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.

Michael Bowe v. American Mortgage Network

June 8, 2012

MICHAEL BOWE, PLAINTIFF,
v.
AMERICAN MORTGAGE NETWORK, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; CALIFORNIA RECONVEYANCE COMPANY; JP MORGAN CHASE BANK, NA; BANK OF AMERICA, NA, DEFENDANTS.



The opinion of the court was delivered by: United States District Judge Dean D. Pregerson

NO JS-6

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Dkt. Nos. 25, 29]

Presently before the court are the Motions to Dismiss Plaintiff's Complaint("Motion") filed by Defendants American Mortgage Network, Inc. ("AMN"); Mortgage Electronic Registration System, Inc. ("MERS"); California Reconveyance Company ("CRC"); JP Morgan Chase Bank, N.A. ("Chase"); and Bank of America, N.A. ("BANA") (collectively "Defendants"). Having considered the parties' moving papers, the court grants the motions and adopts the following order.

I. Background

On October 26, 2005, Plaintiff Michael Bowe obtained refinancing ("Loan" or "Note")from Defendant AMN that was secured by a Deed of Trust ("Deed") to the property located at 3958 Keeshen Drive, Los Angeles, California 90066 ("Subject Property" or "Property"). (Compl.¶¶ 8, 17, 19, 20, 21). Defendant MERS is identified as the beneficiary of the Deed and the nominee for the lender; non-party First American Title Insurance Company ("First American")is named as the trustee under the Deed. (Id. at ¶¶ 22, 24).

In order to obtain the refinancing, Plaintiff submitted a Uniform Residential Loan Application ("Application") to Foundational Financial, the broker for AMN. (Id. at 17). The Application was furnished to Bowe by Foundational Financial with all of the items already completed.*fn1 (Id.) Plaintiff expressed concern that his income as stated on the Application was inflated. (Id. at ¶ 18). Foundational Financial informed Plaintiff that his was "a stated income loan," and assured Plaintiff that his income would never be verified and that the numbers were chosen by Foundational Financial to satisfy their underwriting guidelines. (Id.).

Sometime between October 26, 2005, and March 17, 2011, AMN transferred the Note to an investment trust.*fn2 (Id. at 25). On March 18, 2011, MERS assigned the beneficial interest under the Deed to BANA. (Id. at 26). The Assignment was signed by Colleen Irby, who Plaintiff believes is not an officer, employee or agent of MERS. (Id. at ¶ 27). The same day, BANA executed a Substitution of Trustee ("Substitution"), identifying Defendant CRC as the new trustee under the Deed. (Id. at ¶¶ 30, 31, Ex. 5). Plaintiff alleges that CRC is a wholly owned subsidiary of Chase. (Id. at 33). The Substitution was also signed by Colleen Irby, who Plaintiff believes is not an officer, employee or agent of Chase. (Id. at ¶ 32). Additionally, on that same day, CRC, as the new trustee under the Deed, executed a Notice of Default ("NOD"), which stated that Plaintiff was $38,297.01 behind on his Loan payments. (Motion 2:14-16).

On June 20, 2011, CRC executed a Notice of Trustee's Sale ("NOTS"). (Id. at Ex. A). Plaintiff alleges that the NOTS was unsigned, but was said to be on the authority of Regina Cantrell, Assistant Secretary of CRC, as Trustee. (Id. at ¶ 43). A public auction of the Subject Property was set for October 12, 2011. (Id. at 49).

On October 11, 2011, Plaintiff filed a verified complaint alleging seven causes of action, including violations of California Civil Code § 2923.5 and California Civil Code § 2924f, against Defendants in connection with their attempt to foreclose upon Plaintiff's home. Also on October 11, 2011, Plaintiff filed an application for a Temporary Restraining Order ("TRO"), seeking to halt a foreclosure sale scheduled for October 12, 2011, which was granted. On October 20, 2011, a Preliminary Injunction Hearing was held. Defendants failed to oppose the Preliminary Injunction or appear at the Preliminary Injunction Hearing, and Plaintiff was granted a Preliminary Injunction against the foreclosure sale. Defendants MERS, CRC, Chase, and BANA filed their Motion to Dismiss on November 4, 2011. Defendant AMN filed its Motion to Dismiss on November 17, 2011.

II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal when the plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a 12(b)(6) motion to dismiss for failure to state a claim, "all allegations of material fact are accepted as true and should be construed in the light most favorable to [the] plaintiff." Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).

In Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), the Supreme Court explained that a court considering a 12(b)(6) motion should first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."

Id. Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."

Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim ...


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.