Opinion
3:11-cv-00384-RCJ-WGC
10-03-2011
SCOTT FRIEDUS, Plaintiff, v. COUNTRYWIDE BANK, FSB et al., Defendants.
ORDER
This is a standard foreclosure case involving one property. The Complaint is a MERS-conspiracy-type complaint listing nine causes of action: (1) Debt Collection Violations under Chapter 649; (2) Deceptive Trade Practices under Chapter 598; (3) Unfair Lending Practices under Chapter 598D; (4) Violation of the Covenant of Good Faith and Fair Dealing; (5) Violations of section 107.080; (6) Quiet Title; (7) Fraud; (8) Slander of Title; and (9) Abuse of Process. The case is not part of Case No. 2:09-md-02119-JAT in the District of Arizona but appears eligible for transfer. Defendants have moved to dismiss and expunge the lis pendens. Plaintiff untimely responded. For the reasons given herein, the Court grants the motion.
I. THE PROPERTY
Plaintiff Scott Freidus gave lender Countrywide Bank, FSB a $417,000 promissory note to refinance property at 520 Lucille Dr., Incline Village, NV 89451 (the "Property"). (See Deed of Trust ("DOT") 1-4, Jan. 14, 2008, ECF No. 8-8). The trustee was Recontrust Co. (See id. 2). Mortgage Electronic Registration Systems, Inc. ("MERS") was the lender's "nominee." (See id.). MERS transferred the note and DOT to BAC Home Loans Servicing, LP, f.k.a. Countrywide Home Loans Servicing LP ("BAC"). (See Assignment, Sept. 23, 2010, ECF No. 8-9). BAC substituted Recontrust as trustee. (See Substitution, Sept. 23, 2010, ECF No. 8-10). This substitution was superfluous, as Recontrust was the original trustee. Recontrust filed the notice of default ("NOD") based on a default of $30,148.58 as of December 1, 2009. (See NOD, Sept. 23, 2010, ECF No. 8-11; Notice of Intent to Accelerate (sixth notice), Aug. 13, 2010, ECF No. 8-15, at 17). Recontrust noticed a trustee's sale for Jan. 14, 2011. (See Notice of Trustee's Sale ("NOS"), Dec. 24, 2010, ECF No. 8-13).
II. ANALYSIS
The foreclosure was statutorily proper, so the section 108.070, quiet title, slander of title, bad faith, and abuse of process claims fail. Next, foreclosure does not constitute "debt collection" under the state or federal fair debt collection statutes. Finally, the claims for deceptive trade practices, unfair lending practices, and fraud fail under the respective statutes of limitations.
CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss and Expunge Lis Pendens (ECF No. 8) is GRANTED.
IT IS FURTHER ORDERED that the lis pendens is EXPUNGED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.
IT IS SO ORDERED.
ROBERT C. JONES
United States District Judge