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Title: Troy A. Young v. U.S. Bank National Association

August 24, 2012

TITLE: TROY A. YOUNG
v.
U.S. BANK NATIONAL ASSOCIATION, ET AL.



The opinion of the court was delivered by: Honorable David O. Carter, Judge

O

CIVIL MINUTES -- GENERAL

PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE

Julie Barrera N/A Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: None Present None Present

PROCEEDINGS: (IN CHAMBERS): ORDER GRANTING DEFENDANTS' MOTION TO DISMISS CASE, AND DENYING DEFENDANTS' MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT AS MOOT

Before the Court is a Motion to Dismiss (Docket 18) and a Motion to Strike Portions of Plaintiff's First Amended Complaint (Docket 19), filed by Defendants U.S. Bank National Association ("U.S. Bank"), and Mortgage Electronic Registration Systems ("MERS") (together referred to as "Defendants"). The Court finds the matter appropriate for decision without oral argument. Fed R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers, the Court hereby: GRANTS Defendants' Motion to Dismiss, and thus dismisses Plaintiff's First Amended Complaint WITHOUT PREJUDICE, and DENIES Defendants' Motion to Strike Portions of Plaintiff's First Amended Complaint as moot.

I.Background

Plaintiff Troy Young ("Plaintiff") alleges a range of improprieties by parties involved in the foreclosure of his home. His main contention is that defendants,*fn1 including U.S. Bank and MERS, lacked the authority to execute the documents that they used to carry out the foreclosure sale of his home. First Am. Compl. ¶¶35-41. Thus, the foreclosure is "void and unenforceable." Id. ¶41.

a. Plaintiff's Loan

Plaintiff alleges that on November 23, 2005, he entered into a loan agreement with Lending 1st Mortgage for $1 million. Id. ¶10. The Deed of Trust listed Lending 1st Mortgage as the lender, and MERS as the beneficiary. Id. ¶16. Plaintiff alleges that MERS lacked any ownership interest in the loan and could act only as agent for Lending 1st Mortgage. Id. ¶18. The basis for this contention is that the Deed of Trust said that "MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns." Id.

On August 10, 2009, a Notice of Default was recorded. Id. Ex. B. It listed $28,272.82 as the amount Plaintiff owed. Id. Plaintiff alleges that the company that caused the Notice of Default to be recorded, NDEx West, was in fact a stranger to the Deed of Trust, and not an agent for the beneficiary of the Deed of Trust. Id. ¶20. This is so because Lending 1st Mortgage had gone out of business more than a year earlier, Plaintiff alleges. Id.

On September 4, 2009, an Assignment of Deed of Trust was recorded. Id. Ex. C. By the text of that document, MERS assigned the Deed of Trust to U.S. Bank. Id. Plaintiff alleges this document was invalid for various reasons, including that MERS could not act on Lending 1st Mortgage's behalf because that lender ...


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