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Matthew Arvizu v. Gmac Mortgage

March 22, 2011

MATTHEW ARVIZU,
PLAINTIFF,
v.
GMAC MORTGAGE, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION REGARDING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT

(Doc. 43)

I. INTRODUCTION.

Plaintiff Matthew Arvizu ("Plaintiff") asserts eighteen causes of action against various Defendants involved in transactions related to a loan secured by Plaintiff's real property.

Plaintiff filed a first amended complaint ("FAC") on November 4, 2010. (Doc. 42). Defendant Greenpoint Mortgage Funding, Inc. ("Greenpoint") filed a motion to dismiss the FAC on November 19, 2010. (Doc. 42). Defendant Executive Trustee Services, LLC ("ETS"), GMAC Mortgage, LLC ("GMAC"), and Mortgage Electronic Registration Systems, Inc. ("MERS") also filed a motion to dismiss on November 19, 2010. (Doc. 44).

Plaintiff filed opposition to the motions to dismiss on February 9, 2011. (Doc. 52). Defendants filed replies on February 18, 2011. (Docs. 53, 54).

II. FACTUAL BACKGROUND.

On or about November 21, 2006, Plaintiff purchased a residence ("the Property") using funds acquired through a loan from Defendant Greenpoint. The terms of the loan were memorialized in a promissory note, which was secured by a Deed of Trust, and Adjustable Rate Note, and Interim Interest Addendum to Note.

The Deed of Trust appears to have been executed on November 21, 2006; however, the Uniform Residential Loan Application was completed on November 27, 2006. Plaintiff contends that Greenpoint manipulated the lending process to the detriment of Plaintiff. Plaintiff alleges he did not receive the required documents and disclosure upon consummation of the lease.

On or about March 17, 2009, a Notice of Default on the Property was recorded. Plaintiff alleges he never received the Notice of Default. The notice was signed by Maria DeBelen on behalf of "ETS Services LLC as Agent for Beneficiary." Plaintiff alleges that he never received the Notice of Default. Also on March 17, 2009, GMAC recorded a Substitution of Trustee purporting to designate ETS as Trustee under the Deed of Trust; in this document, MERS identified itself as the present beneficiary under the Deed of Trust.

On or about June 19, 2009, ETS recorded a Notice of Trustee's Sale, stating a foreclosure sale date of July 15, 2009. Following the sale, ETS executed a Trustee's Deed Upon Sale which stated that GMAC, as foreclosing beneficiary, acquired title to the Property as grantee pursuant to the foreclosure sale. Plaintiff alleges that GMAC is not and was not the holder of the Note, and that GMAC had no right to initiate foreclosure under the Deed of Trust.

Plaintiff alleges that Defendants engage in a pattern and practice of unlawfully foreclosing on properties.

After learning of the foreclosure proceedings, Plaintiff sent GMAC a "Qualified Written Request" pursuant to 12 U.S.C. ...


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