Mustaiche v U.S. Bank National Association
Filing
23
ORDER AND REASONS granting in part and denying in part 18 Motion for Judgment on the Pleadings. Signed by Judge Martin L.C. Feldman on 6/19/2012. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PETER MUSTAICHE
CIVIL ACTION
Versus
NO.: 11-2907
U.S. BANK NATIONAL ASSOCIATION
SECTION: “F”
ORDER AND REASONS
Before the Court is U.S. Bank’s motion for judgment on the
pleadings.
For the reasons that follow, the motion is GRANTED in
part, and DENIED in part.
Background
On April 18, 2006, Peter Mustaiche signed a promissory note
for $84,000, payable to Option One Mortgage Corporation.
In
early September 2009, plaintiff defaulted on the note and
mortgage.
Shortly after plaintiff’s default, U.S. Bank filed a
petition to its enforce security interest by executory process in
state court to foreclose on plaintiff’s house.
When U.S. Bank
filed the foreclosure suit, it deposited with the state court the
original promissory note and mortgage, which also contained a
confession of judgment.
The facts that U.S. Bank alleged in the
foreclosure suit were verified in an affidavit by Tonya Hopkins,
allegedly a representative of U.S. Bank.
On February 10, 2010, the state court issued a writ of
seizure and instructed the local sheriff’s office to seize
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plaintiff’s house.
U.S. Bank asserts that it made ten attempts
to serve the plaintiff with a notice of seizure.
To ensure that
plaintiff had notice of the sale, the date of the foreclosure
itself was delayed numerous times (from May 10, 2010 to July 20,
2011), and U.S. Bank appointed a curator to receive service on
behalf of the plaintiff and determine his whereabouts.
The
curator was successful, and on May 7, 2011 the plaintiff
confirmed to the curator that he was aware of the pending
foreclosure and had hired an attorney.
On July 18, 2011, two days before the scheduled foreclosure
sale, plaintiff filed a petition for damages and injunctive
relief in state court, seeking to block the foreclosure sale from
taking place.
Plaintiff asserts that there were numerous defects
with U.S. Bank’s attempt to foreclose on the house, which entitle
him to relief.1
The judge held a telephone conference on July
19, 2012, and he denied the plaintiff’s request for injunctive
relief to stop the foreclosure.
Plaintiff’s house was sold to
U.S. Bank on July 20, 2011, at a public sale, for $82,000.
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U.S.
The plaintiff asserts that (1) the blank endorsement to
the note filed in the foreclosure suit was not in authentic form;
(2) the affidavit of Tonya Hopkins verifying the allegations in
the foreclosure suit, including the fact of plaintiff’s default,
was not competent evidence; (3) U.S. Bank did not support the
foreclosure suit with a trust agreement or other evidence
establishing its right to proceed as trustee of certain
certificateholders, and (4) U.S. Bank improperly appointed a
curator to represent plaintiff’s interest in the foreclosure
suit.
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Bank asserts that even though it is now the owner of the house,
the plaintiff is still living in the house and U.S. Bank has not
been successful in evicting him.
U.S. Bank asserts that it was not served with a copy of the
petition for injunctive relief and damages that was filed in
state court on July 18, 2011 until October 20, 2011.
It appears,
therefore, that U.S. Bank had no notice of the plaintiff’s state
court lawsuit during the foreclosure proceedings.
U.S. Bank
timely removed the case to this Court, citing diversity of
citizenship and federal question jurisdiction as the bases for
doing so.2
U.S. Bank has now filed a motion for judgment on the
pleadings, seeking to dismiss plaintiff’s case.
I.
The standard for deciding a motion for judgment on the
pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure is the same as the one for deciding a motion to dismiss
under Rule 12(b)(6).
Great Plains Trust Co. V. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002).
A motion
brought pursuant to Rule 12(c) is designed to dispose of cases
where the material facts are not in dispute and a judgment on the
merits can be rendered by looking to the substance of the
pleadings and any judicially noticed facts.
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Id. at 313.
The plaintiff asserts that he is seeking damages under
federal law for the improper sale of his home.
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II.
The central issue in this case is whether Tonya Hopkins’
affidavit signature is genuine, and whether she in fact had the
required personal knowledge to prepare the affidavit in question.
Plaintiff has been unresponsive and thus has waived the other
issues raised in defendant’s motion for judgment on the
pleadings.3
Whether Tonya Hopkins’ signature was forged on the affidavit
in this case is a fact issue that the Court cannot determine on a
motion for judgment on the pleadings.
Plaintiff submits numerous
documents showing Ms. Hopkins’ signature appearing in various
forms, from different companies.
These documents create a
disputed issue, which the Court cannot resolve at this stage of
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In its motion for judgment on the pleadings, U.S. Bank
addresses the plaintiff’s assertions in his complaint that 1) the
blank endorsement to the note filed in the foreclosure suit was
not in authentic form; (2) the affidavit of Tonya Hopkins
verifying the allegations in the foreclosure suit, including the
fact of plaintiff’s default, was not competent evidence; (3) U.S.
Bank did not support the foreclosure suit with a trust agreement
or other evidence establishing its right to proceed as trustee of
certain certificateholders, and (4) U.S. Bank improperly
appointed a curator to represent plaintiff’s interest in the
foreclosure suit. U.S. Bank also asserts that any request for
injunctive relief to stop the sale of his home in plaintiff’s
state court petition is now moot, as the house has already been
sold. In his response memorandum, the plaintiff only discusses
Tonya Hopkins’ affidavit and states that “The only question is
whether Tonya Hopkins signature is genuine and authentic.” The
plaintiff does not mention the other four issues. Accordingly,
all issues other than the authenticity of Tonya Hopkins’
signature and her competency to prepare the affidavit are deemed
waived.
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the litigation.
Accordingly, IT IS ORDERED: U.S. Bank’s motion for judgment
on the pleadings is GRANTED as to those issues to which the
plaintiff does not respond, and is DENIED only as to the issue of
Tonya Hopkins’ signature.
New Orleans, Louisiana, June 19, 2012.
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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