Rheinschild Family Trust v. Rankin et al

Filing 104

MEMORANDUM DECISION AND ORDER denying 2 Plaintiff's Motion for TRO and Preliminary Injunction; granting 15 Defendant Bank of America's Motion to Take Judicial Notice; granting 32 Defendant Rankin's Motion to Take Judicial Notice; granting 16 Defendant Bank of Americas Motion to Dismiss; granting 31 Defendant Rankins Motion to Dismiss; granting 42 Defendants Nationstar Mortgage, LLC and U.S. Bank, N.A.s Motion for Summary Judgment; 49 Plaintiff's Motion to Strike ; denying 50 Plaintiff's Motion for Relief; denying 68 Plaintiff's Motion for Stay; denying 89 Plaintiff's Motion to Amend and Join Necessary Parties; denying as moot 44 Defendant Nationstars Motion to Expedite; denying as moot 92 Defendant U.S. Banks Motion to Amend/Correct Answer to Complaint. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RHEINSCHILD FAMILY TRUST,
Case No. 1:15-CV-00194-EJL
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
CASPER J. RANKIN; NATIONSTAR
MORTGAGE LLC; U.S. BANK, N.A.;
AND BANK OF AMERICA, N.A.,
Defendants.

Pending before the Court are numerous motions filed by the parties. Plaintiff has filed
a motion for Preliminary Injunction (Dkt. 2), a motion to amend, a motion to stay, a motion
for relief pursuant to Fed. R. Civ. P. 56(d) (Dkt. , Defendants have filed motions for judicial
notice, to dismiss, for summary judgment, motion to expedite, motion to amend (Dkts. 15,
16, 31, 32, 42, 44, 92). The Court has allowed the briefing to be completed on all pending
motions and the parties have filed a notice with the Court indicating that settlement efforts
have been unsuccessful. Dkt. 99. Therefore, the pending motions are now ripe for the
Court’s review.
Having fully reviewed the record herein, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record. Accordingly, in the interest of
avoiding further delay, and because the Court conclusively finds that the decisional process
MEMORANDUM DECISION AND ORDER- 1

would not be significantly aided by oral argument, this motion shall be decided on the record
before this Court without oral argument.

FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit began in federal court on June 6, 2015, when Plaintiff Rheinschild
Family Trust (RFT) filed a motion for a temporary restraining order and preliminary
injunction to prevent Defendants from conducting the trustee sale of the real property at
issue which was scheduled for June 11, 2015, in Ketchum, Idaho. The parties stipulated to
postpone the sale until the Court had the opportunity to consider the briefing on the
motion for preliminary injunction. Dkt. 12.
RFT filed this action in federal court based on the diversity of the parties and the
amount in controversy exceeding $75,000. Complaint, Dkt. 1 at 2. Plaintiff challenges the
Defendants’ anticipated trustee sale of certain real property described as 708 North Canyon
Run Boulevard, Ketchum, Idaho 83340 (the “Property”).1 The Complaint as well as the
Motion for TRO and Preliminary Injunction were served upon the Defendants on June 5,
2015 and a lis pendens was recorded in Blaine County, Idaho on June 8, 2015. Affidavit of
Proper Service Upon Defendants, Dkt. 9.
Successor trustee Rankin executed a Notice of Default on October 28, 2014. Dkt. 2-2,
at 120. The Notice of Trustee’s Sale originally scheduled the sale of the Property for April
1

The legal description for the Property is: Lot 29 of SUN VALLEY SUBDIVISION,
according to the official plat thereof, recorded as Instrument No. 92929, records of Blaine
County, Idaho.
MEMORANDUM DECISION AND ORDER- 2

14, 2015 and indicates the amount owing on the obligation secured by the deed of trust as of
December 3, 2014 is $9,376,566.15. Id. at 122. Plaintiff sought a loan modification and the
trustee sale was postponed. The loan modification request was denied. On June 7, 2015, a
Notice of Postponed Trustee’s Sale rescheduled the trustee’s sale for June 11, 2015. Id. at
123. One month later, Plaintiff filed this action to stop the trustee sale one week before the
scheduled sale.
RFT has an ownership interest in the Property at issue.2 Greg Rawlings is the sole
trustee for the RFT. It is undisputed that R. William Rheinschild and Erin Ellis Rheinschild,
as Trustees for RFT, refinanced the Property in 2006. Mr. Rheinschild executed a Promissory
Note (Note) (Dkt. 42-6 copy and 92-2 copy of original signature) in the amount of
$6,900,000 which was secured by a Deed of Trust (Dkt. 2-2, Ex. 6.) executed by Mr. and
Mrs. Rheinschild on the Property held by RFT. Dkt. 42-12.
Because notes and deeds of trust are regularly sold by lenders and successor trustees
change after execution it is important to understand the order and timing of assignments. This
case is no exception as there have been numerous assignments and transfers of interests
related to the security instrument and deed of trust that have been publicly recorded.
2

R. William Rheinschild and Erin Ellis Rheinschild, as Trustees of The Rheinschild
Family Trust dated May 18, 2001 were grantees to the Property in the warranty deed from
Richard Fosbury recorded April, 15, 2003. Dkt. 42-12. William Rheinschild and Erin Ellis
Rheinschild, as Trustees of The Rheinschild Family Trust dated May 18, 2001 transferred
the Property to R. William Rheinschild, a married man as his sole and separate property, in
a warranty deed recorded on November 13, 2006 at 2:02 p.m. Dkt. 42-13. In a warranty deed
recorded at 2:05 p.m. on November 13, 2006, R. William Rheinschild transferred the
Property back to R. William Rheinschild and Erin Ellis Rheinschild, as Trustees of The
Rheinschild Family Trust dated May 18, 2001. Dkt. 42-14.
MEMORANDUM DECISION AND ORDER- 3

A. The Deed of Trust on August 26, 2006, identifies Countrywide Home Loans, Inc.
(Countrywide) as the lender and Mortgage Electronic Registration Systems, Inc. (MERS) as
the beneficiary and nominee for the lender and the lender’s successors and assigns. Dkt. 2-2,
Ex. 6. Fidelity National Title was listed as the original trustee in the Deed of Trust. Dkt. 2-2,
Ex. 6.
B. On December 14, 2011, MERS assigned the Deed of Trust to U.S. Bank, National
Association (US Bank) successor trustee to Bank of America, N.A. (BANA), successor by
merger to LaSalle Bank, N.A., as trustee for the Holders of the Thornburg Mortgage
Securities Trust 2007-3. Dkt. 15-3.
C. On October 2, 2012, BANA as attorney in fact for US Bank, appointed ReconTrust
Company, N.A. (Recon Trust) as successor trustee. Dkt. 15-4.
D. On March 11, 2015, BANA as attorney in fact for US Bank appointed Northwest
Trustee Services, Inc. (Northwest) as successor trustee. Dkt. 15-5.
E. On November 18, 2013, BANA as attorney in fact for US Bank appointed Elisa
Magnuson (Magnuson) as successor trustee. Dkt. 15-6.
F. Limited Power of Attorney executed on or about March 17, 2014 and recorded on
September 10, 2014 between US Bank and Nationstar. Dkt. 32-3. Power of Attorney has a
an attached schedule of trusts for which Nationstar is acting as attorney in fact and the
schedule of 632 trusts including as number 610, “Thornburg Mortgage Securities Trust 20073, Mortgage Pass-Through Certificates Series 2007-3.”

