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Freddie V. Salmo v. Phh Mortgage Corporation

January 11, 2012

FREDDIE V. SALMO, PLAINTIFF,
v.
PHH MORTGAGE CORPORATION, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge

ORDER GRANTING in part AND DENYING in part DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO FED. R. CIV. P. 12(c) [52] [Filed 09/02/11]

I. INTRODUCTION

Pending before the Court is Defendants PHH Mortgage Corporation ("PHH"); U.S. Bancorp D/B/A U.S. Bank, National Association, as trustee for J.P Morgan Alternative Loan Trust 2006-A6 ("U.S. Bank"); Mortgage Electronic Registration Systems, Inc. ("MERS"),*fn1 and NDeX West, L.L.C.'s ("NDeX") (collectively, "Defendants") Motion for Judgment on the Pleadings as to Plaintiff Eddie Salvo's ("Plaintiff") First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(c), or alternatively, for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 52.)

Plaintiff filed an Opposition on September 12, 2011 (Dkt. No. 54), to which Defendants filed a Reply on September 19, 2011. (Dkt. No. 55.) Having considered the papers filed in support of and in opposition to the instant Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. For the following reasons, Defendants' Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part.

II. FACTUAL BACKGROUND*fn2

This case arises out of a mortgage loan in the amount of $500,000 obtained by Plaintiff on September 8, 2006, and secured by Plaintiff's property located at 6499 Broken Star Court, Rancho Cucamonga, California 91701 ("Subject Property"). (FAC ¶¶ 4, 21.) In connection with the loan, Plaintiff executed a promissory note ("Note") and Deed of Trust ("DOT"), which named Plaintiff as the borrower, PHH as the lender and beneficiary of the DOT, and First American Title as trustee of the DOT. (FAC ¶ 21; Defendants' Request for Judicial Notice ("RJN"), Exh. 1.) On October 30, 2006, PHH executed an Assignment of Deed of Trust naming MERS as the DOT's beneficiary. (Defendants' RJN, Exh. 2.)

As of August 2, 2010, Plaintiff was in default in the amount of $10,956.64. (Defendants' RJN, Exh. 3.) As a result of Plaintiff's default, a Notice of Default and Election to Sell Under Deed of Trust was recorded with the San Bernardino County Recorder's Office. (Defendants' RJN, Exh. 3.)

On August 19, 2010, Marc. J Hingle, as Vice President of MERS, executed a second Assignment of Deed of Trust ("ADOT") naming U.S. Bank as the beneficiary of the DOT.

(FAC ¶ 22; Defendants' RJN, Exh. 4.) On September 2, 2010, the ADOT was recorded with the San Bernardino County Recorder's Office. (FAC ¶ 44; Defendants' RJN, Exh.

4.) Plaintiff contends that U.S. Bank has "no beneficial interest in Plaintiff's loan" because it failed "to properly document, endorse, and transfer Plaintiff's Note and Mortgage to" U.S. Bank. (FAC ¶¶ 24--25.) As a result, "Plaintiff disputes the alleged debt and alleges that [he is] not required to pay [either] U.S. Bank or PHH Mortgage since neither Defendant has legal or equitable rights to enforce the purported debt obligation." (FAC ¶ 54.)

Also on September 2, 2010, U.S. Bank executed a Substitution of Trustee substituting NDeX for First American Title as trustee under the DOT; this Substitution of Trustee was recorded on September 12, 2010. (FAC ¶ 111(c); Defendants' RJN, Exh. 5.) On November 5, 2010, a Notice of Trustee's Sale was recorded with the San Bernardino County Recorder's Office. (Defendants' RJN, Exh. 6.) On November 29, 2010, Plaintiff filed a Chapter 13 bankruptcy petition in the Central District of California, Riverside Division. (FAC ¶ 111(d).)

Plaintiff asserts that Defendants violated several federal and state laws in conjunction with the aforementioned transfers and substitutions. Consequently, on February 28, 2011, Plaintiff filed a federal Complaint. (Dkt. No. 1.) On April 14, 2011, Defendants filed a Motion for Judgment on the Pleadings (Dkt. No. 19), which this Court granted with leave to amend. (Dkt. No. 37.) Plaintiff subsequently filed a First Amended Complaint ("FAC") on August 2, 2011, alleging six claims against Defendants:

(1) declaratory relief; (2) common law fraud; (3) negligence; (4) violation of 15 U.S.C. § 1641(g); (5) violation of California Business and Professions Code section 17200; and

(6) quiet title. (Dkt. No. 46.) Defendants now move for judgment on the pleadings as to Plaintiff's entire FAC. (Dkt. No. 52.) The Court addresses Defendants' arguments and ...


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