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Cave v. National Default Servicing Corporation

United States District Court, D. Nevada

June 22, 2015

CHRIS H. CAVE, Plaintiff(s),
v.
NATIONAL DEFAULT SERVICING CORPORATION, et al., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court are defendant JPMorgan Chase Bank, N.A.'s ("Chase")[1] motion to dismiss for failure to state a claim (doc. # 5) and motion to expunge lis pendens (doc. # 6).[2] Defendant National Default Servicing Corporation ("National Default") joined both of Chase's motions. (Doc. # 9). Pro se plaintiff Chris H. Cave filed a response (doc. # 10), and Chase filed a reply (doc. # 13).

Also before the court are plaintiff's petition for leave to amend complaint (doc. # 26) and motion to expand page limit (doc. # 27). None of the defendants filed responses and the deadline to do so has passed.

I. Background

This is a mortgage-foreclosure related action relating to the real property at 919 Linn Lane, Las Vegas, Nevada XXXXX-XXXX.[3] (Doc. # 5-1 at 69). In May 2007, plaintiff and his non-party spouse obtained a $272, 000.00 loan from Washington Mutual Bank. (Doc. # 5-6 at 2-10). California Reconveyance Company was the original trustee under the deed of trust. (Doc. # 5-7 at 2). The loan was secured by a deed of trust lien on the Clark County, Nevada, residential property of plaintiff.

In September 2008, the Office of Thrift Supervision closed Washington Mutual Bank and appointed the Federal Deposit Insurance Company ("FDIC") as receiver. (Doc. # 5-2 at 2). FDIC seized Washington Mutual Bank's assets and sold the seized assets to Chase. ( See docs. ## 5-2 at 2; 5-3).

As a part of the acquisition, Chase acquired the rights of Washington Mutual Bank as lender and beneficiary arising under all of the loan assets of Washington Mutual Bank, including the note and deed of trust. (Doc. # 5-3 at 9).

On April 30, 2012, plaintiff signed notarized statements, acknowledging that he entered into the agreements concerning the loan and that he made one or more payments to Chase in connection with the loan.[4] (Docs. # 5-8; 5-9). Plaintiff also asserted that he had somehow "discharged any and all alleged debt" arising from the loan. ( Id. ). Plaintiff recorded the statements on May 1, 2012.[5] (Docs. ## 5-8 at 2; 5-9 at 3). On July 17, 2012, plaintiff's wife signed a notarized statement acknowledging that she entered into the agreements concerning the loan. (Doc. # 5-10 at 2-3). Plaintiff recorded the statement on July 18, 2012. ( Id. ).

On August 21, 2012, plaintiff filed a notarized notice of dispute with National Default. (Doc. # 5-1 at 31-33). Plaintiff asserted that he was "exercising all [his] rights under the Fair Debt Collections Practices Act'... which stipulates that a debt collector must, if requested, provide verification of the alleged debt...." (Doc. # 5-1 at 31). National Default sent a response acknowledging receipt of plaintiff's request to verify the debt in connection with the pending trustee sale. (Doc. # 5-1 at 37). National Default sent plaintiff a copy of the note, deed of trust, assignment, payment history, and payoff figures and reinstatement figures (for verification of debt purposes). ( Id. ).

National Default informed plaintiff that the servicer had directed them to proceed with the foreclosure action and to record a notice of default. ( Id. ). National Default informed plaintiff that they would provide him a copy of the notice of default and that he could also follow the status of the file on their website. ( Id. ).

On September 10, 2012, a corporate assignment of deed of trust was recorded to "further memorialize the transfer that occurred [between FDIC and Chase] by operation of law on September 25, 2008...." (Doc. # 5-11 at 2).

On March 25, 2013, Chase substituted National Default as trustee under the deed of trust. (Doc. # 5-12 at 2). On October 7, 2014, as a result of plaintiff's failure to make payments under the note, National Default as trustee recorded a notice of default and election to sell under the deed of trust. (Doc. # 5-13).

On January 6, 2015, Nevada's foreclosure mediation program recorded a certificate against the property. (Doc. # 5-1 at 69). Plaintiff still did not cure his payment default. Accordingly, on January 20, 2015, National Default recorded a notice of trustee's sale. (Doc. # 5-15 at 2). National Default scheduled the sale for February 6, 2015, at 10:00 AM.

Plaintiff initiated the instant case on January 21, 2015. (Doc. # 1). Plaintiff's complaint alleges "violations of the Fair Credit Reporting Act, Title 15 U.S.C. §1681, Fair Debt Collection Practices Act, Title 15 U.S.C. § 1692... and other breaches of law...." (Doc. # 1 at 2). On January 26, 2015, ...


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