Robertson v. Wells Fargo Home Mortgage
Filing
52
OPINION AND ORDER: The Court GRANTS Defendant's Request 46 for Judicial Notice. The Court also GRANTS in part and DENIES in part Plaintiff's Requests ( 42 , 43 ) for Judicial Notice as set out herein. The Court GRANTS Defendant 039;s Motion 46 to Dismiss Plaintiff's Amended Complaint in its entirety. Consistent with this Opinion and Order, the Court DISMISSES with prejudice all of Plaintiff's claims except for his potential MERS claim. The Court DISMISSES withou t prejudice Plaintiff's allegation that the involvement of MERS in his mortgage somehow invalidates Defendant's right to collect payments on the Promissory Note. Plaintiff may file a motion for leave to file an amended complaint no later th an November 21, 2011, only as to his potential MERS claim with supporting documents as set out above. If Plaintiff files such a motion, the Court will consider it initially without the need for Defendant to respond unless and until the Court directs otherwise. If Plaintiff does not file such a motion by November 21, 2011, the Court will also dismiss with prejudice Plaintiffs potential MERS claim. See 21-page opinion and orde r attached. Ordered by Judge Anna J. Brown. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
TODD A. ROBERTSON,
10-CV-1110-BR
Plaintiff,
OPINION AND ORDER
v.
WELLS FARGO HOME MORTGAGE,
Defendants.
TODD A. ROBERTSON
5310 Third Street
Tillamook, OR 97141
Plaintiff, Pro Se
PILAR C. FRENCH
Lane Powell, PC
601 S.W. Second Avenue, Suite 2100
Portland, OR 97204-3158
(503) 778-2170
1 - OPINION AND ORDER
JON D. IVES
Severson & Werson
One Embarcadero Center, Suite 2600
San Francisco, CA 94111
(415) 398-3344
Attorneys for Defendants
BROWN, Judge.
This matter comes before the Court on Defendant Wells Fargo
Home Mortgage’s Motion (#46) to Dismiss First Amended Complaint
and Request for Judicial Notice and Plaintiff’s Requests (#42,
#43) for Judicial Notice.
For the reasons that follow, the Court GRANTS Defendant’s
Request (#46) for Judicial Notice and GRANTS in part and DENIES
in part Plaintiff’s Requests (#42, #43) for Judicial Notice.
The
Court also GRANTS Defendant’s Motion (#46) to Dismiss Plaintiff’s
First Amended Complaint.
BACKGROUND
On July 2, 2010, Plaintiff appearing pro se filed his
Complaint (#1) in the Northern District of California.
In his
original Complaint, Plaintiff asserted he is entitled to
rescission of one or more home-mortgage loans, the release of all
liens on the property subject to the mortgage(s), $4 million in
damages “per day for injuries,” and “the arrest and prosecution
of the agents involved in this matter for all federal law
2 - OPINION AND ORDER
violations.”
On September 13, 2010, the matter was transferred to this
Court from the Northern District of California.
At the time of
the transfer, Defendant had a motion to dismiss pending in the
Northern District of California.
In the Order (#19) Transferring
Case to the District of Oregon, Judge Susan Illston stated:
"Although defendant persuasively argues that the complaint does
not state a claim and should be dismissed, in light of
plaintiff's pro se status the Court will exercise its discretion
and TRANSFER this case to the District of Oregon.
Defendant may
renew its motion to dismiss in the Oregon court."
On October 27,
2010, Defendant filed its renewed Motion (#29) to Dismiss
Complaint/Alternate Motion for a More Definite Statement.
On May 20, 2011, this Court issued an Opinion and Order in
which it granted in part Defendant’s Motion to Dismiss
Plaintiff’s claims to the extent that Plaintiff asserted he is
not obligated to pay his home-mortgage loan because
(1) Plaintiff’s loan was financed with Federal Reserve Notes,
which, according to Plaintiff, are not valuable consideration
like gold or silver; (2) Defendant unlawfully required Plaintiff
to disclose his Social Security number; (3) Defendant’s purchase
of Plaintiff’s promissory note was unlawful; and (4) Plaintiff,
in any event, tendered a “Bill of Exchange” that satisfies his
obligation to Defendant.
