Anthony v. Capitol Commerce Mortgage Co.

Filing 106

ORDERED that the # 54 Motion for Rebuttal and Protest of Sale Notice/Demand for Court Order Stopping Sale is DENIED. IT IS FURTHER ORDERED that the # 55 Motion Request for Sanctions against Defendant Recontrust is DENIED. FURTHER ORDERED that the # 56 Motion for Plaintiff's Petition to Compel the Production of Documents or Default Judgment is DENIED. FURTHER ORDERED that the # 58 Motion to Intervene is DENIED. FURTHER ORDERED that the # 62 Motion to Strike is DENIED. FURTHER ORDERED that the # 68 Petition to Strike is DENIED. FURTHER ORDERED that the # 71 Motion for Sanctions against Defendants and Agents is DENIED. FURTHER ORDERED that the # 81 Motion for Response/Clarification/Correction of Order is DENIED. FURTHER ORDERE D that the # 91 Motion for Time Extension/Content Revision for Hearing is DENIED as moot. FURTHER ORDERED that the # 95 Motion for Time Extension for Hearing is DENIED as moot. FURTHER ORDERED that the # 97 Motion for Order for Time Extension/Content Revision for Hearing is DENIED as moot. Signed by Chief Judge Robert C. Jones on 7/5/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PATRICIA S. ANTHONY AND WILLIAM M. )
ANTHONY,
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Plaintiffs,
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v.
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CAPITOL COMMERCE MORTGAGE CO., )
et al.,
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Defendants.
)

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___________________________________

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3:10-cv-169-RCJ-RAM
ORDER

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Currently before the Court are eleven motions, all filed by pro se Plaintiffs Patricia S.

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Anthony and William M. Anthony (collectively “Plaintiffs”), pending before this Court. The

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Court heard oral argument on June 20, 2011.
BACKGROUND

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I.

Foreclosure Documents

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William M. Anthony and Patricia S. Anthony, husband and wife, (collectively “Plaintiffs”)

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executed a note secured by a deed of trust on a piece of property located on 3705 Anthony

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Place, Sun Valley, Nevada, 89433. (Deed of Trust (#21) at 16, 18; see Note (#21) at 30). The

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mortgage, dated June 21, 2002, was for $214,400. (Deed of Trust (#21) at 17). The lender

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on the deed of trust was Capitol Commerce Mortgage Co. (Id. at 16).1 The trustee on the

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deed of trust was C.C.M.C. Co. (Id.). MERS was named “a nominee for Lender and Lender’s

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successors and assigns” and claimed to be the beneficiary under the security instrument. (Id.

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Plaintiffs allege that Capitol transferred the loan servicing rights to Countrywide, who
later transferred the loan to Bank of America and BAC Home Loans Servicing. (Complaint
(#1-1) at 11). There are no documents in Defendants’ Request for Judicial Notice to establish
this. (See Request for Judicial Notice (#21)).

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at 17).
On June 1, 2009, Plaintiffs defaulted on their mortgage payments for an unspecified

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amount. (See Notice of Default (#21) at 45).

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On September 1, 2009, First American Title (“First American”) filed a notice of default

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and election to sell under the deed of trust. (Id.). First American was acting as an agent for

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Recontrust Company. (Id. at 46). The notice of default named Recontrust the duly appointed

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trustee under the deed of trust. (Id. at 45). The notice of default identified the breach of

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obligations as “failure to pay the installment of principal, interest and impounds which became

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due on 06/01/2009 and all subsequent installments of principal, interest and impounds,

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together with all late charges, plus advances made and costs incurred by the beneficiary,

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including foreclosure fees and costs and/or attorneys’ fees.” (Id.).

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On September 3, 2009, BAC Home Loans/Countrywide Home Loans notarized a

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substitution of trustee and replaced Recontrust as the trustee for C.C.M.C. Co. (Substitution

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of Trustee (#21) at 48-49).

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II.

Complaint

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In their complaint, Plaintiffs named Capitol Commerce Mortgage Co., Countrywide

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Home Loans, MERS, Bank of America Home Loans, Recontrust Company, C.C.M.C. Co., First

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American National Default, BAC Home Loan Servicing LP, Timothy Geithner, and Eric Holder

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as defendants. (See Compl. (#1-1)). Plaintiffs alleged the following causes of action: (1)

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wrongful foreclosure against Recontrust; (2) failure of consideration against Capitol,

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Countrywide, Bank of America, and Recontrust; (3) usury; (4) breach of contract against

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Reconstrust; (5) ultra vires; (6) indefiniteness of contract against Capitol, Countrywide, Bank

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of America, and Recontrust; (7) unconscionability against Capitol, Countrywide, Bank of

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America, and Recontrust; (8) fraud against Capitol, Countrywide, Bank of America, and

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Recontrust; (9) breach and conversion under contract; (10) cancellation; (11) constructive

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trust; and (12) civil RICO. (Id. at 17, 19, 21, 23, 25, 27, 31, 33, 35). In the complaint, Plaintiffs

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alleged that the United States had been bankrupt since 1933 and that they believed they were

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being loaned “money” but, in reality, they had purchased credit from the Federal Reserve
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through a lender. (Id. at 15). They argued that, although the original debt still existed, the

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nature of the debt had changed and was no longer collectible. (Id.).

