United States District Court, D. Montana, Missoula Division
DAVID P. KING, JR., Plaintiff,
LSF9 MASTER PARTICIPATION TRUST, Defendant.
ORDER, AND FINDINGS AND RECOMMENDATION
Jeremiah C. Lynch, United States Magistrate Judge.
the Court is the Fed.R.Civ.P. 12(c) motion for judgment on
the pleadings filed by Defendant U.S. Bank, N.A., as Trustee
for LSF9 Master Participation Trust (“U.S.
Bank”). Also before the Court is Plaintiff David King,
Jr.'s subsequent Fed.R.Civ.P. 15 motion for leave to file
an amended complaint. For the reasons discussed, the Court
grants King's motion to amend and, therefore, recommends
U.S. Bank's motion be denied with leave to renew.
December 15, 2017, King commenced this action by filing his
complaint. He was appearing in this action and prosecuting
his claims pro se at that time.
resides on his private property in Darby, Montana, which he
purchased in approximately 2001. He later commenced
construction of a new home on the property, and to do so he
obtained a construction loan secured by a deed of trust
encumbering his real property. Due to construction
complications and cost overruns, King refinanced the
construction loan and the balance on the debt grew. The new
loan and promissory note that is apparently the subject of
this action was originally stated as a loan in the amount of
apparently was not able to continue making the required loan
payments after December, 2008. By March, 2009, the trustee on
the deed of trust sought to foreclose and sell King's
property, but the foreclosure did not occur.
March, 2011, King filed for bankruptcy. At that time OneWest
Bank, FSB asserted it was the secured creditor relative to
King's promissory note.
September, 2016, King received a notice indicating that LSF9
Master Participation Trust had become the owner of the
subject loan. But, at the same time, King had been informed
that Fannie Mae held ownership of the subject promissory
King's bankruptcy proceedings OneWest and Fannie Mae
eventually disavowed ownership of King's promissory note.
LSF9 Master Participation Trust remained as the purported
owner of the note.
through this action King asserts LSF9 Master Participation
Trust is not the owner or holder of the promissory note that
King signed. He believes the actual creditor on the
promissory note is OneWest Bank. Consequently, King's
original complaint requests a declaratory judgment
establishing that LSF9 Master Participation Trust is not the
“Note Holder”, is not entitled to receive loan
payments, and does not possess the rights to enforce either
the promissory note or the deed of trust. He further alleges
LSF9 Master Participation Trust has falsely claimed ownership
of the promissory note, allegedly in violation of federal law
at 15 U.S.C. § 1602(g), and that it provided him with an
inaccurate address for its business, allegedly in violation
of 15 U.S.C. § 1641(g). Thus, he also requests an award
of compensatory and punitive damages.
response to King's complaint U.S. Bank, as Trustee for
LSF9 Master Participation Trust, filed a Fed.R.Civ.P. 12(c)
motion for judgment on the pleadings. In substance, it argues
that the existing transaction documents of which the Court
can take judicial notice establish that the creditor rights
under King's promissory note have been assigned to LSF9
Master Participation Trust. And it argues the federal
statutes on which King relies do not provide him with a legal
cause of action. Therefore, it requests the Court dismiss
3, 2018, King filed a Notice of Appearance reflecting that he
retained legal counsel to represent him in this action. On
that same date King's new counsel filed a Motion for
Leave to File a First Amended Complaint under authority of
proposed amended complaint, as later revised and resubmitted
to the Court on May 30, 2018 (doc. 36-2), contains many of
the same factual allegations set forth in King's original
complaint. King asserts the chain of documents allegedly
assigning ownership of the promissory note to LSF9 Master
Participation Trust is defective.
proposed amended complaint advances various legal claims for
relief predicated primarily upon his theory that LSF9 Master
Participation Trust, contrary to its representations to King,
is not the current owner of King's promissory note, and
does not have the authority to enforce either the note or the
related deed of trust. King's proposed claims assert LSF9
Master Participation Trust is liable for negligent
misrepresentation, constructive fraud, unfair and deceptive
practices, and for violations of the Fair Debt Collection