Opinion
Case No. 2:10CV998 DS.
March 17, 2011
MEMORANDUM DECISION
I. BACKGROUND
Plaintiff Wade is in default on his note. He brought this lawsuit in an effort to stop the foreclosure of his home. Defendants BAC Home Loans Servicing, LP ("BAC"), ReconTrust Company, N.S. ("ReconTrust"), and Mortgage Electronic Registration Systems, Inc. ("MERS") filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. They argue that Wade's four alleged causes of action are all dependant on the "split the note" and "MERS lacks authority" theories, which have previously been rejected by this Court, and are therefore not viable as a matter of law and should all be dismissed with prejudice. Defendant Meridias Capital filed a separate Motion for Summary Judgment, arguing that Plaintiff's one cause of action against Meridias, a cause of action for declaratory judgment that is also based on the frequently rejected "MERS lacks authority" theory, fails as a matter of law. The Court agrees with all of the defendants, and hereby grants both the Motion to Dismiss and the Motion for Summary Judgment.
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" The plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." As the Court held in Twombly, where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (U.S. 2009).
Twombly 550 U.S. 544, at 555, 127 S.Ct. 1955, 167 L.Ed.2d 929.
According to the Court in Ashcroft, two important principles underlie this reasoning. First, although a court must accept as true all well-plead factual allegations in a complaint, this does not apply to "legal conclusion couched as a factual allegation." Mr. Wade's complaint is rife with erroneous legal conclusions couched as factual allegations. Second, a complaint survives a motion to dismiss only if it states a plausible claim for relief. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]' — 'that the pleader is entitled to relief.'"
Ashcroft, at 1950
Id., at 1950 (citing Fed. Rule Civ Proc. 8(a)(2)).
III. ANALYSIS
A. Plaintiff's Request for Judicial Notice is Improper
Mr. Wade requests that this Court take judicial notice of nine news stories from various sources that are generally about foreclosures. He seeks to establish through judicial notice of these articles that the provisions related to MERS in the Deed of Trust at issue in this case are void as against public policy, and that "securitization through MERS is the primary reason for the nation's economic crisis." Plaintiff's request for judicial notice is improper because he seeks to establish facts that are not the proper subject of judicial notice. Judicial notice is proper only if a fact is commonly known to the community and is, therefore, indisputable, or if it is readily determined by reference to incontestable sources. Mr. Wade's request for judicial notice does not meet these standards. There is no basis for concluding that the articles contain facts that are "readily determinable" or "uncontested." In fact, the content in the articles and the assertions Plaintiff seeks to prove with those articles are disputed. The court has no way to verify the accuracy of the articles, and the content of the articles is not commonly known in the community.B. Defendants Need Not Establish Standing-Wade Sued Them
Mr. Wade's argument that the Court should deny Defendant's Motion to Dismiss because Defendants lack standing to assert their motion is puzzling. Defendants are not the plaintiffs in this lawsuit, and they are not seeking affirmative relief. Defendants in a lawsuit do not have to establish standing in order to defend themselves against a judgment. Wade's arguments to the contrary are absurd and fail as a matter of law.C. The Trust Deed is Not an "Adhesion Contract."
D. MERS Has At All Relevant Times Been Entitled to Act as Beneficiary Under the Trust Deed.
57-1-35and its successors and assigns trustee57-1-20judicial
Woodhaven Apts v. Washington, 942 P.2d 918, 925 (Utah 1997).
Russ v. Woodside Homes, Inc., 905 P.2d 901, 906 n. 1 (Utah Ct. App. 1995).
See Trust Deed, p. 3.
See Rodeback v. Utah Fin., 2010 WL 2757243 (Case No. 1:09CV134 TC) (D. Utah July 13, 2010) ; Southam v. Lehman Brothers Bank FSB et al., 2010 WL 3258320 (Case No. 2:10cv45); Burnett v. Mortgage Electronic Registration Systems, inc., (Case No. 1:09cv69) (D. UT October 26, 2009). McGinnis v. GMAC Mortgage Corp., 2010 WL 3418204 (Case No. 2:10cv45 TS) (D. Utah August 27, 2010)
Wade appears to argue briefly that ReconTrust was not properly substituted as trustee. ReconTrust was properly substituted as trustee by a document notarized and recorded and attached to Plaintiff's complaint.
F. Wade's Quiet Title Claim Fails
G. Wade's Slander of Title Claim Fails
First Sec. Bank, N.A. v. Banberry Crossing, 780 P.2d 1253, 1256-57 (Utah 1989).
See id.
H. The Only Cause of Action Asserted Against Meridias, the Claim For "Declaratory Judgment," Fails as a Matter of Law
For the reasons stated above and in keeping with the clear and unequivocal case law from this court, that MERS is able to act as the beneficiary of a trust deed and as a nominee to the lender or its successors and assigns, Meridias Capital, Inc.'s Motion for Summary Judgment is granted. Because Meridias asserts no interest or claims to the property in question, having sold and assigned its interest under the Note and Deed of Trust prior to the initiation of this action, there is nothing for the court to "declare" regarding Meridias' rights to the property.
IV. CONCLUSION
For the foregoing reaons, IT IS HEREBY ORDERED that BAC, ReconTrust, and MERS's Motion to Dismiss (Doc. #11) is GRANTED. All claims against Defendants BAC Home Loans Servicing, ReconTrust Company, and Mortgage Electronic Registration Systems, Inc. are dismissed with prejudice. Meridias Capital's Motion for Summary Judgment (Doc. #19) is also GRANTED. As a result, Plaintiff's Motion for Summary Judgment (Doc. #16) is moot.
SO ORDERED.