3 - OPINION AND ORDER
The Court concluded Plaintiff could not
cure the deficiencies in those claims by amendment and,
therefore, dismissed those claims with prejudice.
The Court
denied Defendant’s Motion to Dismiss as to Plaintiff’s claim
under the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C.
§ 1692, et seq., because “under a liberal reading of the
Complaint, the Court cannot rule out that Plaintiff may be able
to allege a plausible basis to support a claim that Defendant has
attempted to collect on a loan that is owed to Sterling Savings
Bank and that Defendant is subject to the requirements of the
FDCPA.”
Thus, the Court granted Defendant’s Alternative Motion
for a More Definite Statement, permitted Plaintiff to file an
amended complaint only as to Plaintiff’s FDCPA claim, and
required Plaintiff to
at a minimum clearly identify the party with
whom he allegedly made the loan at issue,
plead the factual basis that shows Defendant
has attempted to collect the loan from
Plaintiff on behalf of another in violation
of the FDCPA, plead the factual basis that
clarifies the nature of Plaintiff’s dispute
of that debt, plead the factual basis that
shows Defendant is subject to the FDCPA, and
plead[] the facts that show Defendant has
failed to validate that debt in violation of
the FDCPA.
On May 24, 2011, Plaintiff filed his Amended Complaint (#42)
and Request for Judicial Notice.
That same day, Plaintiff filed
an additional Request (#43) for Judicial Notice.
On June 17,
2011, Defendant filed its Motion (#46) to Dismiss the First
Amended Complaint and an accompanying Request for Judicial
4 - OPINION AND ORDER
Notice.
On June 21, 2011, Plaintiff filed his Opposition to
Defendant’s Motion to Dismiss, which he supplemented on July 7,
2011, by filing an Additional Citation in Support.
PARTIES’ REQUESTS FOR JUDICIAL NOTICE (#42, #43, #46)
As noted, Plaintiff filed two Requests (#42, #43) for
Judicial Notice, and Defendant also filed a Request (#46) for
Judicial Notice.
I.
Standards.
Federal Rule of Evidence 201 specifies the requirements for
taking judicial notice of adjudicative facts and provides in
pertinent part:
(b) Kinds of facts. A judicially noticed fact must be
one not subject to reasonable dispute in that it is
either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial
notice, whether requested or not.
(d) When mandatory. A court shall take judicial
notice if requested by a party and supplied with the
necessary information.
II.
Defendant’s Request for Judicial Notice.
Defendant requests the Court to take notice of a copy of the
original Deed of Trust on Plaintiff’s residence that secured a
loan of $87,500 to Plaintiff by the lender GreenPoint Mortgage on
January 28, 2002.
Plaintiff does not object to the authenticity
5 - OPINION AND ORDER
of the Deed of Trust, which was recorded in the Tillamook County
Recorder’s Office.
Defendant contends the true and correct copy of the Deed to
Plaintiff’s property is not subject to reasonable dispute and is
“capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201.
See
The copy of the Deed submitted by Defendant
bears the Recorder’s certification that the document was recorded
on February 1, 2002, contemporaneous with the loan; shows the
address of the property encumbered as the same as Plaintiff’s
address set out in his Amended Complaint; and reflects
Plaintiff’s name and what appears to be his signature.
The Deed
is a public document that is recorded by the Recorder in
Tillamook County and, therefore, is easily verifiable and cannot
reasonably be questioned.
Public records such as deeds of trust
are appropriate subjects for judicial notice. See Santa Monica
Food not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 (9th
Cir. 2006).
Accordingly, the Court grants Defendant’s Request (#46) for
Judicial Notice of the Deed of Trust.