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III.

Order from February 4, 2011

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On January 18, 2011, this Court heard oral argument on various motions2 including

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Defendants Countrywide Home Loans, Inc., Bank of America, N.A., Recontrust Company,

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N.A., BAC Home Loan Servicing LP, and MER’s (collectively “Defendants”) Motion to Dismiss

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(#20). (See Order (#76) at 1). This Court found that there was a statutory defect in the

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foreclosure because Recontrust had become a substituted trustee after it had filed a notice

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of default. (Id. at 6). The Court found that Recontrust had filed a notice of default on

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September 1, 2009, but had not become a trustee until September 3, 2009. (Id.). The Court

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also noted that Defendants had not provided any documents to establish that BAC Home

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Loans or Countrywide were the proper entities to execute a substitution of trustee. (Id.). The

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Court denied Defendants’ motion to dismiss the wrongful foreclosure claim but granted the

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motion to dismiss all other claims without leave to amend. (Id.).
DISCUSSION

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I.

Motion for Rebuttal and Protest of Sale Notice/Demand for Court Order Stopping
Sale (#54)

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Plaintiffs file a motion to stop a trustee’s sale scheduled for December 20, 2010. (Mot.
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for Protest of Sale (#54) at 3). Defendants interpret this request as an motion for a preliminary
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injunction. (Opp’n to Mot. for Protest (#59) at 2).
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As noted in this Court’s previous order, the Court denied all subsequent requests for
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preliminary injunctions because Plaintiffs had failed to comply with the first preliminary
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injunction. The Court also denies this request to stop the trustee’s sale that, based on the
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date provided, has already occurred.
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II.

Motion for Request for Sanctions against Defendant Recontrust Company (#55)

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Plaintiffs file a motion for sanctions against Recontrust for “serving an unsigned, un26
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The Court also denied Plaintiffs’ multiple requests for preliminary injunction because
Plaintiffs had failed to comply with the conditions in the original preliminary injunction. (See
Order (#76) at 3-4, 6-7).
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verified Nevada Notice of Trustee’s Sale dated November 22, 2010 [that was] taped . . . to

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[the] door of [the] property along with accompanying Notice to Tenants of Property.” (Mot. for

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Sanctions (#55) at 3).

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Defendants argue that Plaintiffs, although pro se, are required to comply with the

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provisions in Fed. R. Civ. P. 11(c) when seeking sanctions. (Opp’n to Mot. for Protest (#59)

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at 8). Defendants argue that Plaintiffs did not comply with Rule 11's safe harbor provision

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requiring the movant to notify the alleged violator of the violation before filing for sanctions.

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(Id.).

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Federal Rule of Civil Procedure 11 applies when an attorney or unrepresented party

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makes representations to the court. Fed. R. Civ. P. 11 (b). In this case, Recontrust’s notice

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of trustee’s sale was a document created outside of a court proceeding. Therefore, sanctions

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under Rule 11 are not applicable and the Court denies Plaintiffs’ motion for sanctions against

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Reconstrust (#55).

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III.

Motion to Compel the Production of Documents and/or Default Judgment (#56)

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Plaintiffs file a motion to compel Defendants to produce certified copies of various

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documents in order to conclusively prove that Defendants have no standing and are not a

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legitimate party in interest to foreclose. (Mot. to Compel (#56) at 2). They assert that

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Defendants’ objections to produce these documents are prima facie evidence of Defendants’

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attempt to conceal fraud. (Id.). Plaintiffs seek sixteen categories of documents which include:

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(a) all documents that will assist them in understanding Defendants’ accounting processes with

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regard to Plaintiffs’ mortgage; (b) all accounting ledger journal entries crediting Plaintiffs’

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original promissory note; (c) a certified copy of the trust agreement between Defendant and

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any bank or depository institution; (d) an identification of the source of funds used to fund the

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alleged mortgage since its origination; (e) an identification of the source of funds Defendants

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used to purchase any and all promissory notes; (f) certified copies of all checks issued by

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Defendants to fund the promissory note; (g) complete statement of damages and legal

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detriment that Defendants incurred under the original promissory note; (h) a certified copy of

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the Master Pooling Service Agreement; (i) names of record holders; (j) securities registration
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statements; (k) no-action letters from the Securities and Exchange Commission; and (l)

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internal revenue documents. (Id. at 2-5).

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Defendants respond that this motion is not ripe because there have never been any

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formal requests for these documents in accordance with the Federal Rules of Civil Procedure

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and notes that discovery has not begun in this case. (Opp’n to Mot. to Compel (#60) at 2).

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This motion is without merit. First, discovery has not begun in this case. Second, the

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only remaining claim in this case is the wrongful foreclosure/statutory violations of NRS §

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107.080 claim. The documents that Plaintiffs seek to compel are irrelevant to that claim.

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Accordingly, the Court denies this motion.

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IV.