MEMORANDUM DECISION AND ORDER- 4

F. On October 10, 2014, Nationstar Mortgage LLC (Nationstar) as attorney in fact for
US Bank appointed Casper J. Rankin (Rankin) as successor trustee. Dkt. 32-4. Rankin then
recorded the Notice of Default on October 29, 2014. Dkt. 32-5. Rankin then recorded the
Notice of Trustee’s Sale on February 5, 2015. Dkt. 32-6.
Plaintiff does not dispute it is in default on its obligations related to the Property.
Instead, Plaintiff claims Rankin does not have proper legal title and cannot issue a valid
notice of default on the Property or schedule a trustee sale. Plaintiff’s Complaint seeks
injunctive relief stopping the trustee sale on June 11, 2015, quiet title, slander of title,
violation of Idaho Code § 45-1501, et. seq., and attorneys fees.3

Analysis

1. Motions for Judicial Notice
The Court has reviewed the motions for judicial notice filed in this matter and agrees
the Court may take judicial notice under Fed. R. Evid. 201 of facts that can accurately and
readily be determined from the recorded documents filed with the county related to the
Property. These motions shall be granted.

3

A claim for attorney’s fees as contained in Count 5 is a general claim for relief based
on prevailing on one or more of the other claims, it is not an independent statutory claim for
legal relief in this case and as such will not be addressed as a “claim” to subject to the
pending motions to dismiss or for summary judgment.
MEMORANDUM DECISION AND ORDER- 5

2. Motions to Dismiss
The Court will begin its analysis with the motions to dismiss. If Plaintiff cannot
successfully defend against these motions, then it is fatal to RFT’s motion for preliminary
injunction. The Supreme Court clarified the standard for a preliminary injunction to require
a plaintiff to show “[1] he is likely to succeed on the merits, [2] that he is likely to suffer
irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in
his favor, and [4] that an injunction is in the public interest.”Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). Therefore, if Plaintiff cannot
establish a likelihood of success on the merits, it cannot satisfy the preliminary injunction
standard.
A motion to dismiss allows a court “to eliminate actions that are fatally flawed in their
legal premises and destined to fail, and thus to spare litigants the burdens of uncessary
pretrial and trial activies.” Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988
F.ed 1157, 1160 (Fed. Cir. 1993). A motion to dismiss should not be granted “unless it
appears beyond doubt that Plaintiff can prove no set of facts in support of his claim that
would entitle him to relief.” Clegg v. Cult Awareness Network, 18 F. 3d 752, 754 (9th Cir.
1994). All allegations of material fact in the complaint are taken as true and construed in
the light most favorable to the non-moving party. See Buckey v. County of Los Angeles, 968
F.2d 791, 794 (9th Cir. 1992). However, a court is not required to “accept legal conclusions
cast in the form of factual allegations if those conclusions cannot reasonably be drawn from
the facts alleged.” Clegg at 754-755.
MEMORANDUM DECISION AND ORDER- 6

The Ninth Circuit has held that “in dismissals for failure to state a claim, a district
court should grant leave to amend even if no request to amend the pleading was made, unless
it determines that the pleading could not possibly be cured by the allegation of other facts.”
Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242,
247 (9th Cir. 1990). While amendments are liberally permitted under Rule 15(a), the district
court may deny leave to amend when there has been an undue delay in bringing the motion,
and the opposing party would be unfairly prejudiced by the amendments. See United States
v. Pend Oreille Public Utility Dist. No. 1, 28 F.3d 1544, 1552-53 (9th Cir. 1994).
Generally, the Court may not consider any material beyond the pleadings in ruling on
a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Branch v. Tunnell, 14 F.3d 449, 453
(9th Cir. 1994). If materials outside the pleadings are considered, the motion is converted
to a motion for summary judgment governed by Fed. R. Civ. P. 56. See Jacobsen v. AEG
Capital Corp., 50 F.3d 1493, 1496 (9th Cir. 1995).
But as Branch makes clear, there are times when documents other than the pleadings
can be considered without converting a motion to dismiss into a motion for summary
judgment. “[D]ocuments whose contents are alleged in a complaint and whose authenticity
no party questions, but which are not physically attached to the pleading, may be considered
in ruling on a Rule 12(b)(6) motion to dismiss.” Branch, 14 F.3d at 453.

MEMORANDUM DECISION AND ORDER- 7

A. Bank of America’s Motion to Dismiss
Bank of America, N. A. (BANA) seeks dismissal of all claims pursuant to Fed. R. Civ.
P. 12(b)(6). RFT concedes in its responsive briefing to the dismissal of Counts I (Injunctive
Relief) and IV (Violation of Idaho Code 45-1501, Et. Seq.) of the Complaint to the extent
such claims related to BANA as BANA is not the party seeking to foreclose and RFT has
stipulated to the dismissal of any claims against BANA based on the power of attorney with
US Bank. Dkt. 85. Therefore, the Court will grant BANA’s motion to dismiss as to Counts
1 and IV and will only address claims set forth as Count 2 (Quiet Title) and Count 3 (Slander
of Title).
Plaintiff’s quiet title claim fails as to all defendants as RFT does not allege it has
tendered (or even has the ability to tender) the balance owing on the debt. Trusty v. Ray, 249
P. 2d 814, 817 (1952) (“There is no more firmly established rule than that the liability to pay
a mortgage debt rests upon the mortgaged land as well as upon the mortgagor. A mortgagor
cannot without paying his debt quite title as against the mortgagee . . . .”) (citing Gerken v.
Davidson Grocery Co., 296 P. 192, 193 (Idaho 1931). RFT claims it has standing for its quiet
title claim in that it is trying to establish security in the title to the Property. This argument
is misplaced as RFT’s “ownership interest” in the Property is not at issue in this case and
RFT has failed to provide case law that supports the court can grant equitable relief from the
duty to tender.

