Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Boudway v. Federal National Mortgage Association

United States District Court, Ninth Circuit

December 18, 2013

FRANK EARL BOUDWAY; and PATRICIA ANNE BOUDWAY, Plaintiffs,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION; BANK OF AMERICA, NATIONAL ASSOCIATION; MORTGAGEIT, INC.; and DOES 1-100, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Motion to Dismiss filed by Defendants Federal National Mortgage Association ("FNMA") and Bank of America, National Association ("BOA"). (ECF No. 5).

I. Background

A. Factual Allegations of the Complaint

On December 11, 2006, Plaintiffs Frank Earl Boudway and Patricia Anne Boudway ("Plaintiffs") obtained a $417, 000 loan from Mortgageit, Inc., and secured repayment of the loan with a deed of trust encumbering the subject San Diego property. (Complaint, ECF No. 1 ¶ 15). The deed of trust named Chicago Title Company as the trustee, and Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary. Id.

On June 11, 2010, Recontrust Company, as the agent for the beneficiary of the deed of trust, commenced the nonjudicial foreclosure of the subject deed of trust. Id. ¶ 16. On June 22, 2010, MERS recorded a document to substitute Recontrust Company as trustee under the deed of trust, and to assign the deed of trust to BAC Home Loans Servicing, LP FKA Countrywide Home Loans Servicing, LP (which was later succeeded by Defendant BOA). Id. ¶ 17.

Plaintiffs defaulted on their repayment of the loan, and a Notice of Default was recorded in the office of the County Recorder for San Diego County in June 2010. Id. ¶ 17. When Plaintiffs failed to cure the default, a notice of trustee's sale was recorded on September 20, 2010. Id. ¶ 18. The sale went forward on July 25, 2011, and Defendant FNMA purchased the property for $322, 300. Id. ¶ 20.

B. State Court Proceedings

Shortly after the July, 2011 sale, Plaintiffs filed an action for wrongful foreclosure against BOA and FNMA in the San Diego County Superior Court, Case No. 37-2011-00070139 ("the state court action"). (State Court First Amended Complaint, ECF No. 5-6 at 37-46). The First Amended Complaint in the state court action asserted several claims, which are all related to the servicing of the loan and the July, 2011 foreclosure of the subject property. Id. The First Amended Complaint in the state court action alleged the following claims for relief: (1) Set Aside Trustee Sale; (2) Quiet Title; (3) Cancel Trustees Deed; (4) Accounting. In July, 2012, the Superior Court sustained the demurrer of Defendants BOA and FNMA without leave to amend and entered an order of dismissal with prejudice. (ECF No. 5-6 at 49-50).

C. Federal Court Proceedings

On March 4, 2013, Plaintiffs initiated this action by filing a Complaint against Defendants FNMA, BOA and MortgageIt, Inc., asserting several claims which arise out of or are related to the servicing and the July, 2011 foreclosure of the subject loan and the subject property. (ECF No. 1). The Complaint alleges the following claims for relief: (1) Declaratory Relief; (2) Negligence; (3) Quasi Contract; (4) Violation of 15 U.S.C. § 1692, et seq.; (5) Violation of California Business and Professions Code Section 17200, et seq.; (6) Accounting; (7) Violation of 18 U.S.C. § 1951(b)(2) - Extortion.

On August 7, 2013, Defendants FNMA and BOA filed a Motion to Dismiss all claims in the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 5). On September 25, 2013, Plaintiffs filed an opposition. (ECF No. 10). On September 27, 2013, Defendants FNMA and BOA filed a reply. (ECF No. 11).

II. Discussion

A. Standard of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.