Hughes v. Bank of America Corporation et al

Filing 78

ORDERED # 62 Motion for sanctions is DENIED. FURTHER ORD # 67 Motion for permission to appeal and ## 68 , 74 Motion to stay are DENIED as moot. FURTHER ORD # 69 Motion to waive appeal fees is DENIED for lack of jurisdiction. FURTHER ORD the remaining parties are DISMISSED, and Clerk shall enter judgment and close the case.(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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GREGORY HUGHES,
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Plaintiff,
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vs.
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BANK OF AMERICA CORP. et al.,
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Defendants.
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3:12-cv-00513-RCJ-VPC
ORDER

This is a residential foreclosure avoidance case involving one property. Several motions

15 are pending before the Court.
16 I.

FACTS AND PROCEDURAL HISTORY

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Plaintiff Gregory Hughes gave lender Bank of America, N.A. (“BOA”) a promissory note

18 for $385,000 secured by a first deed of trust (“FDOT”) against real property at 2995 Shady Creek
19 Ct., Reno, NV 89523 (the “Property”). (See FDOT 1–3, Dec. 15, 2005, ECF No. 48-1). Plaintiff
20 later gave BOA a second deed of trust (“SDOT”) against the Property to secure a home equity
21 line of credit with a credit limit of $49,375. (See SDOT 1–3, Aug. 24, 2007, ECF No. 48-2).
22 PRLAP, Inc. was the trustee on both deeds of trust, and Mortgage Electronic Registration
23 Systems, Inc. (“MERS”) was party to neither of them. (See FDOT 2; SDOT 2). BOA substituted
24 Recontrust Co., N.A. (“Recontrust”) as trustee on the FDOT. (See Substitution, Jan, 27, 2010,
25 ECF No. 48-3). The same day, First American Title Insurance Co. (“First American”),

1 purporting to be Recontrust’s agent, filed the first notice of default (“FNOD”) against the
2 Property, but Recontrust later rescinded it. (See FNOD, Jan. 27, 2010, ECF No. 48-4; Rescission,
3 Apr. 22, 2010, ECF No. 48-5). BOA then assigned the FNOD and any notes it secured to BAC
4 Home Loans Servicing, LP (“BAC”). (See Assignment, Jan. 5, 2011, ECF No. 48-6). The same
5 day, BAC, GP, purporting to be BAC’s general partner, then substituted Recontrust as trustee on
6 the FDOT. (See Substitution, Jan. 5, 2011, ECF No. 48-7).1 The same day, First American, again
7 purporting to be Recontrust’s agent, then filed the second notice of default (“SNOD”) against the
8 Property. (See SNOD, Jan. 5, 2011, ECF No. 48-8). The State of Nevada Foreclosure Mediation
9 Program issued its certificate permitting foreclosure to proceed, because the program did not
10 apply to the Property. (See Certificate, June 20, 2011, ECF No. 48-9). Recontrust noticed a
11 trustee’s sale on the Property for August 3, 2011. (See Notice of Sale, July 11, 2011, ECF No.
12 48-10). The public records also indicate that the City of Reno filed at least three liens against the
13 property for unpaid sewer service bills over the last three years, and that Recontrust sold the
14 Property at a trustee’s sale to the Federal national Mortgage Association (“Fannie Mae”) for
15 $371, 238.48 on February 27, 2012.
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On June 9, 2011, Plaintiff, represented by counsel, sued BOA, BAC, Recontrust, PRLAP,

17 First American, and Charlotte Olmos in state court based upon the foreclosure, and Defendants
18 removed to this Court. (See Case No. 3:11-cv-617). Finding the foreclosure to have been proper,
19 the Court granted Defendants’ motion to dismiss and to expunge the lis pendens. Plaintiff did
20 not appeal.
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Plaintiff then sued Bank of America Corp. (“BOA Corp.”), BOA, BAC, Recontrust,

