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White v. HSBC Bank

United States District Court, S.D. California

October 21, 2014

VALLI WHITE, Plaintiff,
v.
HSBC BANK; BANK OF AMERICA CORPORATION, as successor in interest to Countrywide Home Loans, Inc.; THE BANK OF NEW YORK MELLON fka THE BANK OF NEW YORK; HOLDERS OF CWABS ASSET-BACKED CERTIFICATES TRUST SALONGA; JAY SALONGA; CASTLE REALTY; CENTRAL CAL INVST; FIRST AMERICAN TITLE COMPANY; and ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF TITLE, OR ANY CLOUD ON PLAINTIFF TITLE THERETO, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are the Motion to Dismiss Plaintiff's Complaint filed by Defendants Bank of America, N.A. and The Bank of New York Mellon (ECF No. 16), the Motion to Set Aside Default filed by The Bank of New York Mellon (ECF No. 19), and the Motion to Dismiss Plaintiff's Complaint, or, in the Alternative, to Transfer for Improper Venue filed by First American Title Company (ECF No. 21).

I. Background

On May 7, 2014, Plaintiff Valli White, proceeding pro se, commenced this action by filing a Complaint in this Court. (ECF No. 1). On August 7, 2014, Defendant The Bank of New York Mellon ("BNYM") was served with the Complaint. (ECF No. 12). On September 2, 2014, Plaintiff filed an Application for Entry of Default against BNYM. (ECF No. 17). On September 2, 2014, the Clerk entered default against BNYM. (ECF No. 18). On September 3, 2014, Defendant BNYM filed the Motion to Set Aside Default. (ECF No. 19). On September 14, 2014, Plaintiff filed an opposition. (ECF No. 24). On September 25, 2014, Defendant BNYM filed a reply. (ECF No. 29).

On September 2, 2014, Defendants Bank of America, N.A. ("Bank of America") and BNYM filed the Motion to Dismiss. (ECF No. 16). On September 9, 2014, Defendants Castle Real Estate Group, Inc. ("Castle"), Jay Solanga, and Eric Solanga joined in the Motion to Dismiss. (ECF No. 20). On September 22, 2014, Plaintiff filed an opposition. (ECF No. 27). On September 30, 2014, Defendants Bank of America and BNYM filed a reply (ECF No. 30), which was joined by Defendants Castle, Jay Solanga, and Eric Solanga (ECF No. 28).

On September 15, 2014, Defendant First American Title Company ("First American") filed the Motion to Dismiss or Transfer for Improper Venue. (ECF No. 21). On October 3, 2014, Plaintiff filed an opposition. (ECF No. 31). On October 15, 2014, Defendant First American filed a reply. (ECF No. 35).

II. Allegations of the Complaint

On or about December 22, 2005, Plaintiff executed a deed of trust for a loan on her home at 2011 Glen Harbor Drive, Ceres, California. "The lender was Decision One, the trustee was Transnation Title Insurance Company, and Mortgage Electronic Registration System (MERS') was the nominee for the lender." (ECF No. 1 at 6). On or about March 22, 2012, an assignment of dead of trust was executed by Mary Ann Hierman, assistant secretary for MERS, purporting to assign the deed of trust to BNYM on behalf of Decision One. "Decision One had gone out of business in 2007 and therefore had no ability to make any assignments in 2012. Further, Decision One ceased being a MERS Member. Therefore, MERS could not have assigned any interest in the loan as nominee for Decision One, the original purported lender." Id. at 6-7. In addition, no interest was ever transferred to"the Certificate Holders of CWABS Inc. Asset Backed Certificates, Series 2006-AB1" ("Defendant Trust") because the assignment of the deed of trust to BNYM "was over five years after the cutoff date for Loans to be assigned to this trust (Closing Date') of June 29, 2006...." Id. "Hierman does not hold the position of Assistant Secretary' of MERS, " but is a "robo-signer" that has never been appointed by MERS. Id. "Contrary to her statement in the [assignment of the deed of trust], Hierman did not have the requisite authority to sign on behalf of MERS or Decision One, had no personal knowledge of the facts involved in the [assignment of the deed of trust], has never seen or learned whether the Loan was actually ever assigned, never viewed the Note securing the [deed of trust], and never obtained a Declaration of Default from any entity." Id.

Defendant Trust is a common law trust formed in 2006 pursuant to New York law. The corpus of Defendant Trust allegedly consists of a pool of residential mortgage notes allegedly secured by liens on residential real estate. Defendant Trust has no officers or directors and no continuing duties other than to hold assets and to issue the series of certificates of investment. A detailed description of the categories of mortgage loans is included in the Prospectus Supplement ("the Prospectus"). The primary document governing the Trust is the Pooling and Service Agreement ("PSA"). It is a long approximately 243 page document....
One purpose of the PSA is to document that in the regular course of business Defendant The Bank of New York as Trustee for Defendant Trust originates and acquires loans and desires by the PSA to confirm the terms and conditions under which Defendant Trust will "acquire the mortgage loans" so originated.

Id. at 9. "Plaintiff alleges that Defendant Trust issued the senior securities in the mortgage-backed Trust identified herein." Id. "In the [assignment of deed of trust], Defendant Trust is listed as the holder and owner of the Note and the beneficiary of the DOT, listing Defendant The Bank of New York as Trustee for Defendant Trust. The DOT executed by Plaintiff identifies the Lender as Decision One and MERS as the beneficiary and nominee for the Lender." Id. "The Note was not duly endorsed, transferred and delivered to the Defendant Trust prior to the Closing Date, June 29, 2006." Id.

Defendants Castle, Central Cal Invst, and First American ("Sale Defendants") "facilitated a sale of the Property." Id. at 10. On or about April 2, 2013, Defendant Eric Salonga "solicited Plaintiff via U.S. Mail about selling the property." Id. "The Sale Defendants knew or should have known that the [deed of trust] was invalid." Id. The Sale Defendants "knowingly enticed Plaintiff into selling her home in a short sale' when the illegal Loan would be paid off and the Sale Defendants could profit handsomely from fees and commissions." Id. at 11.

The Complaint asserts claims for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. section 1692, against all Defendants; violation of the California Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), California Civil Code sections 1788 et seq., against all Defendants; violation of California Business & Professions Code section 17200 ("UCL") against all Defendants; violation of California Civil Code section 2924.12(b) against all Defendants; and violation of California Civil Code section 2924 et seq. against all Defendants. The Complaint requests a declaratory judgment that the sale be declared void, declaratory judgment that Defendants' conduct ...


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