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Falchook v. BAC Home Loans Servicing, LP

United States District Court, E.D. North Carolina, Western Division

March 14, 2014

MARK A. FALCHOOK; DEANNA JONES FALCHOOK, Plaintiffs,
v.
BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING, LP; BANK OF AMERICA, N.A.; MERSCORP, INC. a/k/a MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; COUNTRYWIDE BANK FSB, INC.; and JORGE SANTANA, Defendants.

ORDER

JAMES C. FOX, District Judge.

This matter is before the court on the Motion to Dismiss the Amended Complaint [DE-7] filed by BAC Home Loans Servicing, LP, FKA Countrywide Home Loans Servicing, LP; Bank of America, N.A.; MERSCORP, Inc. a/k/a Mortgage Electronic Registration Systems, Inc.[1]; Countrywide Bank FSB, Inc.; and Jorge Santana (hereinafter "Defendants"). The issues have been fully briefed and are now ripe for ruling. For the reasons set forth below, the court will ALLOW Defendant's Motion to Dismiss the Amended Complaint as to the claims against Defendant Jorge Santana. Additionally, Defendants' Motion to Dismiss the Amended Complaint is ALLOWED as to Count Nine, and the court DECLINES to exercise supplemental jurisdiction over the remainder of the claims against Defendants.

I. STATEMENT OF THE CASE

On or about September 27, 2012, Mark A. Falchook and Deanna Jones Falchook (hereinafter "Plaintiffs") filed this action in the Superior Court of Wake County, North Carolina. Notice of Removal [DE-1], pp. 1-2. Plaintiffs filed a Petition for Temporary Restraining Order, seeking an order prohibiting Defendants from conducting a foreclosure sale of the real property located at 1119 Grogans Mill Drive, Cary, North Carolina on or about September 27, 2012. Id. at p. 2. Plaintiffs' Petition for Temporary Restraining Order was granted, and thereafter, the parties entered into a joint stipulation to stay the pending foreclosure sale during the pendency of the litigation. Id.

On or about December 11, 2012, Defendants filed an Answer and Affirmative Defenses. Id. at p. 2. Plaintiffs filed an Unopposed Motion for Leave to File an Amended Complaint on or about February 7, 2013.[2] Id. at p. 3. On March 6, 2013, the motion was granted.[3] Id. The next day, Defendants filed a Notice of Removal to this court. [DE-1.]

In this court, on March 19, 2013, Defendants filed a Motion to Dismiss the Amended Complaint. [DE-7.] In their motion, Defendants contend that they are entitled to dismissal pursuant to Rules 12(b)(6), 9(b), 8(a), 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure. Plaintiffs filed an Opposition [DE-10], to which Defendants have filed a Reply (DE-13].[4]

II. STATEMENT OF THE FACTS

The facts, as alleged by Plaintiffs, are as follows: on February 18, 2008, Plaintiffs executed a thirty-year adjustable rate mortgage note (hereinafter the "Note"). Am. Compl. ¶ 15. The Note was for $693, 344.00 at 7% annual interest for monthly installments of $4, 612.83 on Plaintiffs' home, which is located at 1119 Grogans Mill Drive in Cary, North Carolina. Id. Also on February 18, 2008, a Deed of Trust was recorded with the Wake County Register of Deeds. Id. at ¶ 16. The Deed of Trust identified Countrywide Bank, FSB as lender, MersCorp, Inc. a/k/a Mortgage Electronic Registration Systems, Inc. as "nominee for Lender and Lender's successor's and assigns... [and as a] beneficiary under [the instrument], " and Trustee Services of Carolina, LLC as Trustee. Id.

On or about January 11, 2010, an Appointment of Substitute Trustee was executed. Id. at ¶ 25. In the Appointment of Substitute Trustee, BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing, LP is named as the Holder of the Note, which is secured by the Deed of Trust and substitutes Wendy Cole, Matressa Morris, or Nationwide Trustee Services, Inc. as successor trustees to Trustee Services of Carolina, LLC. Id.

A Notice of Hearing on Foreclosure of Deed of Trust was filed with the Wake County Clerk of Court on or about July 5, 2010. Am. Compl. ¶ 26. On June 11, 2012, MersCorp, Inc. a/k/a Mortgage Electronic Registration Systems, Inc. assigned the Note and Deed of Trust to Bank of America N.A. Id. at ¶ 23.

III. DISCUSSION

A. Motion to Dismiss Defendant Santana for Lack of Personal Jurisdiction

Defendant Santana argues that he should be dismissed because there is no basis for this court to exercise personal jurisdiction over him. Defs' Mt. to Dismiss, pp. 8-11. Specifically, Defendant Santana contends that Plaintiffs do not allege that he is a resident of North Carolina, and the only alleged contacts he had with ...


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