Summary
finding no general jurisdiction "[w]hen a defendant's forum activities consist solely of holding mortgages secured by property in the forum state," although the defendant was receiving income from those mortgages
Summary of this case from Mabrey v. Security Service Federal Credit UnionOpinion
No. 01-2751 GV
July 31, 2002
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
On August 8, 2001 plaintiff Mattie L. Street, on behalf of herself and all other persons similarly situated, initiated this action in the Circuit Court of Shelby County, Tennessee against defendants PSB Lending Corporation ("PSB"); Tripoint Capital Corporation; Firstplus Home Loan Trust 1996-2; FirstPlus Home Loan Owner Trust 1996-3; FirstPlus Home Loan Owner Trust 1996-4; FirstPlus Home Loan Owner Trust 1997-1; FirstPlus Loan Owner Trust 1997-2; FirstPlus Home Loan Owner Trust 1997-3; FirstPlus Home Loan Owner Trust 1997-4; FirstPlus Home Loan Owner Trust 1998-1; FirstPlus Home Loan Owner Trust 1998-2; FirstPlus Home Loan Owner Trust 1998-3; FirstPlus Home Loan Owner Trust 1998-4, FirstPlus Home Loan Owner Trust 1998-5 (collectively "FirstPlus Trusts"); German American Capital Corporation ("German American"); UBS Warburg Real Estate Securities, Inc. f/k/a/ Paine Webber Real Estate Securities, Inc. ("UBS"); Ace Securities Corporate Home Loan Trust 1999 A ("Ace Trust"); Sovereign Bank; US Bank, NA, ND; Real Time Resolutions, Inc.; TMS Mortgage, Inc. (d/b/a The Money Store) ("TMS"); Financial Asset Securities Corporation, Mego Mortgage Home Loan Owner Trust 1997-1; Financial Asset Securities Corporation, Mego Mortgage Home Loan Owner Trust 1997-2; Financial Asset Securities Corporation, Mego Mortgage Home Loan Owner Trust 1997-3; Financial Asset Securities Corporation, Mego Mortgage Home Loan Owner Trust 1997-4 (collectively "Mego Trusts"); Empire Funding Home Loan Owner Trust 1997-1; Empire Funding Home Loan Owner Trust 1997-2; Empire Funding Home Loan Owner Trust 1997-3; Empire Funding Home Loan Owner Trust 1997-4; Empire Funding Home Loan Owner Trust 1998-1; Empire Funding Home Loan Owner Trust 1998-2; Empire Funding Home Loan Owner Trust 1998-3; Empire Funding Home Loan Owner Trust 1999-1 (collectively "Empire Trusts"); OCWEN Federal Bank, FSB ("OCWEN"); Banc One Credit ("Banc One"); Preferred Credit (a/k/a Preferred Credit Corporation; a/k/a Preferred Mortgage Corporation; a/k/a T.A.R. Preferred Mortgage Corporation); IMPAC Funding Corporation; Imperial Credit Industries, Inc.; IMPAC Mortgage Holdings, Inc. ("IMPAC Mortgage"); IMPAC Secured Assets Corporation ("IMPAC Secured"); ICIFC Secured Assets Corporation Mortgage Pass-Through Certificates, Series 1997-1; ICIFC Secured Assets Corporation Mortgage Pass-Through Certificates, Series 1997-2; ICIFC Secured Assets Corporation Mortgage Pass-Through Certificates, Series 1997-3; ICIFC Secured Assets CMN Trust Series 1998-1 Collateralized Asset-Backed Notes, Series 1998-1 ("ICIFC Trusts"); Credit Suisse First Boston Mortgage Securities Corporation; CS First Boston Mortgage Securities Corporation Preferred Mortgage Asset-Backed Certificates, Series 1996-2; Credit Suisse First Boston Mortgage Securities Corporation Preferred Credit Asset-Backed Certificates, Series 1997-1 (collectively "First Boston Trusts"); and United National Bank Home Loan Owner Trust 1999-1 ("United National Trust"); US Bank, NA, ND (collectively "defendants"). Plaintiff alleges that defendants are current holders or assignees of certain second mortgage notes between non-party Seacoast Equities and plaintiff class members, and the mortgage notes violate the Tennessee statutory limitations on interest, loan origination fees, loan brokerage commissions and/or other loan charges established in Tennessee Code Annotated sections 47-14-102, 47-14-103, 47-14-112, 47-14-113, 47-14-117, 47-15-102, 47-15-103, and 47-15-104, and the Rules of the Tennessee Department of Financial Institutions, chapter 0180-17. Plaintiff also alleges that Seacoast Equities violated the Tennessee Consumer Protection Act ("TCPA"), Tenn. Code Ann. §§ 47-18-101 et seq., which prohibits unfair or deceptive acts or practices. Additionally, plaintiff alleges that since Seacoast Equities violated the above Tennessee statutory provisions, the loan agreement between plaintiff and Seacoast Equities is void or voidable as an illegal contract against public policy. Plaintiff asserts that defendants, as holders of the note securing the mortgage, are liable for Seacoast Equities' conduct. Plaintiff seeks relief in several forms, including injunctive and declaratory relief, compensatory and punitive damages, attorneys' fees, costs, and pre- and post-judgment interest. (Compl. ¶¶ B-J.)
Class certification has not yet been requested.
Plaintiff alleges that defendants are all current holders or assignees of certain of the second mortgage notes between Seacoast Equities and plaintiff or putative class members. (Compl. ¶ 56.)
Plaintiff voluntarily dismissed Imperial Credit Industries, Inc. without prejudice on May 23, 2002.
Plaintiff voluntarily dismissed Credit Suisse First Boston Mortgage Securities Corporation without prejudice on April 18, 2002.
On March 11, 2002, defendant Sovereign Bank filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On March 25, 2002, TMS filed a similar motion. Additionally, on April 1, 2002, defendants Banc One and UBS filed separate similar motions. Also on that date, defendants U.S. Bank, FirstPlus Trusts, Ace Trust, Real Time Resolutions, German American, PSB, Mego Trusts, Empire Trusts, OCWEN, First Boston Trusts, and United National Trust collectively filed a motion to dismiss pursuant to Rule 12(b)(2) for lack of personal jurisdiction or, in the alternative, pursuant to Rule 12(b)(6) for failure to state claims upon which relief can be granted. IMPAC Funding, IMPAC Mortgage, IMPAC Secured, and ICIFC Trusts also collectively filed a similar motion. The arguments raised in each of these motions are substantially similar and will be dealt with by the court together; distinctions as to which defendant or defendants an analysis is applicable will be indicated as necessary. The issues raised by defendants are: (1) whether this court has personal jurisdiction over some of the defendants; (2) whether plaintiff has standing to assert claims against some of the defendants; (3) whether assignees of the loans can be held liable for the actions of the original lenders; and (4) whether certain of plaintiff's claims are barred by Tennessee statutory provisions including statute of limitations, statute of repose, and exclusivity of remedies. The court now considers these motions.
