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Yeota Christie v. Morgan Stanley Mortgage Capital Holdings

January 11, 2013

YEOTA CHRISTIE, PLAINTIFF,
v.
MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS, LLC; CAPITAL HOLDINGS, LLC; SAXON MORTGAGE SERVICES, INC.; FV-I, INC.;
LES ZIEVE DBA LAW OFFICES OF LES ZIEVE;
SPECIALIZED LOAN SERVICING; ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE, OR ANY CLOUD ON PLAINTIFF'S TITLE THERETO; AND
DOES 1--100, INCLUSIVE, DEFENDANTS.



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

JS-6

ORDER GRANTING LES ZIEVE AND SPECIALIZED LOAN SERVICING, LLC'S MOTIONS TO DISMISS [24, 28]

I.INTRODUCTION

On December 20, 2012, Defendant Les Zieve (dba Law Offices of Les Zieve) moved to dismiss Plaintiff Yeota Christie's mortgage-foreclosure Complaint. (ECF No. 24.) On December 28, 2012, Defendants FV-I Inc. and Specialized Loan Servicing separately moved to dismiss Christie's Complaint. (ECF No. 28.) Due to the substantial overlap in these concurrently filed motions, the Court considers the motions together. Having carefully considered the papers filed in support of and in opposition both motions, the Court deems the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. For the reasons discussed below, the Court dismisses this action with prejudice.

II.FACTUAL BACKGROUND

On September 19, 2007, Christie obtained an adjustable-rate home refinance loan from Wells Fargo Bank in the amount of $787,500.00. (Compl. Ex. C.) This loan was secured by a deed of trust naming Wells Fargo as the lender and beneficiary and Fidelity National Title Insurance Company as the trustee under the deed of trust. (Compl. Ex. D.)

On June 26, 2009, Wells Fargo (through its agent First American LoanStar Trustee Services, LLC) executed a Substitution of Trustee substituting First American LoanStar Trustee Services for Fidelity National Title Insurance Company as the trustee under the DOT. (Les Zeive's Request for Judicial Notice ("RJN") Ex. 2.) This substitution was recorded on June 30, 2009. (Id.)

Christie alleges that on November 13, 2009, she received an unsigned letter from an unidentified person or entity informing her that her loan had been assigned, sold, or transferred to Morgan Stanley Mortgage Capital Holdings, LLC, effective October 14, 2009. (Compl. ¶ 4.)

On July 22, 2010, after falling behind on her mortgage payments, Christie entered into a Loan Modification Agreement with Saxon Mortgage Services Inc., which Christie insists asserted that it was the lender on her loan. (Compl. ¶ 5 & Ex. C.) Christie contends that during the period from July 2010 to February 2012, she paid Saxon $54,481.11 in mortgage payments under the modified terms of her loan. (See Compl. ¶ 6.) Christie does not state in her Complaint what her monthly payments were during this period or that she consistently made those payments in full and on time, nor does she contend that the aggregate $54,481.11 in payments that she made during this period were not properly applied to her loan.

On July 5, 2012, a Notice of Default and Election to Sell was recorded, indicating that Christie was in default on her mortgage in the amount of $51,319.25. (Compl. Ex. H.) The Notice of Default noted that the Law Offices of Les Zieve was then acting as either "the original Trustee" (which was actually Fidelity National Title Insurance Company), "the duly appointed substituted Trustee" (which at this time was actually First American LoanStar Trustee Services), or "as agent for the Trustee." (Id.)

On August 8, 2012, Wells Fargo executed an Assignment of Deed of Trust purporting to transfer Christie's deed of trust from Wells Fargo Bank to FV-1, Inc. in trust for Morgan Stanley. (Compl. Ex. I.) The Assignment was recorded on August 17, 2012. (Id.)

On August 27, 2012, FV-I executed a Substitution of Trustee formally substituting the Law Offices of Les Zieve for First American LoanStar Trustee Services, LLC as the trustee under the DOT. (RJN Ex. 5.) This substitution was recorded on October 10, 2012. (Id.)

Christie alleges that she "does not know who the current lender and beneficiary of her Note and Deed of Trust actually is, such that she is now subject to double financial jeopardy." Finding herself "having no other alternative," Christie filed this action in this Court on September 20, 2012. Christie's Complaint alleges eight claims, styled as follows: (1) declaratory relief under 28 U.S.C. §§ 2201--2202; (2) negligence; (3) negligent infliction of emotional distress; (4) "negligence -- unfair debt collection [15 U.S.C. §2605]"; (5) unfair business practices under California's unfair competition law, Cal. Bus. & Prof. Code § 17200; (6) accounting; (7) cancellation of written instrument under California Civil Code section 3412; and (8) quiet title. The crux of Christie's contentions is that it is unclear who owns the note to her home and thus who is entitled to enforce the note through foreclosure.

October 11, 2012, Christie received a Notice of Trustee's sale alerting her that a foreclosure sale would proceed on November 2, 2012. On October 29, 2012, Christie reacted to this notice by filing an ex parte application for a temporary restraining order to stay the November 2 trustee's sale. (ECF No. 15.) The Court denied this request on October 30, ...


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