulation
As an initial matter, the Court will address
Plaintiff’s Judicial Notice Motion.
This district court has
This court “may take notice of proceedings in
other courts, both within and without the federal
system, if those proceedings have a direct
relation to matters at issue.” United States ex
rel. Robinson Rancheria Citizens Council v.
Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
A court may also take judicial notice of the
existence of matters of public record, such as a
prior order or decision, but not the truth of the
facts cited therein. See Lee v. City of Los
Angeles, 250 F.3d 668, 689-690 (9th Cir. 2001);
see also Interstate Natural Gas Co. v. Southern
California Gas Co., 209 F.2d 380, 385 (9th Cir.
1953) (holding that a court may take judicial
notice of records and reports of administrative
Finley v. Rivas, Civ. No. 10-00421 DAE-KSC, 2010 WL 3001915, at
*2 n.2 (D. Hawai`i July 31, 2010).
Plaintiff alleges that the United States Bankruptcy
Court for the Southern District of New York issued the
[Complaint at ¶ 35.]
The Stipulation asserts that
it is related to the bankruptcy proceedings of LBHI and Debtors.
[Stipulation at 1.]
Because the Stipulation is an order of
public record, the Court HEREBY GRANTS Plaintiff’s Judicial
Notice Motion, and takes judicial notice of the Stipulation.6
Count I - Wrongful Foreclosure
Count I of the Complaint alleges that Defendant
conducted a wrongful foreclosure of the Property.
(1) the Assignment from MERS to Defendant is
invalid; (2) Defendant cannot foreclose because it does not own
the Note; and (3) Defendant does not have a valid security
interest in the Property because it failed to comply with the
terms of the PSA.
[Id. at ¶¶ 22, 25-26, 30.]
The Validity of the Assignment
Plaintiff alleges that, because the bankruptcy court
The Court emphasizes, however, that it does not take
judicial notice of the facts cited within the Stipulation. See
Lee, 250 F.3d at 689-90. Although the Court cites facts stated
in the Stipulation, the Court notes that it does so only to the
extent necessary to put into context the allegations of the
Complaint and the arguments of Defendant’s Reply. The Court
further notes that these cited facts do not alter its analysis or
conclusions as to Defendant’s Motion.
did not approve the Assignment, it is invalid.
Plaintiff argues that Deutsche Bank National Trust Co. v.
Williams, Civil No. 11-00632 JSM/RLP, 2012 WL 1081174 (D. Hawai‘i
Mar. 29. 2012), and New Century Mortgage Corp. v. Braxton, No. 09
MISC 393485(GHP), 2010 WL 59277 (Mass. Land. Ct. Jan. 11, 2010),
support her argument.
[Mem. in Opp. at 7-8.]
In these cases,
however, the issue was not whether the plaintiffs, the purported
assignees of the defendants-borrowers’ mortgages, required
approval from the bankruptcy courts with respect to the
assignments fo the mortgages.
Instead, the Williams and Braxton
courts dismissed the plaintiffs’ actions because, in light of the
assigning mortgagees’ effective liquidation plans, both had
failed to establish their legal standing to enforce the
In Williams, the court held that the
plaintiff did not have legal standing because it failed to
present evidence that, despite the original mortgagee’s
bankruptcy and liquidation prior to the execution of its
purported assignment, the assignment was nevertheless valid.
Williams, 2012 WL 1081174, at *3-4.
Similarly, in Braxton, the
court held that the plaintiff had no legal standing because it
failed to show that it was the assignee of a valid assignment
from the original mortgagee, which had already filed for
bankruptcy and transferred all of its assets into a liquidation
Braxton, 2010 WL 59277, at *6.
Although the Braxton
court noted that the plaintiff could have showed that the
liquidation trustee permitted the assignment, Braxton is
inapplicable here because the Complaint does not allege that BNC
had a liquidation plan in effect at the time of the Assignment.
Thus, Williams and Braxton do not support Plaintiff’s
argument that the lack of approval from the bankruptcy court
renders the Assignment invalid.
Plaintiff also argues that MERS, acting as nominee on
behalf of BNC, had no authority to execute the Assignment.
in Opp. at 6-7.]
Plaintiff urges the Court to follow In re
Agard, 444 B.R. 231 (Bankr. E.D.N.Y. 2001), vacated in part by,
Agard v. Select Portfolio Servicing, Inc., Nos. 11-CV-1826(JS),
11-CV-2366(JS), 2012 WL 1043690 (Mar. 28, 2012 E.D.N.Y.).
