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Linkhart v. US Bank National Association as Trustee for Wachovia Mortgage Loan Trust 2006-ALT1

May 17, 2010

BEVERLY K LINKHART, PLAINTIFF,
v.
US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR WACHOVIA MORTGAGE LOAN TRUST 2006-ALT1; NDEX WEST LLC; WACHOVIA MORTGAGE LOAN TRUST 2006-ATL1; AMERICA'S SERVICING COMPANY; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.; WACHOVIA MORTGAGE CORPORATION; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. No. 5.)

Presently before the Court is Defendants America's Servicing Company, Mortgage Electronic Registration Systems, Inc., and U.S. Bank National Assocaition's motion to dismiss. (Doc. No. 5.) Also before the Court are Plaintiff's opposition (Doc. No. 7) and Defendants' reply. (Doc. No. 8.) After consideration of the parties' arguments and the relevant law, the Court GRANTS Defendants' motion.

BACKGROUND

Plaintiff Beverly K. Linkhart "obtained a loan from Defendant Wachovia in the sum of $256,000.00" on September 14, 2006. (Compl. ¶ 12.) This loan "was for Plaintiff's personal use." (Id. ¶ 11.) On the same day "Plaintiff executed a deed of trust purporting to secure the amounts set forth in the Promissory Note" and designating "Defendant MERS . . . as the 'beneficiary.'" (Id. ¶¶ 13--14.) On "November 30, 2009, Defendant NDEX purporting to act as agent for the beneficiary under the Deed of Trust caused to be recorded a Notice of Default and Election to Sell Under Deed of Trust." (Id. ¶ 15.) On March 1, 2010, Defendant NDEX "acting as the alleged duly appointed Trustee under and pursuant to the Deed of Trust caused to be recorded a Notice of Trustee's Sale." (Id. ¶ 16.)

Plaintiff appears to have filed this action on March 22, 2010 in San Diego Superior Court. (Compl. at 8.) She sets forth three causes of action, (1) for declaratory relief, (2) for quiet title, and (3) for an injunction, and seeks damages, costs, attorney's fees anb an injunction against foreclosure. (Id. at 5--8.) Defendants removed the case to this Court on April 1, 2010. (Doc. No. 1.)

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, -- US - , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"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.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id.

ANALYSIS

I. DECLARATORY RELIEF

Plaintiff's cause of action for declaratory relief raises two issues: (1) the right of Defendant Mortgage Electronic Registration System, Inc. (MERS) to foreclose, and (2) "whether the loan . . . has been split from the security interest represented by the Deed of Trust, thereby rendering the loan unsecured as a matter of law." (Compl. ¶ 18.) The gravamen of these allegations, as the Court reads them, is that MERS is not permitted to foreclose because it does not possess the note. The Court finds that this claim lacks merit and must be DISMISSED.

The Complaint offers almost no factual allegations on this cause of action. Its most relevant factual assertions are that "Defendant MERS is designated as the 'beneficiary' under the Deed of Trust and Defendant Wachovia is designated as the 'Lender.'" (Compl. ¶ 14.) This does not satisfy Plaintiff's obligation to allege sufficient facts such that their claim is plausible on its face. Iqbal, 129 S.Ct. at 1949. Such a defect is enough to merit dismissal of this claim. However, Plaintiff's legal argument is without merit and will therefore also be addressed.

California "Civil Code sections 2924 through 2924k provide a comprehensive framework for the regulation of a non-judicial foreclosure sale pursuant to a power of sale contained in a deed of trust." Moeller v. Lien, 25 Cal. App. 4th 822, 830 (1994). Under section 2924(a)(1), allows a "trustee, mortgagee, or beneficiary, or any of their authorized agents" to begin the non-judicial foreclosure process. Cal. Civ. Code § 2924(a)(1); see also Huestis v. Indymac Fed. Bank, 2010 WL 1416714, at *6 (E.D. Cal. 2010).

The complained of action here is a non-judicial foreclosure. (See Compl. ¶¶ 15--16; Opp. at 2.) The Complaint, Plaintiff's opposition to this motion, and the copy of the Deed of Trust submitted by Plaintiff all state that MERS was designated as the beneficiary under the Deed of Trust. (Compl. ¶ 14; Opp. at 6; Doc. No. 1, Ex. A at 25.) Moreover, "[c]courts have consistently found that MERS does in fact have standing to foreclose as the nominee of the lender." Morgera v. Countrywide Home Loans, Inc., 2010 WL 160348, at *8 (E.D. Cal. 2010) (citing Trent v. Mortgage Elec. Registration Sys., Inc., 288 Fed. Appx. 571 (11th Cir. 2008); Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151 (Fla. App. 2 Dist. 2007); Mortgage Elec. Registration Sys., Inc. v. Revoredo, 955 So. 2d 33 (Fla. App. 3 Dist. 2007); In re Huggins, 357 B.R. 180 (Bankr. D. Mass. 2006); In re Sina, No. A06-200, 2006 WL 2729544 (Minn. Ct. App. 2006); Mortgage Elec. Registration Sys., Inc. v. Ventura, 2006 WL 1230265 (Conn. Super. Ct. April 20, 2006); Mortgage Elec. Registration Sys., Inc. v. Leslie, 2005 WL 1433922 (Conn. Super. Ct. 2005)); see ...


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