III. Plaintiff’s Requests for Judicial Notice.
Plaintiff requests the Court to take judicial notice of
the following documents attached to Plaintiff’s Amended Complaint
(#42) and included in Plaintiff’s separate Request (#43) for
6 - OPINION AND ORDER
Judicial Notice:
1.
Excerpts from Oregon Revised Statute §§ 93.010 and
93.020 and Carpenter v. Longan, 83 U.S. 271 (1872), concerning
recording and conveyance of mortgages;
2.
A copy of an excerpt of one of the three pages from the
original Promissory Note for the loan and two of the fifteen
pages from the Deed of Trust;
3.
A document that appears to be the result of a search
for the Deed of Trust on Plaintiff’s property;
4.
An excerpt from a treatise published on the internet
titled “Appendix E:
5.
Explanation of Securitization”;
A copy of a letter that Plaintiff allegedly sent to
Defendant on January 18, 2011, in which Plaintiff demands to know
whether Defendant is the “holder in due course” of Plaintiff’s
promissory note and to know the details of the securitization of
his mortgage;
6.
A letter from Defendant to Plaintiff dated January 31,
2011, in which Defendant states it is servicing “a valid loan and
lien on [Plaintiff’s] property”; and
7.
A copy of a decision by the United States Bankruptcy
Court for the Eastern District of New York, In re Ferrel L.
Agard, 444 B.R. 231 (E.D. N.Y., Feb. 10, 2011).
Plaintiff did not offer any evidence as to the authenticity
of the above documents or any argument to support his Requests.
7 - OPINION AND ORDER
Defendant, however, did not object to any of Plaintiff’s
Requests.
With respect to the documents listed in Nos. 1, 4, and 7
above, the Court need not take judicial notice to consider them
in their proper legal context when resolving Defendant’s Motion
to Dismiss.
The Court, therefore, denies Plaintiff’s Request for
Judicial Notice of those documents.
As to No. 2, the Court notes Plaintiff appears to have
provided the first page of the Promissory Note and two pages of
the Deed of Trust (pages two and eleven) that Defendant
ultimately provided in full.
The Court does not find any
differences between the two pages of the Deed of Trust provided
by Plaintiff and Defendant and, therefore, declines to take
notice of those pages in light of the fact that the Court has
already granted Defendant’s Request to take judicial notice of
the entire document.
Even though it does not appear Plaintiff has provided the
complete Promissory Note (the document indicates it is page one
of three), the Court does not have any basis to question the
authenticity or the accuracy of the excerpt, particularly in
light of the lack of any objection by Defendant.
The Promissory
Note bears the same date, principal amount, terms, and subject
property as the Deed of Trust offered by Defendant and noticed by
the Court.
Accordingly, the Court grants Plaintiff’s Request to
8 - OPINION AND ORDER
take judicial notice of one page of the Promissory Note for the
$87,500 loan Plaintiff accepted from GreenPoint Mortgage.
The Court cannot determine exactly what the document
referenced in No. 3 is, its relevance to this matter, nor its
accuracy.
Accordingly, the Court denies Plaintiff’s Request to
take judicial notice of that document.
The Court notes the authenticity of the letters referenced
in Nos. 5 and 6 is not disputed and that Plaintiff relies on both
letters in his Complaint.
Accordingly, the Court may properly
consider the letters submitted by Plaintiff.
See Lee v. City of
Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001)(The court may
properly consider documents attached to the Complaint and
documents that are subject to judicial notice because their
authenticity cannot be questioned.).
Accordingly, the Court
grants Plaintiff’s Request to take judicial notice of those
documents.
DEFENDANT’S MOTION TO DISMISS FIRST AMENDED COMPLAINT (#46)
Defendant seeks dismissal of Plaintiff’s Amended Complaint
with prejudice and without leave for further amendment.
I.
Standards.
To survive a motion to dismiss, a complaint
must contain sufficient factual matter,
accepted as true, to “state a claim to relief
that is plausible on its face.” [Bell
Atlantic v. Twombly, 550 U.S. 554,] 570, 127
S. Ct. 1955. A claim has facial plausibility
9 - OPINION AND ORDER
when the plaintiff pleads factual content
that allows the court to draw the reasonable
inference that the defendant is liable for
the misconduct alleged. Id. at 556. . . .
