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Thomas v. Bank of America, Na

United States District Court, Ninth Circuit

August 5, 2013

RUDIE THOMAS, Plaintiff,
v.
BANK OF AMERICA, N.A., as successor by merger to LASALLE BANK, N.A. as trustee for the MLMI TRUST SERIES 2006-RM2 and all PERSON UNKNOWN CLAIMING ANY ILLEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE OR ANY CLOUD ON PLAINTIFF'S TITLE THERETO; TIMOTHY RYAN BAR NO. 178059; MICHAEL STOLZMAN BAR NO. 263423; PAUL GRAMMATICO BAR NO. 246380 and DOES 1 to 10, inclusive, Defendant.

ORDER SUA SPONTE DISMISSING COMPLAINT BASED ON RES JUDICATA; AND DENYING DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [Dkt. Nos. 8, 11, 13.]

GONZALO P. CURIEL, District Judge.

On October 31, 2012, Defendant Bank of America, N.A.[1] ("BOA") as successor by merger to LaSalle Bank, N.A. as Trustee for the MLMI Trust Series 2006-RM2, filed a motion to dismiss. (Dkt. No. 8.) Defendants Timothy Ryan, Michael Stoltzman and Paul Grammatico[2] also filed a motion to dismiss. (Dkt. No. 11.) On November 6, 2012, Plaintiff filed a motion for summary judgment. (Dkt. No. 13.)

Plaintiff filed an opposition to both motions to dismiss on November 21, 2012. (Dkt. Nos. 15, 16.) Defendants filed their replies on January 11, 2013. (Dkt. Nos. 22, 23.) On December 21, 2012, Defendants filed an opposition to Plaintiff's motion for summary judgment. (Dkt. No. 17.) On January 4, 2013, Plaintiff filed a reply. (Dkt. No. 19.)

On March 28, 2013, the Court vacated the hearing date and directed the parties to file supplemental briefs on the issue of res judicata. (Dkt. No. 30.) On April 16, 2013, Plaintiff filed a supplemental brief and supporting documentation. (Dkt. No. 33.) On April 25, 2013, Defendants filed their supplemental brief and supporting documentation.[3] (Dkt. No. 35.) On June 4, 2013, Defendants filed a supplemental request for judicial notice of a recent ruling by the Court of Appeals on Plaintiff's appeal in state court. (Dkt. No. 43.)

Background

In March 2006, Plaintiff obtained two loans from Resmae Mortgage Corporation ("Resmae") and both were secured by deeds of trust naming Mortgage Electronic Registration Systems, Inc. ("MERS") as "beneficiary" for the property located at 5048 Crescent Bay Drive, San Diego, California 92154. (Dkt. No. 8-3, Ds' RJN, Exs. A and B.) Within the first year, Plaintiff defaulted on these loans and a notice of default was recorded with respect to the first position deed of trust on August 15, 2007. ( Id., Ex. C.) On August 24, 2007, MERS assigned its beneficial interest in the foreclosing loan to LaSalle Bank, NA as Trustee for the MLMI Trust Series 2006-RM2 which was recorded on October 1, 2007. ( Id., Ex. D.) Defendant LaSalle Bank, NA as Trustee for the MLMI Trust Series 2006-RM2 proceeded to name Quality Loan Service Corporation ("Quality") as the foreclosing trustee, as evidenced by a substitution of trustee recorded on November 21, 2007. ( Id., Ex. E.) Quality then proceeded to foreclose and recorded a notice of trustee's sale on November 21, 2007. ( Id., Ex. F.) The subject property was sold to Defendant La Salle Bank, N.A., as Trustee for the MLMI Trust Series 2006-RM2, at the trustee's sale, as shown by a trustee's deed upon sale recorded on May 5, 2008. ( Id., Ex. G.) Subsequently, on October 17, 2008, LaSalle Bank, N.A. merged into and with BOA. (Dkt. No. 43, Ex. X at 3.)