The following factual allegations are included in plaintiff's complaint and are taken as true for purposes of this order. Street obtained a second mortgage home equity loan from Seacoast Equities on July 17, 1998, which was secured by her residence in Memphis, Tennessee. Id. ¶ 57. The original principal amount of the loan was $35,000. Id. Her loan included the following costs: a 14.99% interest rate, a $2,800 servicing fee, and a $80.95 recording fees/tax stamp fee. Id. ¶ 58. The last payment on the loan is scheduled for July 21, 2018. Id. ¶ 59. Plaintiff asserts that the interest rate and closing costs charged exceed that which is allowed under Tennessee law and that the fees charged were in excess of the costs incurred and for services not provided. Id. ¶¶ 60-61. Plaintiff alleges that defendants are "[u]pon information and belief . . . currently a holder of certain of the second mortgage loan notes made to class members." Id. ¶¶ 3-51.
The following facts are relevant to the jurisdiction analysis and are undisputed. Pamela Wieder, Vice President of U.S. Bank, attests that FirstPlus Home Loan Trust 1996-2 ("1996-2 Trust") was formed and created under the terms of a Pooling and Servicing Agreement, among FirstPlus Investment Corporation, FirstPlus Financial, Inc., and FirstTrust of California, NA (now U.S. Bank, NA). (Wieder Aff. ¶¶ 3-4.) U.S. Bank, NA is the trustee of the 1996-2 Trust. Id. ¶ 3. U.S. Bank, NA is also the co-owner trustee and indenture trustee of the FirstPlus Home Loan Owner Trust 1996-3, 1996-4, 1997-1, 1997-2, 1997-3, 1997-4, 1998-1, 1998-2, 1998-3, 1998-4, and 1998-5 (collectively "Owner Trusts"). Id. ¶ 5; Wieder Aff. II ¶¶ 2-5. The Owner Trusts were formed and created under the terms of trust agreements entered into in 1996 and 1997, pursuant to which Wilmington Trust Company is the owner trustee and U.S. Bank, NA is the co-owner trustee. (Wieder Aff. ¶¶ 6-7; Wieder Aff. II ¶¶ 3-5.) The purpose of the 1996-2 Trust and Owner Trusts (collectively "Trusts") is to hold mortgage loans, receive income from the mortgage loans, which is collected by the loan servicer, and distribute that income to holders of notes pursuant to the respective agreements which created the trusts. (Wieder Aff. ¶ 8; Wieder Aff. II ¶ 6.) The Owner Trusts issued notes under the terms of indentures between them and US Bank, NA or First Bank, NA. (Wieder Aff. ¶ 9; Wieder Aff. II ¶ 7.) The Owner Trusts also issued certificates pursuant to the terms of the trust agreements. (Wieder Aff. ¶ 9.) All of the payments from the Owner Trusts are pledged to U.S. Bank, NA, as the indenture trustee, to secure the Owner Trusts' obligations and indentures, and Owner Trusts' estate is held by U.S. Bank, NA, for the benefit of the holders of the certificates issued pursuant to the trust agreements. (Wieder Aff. ¶ 10; Wieder Aff. II ¶ 8.) The 1996-2 Trust also issued certificates, pursuant to the terms of the Pooling and Servicing Agreement. (Wieder Aff. ¶ 11.) U.S. Bank, NA receives all payments on the mortgage loans held by the 1996-2 Trust and, after paying fees and expenses, remits the payments to the holders of the certificates issued by the 1996-2 Trust. Id.
The 1996-2 Trust was created in, and is located and administered in New York. Id. ¶ 12. The Owner Trusts are Delaware business trusts which are located and administered in Delaware. Id. ¶ 12; Wieder Aff. II ¶ 9. The 1996-2 Trust's only office is that which is maintained by US Bank, NA in Minnesota as trustee. (Wieder Aff. ¶ 13.) The Owner Trusts' only office is that which is maintained as the Corporate Trust Office of Wilmington Trust Company in Delaware. Id. ¶ 13; Wieder Aff. II ¶ 10. The Trusts have no bank accounts in Tennessee. (Wieder Aff. ¶ 14; Wieder Aff. II ¶ 11.) The Trusts have no employees. (Wieder Aff. ¶ 15; Wieder Aff. II ¶ 12.) The Trusts have no agent in Tennessee and no representative of the Trusts has traveled to Tennessee on behalf of the Trusts. (Wieder Aff. ¶ 15; Wieder Aff. II ¶ 12.) None of the Trusts owns, possesses, leases, or uses real estate in Tennessee. (Wieder Aff. ¶ 17; Wieder Aff. II ¶ 16.) None of the Trusts engages in or transacts business in Tennessee. (Wieder Aff. ¶ 18; Wieder Aff. II ¶ 15.) None of the Trusts has entered into any contracts with any Tennessee resident or has contracted to supply any service or thing in Tennessee. (Wieder Aff. ¶ 19; Wieder Aff. II ¶¶ 17-20.) None of the Trusts has solicited second mortgage loans in Tennessee, nor has any of the Trusts solicited the named plaintiff or any putative class member for the purposes of originating second mortgage loans. (Wieder Aff. ¶ 20, Wieder Aff. II ¶¶ 19-20.) None of the Trusts has entered into second mortgage loans in Tennessee, and none of the Trusts has loaned money to the named plaintiff or any putative class member. (Wieder Aff. ¶ 21; Wieder Aff. II ¶¶ 19-20.) None of the Trusts has originated any loan to named plaintiff or to any putative class member. Id. While the Trusts hold several thousand second mortgage loans throughout the country, in no case do the loans secured by Tennessee property held by Owner Trusts 1997-2, 1997-3, 1997-4, 1998-1, 1998-2, 1998-3, 1998-4, and 1998-5 exceed three percent of all the loans held by the Owner Trusts. (Wieder Aff. II ¶ 16.) The loans secured by Tennessee property held by Owner Trusts 1996-3, 1996-4, 1997-1 in no case exceed 1.3% of all the loans held by the Trusts. (Defs. Mot. to Dismiss, Ex. I at 37, Ex. J. at 40, Ex. K at S-27.)
This percentage is based on the initial number of loans secured by Tennessee property in relationship to the total number of initial loans held by each Trust.
The mortgage loans held by the Trusts were transferred and assigned to them under the terms of the Pooling and Servicing Agreement for the 1996-2 Trust and the Sale and Servicing Agreements for the Owner Trusts. (Wieder Aff. ¶ 22; Wieder Aff. II ¶¶ 21-22.) The Trusts do not service, and never have serviced, the loans assigned to them. (Wieder Aff. ¶¶ 23-24; Wieder Aff. II ¶¶ 23-24.) The loan servicer, Countrywide Home Loans, Inc. ("Countrywide") has the exclusive power and authority, independent of the Trusts, to perform all actions that are necessary or desirable in connection with the servicing and administration of the loans. (Wieder Aff. ¶¶ 23-24; Wieder Aff. II ¶¶ 23, 27.) Countrywide collects all payments under the loans and has the exclusive authority to act when any loan is in default, including the authority to foreclose or take any other action which may affect the ownership of the mortgaged property. (Wieder Aff. ¶ 24; Wieder Aff. II ¶¶ 23, 27.) The Trusts do not have the power or authority to enforce any rights under the mortgages. (Wieder Aff. ¶ 25; Wieder Aff. II ¶¶ 23-24.)
