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Pfannenstiel v. Mortgage Electronic Registration Systems

February 9, 2009

JOSEPH A. PFANNENSTIEL, PLAINTIFF,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

This matter came before the court on February 6, 2009, for hearing of the motion to dismiss filed by defendants Mortgage Electronic Registration Systems, Inc. (MERS) and Deutsche Bank National Trust Company as Trustee for Goldman Sachs-GSAMP 2005-HE47 (Deutsche Bank). S. Christopher Yoo, Esq. appeared for defendants MERS and Deutsche Bank. Plaintiff Joseph A. Pfannenstiel, who is proceeding pro se, made no appearance and did not file written opposition to defendants' motion.

Upon consideration of defendants' motion and the entire file, the undersigned recommends that defendants' motion be granted and that this action be dismissed.

PLAINTIFF'S CLAIMS

Plaintiff's complaint consists of a cover sheet, a forty-page typed complaint, and eighteen pages of exhibits. The title of the typed complaint indicates that the complaint is for declaratory relief, fraud, conspiracy to defraud, to set aside fraudulent foreclosure sale, slander of title, and conversion. The four named defendants are MERS, Deutsche Bank, NDEX West, LLC, and Stewart Title of California, Inc.

Plaintiff alleges that he refinanced his home with a loan from Deutsche Bank on April 18, 2005, that he became in default of the loan on February 13, 2008, and that his home was sold on June 3, 2008. Plaintiff claims that the sale of his house was "part of a generalized scheme involving multiple Banks and Wall Street Firms to commit fraud on their investors through a conspiracy to steal real properties through the foreclosure process in order to 'conceal evidence' of their involvement in the securitization of notes to more than one investor by canceling these Notes through the foreclosure process." (Compl. at p.7.) Plaintiff also alleges that the defendants were not "true beneficiaries" and therefore their notices and actions were defective and must be set aside and that title must be restored to plaintiff. (Compl. at p. 9-11.)

In addition to the state law claims enumerated in the title of the complaint, plaintiff invokes the Truth in Lending Act (TILA), the Real Estate Settlement Procedures Act (RESPA), the Home Ownership and Equity Protection Act (HOEPA), and the Fair Debt Collection Practices Act (FDCPA). (Compl. at 26-29).*fn1

PROCEDURAL HISTORY

Plaintiff's complaint was filed in Sacramento County Superior Court on September 24, 2008. Defendants MERS and Deutsche Bank indicate that Deutsche Bank was not properly served with process but received copies of the complaint and summons by regular mail on October 1, 2008, while MERS has never been served with the summons and complaint. MERS and Deutsche Bank filed their notice of removal within 30 days after Deutsche Bank's initial receipt of copies of the summons and complaint. Defendants have not been served with any documents other than the summons and complaint that were mailed to Deutsche Bank.

The court's docket reflects that plaintiff has not filed any document in this action since the case was removed from state court on October 31, 2008. None of the documents served upon plaintiff by the court have been returned as undeliverable. Counsel for the moving defendants stated on the record at the hearing that no documents sent to plaintiff at his address of record have been returned.

By order filed and served on December 10, 2008, the undersigned provided all parties with the following information and admonitions with respect to motion practice.

Because the plaintiff in this action is proceeding in propria persona, all pretrial matters, including dispositive and nondispositive motions, are to be addressed in the first instance by the assigned magistrate judge. Local Rule 72-302(c)(21). Parties may obtain information about available hearing dates from Pete Buzo, the courtroom deputy of the undersigned magistrate judge, at (916) 930-4128. The parties are also referred to Local Rule 78-230, which governs civil motion procedure. In particular, plaintiff is referred to this rule for information about opposing motions and appearing for hearings. Plaintiff is cautioned that failure to file timely opposition or to appear at a hearing may result in a recommendation that this case be dismissed for lack of prosecution and as a sanction for failure to comply with court orders and applicable rules. See Local Rules 11-110 and 83-183.

The parties are informed that court appearances before the undersigned may be made telephonically in most instances. A party who wishes to request telephonic appearance at a motion hearing or at a status conference shall contact Pete Buzo at (916) 930-4128 no later than three days before the date set for the hearing or status conference.

Order filed Dec. 10, 2008, at 1-2 (emphasis added).

Despite the information and warnings provided by the court, plaintiff failed to file opposition to defendants' motion and failed to appear at the hearing of the motion either in person or by telephone. In addition, there is no evidence that plaintiff has ...


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