A. Prior State and Federal Proceedings

On January 26, 2009, Plaintiff filed a complaint in the San Diego Superior Court challenging the foreclosure in Case No. 37-2009-00073376-CU-OR-SC. On September 12, 2011, Plaintiff filed a second amended complaint against Defendants BOA, as successor by merger to LaSalle Bank, N.A., as Trustee for the MLMI Trust Series 2006-RM2; Wilshire Credit Corporation; Mortgage Electronic Registration Systems ("MERS") and Quality Loan Service Corporation to set aside trustee's sale and to cancel trustee's deed; cancellation of recorded instruments; quiet title; and declaratory relief in the Superior Court of California, County of San Diego. ( Id., Ex. I.) After the state court sustained Defendants' demurrer, judgment was rendered in favor of Defendant on November 28, 2011 and the action dismissed with prejudice. ( Id., Ex. J.) On December 1, 2011, Plaintiff filed an appeal of this judgment to the Court of Appeals ( Id., Ex. K.) On May 31, 2013, the Court of Appeal, Fourth Appellate District, Division One affirmed the judgment of the Superior Court in an eighteen page decision. (Dkt. No. 43, Ex. X.)

Subsequent to the foreclosure, on February 18, 2010, La Salle Bank, N.A., as Trustee, for the MLMI Trust Series 2006-RM2 commenced an unlawful detainer case in the Superior Court of California, County of San Diego against Plaintiff in Case No. 37-2010-00030342. (Dkt. No. 35-3, Ds' Suppl. RJN, Ex. A.) On March 29, 2010, the Superior Court granted LaSalle's motion for summary judgment for unlawful detainer and issued a writ of possession. ( Id., Exs. F, G.) The judgment was appealed to the Appellate Division of the Superior Court by Plaintiff. On November 28, 2012, the Appellate Division of the Superior Court dismissed the matter as moot since the property had been subsequently sold to a third party. (Dkt. No. 35-13, Ds' Suppl. RJN, Ex. K.)[4]

On December 27, 2011, Plaintiff then filed a case against LaSalle Bank, NA, as Trustee for the MLMI Trust Series 2006-RM2 in this Court to set aside trustee's sale and to cancel trustee's deed; for cancellation of recorded instruments, to quiet title; and for declaratory relief in case number 11cv3009-AJB(WVG). (Case No. 11cv3009-AJB(WVG)). An amended complaint was filed against BOA, as successor by merger to La Salle Bank, NA, as Trustee for the MLMI Trust Series 2006-RM2 on March 5, 2012. (Dkt. No. 8-3, Ds' RJN, Ex. L.) Defendant BOA filed a motion to dismiss based on the pending action in the Superior Court. ( Id., Ex. M.) On September 7, 2012, at the motion hearing, Judge Bencivengo granted Defendants' motion to dismiss without prejudice and denied Plaintiff's motion for summary judgment and motion for reconsideration as moot. (Case No. 11cv3009-CAB(WVG), Dkt. No. 41.) The Court concluded that it lacked subject matter jurisdiction over the allegations asserted in the FAC. (Dkt. No. 44 at 2.) It also stated that even if subject matter jurisdiction could be established in a second amended complaint, because of the matters pending in state court similar to the matters in this court concerning disposition of his property, the Court must abstain from hearing the matter when the state court has jurisdiction and had the issue first. (Id. at 3.) Judgment was entered in favor of Defendant Bank of America and against Plaintiff. ( Id., Dkt. No. 42.)

One month after Judge Bencivengo dismissed Plaintiff's complaint in case no. 11cv3009, on October 12, 2012, Plaintiff filed the instant complaint in this Court alleging numerous causes of action on the same DOT and foreclosure proceedings against BOA, as successor by merger to LaSalle Bank, N.A. as Trustee for the MLMI Trust Series 2006-RM2 and Defendants Ryan, Stoltzman and Grammatico, the attorneys who represented Defendant BOA in state court. The Complaint alleges the following causes of action:

1) False Claims Act, 31 U.S.C. § 3729(1)(A)(B)(C);

2) Conspiracy/Co-Conspiracy, 18 U.S.C. § 1028(a)(1)-(8), (b)(1)(A), & 18 U.S.C. § 241;

3) Fair Debt Collection Practices Act, 15 U.S.C. § 1692(e)(2)(B), and (f);

4) Motion for Relief from Automatic Stay from Delaware ...


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