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Tricia N. Byrd, An Individual; and Steven H. v. Guild Mortgage Company; California Housing Finance Agency; Mortgage

December 20, 2011

TRICIA N. BYRD, AN INDIVIDUAL; AND STEVEN H. LUCORE, AND INDIVIDUAL,, PLAINTIFF,
v.
GUILD MORTGAGE COMPANY; CALIFORNIA HOUSING FINANCE AGENCY; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AND DOES 1-20, INCLUSIVE, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are the Motion to Dismiss the Complaint (ECF Nos. 4, 5) and Motion for Telephonic Appearance at the Hearing on the Motion to Dismiss (ECF No. 6) filed by Defendants California Housing Finance Agency, Guild Mortgage Company, and Mortgage Electronic Registration Systems, Inc., and the Ex Parte Motion for Temporary Restraining Order (ECF No. 11) filed by Plaintiffs Tricia Byrd and Steven Lucore.

BACKGROUND

On August 24, 2011, Plaintiffs filed a Complaint against Defendants in the California Superior Court for the County of San Diego, Case No. 37-2011-00096841. (ECF No. 1-3). On September 21, 2011, the case was removed to this Court by Defendants' Notice of Removal. (ECF No. 1).

On September 29, 2011, Defendants filed a Motion to Dismiss. (ECF No. 4). On September 30, 2011, Defendants filed a Motion for Telephonic Appearance at the Hearing on the Motion to Dismiss (ECF No. 6).*fn1 On October 11, 2011, Plaintiffs filed an opposition to the Motion to Dismiss. (ECF No. 7). On October 24, 2011, Defendants filed a reply. (ECF No. 8).

On December 13, 2011, Plaintiffs filed an Ex Parte Motion for Temporary Restraining Order ("Ex Parte Motion"). (ECF No. 11). On December 15, 2011, Defendants filed an opposition to the Ex Parte Motion. (ECF No. 13).

ALLEGATIONS OF THE COMPLAINT

Plaintiff Tricia Byrd acquired a condominium located at 5700 Baltimore Drive #101, La Mesa, California, by deed of trust recorded on September 7, 2007. (ECF No. 1-3 at 3). The deed included a promissory note in the amount of $180,400.00. Id. at 39-40. The deed identifies Plaintiff Byrd as the borrower, Guild Mortgage Company ("Guild") as the lender, and Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary. Id.

On April 26, 2011, an assignment of deed of trust was executed by MERS, purportedly assigning the deed and note to California Housing Finance Agency ("CHFA"). Id at 8. The assignment was forged and signed by a false representative of MERS who did not have authority to assign the company's interest. Id. at 8-9.

On April 28, 2011, CHFA recorded a notice of default claiming that Plaintiff Byrd was in default of her obligations under the deed and note. Id. The notice of default is invalid and void because it is based on the defective assignment. Id.

On May 31, 2011, Plaintiff Byrd mailed a qualified written request ("QWR") to Guild requesting information from the creditor. Id. at 8, 64-66. Guild responded by alleging that Plaintiff Byrd's letter did not constitute a QWR under the Real Estate Settlement Procedures Act ("RESPA"). Id. at 9, 70-71.

The Complaint asserts ten causes of action as follows: (1) cancellation of instruments;

(2) violation of California Civil Code § 2923.5; (3) violation of California Civil Code § 2943;

(4) violation of RESPA, 12 U.S.C. § 2605; (5) unfair business practices under California Business & Professions Code § 17200; (6) quasi contract; (7) failure to comply with condition precedent; (8) violation of California Civil Code § 1441; (9) violation of the Truth in Lending Act, ...


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