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Anthony C. Smith v. Bac Home Loans Servicing

October 4, 2012


The opinion of the court was delivered by: Cathy Ann Bencivengo United States District Judge



Defendants Banc of America, N.A., as successor by merger to BAC Home Loans Servicing, L.P.*fn1 ("BANA"), ReconTrust Company, N.A. ("ReconTrust") and Federal Home Loan Mortgage Corporation ("Freddie Mac") filed their Motion to Dismiss Plaintiff's Complaint on February 23, 2012. [Doc. No. 3.] The Motion was noticed for an April 6, 2012 hearing. Local Rule 7.1.e.2 required Plaintiff Anthony C. Smith, pro se, to file and serve his opposition, if any, to the Motion "not later than fourteen (14) calendar days prior to the noticed hearing." Thus, Plaintiff's opposition papers were due by March 23, 2012.

Plaintiff failed to file opposition papers by March 23, 2012, and to date, he has not filed any opposition to Defendants' Motion to Dismiss. Under Local Rule 7.1.f.3.c, a party who fails to file the required papers may be deemed to have consented to the granting of the motion. Accordingly, on April 2, 2012, Defendants filed a Notice of Plaintiff's Failure to Oppose Motion to Dismiss Plaintiff's Complaint. [Doc. No. 4.]

That Plaintiff is proceeding pro se in this action does not excuse his failure to follow the rules of procedure that govern other litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants."); Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir.1986) ("Although pro se, he is expected to abide by the rules of the court in which he litigates."). As a sanction, district courts may dismiss actions for failure to comply with pretrial procedures mandated by local rules. Thompson v. Housing Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829 (1986). "However, because dismissal is such a severe remedy, we have allowed its imposition in these circumstances only after requiring the district court to weigh several factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions." Id. Having weighed these factors, the Court finds that dismissal is warranted under the present circumstances.

Further, dismissal is also warranted pursuant to Fed. R. Civ. P. 12(b)(6) for the reasons stated below, including Plaintiff's failure to satisfy Federal Rule of Civil Procedure 8. Thus, the Complaint is DISMISSED WITHOUT PREJUDICE to amending on or before October 23, 2012. Should Plaintiff choose to amend, he must provide factual allegations for each element for each of his claims, and must specify to which defendant each of his claims apply and why. Failure to file an amended complaint on or before October 23, 2012 will result in a dismissal of this action with prejudice.


The facts set forth herein are taken from the Complaint or from judicially noticeable documents incorporated in the Complaint and are accepted as true for purposes of this procedural juncture only. Certain legal conclusions of Plaintiff are set forth below for context, but are not accepted as true as they lack sufficient factual support.

In December 2007, Plaintiff obtained a $253,500 home loan from Countrywide Bank FSB in order to purchase property located in San Diego, CA.*fn2 [Compl., Doc. No. 1 at ¶¶6, 11, 14; Doc. No. 1, Ex. A at 21 & 32.]*fn3 Countrywide, or its successor, acted as the loan servicer, and the service of the loan was in whole or in part transferred to DOES 1 through 50. [¶¶1, 10.] The Deed of Trust named ReconTrust as the Trustee and Mortgage Electronic Registration systems, Inc. ("MERS") as the nominee and beneficiary of the Deed of Trust. [¶11; Doc. No. 1, Ex. A at 21.]

On July 1, 2009, ReconTrust, on behalf of MERS, caused a "Notice of Default and of Election to Sell Under Deed of Trust" to be recorded with the San Diego County Recorder's Office. [¶15; Doc. No. 1, Ex. B at 37-39.] The Notice of Default stated that, as of June 29, 2009, Plaintiff may be able to bring his account into good standing by timely making "past due payments plus permitted costs and expenses," that "[t]his amount is $7,504.29, as of 06/29/2009," and that "[u]pon your written request, the beneficiary or mortgagee will give you a written itemization of the entire amount you must pay." [Id.]*fn4 The Notice of Default directs such written requests to MERS, "C/O BAC Home Loans Servicing, LP." [Doc. No. 1, Ex. B at 38.] At some unpled point in time and directed to some unpled person or entity, Plaintiff alleges that he "on more than one occasion requested validation of the 'debt'" owed. [¶¶21, 40.] And, again at some unpled point in time, Defendants somehow collectively "refused and continued to refuse to validate or otherwise make a full accounting and the required disclosures as to the true finance charges and fees." [¶¶21, 40-41.]

The Notice of Default stated that "no sale date may be set until three months" from July 1, 2009. [Doc. No. 1, Ex. B at 37.] Finally, although misquoted in ¶17 of the Complaint, the Notice of Default further stated:

That by reason thereof, the present beneficiary under such deed of trust has executed and delivered to RECONTRUST COMPANY, N.A. such deed of trust and all documents evidencing obligations secured thereby, and has declared and does hereby declare all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations secured thereby. [Doc. No. 1, Ex. B at 38.]

The Notice of Default contains a declaration signed by one of BAC's collectors, stating that BAC "contacted the borrower to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure." [Id. at 39.] Plaintiff alleges that "[n]one of the Defendants assessed Plaintiff's financial situation correctly or in good faith prior to filing the Notices of Default. [¶69.] Plaintiff also suggests that the declaration signed by one of BAC's agents is fraudulent because BAC "was not in existence at the time of the declaration." [Id.]

Also on July 1, 2009, Defendants BAC and ReconTrust each represented to Plaintiff that "BAC Home Loan Servicing, was the beneficiary under the Deed of Trust." [¶¶56, 58.]*fn5 Plaintiff alleges (without providing sufficient factual support) that these representations were false and that BAC did not pay any consideration for the loan. [¶55, 58-59.]

Plaintiff alleges that at some point prior to the conclusion of the foreclosure proceedings, non-parties Wells Fargo and Home Mortgage had orally agreed not to go forward with the foreclosure proceedings. [¶66.] Plaintiff then alleges that somehow and at some unpled point in time "Defendants agreed to postpone any sale if Plaintiff applied for a modification of the Loan and even took agreed-upon monthly payments as consideration for such agreement." [¶67.] Plaintiff does not allege when or whether he ever made such a loan modification application, but just that Defendants somehow collectively "fail[ed] to review the financial information of Plaintiff and negotiate a loan modification with Plaintiff in good faith." [¶68.] Plaintiff pleads that, as a result, Defendants BAC, ReconTrust and DOES 1 through 50 refused to modify the loan by proceeding with the foreclosure. [¶¶66-67.]

A trustee's sale of Plaintiff's property occurred on November 28, 2011, at which time the property reverted back to the beneficiary. [Doc. No. 3-2 ("RJN"), Exs. 8-9.]*fn6 Plaintiff alleges that, at the time of the sale, Defendants BAC and DOES 1 through 50 did not own his loan as a result of a prior sale or transfer of the loan to investors. [¶64.]*fn7 Plaintiff further alleges that his home loan with Countrywide was "invalid" due to the following alleged procedural deficiencies with the loan itself and the foreclosure process: (1) he was not provided with two copies of the "Notice to Cancel;" (2) the Notice of Default as was never mailed and did not satisfy the requirements of California Civil Code ยง 2923.5; (3) the sale date for the property was ...

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