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Melvin Keakaku Amina and Donna Mae v. the Bank of New York

August 9, 2012

MELVIN KEAKAKU AMINA AND DONNA MAE AMINA, HUSBAND AND WIFE, PLAINTIFFS,
v.
THE BANK OF NEW YORK
MELLON, FKA THE BANK OF NEW YORK; UNKNOWN OWNER OF THE FIRST NOTE; UNKNOWN OWNER OF THE SECOND NOTE, DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER DENYING DEFENDANT THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK'S MOTION TO DISMISS VERIFIED AMENDED COMPLAINT PURSUANT TO RULE 12(B)(6)

I. INTRODUCTION

This is Plaintiffs Melvin Keakaku Amina and Donna Mae Amina's ("Plaintiffs") second action filed in this court concerning a mortgage transaction and alleged subsequent threatened foreclosure of real property located at 2304 Metcalf Street #2, Honolulu, Hawaii 96822 (the "subject property"). Late in Plaintiffs' first action, Amina et al. v. WMC Mortgage Corp. et al., Civ. No. 10-00165 JMS-KSC ("Plaintiffs' First Action"), Plaintiffs sought to substitute The Bank of New York Mellon, FKA the Bank of New York ("Defendant") on the basis that one of the defendants' counsel asserted that Defendant owned the mortgage loans. After the court denied Plaintiffs' motion to substitute, Plaintiffs brought this action alleging a single claim to quiet title against Defendant.

On April 26, 2012, the court dismissed the Complaint for failure to state a plausible claim, explaining that the Complaint failed to explain precisely how Defendant had asserted an adverse claim on the subject property. In their First Amended Complaint ("FAC"), Plaintiffs now allege that Defendant is not the mortgagee yet has nonetheless threatened foreclosure on the subject property through its agent, Chase Home Finance LLC ("Chase").

Currently before the court is Defendant's Motion to Dismiss the FAC, arguing that Plaintiff's quiet title claim fails because Plaintiffs have failed to allege that they can tender the loan proceeds. Based on the following, the court DENIES Defendant's Motion to Dismiss.

II. BACKGROUND

A. Factual Background

As alleged in the FAC, Plaintiffs own the subject property. Doc. No. 38, FAC ¶ 17. Although the FAC does not include allegations regarding any mortgage on the subject property, in their original Complaint Plaintiffs asserted that on February 24, 2006 they obtained two mortgage loans from WMC Mortgage Corp. ("WMC") -- one for $880,000, and another for $220,000, both secured by the subject property. See Doc. No. 1, Compl. ¶¶ 24-25.

In Plaintiffs' First Action, it was undisputed that WMC no longer held the mortgage loans. According to the FAC, Defendant does not hold them either -- the FAC asserts that Defendant "is not a mortgagee, but poses as a mortgagee." Doc. No. 38, FAC ¶ 1-1. The FAC further explains that "[t]here is no recorded assignment of any Mortgage encumbering the [subject property], from its named original lender, to anyone." Id. ¶ 34.

Despite that Defendant is allegedly not the mortgagee, the FAC asserts that Defendant, through its agent Chase, has threatened foreclosure on the subject property. Specifically, Plaintiffs received a February 3, 2010 letter from Chase stating that Plaintiffs are in default on their mortgage and that failure to cure default will result in Chase commencing foreclosure proceedings. Doc. No. 38, FAC Ex. A. Plaintiffs also received a March 2, 2011 letter from Chase stating that the mortgage loan "was sold to a public security managed by [Defendant] and may include a number of investors. As the servicer of your loan, Chase is authorized by the security to handle any related concerns on their behalf." Id. Ex. B. The FAC asserts that "[b]y mailing those two letters through its agents, Defendant improperly seeks to foreclose on the subject property." Id. ¶ 5.

B. Procedural Background

Plaintiffs filed this action against Defendant on November 28, 2011, and their FAC asserts a single claim for quiet title.

On June 13, 2012, Defendant filed its Motion to Dismiss the FAC. Plaintiffs filed an Opposition on July 18, 2012, and Defendant filed a Reply on July 26, 2012. Pursuant to Local Rule 7.2(d), ...


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