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Sorem v. Bank of New York Mellon

United States District Court, Eighth Circuit

August 29, 2013

Wayne Sorem and Bonnie Sorem, Plaintiffs,
v.
The Bank of New York Mellon f/k/a the Bank of New York as Trustee for The Certificateholders of The Cwabs, Inc., Asset-Backed Certificated, Series 2005-5; Wilford, Geske & Cook, P.A.; and also all other persons, unknown claiming any right, title, estate, interest, or lien in the real estate described in the complaint herein, Defendants.

William B. Butler, Esq., Butler Liberty Law, LLC, counsel for Plaintiffs.

Andre T. Hanson, Esq., and Sparrowleaf Dilts McGregor, Esq., counsel for Defendant The Bank of New York Mellon.

David R. Mortensen, Esq., and Michael R. Sauer, Esq., counsel for Wilford, Geske & Cook, PA.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

This matter is before the Court on an Amended Motion to Dismiss brought by Defendant Wilford, Geske & Cook, PA[1] ("Wilford") (Doc. No. 27) and a Motion to Dismiss Amended Complaint brought by The Bank of New York Mellon ("BNYM") (Doc. No. 29). For the reasons set forth below, the Court grants the motions to dismiss. This matter is also before the Court on a Motion to Remand (Doc. No. 15) and a Motion to Withdraw as Counsel (Doc. No. 45) brought by Plaintiffs Wayne Sorem and Bonnie Sorem (together, "Plaintiffs"). For the reasons set forth below, the Court denies the Motion to Remand and grants the Motion to Withdraw as Counsel.

BACKGROUND

Plaintiffs are loan borrowers who executed a note and mortgage with respect to their home in Otter Tail County, Minnesota. (Doc. No. 26 ("Second Am. Compl.") ¶¶ 1, 5.) On May 12, 2005, Plaintiffs executed a promissory note in favor of Countrywide Home Loans, Inc. ("Countrywide") and delivered a mortgage in favor of Mortgage Electronic Registration Systems ("MERS"). ( Id. ¶ 5.) BNYM securitized the loan into a mortgage-backed securitization entitled the Cwabs, Inc., Asset-Backed Certificates, Series 2005-5. ( Id. ¶ 9 & Ex. 4.)

On March 4, 2011, MERS assigned its interest in the mortgage to BNYM. (Second Am. Compl. ¶ 7 & Ex. 2.) The assignment was executed by Mercedes Gonzalez Judilla as Assistant Secretary for MERS. ( Id. ) On March 14, 2011, Wilford executed and recorded a Notice of Pendency and Power of Attorney ("POA"). ( Id. ¶ 17.) The POA was executed by James A. Geske of Wilford as attorney-in-fact for Countrywide and BNYM. ( Id. Ex. 5.) In November of 2011, BNYM, through Wilford, noticed a Sherriff's Sale for the property, and the sale was conducted on December 1, 2011. ( Id. ¶ 21 & Ex. 6.) Wilford, on behalf of BNYM, appeared at the Sheriff's Sale and purchased the home by bidding $120, 440.36; the debt owed to BNYM. ( Id. ) On December 28, 2011, Wilford, on behalf of BNYM, filed a complaint in state court to evict Plaintiffs, and Wilford prosecuted the eviction. ( Id. ¶¶ 27, 28.)

On December 19, 2012, more than one year after the Sheriff's Sale, Plaintiffs commenced this action in Otter Tail County District Court. (Doc. No. 1, Ex. 1.)[2] Defendant BNYM, with the consent of Wilford, removed the action to this Court. (Doc. No. 1.) On April 11, 2012, Plaintiffs filed a Second Amended Complaint which asserts five causes of action: (1) Determination of Adverse Claims, Minn. Stat. § 559.01;

(2) Declaratory Judgment, Minn. Stat. § 555.01, et seq.; (3) Penalties for Deceit or Collusion, Minn. Stat. § 481.07; (4) Negligence Per Se; and (5) Slander of Title. (Second Am. Compl. ¶¶ 30-56.) Plaintiffs' claims are based on two legal theories: (1) that the foreclosure was procedurally defective because there were unrecorded assignments and POAs ( see id. ¶¶ 11, 18, 21, 22 & 28); and (2) that the signatories on several of the foreclosure related mortgage instruments did not have legal authority to execute the instruments ( id. ¶¶ 8, 19, 21 & 28). Plaintiffs contend that they remain the owners of the property because the sale was void. ( Id. ¶ 29.)

Defendants now move to dismiss all of Plaintiffs' claims. Plaintiffs also move to remand and to withdraw their current attorney. The Court considers the pending motions below.

DISCUSSION

I. Legal ...


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