Pedersen v. Greenpoint Mortgage Funding, Inc.
900 F. Supp. 2d 1071
E.D. Cal.2012Background
- Mortgage Funding, Inc. (Greenpoint), Marin Conveyancing Corp. (Marin), Quality Loan Service Corp., LSI Title Company and Greenpoint Mortgage Funding Trust allege HOEPA, RESPA, TILA violations, fraud, unjust enrichment, civil RICO, wrongful foreclosure and quiet title.
- Plaintiffs sought TRO April 7, 2011; TRO denied April 8, 2011; preliminary injunction sought August 2011; lis pendens noticed.
- FAC filed September 16, 2011 raising seven claims; defendants Aurora, MERS, Greenpoint and Marin moved to dismiss and to expunge lis pendens.
- Court granted motions to dismiss, finding several claims time-barred or inadequately pleaded; approved expungement of lis pendens.
- Amended complaint limited to fraud against Aurora was permitted; other claims dismissed with prejudice; second amended complaint due within 21 days.
- Judge’s order thus resolves most claims and directs further amendment solely on the fraud claim against Aurora
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TILA damages claim limitations tolling | TILA damages tolling alleged | No equitable tolling shown | TILA damages claim dismissed |
| RESPA limitations and tolling | Equitable tolling of RESPA one-year period | No tolling established | RESPA claim dismissed |
| Fraud claims timeliness and specificity | Discovery rule extends accrual; various misrepresentations alleged | Claims untimely or inadequately pled under Rule 9(b) | Fraud claims related to loan origination time-barred; forbearance/chain claims require amendment |
| Wrongful foreclosure and tender requirement | Foreclosure void or voidable; tender not required due to egregious facts | Tender required; facts insufficient | Wrongful foreclosure dismissed; tender issue unresolved; no amendment |
| Quiet title and tender | Cloud on title from alleged fraud | Tender remains prerequisite | Quiet title claim dismissed for lack of tender |
Key Cases Cited
- Balistreri v. Pacifica Police Department, 901 F.2d 696 (9th Cir.1990) (standards for dismissal under Rule 12(b)(6) and plausibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (Supreme Court 2009) (plausibility standard for surviving motion to dismiss)
- Twombly, 550 U.S. 544 (Supreme Court 2007) (requirement of plausible claims beyond mere labels and conclusions)
- Erickson v. Pardus, 551 U.S. 89 (Supreme Court 2007) (factual allegations presumed true in Rule 12(b)(6) context)
- Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1044 (9th Cir.2011) (MERS authority as nominee/beneficiary; pleading against MERS)