587 F. App'x 392
9th Cir.2014Background
- Bavand appeals district court’s grant of summary judgment rejecting her DTA and FDCPA claims; FDCPA claim abandoned in opening brief.
- Defendants are OneWest Bank, MERS, and NWTS; Bavand alleges DTA violations and FDCPA violations.
- Key disputed issues: whether OneWest is the lawful beneficiary/holder to foreclose; MERS’s role as beneficiary; and NWTS’s fiduciary duty and notice of default.
- OneWest possessed the original note and deed of trust in 2009 and foreclosed in 2011; the original deed named MERS as beneficiary.
- Bain v. Metropolitan Mortgage and In re Mortgage Elec. Registration Sys. guide the analysis on holder/beneficiary and proof of ownership.
- District court dismissed all non-DTA claims; the court held Bavand’s DTA claims fail as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is OneWest the lawful beneficiary/holder to foreclose? | Bavand contends OneWest isn’t the holder/owner of the note. | OneWest is the holder and beneficiary, authorized to foreclose. | OneWest is the holder/beneficiary and proper forecloser. |
| Did MERS act as a proper beneficiary or improperly assign ownership to OneWest? | MERS acted as beneficiary in its own right or assigned improperly. | MERS’s assignment does not negate OneWest’s authority; foreclosure pursued by OneWest. | MERS’s status does not create a genuine issue; OneWest holds authority to foreclose. |
| Did NWTS breach the DTA fiduciary duty by the notice of default? | NWTS failed to obtain proper proof and misnamed owners (OneWest vs Freddie Mac). | NWTS complied with DTA and relied on OneWest’s declaration; no prejudice shown. | NWTS did not breach fiduciary duty; no prejudice to Bavand. |
Key Cases Cited
- Bain v. Metropolitan Mortgage Group, Inc., 285 P.3d 34 (Wash. 2012) (holder/beneficiary status governs foreclosure under DTA)
- In re Mortgage Electronic Registration Sys., Inc., 754 F.3d 772 (9th Cir. 2014) (rights pass with the note; possession conveys enforceability)
- Carpenter v. Longan, 73 U.S. 271 (1872) (earlier authority on note ownership and holder rights)
- Amresco Independence Funding, Inc. v. SPS Properties, LLC, 119 P.3d 884 (Wash. Ct. App. 2005) (prejudice required to nullify trustee’s sale for technical errors)
- Frias v. Asset Foreclosure Servs., Inc., No. 89343-8 (Wash. Sept. 18, 2014) (DTA claims limited by foreclosed remedy)