MEMORANDUM DECISION AND ORDER- 8

If RFT wants to quiet its title in this particular case, it has to pay the outstanding debt
on the Property so that no holder of the beneficial interest in the Note and Deed of Trust has
any claim to the Property. RFT has failed to tender and this claim must be dismissed not
only as to BANA but as to all Defendants. See Williams v. Bank of America, N.A., 2012 WL
3286052; *3 (D. Idaho 2012); Cherian v. Countrywide Home Loans, Inc., 2012 WL
2865979, *2 (D. Idaho 2012); Hobson v. Wells Fargo Bank, N.A., 2012 WL 505917, *3 (D.
Idaho 2012); Deckys v. BAC Home Loans Servicing LP, 2013 WL 3081947, *6 (D. Idaho
2013). Additionally, RFT claiming it does not know “who” the true trustee is on the Deed
of Trust is unpersuasive in excusing the tender requirement as RFT has not argued in the
alternative it will tender the entire debt owed to the Court even if its “confused trustee”
theory is accepted by the Court. See Gilbert v. Bank of America, N.A. , 2011 WL 4345004,
*2 (d. Idaho 2011) (“Without evidence or even an assertion that Plaintiffs can or are willing
to tender payment on their loan, they cannot succeed on their quiet title action, as a matter
of law.”). For these reasons, the quiet title claim will be dismissed as to all defendants.
As to RFT’s Slander in Title claim, the Court finds this claim also must be dismissed
against all Defendants. “Slander of title requires proof of four elements: (1) publication of
a slanderous statement; (2) its falsity; (3) malice and (4) resulting special damages.”
McPheters v. Maile, 64 P.3d 317, 321 (Idaho 2003). “Malice has been generally defined by
Idaho courts as a reckless disregard for the truth or falsity of a statement. An action will not
lie where a statement in slander of title, although false, was made in good faith with probable
cause for believing it.” Weitz v. Green, 230 P. 3d 743, 754 (Idaho 2010).
MEMORANDUM DECISION AND ORDER- 9

Again, the Court finds Plaintiff’s legal argument is misplaced. Even if RFT claims that
the assignments and appointments of successor trustees were invalid (which the Court does
not find as discussed infra), the publicly recorded information regarding the beneficial owner
and successor trustees does not include any slanderous statements regarding the debt owed
and originally taken out by the Rheinschilds. Rankin believes he was validly appointed as
trustee of record and RFT has not alleged a vexatious reason for Rankin’s actions in the
Complaint. Plaintiff was not disparaged because a Notice of Default or Notice of Sale was
filed. Plaintiff is in default on the Note and in default on the Deed of Trust regardless of who
currently holds the beneficial interest in the Note and Deed of Trust. The purpose of the
recording of assignments and appointments is to put RFT and subsequent purchasers on
notice of who the owner of the beneficial interest in the original Deed of Trust is and who
is currently acting as trustee for said interest.
Moreover, the recorded documents do not contain false statements about the Deed of
Trust entered into by the Rheinschilds. Based on the undisputed fact that RFT is in default
and has been so for years, the Court finds RFT has failed to even allege facts that could be
interpreted to be a slanderous statement about RFT or the Rheinschilds. Nor has RFT alleged
the falsity of any slanderous statement about RFT’s interest or shown any malice on the part
of BANA or any other of the Defendants in the form of reckless disregard for the truth or
falsity of any statement in the recorded documents. Nor has RFT alleged with any specificity

MEMORANDUM DECISION AND ORDER- 10

damages related to the alleged slander that would not otherwise exist based on RFT’s
undisputed state of default on the Note at issue in this case. For these reasons, the claim for
slander in title must be dismissed as a matter of law against all Defendants.

3. Rankin’s Motion to Dismiss and Nationstar and US Bank’s Motion for
Summary Judgment
The Court finds the arguments of Rankin are intertwined with the dismissal arguments
of Nationstar and US Bank and it makes the most sense to address the arguments as to all
three of these Defendants at the same time.
A. Motion for Relief Pursuant to Rule 56(d) and Motion for Stay based on
Rule 56(d)
Plaintiff seeks time to conduct further discovery prior to the Court ruling on the
pending motion for summary judgment. RFT argues it needs to complete limited discovery
to determine if the last known beneficiary of the Deed of Trust, Thornburg Mortgage
Securities Trust 2007-3, actually appointed US Bank to act as Trustee thereby giving US
Bank authority to appoint Nationstar to service the loan and appoint Rankin to foreclose. The
Court respectfully disagrees that any additional discovery is needed as the recorded
documents speak for themselves as to the entity who is the beneficiary of the Deed of Trust,
trustees for the beneficiary, the servicer who was authorized to appoint a successor trustee,
and the current trustee seeking non-judicial foreclosure. The narrow facts of this case do not
MEMORANDUM DECISION AND ORDER- 11

require additional discovery in addition to the recorded documents and related affidavits in
order for the Court to rule on the legal issues.
RFT claims the motion for summary judgment was filed prematurely. The Court
disagrees and Fed. R. Civ. P. 56 (b) allows a party to file a motion for summary judgment
at any time. Therefore, the motion is not premature. The motion is simply referred to as a
motion for summary judgment (instead of a motion to dismiss) as there are limited affidavits
that must be considered along with the publicly recorded documents to better explain the
entity known as Thornburg Mortgage Securities Trust 2007-3 to determine if genuine issues
of material fact exist to prevent dismissal. The request for Rule 56(d) relief is denied.
Plaintiff also seeks a stay based on its allegation Thornburg Mortgage Securities Trust
2007-3 is a debtor in bankruptcy and RFT would like to add Thornburg Mortgage Securities
Trust 2007-3 as a defendant in this case. The Court has determined it has a sufficient record
to address Plaintiff’s argument that there is some confusion over the “entity” which holds a
beneficiary interest in the Deed of Trust. As discussed in this Order, the Court is satisfied US
Bank acts as trustee for the entity Thornburg Mortgage Securities Trust 2007-3 regarding the
Deed of Trust at issue in this case. Therefore, there is no need for a stay or additional
discovery to clarify this issue.
Moreover, the bankruptcy status of the trust entity with a beneficiary interest is
represented by US Bank as trustee and US Bank has granted a limited power of attorney to
Nationstar to service deeds of trust related to the beneficiary trust entity. The issue in this
non-judicial foreclosure action is whether the trustee has met the requirements under Idaho
MEMORANDUM DECISION AND ORDER- 12

