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Deutsche Bank Trust Co., As Trustee For Gsaa Home Equity Trust 2006-2 v. Lisa Sjodin Beesley; Brooks Alan Beesley; Federal Deposit

October 30, 2012

DEUTSCHE BANK TRUST CO., AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2006-2, PLAINTIFF,
v.
LISA SJODIN BEESLEY; BROOKS ALAN BEESLEY; FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER FOR WASHINGTON MUTUAL BANK; JOHN AND MARY DOES 1-20; DOE PARTNERSHIPS, CORPORATIONS OR OTHER ENTITIES 1-20, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER DENYING MOTION TO DISMISS

I. INTRODUCTION.

On August 17, 2011, Plaintiff Deutsche Bank Trust Co., as trustee for GSAA Home Equity Trust 2006-2 ("DB-GSAA"), filed a Complaint in state court to foreclose on a mortgage securing a loan. On February 1, 2012, Defendants Lisa and Brooks Beesley removed the action to this court. See ECF No. 1.

On February 6, 2012, the Beesleys filed a motion to dismiss the Complaint, arguing that DB-GSAA lacked standing to bring this action because the note and mortgage were allegedly improperly assigned to it. See ECF No. 5-1. On April 3, 2012, the court denied that motion, ruling that the Complaint had alleged that DB-GSAA had been assigned the note and mortgage and that the Beesleys had provided no evidence in support of their motion. See ECF No. 26.

On April 17, 2012, the Beesleys filed a new motion to dismiss the Complaint for lack of standing. See ECF No. 32. The court, having held a continued hearing and having received supplemental briefing, denies that motion.

II. BACKGROUND.

On or about August 12, 2005, Lisa Sjodin Beesley obtained a loan from Argent Mortgage Company, LLC. In connection with that loan, Lisa Beesley gave Argent a $650,000 note, and Lisa and Brooks Beesley gave Argent a mortgage securing the note. This mortgage was filed in the Land Court of the State of Hawaii as Document No. 3314821 and was noted on Certificate 765,875. See ECF 1-1, PageID #20 and #23.

On or about August 20, 2007, Argent assigned the Beesleys' mortgage to Deutsche Bank Trust Company Americas formerly known as Banker's Trust Company, as Trustee and Custodian for GSAA 2006-2 ("DB-Americas"). This Assignment of Mortgage was filed in the Land Court on September 18, 2007, as Document No. 3657274 and was noted on Certificate 765,875. See ECF 1-1, PageID #40.

The assignment of August 20, 2007, to DB-Americas was purportedly signed on behalf of DB-Americas by Saxon Mortgage Services, Inc. Id. However, DB-Americas does not appear to have appointed Saxon Mortgage Services, Inc., to be its attorney-in-fact until on or about August 21, 2007, a day after the assignment. See Limited Power of Attorney, ECF No. 61-1. This Limited Power of Attorney was recorded on January 23, 2009, in the State of Hawaii Bureau of Conveyances as Document No. 2009-009105 and in the Land Court as Document No. 3821809. Id.

On or about May 28, 2009, DB-Americas assigned the note and mortgage to DB-GSAA, the Plaintiff in this action. Bethany Hood, of Saxon Mortgage Services, Inc., formally known as Meritech Mortgage Services, Inc., executed the document as the attorney-in-fact for DB-Americas. The Assignment of Mortgage and Note was filed in the Land Court on June 2, 2009, as Document No. 3864363 and was noted on Certificate 765,875. See ECF 1-1, PageID #43.

The Beesleys filed a Chapter 13 bankruptcy proceeding, Case No. 08-01881 RJF in the United States Bankruptcy Court for the District of Hawaii. See ECF No. 32-2. On May 1, 2009, Saxon Mortgage Services, Inc., Servicing Agent for Deutsche Bank National Trust Company as Trustee for Novastar Mortgage Funding Trust Series 2007-1 ("DB-Novastar"), filed a document in the bankruptcy proceeding indicating that the Beesleys owed $30,325.78 to Saxon Mortgage, the servicing agent for DBNovastar, for prebankruptcy debts consisting of seven missed mortgage payments, late charges, an escrow shortage, a property inspection, and other fees and costs. In re: Brooks Alan Beesley, Lisa Sjodin Beesley, Case No. 08-01881 RJF, ECF No. 29, May 1, 2009. Saxon had earlier filed a document in the bankruptcy proceeding indicating that money was owed to it because of the August 12, 2005, $650,000 note that was secured by the mortgage given to Argent. See In re: Brooks Alan Beesley, Lisa Sjodin Beesley, Case No. 08-01881 RJF, ECF No. 21, Mar. 26, 2009. Some confusion flows from Saxon's reference to its status as the servicing agent for DB-Novastar, because DB-Novastar does not show up in the documents available to this court as having ever had an interest in the Beesleys' loan.

The entity now servicing the Beesleys' loan indicates that it is "uncertain" whether DB-Novastar ever had an interest. See Declaration of Shallni Maharaj ¶ 9, ECF No. 53. However, the bankruptcy trustee's final report and account appears to reflect the Bankruptcy Court's approval of Saxon's claim of $30,325.78. See In re: Brooks Alan Beesley, Lisa Sjodin Beesley, Case No. 08-01881 RJF, ECF No. 58, Nov. 5, 2009. According to the docket in the bankruptcy proceeding, the Beesleys' bankruptcy case has been closed since December 2009. See In re: Brooks Alan Beesley, Lisa Sjodin Beesley, Case No. 08-01881 RJF, ECF No. 61, Dec. 8, 2009.

DB-GSAA had sent a letter dated January 10, 2006, to Lisa Beesley indicating that Saxon Mortgage Services, Inc., was taking over as the new servicing agent for her loan. See ECF No. 47-1. A subsequent letter of March 12, 2012, notified the Beesleys that the servicing agent for the loan had become Ocwen Loan Servicing, LLC. See ECF No. 47-2. Shallni Maharaj, the Contract Management Coordinator for Ocwen, provides timing details, explaining that Saxon serviced the Beesley's loan from January 17, 2006, through April 1, 2012, after which Ocwen took over. Declaration of Shallni Maharaj ¶¶ 7-8, ECF No. 53.

DB-GSAA previously indicated that the "note with original signatures is currently in a vault located at the offices of Plaintiff's current servicing agent, Ocwen Loan Servicing, LLC." See Supplemental Memorandum in Opposition to Motion to Dismiss at 6, June 28, 2012, ECF No. 47; Declaration of Shallni Maharaj ΒΆ 12, ECF No. 53. Counsel for DB-GSAA subsequently indicated that ...


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