None of the Trusts has directly collected payments on any second mortgage loans in Tennessee, and none of the Trusts has directly collected any payments, fees, or commissions from named plaintiff or from any putative class member in connection with any loan which is at issue in this suit. (Wieder Aff. ¶ 26; Wieder Aff. II ¶ 24.) Although the Trusts may hold notes of the putative class members, these notes are in the physical custody of Bank One, NA, in Texas. (Wieder Aff. ¶¶ 27-28; Wieder Aff. II ¶ 26.) Countrywide collects all payments and remits them to U.S. Bank, NA, as the trustee of the 1996-2 Trust, and as the indenture trustee for the Owner Trusts. (Wieder Aff. ¶¶ 29-30; Wieder Aff. II ¶¶ 27-28.)
Ronaldo R. Reyes, an Associate of Bankers Trust Company, attests that the Ace Trust was created pursuant to a trust agreement naming Wilmington Trust Company the owner trustee. (Reyes Aff. ¶¶ 1-4.) The administrator of the Ace Trust is Bankers Trust Company. Id. ¶ 2. The purpose of the Ace Trust is to hold mortgage loans, to issue notes and certificates, and to distribute the payments the Ace Trust receives from the servicer of the loans to the holders of the notes and certificates.Id. ¶ 5. The Ace Trust is a Delaware business trust which is located and administered in Delaware. Id. ¶ 8. The trust's only office is the one maintained by the owner trustee as the Corporate Trust Office of Wilmington Trust Company, in Delaware. Id. ¶ 9. The trust's only bank accounts are those maintained by the owner trustee on behalf of Ace Trust, in Delaware or New York, and any payments received or made by the trusts are received or made only in Delaware or New York. Id. ¶ 10. The trust agreement prohibits the Ace Trust from having any employees in any state other than Delaware. Id. ¶ 11. The Ace Trust does not own, possess, lease, or use real estate in Tennessee. Id. ¶ 13. It transacts no business in Tennessee. Id. ¶ 14. The Ace Trust has not entered into any contracts with Tennessee residents, or contracted to supply any service or thing in Tennessee. Id. ¶ 15. The trust has not solicited second mortgage loans in Tennessee, and has not solicited any named plaintiff or putative class member for the purpose of originating a second mortgage loan. Id. ¶ 16. The Ace Trust has not entered into any second mortgage loans in Tennessee, has not loaned any money to any named plaintiff or putative class member, and has not originated any loan to any named plaintiff or putative class member. Id. ¶ 17.
The mortgage loans held by the Ace Trust were assigned to the trust pursuant to a Sale and Servicing Agreement under which GMAC Mortgage Corporation ("GMAC") services the loans. Id. ¶¶ 18-19. GMAC has the exclusive power and authority, independent of the Ace Trust, to do all things which are necessary or desirable in connection with the servicing and administration of the loans. Id. ¶ 20. GMAC is authorized to take whatever steps are necessary to collect or foreclose on any loan which is in default. Id. ¶ 20. The loans secured by Tennessee property held by Ace Trust constitute less than 1.5% of all the loans held by it. (Defs. Mot. to Dismiss, Ex. C at S-37.) Wells Fargo Bank Minnesota, NA maintains physical custody of the notes held by the Ace Trust. (Reyes Aff. ¶ 24). GMAC services the loans out of its offices in Pennsylvania. Id. ¶ 25. GMAC remits the payments it collects to the agent for the indenture trustee in California. Id. ¶ 26.
The Mego Mortgage Loan Trusts 1997-1, 1997-2, 1997-3 and 1997-4 ("Mego Trusts") were formed and created under the terms of trust agreements between Financial Asset Securities Corporation, Mego Mortgage Corporation, Wilmington Trust Company, as owner trustee, and U.S. Bank, NA as co-owner trustee. (Wieder Aff. IV ¶¶ 3-5; Wieder Aff. V ¶¶ 3-4.) The purpose of the Mego Trusts is to hold the owner trust estate, to receive income from second mortgage loans, and to distribute the payments received from the servicer of the loans to the holders of notes and certificates of beneficial interest in the Trusts. (Wieder Aff. IV ¶ 6; Wieder Aff. V ¶ 6.) The Mego Trusts issued notes under the terms of the indentures between the Trusts and U.S. Bank, NA, as indenture trustee. (Wieder Aff. IV ¶ 7; Wieder Aff. V ¶ 7.) All of the payments from the loans held by the trusts are pledged to U.S. Bank, NA, as indenture trustee, to secure the trusts' obligations under the indentures. (Wieder Aff. IV ¶ 8; Wieder Aff. V ¶ 8.)
The Mego Trusts are Delaware business trusts located and administered in Delaware. (Wieder Aff. IV ¶ 9; Wieder Aff. V ¶ 9.) Their only office must be maintained by the owner trustee as the Corporate Trust Office of Wilmington Trust Company, in Delaware. (Wieder Aff. IV ¶ 10; Wieder Aff. V ¶ 10.) The trust agreements require that all bank accounts maintained by the owner trustee on behalf of the trusts be located in Delaware or New York, or in St. Paul, Minnesota, with respect to U.S. Bank, NA. (Wieder Aff. IV ¶ 11; Wieder Aff. V ¶ 11.) All payments received and made by the Mego Trusts are received and made in Delaware, New York, or Minnesota. Id. The Mego Trusts have no employees. (Wieder Aff. IV ¶ 12; Wieder Aff. V ¶ 12.) They engage in no business in Tennessee, and have no officers, agents, or representatives in Tennessee. (Wieder Aff. IV ¶ 15; Wieder Aff. V ¶ 15.) They do not own, lease, or use real property in Tennessee. (Wieder Aff. IV ¶ 16; Wieder Aff. V ¶ 16.) They transact no business in Tennessee, and have not made any contracts with any Tennessee residents. (Wieder Aff. IV ¶¶ 17-18; Wieder Aff. V ¶¶ 17-18.) They have solicited no second mortgage loans in Tennessee, and have not solicited plaintiff for the purpose of originating a second mortgage loan. (Wieder Aff. IV ¶ 19; Wieder Aff. V ¶ 19.) The Mego Trusts have not entered into any second mortgage loans in Tennessee, and have not loaned plaintiff any money. (Wieder Aff. IV ¶ 20; Wieder Aff. V ¶ 20.)