law to foreclose. There is no requirement for the trustee seeking to foreclose to establish the
status of the trust entity that has an interest in the Deed of Trust at issue. Stated differently,
regardless of the status of Thornburg Mortgage Securities Trust 2007-3, US Bank as trustee
for the trust entity who granted a power of attorney to Nationstar and Nationstar appointed
Rankin, gives Rankin the legal authority to seek to foreclose on the Property due to RFT’s
undisputed default on the underlying Note and Deed of Trust. Even if Thornburg Mortgage
Securities Trust 2007-3 is a debtor in bankruptcy, the bankruptcy estate has an interest in
allowing Rankin to seek foreclosure on the undisputed default related to one of the many
deeds of trust held by the trust entity known as Thornburg Mortgage Securities Trust 2007-3.
Nor does the Court find the Thornburg Mortgage Securities Trust 2007-3 is a
necessary or indispensable party based on Plaintiff’s argument US Bank has not proven it has
authority from the holder of the beneficial interest in the Deed of Trust to act. The trust entity
is not a necessary or indispensable party that needs to be joined as its interests are
represented by its trustee in this case US Bank. See Bergkamp v. New York Guardian
Mortgagee Corp., 667 F. Supp. 719 (D. Mont. 1987), citing 3A J. Moore, Moore’s Federal
Practice ¶ 19.08 at 19-175. In this case, the Court can determine who holds the beneficiary
interest based on the recorded documents and related affidavits. Moreover, as will be
discussed later in this Order, Plaintiff lacks standing in a non-judicial foreclosure action to
require the trustee seeking foreclosure to prove the authority of the trustee under Idaho Code
§ 45-1501, Et seq. For these reasons, the motion to stay is not appropriate in this case and is
denied.
MEMORANDUM DECISION AND ORDER- 13

B. Plaintiff’s Motion to Strike Affidavit of A. J. Loll
Plaintiff seeks to strike paragraphs 11 through 16 of the affidavit of A. J. Loll as
containing inadmissible evidence not based on personal knowledge. The Court has reviewed
Loll affidavit (Dkt. 42-3) and makes the following findings. Loll works for as Vice President
for Nationstar and is familiar with the standards within the mortgage servicing industry for
naming and classifying mortgage loan investment pools also known as mortgage backed
securities. Loll is familiar with the type of records maintained by Nationstar in connection
with the loan at issue in this case for which Nationstar is the loan servicer. Loll explains in
paragraph 11 that “Mortgage Backed Notes, Series 2007-3" is language used in the mortgage
investment industry to describe the same concept as “Mortgage Pass-Through Certificates
Series 2007-3." In paragraph 12 she describes the SEC has assigned Thornburg Trust the
Central Index Key (CIK) number of 000114007659 which Loll links to an EDGAR web
search. Thornburg Trust is an asset-based investment according to the SEC site. This is
consistent with what Rankin’s attorney, Ms. Magnuson found when she conducted an
EDGAR search. Dkt. 32-7.
Ms. Loll then compares the preliminary prospectus and prospectus supplement found
on the SEC website to confirm Thornburg Trust deals in mortgage pass-through certificates
or mortgage-backed notes. Thornburg Mortgage Securities Trust 2007-3 yields only one
result which is the Thornburg Trust. Loll then concludes that “Thornburg Mortgage
Securities Trust 2007-3" and “Thornburg Mortgage Securities Trust 2007-3, Mortgage PassMEMORANDUM DECISION AND ORDER- 14

Through Certificates Series 2007-3" and “Thornburg Mortgage Securities Trust 2007-3,
Mortgage Backed Notes, Series 2007-3" are all the same entity.
The Court finds this analysis and research by Loll is based on personal knowledge of
the mortgage investment industry in working for Nationstar and Loll’s specific SEC searches
related to Thornburg Trust. See Self Reliance v. Ananda Church, 206 F. 3d 1322, 1330 (9th
Cir. 2000) (“Personal knowledge can be inferred from an affiant’s position.”). The testimony
is not based on speculation and her internet searches of the SEC site have been detailed. The
SEC information is public information and while numerous pages must be reviewed to find
the relevant information for Thornburg Mortgage Securities Trust 2007-2, that does not make
the information inadmissible for purposes of summary judgment.
After Loll filed a more detailed Supplemental Affidavit explaining in further detail
the SEC search results (Dkt. 56), the Court is satisfied the opinion regarding the trust entity
has been substantiated and is subject to rebuttal evidence by Plaintiff, which the Court notes
Plaintiff has not produced any contrary affidavit regarding the trust entity. Further, the Court
finds Loll’s testimony would be admissible at trial under Fed. R. Evid. 701 or 702 whether
Nationstar was offering Loll as a lay witness or an expert witness. Nationstar need not
designate Loll as an expert for purposes of summary judgment. Instead, Loll’s affidavit is
sufficient to establish personal knowledge of the affiant based on working in the mortgage
industry. The Court will consider both affidavits of Loll for purposes of the motion for
summary judgment as well as Rankin’s motion to dismiss. The motion to strike is denied.

MEMORANDUM DECISION AND ORDER- 15

C. Rankin”s Motion to Dismiss and US Bank and Nationstar’s Motion for
Summary Judgment
Defendant Rankin was named as a party in this litigation as he is the current appointed
trustee of the Deed of Trust the beneficiary is seeking to foreclose with regard to the
Property. Rankin moves to dismiss under Fed. R. Civ. P. 12(b)(6) based on RFT’s failure to
state a claim upon which relief can be granted as no trustee sale has yet occurred so there can
be no violation of Idaho Code § 15-1501, Et seq., that is actionable. RFT responds that
Rankin does not hold legal title to the Property as trustee and therefore, cannot legally
foreclose upon it. This argument is based on the premise that Rankin is not the authorized
trustee so if a sale is held, the subsequent purchaser at the sale cannot obtain clear title to the
Property. Nationstar and US Bank move for summary judgment on all claims.
The Court has previously determined that the quiet title and slander of title claims are
dismissed as to all defendants, so the Court will focus on Count IV the alleged violation of
Idaho Code non-judicial foreclosure statutes. Count 1 is not a substantive claim, instead it
is a type of relief for the other alleged claims.
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural shortcut,”
but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can]
MEMORANDUM DECISION AND ORDER- 16

be isolated and prevented from going to trial with the attendant unwarranted consumption
of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). Material facts are those that may affect the outcome of the case. See id.
at 248.
The moving party is entitled to summary judgment if that party shows that each issue
of material fact is not or cannot be disputed. To show the material facts are not in dispute,
a party may cite to particular parts of materials in the record, or show that the materials cited
do not establish the presence of a genuine dispute, or that the adverse party is unable to
produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A)&(B); see T.W.
Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex, 477 U.S. at 322). The Court must consider “the cited materials,” but it may also
consider “other materials in the record.” Fed. R. Civ. P. 56(c)(3).
Material used to support or dispute a fact must be “presented in a form that would be
admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted in
support of or opposition to a motion “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).

