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D'Oleire v. Select Portfolio Servicing, Inc.

United States District Court, S.D. California

April 14, 2017

HANS D'OLEIRE, as individual, Plaintiff,
v.
SELECT PORTFOLIO SERVICING, INC; BANK OF AMERICA, N.A. aka BOFA Home Loans Servicing, LP formerly known as Countrywide Home Loans Servicing LP; AMERICA'S WHOLESALE LENDER, a New York Corporation; THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC. ALTERNATIVE LOAN TRUST 2005-56 MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2005-56; NATIONAL DEFAULT SERVICING CORPORATION; and DOES 1 through 20, inclusive, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 41(b) [ECF No. 10.]

          HON. GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.

         On February 16, 2017, Defendants Select Portfolio Servicing, Inc. (“SPS”) and The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee, on Behalf of the Holders of the Alternative Loan Trust 2005-56, Mortgage Pass-Through Certificates, Series 2005-56 (“BNYM as Trustee”) (collectively “Defendants”) filed a motion to dismiss Plaintiff Hans D'Oleire's (“Plaintiffs”) Complaint pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and failure to comply with an order of this Court. (Dkt. No. 10.) Plaintiff did not file a response, and Defendants did not file a reply. The Court deems Plaintiffs motion suitable for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1).

         Having reviewed Defendants' motion and the applicable law, and for the reasons set forth below, the Court GRANTS Defendants' motion to dismiss Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 41(b).

         BACKGROUND

         On August 18, 2005, Plaintiff obtained a loan from AWL for $826, 550.00 to purchase real property (“Property”) located at 1045 White Alder Avenue, Chula Vista, California 91914. (Dkt. No. 1-4, Compl. ¶¶ 2, 12; Def.'s RJN Ex. A.) Plaintiff executed a deed of trust (“DOT”) and a promissory note (“Note”), securing the Note with the Property. The DOT, recorded on August 25, 2005, lists Plaintiff as the borrower, AWL as the lender, Mortgage Electronic Registration Systems, Inc. (“MERS”) as beneficiary in nominee capacity for AWL and AWL's successors and assigns, and ReconTrust Company, N.A. (“ReconTrust”) as the trustee. (Compl. ¶12; Def.'s RJN Ex. A at 3.) Plaintiff defaulted on his loan at some point in time before April 3, 2008. (Compl. ¶ 26.)

         Plaintiff alleges a number of problems with the 2005 loan transaction. Plaintiff alleges on information and belief that AWL was a nonexistent entity, and that the actual lender, Countrywide Bank, maintained a practice of misrepresentation to borrowers that they were borrowing from AWL. (Id. ¶¶ 13-14, 20.) In addition to Defendants' failure to identify the true identity of the lender in loan documents and disclosures, Plaintiff further alleges on information and belief that Defendants falsified Plaintiffs income and employment on loan documents, made a loan to Plaintiff with knowledge that Plaintiff could not afford to repay the loan, concealed Plaintiffs obligations pursuant to the loan, and ignored Plaintiffs debt-to-income ratio. (Id. ¶ 19.) Plaintiff maintains that he discovered the misrepresentation about AWL's identity and the falsification of his income, profession, employment history, and ability to repay the loan on August 28, 2012. (Id. ¶ 20.) Plaintiff alleges that prior to August 28, 2012, Countrywide Bank and its successors and assignees “concealed” the misrepresentations. (Id.)

         On August 28, 2012, MERS executed and recorded an Assignment of Deed of Trust (“ADOT) to BNYM as Trustee. (Compl. ¶ 24; Def.'s RJN Ex. C at 2.) Plaintiff alleges that BNYM as Trustee is not and was not the holder of the Note or the beneficiary of the DOT. (Compl. ¶ 23.)

         On August 11, 2014, SPS recorded a Substitution of Trustee (“SOT”) and substituted NDSC as the trustee in place of ReconTrust. (Def. 's RJN Ex. D at 2.) On the same day, NDSC recorded a Notice of Default and Election to Sell Under Deed of Trust (“NOD”) against the Property, notifying Plaintiff that he was $585, 228.38 in arrears on his loan as of August 7, 2014. (Def.'s RJN Ex. E at 2.) On December 10, 2014, NDSC recorded a Notice of Trustee's Sale (“NOTS”). (Defs RJN Ex. F at 2.) On September 12, 2016, Plaintiffs Property was sold at public auction to a Sierra Equity Acquisitions, LLC, a third party. (Def.'s RJN Ex. J at 2-3.)

         Plaintiff filed a verified complaint on August 5, 2016, in San Diego Superior Court against SPS, Bank of America, N.A. (“BANA”), America's Wholesale Lender (“AWL”), BNYM as Trustee, National Default Servicing Corp. (“NDSC”), and Does 1 through 20, inclusive. (Dkt. No. 1-4, Compl. at 2.) Plaintiff asserts six causes of action:

1. Declaratory relief determining that Plaintiff is the owner of the Property, and that the August 25, 2010 and August 28, 2012 Assignments of Deed of Trust are invalid and void (Compl. ¶¶ 28-33);
2. Wrongful foreclosure in violation of Cal. Civ. Code §§ 2924 et seq. (Id. ¶¶ 34-41);
3. Violations of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq. (Id. ¶¶ 42-47);
4. Quiet title (Id. ¶¶ 48-56);
5. Cancellation of written instruments (Id. ...

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