The mortgage loans held by the Mego Trusts were transferred to them pursuant to Sale and Servicing Agreements, which make the servicer responsible for all matters related to servicing the loans. (Wieder Aff. IV ¶¶ 21-23; Wieder Aff. V ¶¶ 21-23.) The servicer has full power and authority, acting alone, to do all things in connection with administering the loans, including collecting all payments and enforcing performance of or remedies in connection with the loans. (Wieder Aff. IV ¶ 23; Wieder Aff. V ¶ 23.) The Mego Trusts have not themselves collected payments from any loan obligors in Tennessee or from plaintiff. (Wieder Aff. IV ¶ 24; Wieder Aff. V ¶ 24.) U.S. Bank, NA, located in Minnesota, maintains physical custody of the mortgage notes. (Wieder Aff. IV ¶ 26; Wieder Aff. V ¶ 26.) The mortgage notes are serviced by OCWEN Federal Bank ("OCWEN"), which is located in Florida. (Wieder Aff. IV ¶ 27; Wieder Aff. V ¶ 27.) Real Time Resolution ("RTR") services notes that are in default or recovery from its offices in Texas. Id. OCWEN and RTR bill for and collect all payments from and in their respective offices. Id. All payments are remitted by the servicers to U.S. Bank, NA, as indenture indenture trustee, in its offices in Minnesota. (Wieder Aff. IV ¶ 28; Wieder Aff. V ¶ 28.) The Mego Trusts do not themselves collect payments on or enforce second mortgage loans. (Wieder Aff. IV ¶ 29; Wieder Aff. V ¶ 29.)
Empire Home Loan Owner Trusts 1997-1, 1997-2, 1997-3, 1997-4, 1998-1, 1998-2, 1998-3, and 1999-1 ("Empire Trusts") were formed and created under the terms of a owner trust agreement, entered into by Financial Asset Securities Corporation or Paine Webber Mortgage Acceptance Corporation IV, Empire Funding Corp., Wilmington Trust Company, and U.S. Bank NA. (Wieder Aff. III ¶¶ 3-5; Wieder Aff. VI ¶¶ 3-5.) The Empire Trusts were formed and created under the terms of trust agreements, pursuant to which Wilmington Trust Company is the owner trustee and U.S. Bank, NA is the paying agent. (Wieder Aff. III ¶ 3; Wieder Aff. VI ¶ 3.) The purpose of the Empire Trusts are to hold the owner trust estate (which holds second mortgage loans), to receive income from the mortgage loans (which is collected by the loan servicer), and to distribute that income to holders of notes and certificates of beneficial interest in the Trust. (Wieder Aff. III ¶ 6; Wieder Aff. VI ¶ 6.) The Empire Trusts issue certificates and notes under the terms of the trust agreement and the indenture. (Wieder Aff. III ¶¶ 7, 9; Wieder Aff. VI ¶¶ 7, 9.)
The Empire Trusts are Delaware Business Trusts located and administered in Delaware. (Wieder Aff. III ¶ 9; Wieder Aff. VI ¶ 9.) Their only office is that which is maintained as the Corporate Trust Office of Wilmington Trust Company in Delaware. (Wieder Aff. III ¶ 10; Wieder Aff. VI ¶ 10.) They have no bank accounts in Tennessee. (Wieder Aff. III ¶ 11; Wieder Aff. VI ¶ 11.) They have no employees, pursuant to the terms of the trust agreement. (Wieder Aff. III ¶ 12; Wieder Aff. VI ¶ 12.) They have no agents in Tennessee and no representatives of the Empire Trusts have traveled to Tennessee on their behalf. Id.
The Empire Trusts do not own, lease, or use real estate in Tennessee. (Wieder Aff. III ¶ 16; Wieder Aff. VI ¶ 16.) They do not engage in any business in Tennessee. (Wieder Aff. III ¶ 15; Wieder Aff. VI ¶ 15.) They have not entered into any contracts in Tennessee. (Wieder Aff. III ¶ 18; Wieder Aff. VI ¶ 18.) They have not solicited second mortgage loans in Tennessee, nor has it solicited named plaintiff or any putative class member for the purposes of originating second mortgage loans. (Wieder Aff. III ¶ 19; Wieder Aff. VI ¶ 19.) They have not entered into second mortgage loans in Tennessee, and they have not loaned money to named plaintiff or to putative class members. (Wieder Aff. III ¶ 20; Wieder Aff. VI ¶ 20.) While the Empire Trusts hold several thousand second mortgage loans throughout the country, in no case do the loans secured by Tennessee property held by them exceed two percent of all the loans held by the Owner Trusts. (Wieder Aff. III ¶ 16; Wieder Aff. VI ¶ 16.)
The Empire Trusts do not hold title to any mortgage loans. (Wieder Aff. III ¶ 21; Wieder Aff. VI ¶ 21.) Rather, they hold the owner trust estate, which includes the income, payments, and rights to payment from second mortgage loans, title to which remains with U.S. Bank as grantor trustee. Id. Physical custody of the mortgage notes is with U.S. Bank in Minnesota. (Wieder Aff. III ¶ 26; Wieder Aff. VI ¶ 26.) The mortgage notes are serviced by OCWEN Federal Bank, which is located in Florida. (Wieder Aff. III ¶ 27; Wieder Aff. VI ¶ 27.) OCWEN has full authority and power, acting alone, to perform all actions that are necessary or desirable in connection with administering the loans, including collecting all payments. Id. OCWEN remits all payments of principal and interest collected on the notes to U.S. Bank at U.S. Bank's offices in Minnesota. (Wieder Aff. III ¶¶ 27-28; Wieder Aff. VI ¶¶ 27-28.) The Empire Trusts have not directly collected payments from any loan obligors in Tennessee or from plaintiff, as they do not collect payments on or enforce second mortgage loans. (Wieder Aff. III ¶¶ 24, 29; Wieder Aff. VI ¶¶ 24, 29.)
Richard Johnson, treasurer and vice president of IMPAC Mortgage attests that IMPAC Secured is an affiliate of IMPAC Mortgage. (Johnson Aff. ¶¶ 1-2.) IMPAC Mortgage is a Maryland corporation with its principal place of business in California. IMPAC Secured is a California corporation with its principal place of business in California. Id. ¶ 2. Neither IMPAC Mortgage nor IMPAC Secured has employees, offices, agents, or operations in Tennessee. Id. ¶ 3. Neither IMPAC Mortgage nor IMPAC Secured owns or leases property in Tennessee, and neither maintains bank accounts in Tennessee. Id. Neither has solicited or negotiated with Tennessee borrowers whose loans were originated by Preferred Credit. Id. ¶ 4. Neither has ever originated loans in Tennessee. Id.
