United States District Court, E.D. California
Frances Ryan, by and through her Guardian ad Litem, Geraldine Ryan, Plaintiff,
Nationstar Mortgage, LLC; and Does 1 through 50, inclusive, Defendants.
ORDER GRANTING MOTION TO DISMISS
GARLAND E. BURRELL, Jr., Senior District Judge.
Defendant Nationstar Mortgage, LLC ("Defendant") seeks dismissal of Plaintiff's Complaint, arguing, inter alia: "Plaintiff's entire complaint... rests on th[e] failed legal contention" that "a non-party to this lawsuit, U.S. Bank acting as trustee of a Pooling and Servicing Agreement ("PSA") of many bundled loans, did not receive a valid assignment of Plaintiff's loan because the assignment purportedly took place after the PSA trust's closing date." (Def.'s Mem. P.&A. in Supp. Mot. to Dismiss ("Mot.") 1:3-7, 1:14-17, ECF No. 4.) Defendant argues:
Based on this allegation, Plaintiff contends that U.S. Bank and [Defendant] lack authority to foreclose on the loan secured by real property.... This loan securitization allegation by Plaintiff has been repeatedly rejected by the state courts in California and respective Federal Courts. These courts have consistently held that persons such as Plaintiff, borrowers on loans, have no standing to challenge a violation of a PSA....
(Id. at 1:7-16.)
Plaintiff opposes the motion.
I. Judicial Notice
Defendant's motion includes a request that judicial notice be taken of various documents pertaining to Plaintiff's mortgage, including the Deed of Trust and the Corporation Assignment Deed of Trust. Defendant argues judicial notice is proper since the documents are "publicly recorded[, ]... referenced in Plaintiff's Complaint, and... central to the allegations contained in the Complaint." (Def.'s Req. for Judicial Not. ("RFJN") 2:8-10, ECF No. 5.)
Plaintiff has not contested this requested, and Defendant has shown it should be granted. Therefore, it is granted.
II. Factual Background
Certain judicially noticed facts and allegations in Plaintiff's Complaint follow.
On or around November 10, 2005, Plaintiff borrowed $500, 000.00 from Countrywide Home Loans, Inc. for a "residential mortgage loan for [her] residence." (See Compl. ¶¶ 2, 11, ECF No. 1-3; RFJN Ex. A, ECF No. 5-1.) The loan was secured by a Deed of Trust. (See Compl. ¶¶ 2, 12-13; RFJN Ex. A.) The Deed of Trust lists Recon Trust Company, N.A. as trustee and Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary. (RJFN Ex. A.) MERS then assigned its beneficial interest under the Deed of Trust to "U.S. Bank National Association as Trustee for the Holders of SARM 2005-23" ("U.S. Bank"). (RFJN Ex. B, Compl. ¶ 12.) This assignment was recorded on August 29, 2011. (RFJN Ex. B, Compl. ¶ 12.) "Defendant N[ationstar] M[ortgage] LLC... is the purported servicer of [the] Subject Loan." (Compl. ¶ 3.)
Plaintiff alleges "[t]he August 29, 2011 attempted transfer [to U.S. Bank] was made over five (5) years after the Closing Date [for the Trust]... [and] was [thus] void ab initio. " (Id. ¶ 13 (emphasis omitted).) Plaintiff also alleges this attempted transfer was void because "the Trust was required to possess the Deed of Trust to the Subject Loan within 90 days of the Closing Date of the Trust (or April 1, 2006), as set forth in the Pooling and Servicing Agreement [("PSA")]." (Id. ¶ 20.)
Plaintiff further alleges:
Therefore, there has never been any valid Assignment of the Deed of Trust[, ] and... [Defendant]... ha[s] [n]ever had any right to ...