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Doyle Warkentin v. Countrywide Home Loans; Recon

November 30, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Doyle Warkentin, proceeding pro se and in forma pauperis, has filed an amended complaint against Defendants alleging improprieties in the servicing and foreclosure of his property in Merced County, California. This matter has been referred to a magistrate judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302 and 72-304. Because Plaintiff seeks to litigate matter inextricably entwined with prior state proceedings, the undersigned recommends that this case be dismissed for lack of jurisdiction.

I. Procedural and Factual Background

Plaintiff owns real property commonly identified as 7023 Tokay Circle, Winton, California, which he financed using mortgage financing from an unidentified lender. At some point before May 1, 2005, the original lender advised Plaintiff that the loan was to be "transferred," probably to Countrywide Home Loans, on or about May 1, 2005. Accordingly, on or about April 29, 2005, Plaintiff contacted Countrywide to determine the status of tax and insurance reserves held but not yet paid by the original lender. Countrywide's representative advised Plaintiff that, because it did not have the note, deed of trust, or contract, it could not answer Plaintiff's questions. When Plaintiff expressed concern that he might make his mortgage payment to the wrong party, causing it to be late, the representative told Plaintiff that Countrywide would generate a loan number to be used when Plaintiff paid them. The representative reassured Plaintiff that "nothing could wrong for the first sixty days while they located the necessary paperwork."

Countrywide generated a welcome letter dated May 4, 2005. Thereafter, according to Plaintiff, although a Countrywide representative contacted him almost every day, both at work and at home, Countrywide was unable to provide proof that they possessed the documents needed to support their collection of Plaintiff's mortgage payments. The representatives repeatedly told Plaintiff that no default could occur within the first sixty days following the loan's transfer.

The complaint does not allege that Plaintiff made his mortgage payments to anyone once he was advised that the loan had been transferred.

On or about June 14, 2005, Countrywide sent Plaintiff a "Notice of Default and Acceleration of Payment." Plaintiff replied in writing, disputing Countrywide's right to collect and requesting verification to which he believed he was entitled under the Fair Debt Collection Practices Act ("FDCPA"). On or about August 1, 2005, Countrywide acknowledged Plaintiff's request, indicating that it would resolve the disputed issues within 20 days. It never responded further. At some point thereafter, Countrywide offered Plaintiff an opportunity to sign a new note, which he apparently declined.

On August 5, 2005, Recon Trust, allegedly a subsidiary of Countrywide, notified Plaintiff by certified mail of his default and their election to sell the property. Plaintiff retained an attorney, who withdrew "after failing in his first attempt." Plaintiff then filed the first amended complaint and obtained other financing to halt the pending foreclosure sale. He retained a second attorney, who withdrew after filing three more amended complaints. Thereafter, Plaintiff has proceeded pro se.

Plaintiff appealed and prevailed in the California Appellate Division, thereafter filing a fourth amended complaint.*fn1 Following a defense motion, Plaintiff filed a fifth amended complaint.

Thereafter, Merced County Superior Court Judge Brian McCabe sanctioned Plaintiff for failure to fully comply with the Court's order and directed Plaintiff to again amend his complaint. Proceeding pro se, Plaintiff again failed to comply with the Court's order, resulting in the Court's striking all claims except one alleging a Real Estate Settlement Procedures Act ("RESPA") violation. McCabe also ordered Plaintiff to respond to requested discovery and be deposed.

When the defendants notified Plaintiff of his deposition, Plaintiff believed the notice was improper and agreed to attend "with only a 48 hour proper notice or alternatively the questions they intended to ask." In response to the defendants' motions, McCabe ordered monetary sanctions and dismissed the case.

Plaintiff appealed the order to the Appellate Division, which affirmed. The State Supreme Court denied review. Plaintiff then unsuccessfully attempted to file a new action, seeking remittitur of the monetary sanctions for his discovery violation(s).

On October 21, 2011, Plaintiff filed a complaint in this Court. Following screening, the Magistrate Judge dismissed the complaint for failure to state a claim, with leave to amend within thirty days. Plaintiff filed his amended complaint on November 7, 2011, claiming (1) violations of RESPA and FDCPA; (2) infliction of emotional distress; and ...

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