IMPAC Mortgage and its affiliates are engaged in the creation of securitization trusts. Id. ¶ 5. The purpose of such trusts is to hold mortgage loans, including second mortgage loans, and to distribute payments to persons holding beneficial interests in the trusts. Id. IMPAC Mortgage and its affiliates played a role in creating the following trusts: ICIFC Secured Assets Corporation Mortgage Pass-Through Certificates, Series 1997-1; ICIFC Secured Assets Corporation Mortgage Pass-Through Certificates, Series 1997-2; ICIFC Secured Assets Corporation Mortgage Pass-Through Certificates, Series 1997-3; and IMPAC Secured Assets CMN Trust Series 1998-1 Collateralized Asset-Backed Notes (collectively "Trusts"). Id. ¶ 6. The Trusts engage in no business in Tennessee. Id. ¶ 7. The Trusts have no employees, agents, or operations in Tennessee. Id. Other than the loans contributed to the trusts, the Trusts neither own nor lease property in Tennessee, and they maintain no bank accounts in Tennessee. Id. The Trusts have never originated loans in Tennessee or elsewhere. Id. ¶ 8. The Trusts never solicited or negotiated with Tennessee borrowers whose loans were originated by Seacoast Equities. Id.
William Salvatori, vice president of United Bank, Inc., attests that the United National Bank Home Loan Owner Trust 1999-1 ("United National Trust") was formed in 1999 pursuant to a trust agreement between Bear Stearns Asset Backed Securities, Inc., Wilmington Trust Company, and U.S. Bank, NA. (Salvatori Aff. ¶¶ 4-5.) The purpose and function of the trust is to hold mortgage loans, including second mortgage loans, and to distribute the payments received from the loan servicer to holders of notes and certificates of beneficial interest in the United National Trust. Id. ¶ 6. The trust issued notes under the terms of an indenture between the trust and U.S. Bank, NA, as indenture trustee, and the trust also issued certificates under the terms of the trust agreement. Id. ¶ 7. All of the payments from the trust are pledged to the indenture trustee to secure the trust's obligations under the indentures. Id. ¶ 8.
The United National Trust is located and administered in Delaware. Id. ¶ 9. The trust's only office is maintained by the owner trustee as the corporate trust office of Wilmington Trust Company, which is located in Delaware. Id. ¶ 10. All bank accounts maintained by the trustee on behalf of the trust are located in Delaware, except with respect to U.S. Bank, NA as coowner trustee, which maintains accounts for the trust in Minnesota. Id. ¶ 11.
The United National Trust has no employees and, thus, has no employees who travel to Tennessee. Id. ¶ 12. The trust does not own, possess, lease, or use real property in Tennessee. Id. ¶ 14. The trust holds eight loans which are secured by real property in Tennessee. Id. ¶ 14. The trust engages in and transacts no business in Tennessee, and has not made contracts with any resident of Tennessee. Id. ¶¶ 15-16. The trust has not solicited named plaintiff or any putative class member for the purpose of originating a second mortgage loan. Id. ¶ 17. The trust has never entered into any second mortgage loan in Tennessee, has not loaned money to named plaintiff or any putative class member, and did not originate named plaintiff's loan or any loan of the putative class.Id. ¶¶ 17-18.
An independent servicer, acting alone, does all things necessary in servicing and administering the loans the trust holds. Id. ¶¶ 20-21. The trust itself does not undertake to collect payments on the loans or enforce any rights under the loans. Id. ¶ 28.
Defendants FirstPlus Trusts, Ace Trust, Mego Trusts, Empire Trusts, First Boston Trusts, IMPAC Mortgage, IMPAC Secured, ICIFC Trusts, and United National Trust first contend that plaintiff's action against them should be dismissed since this court lacks personal jurisdiction over them. To defeat a motion to dismiss for lack of personal jurisdiction, a plaintiff has the burden of making a prima facie showing of facts sufficient to justify personal jurisdiction. Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir. 1998). The plaintiff may not rely on his pleadings; he must, by affidavit or otherwise, set forth specific facts establishing that the court has jurisdiction. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991) (citing Weller v. Cromwell Oil Co., 504 F.2d 927, 930 (6th Cir. 1974)). Presented with a properly supported motion to dismiss, the court has three procedural alternatives: "it may decide the motion upon the affidavits alone; it may permit discovery in aid of deciding the motion; or it may conduct an evidentiary hearing to resolve any apparent factual questions." Weller, 504 F.2d at 1458 (citing Serras v. First Tenn. Bank Nat'l Ass'n., 875 F.2d 1212, 1214 (6th Cir. 1983). In all cases, the plaintiff bears the burden of establishing that jurisdiction exists. Theunissen, 935 F.2d at 1458. Here, since the court did not hold an evidentiary hearing, it must consider the pleadings, depositions, and affidavits in the light most favorable to the plaintiff. Dean, 134 F.3d at 1272. However, this requirement does not compel the court "to ignore undisputed factual representations of the defendant which are consistent with the representations of the plaintiffs." Kerry Steel v. Paragon Indus., Inc., 106 F.3d 147, 153 (6th Cir. 1997)
No party suggests that the court should hold an evidentiary hearing to resolve this motion.
To determine whether the court may exercise personal jurisdiction over a nonresident defendant, the court must first determine whether it has jurisdiction under the long-arm statute of the state in which the court sits. Dean, 134 F.3d at 1273; Serras, 875 F.2d at 1216. The Tennessee long-arm statute, Tenn. Code Ann. § 20-2-214(a)(6), extends the personal jurisdiction of Tennessee courts to the limits of the Due Process Clause. Payne v. Motorists' Mut. Ins. Co., 4 F.3d 452, 455 (6th Cir. 1993). Therefore, courts in Tennessee only need to determine whether the assertion of personal jurisdiction over a defendant violates federal constitutional due process. Id.
Consistent with the Due Process Clause, courts can exercise personal jurisdiction over a defendant so long as that defendant has "certain minimum contacts" with the forum state such that the exercise of personal jurisdiction "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Within the minimum contacts doctrine, there is a distinction between general and specific personal jurisdiction. Aristech Chem. Int'l v. Acrylic Fabricators Ltd., 138 F.3d 624, 627-28 (6th Cir. 1998). General jurisdiction exists when a defendant's forum activities are "substantial" or "continuous or systematic," even though they are unrelated to the cause of action. Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 446-47 (1952); Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414 n. 9 (1984). In general, proving general jurisdiction over a nonresident defendant is difficult, as evidenced by the greater number of cases rejecting such jurisdiction rather than finding it. See Chase Cavett Servs., Inc. v. Brandon Apparel Group, Inc., No. 02A01-9803-CH-00055, 1998 WL 846708, at *7 n. 4 (Tenn.Ct.App. 1998) (observing that "[t]he Supreme Court cases followingInternational Shoe have applied the minimum contacts test in a more conservative manner when the issue was one of general jurisdiction")
By contrast, specific jurisdiction exists when a defendant has sufficient minimum contacts that arise from or are related to the cause of action. Helicopteros, 466 U.S. at 414 n. 8. Specific personal jurisdiction is appropriate when three criteria are satisfied: (1) the defendant purposely avails himself of the privilege of acting in the forum state or intentionally causes a consequence there; (2) the plaintiff's cause of action arises from the defendant's actions in the forum state; and (3) the exercise of personal jurisdiction is reasonable in light of the defendant's acts or the consequences of his acts in the forum state. Aristech, 138 F.3d at 628; Payne, 4 F.3d at 455; S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968). The Court of Appeals for the Sixth Circuit has made clear that purposeful availment is "the sine qua non for in personam jurisdiction." Kerry Steel, 106 F.3d at 150 (1997) (quoting Mohasco, 401 F.2d at 381-82) The significance of purposeful availment is that it "allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit," World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980), and "ensures that a defendant will not be haled into a jurisdiction solely as a result of `random,' `fortuitous' or `attenuated' contacts." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1986); Kerry Steel, 106 F.3d at 150.
