Haefner v. Mortgage Electronic Registration Systems, Inc. et al
Filing
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ORDER that defendant NV West Servicing, LLCs (NV West) motion to dismiss ( 10 is GRANTED. Clerk to enter Judgment. Signed by Judge James C. Mahan on 4/13/12. (Copies have been distributed pursuant to the NEF - ECS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ERIC HAEFNER,
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2:12-CV-10 JCM (CWH)
Plaintiff,
v.
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MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., et al.,
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Defendants.
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ORDER
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Presently before the court is defendant NV West Servicing, LLC’s (“NV West”) motion to
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dismiss. (Doc. #10). Defendants Cal-Western, CitiMortgage, Inc., and Mortgage Electronic
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Registration Systems, Inc. joined this motion. (Docs. #13 and #24). Plaintiff Eric Haefner filed an
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opposition. (Doc. #26). NV West then filed a reply (doc. #29), and Cal-Western joined the reply.
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(Doc. #32).
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The property at issue in this case is located at 6824 War Eagle Circle, Las Vegas, Nevada.
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(Doc. #2, Ex. A). On July 29, 2005, plaintiff executed a $200,000 note, secured by a deed of trust,
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to purchase the property. (Doc. #2, Ex. A). On September 10, 2010, Cal-Western recorded a notice
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of breach and default and of election to cause sale of real property under deed of trust. (Doc. #2, Ex.
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A). Cal-Western then recorded a notice of trustee’s sale on January 4, 2011. (Doc. #2, Ex. A). The
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property was sold at a trustee’s sale on January 24, 2011, and the trustee’s deed upon sale was
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recorded on February 16, 2011. (Doc. #2, Ex. A).
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James C. Mahan
U.S. District Judge
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Two months after the trustee’s sale of the property, plaintiff filed a voluntary chapter 7
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petition with the United States Bankruptcy Court, District of Nevada. (Doc. #10, Ex. A). NV West
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asserts that once plaintiff filed the bankruptcy petition, “any and all claims related to the foreclosure
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. . . became property of the plaintiff’s bankruptcy estate and passed to the trustee.” (Doc. #10). NV
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West argues that plaintiff failed to disclose the claims related to the foreclosure in his bankruptcy
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schedules and, therefore, is now estopped from prosecuting these causes of action. (Doc. #10).
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In response, plaintiff argues that the chapter 7 trustee abandoned the bankruptcy estate’s
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interest in the property to plaintiff. Therefore, plaintiff is the real party in interest and this court has
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subject matter jurisdiction over the instant complaint. (Doc. #26). Specifically, plaintiff notes that
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he listed the real property on schedule A of his bankruptcy petition. (Doc. #26, Ex. 1). Plaintiff
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further asserts that he discussed his nonjudicial foreclosure claims with the chapter 7 trustee at a
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meeting with creditors. (Doc. #26, Ex. 2). Finally, plaintiff states that the chapter 7 trustee filed a
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report of no distribution on May 17, 2011. (Doc. #26, Ex. 3). In this report, the chapter 7 trustee
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abandoned $151,000.00 in assets, which plaintiff asserts was the current value of the plaintiff’s
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interest in the real property. (Doc. #26).
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“The Bankruptcy Code and Rules ‘impose upon the bankruptcy debtors an express,
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affirmative duty to disclose all assets, including contingent and unliquidated claims.’” Hamilton v.
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State Farm Fire & Cas. Co., 270 F.3d 778, 785 (9th Cir. 2001) (quoting In re Coastal Plains, 179
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F.3d 197, 207-08 (5th Cir. 1999) (emphasis in original)).
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abandonment, which results in restoration of a debtor’s interest in property. “[C]laims must be
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scheduled in order to be abandoned.” In re Kreisel, 399 B.R. 679, 687 (Bankr. C.D. Cal. 2008). “In
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the bankruptcy context, a party is judicially estopped from asserting a cause of action not raised in
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a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements.”
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Hamilton, 270 F.3d at 784 (citing Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557
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(9th Cir. 1992)).
Title 11 U.S.C. § 554 governs
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Here, there is no dispute that plaintiff listed his interest in the real property on schedule A
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of his bankruptcy petition. However, NV West argues that this fact “is wholly irrelevant to the
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James C. Mahan
U.S. District Judge
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determination of whether the personal property claims in this case currently belong to the plaintiff’s
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bankruptcy estate.” (Doc. #29). NV West argues that plaintiff should have listed the claims at issue
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in the instant litigation on schedule B of his bankruptcy petition because the “claims themselves are
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personal property assets of the bankruptcy estate.” (Doc. #29).
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The allegedly wrongful foreclosure at issue in this case occurred prior to plaintiff’s voluntary
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chapter 7 bankruptcy petition. Therefore, these claims are pre-petition causes of action which belong
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to the bankruptcy estate. See Hamilton, 270 F.3d at 785. Plaintiff did not schedule the foreclosure-
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related claims in his bankruptcy petition. Because the claims were not scheduled in the bankruptcy
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petition, plaintiff is barred from prosecuting these claims in this court. Id.
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Accordingly,
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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant NV West
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Servicing, LLC’s (“NV West”) motion to dismiss (doc. #10) be, and the same hereby is, GRANTED.
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IT IS FURTHER ORDERED that the clerk of court shall close the above-captioned case and
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enter final judgment accordingly.
DATED April 13, 2012.
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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge
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