MEMORANDUM DECISION AND ORDER- 17

The Court does not determine the credibility of affiants or weigh the evidence set forth
by the non-moving party. All inferences which can be drawn from the evidence must be
drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31
(internal citation omitted).
Rule 56(e)(3) authorizes the Court to grant summary judgment for the moving party
“if the motion and supporting materials–including the facts considered undisputed–show that
the movant is entitled to it.” The existence of a scintilla of evidence in support of the nonmoving party’s position is insufficient. Rather, “there must be evidence on which the jury
could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, 477 U.S. at
252.
The Court will begin by discussing the status of trustee on the Deed of Trust. In
reviewing the publicly recorded documents in the record, the Court finds MERS, acting as
nominee for Countrywide, had authority to convey the beneficial interest under the Deed of
Trust to US Bank (as trustee for Thornburg Mortgage Securities Trust 2007-3). The Deed of
Trust disclosed to Mr. and Mrs. Rheinschild, MERS’ role as beneficiary and nominee of the
lender, and the lenders successors and assigns. In executing the Note and Deed of Trust
documents, the Rheinschilds agreed “MERS holds only legal title to the interests granted by
Borrower in this security instrument, but if necessary to comply with law or custom, MERS
(as nominee for Lender [Countrywide] and Lender’s successors and assigns) has the right:
to exercise any or all of those interests, including, but not limited to, the right to foreclosure

MEMORANDUM DECISION AND ORDER- 18

and sell the Property; and take any action required of Lender, including, but not limited to,
releasing and canceling this Security Instrument.”
A deed of trust is “given to secure an obligation to the beneficiary and for the benefit
of the beneficiary.” Edwards v. Mortgage Electronic Regsitration Systems, Inc., 300 P. 3d
43, 48 (Idaho 2013). Under the terms of the Deed of Trust at issue, RFT cannot now claim
it did not have notice of the change in beneficiary or that the transfer was in violation of the
terms of the Deed of Trust as the Court finds all of the assignments and appointments of
successor trustees were publicly recorded and provided notice to RFT and subsequent
purchasers. The Deed of Trust provided for assignments to occur and that is exactly what
happened in this case. MERS clearly assigned the beneficial interest in the Deed of Trust to
US Bank as trustee for the holders of Thornburg Trust Mortgage Securities 2007-3 on
December 14, 2011, which was recorded on December 19, 2011, Dkt. 15-3.
Plaintiff contends BANA could not appoint Recon Trust, Northwest or Magnuson as
successor trustees under the Deed of Trust as the power of attorney between US Bank and
BANA to act as US Bank’s attorney in fact was not publicly recorded pursuant to Idaho Code
§ 55-806 which requires “[a]n instrument executed by an attorney in fact must not be
recorded until the power of attorney authorizing the execution of the instrument is filed for
record in the same office.”
This argument is a red herring. First, RFT is not proceeding against BANA for a
violation of Idaho Code § 45-1501 Et seq. so it is immaterial that BANA did not record the
Power of Attorney it executed with US Bank. In fact, Plaintiff stipulated to the dismissal of
MEMORANDUM DECISION AND ORDER- 19

claims against BANA based on the power of attorney with US Bank. Dkt. 85.
Second, the Power of Attorney between US Bank and Nationstar was recorded and
it is Nationstar (not BANA) that appointed Rankin as trustee. Since it is Rankin that filed the
Notice of Default and Notice of Trustee’s Sale, RFT’s argument regarding the failure to
record the power of attorney agreement simply does not apply to challenge Rankin’s
authority.
Third, an appointment of successor trustee is legally valid between the parties to the
appointment even if the power of attorney was not recorded. Purdy v. Bank of America, 2012
WL 4470938, *5 (D. Idaho 2012). This is because the purpose of the recording statute is
provide notice to subsequent purchasers and a failure to record does not void the agreement
between the parties entering a contract. The power of attorney agreement is a contract and
is legally enforceable and valid between the parties, US Bank and BANA. Since RFT was
not a party to the power of attorney agreement, it cannot collaterally challenge the validity
of the power of attorney between US Bank and BANA. Any action taken pursuant to the
power of attorney contract by BANA in appointing successor trustees is a legally valid action
under these circumstances. Simply put, the failure to record the power of attorney by BANA
and US Bank does not invalidate the appointments of interim successor trustees of which
RFT had notice and which were publicly recorded. This is especially true in this case where
Rankin was appointed pursuant to a different and properly recorded power of attorney
between US Bank and Nationstar.

MEMORANDUM DECISION AND ORDER- 20

RFT next claims because of the failure to record the power of attorney between US
Bank and BANA, there are multiple possible trustees that could foreclose: the original trustee
Fidelity National Title, the last successor trustee appointed by BANA which was Magnuson,
and Rankin the successor trustee appointed by Nationstar pursuant to the recorded power of
attorney between US Bank and Nationstar. This argument is also not persuasive. The
recorded documents provide notice to subsequent purchasers (as well as to the other former
trustees) which trustee is seeking foreclosure. There have been no claims by prior appointed
trustees that Rankin does not have legal authority to pursue the non-judicial foreclosure.
Furthermore, RFT lacks standing to make such a claim on behalf of a former trustee and if
another trustee ever sought to foreclose they would have to sue Rankin, not RFT, for
improperly foreclosing and recovering monies on their claim to the property. There is no risk
of dual liability on the part of RFT as there is no allegation in the Complaint that another
trustee is attempting to foreclose. Moreover, Idaho Code § 45-1508 grants a finality of the
foreclosure sale for RFT. The Court finds this argument is not relevant, is speculative and
there is remedy easily available to RFT if there were multiple trustees seeking to foreclose
on the same property in the future.
Next, RFT claims it has set forth in its Complaint a cognizable claim for a violation
of Idaho Code § 45-1501 Et seq. Rankin maintains he has complied with the legal
requirement for a non-judicial foreclosure, therefore, RFT fails to state a claim that supports
a violation has or will occur if the trustee sale proceeds.

