Sykes v. Mortgage Electronic Registration Systems, Inc. (MERS) et al

Filing 97

AMENDED ORDER re 93 Order. Having conducted a de novo review, the 91 Report and Recommendation is incorporated and adopted in its entirety; granting 72 MOTION for Judgment on the Pleadings; and all other motions denying as moot 51 MOTION for Hearing; 75 MOTION to Compel; 78 MOTION to Compel; 80 MOTION for Protective Order; 81 MOTION for Extension of Time to File Response/Reply; 82 MOTION for Extension of Time to File Response/Reply; 83 MOTION for Extension of Time to File Re sponse/Reply; 84 MOTION for Extension of Time to File Response/Reply. Plaintiff's Complaint 1 is DISMISSED with prejudice. 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

RICHARD SYKES,

Case No. 4:11-cv-00377-BLW-LMB
Plaintiff,

v.

AMENDED ORDER

PIONEER TITLE OF ADA COUNTY,
AMERICAN BROKERS CONDUIT,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.
(MERS), FEDERAL NATIONAL
MORTGAGE ASSOCIATION;
HOMEWARD RESIDENTIAL, INC.,
formerly known as AMERICAN
HOME MORTGAGE; NORTHWEST
TRUSTEE SERVICES, INC.,
Defendants.
On January 7, 2013, United States Magistrate Judge Larry M. Boyle issued a
Report and Recommendation, recommending that Defendant’s Motion for Judgment on
the Pleadings be GRANTED. (Dkt. 72). Any party may challenge a magistrate judge’s
proposed 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).
ORDER - 1

Plaintiff filed an objection challenging the Report and Recommendation’s
conclusion that their Complaint be dismissed. (Dkt. 92). Plaintiff, in his objection, merely
restates the same arguments made in their response to the motion for judgment on the
pleadings. The Court has nonetheless carefully considered the Plaintiff’ contentions and
conducted a de novo review of the record and the Court agrees with Judge Boyle’s
conclusions. Plaintiff was in default on his mortgage obligations and never tendered
payment of that obligation before the trustee sale occurred.
Plaintiff’s breach of fiduciary duty claims fail because no fiduciary relationship
exists between Plaintiff and any Defendant. A careful review and study of the Complaint
reveals that Plaintiff makes no factual allegations that are sufficient to support a claim to
believe or establish that any Defendant was acting in Plaintiff’s interests and not on its
own behalf, or that of the lender, as the loan servicer. See Bliss Valley Foods, Inc., 824
P.2d 841, 852 (Idaho 1991). (debtor-creditor is generally not a fiduciary relationship)).
Thus, the Complaint fails to allege any facts supporting more than an arms-length,
commercial relationship between a borrower and the servicing entity for the loan in
which no fiduciary obligations arise.
Plaintiff’s Truth In Landing Act claim fails because it is time barred. The statute
of limitations for a TILA claim is “one year from the date of the occurrence of the
violation.” 15 U.S.C. § 1640(e); Shaw v. Lehman Bros. Bank, FSB, 2009 WL 790166, at
*4 (D. Idaho 2009). Time begins to run when the plaintiff enters into the loan agreement.
See King v. Cal., 784 F.2d 910, 915 (9th Cir. 1986);. In this case, Plaintiff obtained the

ORDER - 2

loan in 2006, and the Complaint was filed on July 20, 2011 – after the one-year limitation
period had passed. Compl. ¶ 3.2. Plaintiff’s TILA claims are thus time barred and should
be dismissed.
Likewise, Plaintiff’s RESPA claim should be dismissed. None of Plaintiff’s
factual allegations amount to a violation of RESPA. But even if Plaintiff had alleged a
RESPA violation, Plaintiff has not alleged any actual harm resulting from any alleged
RESPA violations.
Plaintiff also did not allege facts that would support his intentional or negligent
infliction of emotional distress claims. The Court believes that losing a home is stressful,
and the Court understands Plaintiff’s frustration with the loan modification process. But
Plaintiff defaulted on his loan, thereby allowing Defendants to foreclose, and Defendants
had no legal obligation to modify Plaintiff’s loan terms. In view of the fact that Plaintiff
makes no claim that he did not owe the mortgage debt, or that it was not in default, the
Court cannot find the refusal to stop the foreclosure process as being “outrageous.” The
Court therefore finds that these allegations are not adequate , as a matter of law, to
constitute conduct or actions sufficient to establish a claim for intentional infliction of
emotional distress. Plaintiff’s negligent infliction of emotional distress claim fails
because Plaintiff cannot allege the existence of a duty, and he did not allege a physical
manifestation of his emotional injury.
Plaintiff’s remaining theories also fail. Plaintiff’s theories that securitization of
the mortgage clouded title to the property, or that MERS is not a valid beneficiary

ORDER - 3

entitled to enforce the note, are not supported by the case law or the loan documents.
Plaintiff also cannot offer any legal authority in support of their claim that Defendants
could not foreclose without producing the original note. Finally, Plaintiff has alleged no
facts to support his fraud claim. As such, Defendants’ motion for judgment on the
pleadings will be granted.
ORDER
IT IS ORDERED:
1. Having conducted a de novo review of the Report and Recommendation, the
Court finds that Magistrate Judge Boyle’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 Boyle, and this
Court being fully advised in the premises, IT IS HEREBY ORDERED that
the Report and Recommendation entered on January 7, 2013, (Dkt. 91), shall
be, and is hereby, INCORPORATED by reference and ADOPTED in its
entirety.
2. Defendants’ Motion for Judgment on the Pleadings is GRANTED (Dkt. 72) is
GRANTED.
3. All other pending motions (Dkts. 51, 75, 78, 80, 81, 82, 83, and 84) are
DENIED as MOOT; and
4. Plaintiff’s Complaint (Dkt. 1) is DISMISSED with prejudice.

ORDER - 4

DATED: February 14, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

ORDER - 5