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Trebas v. Guild Mortgage Co.

United States District Court, D. Montana, Missoula Division

July 31, 2018

WILLIAM F. TREBAS, JR., Plaintiff,
v.
GUILD MORTGAGE COMPANY, ALLY BANK, A UTAH CORPORATION, GMAC CAPITAL TRUST 1, and DOES 1 through 10 inclusive, Defendants.

          ORDER, AND FINDINGS AND RECOMMENDATION

          Jeremiah C. Lynch United States Magistrate Judge.

         Before the Court is Defendant Ally Bank's Fed.R.Civ.P. 56 motion for summary judgment. For the reasons discussed, the Court recommends the motion be granted.

         Also before the Court is Ally Bank's motion in limine. Because the Court recommends this action be dismissed, the motion in limine is denied as moot.

         I. Background

         In 2012, Plaintiff William Trebas, Jr., appearing pro se in this action, obtained a loan in the amount of $492, 000 from Guild Mortgage Company (“Guild”). The loan was secured by a deed of trust that Trebas granted to Guild which encumbers real property he owns in Columbia Falls, Montana.

         In his allegations Trebas recognizes the existence of a written assignment to Ally Bank of the rights under the deed of trust. But he claims the assignment only purports to transfer those rights to Ally Bank.

         At some point Trebas failed to make the required monthly payments on the loan, and he defaulted on the loan. In 2017, a notice of trustee sale was recorded, and on May 5, 2017, Ally Bank acquired ownership of Trebas's property by purchasing it at the trustee's sale.

         Trebas commenced this civil action challenging Ally Bank's factual and legal authority to claim, and to represent to him, that it is the current beneficiary under the deed of trust with the authority to direct the trustee's sale of Trebas's property. Trebas asserts his original promissory note was not indorsed, negotiated, and transferred to Ally Bank. Thus, he contends that legally Ally Bank is not the holder of the promissory note and is not the beneficiary under the deed of trust.

         Each of Trebas's claims for relief advanced in his Amended Complaint is predicated upon his contentions that Ally Bank lacks the legal authority (1) to enforce rights as a beneficiary under the deed of trust, including the power of sale, (2) to enforce compliance with the promissory note, or (3) to foreclose upon and acquire Trebas's real property. In his first cause of action Trebas alleges that Ally Bank is liable for fraud for falsely misrepresenting to him that it is the beneficiary under the deed of trust and in possession of all the beneficiary's associated rights and powers. In his second cause of action Trebas asserts Ally Bank's conduct violated provisions of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., through the same allegedly deceptive misrepresentations to Trebas about its legal rights, all in violation of 15 U.S.C. § 1692e(2)(A) and (10). Trebas's third and fourth causes of action for intentional infliction of emotional distress and declaratory judgment similarly claim that Ally Bank wrongfully represented to him that it was the beneficiary under the deed of trust entitled to invoke the power of sale rights, thereby causing damages to Trebas and requiring the Court to declare the sale of his property to Ally Bank as void.

         Trebas's claims under the Fair Debt Collection Practices Act invoke the Court's federal question jurisdiction as provided in 28 U.S.C. § 1331. And pursuant to 28 U.S.C. § 1367, the Court possesses supplemental jurisdiction over Trebas's claims advanced under Montana law.

         II. Applicable Law

         A. Summary Judgment

         Federal Rule of Civil Procedure 56(a) entitles a party to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In deciding a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all justifiable inferences in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir. 2007).

         B.Montana ...


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