Motion to Intervene (#58)

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Plaintiffs file a motion to intervene into a case that they are already plaintiffs in. (Mot.

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to Intervene (#58) at 1). They argue that Defendants have been treating them as “corporate

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fictions” and that they need to intervene as third parties “without surrendering their living,

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sovereign and National status.” (Id. at 3).
Defendants respond that Plaintiffs cannot intervene into a suit in which they are already

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a party. (Opp’n to Mot. to Intervene (#64) at 2).
The Court denies this motion because it is without merit.

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V.

Plaintiffs file a motion to strike the Defendants’ opposition to Plaintiffs’ motion for

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rebuttal and protest of sale and request for sanctions. (Mot. for Sanctions (#62) at 2).
The Court denies this motion because Defendants are entitled to respond.

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VI.

the production of documents. (Pet. to Strike (#68) at 3).
The Court denies this motion because Defendants are entitled to respond.

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Petition to Strike (#68)
Plaintiffs file a petition to strike Defendants’ opposition to Plaintiffs’ motion to compel

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Motion to Strike (#62)

VII.

Motion for Sanctions against Defendants and Agents (#71)

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Plaintiffs file a motion for sanctions and argue that they did not know about the Rule 11

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safe harbor requirement until Defendants raised the issue in their opposition to sanctions.
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(Mot. for Sanctions (#71) at 3). In seeking sanctions, Plaintiffs rely on their previously filed

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motion for sanctions. (Id.).

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Defendants respond that, since this Court’s February 2011 order, they have “started the

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mechanics to fix the Court’s perceived sequence problems in the foreclosure process.” (Resp.

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to Multiple Documents (#80) at 2). Defendants assert that Plaintiffs keep filing multiple

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incoherent documents and that they are responding, but contend that they should not have

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to respond to documents that do not comply with Fed. R. Civ. P. 8 and 9. (Id. at 3). They

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request that the Court deny Plaintiffs’ motion. (Id.).
In this case, the Court denies Plaintiffs’ motion for sanctions (#71) because, as noted

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before, Rule 11 does not apply to documents created outside of a court proceeding.

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VIII.

Motion for Response/Clarification/Correction of Order (#81)

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In this motion, Plaintiffs state that they do “not consent” to this Court’s February 2011

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order because it appears to impact them “in a most negative manner.” (Mot. for Clarification

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(#81) at 3). They assert that the Court should not dismiss their motions because those filings

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were “not ‘motions’ subject to dismissal by any judge.” (Id.). They then proceed to “clarify”

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and “correct” this Court’s order by rewriting the order’s background facts and legal standard.

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(Id. at 3, 5, 7).

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In response, Defendants seek guidance from this Court on how to respond to all of

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Plaintiffs’ motions which do not make sense. (Resp. to Doc. 81 (#82) at 2). Alternatively,

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Defendants seek a motion to strike Document #81 or request that Plaintiffs file a more definite

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statement as to what they seek in that document. (Id.). Defendants seek an order denying

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whatever relief Plaintiffs seek in Document #81. (Id. at 3).

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In this case, it appears that Plaintiffs disagree with this Court’s recitation of the facts in

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the order. However, these facts are supported by recorded filings. Accordingly, the Court

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denies Plaintiffs’ motion for response/clarification/correction (#81).

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IX.

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Motion for Time Extension/Content Revision for Hearing (#91); Motion for Time
Extension for Hearing (#95); Motion for Order for Time Extension/Content
Revision for Hearing (#97)

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Plaintiffs file three motions to move the hearing on the above-referenced motions to
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July 2011. Because the hearing has already taken place on these motions, the Court denies

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these motions (#91, 95, 97) as moot.
CONCLUSION

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For the foregoing reasons, IT IS ORDERED that the Motion for Rebuttal and Protest
of Sale Notice/Demand for Court Order Stopping Sale (#54) is DENIED.
IT IS FURTHER ORDERED that the Motion Request for Sanctions against Defendant
Recontrust (#55) is DENIED.
IT IS FURTHER ORDERED that the Motion for Plaintiff's Petition to Compel the
Production of Documents or Default Judgment (#56) is DENIED.

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IT IS FURTHER ORDERED that the Motion to Intervene (#58) is DENIED.

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IT IS FURTHER ORDERED that the Motion to Strike (#62) is DENIED.

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IT IS FURTHER ORDERED that the Petition to Strike (#68) is DENIED.

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IT IS FURTHER ORDERED that the Motion for Sanctions against Defendants and

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Agents (#71) is DENIED.
IT IS FURTHER ORDERED that the Motion for Response/Clarification/Correction of
Order (#81) is DENIED.
IT IS FURTHER ORDERED that the Motion for Time Extension/Content Revision for
Hearing (#91) is DENIED as moot.
IT IS FURTHER ORDERED that the Motion for Time Extension for Hearing (#95) is
DENIED as moot.
IT IS FURTHER ORDERED that the Motion for Order for Time Extension/Content
Revision for Hearing (#97) is DENIED as moot.

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DATED: This 5th daydayJuly, 2011.
DATED: This _____ of of June, 2011.

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_________________________________
United States District Judge

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