The plausibility standard is not akin to a
“probability requirement,” but it asks for
more than a sheer possibility that a
defendant has acted unlawfully. Ibid. Where
a complaint pleads facts that are “merely
consistent with” a defendant's liability, it
“stops short of the line between possibility
and plausibility of ‘entitlement to relief.’”
Id. at 557, 127 S. Ct. 1955 (brackets
omitted).
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
See also Bell
Atlantic v. Twombly, 550 U.S. 554, 555-56 (2007).
The Supreme Court further clarified in Iqbal the
requirements for a pleading to survive a motion to dismiss:
As the Court held in Twombly, 550 U.S. 544,
127 S. Ct. 1955, 167 L. Ed. 2d 929, the
pleading standard Rule 8 announces does not
require “detailed factual allegations,” but
it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.
Id., at 555, 127 S. Ct. 1955 (citing Papasan
v. Allain, 478 U.S. 265, 286, 106 S. Ct.
2932, 92 L. Ed. 2d 209 (1986)). A pleading
that offers “labels and conclusions” or “a
formulaic recitation of the elements of a
cause of action will not do.” 550 U.S., at
555, 127 S. Ct. 1955. Nor does a complaint
suffice if it tenders “naked assertion[s]”
devoid of “further factual enhancement.”
Id., at 557, 127 S. Ct. 1955.
129 S. Ct. at 1949-50.
"[A] complaint may survive a motion to dismiss only if,
taking all well-pleaded factual allegations as true, it contains
enough facts to 'state a claim to relief that is plausible on its
10 - OPINION AND ORDER
face.'”
Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.
2010)(quoting Iqbal, 129 S. Ct. at 1949 (2009), and Twombly, 550
U.S. at 570).
A pro se plaintiff's complaint “must be held to
less stringent standards than formal pleadings drafted by
lawyers.”
curiam).
Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per
Thus, the court must construe pro se filings liberally.
If a plaintiff fails to state a claim, “[l]eave to amend should
be granted unless the pleading ‘could not possibly be cured by
the allegation of other facts,’ and should be granted more
liberally to pro se plaintiffs.”
Ramirez v. Galaza, 334 F.3d
850, 861 (9th Cir. 2003)(quoting Lopez v. Smith, 203 F.3d 1122,
1130 (9th Cir. 2000)).
II.
Plaintiff’s FDCPA Claim.
Defendant contends Plaintiff has not cured the deficiencies
of his FDCPA claim in his Amended Complaint.
Specifically,
Defendant maintains Plaintiff did not meet the Court’s minimum
requirements:
(1) to identify the party with whom he allegedly
made the loan at issue, (2) to plead a factual basis that shows
Defendant has attempted to collect the loan from Plaintiff on
behalf of another in violation of the FDCPA, (3) to plead a
factual basis that clarifies the nature of Plaintiff’s dispute of
that debt, (4) to plead a factual basis that shows Defendant is
subject to the FDCPA, and (5) to plead facts that show Defendant
has failed to validate that debt in violation of the FDCPA.
11 - OPINION AND ORDER
In his Complaint and in his Response to Defendant’s Motion,
Plaintiff admits Defendant is not a “debt collector” that is
subject to the FDCPA and concedes he does not state a claim
against Defendant for a violation of the FDCPA.
In addition to
these concessions, the Court notes Plaintiff has not satisfied
the minimum pleading requirements for stating a claim under the
FDCPA as set out by the Court in its Opinion and Order issued on
May 20, 2011.
Accordingly, the Court grants Defendant’s Motion to Dismiss
Plaintiff’s FDCPA claim against Defendant with prejudice.
III. Plaintiff’s Additional Allegations.
In its Opinion and Order issued on May 20, 2011, the Court
held:
“Plaintiff may file an Amended Complaint no later than
June 20, 2011, to attempt to cure its deficiencies only as to his
FDCPA claim and in accordance with this Opinion and Order”
(emphasis in original).
