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Christensen v. PennyMac Loan Servs., LLC

United States District Court, D. Minnesota

December 19, 2013

EUGENE D. CHRISTENSEN, Plaintiff,
v.
PENNYMAC LOAN SERVICES, LLC, et.al., Defendant

Order Filed: December 3, 2013

Page 1037

Eugene D. Christensen, an individual, Plaintiff, Pro se, Worthington, MN.

For PennyMac Loan Services, LLC, as successor in interest to Citi Mortgage, Inc., Mortgage Electronic Registration Systems, Inc., MERS, and all other persons unknown claiming any right, title, estate, interest, or lien in the real estate described in the complaint herein, Defendants: Benjamin E Gurstelle, Mark G Schroeder, LEAD ATTORNEYS, Briggs & Morgan, PA, Mpls, MN.

OPINION

Page 1038

ORDER

Susan Richard Nelson, United States District Judge.

This matter is before the Court on the Report and Recommendation of United States Magistrate Judge Janie S. Mayeron dated December 3, 2013. No objections have been filed to that Report and Recommendation in the time period permitted.

Based on the Report and Recommendations of the Magistrate Judge and upon all of the files, records and proceedings herein, the Court now makes and enters the following Order.

IT IS HEREBY ORDERED that:

(1) Defendants' Amended Motion to Dismiss [Docket No. 5] is GRANTED.
(2) This matter is dismissed with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, United States Magistrate Judge.

This matter came before the undersigned on defendants' Amended Motion to Dismiss [Docket No. 5]. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(A),

Page 1039

(B) and Local Rule 72.1(c). Pursuant to this Court's Order dated August 9, 2013 [Docket No. 11] this Report and Recommendation is being issued based on the parties' written submissions.

Plaintiff seeks to invalidate the foreclosure of the mortgage on his home, and to enjoin the redemption period while his suit is pending. Plaintiff asserts three claims against defendants: (1) negligent misrepresentation; (2) promissory estoppel; and (3) a violation of the Minnesota Residential Mortgage Originator and Servicer Licensing Act, Minn. Stat. § 58.13. For the reasons below, the Court recommends that defendants' Motion to Dismiss be granted and plaintiff's claims be dismissed with prejudice. [1]

I. BACKGROUND

A. Plaintiff's Complaint

On October 23, 2012, plaintiff, who is pro se, sued PennyMac Loan Services, LLC (" PennyMac" ) and Mortgage Electronic Registration Systems, Inc. (" MERS" ) (collectively " defendants" ) in state court. Notice of Removal, Ex. B (Complaint) [Docket No. 1-1]. Defendants removed the suit to Federal District Court on November 28, 2012, pursuant to 28 U.S.C. § 1332(a). Notice of Removal, p. 2 [Docket No. 1].

The facts as alleged in plaintiff's Complaint are as follows. Plaintiff entered into a residential mortgage and note with PennyMac on August 24, 2007, the successor in interest of the loan by CitiMortgage, for property located in Worthington, Minnesota. Complaint, ¶ ¶ 5, 8.[2] Plaintiff's monthly mortgage payment was $932.41. Id., ¶ 7. In July, 2009, plaintiff applied for a loan modification with CitiMortgage. Id., ¶ 9. Plaintiff alleged that CitiMortgage advised him to stop making his mortgage payments and allow the loan to go into default while the loan modification was being processed. Id., ¶ 10. Neither CitiMortgage

Page 1040

nor PennyMac informed plaintiff that his mortgage was being serviced by PennyMac, not CitiMortgage. Id., ¶ 12. Until PennyMac's counsel told plaintiff that PennyMac was beginning foreclosure proceedings, plaintiff had not been notified that his mortgage payments were late. Id., ¶ 13. Plaintiff contacted PennyMac's counsel, advising counsel that a loan modification was in process, or that he did not know the status of his requested loan modification to CitiMortgage. Id., ¶ 14. Plaintiff also contacted PennyMac and he was offered the chance to submit another loan modification. Id., ΒΆ 15. Plaintiff was also advised that he qualified for a loan modification under the Making Homes Affordable Act and that he could not make payments on his ...


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