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Sharon Holmes v. Countrywide Home Loans

April 25, 2013

SHARON HOLMES,
PLAINTIFF(S),
v.
COUNTRYWIDE HOME LOANS, ET AL., DEFENDANT(S).



ORDER

Presently before the court is a motion to dismiss filed by the following defendants: (1) Bank of America Home Loan Servicing, LP; (2) Bank of America, N.A.; (3) Countrywide Home Loans; (4) Mortgage Electronic Registration Systems; and, (5) ReconTrust Co., N.A. (Doc. # 5). Plaintiff did not file a response in opposition, and defendants filed a non-opposition. (Doc. # 19).

Instead of filing a response to defendants' motion to dismiss, pro se plaintiff filed her own motion to dismiss. (Doc. # 9). This motion is actually a motion to remand to state court and the court has construed it as such. Defendants filed responses in opposition (docs. ## 16 & 17). Plaintiff elected not to file a reply.

Pro se plaintiff filed a second motion to dismiss that is really a motion to remand to state court. (Doc. # 20). Defendants filed a response in opposition (doc. # 24), and plaintiff has not filed a reply. . . .

I. Background

The subject property in this mortgage related lawsuit is located at 3709 El Cederal Avenue, Las Vegas, Nevada. The prior owner of the property was Jimmie L. Garrett. Garrett purchased the property through a grant, bargain, and sale deed for $115,000. The deed was recorded on September 15, 2003.*fn1

Garrett borrowed $72,000 from Countrywide Home Loans, Inc., in order to purchase the property. This loan was secured by a first position deed of trust, which was also recorded on September 15, 2003. Garrett took out a junior mortgage from Nevada State Bank in 2005. Sometime thereafter, Garrett defaulted.

A notice of default and election to sell was recorded on January 5, 2010. The senior deed of trust was assigned to BAC Home Loans Servicing, L.P. (frequently known as Countrywide Home Loans Servicing, L.P.). The assignment was recorded on February 2, 2010. ReconTrust was substituted as trustee. The substitution was recorded on February 2, 2010. The notice of default was rescinded. The rescission was recorded on February 23, 2010.

The foreclosure process was then restarted. A second notice of default was recorded on August 4, 2010. Attorney in fact for Garrett, Steven Kooser, agreed to transfer the property to plaintiff. A quit claim deed memorializing the transfer to plaintiff was recorded on September 28, 2010.

A certificate of compliance with the foreclosure mediation program was recorded on November 16, 2010. A notice of trustee's sale was recorded on November 16, 2010. The notice of default was rescinded a second time. This rescission was recorded on January 4, 2011.

The senior deed of trust was assigned to Bank of America and was recorded on September 15, 2011.

A. Prior Action by Plaintiff

Plaintiff filed a wrongful foreclosure suit in the Eighth Judicial District Court on November 18, 2010. The complaint in that action alleged three causes of action. The first cause of action was essentially for wrongful foreclosure. The second cause of action actually requested relief only--that the senior mortgage be declared as paid in full. The third cause of action also requested relief only--$10,000 in damages.

Plaintiff obtained an ex parte preliminary injunction on November 18, 2010. Pursuant to the injunction order, the state court prohibited Bank of America and ReconTrust from foreclosing on the property. The same order also required plaintiff to make the monthly mortgage payments on the senior mortgage and deposit the payments into an attorney's trust account.

Defendants in the prior action removed the case to federal court on December 20, 2010. See Holmes et al v. BAC Home Loans Servicing, L.P., et al, case number 2:10-cv-2210-RCJ-GWF. The parties ...


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