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In re Mortgage Electronic Registration Systems Litigation (MERS) Litigation

United States District Court, D. Arizona

July 27, 2016

IN RE MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS) LITIGATION MDL 09-02119-PHX-JAT
v.
MERS, CV 10-01547-PHX-JAT THIS DOCUMENT RELATES TO Stejic

          ORDER

          James A. Teilborg Senior United States District Judge

         I. Parties and Pending Motion

         According to Plaintiffs’ jurisdictional statement, this member case has one named Plaintiff: Milan Stejic. (Doc. 2001-1 at 6). There are 5 Defendants: MERSCORP Holdings, Inc. and Mortgage Electronic Registration Systems, Inc. (hereinafter “MERS”); Quality Loan Service Corporation, Aurora Loan Services, LLC, and Shelter Mortgage, LLC. Pending before the Court is MERS’ motion for summary judgment (Doc. 1983).

         To complicate matters, Plaintiffs’ counsel elected to “consolidate” the response of Plaintiff Milan Stejic with a Plaintiff from another member case (CV 10-1548), who responded to a different motion for summary judgment (Doc. 1981). The Court has disregarded the portions of the response directed at that Plaintiff for purposes of this Order.

         II. Summary Judgment Standard

         Summary judgment is appropriate when a moving part shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56. Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-movant to establish the existence of material fact. Id. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. Pro. 56(e) (1963) (amended 2010)). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant’s bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48.

         III. Count I of the Amended Complaint

         Following the Court of Appeals reversal (In re Mortgage Elec. Registration Sys., Inc., 754 F.3d 772 (9th Cir. 2014) at Doc. 1820) of this Court’s dismissal of the consolidated amended complaint in this case, there is one Count remaining. The remaining Count is a cause of action under A.R.S. § 33-420(A). Another Court in this district has summarized this cause of action as follows:

…A.R.S. § 33-420(A) [] penalizes persons claiming an interest or lien in real property for knowingly recording a document that is “forged, groundless, contains a material misstatement or false claim or is otherwise invalid”:
A. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.
(Emphasis added.) The broader statutory section, A.R.S. § 33-420, is entitled “False documents; liability; special action; damages; violation; classification.”

David A. Kester v. CitiMortgage, CV 15-365, Doc. 37 (D. Ariz. March 31, 2016).

         IV. Fact Specific Claims

         A. Scope of the ...


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