MEMORANDUM DECISION AND ORDER- 21

The requirements for foreclosing on trust deeds outside of the judicial process is set
forth in Idaho Code § 45-1505:
(1) The trust deed, any assignments of the trust deed by the trustee or the
beneficiary and any appointment of a successor trustee are recorded in
mortgage records in the counties in which the property described in the deed
is situated; and
(2) There is a default by the grantor or other person owing an obligation the
performance of which is secured by the trust deed or by their successors in
interest with respect to any provision in the deed which authorizes sale in the
event of default of such provision; and
(3) The trustee or beneficiary shall have (a) filed for record in the office of the
recorder in each county wherein the trust property, or some part or parcel, is
situated, a notice of default identifying the deed of trust by stating the name or
names of the trustor or trustors and giving the book and page where the same
is recorded, or a description of the trust property, and containing a statement
that a breach of the obligation for which the transfer in trust is security has
occurred, and setting forth the nature of such breach and his election to sell or
cause to be sold such property to satisfy such obligation ...
(4) No action, suit or proceeding has been instituted to recover the debt then
remaining secured by the trust deed, or any part thereof, or if such action or
proceeding has been instituted, the action or proceeding has been dismissed.

“Additionally, once the notice of default has been recorded, the trustee must give formal
notice of the trustee's sale to parties specified in the statute. See I.C. § 45-1506. These are
the only requirements that precede foreclosure. We hold that, pursuant to I.C. § 45–1505, a
trustee may initiate nonjudicial foreclosure proceedings on a deed of trust without first
proving ownership of the underlying note or demonstrating that the deed of trust beneficiary
has requested or authorized the trustee to initiate those proceedings.” Trotter v. Bank of New
York Mellon, 275 P.3d 857, 862 (Idaho 2012).
MEMORANDUM DECISION AND ORDER- 22

In reviewing the recorded documents submitted to the Court (and to which the Court
has taken judicial notice of), RFT has failed to establish that Rankin has not complied with
the statutory requirements for a non-judicial foreclosure of Idaho Code § 45-1505 or the
notice requirements of Idaho Code § 45-1506. The Deed of Trust was recorded, assignments
of the beneficial interest were recorded, appointments of successor trustees were recorded
including the appointment of Rankin as trustee, RFT is in default on the debt obligation
secured by the Deed of Trust, Rankin recorded a Notice of Default and a Notice of Trustee’s
Sale and served the same upon RFT and the other parties required in the statute. Finally,
there is no allegation in the Complaint of a pending judicial action to recover on the debt.
Pursuant to Trotter, Rankin need not prove the beneficiary’s ownership of the Note
and Deed of Trust or their request of the beneficiary’s trustee to foreclose. The trustee’s
standing does not have to be proven to proceed with a statutory non-judicial foreclosure.
Idaho Code §§ 45-1502-1515. Absent allegations that can be supported by the publicly
recorded documents in this case that Rankin has failed to comply with the requirements of
Idaho Code § § 45-1505 and 1506, the Court must dismiss the claim of a violation of state
law and any claim for injunctive relief against Defendant Rankin.
Finally, RFT argues its claim of a violation Idaho Code § 45-1501 Et seq. should not
be dismissed as the recorded documents submitted in this case support that the naming of the
trust entity on the recorded documents was incorrect and breaks the chain of title for the
appointment of Rankin to be valid. This is an interesting argument, but the Court finds such
argument is form over substance in this specific case.
MEMORANDUM DECISION AND ORDER- 23

The Assignment of Deed of Trust recorded on December 19, 2011, Dkt. 15-3,
transferring the beneficial interest in the Deed of Trust from MERS to US Bank as trustee
for the holders of Thornburg Mortgage Securities Trust 2007-3. Specifically the 2011
assignment grants the beneficial interest to “U.S. Bank National Association, successor
trustee to Bank of America, N.S., successor by merger to LaSalle Bank, N.A. as Trustee for
Holders of the Thornburg Mortgage Securities Trust 2007-3." The power of attorney between
US Bank and Nationstar recorded on September 10, 2014, Dkt. 32-3, signed by “US Bank
National Association, as Trustee” and incorporates the trust entity known as “Thornburg
Mortgage Securities Trust 2007-3, Mortgage Pass Through Certificates Series 2007-3.” The
Appointment of Successor Trustee naming Rankin as trustee was recorded on
October 22, 2014, Dkt. 15-6, and was signed by an agent of Nationstar on behalf of
“Thornburg Mortgage Securities Trust 2007-3, Mortgage Backed Notes, Series 2007-3, US
Bank National Association as Indenture Trustee, successor in interest to Bank of America
National Association, as Indenture Trustee, successor by merger to LaSalle Bank National
Association.”
The fact that the appointment of successor trustee signed and recorded by Nationstar
as attorney in fact for US Bank added the additional terms of “as Indenture Trustee” in
describing US Bank and BANA and puts the referenced mortgage securities trust for which
US Bank is trustee for at the beginning of the description versus the end of the description
does not change that US Bank is the trustee for the Holders of the “Thornburg Mortgage
Securities Trust 2007-3, Mortgage Backed Notes, Series 2007-3" which is the same entity
MEMORANDUM DECISION AND ORDER- 24

described as “Thornburg Mortgage Securities Trust 2007-3, Mortgage Pass Through
Certificates Series 2007-3 ” which is the same entity described as “Thornburg Mortgage
Securities 2007-3.” Thornburg Mortgage Securities 2007-3 is the entity that holds the
beneficial interest in the pool of deeds of trusts which includes the Deed of Trust executed
by the Rheinschilds in 2006.
Regardless of RFT’s allegation there is confusion regarding the trust that holds the
beneficiary interest in the Deed of Trust, the Court finds there is no substantive confusion
regarding US Bank being the trustee for the holder of the “Thornburg Mortgage Securities
Trust 2007-3" as set forth on the Assignment of Deed of Trust by MERS and that Nationstar
acted pursuant to a valid power of attorney from US Bank that lists Thornburg Mortgage
Securities Trust 2007-3 with additional descriptive language. The additional descriptive
language regarding “Mortgage Backed Securities” or “Mortgage Pass Through Certificates”
using the same Thornburg Mortgage Securities Trust 2007-3 reference does create confusion
or a new trust entity. Asset backed securities, mortgage backed securities and mortgage pass
through certificates are all descriptive terms for the Thornburg Mortgage Securities Trust
2007-3 which is registered with the SEC as an asset-backed security.
The Court notes it is undisputed fact that the Securities and Exchange Commission’s
(SEC) filings show only one security entitled “Thornburg Mortgage Securities Trust 2007-3"
(Dkt. 32-7 and Affidavit of Loll) and that such security has been assigned the Standard
Industrial Code of 6189 for “Asset-Backed Securities” which is the same thing as “Mortgage
Backed Securities 2007-3" or “Mortgage Pass Through Certificates Series 2007-3." Affidavit
MEMORANDUM DECISION AND ORDER- 25