Despite the Court’s instruction that
Plaintiff limit his Amended Complaint to his FDCPA claim,
Plaintiff concedes his FDCPA claim and seeks leave of Court to
“explain [his] position and hopefully eliminate any ambiguity.”
Plaintiff then sets out the bases for his belief that Defendant
does not have a right to collect payments on his Promissory Note
with GreenPoint Mortgage and “is misrepresenting their position
to fraudulently collect loan payments” on the following grounds:
(1) the sale and securitization of Plaintiff’s mortgage has
12 - OPINION AND ORDER
broken the chain of title, and Defendants are not legally
entitled to collect payments as a loan servicer; (2) Defendant is
not the “Note Holder” and has not produced the Promissory Note as
proof that it is entitled to receive Plaintiff’s loan payments;
and (3) the Deed of Trust’s mention of MERS as a beneficiary
somehow renders the loan unenforceable.
Defendant contends these
additional allegations do not adequately state a claim for
rescission of the loan or for damages in the amount of $87,500.
The Court must liberally construe a pro se litigant’s
pleadings and apply a less stringent standard.
Thus, despite the
Court’s express limitation permitting Plaintiff to amend his
Complaint only as to his FDCPA claim, the Court, in the exercise
of its discretion, will consider whether Plaintiff’s additional
allegations state any plausible claim for relief.
The Court,
however, will not permit further noncompliance with its Orders.
A.
Fraud.
Plaintiff alleges Defendant fraudulently sought to collect
payments under the terms of Plaintiff’s loan from GreenPoint
Mortgage.
In its Opinion and Order issued on May 20, 2011, the
Court found “Plaintiff has not asserted any factual basis to make
[his fraud] contention plausible and Plaintiff’s allegations
clearly do not satisfy the heightened pleading standards under
Rule 9(b) that require a party to state with particularity the
basis for any claim of fraud” and dismissed Plaintiff’s claim.
13 - OPINION AND ORDER
In his Amended Complaint, Plaintiff again only asserts generally
that Defendant has engaged in fraudulent behavior and fails to
allege with any particularity the basis for a finding that
Defendant knowingly misrepresented facts to Plaintiff to collect
loan payments to which it was not entitled.
Accordingly, to the extent that Plaintiff seeks to bring a
claim of fraud against Defendant in his Amended Complaint, the
Court grants Defendant’s Motion to Dismiss.
B.
Sale and Securitization of Plaintiff’s Mortgage.
Plaintiff asserts the sale and securitization of his
mortgage loan has broken the chain of title and renders unknown
the identity of the note holder.
Plaintiff does not cite any
authority for the general proposition that the sale or
securitization of his mortgage nullifies the transaction.
In
fact, the portion of the Deed of Trust that Plaintiff requested
the Court to take notice of contains a provision authorizing such
actions:
The Note or a partial interest in the Note
(together with this Security Instrument) can
be sold one or more times without prior
notice to Borrower. A sale might result in a
change in the entity (known as the “Loan
Servicer”) that collects Periodic Payments
due under the Note and this Security
Instrument and performs other mortgage loan
servicing obligations under the Note, this
Security instrument, and Applicable Law.
There also might be one or more changes of
the Loan Servicer unrelated to a sale of the
Note.
14 - OPINION AND ORDER
Plaintiff also appears to allege that the conveyance of the
mortgage (as an interest in real property) must be recorded under
Oregon Revised Statutes §§ 93.010 and 93.020.
The Oregon Supreme
Court, however, has long held the sale of a mortgage is effective
without recording.
See Watson v. Dundee Mortg. & Trust Inv. Co.,
12 Or. 474, 478-82 (1885)(assignments of a mortgage need not be
recorded to be effective).
See also Or. Rev. Stat.
§ 86.060
(assigned mortgages “may be . . . recorded in the records of
mortgages”).
