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2560 Defendants Motion to Dismiss With Prejudice Plaintiffs Fouth Amended Complaint to Determine the Validity Priority or Extent of a Lien or Other Interest in Real Property and Petition for Injunctive Relief

2560 Defendants Motion to Dismiss With Prejudice Plaintiffs Fouth Amended Complaint to Determine the Validity Priority or Extent of a Lien or Other Interest in Real Property and Petition for Injunctive Relief

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Motion to Dismiss Complaint Defendants' Motion To Dismiss, With Prejudice, Plaintiff's Fourth
Amended Complaint To Determine The Validity, Priority or Extent Of a Lien or Other Interest in Real
Property and Petition For Injunctive Relief filed by KYLE S. HIRSCH of BRYAN CAVE LLP on
behalf of BAC HOME LOANS SERVICING LP FKA COUNTRYWIDE HOME LOANS, BAC Home
Loans Servicing LP, CWALT INC ALTERNATIVE LOAN TRUST, THE BANK OF NEW YORK
MELLON, FKA THE BANK OF NEW YORK, THE MORTGAGE ELECTRONIC REGISTRATION
SERVICE (related document(s)[50] Amended Complaint). (HIRSCH, KYLE)
Motion to Dismiss Complaint Defendants' Motion To Dismiss, With Prejudice, Plaintiff's Fourth
Amended Complaint To Determine The Validity, Priority or Extent Of a Lien or Other Interest in Real
Property and Petition For Injunctive Relief filed by KYLE S. HIRSCH of BRYAN CAVE LLP on
behalf of BAC HOME LOANS SERVICING LP FKA COUNTRYWIDE HOME LOANS, BAC Home
Loans Servicing LP, CWALT INC ALTERNATIVE LOAN TRUST, THE BANK OF NEW YORK
MELLON, FKA THE BANK OF NEW YORK, THE MORTGAGE ELECTRONIC REGISTRATION
SERVICE (related document(s)[50] Amended Complaint). (HIRSCH, KYLE)

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Published by: Andrew Cameron Bailey on Nov 13, 2010
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File a Motion:
2:09-ap-01728-SSC BAILEY v. THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEWY 
U.S. Bankruptcy Court
 
District of Arizona
 Notice of Electronic FilingThe following transaction was received from KYLE S. HIRSCH entered on 9/13/2010 at 2:13 PM AZand filed on 9/13/2010
Docket Text:
 Motion to Dismiss Complaint
 Defendants' Motion To Dismiss, With Prejudice, Plaintiff's Fourth Amended Complaint To Determine The Validity, Priority or Extent Of a Lien or Other Interest in RealProperty and Petition For Injunctive Relief 
filed by KYLE S. HIRSCH of BRYAN CAVE LLP onbehalf of BAC HOME LOANS SERVICING LP FKA COUNTRYWIDE HOME LOANS, BAC HomeLoans Servicing LP, CWALT INC ALTERNATIVE LOAN TRUST, THE BANK OF NEW YORKMELLON, FKA THE BANK OF NEW YORK, THE MORTGAGE ELECTRONIC REGISTRATIONSERVICE (related document(s)[50] Amended Complaint). (HIRSCH, KYLE)The following document(s) are associated with this transaction:
2:09-ap-01728-SSC Notice will be electronically mailed to:
KYLE S. HIRSCH on behalf of Defendant BAC HOME LOANS SERVICING LP FKACOUNTRYWIDE HOME LOANSkyle.hirsch@bryancave.com, dgmcginnis@BryanCave.comType: apOffice: 2 (Phoenix)Judge: SSCLead Case: 2-09-bk-6979
Case Name:
 BAILEY v. THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEWY
Case Number:
2:09-ap-01728-SSC
DocumentNumber:
55 
Document description:
Main Document
Original filename:
C:\fakepath\Motion to Dismiss Plaintiffs Fourth Amended Complaint withPrejudice.pdf 
Electronic document Stamp:
 [STAMP bkecfStamp_ID=875559564 [Date=9/13/2010] [FileNumber=19269701-0] [6a129ce48dc5c4b120c06531ad7f0ac7c009e054d21dd3423f6af73ceff986188ad86e7d1198e1596e74322eca3041ba7a0eb4fbca7475ac329db775c1fb3113]]
 
