Monreal v. GMAC Mortgage, LLC
2013 U.S. Dist. LEXIS 78586
| S.D. Cal. | 2013Background
- Aug. 17, 2006: Montreal borrowed $301,600 from Suntrust to buy 4414 Newton Ave., San Diego; loan secured by Deed of Trust naming MERS as beneficiary with Jackie Miller as trustee.
- Assignment of the Deed of Trust: MERS assigned to Deutsche Bank on Aug. 24, 2012; recorded Aug. 31, 2012.
- Deutsche Bank substituted ETS as trustee under the Deed of Trust on Oct. 4, 2012; substitution recorded Nov. 9, 2012.
- Notice of Default issued by ETS as trustee on Nov. 7, 2012, stating default amount of $29,987 and directing contact with Deutsche Bank; recorded Nov. 9, 2012.
- Notice of Trustee’s Sale recorded Feb. 12, 2013, stating the unpaid balance was $360,222.88 and indicating sale date of Mar. 12, 2013; Trustee’s sale conducted and Trustee Deed issued Mar. 14, 2013 to Aslan Residential I, LLC; deed recorded Mar. 29, 2013.
- Montreal filed suit on Mar. 28, 2013 with ten causes of action including UCL, fraud, quiet title, declaratory relief, TILA, HOEPA, RESPA, and FDCPA; Defendants GMAC Mortgage, ETS, and MERS moved to dismiss; court granted motion in full with limited leave to amend
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| UCL pleading and predicate-act specificity | Montreal alleges unlawful, unfair, and fraudulent acts by Defendants | Defendants contend lack of valid predicate acts and Rule 9(b) deficiencies | Dismissed without prejudice; UCL claims fail due to lack of identified predicate acts and Rule 9(b) deficiencies |
| Fraud-based claims and standing to challenge foreclosure | Montreal seeks damages and rescission based on alleged misrepresentations in the Notice of Trustee’s Sale | Plaintiff lacks standing to challenge nonjudicial foreclosure; pleading fails to identify roles of each Defendant | Dismissed without prejudice for intentional/negligent misrepresentation and fraudulent concealment; lack of standing and Rule 9(b) noncompliance |
| Quiet title viability and tender requirement | Plaintiff claims title remains with her; foreclosure void due to defendant lack of standing | Sale completed; Plaintiff cannot quiet title without tender | Dismissed with prejudice; tender required and sale divested Plaintiff of interest; amendment futile |
| TIMELINESS of TILA/HOEPA/RESPA/FDCPA claims | Claims arise from disclosures and servicing actions; tolling alleged | Claims time-barred or inadequately pled; reliance on bare allegations | TILA damages dismissed without prejudice due to statute and pleading; rescission claim barred with prejudice; RESPA, HOEPA, and FDCPA mostly dismissed (with prejudice for FDCPA) or without prejudice (RESPSA/HOEPA) |
Key Cases Cited
- Cel‑Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163 (Cal. 1999) (unfair competition law elements and standards)
- Williams v. Gerber Prod. Co., 552 F.3d 934 (9th Cir. 2008) (consumer deception standard for fraud under UCL)
- Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) (fraud pleading requirements under Rule 9(b))
- Moore v. Kayport Package Express, Inc., 885 F.2d 531 (9th Cir. 1989) (fraud pleadings require time, place, content of false representations)
- Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) (role of each defendant in fraud scheme must be stated)
- Nymark v. Heart Fed. Sav. & Loan Assn., 231 Cal.App.3d 1089 (Cal. Ct. App. 1991) (no fiduciary duty between borrower and lender; disclosure duties limited)
- Ricon v. ReconTrust Co., 2009 WL 2407396 (S.D. Cal. 2009) (tender requirement to quiet title)
- Abdallah v. United Sav. Bank, 43 Cal.App.4th 1101 (Cal. Ct. App. 1996) (tender as condition precedent in foreclosure irregularities)
- Knapp v. Doherty, 123 Cal.App.4th 76 (Cal. Ct. App. 2004) (finality of properly conducted foreclosure forecloses quiet title)
- King v. Cal., 784 F.2d 910 (9th Cir. 1986) (limitations/tolling for TILA disclosures)
- Kemezis v. Matthew, No. 075086, 2008 WL 2468377 (E.D. Pa. 2008) (HOEPA limitations and remedial scheme mirroring TILA)