Although some decisions from this jurisdiction have
invalidated or restrained nonjudicial foreclosures when the
assignments of a mortgage were not recorded, the record does not
reflect this matter is in foreclosure.
See, e.g., Hooker v.
Northwest Trustee Services, Inc., No. 10-CV-3111-PA, 2010 WL
2119103 (D. Or., May 25, 2011)(concluding Oregon law requires
assignments to be recorded to effectuate nonjudicial
foreclosure).
Thus, neither the mortgage documents nor Oregon
law prohibit the sale of Plaintiff’s mortgage or requires the
recordation of an assignment of the mortgage by GreenPoint
Mortgage to Defendant under these circumstances.
Because Plaintiff has not stated any legal principle under
which he may be entitled to relief on the basis that his loan has
been sold or securitized, the Court concludes any amendment would
be futile.
Accordingly, the Court grants Defendant’s Motion to
Dismiss as to Plaintiff’s claim that the sale or securitization
15 - OPINION AND ORDER
of his mortgage impairs Defendant’s rights.
C.
Defendant’s Status as “Note Holder.”
Plaintiff also alleges Defendant is not the “Note Holder”
and, therefore, is not entitled to collect payments under the
Note.
Plaintiff has not provided any legal authority for the
proposition that Defendant must be in possession of or able to
produce the Promissory Note to lawfully collect loan payments as
the loan servicer.
Plaintiff’s claim appears to stem from a
discredited theory often advanced in mortgage-fraud cases in
which parties attempt to stop foreclosures based on the failure
of the foreclosing party to produce the note.
That theory has
been wholly discredited in the context of foreclosure actions,
which makes its application in this context even more specious
because Plaintiff only challenges Defendant’s collection of
payments that Plaintiff admits he agreed to make under the
Promissory Note.
See, e.g., Clark v. Countrywide Home Loans,
Inc., 732 F. Supp. 2d 1038, 1043 (E.D. Cal. 2010)(The “producethe-note” theory “is a wholly discredited legal theory serially
advanced in mortgage fraud cases.”).
In fact, Plaintiff stated
in a letter attached to his Response to Defendant’s Motion to
Dismiss that he made payments to Defendant “in good faith for
approximately 8 years” on the mortgage loan.
As noted, the Deed of Trust contemplates payments on the
loan will be collected by a loan servicer and that servicer may
16 - OPINION AND ORDER
change without assignment of the mortgage.
Plaintiff has not
alleged any facts or law that would entitle him to rescission of
the loan because Defendant, the loan servicer, attempted to
collect payments from Plaintiff.
Accordingly, the Court concludes Plaintiff cannot cure the
deficiencies of this claim by way of additional pleading, and,
therefore, the Court grants Defendant’s Motion to Dismiss as to
Plaintiff’s claim that Defendant is not entitled to collect
payments on the loan as the loan servicer because it is not the
“Note Holder.”
D.
The Role of MERS.
Plaintiff also alleges in his Amended Complaint that
MERS is mentioned in item (E) of the Deed of
Trust as "nominee" and "beneficiary", United
States Bankruptcy Judge Robert Grossman has
ruled that MERS business practices are
unlawful, he explicitly acknowledged that
this ruling sets a precedent that has far
reaching implications for half the mortgages
in this country. Also, item (E) in the Deed
of Trust states that" MERS is organized and
existing under the laws of Delaware" whereas,
again in item 16 in the Deed of Trust states"
This Security Instrument shall be governed by
federal law and the law of the jurisdiction
in which The property is located", which is
Oregon, not Delaware.
Plaintiff did not make additional allegations as to the
involvement of MERS in any aspect of Plaintiff’s mortgage.
Plaintiff, however, provided the Court with a copy of In re
Ferrel L. Agard, 444 B.R. 231 (E.D. N.Y., Feb. 10, 2011), in
17 - OPINION AND ORDER
which the Bankruptcy Court held on the basis of New York and
First Circuit law that MERS did not have the right to assign the
mortgage at issue in that case by operation of a similar Deed of
Trust.