Plaintiff argues that, in Agard, the court held that the fact
that the subject mortgage named MERS the “nominee” and “mortgagee
of record” was not dispositive of an agency relationship, and did
not give MERS any authority to act.
[Mem. in Opp. at 7.]
MERS is a separate corporation that is acting
solely as a nominee for Lender and Lender’s
successors and assigns. MERS is the mortgagee
under this Security Instrument. . . . Borrower
understands and agrees that . . . MERS (as nominee
for Lender and Lender’s successors and assigns)
has the right: to exercise any or all of those
interests, including but no limited to, the right
to foreclose and sell the Property; and to take
any action required of Lender[.]
[Mortgage at 3, 4 (emphasis in original).]
In Cooper v. Bank of New York Mellon, Civil No. 1100241 LEK-RLP, 2011 WL 3705058, at *13 (D. Hawai‘i Aug. 23,
2011), this Court analyzed a mortgage that contained identical
language to the Mortgage in this case.
There, this Court stated,
“[u]nder this plain language, MERS had the authority to take any
action required of the lender.”
Cooper, 2011 WL 3705058, at *13;
see also Benoist, 2012 WL 3202180, at *4-5 (concluding that the
plaintiffs, the borrowers of a mortgage also containing identical
language to the instant Mortgage, had “no basis to assert that
[the lender] did not authorize MERS to transfer the mortgage”).
After determining that MERS had such authority, this Court
concluded that the lender’s bankruptcy and “dissolution did not
prevent its successors and assigns from seeking transfer of the
mortgage from MERS.”
Cooper, 2011 WL 3705058, at *13 (citing
Kiah v. Aurora Loan Servs., LLC, Civil Action No. 10-40161-FDS,
2011 WL 841282, at *4 (D. Mass. Mar. 4, 2011)).
In light of this
district court’s previous holdings, the Court declines to follow
The Court therefore CONCLUDES that, because the language
in the Mortgage granted MERS the requisite authority, the
Assignment of the Mortgage from MERS to Defendant is valid.
Defendant’s Requirement to Produce the Note
Plaintiff argues that Defendant did not have the right
to foreclose on the Property because it did not own, nor does it
have any legal relationship with, the Note.
[Complaint at ¶ 25.]
Defendant contends that it is the owner of the Note, as well as
[Mem. in Supp. of Motion at 4.]
to have completed a nonjudicial foreclosure on the Property
pursuant to Haw. Rev. Stat. § 667-5.
[Complaint, Exh. A at 2.]
This district court
has rejected that HRS § 667-5 includes any
affirmative requirement that the mortgagee produce
the note-the plain language of § 667-5 includes no
such requirement, and reading such requirement
into § 667-5 would be inconsistent with decisions
in other jurisdictions that have refused to a read
a “show me the note” requirement into nonjudicial
foreclosure statutes that do not otherwise
explicitly include such a requirement.
Lee v. Mortg. Elec. Registration Sys., Inc., Civil No. 10-00687
JMS/BMK, 2012 WL 6726382 (D. Hawai‘i Dec. 26, 2012) (citing
Pascual v. Aurora Loan Servs., Civil No. 10-00759 JMS/KSC, 2012
WL 3583530, at *3 (D. Hawai‘i Aug. 20, 2012)); see also
Niutupuivaha v. Wells Fargo Bank, N.A., Civil No. 13-00172 LEKKSC, 2013 WL 3819600, at *9 (D. Hawai‘i July 22, 2013); Nottage
v. Bank of New York Mellon, Civil No. 12-00418 JMS/BMK, 2012 WL
5305506, at *7 (D. Hawai‘i Oct. 25, 2012); Fed. Nat’l Mortg.
Ass’n v. Kamakau, Civil No. 11-00475 JMS/BMK, 2012 WL 622169, at
*5 n.5 (D. Hawai‘i Feb. 23, 2012).
Thus, the Court CONCLUDES
that, even if the Complaint’s allegations that Defendant failed
to establish that it owned or had any legal relationship with the
Note are taken as true, such failures would not constitute a
violation of Haw. Rev. Stat. § 667-5.
Plaintiff’s Standing to Challenge Violations of the PSA
Plaintiff alleges that deficiencies in the
securitization process and non-compliance with the PSA regarding
the Mortgage render invalid any security interest that Defendant
may have in the Property.