In applying these elements, the contacts of each defendant must be assessed individually. Rush v. Savohuk, 444 U.S. 320, 332 (1980) Additionally, it is the named class representative whose claims must satisfy these elements in order for the Court to have personal jurisdiction over defendants in the action. Barry v. Mortgage Servicing Acquisition Corp., 909 F. Supp. 65, 73 (1995).
In this case, plaintiff argues that the following contacts justify the exercise of general personal jurisdiction over defendants: defendants' purchase of at least seventy—four second mortgage loans secured by property held by Tennessee residents (Wieder Aff. ¶ 16); defendants' receipt of income from these mortgages, id. ¶ 6; and defendants' holding of notes secured by mortgages from Tennessee residents secured by real property located within the state, id. ¶ 21.
Plaintiff repeatedly argues in her consolidated response that she has not had an opportunity to develop evidence beyond the documents presented by the assignee defendants with respect to defendants' motion to dismiss for lack of personal jurisdiction. Specifically, plaintiff contends that she has attempted to conduct discovery regarding factual information which would address this issue, but that defendants have not been responsive to her requests. Plaintiff also claims that she will file a motion to compel this discovery. In the Rule 16(b) Scheduling Order of March 20, 2002, the court ordered that discovery would be limited to issues raised by or related to motions to remand and motions to dismiss. The deadline for responding to such motions was originally set for May 1, 2002 and was later extended to June 11, 2002 to provide plaintiff the opportunity to receive responsive information to her discovery requests from defendants. However, as of the date of this order, plaintiff has not filed a motion to compel; additionally, she did not seek to extend the deadline for responding to the motion to dismiss. Due to these failures, the court finds plaintiff's assertion that she has not had an opportunity to develop evidence beyond the documents presented by defendants unconvincing. Thus, the court will proceed with its analysis based upon the evidence that is presently before it.
Defendants argue that they have insufficient contacts with the state of Tennessee to justify this court exercising general personal jurisdiction over them. To support this contention, defendants point the court toBarry v. Mortgage Servicing Acguisition Corp., 909 F. Supp. 65 (D.R.I. 1995). In Barry, plaintiff asserted that an assignee defendant with no banking operations, offices, or real property in Rhode Island, no personnel that travel regularly to Rhode Island, and no solicitation of business or formation of contracts within Rhode Island, still was subject to the personal jurisdiction of Rhode Island since the defendant was the assignee of 138 mortgages secured by real property in Rhode Island. Without deciding whether an assignment of a mortgage constitutes an ownership interest in the property, the court rejected plaintiff's contention that standing alone, the fact that defendant held 138 mortgages secured by Rhode Island property, is sufficient to confer general personal jurisdiction. Id. at 74-75. This court finds the reasoning in Barry compelling. When a defendant's forum activities consist solely of holding mortgages secured by property in the forum state, the contacts cannot be characterized as continuous or systematic such that an exercise of general personal jurisdiction would be permissible. With this principle in mind, the court examines the contacts of each defendant with the state of Tennessee.
Plaintiff tries to convince the court that the reasoning in Barry is inapposite. Her logic is that in Barry, the issue was whether Rhode Island courts could assert jurisdiction over a dispute between a Massachusetts borrower and a national bank headquartered in Texas, involving a loan secured by Massachusetts property. In contrast, she argues, this is a case dealing with Tennessee courts exercising jurisdiction over disputes between Tennessee borrowers and holders of their notes secured by Tennessee property. However, plaintiff misses the point. Nowhere in her complaint does plaintiff allege that her loan, which is secured by Tennessee property, is held by defendants. Instead, plaintiff argues that an exercise of personal jurisdiction is appropriate only based upon the holding of mortgages secured by Tennessee property unrelated to her own claims.
The court first addresses whether it has general jurisdiction over defendants FirstPlus Trusts, Empire Trusts, and Mego Trusts. Plaintiff argues that the following contacts justify the exercise of general personal jurisdiction over these defendants: defendants' purchase of at least seventy-four second mortgage loans secured by property held by Tennessee residents (Wieder Aff. ¶ 16); defendants' receipt of income from these mortgages, id. ¶ 6; and defendants' holding of notes secured by mortgages from Tennessee residents secured by real property located within the state, Id. ¶ 21. As discussed above, the holding of mortgages secured by property in Tennessee, without more, is insufficient to confer personal jurisdiction over defendants. However, plaintiff has not alleged that defendants have any other contacts with Tennessee. In addition, plaintiff does not contest that the Trusts have no employees or agents in Tennessee, nor that they have no representatives that have traveled to Tennessee. (Wieder Aff. ¶ 15; Wieder Aff. II ¶ 12; Wieder Aff. III ¶ 12; Wieder Aff. IV ¶ 12; Wieder Aff. V ¶ 12; Wieder Aff. VI ¶ 12.) Plaintiff also does not contest that none of the Trusts has entered into any contracts with any Tennessee resident or has contracted to supply any service or thing in Tennessee. (Wieder Aff. ¶ 19; Wieder Aff. II ¶¶ 17-20; Wieder Aff. III ¶ 18; Wieder Aff. IV ¶ 17-18; Wieder Aff. V ¶ 18; Wieder Aff. VI ¶ 18.) Furthermore, an independent servicer has exclusive power to perform all acts in connection with administering the loans, including collecting payments and enforcing performance of or seeking remedies with respect to the loans. (Wieder Aff. ¶ 24; Wieder Aff. II ¶ 23; Wieder Aff. III ¶ 23; Wieder Aff. IV ¶ 23; Wieder Aff. V ¶ 23; Wieder Aff. VI ¶ 23). Since plaintiff can point to no contacts with Tennessee other than the Trusts' holding of mortgages secured by property in Tennessee, the court finds that it cannot exercise general personal jurisdiction over these defendants.
The court next addresses whether it has general jurisdiction over defendants Ace Trust, United National Trust, and First Boston Trusts. Plaintiff points to no affidavit, deposition, or other testimony to support their contention that these defendants have continuous and systematic contacts with Tennessee; plaintiff points only to the affidavit of Pamela Wieder, Vice President of U.S. Bank, NA. Plaintiff does not explain how Wieder's affidavit relates to Ace Trust, United National Trust, or First Boston Trusts. Thus, plaintiff has not met her burden to support her contention that Ace Trust, United National Trust, and First Boston Trusts have the continuous and systematic contacts required to subject them to liability for acts unrelated to their contacts with Tennessee.