of Loll and Magnuson, Dkts. 42-3, 56 and 32-7. There is no factual support for an allegation
by RFT that the trust entity identified in the relevant recorded documents is incorrectly
identified or that there is confusion over which trust has a beneficial interest in the Deed of
Trust at issue in this case.
US Bank is trustee for the holders of the “Thornburg Mortgage Securities Trust 20073" and that description of the trust entity is sufficient even without reference to the trust being
comprised of mortgage pass through certificates or mortgage backed securities or assetbacked securities. The SEC classification description or equivalent description of the type
of securities contained in the Thornburg Mortgage Securities Trust 2007-3 is not necessary
for the valid transfer of beneficial interest from MERS to US Bank as trustee for Thornburg
Mortgage Securities Trust 2007-3. The proper trust (Thornburg Mortgage Securities Trust
2007-3) was included in 1) the assignment to US Bank by MERS, 2) the power of attorney
by US Bank to Nationstar and 3) in Nationstar’s appointment Rankin as successor trustee.
Because the name of the trust holding the beneficial interest was properly named in all three
publicly recorded documents, the Court finds RFT’s claim regarding US Bank, Nationstar
or Rankin’s authority to process the non-judicial foreclosure is legally flawed. The Court
agrees with the Defendants that this “confusion” argument as to the legal description of
Thornburg Mortgage Securities Trust 2007-3 appears instead to be a delay tactic on the part
of RFT to postpone the sale of the Property via a valid and properly recorded non-judicial
foreclosure process.

MEMORANDUM DECISION AND ORDER- 26

Stated another way, there is no confusion over which trust entity holds a beneficial
interest in the Deed of Trust or that US Bank represents Thornburg Mortgage Securities Trust
2007-3. The trust entity referenced on the recorded documents is sufficient, although slightly
more specific on some documents, to identify the correct trust that holds an interest in the
Deed of Trust for the Property being foreclosed. All the names used are names for the same
entity. The longer names simply add descriptive terms to the shorter name of “Thornburg
Mortgage Securities Trust 2007-3" which is properly included on each recorded document.
The order of where “Thornburg Mortgage Securities Trust 2007-3" is listed is not
determinative of whether or not the recorded documents are legally valid. This is a hyper
technical argument highlighting a distinction without a difference.
Nationstar Vice President A. J. Loll has filed affidavits indicating the trust entities
listed on the recorded documents are the same entity. Affidavits of A. J. Loll, Dkts. 42-3 and
56. The alleged legality of the identification of the underlying trust has been established and
Plaintiff has not provided any case law that supports the argument that subsequently added
descriptive terms relating to the underlying trust entity are sufficient to break the chain of
title in this case or to prevent a motion to dismiss or motion for summary judgment from
being granted.4 Plaintiff has not rebutted the recorded documents and has failed to establish
4

The Court agrees with Nationstar and US Bank, that Plaintiff’s identification of the
legal name of the family trust has also been incomplete in that the warranty deeds
transferring the property to the trust (Dkts. 42-12, 42-13, 42-14) refer to the “Rheinschild
Family Trust dated May 18, 2001" and Plaintiff claims it has standing in this case when it
refers to Plaintiff only as “Rheinschild Family Trust.” To apply Plaintiff’s hyper technical
argument to their own pleadings for not using the full legal name for the trust would arguably
(continued...)
MEMORANDUM DECISION AND ORDER- 27

a genuine issue of material fact regarding the Thornburg Mortgage Securities 2007-3 entity.
Most importantly, Plaintiff has failed to present factual allegations that Rankin has not fully
complied with the legal requirements for a non-judicial foreclosure in Idaho.
So the ultimate question in this case can now be answered by Trotter v. Bank of New
York Mellon, 275 P.3d 857 (Idaho 2012) which is directly on point and is the applicable
substantive Idaho law that applies to the facts of this case. As much as Plaintiff wants to
argue the foreclosure should be a judicial foreclosure and it should be allowed to add a new
claim to contest whether US Bank had authority from Thornburg Mortgage Securities Trust
2007-3, Plaintiff simply does not have the right under Idaho law to change the process from
a non-judicial foreclosure authorized under Idaho law to a judicial foreclosure. The
legislature created the non-judicial foreclosure process to streamline foreclosures where
defaults have occurred and specific requirements are met. Here, the Court has determined
that MERS properly assigned its interest to US Bank as trustee for Thornburg Mortgage
Securities Trust 2007-3 in compliance with Idaho Code § 45-1503. US Bank recorded its
power of attorney given to Nationstar to service the Note and Deed of Trust, Nationstar
properly recorded an appointment of Rankin as successor trustee making such appointment
valid pursuant to Idaho Code § 45-1504. Therefore, as a matter of law for purposes of this
non-judicial foreclosure, Rankin was vested with the powers of the original trustee and he
properly recorded and provided notice to RFT of the Notice of Default and Notice of

4

(...continued)
defeat Plaintiff’s standing to even bring this action.
MEMORANDUM DECISION AND ORDER- 28

Trustee’s Sale. Idaho Code §§ 45-1503 through 45-1506. The statute does not require Rankin
prove the ownership of the underlying note or demonstrating the deed of trust beneficiary
requested or authorized the trustee to initiate the non-judicial foreclosure proceedings.
Trotter at 862.
Trotter specifically holds that the non-judicial foreclosure statute does not require the
trustee [Rankin] to prove it has “standing” before foreclosing. This is exactly what RFT is
seeking in attempting to argue a break in the chain of title of trustee authority or that it should
have more time to force US Bank (who has produced the original Note)5 to now produce the
document creating their trustee relationship with Thornburg Mortgage Securities Trust 20073 to show US Bank had authority to appoint Nationstar. No where does RFT explain how this
Court can ignore the well-established Idaho law on non-judicial foreclosures. Instead, RFT
argues, without citing legal authority, the Court “should” ask for more proof on collateral
matters that are not required by the statute. The Court cannot legislate additional
requirements that do not exist in the applicable statute.
The Court finds none of RFT’s additional demands are relevant to the non-judicial
foreclosure procedure in this matter. The facts are undisputed that RFT is in default and has
been for an extended period of time and that the statutory requirements of Idaho Code § 451501 Et seq. have been fully complied with. RFT’s arguments are without legal merit and
must be rejected.
5