[Complaint at ¶ 30.]
contends that these allegations further support Count I in the
This Court has held that,
as a general rule, a borrower’s allegations of
improper securitization and improper foreclosure
and ejectment fail because third parties lack
standing to raise a violation of the PSA.
Billete[v. Deutsche Bank Nat’l Trust Co.], [Civil
No. 13-00061 LEK-KSC,] 2013 WL 1367834, at *7 [(D.
Hawai‘i May 29, 2013)]. In Nottage, however, this
district court denied the defendant’s motion to
dismiss where the complaint asserted that, at the
time of the assignment, the assignor no longer
existed because it had been acquired by another
entity. 2012 WL 5305506, at *4. Similarly, in
Billete, this Court refused to dismiss the
plaintiffs’ claim that the assignment, subsequent
foreclosure, and ejectment were invalid because
the complaint alleged that the execution of the
assignment occurred approximately six months after
the assignor’s dissolution. 2013 WL 1367834, at
Niutupuivaha, 2013 WL 3819600, at *9 (citations omitted).
Court concluded that the reasons for denying the defendant’s
motions to dismiss in Billete and Nottage were not present in
The Court therefore dismissed the plaintiffs’
claims for wrongful foreclosure because the complaint failed to
allege “any factual allegations to support a claim that the
entity assigning [the defendant] its interest in [the
plaintiffs’] loans did not exist or otherwise lacked standing to
assign the loans to [the defendant].”
As in Niutupuivaha, the reasons for the denial of the
defendants’ motions to dismiss in Billete and Nottage are also
not present in the instant case.
The Complaint does not contain
any factual allegations to support a claim that BNC, the entity
assigning Defendant its interest in the Mortgage, did not exist
or otherwise lacked standing to assign the loans to Defendant.
The Complaint merely alleges that, six months before the
execution of the Assignment, BNC filed for bankruptcy.
[Complaint at ¶ 3.]
Furthermore, the Court notes that the
general rule, that borrowers lack standing to raise noncompliance with the terms of a PSA, also extends to Plaintiff’s
argument that Defendant’s foreclosure was wrongful because the
Trust was closed at the time of the Assignment.
2013 WL 1367834, at *7.7
Plaintiff argues that Defendant’s foreclosure of the
Property was wrongful because it lacked standing to do so.
[Complaint at ¶ 27; Mem. in Opp. at 6-8.] Plaintiff’s argument,
however, “confuses a borrower’s, as opposed to a lender’s
standing to raise affirmative claims.” Williams, 2012 WL
1081174, at *5; see also Williams v. Rickard, Civil No. 09-00535
SOM/KSC, 2011 WL 2116995 (D. Hawai`i May 25, 2011)). In Rickard,
the district court clarified the difference between the two,
stating, “‘[s]tanding is a plaintiff’s requirement, and [the
plaintiff-borrower] misconstrues the concept in arguing that [the
This Court therefore GRANTS Defendant’s Motion as to
Furthermore, the Court finds that the defects in Count
I cannot be cured by any amendment, see Harris, 573 F.3d at 737,
and HEREBY DISMISSES Count I WITH PREJUDICE.
III. Count II - Quiet Title
Count II of the Complaint is to quiet title to the
Property pursuant to Haw. Rev. Stat. § 669-1(a) and Haw. Const.
art. XVI, § 12.
The foundation of Count II is based upon the
Stipulation, which, Plaintiff asserts, granted her relief from
the automatic stay regarding LBHI’s and Debtor’s bankruptcy
proceedings, as well as the right to commence an action to quiet
title to the Property.
[Complaint at ¶¶ 35-36, 41.]
Haw. Rev. Stat. § 669-1(a)
Haw. Rev. Stat. § 669-1(a) provides, “Action may be
brought by any person against another person who claims, or who
may claim adversely to the plaintiff, an estate or interest in
real property, for the purpose of determining the adverse claim.”
In Phillips v. Bank of America, this district court
in order to assert a claim for “quiet title”
defendants, the purported mortgagees,] must establish ‘standing’
to defend themselves.” Rickard, 2011 WL 2116995, at *5. Thus,
the issue before the Court is whether Plaintiff is able to
establish legal standing to raise affirmative claims against
Defendant, and not whether Defendant can establish legal standing
to enforce the Mortgage.
against a mortgagee, a borrower must allege they
have paid, or are able to tender, the amount of
indebtedness. “A basic requirement of an action
to quiet title is an allegation that plaintiffs
‘are the rightful owners of the property, i.e.,
that they have satisfied their obligations under
the deed of trust.’” Rosenfeld v. JPMorgan Chase
Bank, N.A., --- F. Supp. 2d ----, 2010 WL 3155808,
at *20 (N.D. Cal. Aug. 9, 2010) (quoting Kelley v.
