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Vanderhoof v. Nationstar Mortgage

United States District Court, E.D. California

March 30, 2018

CLIFFORD VANDERHOOF & VIENA LENORE VANDERHOOF, Plaintiffs,
v.
NATIONSTAR MORTGAGE, Defendant.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Presently pending before the court is defendant Nationstar Mortgage's (“Nationstar”) motion to dismiss the first amended complaint filed by plaintiffs Clifford Vanderhoof and Viena Lenore Vanderhoof. (ECF No. 15.) Plaintiffs opposed the motion, and Nationstar filed a reply brief. (ECF Nos. 17, 18.)[1] After carefully considering the court's record and the applicable law, the court recommends that Nationstar's motion be GRANTED and the case be DISMISSED without further leave to amend.

         BACKGROUND

         Around October 25, 2007, plaintiff Clifford Vanderhoof obtained a $146, 500.00 mortgage loan by virtue of a note secured by a Deed of Trust pertaining to real property located at 800 Drake Drive, Newcastle, California, 95658 (the “Property”). See Request for Judicial Notice, ECF No. 15-1 [“RJN”], Ex. A at pp. 1-2.)[2] The Deed of Trust was recorded on October 31, 2007. (Id. at p. 1.) The Deed of Trust identified Countrywide Bank, FSB as the lender; ReconTrust Company, N.A. as the trustee; and Mortgage Electronic Registration Systems, Inc. (“MERS”) as the nominee for the lender and the lender's successors and assigns, as well as the beneficiary under the Deed of Trust. (Id. at p. 2) The Deed of Trust provided that the note or a partial interest in the note, together with the Deed of Trust, could be sold one or more times without prior notice to the borrower. (Id. ¶ 20.) Additionally, the Deed of Trust contained a power of sale provision, providing that MERS, as nominee for the lender and lender's successors and assigns, had the right to exercise the lender's interests, including the right to foreclose and sell the Property upon default. (Id. at p. 3.)

         On March 8, 2016, the beneficial interest in the Deed of Trust was assigned to Nationstar, and a Corporate Assignment of Deed of Trust was recorded on March 25, 2016. (RJN, Ex. B.)

         Thereafter, on March 31, 2016, Nationwide substituted Clear Recon Corp. as the trustee under the Deed of Trust, and the Substitution of Trustee was recorded on April 12, 2016. (RJN, Ex. C.)

         On October 20, 2016, a Modification of Deed of Trust, signed by plaintiff Clifford Vanderhoof and Nationstar, was recorded, providing for a fixed interest rate and a new unpaid principal balance amount of $153, 407.68. (RJN, Ex. D.)

         On February 22, 2017, Clear Recon Corp., as trustee under the Deed of Trust and pursuant to Nationstar's request, recorded a Notice of Default indicating that plaintiff Clifford Vanderhoof had breached his payment obligations under the loan and Deed of Trust. (RJN, Ex. E.)

         Subsequently, on August 1, 2017, Clear Recon Corp. recorded a Notice of Trustee's Sale, setting a public auction sale of the Property for August 30, 2017. (RJN, Ex. F.) The Notice of Trustee's Sale cautioned that the sale date could be postponed one or more times, and provided contact information to ascertain any postponement(s) and any rescheduled date(s). (Id.) The Property was ultimately sold to a third party at a public auction on October 11, 2017, and a Trustee's Deed Upon Sale was recorded on October 24, 2017. (RJN, Ex. G.)

         Thereafter, on November 7, 2017, plaintiffs filed the instant action in the Placer County Superior Court. (ECF No. 1.) Defendants removed the action to federal court on December 7, 2017, invoking the court's diversity of citizenship jurisdiction under 28 U.S.C. § 1332. (Id.) On January 10, 2018, the court, after considering briefing related to Nationstar's motion for a more definite statement, dismissed plaintiffs' original complaint with leave to amend. (ECF No. 12.) In that order, the court, in light of plaintiffs' pro se status, outlined the applicable law, and provided some basic instructions, with respect to pleading standards under the Federal Rules of Civil Procedure. (Id.)

         Subsequently, on January 22, 2018, plaintiffs filed the operative first amended complaint. (ECF No. 14.) Liberally construed, the first amended complaint seeks $2, 000, 000.00 in damages based on the following claims: (1) foreclosure sale without notification of a sale date; (2) foreclosure sale that shocks the conscience; (3) foreclosure sale without a jury trial; (4) improper assignment of mortgage; and (5) unjust enrichment. (Id.)

         The instant motion to dismiss followed on February 5, 2018. (ECF No. 15.)

         LEGAL ...


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