United States District Court, D. Arizona
IN RE MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS) LITIGATION.
DSL Service CO. et al., THIS DOCUMENT RELATES TO: Bilyea CV 10-01550-PHX-JAT
W Bilyea, represented by Valerie Robinson Edwards, Koeller
Nebeker Carlson & Haluck LLP.
W Bilyea, Plaintiff, represented by Donald O. Loeb, Donald O
S Bilyea, Plaintiff, represented by Donald O. Loeb, Donald O
Service Company, Defendant, represented by Leonard J.
McDonald, Jr., Tiffany & Bosco PA & William Morris Fischbach,
III, Tiffany & Bosco PA.
Mortgage Loan Trust 2006-AR1, Defendant, represented by
Leonard J. McDonald, Jr., Tiffany & Bosco PA & William Morris
Fischbach, III, Tiffany & Bosco PA.
Bank NA, Defendant, represented by Leonard J. McDonald, Jr.,
Tiffany & Bosco PA & William Morris Fischbach, III, Tiffany &
Central Mortgage Company, Defendant, represented by Kevin
Patrick Nelson, Tiffany & Bosco PA, Michael Joseph Rogers,
Tiffany & Bosco PA & Leonard J. McDonald, Jr., Tiffany &
Central Mortgage Company, Defendant, represented by William
Morris Fischbach, III, Tiffany & Bosco PA.
Mortgage Electronic Registration Systems Incorporated,
Defendant, represented by Erica Julie Stutman, Snell & Wilmer
LLP, James R. Condo, Snell & Wilmer LLP, Leonard J. McDonald,
Jr., Tiffany & Bosco PA, Robert M. Brochin, Morgan Lewis &
Bockius LLP & William Morris Fischbach, III, Tiffany & Bosco
A. TEILBORG, Senior District Judge.
parties to this member case are Plaintiffs Thomas and Laurie
Bilyea, and Defendants Central Mortgage Company, MERSCORP
Holdings, Inc. and Mortgage Electronic Registrations Systems,
Inc. (the latter two hereinafter will be collectively
referred to as MERS). (Doc. 2001-1 at 4). Central Mortgage
Company moved for summary judgment at Doc. 2049. MERS moved
for summary judgment at Doc. 1987.
Summary Judgment Standard
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.P. 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.P. 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.
Count I of the Amended Complaint
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. Â§
33-420(A). Another Court in this district has summarized this
cause of action as follows:
...A.R.S. Â§ 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
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. Â§
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).
Scope of the Mandate (Forgery)
their claims, this Court previously recounted,
[Plaintiffs'] amended complaint was dismissed on October
3, 2011. (Doc. 1602). Plaintiffs appealed dismissal of Counts
I-VI to the Ninth Circuit Court of Appeals. The Court of
Appeals reversed the dismissal of Count I and affirmed the
dismissal of Counts II-VI. In re Mortgage Elec.
Registration Sys., Inc., 754 F.3d 772, 786 (9th Cir.
2014). Specifically, the Court of Appeals held that: (1)
A.R.S. Â§ 33-420 applies to Notices of Trustee Sale, Notices
of Substitution of Trustee, and Assignments of a Deed of
Trust, documents which Plaintiffs alleged to be fraudulent in
the CAC; (2) Plaintiffs' claims are not timebarred; (3)
Plaintiffs have standing to sue under A.R.S. Â§ 33-420; and
(4) Plaintiffs pleaded their robosigning claims with
sufficient particularity to satisfy Federal Rule of Civil
Procedure 8(a). In re Mortgage Elec. Registration Sys.,
Inc., 754 F.3d at 781-784.
2005 at 2.
specifically, the Court of Appeals held that Plaintiffs had
stated a claim that "the documents at issue are invalid
because they are robosigned (forged).'" In re
Mortgage Elec. Registration Sys., Inc., 754 F.3d at
783. As this Court discussed at length in
the order denying class certification (Doc. 2005), this claim
is the only claim of the 18-page Count One that was remanded
to this Court. Indeed, the Court of Appeals confirmed that
all other theories potentially embedded in Count One were
waived by Plaintiffs by not raising them in their first
appeal. (Doc. 2047) Thus, Plaintiffs must survive summary
judgment on this single claim.
indicated above, the statute at issue creates a cause of
action when someone files a document that is: 1) forged; 2)
groundless; 3) contains a material misstatement or false
claim; or 4) is otherwise invalid. A.R.S. Â§ 33-420(A).
However, the Court of Appeals' mandate could be construed
as permitting Plaintiffs to prove only "forgery" as
the means by which this statute was violated. (Doc. 1820).
Indeed in a subsequent decision, the Court of Appeals stated
"This court's reversal of Count I was limited to
petitioners' claims of robosigning and forgery.
To the extent petitioners now seek to challenge the MDL
Court's dismissal of Count I as to allegations beyond
robosigning and forgery, that challenge is waived
because it was not raised in the appeal in MERS I.
(Doc. 2047 at 2) (emphasis added).
the Court will analyze "forgery" specifically
because it is possibly the only claim remaining before this
Court. The Court will then attempt to determine whether
Plaintiffs are claiming A.R.S. Â§ 33-420 was violated by
Defendants in some other way.
MERS' motion ...