The Court finds that pursuant to a non-judicial foreclosure, the beneficial holder does
not need to “produce the note” in order to proceed with the foreclosure. Hobson v. Wells
Fargo Bank, N.A., 2012 WL 505917 (D. Idaho 2012).
MEMORANDUM DECISION AND ORDER- 29

Here, like Trotter, the Court finds the record is undisputed that the appointment of
successor trustee, notice of default and notice of trustee sale complied with the statutory
requirements and were recorded as specified in the statute and US Bank, Nationstar and
Rankin met the requirements of Idaho Code §§ 45-1501 Et seq. RFT may not rest upon mere
allegations, speculation or denials, but must set forth specific facts showing there are genuine
issues for trial, it has failed to do so. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). RFT has failed to state a claim upon which relief can be granted for a violation of
Idaho Code § 45-1501 Et seq. or created a genuine issue of material fact that would prevent
summary judgment from be granted. For all these reasons set forth in this Order, all the
claims in Counts 1 - IV should be dismissed as a matter of law as to Defendants Rankin, US
Bank and Nationstar.

4. Motion to Amend Complaint and Join Necessary Parties
RFT seeks leave of the Court to amend its Complaint to add claim for negligence per
se because Defendants violated Idaho’s foreclosure statutes as well as a civil conspiracy
cause of action. RFT also seeks to join the Thornburg Trust as a necessary party. Defendants
object arguing the amendments would be futile. The Court agrees.
Pursuant to Fed. R. Civ. P. 15(a), leave to amend a pleading “shall be freely given
when justice so requires.” However, “leave to amend is not to be granted automatically.”
Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). A court should deny a
motion to amend “if permitting such an amendment would prejudice the opposing party,
MEMORANDUM DECISION AND ORDER- 30

produce an undue delay in the litigation or result in futility for lack of merit.” Id. Factors
to consider in deciding a motion to amend include: bad faith, undue delay, prejudice to the
opposing party, the futility of amendment; and whether plaintiff has previously amended its
complaint. Forman v. Davis, 371 U.S. 178, 182 (1962). The burden of establishing
prejudice is on the party opposing amendment. DCD Program v. Leighton, 833 F.2d 183
(9th Cir. 1987).
The Court has determined as a matter of law that the Idaho foreclosure statute has not
been violated and that the Thornburg Mortgage Securities Trust 2007-3 is not a necessary
party as its interests are represented by its trustee, US Bank, and that the appointment of
Rankin by Nationstar as successor trustee was pursuant to a valid recorded power of attorney
from US Bank to Nationstar, and that Rankin satisfied Idaho Code §§ 45-1505 and 45-1506,
so the non-judicial foreclosure should proceed. Having found RFT has no valid challenges
to the non-judicial foreclosure action, an amendment to add this claim for negligence per se
would be futile, prejudical to the opposing parties and appears to be solely for purposes of
delay. .
As to the request to add a civil conspiracy claim, such a claim is not a claim upon
which relief can be granted as it is merely a means by which liability for an underlying cause
of action may be extended to another party, the conspirator. St. Alphonsus Diversified Care,
Inc. v. MRI Assocs., LLP, 334 P.3d 780. Fn. 4 (Idaho 2014). Therefore allowing this
amendment would also be futile.

MEMORANDUM DECISION AND ORDER- 31

The Court has previously addressed why the Thornburg Trust is not a necessary or
indispensable party in this action. Further, the Court has determined under a non-judicial
foreclosure action RFT cannot require the trustee, Rankin, to prove his authority. The
Plaintiff’s motion to amend is denied.

5. Motion to Amend/Correct Answer to Complaint
US Bank seeks to amend its Answer to include a counterclaim and third party claim
for judicial foreclosure. The Court finds this request is moot as the Court has determined
Rankin can lawfully proceed with the non-judicial foreclosure of the Property.

6. Motion for Preliminary Injunction
As discussed earlier, this motion for injunctive relief must be denied based on the
Court’s granting of Defendants’ dispositive motions to dismiss or for summary judgment.

ORDER
IT IS ORDERED:
1)

Plaintiff’s Motion for Temporary Restraining Order and Preliminary
Injunction is (Dkt. 2) is DENIED.

2)

Defendant Bank of America’s Motion to Take Judicial Notice (Dkt. 15) and
Defendant Rankin’s Motion to Take Judicial Notice (Dkt. 32) are GRANTED.

3)

Defendant Bank of America’s Motion to Dismiss (Dkt. 16) is GRANTED.

4)

Defendant Rankin’s Motion to Dismiss (Dkt. 31) is GRANTED.

MEMORANDUM DECISION AND ORDER- 32

5)

Defendants Nationstar Mortgage, LLC and U.S. Bank, N.A.’s Motion for
Summary Judgment (Dkt. 42) is GRANTED

6)

Plaintiff’s Motion to Strike the Motion for Summary Judgment Affidavit of
A.J. Loll (Dkt. 49) is DENIED.

7)

Plaintiff’s Motion for Relief Pursuant to Rule 56(d) (Dkt. 50) and Motion for
Stay (Dkt. 68) are DENIED.

8)

Plaintiff’s Motion to Amend and Join Necessary Parties (Dkt. 89) is DENIED.

9)

Defendant U.S. Bank’s Motion to Amend/Correct Answer to Complaint (Dkt.
92) is DENIED AS MOOT.

10)

Defendant Nationstar’s Motion to Expedite Ruling on Motion for Preliminary
Injunction (Dkt. 44) is DENIED AS MOOT.

11)

Based on Court’s determination Plaintiff’s arguments lack merit, the length of
time this matter has been pending and the amount of the default at issue
exceeding $2,472,729 (see Dkt. 30, p. 4), the Court finds any further delay
unfairly prejudices Defendants and for that reason the Court will not entertain
any motions for reconsideration on this Order.

12)

Defendants shall submit a proposed order to the Court to be recorded by in
order to vacate or void the lis pendens filed by Plaintiff on June 8, 2015.

DATED: March 24, 2016

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER- 33