Mers v. Gary Koeppel

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 2021
• Docket: 20-15640
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 23 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MORTGAGE ELECTRONIC No. 20-15640 REGISTRATION SYSTEMS, INC., D.C. No. 5:18-cv-03443-EJD Plaintiff-Appellee,

v. MEMORANDUM*

GARY MERLE KOEPPEL, as an individual and as Trustee for the Koeppel Family Trust; EMMA K. KOEPPEL, as an individual and as Trustee for the Koeppel Family Trust,

Defendants-Appellants,

and

NATIONSTAR MORTGAGE LLC.; et al.,

Defendants.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted September 1, 2021** San Francisco, California

Before: SCHROEDER, RAWLINSON, and BYBEE, Circuit Judges.

Gary and Emma Koeppel appeal the district court's order granting Mortgage

Electronic Registration System Inc.’s (MERS) motion for judgment on the

pleadings. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

The Koeppels sought and received a state court quiet title judgment without

naming MERS, despite knowing of MERS’s alleged interest in the property.

MERS challenged the quiet title judgment in this action. The district court had

subject matter jurisdiction under 28 U.S.C. § 1332(a). The Rooker-Feldman

doctrine did not deprive the district court of jurisdiction because MERS was not a

party to the state court quiet title action. See Lance v. Dennis, 546 U.S. 459,

464–66 (2006).

The district court properly concluded that MERS had standing to bring this

suit. Plaintiffs seeking relief in federal court must establish the three elements that

constitute the “irreducible constitutional minimum” of Article III standing, namely,

that they have (1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be redressed by a

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61

(1992). The quiet title judgment constitutes an injury in fact, which is directly

traceable to the Koeppels’ failure to name MERS, and is remediable through an

order declaring the quiet title judgment void.

It would make little sense to excuse the Koeppels’ failure to name MERS as

a defendant simply because they dispute the validity of the interests asserted by

MERS, which form the basis for its standing to sue. Moreover, the Koeppels’

argument that MERS must show that it was an agent of the new holder of the note

to demonstrate standing is unavailing. The Koeppels agreed in signing the deed of

trust that MERS’ position and accompanying rights would continue to CPM’s

assigns and successors and that the note could be sold without prior notice to the

Koeppels. Indeed, California courts have approvingly cited opinions rejecting

arguments that MERS lost its authority because of the sale of the note from one

lender to another. See Courtois v. Mortgage Elec. Registration Sys., Inc., D078198,

2021 WL 2674826, at *5 (Cal. Ct. App. June 30, 2021) (collecting cases).

The district court did not err in concluding as a matter of law that the

Koeppels obtained the quiet title judgment in violation of MERS’s rights under

section 762.010 of the California Code of Civil Procedure, and granting judgment

on the pleadings to MERS. The deed of trust on the property, which was signed by

3 Gary and Emma Koeppel and properly recorded, designates MERS as the nominee

of the lender and the lender’s successors and as the beneficiary under the deed of

trust. By executing the deed of trust, the Koeppels agreed that MERS had the

authority to initiate foreclosure proceedings on the property. See Calvo v. HSBC

Bank USA, N.A., 130 Cal. Rptr. 3d 815 (Cal Ct. App. 2011); Gomes v. Countrywide

Home Loans, Inc., 121 Cal. Rptr. 3d 819 (Cal Ct. App. 2011). Therefore, MERS

had an adverse claim against the property, and the Koeppels were required to name

MERS as a defendant in the quiet title action. See Cal. Civ. Proc. Code §§

760.010(a), 762.060.

The mere fact that a quiet title judgment only binds those named in the

judgment is no excuse for the Koeppels’ failure to name MERS. While the

judgment in a quiet title action “does not affect a claim in the property . . . of any

person who was not a party,” failing to include an indispensable party “would

leave in doubt the enforceability of the deed of trust and create the potential for

confusion and conflicting determinations.” Paterra v. Hansen, 279 Cal. Rptr. 3d

77, 85, 100 (Cal. Ct. App. 2021).

The Koeppels’ counterclaims were properly dismissed. The district court

correctly determined that California law does not permit preemptive foreclosure

4 suits. See Gomes, 192 Cal. App. 4th at 1154. While the Koeppels contend this is

not a foreclosure suit, this is about the power to foreclose. MERS sued to void the

quiet title judgment and have the deed of trust reinstated based on its adverse

claim—its power to foreclose. “[N]owhere does the [nonjudicial foreclosure]

statute provide for a judicial action to determine whether the person initiating the

foreclosure process is indeed authorized and [California courts] see no ground for

implying such an action.” Id. at 1155. Moreover, California law does not require a

foreclosing party to produce the original note. No amount of amending the

complaint could change the fundamental character of the counterclaims. The

district court, therefore, correctly concluded that the Koeppels’ suit should be

dismissed.

AFFIRMED.