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Melanie Dye v. First Source Funding Group

May 6, 2013

MELANIE DYE, PLAINTIFF,
v.
FIRST SOURCE FUNDING GROUP, INC. ET AL., DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

On April 24, 2013, the court held a hearing on defendants' January 25, 2013 motion to dismiss. Ethan Schatz appeared for the moving defendants. Plaintiff Melanie Dye did not appear. On review of the motion, the documents filed in support and opposition, upon hearing the arguments of defense counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

A. Facts Underlying Complaint

On November 8, 2005, plaintiff obtained a mortgage loan in the amount of $600,000, secured by real property located at 8416 Coyote Hill Lane, Winters, CA 95694 ("the Subject Property"). Compl. ¶¶ 20, 25; Defs.' Req. for Judicial Notice ("RJN"), Ex. A.

The Deed of Trust ("DOT"), which was recorded in the Solano County Recorder's Office on November 16, 2005, Recorder No. 200500177683, identifies First Source Funding Group, Inc. ("First Source") as the Lender, Mortgage Electronic Registration Systems, Inc. ("MERS") as the Beneficiary, and Alliance Title Company as the Trustee.*fn1 RJN, Ex. A.

On June 24, 2011, an Assignment of Deed of Trust was recorded in the Solano County Recorder's Office, Recorder No. 201100056359. RJN, Ex. B. By way of this assignment and for value received, MERS granted, sold, assigned, transferred, and conveyed to the Bank of New York Mellon, formerly known as The Bank of New York, as successor trustee to JPMorgan Chase Bank, N.A., as trustee for the holders of SAMI II Trust 2005-AR8, Mortgage Pass-Through Certificates, Series 2005-AR8 ("the Bank of New York"), all beneficial interest under the DOT. Id.

On January 13, 2012, a Substitution of Trustee was recorded in the Solano County Recorder's Office, Recorder No. 201200003493. RJN, Ex. C. There, ReconTrust Company, N.A. ("ReconTrust") was substituted in for Alliance Title Company as the Trustee. Id.

Also on January 13, 2012, a Notice of Default and Election to Sell Under Deed of Trust was recorded in the Solano County Recorder's Office, Recorder No. 201200003494. RJN, Ex. D.

On April 18, 2012, a Notice of Trustee's Sale was recorded in the Solano County Recorder's Office, Recorder No. 201200036176. RJN, Ex. E. The Subject Property was scheduled to be sold at public auction on May 11, 2012. Id.

Finally, on April 25, 2012, a Corporation Assignment of Deed of Trust was recorded in the Solano County Recorder's Office, Recorder No. 201200038607. RJN, Ex. F. By way of this recorded document, the Bank of New York transferred its interest to Southwest First Source 2005 Corporate Pass-Through Certificates Series 2005. Id.

B. The State Action

On April 20, 2012, plaintiff initiated an action in the Solano County Superior Court and was proceeding on an amended complaint filed on May 3, 2012 ("the State action"). See RJN, Ex. G. There, plaintiff brought suit against Bank of America (also known as The Bank of New York), First Source, ReconTrust, and LandSafe for quiet title based on multiple alleged improprieties related to the servicing of the November 8, 2005 mortgage loan secured by the Subject Property, as well as the non-judicial foreclosure of the Subject Property. Plaintiff also asserted federal claims for violations of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692--1692p; the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq.; and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq.

Defendants filed a demurrer*fn2 to the amended complaint, which was sustained by order dated August 2, 2012. See RJN, Ex. H. Plaintiff's State action was dismissed without leave to amend, ...


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