That decision, however, is not binding on this Court.
In
any event, Plaintiff has not alleged that MERS transferred his
mortgage, that MERS is without authority to do so, or that MERS
took any action with respect to Plaintiff’s mortgage other than
serving as a nominal beneficiary of the lender in the Deed of
Trust.
The Court, therefore, grants Defendant’s Motion to
Dismiss this claim and, as explained below, does so without
prejudice.
The Court points out to Plaintiff that this matter is not in
nonjudicial foreclosure, and the law of this jurisdiction that
concerns the failure of MERS to record assignments in the
nonjudicial foreclosure setting is not likely to offer any
support to Plaintiff’s apparent claim that either MERS made an
unauthorized assignment of the mortgage or made an assignment
without following lawful procedure.
In light of the history of
this matter, the fact that Plaintiff has had two opportunities in
this Court to make plausible allegations that state a viable
claim against Defendant, and the fact that this is a
nonforeclosure matter, the Court does not foresee Plaintiff will
be able to allege any facts or law that entitle him to the relief
he seeks.
Thus, if Plaintiff wishes to amend his Complaint a
18 - OPINION AND ORDER
third time, he must formally seek leave of Court to do so by
filing (1) a motion, (2) the proposed amended complaint, and
(3) a supporting memorandum that specifies the legal authority
that supports his proposed claim and then sets forth the reasons
the Court should permit such an amendment.
The Court grants
Plaintiff leave to do so only as to his potential claim that the
MERS’s involvement with the assignment of Plaintiff’s mortgage
invalidates Defendant’s right to collect payments on the
Promissory Note.
Plaintiff must allege in the proposed amended
complaint the nature of MERS’s involvement with any assignment of
Plaintiff’s mortgage and must provide in the supporting
memorandum a basis in the law that would entitle Plaintiff to
relief on the facts alleged in his proposed amended complaint.
In summary, Plaintiff’s claims brought in his Amended
Complaint against Defendant for rescission of the mortgage at
issue based on its sale or securitization and for Defendant’s
alleged failure to produce or to prove it is the holder of the
Promissory Note do not raise cognizable legal claims and
“‘[cannot] possibly be cured by the allegation of other facts.’”
See Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)(quoting
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)).
In
addition, Plaintiff has twice generally alleged fraud against
Defendant without providing any particular allegations to support
such a claim.
Accordingly, the Court concludes on this record
19 - OPINION AND ORDER
that it is not in the interests of justice and would be futile
for Plaintiff to amend his Complaint as to each of those claims.
See In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005).
Thus, the Court grants Defendant’s Motion to Dismiss Plaintiff’s
Amended Complaint and dismisses with prejudice all of Plaintiff’s
Amended Complaint except for his potential MERS claim.
CONCLUSION
For these reasons, the Court GRANTS Defendant’s Request
(#46) for Judicial Notice.
The Court also GRANTS in part and
DENIES in part Plaintiff’s Requests (#42, #43) for Judicial
Notice as set out herein.
The Court GRANTS Defendant’s Motion (#46) to Dismiss
Plaintiff’s Amended Complaint in its entirety.
Consistent with
this Opinion and Order, the Court DISMISSES with prejudice all of
Plaintiff’s claims except for his potential MERS claim.
The
Court DISMISSES without prejudice Plaintiff’s allegation that the
involvement of MERS in his mortgage somehow invalidates
Defendant’s right to collect payments on the Promissory Note.
Plaintiff may file a motion for leave to file an amended
complaint no later than November 21, 2011, only as to his
potential MERS claim with supporting documents as set out above.
If Plaintiff files such a motion, the Court will consider it
initially without the need for Defendant to respond unless and
20 - OPINION AND ORDER
until the Court directs otherwise.
If Plaintiff does not file
such a motion by November 21, 2011, the Court will also dismiss
with prejudice Plaintiff’s potential MERS claim.
IT IS SO ORDERED.
DATED this 28th day of October, 2011.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
21 - OPINION AND ORDER
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