Ohlsen et al v. Bank of America N.A. et al

Filing 31

ORDER adopting 28 Report and Recommendations; granting 12 Defendant's Motion to Dismiss. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SCOTT OHLSEN and BARBARA
OHLSEN,
Plaintiffs,
v.

Case No. 1:11-cv-00357-BLW-REB
ORDER

BANK OF AMERICA, N.A. as successor
to COUNTRYWIDE HOME LOANS,
INC., a Delaware Corporation;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEM, INC.,
a Delaware Corporation; RECONTRUST
COMPANY, N.A., a corporation of
unknown origin and a wholly-owned
subsidiary of Bank of America,
N.A.; BANK OF NEW YORK MELLON
FKA THE BANK OF NEW YORK as
trustee for the certificate holders of
CWMBS INC., CHL MORTGAGE PASSTHROUGH TRUST 2004-J5,
a corporation; and DOES 1-10 as
individuals or entities with an interest in
the property commonly known as:
12987 Sandy Drive, Donnelly, Idaho,
83615,
Defendants.
On August 10, 2012, United States Magistrate Judge Ronald E. Bush issued a
Report and Recommendation (Dkt. 28), recommending that Defendants’ Motion to
Dismiss (Dkt. 12) be granted. Any party may challenge a magistrate judge’s proposed

ORDER - 1

recommendation by filing written objections within fourteen days after being served with
a copy of the Magistrate Judges’s Report and Recommendation. See 28 U.S.C. §
636(b)(1)(C). The district court must then “make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” Id. The district court may accept, reject, or modify in whole or in
part, the findings and recommendations made by the Magistrate Judge. Id.; see also Fed.
R. Civ. P. 72(b).
Plaintiffs filed an objection challenging the Report and Recommendation’s
conclusion that their Complaint be dismissed. (Dkt. No. 29). Plaintiffs, in their objection,
merely restate the same arguments made in their response to the motion to dismiss. The
Court has nonetheless carefully considered the Plaintiffs’ contentions and conducted a de
novo review of the record and the Court agrees with Judge Bush’s conclusions.
Plaintiffs are in default on their mortgage obligations, have not tendered payment of their
obligation, and thus are not entitled to quiet title. Plaintiffs’ theories that securitization of
the mortgage clouded title to the property, or that MERS is not a valid beneficiary
entitled to enforce the note, are not supported by the case law or the loan documents.
Plaintiffs also cannot offer any legal authority in support of their claim that Defendants
cannot foreclose unless they prove they possess the note. Finally, Plaintiffs have failed to
show that the debt was not properly assigned, or that Defendants otherwise failed to
comply with Idaho’s foreclosure laws. As such, Defendants’ motion to dismiss will be
granted.

ORDER - 2

ORDER
IT IS ORDERED:
1.

Having conducted a de novo review of the Report and Recommendation,
the Court finds that Magistrate Judge Bush’s Report and Recommendation
is well founded in law and consistent with the Court’s own view of the
record. Therefore, acting on the recommendation of Magistrate Judge Bush,
and this Court being fully advised in the premises, IT IS HEREBY
ORDERED that the Report and Recommendation entered on August 10,
2012, (Dkt. 28), shall be, and is hereby, INCORPORATED by reference
and ADOPTED in its entirety.

2.

Defendants’ Motions to Dismiss (Dkt. 12) is GRANTED.

DATED: September 17, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

ORDER - 3