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Ilar v. Wells Fargo Bank, N.A.

United States District Court, E.D. Tennessee, Knoxville Division

December 4, 2014

JAMES ILAR, and KRISTI ILAR, Plaintiffs,
WELLS FARGO BANK, N.A., et al., Defendants.


PAMELA L. REEVES, District Judge.

Plaintiffs filed Civil Action No. 3:12-CV-304 against defendants for wrongful foreclosure, alleging that "defendants are attempting to seize their property through fraud." Plaintiffs allege causes of action for declaratory judgment, unjust enrichment, and violation of the Fair Debt Collection Practices Act. This matter is before the court on defendants' motion for summary judgment [R. 27], to which plaintiffs have responded [R. 45]. Because plaintiffs' claims are barred by the applicable statutes of limitation, defendants' motion for summary judgment will be granted, and plaintiffs' action against defendants dismissed.[1]

I. Background

On July 21, 2005, plaintiff James Ilar signed a promissory note in favor of Mortgage Lenders. The note was endorsed from Mortgage Lenders to EMAX Financial Group. In an allonge, EMAX endorsed the note to Residential Funding Corporation, who then endorsed the note to U.S. Bank as trustee for the RASC Series 2005 EMX4 Trust. U.S. Bank transferred the note to Wells Fargo to hold on its behalf, and Wells Fargo currently possesses the original note.

The note was secured by a deed of trust on property located at 105 Dansworth Lane, Oak Ridge, Tennessee. Robert W. Wilson was named as the trustee for the Deed of Trust, and MERS was named as the nominee and beneficiary of the Deed of Trust. On June 29, 2011, MERS assigned the Deed of Trust to U.S. Bank. The assignment was recorded on July 11, 2011.

Mortgage Lenders was the original servicer of the mortgage, but later transferred the servicing rights to EMAX, retaining the sub-servicing rights. In September 2005, the servicing rights were transferred from EMAX to RFC, and the sub-servicing rights were transferred from Mortgage Lenders to HomeComings Financial, LLC. On March 1, 2007, the sub-servicing rights were transferred from HomeComings to Wells Fargo.

Plaintiffs were in default on their mortgage as of November 1, 2006. In 2008, plaintiffs entered into a loan modification agreement. The loan modification agreement was recorded on September 25, 2008. Plaintiffs defaulted on the loan modification in December 2008.

Wells Fargo first initiated foreclosure proceedings in March 2009. A foreclosure sale was conducted on June 21, 2012, and the property was sold to U.S. Bank as trustee. U.S. Bank filed a detainer action against plaintiffs that was removed to this court (Civil Action No. 3:12-CV-424) and consolidated with the instant action.

II. Standard of Review

Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper "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." Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Cattrett, 477 U.S. 317, 330 n. 2 (1986); Moore v. Philip Morris Co., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and inferences to be drawn therefrom must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Keifer, 301 F.3d 937, 942 (6th Cir. 2002).

Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. Celotex, 477 U.S. at 317. To establish a genuine issue as to the existence of a particular element, the nonmoving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id. The Court's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the factfinder. Id. at 250. The Court does not weigh the evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the record "to establish that it is bereft of a genuine issue of fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). Thus, "the inquiry performed is the threshold inquiry of determining whether there is a need for a trial - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.

III. Analysis

A. Plaintiffs' Action for Declaratory Judgment is Barred by the Statute of Limitations

Plaintiffs are seeking a declaratory judgment under the Tennessee Declaratory Judgment statute, Tenn. Code Ann. ยง 29-14-101, et seq. The statute does not contain a specific statute of limitations for declaratory judgment actions; therefore, it is necessary to ascertain the nature of the substantive claims sought to be asserted in the action in order to determine the appropriate statute of limitations. See Deroff v. Attorney Gen., 564 S.W.2d 361, 363 (Tenn. 1978). Plaintiffs' declaratory judgment action is clearly predicated on the ...

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