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Roe v. Aegis Wholesale Corp.

United States District Court, D. Colorado

September 24, 2014

KELLY ROE, Plaintiff,
v.
AEGIS WHOLESALE CORPORATION, AEGIS MORTGAGE CORPORATION, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., CHASE BANK USA, N.A., JPMORGAN CHASE BANK, N.A., FEDERAL HOME LOAN MORTGAGE CORPORATION, and ALL UNKNOWN PERSONS WHO CLAIM ANY INTEREST IN THE SUBJECT MATTER OF THIS ACTION, Defendants.

ORDER

KATHLEEN M. TAFOYA, Magistrate Judge.

This matter is before the court on Defendants Mortgage Electronic Registration Systems, Inc. ("MERS"); Chase Bank USA, N.A. ("Chase Bank"); JPMorgan Chase Bank, N.A. ("JPMorgan Chase"), and Federal Home Loan Mortgage Corporation ("Freddie Mac's") "Motion to Dismiss Plaintiff's Amended Complaint."[1] (Doc. No. 15, filed Nov. 22, 2013.) For the following reasons, Defendants' Motion to Dismiss is GRANTED.

FACTUAL BACKGROUND

The following facts are taken from Plaintiff's Amended Complaint (Doc. No. 6, filed in state court on Oct. 18, 2013) and the parties' briefing with respect to this Order.

On March 8, 2005, Plaintiff executed a promissory note in favor of Defendant Aegis Wholesale Corporation, the "Lender, " in the principal amount of $328, 000.00 (the "Note"). (Am. Compl. ¶ 2; Ex. P-1.) The Note provided that "[Plaintiff] understands that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the Note Holder.'" ( Id., Ex. P-1.) The Note provides further that "[Plaintiff] will make my monthly payments at P.O. Box 422039, Houston, TX 77242-4239 or at a different place if required by the Note Holder." ( Id. )

As security for the Note, Plaintiff executed a Deed of Trust on her residence at 900 South County Road 21, Berthoud, Colorado 80513. ( Id. ¶ 2; Ex. P-2.) The Deed of Trust provides:

The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender's successors and assigns) and the successors and assigns of MERS. This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note, and (ii) the performance of Borrower's covenants and agreements as the nominee.

(Am. Compl., Ex. P-2, Def. E.) The Deed of Trust also provides:

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 the Borrower. A sale might result in a change in the entity (known as the "Loan Servicer") that collects Periodic Payments due under the Note and this Security Instrument, and Applicable Law. There also might be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written notice of the change which will state the name and address of the new Loan Servicer, the address to which payments should be made and any other information RESPA [Real Estate Settlement Practices Act] requires in connection with a notice of transfer of servicing.

( Id. ¶ 20.)

Plaintiff alleges that in August 2007, Defendants Aegis Wholesale Corporation and Aegis Mortgage Corporation went bankrupt and, in March 2008, these Defendants ceased their operations in Colorado. (Am. Compl. ¶ 15.) According to Plaintiff's allegations, there have been no publicly recorded transfers or assignments of either the Note or the Deed of Trust. ( Id . ¶ 16.)

On May 12, 2008, Plaintiff executed a Quit Claim Deed, as grantor, to the Roe Family Trust, a revocable living trust for which plaintiff and her husband, Christopher Roe, are the sole co-trustees. ( Id. ¶ 18; Ex. P-3.)

Subsequent to the execution of the Note and Deed of Trust, Plaintiff was periodically notified via various "service transfer notices" that the servicing rights had been reassigned. ( Id. ¶ 24b.) Since August 2005, Defendant JPMorgan Chase Bank c/o Chase Home Finance, LLC was the loan servicer and had been collecting monthly payments from Plaintiff. ( Id. ¶ 24c.)

In early 2012, Plaintiff sought to refinance the Note with JPMorgan Chase in order to obtain a lower interest rate and monthly payments. ( Id. ¶ 29.) Plaintiff alleges that, despite being "fully approved by [JPMorgan Chase] and Freddie Mac, " her attempt to refinance failed because JPMorgan Chase refused to provide information regarding the identity of the Note Holder or "adequate assurances that the duly canceled Note and all relevant indorsements/assignments would be provided to the public trustee to release the Deed of Trust upon execution of the refinance paperwork." ( Id. ¶ 29a.) More specifically, even though JPMorgan Chase and the title company required the identity of the Note Holder, JP Morgan Chase allegedly refused to provide Plaintiff with the identity of the Note Holder and refused to indemnify Plaintiff against any possible imperfect recordation of the release of the original Deed of Trust and Note. ( Id. ¶ 29b.)

From early 2012 through April 2013, Plaintiff sought information from JPMorgan Chase and Freddie Mac regarding the identity of the then-current Note Holder, as well as adequate assurances that, upon loan payoff, the underlying debt would be discharged and the Note canceled. ( Id. ¶ 31.) First, on March 14 2012, Plaintiff sent JPMorgan Chase a letter requesting, among other things, the (1) name, address, and phone number of the current Note Holder, (2) a certified copy of the Note including all indorsements in the possession of the current Note Holder, and (3) a certified copy of any written assignment(s) of the note by the Lender through its successors or assigns to the current Note Holder. (Am. Compl., Ex. P-4.)