Moreover, relying upon the uncontested affidavits provided by defendants, the court finds the facts regarding Ace Trust's and United National Trust's contacts with Tennessee substantially similar to that of the FirstPlus Trust defendants such that an exercise of general personal jurisdiction over these defendants would be inappropriate. Ace Trust and United National Trust have no employees and they have no offices or bank accounts in Tennessee. (Reyes Aff. ¶¶ 9-11; Salvatori Aff. ¶¶ 11-12.) They have not solicited or entered into any second mortgage loans in Tennessee. (Reyes Aff. ¶ 16; Salvatori Aff. ¶ 17-18.) An independent servicer has exclusive power to perform all acts in connection with administering the loans, including collecting payments and enforcing performance of or seeking remedies with respect to the loans. (Reyes Aff. ¶ 20; Salvatori Aff. ¶ 21.) The loans secured by Tennessee property held by Ace Trust constitute less than 1.5% of all the loans held by it. (Defs. Mot. to Dismiss, Ex. C at S-37.) Physical custody of the mortgage notes is with Wells Fargo Bank Minnesota, NA.Id. ¶ 24. Since plaintiff can point to no contacts with Tennessee other than defendant's holding of unrelated mortgages secured by property in Tennessee, the court finds that it cannot exercise general personal jurisdiction over Ace Trust or United National Trust.
Similarly, plaintiff points to no evidence to show general personal jurisdiction over IMPAC Mortgage, IMPAC Secured, or ICIFC Trusts. Again, relying upon the uncontested affidavits provided by defendants, the court finds the facts regarding these defendants' contacts with Tennessee substantially similar to that of the above-discussed defendants such that an exercise of general personal jurisdiction over these defendants would be inappropriate. IMPAC Mortgage, IMPAC Secured, and ICIFC Trusts have no employees, offices, or bank accounts in Tennessee. (Johnson Aff. ¶¶ 3, 7.) They have not solicited or entered into any second mortgage loans in Tennessee. Id. ¶¶ 4, 8. Since plaintiff can point to no contacts with Tennessee other than defendants' holding of unrelated mortgages secured by property in Tennessee, the court finds that it cannot exercise general personal jurisdiction over these defendants.
The court now addresses whether plaintiff has shown that this court has specific jurisdiction over defendants. As discussed above, to establish specific jurisdiction, plaintiff must demonstrate that her suit arises out of or is related to defendants' contacts with Tennessee. Plaintiff does not allege which, if any, defendants actually hold her second mortgage loan. She merely asserts "[u]pon information and belief, [defendants are] currently a holder of certain of the second mortgage loan notes made to class members." (Compl. ¶¶ 3-51.) Since named plaintiff's claims must satisfy the requirements for personal jurisdiction, a general allegation that defendants hold the mortgages made to putative class members is insufficient. This court does not have specific personal jurisdiction over any defendant that does not allegedly hold named plaintiff's loan. Since plaintiff fails to meet her burden in showing which defendants hold their loans, this court cannot find personal jurisdiction over any defendant. Thus, the court grants FirstPlus Trusts', Ace Trust's, Mego Trusts', Empire Trusts', First Boston Trusts', IMPAC Mortgage's, IMPAC Secured's, ICIFC Trusts', and United National Trust's motions to dismiss for lack of personal jurisdiction.
The parties discuss at length the relevance of a case recently decided by the United States District Court for the District of Kansas,Pilcher v. Direct Equity Lending, 189 F. Supp.2d 1198 (D. Kan. 2002). InPilcher, piaintiffs actually alleged which assignee defendants held their loans. I. contrast, named plaintiff in the instant action has specifically avoided informing the court which defendants hold her loan. Thus, it need not be decided at this time whether the actual holding of named plaintiff's loan would subject an assignee defendant to the specific personal jurisdiction of this court.
Next, the court addresses the contention of defendants UBS, Sovereign Bank, TMS, U.S. Bank, NA, Real Time Resolutions, German American, PSB Lending, OCWEN, Banc One, and IMPAC Funding that plaintiff's actions against them should be dismissed pursuant to Rule 12(b)(6) due to lack of standing, since no allegation is made that any of defendants hold the loan made to named plaintiff. Article III of the United States Constitution provides that federal courts may hear only justiciable cases or controversies. U.S. Const. Art. III, § 2; see also Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997) (noting that Article III "confines the federal courts to adjudicating actual `cases' and `controversies' and that "[t]he threshold question in every federal case is whether the court has the judicial power to entertain the suit" (internal citations omitted)). In evaluating whether a case is justiciable, a court must determine whether the plaintiff has standing to bring the lawsuit. Id. at 279-80. The Supreme Court has "established that the irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the plaintiff must have suffered an injury in fact. This injury must be "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Id. (internal quotations and citations omitted). Second, standing requires a causal connection between the plaintiff's injury and the defendant's action: the injury must be "fairly traceable to the challenged action of the defendant." Id. (internal quotations and citations omitted). Third, it must be likely that the requested relief will redress the plaintiff's injury. Id. at 561. (internal quotations and citations omitted)
In a class action (or potential class action), the individual standing of each named plaintiff vis-a-vis each defendant is a threshold issue.Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998) (internal citations omitted). Named plaintiff does not acquire standing by virtue of bringing a class action. Id. Rather,
a plaintiff "cannot represent those having causes of action against other defendants against whom the plaintiff has no cause of action and from whose hands he suffered no injury." This is true even though the plaintiff may have suffered an injury identical to that of the other parties he is representing.Thompson v. Bd. of Educ. of the Romeo Cmty. Schs., 709 F.2d 1200, 1204 (6th Cir. 1983) (quoting LaMar v. HB Novelty Loan Co., 489 F.2d 461, 462 (9th Cir. 1973). However, there are two exceptions to the general rule that each member of a plaintiff class must have a cause of action against each defendant:
(1) Situations in which all injuries are the result of a conspiracy or concerted schemes between the defendants at whose hands the class suffered injury; and (2) Instances in which all defendants are juridically related in a manner that suggests a single resolution of the dispute would be expeditious.Id. at 1204-05 (emphasis in original) (citing LaMar, 489 F.2d at 462). A juridical relationship among defendants is most often found "[w]here all members of the defendant class are officials of a single state and are charged with enforcing or uniformly acting in accordance with a state statute, or common rule or practice of state-wide application, which is alleged to be unconstitutional." Id. at 1205 (quoting Mudd v. Busse, 68 F.R.D. 522, 527-28 (N.D. Ind. 1975). It is also used in cases in which there is a contractual obligation among all defendants. See, e.g., United States v. Trucking Employers, Inc., 75 F.R.D. 682 (D.D.C. 1977).