22 Fannie Mae, the Washoe County Recorder’s Office (the “Recorder”), and Kathy Burke in pro se
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Because BOA had already substituted Recontrust as the trustee at a time when BOA was
24 the beneficiary, the later “substitution” of Recontrust was superfluous, and the Court therefore
need not examine whether BAC, GP in fact had the proper agency to substitute the trustee on
25 behalf of BAC.
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1 in state court on thirteen nominal causes of action2: (1) Real Estate Settlement Procedures Act
2 (“RESPA”) violations; (2) Breach of Contract (failure to comply with HUD regulations before
3 foreclosure, as required by the deed of trust); (3) “Unreasonable Collection Efforts”; (4)
4 Intentional Misrepresentation (accepting payments but not applying them to Plaintiff’s account);
5 (5) Fair Debt Collection Practices Act (“FDCPA”) violations; (6) violations of the “FTC
6 Safeguards Rule,” 67 Fed. Reg. 36484; (7) Racketeer and Corrupt Organizations Act (“RICO”)
7 violations; (8) Abuse of Process; (9) Intentional Misrepresentation (falsely claiming ownership of
8 the promissory note); (10) “Bad Faith Bargaining”; (11) False Pretenses; (12) “Filing a False
9 Certificate (Robosigning)”; and (13) Intentional Infliction of Emotional Distress (“IIED”).
10 Defendants removed. The Court denied a motion to remand and dismissed all claims except the
11 first (RESPA), sixth (FTC Safeguards Rule), seventh (RICO), and thirteenth (IIED) as precluded
12 as against BOA, BAC, and Recontrust. The Court also granted Defendant Kathryn Burke’s
13 motion to dismiss filed in state court when Plaintiff failed to respond thereto after having been
14 given a Klingele notice. All parties but the Recorder moved to dismiss. The Court granted that
15 motion and ordered Plaintiff to show cause within fourteen days why the claims should not be
16 dismissed as against the Recorder, as well.
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Plaintiff did not show cause within fourteen days and has not attempted to show cause for

18 several months. Rather, Plaintiff filed a motion for permission to appeal, two motions to stay
19 pending appeal, and a notice of appeal. The Court of Appeals dismissed the appeal for lack of
20 jurisdiction. The Court denies the motion for permission to appeal, which it interprets as a
21 motion under either Rule 54(b) or 28 U.S.C. § 1292(b). The Court will not certify for appeal
22 under either of those provisions, because the Court finally adjudicates the remainder of the case
23 via the present Order. The Court of Appeals will now have jurisdiction over the entire case
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The causes of action are listed as 1–7 and 9–14. (See generally Compl., July 30, 2012,
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1 under § 1291. Nor will the Court grant sanctions against defendants for failure to make initial
2 disclosures under Rule 26(a). Plaintiff filed the motion for sanctions on January 6, 2014. The
3 Scheduling Order had issued one month earlier, and discovery was to be open for six months.
4 All Defendants except the Recorder were dismissed on January 10, 2014, and Defendants are not
5 expected to engage in discovery while a motion to dismiss is pending. Finally, the Recorder had
6 only been joined via the Amended Complaint filed four days before the sanctions motion.
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CONCLUSION

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IT IS HEREBY ORDERED that the Motion for Sanctions (ECF No. 62) is DENIED.

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IT IS FURTHER ORDERED that the Motion for Permission to Appeal (ECF No. 67) and

10 the Motions for Stay (ECF Nos. 68, 74) are DENIED as moot.
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IT IS FURTHER ORDERED that the Motion to Waive Fees for Appeal (ECF No. 69) is

12 DENIED for lack of jurisdiction. Plaintiff must address motions on appeal to the Court of
13 Appeals.
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IT IS FURTHER ORDERED that the remaining parties are DISMISSED, and the Clerk

15 shall enter judgment and close the case.
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IT IS SO ORDERED.

Dated this 16th day of 2014.
17 Dated this 8th day of May, June, 2014.
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ROBERT C. JONES
United States District Judge

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