On March 28, 2012, JPMorgan Chase sent Plaintiff a letter informing Plaintiff that Freddie Mac was the "investor" on the loan. (Am. Compl., Ex. P-5 at 1.) JPMorgan Chase also attached an original copy of the Note, which included an allonge (hereinafter the "Aegis Allonge") containing two indorsements-one from Aegis Wholesale Corporation to Aegis Mortgage Corporation, and a second blank indorsement from Aegis Mortgage Corporation. ( Id. at 3-9.)[2]

On April 13, 2012, Plaintiff sent JPMorgan Chase an additional letter. (Am. Compl. ¶ 31d; Ex. P-6.) In that letter, Plaintiff asserted that JPMorgan Chase did not provide her with adequate assurances that it or Freddie Mac would be able to discharge the underlying debt evidenced by the Note and release the Deed of Trust upon payoff because JPMorgan Chase did not provide a certified copy of the original Note including all indorsements. (Am. Compl., Ex. P-6.) Plaintiff alleges that she never received a response to this letter. (Am. Compl. ¶ 31d.)

On March 1, 2013, Plaintiff sent JPMorgan Chase a letter similar to her April 13, 2012 letter. (Am. Compl., Ex. P-7.) On March 19, 2013, JPMorgan Chase responded to Plaintiff with a letter stating that it, JPMorgan Chase, was the "investor" on the loan. (Am. Compl., Ex. P-8 at 1.) JPMorgan Chase also attached two copies of the Note. ( Id. at 4-18.) The first copy of the Note featured the Aegis Allonge indorsed in blank, as well as a second allonge (hereinafter the "Chase Allonge") stating that it was an "[a]llonge to one certain Mortgage Note dated 3/8/2005 in favor of Chase Bank USA, N.A., executed by Kelly A. Roe." ( Id. at 10-11.) The second copy of the Note featured only the Aegis Allonge; however, unlike the version of the Aegis Allonge attached to the first copy of the Note, the Aegis Allonge attached to the second copy of the Note was explicitly indorsed to Chase Bank USA, N.A. ( Id. at 18.)

On March 30, 2013, Plaintiff sent two more letters, to Freddie Mac and JPMorgan Chase, respectively. (Am. Compl., Ex. P-9 & P-10.) Plaintiff's letter to JPMorgan Chase demanded all principal and interest paid to JPMorgan Chase from August 22, 2005 to date based on JPMorgan Chase's alleged failure to provide adequate assurances that JPMorgan Chase was the Note Holder and had the right to collect payments on the Note. (Am. Compl., Ex. P-9.) Plaintiff's letter to Freddie Mac requested adequate assurances that Freddie Mac has the necessary paperwork and authority to discharge the underlying debt and release the Deed of Trust upon payoff. (Am. Compl., Ex. P-10.)

On March 19, 2013, JPMorgan Chase responded to Plaintiff's first March 30, 2013 letter with a letter stating that the "investor" on the loan was Freddie Mac. (Am. Compl., Ex. P-11 at 1.) This letter attached a copy of the Note featuring the Aegis Allonge indorsed in blank. ( Id. at 11.) Freddie Mac allegedly did not respond to Plaintiff's second March 20, 2013 letter.[3] (Am. Compl. ¶ 32.)

Four days later, on April 12, 2013, JPMorgan Chase sent Plaintiff a letter stating "[o]ur understanding is that this loan is a valid and legally enforceable financial obligation with Chase." (Am. Compl., Ex. P-12 at 1.) JPMorgan Chase attached a copy of the Note featuring the Aegis Allonge indorsed to Chase Bank USA, N.A. and the Chase Allonge featuring a blank indorsement. ( Id. at 10-11.)

Plaintiff alleges that before she filed her original Verified Complaint in this case on July 26, 2013 ( see Doc. No. 5 [Orig. Compl.]), Freddie Mac claimed on its website that it had been the "owner" of the Note since May 31, 2005 (Am. Compl. ¶ 33). Plaintiff alleges that, after her Verified Complaint was filed, JPMorgan Chase and Freddie Mac asserted that Freddie Mac is the current "owner/investor" of the Note and that such ownership transferred to Freddie Mac at some point after March 2012, through the blank indorsement on the Chase Allonge. ( Id. ¶ 35.)

PROCEDURAL HISTORY

Plaintiff initiated this lawsuit by filing her original Verified Complaint in Larimer County District Court on July 26, 2013. ( See Orig. Compl.) Plaintiff subsequently filed her Amended Complaint on October 18, 2013. ( See Am. Compl.) Plaintiff's Amended Complaint asserts ten claims for relief: five claims for declaratory judgment, pursuant to the Uniform Declaratory Judgments Law, Colo. Rev. Stat. § 13-51-101 et seq., and Colo. R. Civ. P. 57(g); and five additional claims for interpleader, fraud, breach of contract by anticipatory repudiation, unjust enrichment, and a preliminary injunction, respectively. ( See id. )

Defendants removed to this court on November 7, 2013 ( see Not. Removal, Doc. No. 1) and then filed their Motion to Dismiss on November 22, 2013 ( see Mot. Dismiss.) Plaintiff filed a Motion to Remand on December 2, 2013, wherein she also requested an extension of 30 days to respond to Defendants' Motion to Dismiss in the event that her request for remand was denied. ( See Doc. No. 16.) Chief District Judge Marcia S. Krieger denied Plaintiff's Motion to Remand on January 27, 2014 (Order, Doc. No. 22) and Plaintiff's Response to Defendants' Motion to Dismiss was filed on February 7, 2014 ...


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