(PS) Macayan et al v. Rushmore Loan Management Services et al, No. 2:2015cv01119 - Document 17 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/18/15 RECOMMENDING that re 5 Motion to Dismiss be granted without leave to amend; and that this action be closed. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUILLERMO MACAYAN, et al., 12 Plaintiffs, 13 14 15 No. 2:15-cv-1119 TLN CKD PS v. FINDINGS AND RECOMMENDATIONS RUSHMORE LOAN MANAGEMENT SERVICES, et al., Defendants. 16 17 Defendants’ motion to dismiss came on regularly for hearing August 12, 2015. Plaintiff 18 19 Priscilla Macayan appeared in propria persona. Plaintiff Guillermo Macayan, proceeding pro se, 20 failed to appear. Jana Logan appeared telephonically for defendants. Upon review of the 21 documents in support, opposition and supplemental memorandum of law, upon hearing the 22 arguments of plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS 23 FOLLOWS: In this action, plaintiffs allege a claim for wrongful foreclosure of a property located at 24 25 2343 Lansdowne Place, Vallejo, California. In December 2007, plaintiffs obtained a loan secured 26 by the property through Countrywide Bank, FSB. Defendants move to dismiss the complaint 27 under Federal Rule of Civil Procedure 12(b)(6). 28 ///// 1 1 In considering a motion to dismiss for failure to state a claim upon which relief can be 2 granted, the court must accept as true the allegations of the complaint in question, Erickson v. 3 Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the 4 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 5 In order to avoid dismissal for failure to state a claim a complaint must contain more than 6 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 7 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 8 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 10 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 11 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 12 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 13 at 678. 14 The complaint, while prolix, does not set forth any cognizable claim. Plaintiffs do not 15 seek rescission and do not allege any impropriety with respect to the foreclosure of the property. 16 The gravamen of the complaint appears to challenge the securitization of the loan and on that 17 basis, plaintiffs challenge the foreclosure as unlawful. 18 Plaintiffs lack standing to challenge any defects in the securitization process because they 19 were not parties to the securitization agreement. Assignment of the loan to a Real Estate 20 Mortgage Investment Conduit (“REMIC”) does not invalidate the ability of the bank to enforce 21 the terms of a deed of trust and no cause of action arises from such assignment. See Nguyen v. 22 Bank of Am. Nat’l Ass’n, 2011 WL 5574917, at *9 (N.D. Cal. Nov. 15, 2011); see also Jenkins v. 23 JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 514-15 (2013) (plaintiff lacked standing to 24 challenge purported violations of investments trust’s pooling and servicing agreement); Wadhwa 25 v. Aurora Loan Servs., LLC, 2011 WL 2681483, at *4 (E.D. Cal. July 8, 2011) (assignment of 26 note to REMIC does not render interest in the property other than plaintiff’s invalid); Benham v. 27 Aurora Loan Servs., 2009 WL 2880232, at *3 (N.D. Cal. Sept. 1, 2009) (lenders do not lose their 28 ///// 2 1 power of sale pursuant to a deed of trust when the original promissory note is assigned to a trust 2 pool). 3 Plaintiffs also contend that the deed of trust was separated from the note and therefore the 4 foreclosure was wrongful. Under California’s comprehensive foreclosure scheme, California 5 Civil Code § 2934, et seq., proof of note ownership is not necessary to conduct a nonjudicial 6 foreclosure sale pursuant to a power of sale provided under a deed of trust. See Moeller v Lien, 7 25 Cal. App. 4th 822, 830 (1994); see also Rogers v. Cal. State Mortg. Co., 2010 WL 144861, at 8 *6 (E. D. Cal. Jan. 11, 2010) (“produce the note” theory meritless). 9 Finally, plaintiffs fail to demonstrate a valid, unconditional tender of the sums owing 10 under the loan. The absence of a valid tender is fatal to plaintiffs’ claim of wrongful foreclosure. 11 See Karlsen v. American Sav. & Loan Assn., 15 Cal. App. 3d 112, 117 (1971) (action to set aside 12 trustee’s sale for irregularities in sale notice or procedure should be accompanied to offer to pay 13 full amount of debt for which property was security). 14 15 Plaintiffs have made no proffer that suggests amendment would be anything other than futile. The motion to dismiss should therefore be granted with prejudice. 16 Accordingly, IT IS HEREBY RECOMMENDED that: 17 1. Defendants’ motion to dismiss (ECF No. 5) be granted without leave to amend; and 18 2. This action be closed. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 24 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 25 Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 Dated: August 18, 2015 27 28 4 macayan1119.57 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 3

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