In LaMar, the court discussed the two exceptions within the context of whether plaintiff met Rule 23's requirement that "the representative party will fairly and adequately protect the interests of the class":
[W]e assert that a plaintiff who has no cause of action against the defendant can not "fairly and adequately protect the interests" of those who do have such causes of action. This is true even though the plaintiff may have suffered an identical injury at the hands of a party other than the defendant and even though his attorney is excellent in every material respect. Obviously this position does no embrace situations in which all injuries are the result of a conspiracy or concerted schemes between the defendants at show hands the class suffered injury. Nor is it intended to apply in instances in which all defendants are juridically related in a manner that suggests a single resolution of the dispute would be expeditious.LaMar, 489 F.2d at 466 (internal citations omitted). The court did not first address the issue of standing since it ultimately held that plaintiffs were not entitled to bring a class action against defendants with whom they had no dealing. Id. at 464.
The only claims that are before this court are those of named plaintiff. Thus, named plaintiff must demonstrate that she satisfies the requirements of standing vis-a-vis each defendant. Since named plaintiff fails to state which defendant actually holds her loan, she fails to meet this test with respect to any of the defendants. Instead, plaintiff states that she will lack standing as to those defendants that do not hold her loan only if she does not succeed on the issue of class certification. However, even assuming that this court were to certify plaintiffs as a class, this would not cure the fact that named plaintiff does not have standing against any defendant who does not actually hold her loan.
Furthermore, plaintiff's contention that class certification issues are "logically antecedent" to standing issues is contrary to law. Although the Supreme Court states in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), that the "class certification issues are, as they were in [Amohem Prod., Inc. v. Windsor, 521 13.5. 591 (1997)], `logically antecedent' to Article III concerns, and themselves pertain to statutory standing, which may properly be treated before Article III standing," it prefaced this statement by saying, "[o]rdinarily, of course, this or any other Article III court must be sure of its own jurisdiction before getting to the merits." Ortiz, 527 U.S. at 831. Moreover, the Court determined that class certification was improper and never specifically addressed whether standing existed. Therefore, this court sees no reason why it should address class certification issues, which are not even presently before it, before addressing whether plaintiff has standing against defendant 3.
Furthermore, plaintiff does not fall within the "juridical link" exception. The types of cases that fall within this exception are those that have either a contractual obligation among all defendants or a state or local statute which requires common action by defendants. Neither of these situations exists in the present action. Despite this failing, plaintiff relies on Moore v. Comfed Savings Bank, 908 F.2d 834, 838-39 (11th Cir. 1990), to support her position that defendants are juridically linked. In Moore, however, although the Eleventh Circuit discussed the juridical link exception, it did not expressly resolve the standing question, but rather found that defendants were properly joined pursuant to Federal Rule of Civil Procedure 20. Thus, Moore does not support plaintiff's position that defendants are juridically linked when plaintiff's loan and putative class members' loans are originated by a common lender and subsequently assigned to unrelated defendants.
In Moore, the plaintiffs' loans were originated by a common lender who subsequently sold them to savings and loans companies throughout the country. Moore, 908 F.2d at 836.
Plaintiff's reliance upon the joinder rules similarly does not cure named plaintiff's lack of standing. Plaintiff argues that joinder of the assignee defendants that do not hold named plaintiff's loan is required since these defendants are necessary parties under Federal Rule of Civil Procedure 19(a) She asserts that without the presence of the assignee defendants in this action, complete relief cannot be accorded to the class members. However, this assumes that class members are parties to this action. Since class certification has not yet been ordered, or even requested, joinder of additional parties related to unnamed class members would be inappropriate at this time. Moreover, procedural rules, such as the joinder rules, cannot expand the jurisdiction of the federal courts, and thus, cannot confer standing where a case or controversy otherwise would not exist. See, e.g., Christiansen v. Beneficial Nat'l Bank, 972 F. Supp. 681, 683 (S.D. Ga. 1997); United States ex rel. Tenn. Valley Authority v. Easement and Right of Way, 204 F. Supp. 837, 840 (E.D. Tenn. 1962).
Rule 19(a) states, in pertinent part:
A prson who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties . . .
Fed.R.Civ.Pro. 19(a).
Finally, plaintiff attempts to convince the court that she has standing pursuant to the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), Pub.L. No. 103-325, 108 Stat. 2190 (codified as amended at 15 U.S.C. § 1602(aa), 1639, and 1641(d)), which amended the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seg. The crux of her argument is based on the following logic: Plaintiff first asserts that the injuries of which she complains are based upon the second mortgage loan entered into by herself and the originating lender such that plaintiff has standing to sue the original lender. Second, she points to HOEPA which states that "any person who purchases or is otherwise assigned a mortgage referred to in section 1602(aa) of this title shall be subject to all claims and defenses with respect to that mortgage that the consumer could assert against the creditor of the mortgage . . ." 15 U.S.C. § 1641(d)(1). Finally, plaintiff reasons that under HOEPA's assignee liability provisions, the assignee defendants do not possess any defense, including standing, distinct from the defenses that would be available to the lender. However, plaintiff's logic is flawed as she mistakenly focuses on the language regarding "all claims and defenses." Since standing is a threshold jurisdictional question, the proper focus of the standing inquiry deals with the following clauses: "any person who purchases or is otherwise assigned a mortgage" and "with respect to that mortgage that the consumer could assert against the creditor of the mortgage." As stated above, named plaintiff does not have standing to sue someone who does not actually hold her loan. HOEPA does nothing to alter the requirements of Article III standing; rather, it merely eliminates holder in due course defenses for assignees of certain high cost mortgages when the assignee holds the plaintiff's loan. See, e.g., In re Rodrigues, 278 B.R. 683, 688 (Bankr. D.R.I. 2002); Vandenbroeck v. Contimortgage Corp. and Greentree Fin. Servicing Corp., 53 F. Supp.2d 965, 968 (W.D. Mich. 1999); In re Murray, 239 B.R. 728, 733 (Bankr. E.D. Penn. 1999)).
Pursuant to the above analysis, plaintiff does not have standing against any defendant that does not hold plaintiff's loan. However, plaintiff fails to specify which defendants, if any, actually holds her loan. Thus, the court grants UBS's, Sovereign Bank's, TMS's, U.S. Bank, NA's, Real Time Resolutions's, German American's, PSB's, OCWEN's, Banc One's, and IMPAC Funding's motions to dismiss.
In accordance with the above discussion, the court concludes that it does not have personal jurisdiction over FirstPlus Trusts, Ace Trust, Mego Trusts, Empire Trusts, First Boston Trusts, United National Trust, IMPAC Mortgage, IMPAC Secured, or ICIFC Trusts. Thus, these defendants' motions to dismiss are granted. Additionally, the court finds that, based on the facts presently before the court, plaintiff does not have standing to assert claims against UBS, Sovereign Bank, TMS, U.S. Bank, NA, Real Time Resolutions, German American, PSB, OCWEN, Banc One, or IMPAC Funding. Thus, these defendants' motions to dismiss are granted. The dismissal is without prejudice as to any defendant that may actually hold plaintiff's loan.
IT IS SO ORDERED.