Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tobin v. BC Bancorp

August 24, 2010

ALBERT TOBIN, AN INDIVIDUAL; JULIET TOBIN, AN INDIVIDUAL, PLAINTIFFS,
v.
BC BANCORP, A CALIFORNIA CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER (1) GRANTING IN PART DEFENDANT DEUTSCHE BANK MOTION FOR SUMMARY JUDGMENT, (2) GRANTING IN PART AND DENYING IN PART DEFENDANT WELLS FARGO BANK, N.A.'S MOTION FOR SUMMARY JUDGMENT AND (3) DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY AND DENYING IN PART NATIONAL TRUST COMPANY'S JUDGMENT [Docket Nos. 142, 143, 144]

This matter comes before the Court on Defendants Deutsche Bank National Trust Company and Wells Fargo Bank N.A.'s motions for summary judgment and Plaintiffs' motion for partial summary judgment.*fn1 The motions are fully briefed and ready for disposition. For the reasons discussed below, the Court grants in part and denies in part Defendants' motions, and denies Plaintiffs' motion.

I. BACKGROUND

In June 2006, Plaintiffs Albert Tobin, age 79, and Juliet Tobin, age 91, were solicited to refinance their primary residence located at 1585 Powell Road in Oceanside, CA. (Decl. of Albert Tobin in Supp. of Pls.' Mot. for Partial Summ. J. ("Tobin Decl.") ¶ 3.)*fn2 Plaintiffs completed the refinance on or about June 26, 2006.

On May 1, 2007, Defendants Alliance Bancorp ("Alliance"), Wells Fargo Bank ("WFB") and Deutsche Bank National Trust Company ("Deutsche") entered into a Pooling and Servicing Agreement ("PSA") with Alliance Securities Corp. and GMAC Mortgage, LLC. ("GMAC"). (See Decl. of Deborah Raymond in Opp'n to Mot. for Summ. J., Ex. G.)*fn3 Pursuant to the terms of the PSA, Depositor Alliance Securities Corp. transferred title to certain mortgage loans to Defendant Deutsche as Trustee. (PSA § 2.01.) Defendant WFB was appointed Master Servicer of the loans included in the trust, Defendant Alliance was appointed Servicer of the loans, and GMAC was appointed Back-Up Servicer. Subsequently, Defendant Alliance transferred its rights and obligations as Servicer to IndyMac Bank, FSB, which transferred its rights to Defendant IndyMac Federal Bank, FSB ("IndyMac"), which transferred its rights to One West Bank, FSB.

On May 30, 2007, Plaintiffs' loan was transferred to Defendant Deutsche for inclusion in the pool of loans governed by the PSA. (Pls.' Statement of Disputed and Undisputed Facts in Opp'n to Mot. for Summ. J., Pls.' Fact No. 17.)

In February 2008, Plaintiffs defaulted on their loan. (Id., Def.'s Fact No. 14.)

On September 18, 2008, Plaintiff mailed a Notice of Rescission of their loan to Defendants BC Bancorp, FDIC as Receiver of IndyMac, WFB and NDEx West, L.L.C. (Tobin Decl., Ex. F.) In response to that Notice, Defendant IndyMac agreed to enter a Rescission Agreement with Plaintiffs. (See Pls.' Notice of Lodgment in Supp. of Pls.' Mot., Ex. 2.) On October 3, 2008, Elke Poerschke, who was then employed as Vice President - Corporate Compliance for Defendant IndyMac, prepared a letter and Rescission Agreement for Plaintiffs' review and approval. (Id.)

The following month, Plaintiffs' counsel engaged in a series of e-mails with Poerschke concerning Plaintiffs' loan. The e-mail exchange is attached to the Corrected Second Amended Complaint ("CSAC") as Exhibit H, and provides as follows:*fn4

From: Deborah L. Raymond [mailto:draymond@lawinfo.com]

Sent: Friday, November 07, 2008 11:38AM

To: Poerschke, Elke

Subject: RE: Albert W. Tobin and Juliet E. Tobin / IMFB Loan No. 3002883258

Dear Ms. Poerschke: This email is regards to my above referenced clients. As we discussed, my clients are elderly and the pending Trustee's Sale on their home is causing them severe emotional distress.

Pursuant to the last message that you left on my voice mail, it was my understanding that you were going to review the loan modification Information provided by my clients and have the Trustee's Sale postponed.

I have just looked online and the Trustee's Sale is still pending for 11/20/2008. Please inform me of your intentions and provide me with written confirmation that the Trustee's Sale has been postponed and to what date. Thank you.

From: Poerschke, Elke [mailto:Elke.Poerschke@imb.com]

Sent: Friday, November 07, 2008 1:19 PM

To: draymond@lawinfo.com

Subject: RE: Albert W. Tobin and Juliet E. Tobin / IMFB Loan No. 3002883258

Dear Ms. Raymond, I have confirmed that the foreclosure was placed on hold and your clients' file has been forwarded to a loss mitigation specialist. I've asked for them to provide me with an update. I will be back in touch with you as soon as I hear from them.

Thank you.

Elke Poerschke

From: Deborah L. Raymond [mailto:draymond@lawinfo.com]

Sent: Wednesday, November 12, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.