McDaniel v. BAC Home Loans Servicing, LP et al
ORDER: Granting in Part, Denying in Part Motion to Dismiss 48 . Signed on 3/31/2011 by U.S. District Judge Michael R. Hogan. (jw)
McDaniel v. BAC Home Loans Servicing, LP et al
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SCOTT A. MCDANIEL, Plaintiff, vs. )
CASE NO. lO-6143-HO ORDER
BAC HOME LOANS SERVICING, LP; ) RECONTRUST COMPANY NAi MORTGAGE ) ELECTRONIC REGISTRATION SYSTEM, INC.; ) THE BANK OF NEW MELLON CORP. i ˇ ) CHRISTINA BALANDRAN; DIANE BOLTONi ) DANIEL B.RODRIGUEZ; JONATHAN JACKSONi) E.L. HOWARDi LUCY MANSOURIANi PETER ) LOPEZ;STACEY L. BLOUIN; JANINE R. ) WRIGHT; KARLA MERIDA; SUMMIT MORTGAGE) ) CORPi and DOES 1 50,
Introduction De Home Loans Servicing, LP (BAC); rust
Defendants in plaintiff's First laint previously named defendants BAC; ReconTrust; and MERS as well as newly named Bank of New York Mellon (BNYMellon); (ten employees of ReconTrust) ,Christ ane ton; Daniel Rodriguez; Jonathan Jac on; E.L. Howard; (continued... )
Company N.A. System, Inc.,
(ReconTrust); Mortgage Electronic Registration (MERS); and Bank of New York Mellon (BNYMellon);
move to dismiss pro se plaintiff, Scott McDaniel's First Amended Complaint. [#40; #48J. Plaintiff alleges seventeen causes of action against all defendants and seeks damages and injunctive relief. 234-237J. Background The property at issue is plaintiff's residence located at 25225 Cultus Lane, Bend Oregon, 97701. [#40-Cj[ 6, Ex.1J. [#40-Cj[Cj[
Decision One Mortgage Company originated plaintiff's mortgage loan on October 17, 2006. [#40-Ex.1; #40-Cj[Cj[ 27-29; #49-p.10]. [#40-Cj[Cj[ 38-43; #49-p.11].
BAC Home Loans was the loan servicer. The
Deed names MERS as the beneficiary of the loan under Id. The loan is currently owned by The
the security instrument.
Bank of New York Mellon (BNYMellon) plaintiff
and BAC and ReconTrust 3 who,
"lack or lacked standing to initiate a [#40-Cj[
foreclosure proceeding against the subject property." 122] .
'Cˇˇˇcontinued) Lucy Mansourian; Peter Lopez; Stacey Blouin; Janine Wright; Karla Merida; Summit Mortgage Corp. (Summit) and Does 1-50.
2 Defendants agree that in 2009, BNYMellon was assigned the Deed of Trust. [#49-p.11].
ReconTrust is the successor trustee that initiated foreclosure proceedings. [#4 O-Cj[ 50; # 4 9-p. 11 J . 2 - ORDER
Plaintiff admits tnat April of 2009. [#40 <]'[ 37]. PIa
11 behind on his loan payments iff alleges that in September
2009, he offered BAC Home.Loans a partial mortgage payment of $1,825.73 which BAC re the full amount due of , instead requiring that plaintiff and past due amounts.
On December 31, 2009, ReconTrust served plaintiff with a Trustee Notice of Sal amount of $255,000.00 August 11 2009 <]'[ 53; #40-Ex.2,p.l]. a Qualified Wr
ch demanded full payment of the loan r with 7% interest calculat 1 In re late charges,
and costs. [#40
, plaintiff sent what he t (QWR1, on February 2, 2010. [[#40 <]'[ ly to
iff asserts that defendants did not 1 st of e BAC Home Loans "attempt note and obstruct the [#40-<]'[ 70].
comply with the obscure the true investigation of Defendant BAC and/or request appraisalˇ
in of title."
that they provided all ls including .his loan ication,
, good faith estimate, deed of trust, le rate rider, truth in 1 sc sure
te a May 7, 2010 foreclosure e [#40-Ex.4 p.2J,on Notice of Default and Election to Sell l it does not appear that subject property has s at a foreclosure sale. Loans RESPA. 3 - ORDER Which although it was an improper ed they would treat as a st
. 9] .
statement, HUD-1 settlement statement and payment history detailing transactions during BAC's loan servicing. [#49-p.9J .
On March 4, 2010, plaintiff alleges that he deposited 6 $275,000.00 with "Notary Witness Cynthia Homer," who "was instructed to deliver Notice of Tender of Payment to BAC and exchange said funds for the Original Promissory Note that the Lenders/Agents allege to hold as collateral for Loan Number 154164052-8 .
She sent the Note of Tender to
BAC Home Loans on March 4, 2009.
that defendants failed to collect the funds, because they are not in possession of the "Note"
and thus have no right to foreclose.
A Motion to Dismiss under Fed.R.Civ.P. 12(b) (6)
only where there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable theory.
Balisteri v. Pacific Police Dept., 901 F. 2d 696,699 (9 th
It's not entirely clear what plaintiff deposited with Ms. Homer. Defendants assert that rather than depositing $275,000 in some sort of negotiable form with the notary, plaintiff instead deposited a document he had drawn up labeled "Notice of Tender of Payment" and "Notice of Public Policy" which stated interalia that plaintiff was "part of the national banking association the members of which may issue negotiable instruments [whichJ are required by law to be accepted as "l~gal tender" of payment for all debts public and private. . on the same par and category with the Federal reserve notes." [#49-p.9, -2dting #40-Ex. 17J. Defendants did not accept this proffer~ 4 - ORDER
The issue is not
aintiff is likely to is s ficient to
succeed on the merits but if entitle the plaintiff to p attempt to establish
the pleadings in an De La Cruz v.
Torrey, 582 F.2d
( 9 Li Cir 1978) .
A plaintiffs! material and the complaint const
ions must be accepted as true
the light most favorable to him.
Love v. United States, 915 F.2d 1242,. 1245 (91::-: Cir. 1988).
Additionally, pro se pI standard than se ngs are held to a less st by rs.
Haines v. Kerner, 404
U.S. 519,' 520 (1972). interpretation of a
less, a court's libe
pleadings may not s
essential elements of a claim that are not pleaded.
Gardner, 976 F.2d 469, 471 (9th Cir. 1992).
"free to unwarranted form of ct
1 1 conclusions,
Thus the court
unsupported conclusions, the
rences and sweeping legal conclusions cast allegations."
2009 WL 1286484,p.2 (citing Farm Credit
ce v; Am. State
Bank, 339 F.3d 765, 767
more are ilure to state a
, conclusory allegation wi ent to feat a motion to dismiss
v. Shell Chemical Co., 845 F.2d 802 810 (9 th Iqbal, 129 S.Ct 1937, 1949
Cir 1988); see also Ashcroft v. (2009) (To s 5 ORDER
a motion to dismiss, a
sufficient factual matter, accepted as true, to state a claim that is plausible on its face.) (citations omitted). Thus a pro
se litigant's claims may be dismissed when the plaintiff can prove no set of facts in support that would entitle him to relief. 2008) .
Barrett v. Belleque, 554 F.3d 1060, 1061 (9 th Cir.
Defendants' Motion to Dismiss:
Defendants BAC Home Loans, ReconTrust and MERS; move to
dismiss plaintiff's amended complaint with prejudice for failure to state a claim. [# 48; #49; #53J.
hl Claims 1, 10, 11, 15 and 16, alleging defendants' lack
Plaintiff claims: 159J; (10)
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