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Chance K. S. Bateman v. Countrywide Home Loans

November 14, 2012

CHANCE K. S. BATEMAN,
PLAINTIFF,
v.
COUNTRYWIDE HOME LOANS, AKA BAC HOME LOAN SERVICING, LP;
THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE CERTIFICATEHOLDERS,
CWABS, INC., ASSET-BACKED CERTIFICATE SERIES 2005-3, AKA CWL 2005-3; CWABS, INC.; MERSCORP, INC.;
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., A WHOLLY-OWNED SUBSIDIARY OF MERSCORP, INC.;
CHARTER FUNDING;
KEVIN A. DURHAM, INDIVIDUALLY AND AS ASSISTANT SECRETARY FOR MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AND MAX DEFAULT SERVICES CORP.;
CALEB G HARGIS, INDIVIDUAL AND AS NOTARY;
CORPORATE DOES 1-50;
JOHN DOES 1-50; AND JANE DOES 1-50 DEFENDANTS.



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

ORDER DISMISSING FIRST AMENDED COMPLAINT ORDER DISMISSING FIRST AMENDED COMPLAINT

I. INTRODUCTION.

This removed action arises out of mortgage loan transactions. After his property was sold at public auction through a non-judicial foreclosure proceeding, Plaintiff Chance K. S. Bateman filed this action in state court on November 4, 2011, asserting various causes of action relating to his mortgage loans and the non-judicial foreclosure. The Complaint was subsequently removed.

On January 24, 2012, Defendants filed a motion to dismiss. See ECF No. 6. On May 11, 2012, a telephone conference was held in which Bateman's Complaint was dismissed with leave to amend. See ECF No. 27.

On June 1, 2012, Bateman filed an Amended Complaint. See ECF No. 28. This document is unfocused and, in many respects, like a puzzle. Bateman asserts state-law claims for wrongful foreclosure (Count I), slander of title (Count II), unfair or deceptive acts or practices (Count III), and intentional or negligent infliction of emotional distress (Count IV). But the bases for these claims are not entirely clear. Rather than allege that any particular defendant did something, the counts refer to "Defendants" generally, and ask the court and opposing parties to figure out which Defendant may have done what based on factual allegations that have been incorporated by reference. In short, the court is asked to match allegations to claims and parties as if attempting to fit jigsaw puzzle pieces together to create a picture.

Defendants again seek dismissal of the First Amended Complaint. See ECF No. 30. The court grants that motion.

Because the wrongful foreclosure and slander of title claims are based on allegedly improper assignments of Bateman's loan, and because Bateman lacks standing to challenge those assignments, Counts I and II are dismissed. Because Bateman's emotional distress claims are also based on allegedly improper loan transfers by Defendants, the emotional distress claims asserted in Count IV are also dismissed. The unfair and deceptive trade practices claims asserted in Count III are dismissed as not properly pled.

II. BACKGROUND.

The following factual summary is based on the allegations in the First Amended Complaint, ECF No. 28. Bateman lived in a home in Kamuela on the Big Island of Hawaii. Id. ¶ 1.

Countrywide Home Loans, Inc., approved a $251,000 loan to Bateman, secured by a mortgage on his home. Id. ¶ 12. On or about February 23, 2005, Bateman executed the loan documents for that loan, including a note and a mortgage. The loan was a refinancing. Id. A copy of the mortgage was filed in the State of Hawaii Bureau of Conveyances on March 1, 2005, as Document No. 2005-040187, and is attached as Exhibit A to the First Amended Complaint, ECF No. 28-1, PageID #612. The mortgage identifies Countrywide as the "Lender," and Mortgage Electronic Registration Systems, Inc. ("MERS") as its "nominee."

In 2010, the mortgage was purportedly assigned by MERS in its capacity as Countrywide's nominee to The Bank of New York Mellon FKA The Bank of New York as Trustee for the CertificateHolders CWABS, Inc., Asset-Backed Certificates, Series 2005-3. A copy of the Assignment of Mortgage was recorded in the State of Hawaii Bureau of Conveyances as Document No. 2010-077660 and is attached to the First Amended Complaint as Exhibit B, ECF No. 28-1, PageID #630. The Assignment of Mortgage was signed by Kevin A. Durham on May 29, 2010, in his capacity as the assistant secretary of MERS, and was notarized by Caleb G. Hargis on June 1, 2010. Id.

It appears that the transfer of Bateman's loan to Bank of New York was done in anticipation of foreclosing on the property, because Bank of New York, also on May 29, 2010, through Durham, its "Authorized Signatory," executed a Notice of Mortgagee's Intention to Foreclose Under Power of Sale. Durham appears to be the same person who executed the assignment of mortgage by MERS on behalf of Countrywide to Bank of New York. The notice of intent to foreclose was also notarized by Hargis on June 1, 2010. Hargis appears to be the same notary who notarized the Assignment of Mortgage from MERS on behalf of Countrywide to Bank of New York. A copy of the notice of intent to foreclose was filed in the State of Hawaii Bureau of Conveyances as Document No. 2010-077661 and is attached as Exhibit C to the First Amended Complaint, ECF No. 28-1, PageID #634.

On March 31, 2011, Durham executed a Mortgagee's Affidavit of Foreclosure Sale Under Power of Sale as "Authorized Signatory" for Bank of New York. See First Amended Complaint, Exhibit D, ECF No. 28-1, PageID #639. This affidavit was filed in the State of Hawaii Bureau of Conveyances as Document No. 2011-056676. Id. It indicates that Bateman's property was sold to Bank of New York at public auction on March 11, 2011, for $175,500. Id.

On July 7, 2011, Bank of New York "quitclaimed" the foreclosed property to itself. The Quitclaim Deed was filed in the State of Hawaii Bureau of Conveyances as Document No. 2011-105744. A copy of the Quitclaim Deed is attached to the ...


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