Mortg. Elec. Registration Sys., 642 F. Supp. 2d
1048, 1057 (N.D. Cal. 2009). “[A] borrower may
not assert ‘quiet title’ against a mortgagee
without first paying the outstanding debt on the
property.” Id. (applying California law - Miller
v. Provost, 26 Cal. App. 4th 1703, 1707, 33 Cal.
Rptr. 2d 288 (1994) (“a mortgagor of real property
cannot, without paying his debt, quiet his title
against the mortgagee”) (citation omitted), and
Rivera v. BAC Home Loans Servicing, L.P., 2010 WL
2757041, at *8 (N.D. Cal. July 9, 2010)).
Civil No. 10-00551 JMS-KSC, 2011 WL 240813, at *13 (D. Hawai`i
Jan. 21, 2011); see also Kamakau, 2012 WL 622169, at *8-9
(concluding that the plaintiff-mortgagor had “not alleged
sufficient facts regarding the interests of various parties to
make out a cognizable claim for ‘quiet title.’”); Abubo v. Bank
of New York Mellon, Civil No. 11-00312 JMS-BMK, 2011 WL 6011787,
at *5 (D. Hawai`i Nov. 30, 2011).
In Klohs v. Wells Fargo Bank, N.A., Civil No. 12–00274
JMS–RLP, 2012 WL 4758126 (D. Hawai`i Oct. 4, 2012), this district
a quiet title claim against a mortgagee (or
purported servicer for the mortgagee) requires an
allegation that Plaintiffs “ha[ve] paid, or [are]
able to tender, the amount of indebtedness.”
[Fed. Nat’l Mortg. Ass’n v.] Kamakau, [Civil No.
11–00475 JMS/BMK] 2012 WL 622169, at *9 [(D.
Hawai`i Feb. 23, 2012)] (“A basic requirement of
an action to quiet title is an allegation that
plaintiffs are the rightful owners of the
property, i.e., that they have satisfied their
obligations under the [note and mortgage]”)
(internal quotations marks and citation omitted).
Many cases from this district and elsewhere rely
on this rule requiring a plaintiff “to establish
his superior title by showing the strength of his
title as opposed to merely attacking the title of
the defendant.” Amina v.. [sic] Bank of N.Y.
Mellon, 2012 WL 3283513, at *3 (D. Haw. Aug. 9,
2012) (citing cases).
2012 WL 4758126, at *7 (footnote omitted) (some alterations in
The district court in Klohs also stated:
Amina v. Bank of New York Mellon, 2012 WL 3283513
(D. Haw. Aug. 9, 2012), explained that the tender
requirement does not apply “where the borrower
brings a quiet title claim against a party who,
according to the allegations in the Complaint
(which the court accepts as true), is not a
mortgagee and who otherwise has no interest in the
property whatsoever.” Id. at *4. This exception,
however, does not apply here, where Plaintiffs are
“seek[ing] a declaratory judgment that [Wells
Fargo], who falsely claims to be the servicer
despite that the Trust into which the Note and
Mortgage were sold has dissolved[.]” Doc. No. 18,
Pls.’ Opp’n at 7. Plaintiffs are asserting that
Wells Fargo’s status as a servicer for a mortgagee
is invalid, and thus the tender requirement
applies. Id. at *5 (“To be clear, . . . , this is
not a case where Plaintiffs assert that
Defendant’s mortgagee status is invalid (for
example, because the mortgage loan was securitized
or because Defendant does not hold the note).”).
If Plaintiffs’ theory is that its title is
superior to that of Wells Fargo’s “cloud on title”
(a purported right to foreclose), then Plaintiffs
are required to allege an ability to tender the
outstanding loan obligation.
Id. at *7 n.6 (some alterations in Klohs).
Applying this law to
the instant case, Plaintiff has failed to make sufficient factual
allegations to support a cognizable claim for quiet title against
The Complaint alleges that, pursuant to the
Stipulation, Plaintiff has the right to quiet title to the
[Complaint at ¶¶ 35-36.]
In her Memorandum in
Opposition, Plaintiff appears to argue that the Stipulation also
evidences an agreement between her and BNC that Plaintiff
satisfied her obligations under the Mortgage.
