Judges Dismiss MERS Suits

By Evan Nemeroff

Two borrower-initiated lawsuits alleging that the Mortgage Electronic Registration Systems role in the plaintiffs’ deeds of trust caused them injury were both dismissed by federal judges in the Western District of Washington Nov. 20, 2013.

In Reid v. Countrywide Bank NA, the plaintiff claims the defendants -Countrywide as the lender, LS Title as trustee and MERS as the beneficiary -committed fraud, violated the Washington Consumer Protection Act, were negligent, breached the duty of good faith and fair dealing, placed a cloud on their title. and inflicted emotional distress.

The court immediately dismissed the cloud of title and emotional distress claims filed in the first complaint. Allegations were also rejected that the plaintiff was injured by robo-signing acts and were unaware of who was entitled to receive their mortgage payments.

A second complaint was then submitted, repeating the same allegation identified in the first amended complaint. U.S. District Court Judge John Coughenour granted MERS’ motion to dismiss this case, ruling that the plaintiff’s claims against the Reston, Va.-based company were speculative

at best. “Although plaintiffs say that they have spent time and money making calls and hiring professionals trying to determine which entity hold the note to their loan, they have not explained how the lack of that information has injured them,” the judge says in the dismissal notice. “They have not described any disputes that they have been unable to resolve or legal protections of which they have been unable to avail themselves because they do not know who holds their note.”

“Plaintiffs do not state, for example, that they have attempted to identify who holds the note in order to negotiate a loan modification,” the court document says. “‘Nor have they directed the court any authority stating that the loss of opportunity to engage in such negotiation is a cognizable injury.”

A similar ruling also was handed down from Judge Marsha Pechman, Chief U.S. District Judge of Washington, where she dismissed a wrongful foreclosure complaint against MERS System members and other defendants. In June 2006, Ryan Wear borrowed $375,200 from Sierra Pacific Mortgage Co. to buy a house in Marysville, Wash. Wear executed a written promissory note, where he agreed to “make all payments under this note in the form of cash, check or money order.”

Wear sued Sierra Pacific, Deutsche Bank, GMAC Mortgage and MERS for fraud, violations of the Washington Consumer Protection Act, accounting, breach of fiduciary duty, violations of the Fair Debt Collection Practices Act, breach of the implied duty of good faith and fair dealing, and seeking to avoid the contract, to quiet title, arid for declaratory judgment.

The plaintiff alleges that the defendants created and filed false assignments for the note and deed of trust and ultimately initiated nonjudicial foreclosure actions without having acquired any legal interest in the property. Wear also claims that the defendants collected payments to which they were not entitled, and failed to inform him of the true ownership of the loan and deed of trust.

However, the defendants argue that Wear failed to identify any unfair or deceptive act, the alleged unfair or deceptive acts had no impact on the public interest, and no injury was caused by the defendants’ alleged conduct.

Pechman agreed with the defendants, saying the plaintiff failed to show any fraudulent acts committed by MERS or injury caused by the company’s role in plaintiff’s deed of trust. “The only injury identified by plaintiff is the pending foreclosure of his home,” the judge said in her ruling. “Plaintiff does not claim that any action by the defendants caused or induced the plaintiff to default on the loan … therefore, regardless of who the actual beneficiary was … plaintiff’s property would still face foreclosure.”

Thanks to Origination News.

http://digital.originationnews.com/originationnews/january_february_2014#pg6

 

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