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April Mottahedeh v. Bank of America Home Loans Servicing Lp

January 31, 2013

APRIL MOTTAHEDEH, PLAINTIFF,
v.
BANK OF AMERICA HOME LOANS SERVICING LP, ET AL. DEFENDANTS.



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Motion filed on July 9, 2012]

Plaintiff April Mottahedeh brings this action asserting six claims related to the non-judicial foreclosure and trustee's sale of her residence. Currently before the Court is a Motion to Dismiss (Doc. No. 26) filed by Defendants Bank of America, N.A., erroneously sued as Bank of America Home Loans Servicing LP ("Bank of America"); Recontrust Company, N.A., erroneously sued as Recontrust Company ("Recontrust"); Bank of New York Mellon, erroneously sued as Bank of New York; Esther Gray; Sheryl Dela Cruz; and Mortgage Electronic Registration Systems ("MERS") (collectively, "Moving Defendants"). The Court, having received and considered all papers filed in support of, and in opposition to, the Motion, finds the Motion appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. For the reasons expressed below, the Court GRANTS the Moving Defendants' Motion, without leave to amend.

I. BACKGROUND

A. Allegations in the First Amended Complaint

On April 28, 2006, in connection with a $175,000 loan, Plaintiff executed a Deed of Trust on her residence listing Defendant Equity Options Inc. as both lender and trustee. (FAC ¶¶ 3--4.) Plaintiff did not sign a promissory note for repayment of the loan. (FAC ¶ 8.) In the Deed of Trust, however, Plaintiff acknowledged she had promised to repay the loan, plus interest, in regular periodic payments. (See Deed of Trust, Ex. A to Req. for Judicial Not. ("RJN") (Doc No. 27).)

In a Corporation Assignment of Deed of Trust recorded on June 8, 2006, Equity Options Inc. transferred its interest in the Deed of Trust to MERS. (Corp. Assign. of Deed of Trust, Ex. B to RJN.) MERS transferred its interest in the Deed of Trust to Bank of New York Mellon in an Assignment of Deed of Trust recorded on October 3, 2011. (Assign. of Deed of Trust, Ex. C to RJN.)

Plaintiff wrote to Bank of America on January 26, 2010, expressing doubts as to the existence of a promissory note and asking to see the original. (FAC ¶¶ 13--14.) Bank of America responded that Bank of New York owned Plaintiff's loan. (FAC ¶ 15.) Plaintiff then wrote to Bank of New York, copying Bank of America, asking to see certain original documents, including the note evidencing the loan. (FAC ¶ 16.) Bank of New York Mellon never responded; Bank of America responded by sending Plaintiff copies of all available loan documents, as well as a loan transaction history. (FAC ¶¶ 17--18.)

In a Substitution of Trustee recorded on October 12, 2011, MERS substituted Recontrust as the trustee. (Sub. of Trustee, Ex. D to RJN.) Recontrust recorded a Notice of Default and Election to Sell under Deed of Trust ("Notice of Default") on October 12, 2011 (Ex. E to RJN), which Plaintiff received on October 22, 2011 (FAC ¶ 28). The Notice of Default listed Sheryl Dela Cruz as the person to whom the recorded document should be mailed. (See Not. of Default at 1.)

Plaintiff wrote to Recontrust on November 21, 2011, disputing the validity of the loan and the existence of a promissory note. (FAC ¶¶ 31--33.) Recontrust did not reply, but Esther Gray from Bank of America sent a response stating that Plaintiff's concerns required further detailed analysis. (FAC ¶¶ 37--38.) Bank of America did not send a further response. (FAC ¶ 39.)

Recontrust recorded a Notice of Trustee's Sale on January 17, 2012 (Ex. F to RJN); the Notice was mailed to Plaintiff and posted on the property (FAC ¶ 40).

B. Procedural History

Plaintiff filed her initial Complaint on February 3, 2012 (Doc. No. 1). The Court twice issued orders dismissing Plaintiff's Complaint upon Plaintiff's failure to oppose Defendants' Motions to Dismiss (see Doc. Nos. 7, 16). The Court vacated its first order of dismissal upon learning Defendants had failed to serve Plaintiff properly with the motion to dismiss (Doc. No. 8). The Court vacated its second order of dismissal because Plaintiff had filed a First Amended Complaint ("FAC") three days before the Court issued the order (see Doc. No. 20).

Plaintiff filed her First Amended Complaint ("FAC") against Equity Options Inc. and the Moving Defendants on May 4, 2012, asserting the following six claims for relief: (1) lack of standing to foreclose; (2) quiet title; (3) fraudulent attempts to foreclose; (4) refund of funds paid under fraud; (5) damage award for damaging Plaintiff's credit rating/score; and (6) making debt collection calls after notification that all collections claims should be submitted in writing (erroneously captioned as a second "damage award for damaging Plaintiff's credit rating/score") (Doc. No. 16).

The Moving Defendants filed a Motion to Dismiss the FAC on July 9, 2012 (Doc. No. 26). Plaintiff failed to file an opposition by the deadline, and the Court granted the Motion on July 26, 2012 (Doc. No. 30). On August 8, 2012, Plaintiff moved to vacate the dismissal, asking the Court to excuse her failure to file an opposition based on contemporaneous complications with childbirth (Doc. No. 32). On August 28, 2012, the Court granted Plaintiff's motion, vacated its third order of dismissal, and extended the deadline for Plaintiff to file an opposition to the Motion to Dismiss (Doc. No. 41). Plaintiff filed an opposition on September 4, 2012 and, after another round of motion practice, filed her Amended Opposition on September 21, 2012 (Doc. No. 50). The Moving Defendants filed an Amended Reply on September 27, 2012 (Doc. No. 48).

C. Request for Judicial Notice

The Moving Defendants filed a Request for Judicial Notice ("RJN") (Doc. No. 27) with their Motion on July 9, 2012, requesting the Court to take ...


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