[Mem. in Opp. at
The Complaint, however, contains no allegations that
Plaintiff has paid or is able to tender the outstanding debt, or
has otherwise satisfied her obligations, with respect to the
Mortgage and Note.
Furthermore, to the extent that Plaintiff has
alleged some elements of a quiet title claim under Haw. Rev.
Stat. § 669-1, these allegations are supported by mere conclusory
This Court therefore CONCLUDES that Plaintiff has
failed to state a plausible claim for quiet title under Haw. Rev.
Stat. § 669-1.
Haw. Const. art. XVI, § 12
The Complaint states that Plaintiff also brings Count
II against Defendant pursuant to article XVI, section 12, of the
Constitution of the State of Hawai‘i, which provides:
No person shall be deprived of title to an estate
in real property by another person claiming
actual, continuous, hostile, exclusive, open and
notorious possession of such lands, except to real
property of five acres or less. Such claim may be
asserted in good faith by any person not more than
once in twenty years.
Haw. Const. art. XVI, § 12.
In addressing Hawai`i constitutional claims brought
against a private individual, this district court made the
following statement, which is applicable to the instant case:
constitutional claim requires ‘state action’ and here any alleged
wrongdoing was done by private parties, not by a government
actor. . . .
Moreover, it is not even clear that a violation of
the Hawaii Constitution is, by itself, actionable.”
Deutsche Bank Nat’l Trust Co., Civil No. 10-00359 JMS/KSC, 2011
WL 5079586, at *19 n.4 (D. Hawai`i Oct. 24, 2011) (citing Mow by
Mow v. Cheeseborough, 696 F. Supp. 1360, 1365 (D. Hawai`i 1988)
(“The Hawaii state appellate courts have yet to enunciate whether
the State recognizes a cause of action for damages arising from a
deprivation of rights under the Hawaii Constitution as against
The Court therefore GRANTS Defendant’s Motion as to
To the extent that Plaintiff seeks to quiet title
pursuant to Haw. Rev. Stat. § 669-1, the Court finds that it is
arguably possible for Plaintiff to cure the defects in Count II
The Court also finds that Plaintiff’s claim under
Haw. Const. art. XVI, § 12 against Defendant, a private entity,
cannot be cured by any amendment.
See Harris, 573 F.3d at 737.
Thus, with respect to Plaintiff’s claim under Haw. Rev. Stat.
§ 669-1, Count II is DISMISSED WITHOUT PREJUDICE.
claim under Haw. Const. art. XVI, § 12, however, is DISMISSED
Plaintiff is granted until September 16, 2013 to file a
motion to the magistrate judge which seeks permission to file an
amended complaint addressing the deficiencies noted in this
The Court CAUTIONS Plaintiff that, if she fails to timely
file a motion seeking leave to file an amended complaint, the
claims which this Court has dismissed without prejudice will
automatically be dismissed with prejudice.
The Court emphasizes
that it has not granted Plaintiff leave to add new parties,
claims, or theories of liability.
If Plaintiff wishes to add new
parties, claims, or theories of liability, she must either obtain
a stipulation from Defendant or file a separate motion seeking
leave to amend according to the Rule 16 Scheduling Order.
On the basis of the foregoing, Defendant’s Motion to
Dismiss Complaint and Expunge Lis Pendens, filed on May 28, 2013,
is HEREBY GRANTED, and Plaintiff’s Motion to Take Judicial
Notice, filed June 18, 2013, is HEREBY GRANTED.
Motion is GRANTED with respect to Count I, which is DISMISSED
The Motion is GRANTED with respect to Count II,
which is DISMISSED WITHOUT PREJUDICE as to Plaintiff’s claim
pursuant to Haw. Rev. Stat.
§ 669-1, and DISMISSED WITH
PREJUDICE as to Plaintiff’s claim under Haw. Const. art. XVI,
To the extent that the Court has dismissed a portion of
Count II in the Complaint without prejudice, the Court GRANTS
Plaintiff leave until September 16, 2013 to submit a motion to
the magistrate judge seeking permission to file an amended
complaint consistent with the terms of this Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 27, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MILLICENT ANDRADE V. US NATIONAL BANK ASSOCIATION, ETC.; CIVIL
NO. 13-00255 LEK-KSC; ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS COMPLAINT AND EXPUNGE LIS PENDENS AND GRANTING
PLAINTIFF’S MOTION TO TAKE JUDICIAL NOTICE
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