If her allegations are taken as true, she has satisfied the tender requirement

25 Jan

From: Charles Cox [mailto:charles@bayliving.com]
Sent: Thursday, January 24, 2013 5:22 AM
To: Charles Cox
Subject: If her allegations are taken as true, she has satisfied the tender requirement

From Deontos (I’ve attached the Order):

Martin v. LITTON LOAN SERVICING LP, Dist. Court, ED California 2013

RENEE’L. MARTIN, Plaintiff,
v.
LITTON LOAN SERVICING LP, et al., Defendants.

No. 2:12-cv-00970-MCE-EFB PS.

United States District Court, E.D. California.

January 16, 2013.

ORDER AND FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, Magistrate Judge.

I. BACKGROUND

Defendants have submitted a request for judicial notice which indicates that the deed of trust was assigned to defendant Deutsche Bank on March 19, 2004 and that Western Progressive is an agent for Deutsche Bank; the assignment was recorded on August 16, 2012. Defs.’ Req. for Jud. Notice, Dckt. No. 33, Exs. B, C. Although not specifically alleged in plaintiff’s first amended complaint, plaintiff contends that the assignment is fraudulent. Dckt. No. 42.

b. Failure to Respond to QWR

Here, plaintiff vaguely alleges that she sent Litton and Ocwen a QWR for an accounting and those defendants failed to respond, and defendants failed to disclose to plaintiff the true holders of the loan, after repeated attempts by plaintiff to ascertain that information. As an initial matter, those allegations lack specificity and are too speculative under Twombly andIqbal. Plaintiff does not allege, among other things, when the QWR or other requests were sent. Nonetheless, as discussed above, alleging a breach of RESPA duties alone does not state a claim under RESPA. Plaintiff must, at a minimum, also allege that the breach resulted in actual damages. See 12 U.S.C. § 2605(f)(1)(A) ("Whoever fails to comply with this section shall be liable to the borrower . . . [for] any actual damages to the borrower as a result of the failure."); Hutchinson v. Delaware Savings Bank FSB, 410 F. Supp. 2d 374, 383 (D.N.J. 2006)(citations omitted) (a claimant under 12 U.S.C. § 2605 must allege a pecuniary loss attributable to the alleged violation). Here, plaintiff does not specify any damages resulting from an alleged failure to respond to her QWR or requests regarding the true holder of the loan. Therefore, plaintiff’s RESPA claim against Litton and Ocwen based on a failure to respond to a QWR and/or requests for information about the true holders of the loan should be dismissed with leave to amend.

5. Quiet Title

Plaintiff seeks to quiet title as of March 8, 2004. Plaintiff seeks a judicial declaration that the title to the subject property is vested in plaintiff alone and that the defendants have no interest, right, or title to the property. First Am. Compl. ¶ 99. Defendants move to dismiss this claim, arguing that it fails because plaintiff has not alleged valid and/or viable tender of the indebtedness. Dckt. No. 32 at 17.

To establish a claim for quiet title, plaintiff must file a verified complaint that alleges: (a) a description of the property; (b) plaintiff’s title as to which a determination is sought; (c) the adverse claims to the title; (d) the date as to which the determination is sought; and (e) a prayer for the determination of title. Cal. Civ. Proc. Code § 761.020. Additionally, plaintiff must allege that she has tendered her indebtedness. See Kelley v. Mortg. Elec. Registration, 642 F. Supp. 2d 1048, 1057 (N.D. Cal. 2009) ("Plaintiffs have not alleged . . . that they have satisfied their obligation under the Deed of Trust. As such, they have not stated a claim to quiet title.");see also Distor v. U.S. Bank, NA, 2009 WL 3429700, at *6 (N.D. Cal. Oct. 22, 2009) ("plaintiff has no basis to quiet title without first discharging her debt, and . . . she has not alleged that she has done so and is therefore the rightful owner of the property").

Here, defendants contend that plaintiff fails to allege tender or the ability to tender. However, plaintiff’s first amended complaint specifically alleges that she does not owe anything to any of the defendants. The fundamental essence of her claim is that she sent the regular payment of her mortgage every month but defendants wrongfully refused to process those payments because of the dispute over the amount and, because defendants did not have the authority to pay taxes on her behalf, they lacked authority to alter the amount due on her payments. Therefore, according to plaintiff, she has submitted her payments as due and there is nothing further to tender.

At the hearing, plaintiff specifically stated that she did not agree to paragraphs 4 or 9 of the deed of trust, which required her to pay taxes and which authorized the lender to pay the taxes on her behalf, nor did she agree to paragraph 10 of the loan modification agreement, which also reaffirmed plaintiff’s obligation to pay her taxes. If her allegations are taken as true, she has satisfied the tender requirement.[2] In light of plaintiff’s allegations that she has timely submitted her payments, and her allegations that she did not agree to all of the terms in the deed of trust, plaintiff’s quiet title claim is sufficient to withstand defendants’ motion to dismiss.

Martin v. Litton Loan Servicing.docx

One Response to “If her allegations are taken as true, she has satisfied the tender requirement”

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  1. If her allegations are taken as true, she has satisfied the tender requirement | My Debt Release - February 4, 2013

    […] Source:  Charles Cox […]

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