Schmitt v. Stearns Lending et al

Filing 54

MEMORANDUM DECISION AND ORDER ADDRESSING MOTION TO DISMISS OF GREEN TREE SERVICING, LLP-granting 25 Motion to Dismiss with prejudice. Signed by Judge David Sam on 8/31/11. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
NEIL M. SCHMITT,

)

Plaintiff,

Case No.

2:11CV00381 DS

)

vs.

)

STEARNS LENDING, INC., ET AL.,

)

MEMORANDUM DECISION
AND ORDER ADDRESSING
MOTION TO DISMISS OF
GREEN TREE SERVICING, LLC

)
Defendants.

)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Plaintiff defaulted under the terms of a Trust Deed and Note
securing the repayment of a loan obtained to purchase a home
located in Herriman, Utah.

Non-judicial foreclosure proceedings

ensued.
Plaintiff subsequently filed this action against multiple
defendants.

As relevant here, Plaintiff purports to assert

claims against Green Tree Servicing, LLC (“Green Tree”) for
Declaratory Judgment, Quiet Title, and Breach of Covenant of Good
Faith and Fair Dealing.

Green Tree moves to dismiss those claims

(Doc. #25).
In his claim for declaratory judgment, Plaintiff essentially
alleges that Defendants lack authority to foreclose on the
subject property.

In his claim for quiet title, Plaintiff

essentially alleges that Defendants have no right to foreclose
because “Plaintiff’s Trust Deeds and notes were separated by

assignment of the Trust Deeds without assignment of the Notes
during the securitization process, thus lodging foreclosure
rights with the investors in the MBS [mortgage backed security]”.
Comp. ¶ 150.

As Green Tree notes, these claims have been

uniformly and consistently rejected by the Utah Courts and the
Court sees no need to unduly belabor the matter further.

See

Reply at 3-6 (and cases cited therein).
The Court also agrees with Green Tree that Plaintiff has
conceded his alternative claim for breach of the covenant of good
faith and fair dealing by failing to contest it in his opposition
pleading.

Even if the Court were to address this claim it would

be rejected for the reasons set forth by Green Tree and for the
reasons set forth in the Court’s Memorandum Decision and Order
addressing the Motion to Dismiss of Defendants CitiMortgage Inc.
and Mortgage Electronic Registration Systems, Inc. filed this
same date.
Accordingly, Defendant Green Tree’s Motion to Dismiss (Doc.
#25) is granted with prejudice.
DATED this 31st day of August, 2011.
BY THE COURT:

DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT