Taylor et al v. Deutsche Bank National Trust Company et al

MOTION to Dismiss Case

D. Ariz.July 14, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 Gregory J. Marshall (#019886) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 gmarshall@swlaw.com Attorneys for Defendant Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Capital 1 Inc., Trust 2006-NC2, Mortgage Pass-Through Certificates Series 2006-NC2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Allen C. Taylor and Lynell M. Taylor, Plaintiff, v. Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Capital 1 Inc. Trust 2006-NC2 Mortgage Pass-Through Certificates, Series 2006-NC2; John and Jane Does 1-1000; XYZ Corporations 1-15; ABC Limited Liability Companies 1-15; and 123 Banking Associations 1-15, Defendants. No. CV-16-1792-PHX-DLR MOTION TO DISMISS Defendant Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Capital 1 Inc. Trust 2006-NC2 Mortgage Pass Through Certificates, Series 2006-NC2 (“Deutsche Bank”) moves to dismiss Plaintiffs’ First Amended Complaint (“FAC”) (Doc. 10) pursuant to Rule 12(b)(6), Fed. R. Civ. P. Plaintiffs’ FAC asserts claims for quiet title under A.R.S. §§ 12-1101-1103, false recordings under A.R.S. § 33-420, and violation of the Truth In Lending Act (“TILA”). Plaintiffs’ claims all derive from the contention that they rescinded the loan that is the subject of this action in 2008. Plaintiffs’ claims, however, fail for several reasons including, that they are untimely, their affirmed their loan when they entered into a Loan Modification Agreement in 2010, and Plaintiffs lack Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 1 of 13 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 standing to challenge assignments of the loan to which they were not parties. For these reasons, Plaintiffs have not and cannot state claims for relief under any of their three claims, so the FAC should be dismissed with prejudice. I. STATEMENT OF CONFERRAL Per this Court’s Order (Doc. 6), undersigned counsel certifies that she conferred with Plaintiffs’ counsel on June 10, 2016 to discuss whether an amendment to the original complaint could cure its deficiencies. In response, Plaintiffs filed the FAC on June 24, 2016 (Doc. 10), which did not cure the deficiencies. Notwithstanding, undersigned counsel continued her conferrals with Plaintiffs’ counsel, but the parties were not able to agree on the issue of whether further amendment could cure the deficiencies. II. LEGAL STANDARD To survive a 12(b)(6) 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). If the well-pled facts of the complaint do not support a “cognizable legal theory,” the complaint must be dismissed. UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 667 F. 3d 1022, 1029 (9th Cir. 2011). A claim is facially plausible, and can withstand the scrutiny of a 12(b)(6) motion, only “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996). On a motion to dismiss for failure to state a claim, the “court need not accept as true … allegations that contradict facts that may be judicially noticed by the court, and may consider documents that are referred to in the complaint whose authenticity no party questions.” Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000) (citations omitted); Cheron v. Compass Bank, No. CV-12-00206-PHX-JAT, 2013 WL 4478896, at * 3 (D. Ariz. Aug. 21, 2013). Likewise, the Court may consider documents that are central Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 2 of 13 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 to the allegations in Plaintiffs’ FAC. See, e.g., Townsend v. Columbia Operations, 667 F.2d 844, 848–49 (9th Cir. 1982); Cumis Ins. Soc., Inc. v. Merrick Bank Corp., No. CV- 07-374-TUC-CKJ, 2008 WL 4277877, at *9–10 (D. Ariz. 2008) (a contract that is central to a party’s complaint is not a matter outside the pleadings and is properly considered in deciding a 12(b)(6) motion). Documents that are a matter of public record, such as the recorded Loan Modification Agreement, or whose authenticity are not in dispute, and are central to Plaintiffs’ allegations, such as the disclosure notices described below, are documents that can be judicially noticed under Rule 201 and can be considered on a motion to dismiss without converting this motion into one for summary judgment. See, e.g, Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (noting that the court may take into account documents “whose contents are not alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff’s] pleading”). III. BACKGROUND On November 16, 2005, Plaintiffs signed an Adjustable Rate Note (“Note”) for $277,500 in favor of the lender, New Century Mortgage Company. [FAC, ¶ 5; Ex. J.] The Note was secured by a Deed of Trust on real property located at 2457 E. Ivy Street, Mesa, AZ 85213 (the “Property”). [FAC, ¶ 4, Ex. B.] The Note and the Deed of Trust are sometimes referred to herein as the “Loan.” While Plaintiffs allege that they were not provided “accurate material disclosures or two copies of Notices of Right to Cancel in a form they could take home from the closing” [FAC, ¶ 7], there are no allegations that they did not, in fact, receive and sign the Notice of Right to Cancel and the Truth-In-Lending Disclosure Statement when they closed their Loan. [Notice of Right to Cancel (Ex. 1); Truth-In-Lending Disclosure Statement (Ex. 2); Affidavit of Mortgage Loan Closer (Ex. 3).]1 1 By signing the Notice of Right to Cancel, Plaintiffs confirmed that they were provided with two copies of the Notice of Right to Cancel. Plaintiffs also signed disclosures regarding the adjustable rate mortgage loan program and the balloon payment. [40-Year, LIBOR 6-Month ARM with Two year Rate Lock Adjustable Rate Mortgage Loan Program Disclosure (Ex. 4); Balloon Disclosure (Ex. 5).] Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 3 of 13 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 The Notice of Right to Cancel advised Plaintiffs that they could cancel the Loan by notifying the lender in writing within three (3) business days, or by November 21, 2005. [Ex. 1.] Plaintiffs do not allege that they rescinded the Loan by November 21, 2005. In June 2008, Plaintiffs stopped making their payments. [FAC, Ex. D at p. 2.] By this time, America’s Servicing Company (“ASC”) had assumed servicing of the Loan, and Deutsche Bank was the Loan’s investor and the beneficiary under the Deed of Trust. [FAC, Exs. F, H.] On August 5, 2008, Deutsche Bank recorded a Notice of Trustee’s Sale on the Property, scheduling the sale for November 5, 2008. [FAC, Ex. H.] Tiffany & Bosco, as the Trustee under the Deed of Trust, sent Plaintiffs an acceleration letter on August 13, 2008, noting that the Loan was in default since May 1, 2008. [FAC, Ex. F.] On September 18, 2008, Plaintiff Allen Taylor sent Tiffany & Bosco correspondence purporting to rescind the Loan. [FAC, ¶¶ 8, 27, Exs. C, L.] Mr. Taylor also claimed that the lender was “paid in full.” [Id.] The letter was only signed by Mr. Taylor, even though his wife, Plaintiff Lynell Taylor, was a co-borrower. The correspondence was not sent to Deutsche Bank or ASC, the Loan servicer. Mr. Taylor’s correspondence did not offer to tender return of the Loan proceeds. Before the Trustee’s Sale could proceed, Plaintiffs filed for bankruptcy protection on October 28, 2008, which continued the Trustee’s Sale. [FAC, ¶ 33, Ex. D at pp. 3-4.] ASC filed a proof of claim on November 5, 2008. [FAC, ¶¶ 34-35.] On November 18, 2008, Mr. Taylor signed and recorded a Deed of Release and Reconveyance Beneficial (“Release”), purporting to release the Deed of Trust at the request of Deutsche Bank because the Deed of Trust has been “voided by operation of law.” Mr. Taylor purported to sign the Release on behalf of Deutsche Bank as its “attorney-in-fact.” [FAC, Ex. Q.] There are no well-plead allegations that Deutsche Bank authorized Mr. Taylor to record this Release on its behalf, nor that Deutsche Bank appointed Mr. Taylor as its “attorney-in-fact,” and Deutsche Bank denies that Mr. Taylor was so authorized or appointed. Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 4 of 13 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 Upon discovering the recorded Release, Tiffany & Bosco recorded an Affidavit and Cancellation of Deed of Release and Reconveyance (Without Notice of Continuing Lien of Deed of Trust Recorded in Instrument No. 2006-0240670) (“Release Cancellation”) on December 10, 2008. [FAC, Ex. U.] The Release Cancellation states that Mr. Taylor “had no authority to execute and release the subject Deed of Trust,” that Mr. Taylor “fraudulently executed the document on behalf of Deutsche Bank,” and that the “Deed of Trust remains a valid lien upon the property, in full force and effect.” [Id.; see also FAC, ¶¶ 65, 66, Ex. T.] Meanwhile, the bankruptcy continued. On January 8, 2009, Wells Fargo, doing business as ASC, moved to lift the automatic bankruptcy stay to allow the Trustee’s Sale to proceed. [Movant’s Motion to Lift the Automatic Bankruptcy Stay (Ex. 6).] Over Plaintiffs’ objections, the Bankruptcy Court granted ASC / Wells Fargo’s motion on April 27, 2009. The order lifting the stay was entered on May 7, 2009. [FAC, ¶¶ 49-50; Minute Entry (Ex. 7); Order (Ex. 8).] The same day, Plaintiffs moved to dismiss their bankruptcy. [FAC, ¶ 51; Motion to Withdraw from Bankruptcy (Ex. 9).] On or around April 25, 2010, Plaintiffs executed a Loan Modification Agreement. [FAC, ¶ 53; Loan Modification Agreement (Ex. 10).] Among other things, the Loan Modification Agreement modified the terms of the Note and Deed of Trust with respect to the unpaid principal and the interest rate (providing for a fixed, rather than variable, interest rate). [FAC, ¶ 53; Ex. 10.] The Loan Modification Agreement “amends and supplements” the Note and Deed of Trust, and reaffirms the terms of the Loan, including Plaintiffs’ obligations thereunder:  “Borrower also will comply with all other covenants, agreements, and requirements of the Security Instrument …” [Ex. 10, ¶ 4.]  “Borrower understands and agrees … All covenants, agreements, stipulations, and conditions in the Note and Security Instrument shall be and remain in full force and effect, except as herein modified, and none of Borrower’s obligations or liabilities under the Note and Security Instrument Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 5 of 13 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 shall be diminished or released by any provisions hereof, nor shall this Agreement in any way impair, diminish, or affect any of Lender’s rights under or remedies on the Note and Security Instrument, whether such rights or remedies arise thereunder or by operation of law.” [Ex. 10, ¶ 5(b).]  “Borrower understands and agrees … Nothing in this Agreement shall be understood or construed to be a satisfaction or release in whole or in part of the Note and Security Instrument.” [Ex. 10, ¶ 5(c).] Tiffany & Bosco recorded a Cancellation of Trustee’s Sale on September 28, 2010. [Cancellation of Trustee’s Sale (Ex. 11).] IV. ARGUMENT 1. The allegations do not support Plaintiffs’ theory that the Loan was rescinded in 2008, so all of their claims fail as a matter of law. Plaintiffs’ claims for quiet title, false recording and violation of TILA are all premised on the contention that the Loan was rescinded as a “matter of law” when Mr. Taylor sent his correspondence to the law firm of Tiffany & Bosco on September 18, 2008. [See, e.g., FAC ¶¶ 103-105, 146-147, 186, 190-191.] This theory cannot support any of Plaintiffs’ claims. a. Plaintiffs did not timely rescind. Mr. Taylor’s 2008 rescission notice was untimely. 12 C.F.R. § 1026.23(a)(3)(i) states: “The consumer may exercise the right to rescind until midnight of the third business day following consummation, delivery of the notice required by paragraph (b) of this section, or delivery of all material disclosures, whichever occurs last.”; see also 15 U.S.C. § 1635(a). The right to rescind is only extended to 3 years if the notice of right to cancel or disclosures are not delivered. 12 C.F.R. § 1026.23(a)(3)(i); 15 U.S.C. § 1635(f). The rescission period beings upon “[d]elivery of the required notice” of the right to rescind. 12 C.F.R. § 1026.23 (a)(1). In this case, the Notice of Right to Cancel clearly states that any rescission must be made by November 21, 2006. Because Plaintiffs were provided with the Notice of Right Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 6 of 13 - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 to Cancel and the required disclosures at the time of closing [Exs. 1-5], and they do not allege otherwise, the 3-year period to rescind under TILA was never triggered. b. The rescission was not effective. Mr. Taylor’s 2008 rescission notice was not effective. The September 18, 2008 correspondence was sent to Tiffany & Bosco, a law firm, not Deutsche Bank or the Loan servicer (ASC). TILA requires a rescission notice be in writing and sent to the “creditor.” 12 C.F.R. § 1026.23(a)(2). Tiffany & Bosco, a law firm, does not qualify as the “creditor” within the meaning of TILA. See 12 C.F.R. § 1026.2(a)(17) (defining “creditor”). Likewise, the “consumer” must send the rescission notice. 12 C.F.R. § 1026.23(a)(2). “Consumer” is defined as a “natural person in whose dwelling a security interest is or will be retained or acquired, if that person’s ownership interest in the dwelling is or will be subject to the security instrument.” 12 C.F.R. § 1026.2(a)(11). Here, the Note and Deed of Trust was signed by both Mr. and Mrs. Taylor, and they obtained title to the Property jointly as community property. [FAC, ¶ 1, Exs. A, B.] But Mrs. Taylor did not also sign the purported rescission notice, so it could not be effective. c. Plaintiffs’ claims are time-barred. Plaintiffs’ claims arising from the failure of Deutsche Bank to give effect to the September 18, 2008 rescission notice are barred by the statute of limitations. Although counts one and two are labeled as claims for quiet title and false recording under A.R.S. § 33-420, the claims necessarily depend on Plaintiffs’ theory that the Loan was rescinded under TILA’s extended 3-year right to rescind. As such, all three claims are subject to TILA’s one-year statute of limitations under 15 U.S.C. § 1640(e). See Rogers v. Bd. of Regents of Univ. of Ariz., 233 Ariz. 262, 267, 311 P.3d 1075, 1080 (App. 2013) (applying statute of limitations for declaratory judgment to plaintiff’s quiet title action finding the claim was not a “true” quiet title action because it was dependent on success of other claims). Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 7 of 13 - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 Plaintiffs knew as of November 2008 that Deutsche Bank did not consider the September 2008 rescission notice to be effective because the Loan servicer filed a proof of claim in the Bankruptcy Court. [FAC, ¶¶ 43, 45]. Thus, Plaintiffs’ claims accrued no later than November 2009. Yet, Plaintiffs did not file their claims until 2016, over six (6) years too late.2 d. The Loan Modification Agreement was an accord and satisfaction. The Loan Modification Agreement entered into in 2010 amounts to an accord and satisfaction of any dispute arising from the effectiveness of the alleged September 2008 rescission.3 An “accord and satisfaction discharges a contractual obligation or cause of action when the parties agree to exchange something of value in resolution of a claim or demand and then perform on that agreement, the accord being the agreement, and the satisfaction its execution or performance.” Abbott v. Banner Health Network, --- P.3d ---, 2016 WL 2955357, at * 3 (Ariz. May 23, 2016) (quoting Best Choice Fund, LLC v. Low & Childers, P.C., 228 Ariz. 502, 510, 269 P.3d 678, 686 (App. 2011)). The four elements of accord and satisfaction are (1) a proper subject matter, (2) competent parties, (3) an assent or meeting of the minds, and (4) consideration. Id. To the extent there was any good faith dispute regarding the effectiveness of the September 2008 rescission, the subsequent 2010 Loan Modification Agreement resolved it. [Ex. 10, ¶¶ 4-5.] The Loan Modification Agreement establishes the requisite assent and meeting of the minds, and details the consideration. The Loan Modification Agreement fixed the interest rate at 4%, whereas the original Note provided for a variable interest rate which was originally 7.450%, but could change monthly and could be as high as 14.450%. [Compare FAC, Ex. J, ¶ 4 with Ex. 10, ¶ 2.] Likewise, Deutsche Bank gave up its right to pursue the already noticed Trustee’s Sale. [Exs. 7, 8.] 2 In fact, regardless of which statute of limitations period applies to these claims, any claims would be time-barred at this point. 3 The Loan Modification Agreement also supports waiver, estoppel, and release of the 2008 alleged “rescission.” In the interests of brevity, Wells Fargo elaborates only on the accord and satisfaction that flows from the Loan Modification Agreement’s execution. Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 8 of 13 - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 2. Plaintiffs lack standing to challenge assignments to which they were not parties. To the extent Plaintiffs’ claims for quiet title and false recording are premised on challenges to the assignments of the Note or Deed of Trust to Deutsche Bank, these claims fail. [See, e.g., FAC, ¶¶ 73-87, 114-115, 120-130, 148, 154, 157-158.] Because Plaintiffs were not parties to the assignments, they lack standing to challenge their validity. See Robertson v. DLJ Mortgage Capital, Inc., No. CV-12-8033-PCT-LOA, 2012 WL 4840033, at * 10-11 (D. Ariz. Oct. 11, 2012), aff’d (Mar. 29, 2013) (“Borrowers who were not parties to the assignment of their deed [of trust] lack standing to challenge the assignment’s validity”) (citation omitted); see also In re Mort. Elec. Registration Sys. (MERS) Litig., 2012 WL 932625, at * 3 (“Plaintiffs, as third-party borrowers, are uninvolved and unaffected by the alleged Assignments, and do not possess standing to assert a claim based on such.”). In addition, the Deed of Trust provides for assignment without notice to Plaintiffs: “The Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower.” [FAC, Ex. B, ¶ 20.] Consequently, Plaintiffs have no right to complain to the extent they allege that they were not notified in advance of assignments. 3. Plaintiffs’ quiet title claim fails for lack of tender. Plaintiffs’ quiet title claim – brought under state law – fails because they have not repaid the Loan proceeds or tendered the balance due. See, e.g., Eason v. IndyMac Bank, FSB, No. CV 09-1423-PHX-JAT, 2010 WL 4573270, at *3 (D. Ariz. Nov. 5, 2010) (“[q]uiet title is not a remedy available to a trustor under an Arizona Trust Deed until the debt is paid or tendered”); Frazer v. Millennium Bank, N.A., No. 2:10–cv–01509 JWS, 2010 WL 4579799, at *4 (D. Ariz. Oct. 29, 2010) (finding plaintiff who was trustor to deed of trust could not assert quiet title claim and stating “[u]ntil [plaintiff] pays off the loan, the successor trustee as named by beneficiary holds the title in trust”). Plaintiffs are Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 9 of 13 - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 not entitled to rescind the Loan and require the lender to return their payments without returning the proceeds of the Loan they took. 4. Plaintiffs false recording claim under A.R.S. § 33-420 fails. a. Plaintiffs’ claim is time-barred. Plaintiffs’ claim for damages under A.R.S. § 33-420(A) is subject to the four-year statute of limitations under A.R.S. § 12-550. See Sitton v. Deutsche Bank Nat. Trust Co., 233 Ariz. 215, 219, 311 P.3d 237, 241 (App. 2013) (holding claims seeking damages under A.R.S. § 33-420(A) are subject to the general four-year statute of limitations in § 12-550). The recorded documents Plaintiffs challenge were recorded as early as August 5, 2008 and as late as March 28, 2012. [FAC, ¶ 148, Exs. H (substitution of trustee and notice of trustee’s sale, recorded Aug. 5, 2008) N (assignment of deed of trust, recorded Sept. 29, 2008), U (release cancellation, recorded Dec. 10, 2008) and V (corporate assignment of deed of trust, recorded March 30, 2012)4.] Consequently, Plaintiffs’ claim for damages under A.R.S. § 33-420(A) was required to be filed no later than March 2015 for the last of the recorded documents at issue. Plaintiffs lawsuit filed on April 26, 2016 is too late. b. Any alleged misstatements are not material to Plaintiffs. Regardless of whether Plaintiffs’ claim is for damages or quiet title under A.R.S. § 33-420, and irrespective of whether there are any other alleged falsities or misrepresentations in the recorded documents,5 Plaintiffs’ claim under A.R.S. § 33-420 fails nonetheless because any statement Plaintiffs claim is false is not material to them. 4 Exhibit V does not reflect the recording date, but the Maricopa County Recorder’s website shows the assignment was recorded on March 30, 2012. (Ex. 12). 5 The only falsities or misstatements that are alleged appear to derive from Plaintiffs’ theory that the 2008 rescission voided the Deed of Trust as a matter of law. As argued above, this theory fails, and therefore cannot support any claim under A.R.S. § 33-420. To the extent Plaintiffs’ claim is based on other alleged misstatements, the FAC fails to satisfy Rule 12(b)(6) because they have not identified what other statements are false, forged, or groundless, and how. Iqbal, 556 U.S. at 678. Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 10 of 13 - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 Sitton, 223 Ariz. at 221, 311 P.3d at 243 (A.R.S. § 33-420 requires proof of a “material” misrepresentation). “A misrepresentation is material if a reasonable person would attach importance to its existence or nonexistence in determining [his or her] choice of action in the transaction in question.” Id. (internal quotation marks omitted). Thus, a misstatement is immaterial if it “could have no effect on [the plaintiff’s] choice of actions.” Id. The choices faced by borrowers like Plaintiffs are to “repay the money pursuant to the terms of the note, renegotiate the terms of the note, or default and cause foreclosure.” Id. at 222, 311 P.3d at 244. The FAC is utterly devoid of allegations suggesting how any purported falsities in the recorded documents affected their choices. Plaintiffs’ obligations under the Note and Deed of Trust, as they were modified in 2010, are not impacted by the content of the recorded documents. See Sitton, 233 Ariz. at 221, 311 P.3d at 243 (“The obligation to pay, and the right to foreclose upon a failure to pay, was created by the note and the deed of trust – not other documents associated with closing.”). Plaintiffs have not and cannot show how any alleged misrepresentations are “material” to their choices, and therefore their claim under A.R.S. § 33-420 fails as a matter of law. 5. Plaintiffs’ TILA claim fails. Plaintiffs’ TILA claim alleges that Deutsche Bank (as the assignee of the original lender) is liable for failure to make required disclosures and inadequate disclosures under TILA, specifically 15 U.S.C. §§ 1635 and 1641. This claim fails and should be dismissed. a. Plaintiffs’ TILA claim is time-barred. Plaintiffs’ TILA claim is untimely. All actions for damages under TILA must be commenced within one year after the occurrence of the alleged violation. 15 U.S.C. § 1640(e); Meyer v. Ameriquest Mortgage Co., 342 F.3d 899, 902 (9th Cir. 2003) (affirming summary judgment in favor of the defendant where the TILA claim was commenced more than one year after the loan documents were signed). Case law provides that all purported disclosure violations under TILA occur, as a matter of law, at the time the contract is Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 11 of 13 - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 consummated. See King v. California, 784 F.2d 910, 915 (9th Cir. 1986) (clarifying that the statute of limitations runs from the “date of consummation of the transaction,” which is generally understood as the date on which the creditor lends the debtor the money). Plaintiffs closed the Loan in 2005. [FAC, ¶¶ 4-5.] As such, any claims that the original lender violated TILA, or that Deutsche Bank is liable as the assignee of the original lender, expired almost a decade ago. b. Plaintiffs fail to plead a plausible TILA violation. As the assignee of the original lender, Deutsche Bank can be liable for disclosure violations under TILA “only if the violation … is apparent on the face of the disclosure statement,” such as if the disclosure is “incomplete or inaccurate from the face of the disclosure statement” or the disclosure statement does not use the required terms. 15 U.S.C. § 1641(a). Here, Plaintiffs have not alleged how the disclosures were facially incomplete or inaccurate, nor how they did not contain the requisite language. Plaintiffs bare contention that they were not provided “accurate material disclosures” is not well-pled, and should not be accepted as true. [Exs. 1-5.] Nor should the Court accept as true Plaintiffs’ bare contentions that disclosures understated the annual percentage rate and finance charges with no allegations of how. [FAC, ¶ 179.] Nor are any facts alleged to support Plaintiffs’ theory that Deutsche Bank is impermissibly “pyramiding” late fees. [FAC, ¶ 196.] To sustain this theory, Plaintiffs would have to identify the late fees at issue and identify the code section or TILA regulation that prohibited whatever it is that Plaintiffs contend Deutsche Bank is doing that is illegal under the TILA. Plaintiffs have not done so despite having amended, so their TILA claim should now be dismissed with prejudice. Epstein, 83 F.3d at 1140. V. CONCLUSION For the foregoing reasons, Deutsche Bank requests this Court grant its Motion to Dismiss and dismiss Plaintiffs’ claims with prejudice. Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 12 of 13 - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sn el l & W ilm er L .L .P . L A W O F F IC E S O n e A ri zo n a C en te r, 4 0 0 E . V an B u re n , S u it e 1 9 0 0 P h o en ix , A ri zo n a 8 5 0 0 4 -2 2 0 2 6 0 2 .3 8 2 .6 0 0 0 DATED this 14th day of July, 2016. SNELL & WILMER L.L.P. By s/Gregory J. Marshall Gregory J. Marshall One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Attorneys for Defendant Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Capital 1 Inc., Trust 2006-NC2, Mortgage Pass-Through Certificates Series 2006-NC2 CERTIFICATE OF SERVICE I hereby certify that on July 14, 2016, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: Beth Findsen, Esq. Law Office of Beth K Findsen PLLC 7279 E Adobe Dr., Ste. 120 Scottsdale, AZ 85255 Email: beth@findsenlaw.com Attorney for Plaintiffs s/Debbie Shuta 24425063 Case 2:16-cv-01792-DLR Document 12 Filed 07/14/16 Page 13 of 13 EXHIBIT 1 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 1 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 2 of 60 EXHIBIT 2 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 3 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 4 of 60 EXHIBIT 3 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 5 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 6 of 60 EXHIBIT 4 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 7 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 8 of 60 EXHIBIT 5 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 9 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 10 of 60 EXHIBIT 6 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 11 of 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2525 EAST CAMELBACK ROAD THIRD FLOOR PHOENIX, ARIZONA 85016 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0192 Mark S. Bosco State Bar No. 010167 Leonard J. McDonald State Bar No. 014228 Attorneys for Movant 08-64747/1127044988 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA IN RE: Allen C. Taylor and Lynell Mann Taylor Debtors. _______________________________________ Wells Fargo Bank, NA dba America’s Servicing Company Movant, vs. Allen C. Taylor and Lynell Mann Taylor, Debtors; , Edward J. Maney, Trustee. Respondents. No. 2:08-bk-15116-GBN Chapter 13 MOVANT’S MOTION TO LIFT THE AUTOMATIC BANKRUPTCY STAY RE: Real Property Located at 2457 E. Ivy St. Mesa, AZ 85213 Movant hereby requests an order granting relief from the automatic stay of 11 U.S.C. 362(a), and to permit Movant to foreclose the lien of its Deed of Trust on real property owned by Debtors, by trustee’s sale, judicial foreclosure proceedings or the exercise of the power of sale, and to obtain possession and control of the real property. … Case 2:08-bk-15116-GBN Doc 40 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Main Document Page 1 of 4 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 12 of 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This motion is supported by the attached Memorandum of Points and Authorities, which is incorporated herein by this reference. DATED this 8th day of January, 2009. Respectfully submitted, TIFFANY & BOSCO, P.A. BY /s/ MSB # 010167 Mark S. Bosco Leonard J. McDonald Attorney for Movant MEMORANDUM OF POINTS AND AUTHORITIES 1. Allen C. Taylor and Lynell Mann Taylor filed a voluntary petition for protection under Chapter 13 of the Bankruptcy Code. Edward J. Maney was appointed Trustee of the bankruptcy estate. 2. Debtors have an interest in certain real property located in Maricopa County, Arizona, more particularly described as: Lot 42, RUSSEL MANOR, according to Book 163 of Maps, Page 22, records of Maricopa County, Arizona. 3. Debtors executed a Note secured by a Deed of Trust, dated November 16, 2005, recorded in the office of the Maricopa County Recorder’s Office. True copies of the Note and Deed of Trust are annexed as Exhibits "A" and "B", respectively, and made a part hereof by this reference. Movant is the Assignee of the Deed of Trust. 4. By virtue of the Note and Deed of Trust, Movant has a secured interest in the property described herein and a secured claim against Debtors. Movant may seek leave of Court to specify any further encumbrances against the Property at the time of the Preliminary and/ or Final Hearing hereon. Case 2:08-bk-15116-GBN Doc 40 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Main Document Page 2 of 4 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 13 of 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5. Debtors are in default on their obligation to Movant for which the property is security, and payments are due under the Promissory Note from and after May 1, 2008. Post-petition payments are due from and after October 28, 2008, as follows: 3 MONTHLY PAYMENTS AT $2,286.10 $ 6,858.30 (NOVEMBER 1, 2008-JANUARY 1, 2009) 2 LATE CHARGES AT $105.39 EACH $ 210.78 (NOVEMBER 16, 2008-DECEMBER 16, 2008) BANKRUPTCY ATTORNEY FEES & COSTS $ 950.00 TOTAL AMOUNT OF POST PETITION DEFAULT $8,019.08 Furthermore, a payment becomes due on February 1, 2009 and on the 1st day of every month thereafter, and a late charge becomes due on any payment not paid within fifteen (15) days from the date the monthly payment is due. 6. Debtor s are indebted to Wells Fargo Bank, NA dba America’s Servicing Company for the principal balance in the amount of $274,792.72, plus accruing interest, costs, and attorneys fees. 7. Further, Movant seeks relief for the purpose of foreclosing its mortgage against the Debtor’s interest in the real property located at 2457 E. Ivy St. , Mesa, AZ. The Movant further seeks relief in order to contact the Debtor by telephone or written correspondence regarding a potential Forbearance Agreement, Loan Modification, Refinance Agreement, or other Loan Workout/Loss Mitigation Agreement, and may enter into such agreement with Debtors. However, Movant may not enforce, or threaten to enforce, any personal liability against Debtors if Debtors' personal liability is discharged in this bankruptcy case. 8. Pursuant to the Note and Deed of Trust Movant is allowed to request this court to grant reasonable attorney’s fees and costs and allowing payment of Movant’s attorney’s fees and costs pursuant to 11 U.S.C. Section 506(b) which state as follows: To the extent that an allowed secured claim is secured by property value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim and any reasonable fees/costs, or charges provided for under the agreement which such claim arose. Case 2:08-bk-15116-GBN Doc 40 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Main Document Page 3 of 4 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 14 of 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CONCLUSION Movant requests that the court enter an order vacating the automatic stay of 11 U.S.C. Section 362(a) and Movant may immediately enforce and implement the order for relief from the automatic stay as to the debtors their bankruptcy estate, the property, and Movant; to allow Movant to foreclose the lien of its Deed of Trust or Mortgage; to evict debtors and/or successors of debtors and to obtain ownership, possession and control of the Property. DATED this 8th day of January, 2009. BY /s/ MSB # 010167 Mark S. Bosco Leonard J. McDonald 2525 East Camelback Road Ste. 300 Phoenix, Arizona 85016 Attorneys for Movant Case 2:08-bk-15116-GBN Doc 40 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Main Document Page 4 of 4 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 15 of 60 Case 2:08-bk-15116-GBN Doc 40-1 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit a Page 1 of 4 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 16 of 60 Case 2:08-bk-15116-GBN Doc 40-1 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit a Page 2 of 4 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 17 of 60 Case 2:08-bk-15116-GBN Doc 40-1 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit a Page 3 of 4 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 18 of 60 Case 2:08-bk-15116-GBN Doc 40-1 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit a Page 4 of 4 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 19 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 1 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 20 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 2 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 21 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 3 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 22 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 4 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 23 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 5 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 24 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 6 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 25 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 7 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 26 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 8 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 27 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 9 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 28 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 10 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 29 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 11 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 30 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 12 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 31 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 13 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 32 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 14 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 33 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 15 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 34 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 16 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 35 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 17 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 36 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 18 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 37 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 19 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 38 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 20 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 39 of 60 Case 2:08-bk-15116-GBN Doc 40-2 Filed 01/08/09 Entered 01/08/09 18:32:24 Desc Exhibit b Page 21 of 21 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 40 of 60 EXHIBIT 7 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 41 of 60 UNITED STATES BANKRUPTCY COURT Minute Entry FOR THE DISTRICT OF ARIZONA Matter: GEORGE B. NIELSEN JO-ANN STAWARSKIReporter / ECR: JAN HERNANDEZCourtroom Clerk: Bankruptcy Judge: Date / Time / Room: 13Chapter:2:08-bk-15116-GBNCase Number: ALLEN C & LYNELL MANN TAYLORDebtor: Hearing Information: MONDAY, APRIL 27, 2009 01:30 PM 7TH FLOOR #702 0.00 FINAL HEARING ON MOTION FOR RELIEF FROM STAY FILED BY WELLS FARGO BANK. R / M #: 40 / 0 ALLEN C TAYLOR, APPEARS PRO SE (T) LEONARD J. MCDONALD, ATTORNEY FOR WELLS FARGO BANK Appearances: Proceedings: THE HEARING OPENS WITH A DISCUSSION OF THE SERVICING AGREEMENT. MR. TAYLOR REITERATES THAT WELLS FARGO HAS NOT ESTABLISHED THAT THEY HAVE RIGHTS TO THE HOUSE OR THAT THEY HAVE STANDING. IT IS ADDED THAT THE I.R.S. HAS A LIEN ON THE PROPERTY. THE COURT EXPLAINS THAT NOTHING WOULD BE GAINED BY DENYING THE MOTION BECAUSE THE PROCESS WOULD JUST START ALL OVER AGAIN. CASE LAW SUPPORTS THAT THE SERVICER IS A PARTY IN INTEREST. THE DOCUMENTS HAVE SATISFIED THE COURT. IT IS ORDERED THAT THE STAY IS LIFTED. MR. MCDONALD TO DRAFT AN ORDER LIFTING THE STAY. THIS MATTER WILL MOVE TOWARD FORECLOSURE. 1.00 Page 1 of 1 04/28/2009 12:45:08PM Case 2:08-bk-15116-GBN Doc 77 Filed 04/27/09 Entered 04/28/09 12:45:34 Desc Main Document Page 1 of 1 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 42 of 60 EXHIBIT 8 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 43 of 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2525 EAST CAMELBACK ROAD SUITE 300 PHOENIX, ARIZONA 85016 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0192 Mark S. Bosco State Bar No. 010167 Leonard J. McDonald State Bar No. 014228 Attorneys for Movant 08-64747/1127044988 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA IN RE: Allen C. Taylor and Lynell Mann Taylor Debtors. _________________________________________ Wells Fargo Bank, NA dba America's Servicing Company Movant, vs. Allen C. Taylor and Lynell Mann Taylor, Debtors; Edward J. Maney, Trustee. Respondents. No. 2:08-bk-15116-GBN Chapter 13 O R D E R (Related to Docket # 40) RE: Real Property located at 2457 East Ivy Street Mesa, AZ 85213 This matter having come before the Court for a Preliminary Hearing on April 27, 2009, Movant appearing by and through its attorney, Tiffany & Bosco, P.A., Debtor s appearing by and through their counsel, pro se, and good cause appearing, IT IS HEREBY ORDERED that all stays and injunctions, including the automatic stays imposed by U.S. Bankruptcy Code 362(a) are hereby terminated as to Movant with respect to that certain ORDERED ACCORDINGLY. Dated: May 07, 2009 ________________________________________ GEORGE B. NIELSEN, JR U.S. Bankruptcy Judge ________________________________________ Case 2:08-bk-15116-GBN Doc 82 Filed 05/07/09 Entered 05/07/09 15:21:42 Desc Main Document Page 1 of 2 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 44 of 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 real property which is subject of a Deed of Trust dated November 16, 2005, and recorded in the office of the Maricopa County Recorder at wherein Wells Fargo Bank, NA dba America's Servicing Company is the current beneficiary and Allen C. Taylor and Lynell Mann Taylor have an interest in, further described as: Lot 42, RUSSEL MANOR, according to Book 163 of Maps, Page 22, records of Maricopa County, Arizona. IT IS FURTHER ORDERED that this Order vacating the automatic stay imposed by U.S. Bankruptcy Court Code 362(a) shall be binding and effective in the event the Debtors converts this case to another chapter under the U.S. Bankruptcy Code. DATED this day of , 2009. _________________________________________ JUDGE OF THE U.S. BANKRUPTCY COURT Case 2:08-bk-15116-GBN Doc 82 Filed 05/07/09 Entered 05/07/09 15:21:42 Desc Main Document Page 2 of 2 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 45 of 60 Notice Recipients District/Off: 0970−2 User: medinad Date Created: 5/7/2009 Case: 2:08−bk−15116−GBN Form ID: pdf004 Total: 4 Recipients of Notice of Electronic Filing: tr EDWARD J. MANEY susanh@maney13trustee.com TOTAL: 1 Recipients submitted to the BNC (Bankruptcy Noticing Center): db ALLEN C TAYLOR 2457 E IVY ST MESA, AZ 85213 jdb LYNELL MANN TAYLOR 2457 E IVY ST MESA, AZ 85213 aty MARK 1 BOSCO TIFFANY &BOSCO, P.A. 2525 EAST CAMELBACK ROAD SUITE 300 PHOENIX, AZ 85016 TOTAL: 3 Case 2:08-bk-15116-GBN Doc 82-1 Filed 05/07/09 Entered 05/07/09 15:21:42 Desc All dbtrs tr atty select pty: Notice Recipients Page 1 of 1 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 46 of 60 FORM ntcntry UNITED STATES BANKRUPTCY COURT DISTRICT OF ARIZONA In re: Case No.: 2:08−bk−15116−GBN ALLEN C TAYLOR 2457 E IVY ST MESA, AZ 85213 SSAN: xxx−xx−5831 EIN: Chapter: 13 LYNELL MANN TAYLOR 2457 E IVY ST MESA, AZ 85213 SSAN: xxx−xx−4541 EIN: Debtor(s) NOTICE OF ENTRY OF JUDGMENT OR ORDER You are hereby notified that on May 7, 2009, this Court entered the enclosed judgment or order on the docket for the above−entitled proceeding. I hereby certify that on this date a copy of this notice and the judgment or order were sent to the Bankruptcy Noticing Center for mailing to the parties and the U.S. Trustee. Date: May 7, 2009 Address of the Bankruptcy Clerk's Office: U.S. Bankruptcy Court, Arizona 230 North First Avenue, Suite 101 Phoenix, AZ 85003−1727 Telephone number: (602) 682−4000 www.azb.uscourts.gov Clerk of the Bankruptcy Court: Brian D. Karth Case 2:08-bk-15116-GBN Doc 82-2 Filed 05/07/09 Entered 05/07/09 15:21:42 Desc Notc of Entry of Jdgmt or Ordr Page 1 of 1 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 47 of 60 Notice Recipients District/Off: 0970−2 User: medinad Date Created: 5/7/2009 Case: 2:08−bk−15116−GBN Form ID: ntcntry Total: 4 Recipients of Notice of Electronic Filing: tr EDWARD J. MANEY susanh@maney13trustee.com TOTAL: 1 Recipients submitted to the BNC (Bankruptcy Noticing Center): db ALLEN C TAYLOR 2457 E IVY ST MESA, AZ 85213 jdb LYNELL MANN TAYLOR 2457 E IVY ST MESA, AZ 85213 aty MARK 1 BOSCO TIFFANY &BOSCO, P.A. 2525 EAST CAMELBACK ROAD SUITE 300 PHOENIX, AZ 85016 TOTAL: 3 Case 2:08-bk-15116-GBN Doc 82-3 Filed 05/07/09 Entered 05/07/09 15:21:42 Desc Notc of Entry of Jdgmt or Ordr: Notice Recipients Page 1 of 1 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 48 of 60 EXHIBIT 9 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 49 of 60 1 UNITED STATES BANKRUPTCY COURfILED 2 DISTRICT OF ARIZONA 3 i SH MAY -I I A 1@ SI In re Chapter 13 4 Allen C Taylor Case No@ 2: -@6TCY Lynell Mann Taylor DISTRICT OF ARIZONA 6 Debtor(s)) 7 0?- 9 10 11 12 MOTION TO WITHDRAW FROM BANKRUPTCY 13 DEBTORS request that your honor grant DEBTORS' MOTION TO WITHDRAW FROM BANKRUPTCY. 14 15 Dated Lois 4 day of April, 2009 16 17 18 Allen C Taylor 19 20 21 22 COPY of the foregoing mailed 23 April 4, 2009 to: 24 Edward J Maney PC Box 10434 25 Phoenix, AZ B5064-0434 Trustee 26 BY Adam Albright 27 28 MOTION TO WTTHDRAW BANKRUPTCY - I Case 2:08-bk-15116-GBN Doc 83 Filed 05/07/09 Entered 05/08/09 13:49:36 Desc Main Document Page 1 of 1 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 50 of 60 EXHIBIT 10 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 51 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 52 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 53 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 54 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 55 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 56 of 60 EXHIBIT 11 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 57 of 60 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 58 of 60 EXHIBIT 12 Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 59 of 60 Recorded Document Search Detail View Cart | Contact Us PNG - Select to view one page at a time PDF - Select to view all the pages View Image Recording Information Name(s) Document Code(s) DEUTSCHE BANK NATIONAL TRUST COMPANY MORGAN STANLEY CAPITAL I INC TRUST 2006 NC2 NEW CENTURY MORTGAGE CORPORATION TAYLOR ALLEN TAYLOR LYNELL M ASSIGNMNT Recording Date/Time Recording Number Pages 3/30/2012 1:55:09 PM 20120267813 2 View Unofficial Documents by clicking the number above. Viewing Options New Search Buy Document Page 1 of 1Recorded Document Search Detail 7/8/2016http://recorder.maricopa.gov/recdocdata/GetRecDataDetail.aspx?rec=20120267813&suf=&... Case 2:16-cv-01792-DLR Document 12-1 Filed 07/14/16 Page 60 of 60