Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jill Washburn v. Bank of America

January 17, 2012

JILL WASHBURN PLAINTIFF,
v.
BANK OF AMERICA, N.A., AS SUCCESSOR TO COUNTRYWIDE HOME LOANS, INC., A DELAWARE CORPORATION; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., A DELAWARE CORPORATION, RECONTRUST COMPANY, N.A., A CORPORATION OF UNKNOWN ORIGIN AND A WHOLLY-OWNED SUBSIDIARY OF BANK OF AMERICA, N.A.; FEDERAL NATIONAL MORTGAGE ASSOCIATION, A FEDERALLY CHARTERED CORPORATION; AND DOES 1-10 AS INDIVIDUALS OR ENTITIES WITH INTEREST IN THE PROPERTY COMMONLY KNOWN AS: 280 HORIZON DRIVE, BOISE, IDAHO 83702 DEFENDANTS.



The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge

ORDER ADOPTING REPORT AND RECOMMENDATION

On October 21, 2011, United States Magistrate Judge Candy W. Dale issued a Report and Recommendation in this matter. Dkt. 28. Plaintiff timely objected to the Report and defendants Bank of America, N.A., Mortgage Electronic Registration System, Inc. (MERS), Federal National Mortgage Association (Fannie Mae), and ReconTrust Company, N.A. responded to the objections. See Objections, Dkt. 29; Response, Dkt. 30. The matter is now ripe for the Court's review.

Under 28 U.S.C. § 636(b)(1)(C), this Court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." If a party objects to a portion of the report, this Court must make a de novo determination as to that portion. Id. As the Ninth Circuit has explained,

The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. . . . Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.

United States v. Reyna--Tapia, 328 F.3d 1114, 1121(9th Cir. 2003) (citations omitted).

In this case, plaintiff objects to Judge Dale's recommendation to dismiss the case. Judge Dale determined that plaintiff failed to adequately plead a quiet title action. This Court agrees and will dismiss the complaint without leave to amend. The Court will also deny Defendants' Motion for a Reverse Preliminary Injunction as premature.

BACKGROUND*fn1

Plaintiff Jill Washburn seeks to quiet title to property located in Boise, Idaho. Washburn alleges she is the "owner of record" of this property. Compl. ¶ 4, Dkt. 1.

In December 2005, Washburn borrowed $399,000 to purchase the property. See id. ¶ 9; Note, Dkt. 22-1. She executed a secured promissory note in favor of America's Wholesale Lender*fn2 at that time, as well as a deed of trust, which lists America's Wholesale Lender as the lender, and Mortgage Electronic Registration (MERS) as the beneficiary "acting solely as a nominee for Lender and Lender's successors and assigns." Deed of Trust, Dkt. 4-2, at 1; see also Note, Dkt. 22-1.

Washburn apparently stopped making payments on the loan in September 2008. See Ex. A to Compl., Dkt. 1-2 (notice of default). Shortly thereafter, MERS appointed a successor trustee, defendant ReconTrust. Ex. B to Compl., Dkt. 1-3. ReconTrust, in turn, filed a notice of default on the property with the Ada County Recorder. Ex. A to Compl., Dkt. 1-2.

Washburn does not dispute receiving the $399,000 in loan proceeds, which allowed her to purchase the property. Nor does she dispute defaulting on the loan. Washburn does not allege that she has paid (or is willing to pay) the amounts still owing on the note. Instead, she seeks to quiet title based on various alleged irregularities in the loan and in the foreclosure-related documents. The contours of these alleged irregularities are not particularly well defined, but what ultimately emerges is this: Washburn contends that Bank of America is improperly foreclosing "in its own name," because it may have sold the loan to Fannie Mae before the foreclosure documents were recorded.

ANALYSIS

The Court has reviewed the Report and Recommendation and finds the law has been properly applied to the facts of this case. Most fundamentally, the Court agrees that Washburn's quiet title action fails as a matter of law because she has not alleged that she tendered payment on the note. The Report correctly observes that "'[a] mortgagor cannot without paying his debt quiet title as against the mortgagee.'" Report, Dkt. 28, at 7 (quoting Trusty v. Ray, 249 P.2d 814, 817 (Idaho 1952)); see also In re Mullen, 402 B.R. 353, 358 (Bankr. D. Idaho 2008). This pleading failure dispenses with the quiet title action, yet Washburn does not squarely address this issue in objecting to the Report. Instead, she raises a litany of other objections.

Broadly speaking, Washburn's objections fall into two general categories. First, she contends she is entitled to know who currently owns the note and trust deed. See Objection, Dkt. 29, at 4 ("This quiet title action is brought to determine who has a valid, current ownership interest in the debt and its security."). Second, Washburn ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.