Page 1of 1U.S. Bankruptcy Court, District of Arizona9/13/2010https://ecf.azb.uscourts.gov/cgi-bin/Dispatch.pl?227172647248559
 
 
675831.1 [0307032]
 
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BnCLTwoNhCrASt2PxAz84(637
Robert J. Miller (#013334)Kyle S. Hirsch (#024155)BRYAN CAVE LLPTwo N. Central Avenue, 22nd FloorPhoenix, Arizona 85004-4406Telephone: (602) 364-7000Telecopier: (602) 364-7070Internet:rjmiller@bryancave.com kyle.hirsch@bryancave.com Counsel for Defendants
IN THE UNITED STATES BANKRUPTCY COURTFOR THE DISTRICT OF ARIZONA
In re:ANDREW C. BAILEY,DebtorChapter 11 ProceedingsCase No. 2:09-bk-06979-PHX-RTBPANDREW C. BAILEY,Plaintiff vs.THE BANK OF NEW YORK MELLON, astrustee of the CWALT, INC.ALTERNATIVE LOAN TRUST 2007-HY4MORTGAGE PASS-THROUGHCERTIFICATES, SERIES 2007-HY4; BACHOME LOANS SERVICING, LP F/K/ACOUNTRYWIDE HOME LOANS,SERVICING, LP; COUNTRYWIDE BANK,FSB; MORTGAGE ELECTRONICREGISTRATION SYSTEMS INC; JOHNDOES 1-10 inclusive,Defendants.Adv. Proceeding No. 2:09-ap- 01728-RTBP
DEFENDANTS’ MOTION TO DISMISS,WITH PREJUDICE, PLAINTIFF’SFOURTH AMENDED COMPLAINT TODETERMINE THE VALIDITY,PRIORITY OR EXTENT OF A LIEN OROTHER INTEREST IN REAL PROPERTYAND PETITION FOR INJUNCTIVERELIEFHearing Date: Not yet set.
Hearing Time: Not yet set.
 
Pursuant to Federal Rule of Civil Procedure 12(b)(6), as incorporated into this adversaryproceeding by Federal Rule of Bankruptcy Procedure 7012, defendants The Bank of New York 
 
 2
675831.1 [0307032]
 
12345678910111213141516171819202122232425262728
BnCLTwoNhCrASt2PxAz84(637
Mellon (“BNY”), in its capacity as trustee of the CWALT, Inc. Alternative Loan Trust 2007-HY4 Mortgage Pass-Through Certificates, Series 2007-HY4; BAC Home Loans Servicing, LP,formerly known as Countrywide Home Loans Servicing, LP (“BAC”);
Countrywide Bank,FSB
(“CB”) and Mortgage Electronic Registration Systems Inc. (“MERS”) (collectively,“Defendants”) hereby move to dismiss, with prejudice, the Fourth Amended Complaint (“FourthComplaint”) filed by the plaintiff, Chapter 11 debtor Andrew C. Bailey (“Plaintiff”), for failureto state a claim upon which relief can be granted. This Motion is supported by theaccompanying Memorandum of Points and Authorities and the Court’s entire record in thisadversary proceeding.
MEMORANDUM OF POINTS AND AUTHORITIES
 
I.
 
INTRODUCTION.
Plaintiff continues to drain this Court’s and Defendants’ valuable time and resources. OnJuly 30, 2010, this Court entered its Memorandum Decision (“Memorandum Decision”)dismissing the Plaintiff’s Third Amended Complaint without prejudice. The MemorandumDecision meticulously establishes Defendants’ rights to enforce the underlying loan obligationsand to foreclose on the real property securing same, but allowed the Plaintiff with one finalopportunity to amend his complaint to properly plead allegations relating specifically to thenarrow issue of federal borrower protection laws.The Fourth Complaint, however, like the prior complaints filed in this adversaryproceeding, fails to state a cognizable claim for relief. Plaintiff has been urged by the Court toretain legal counsel, but has brazenly continued to represent himself in pro per. Accordingly,and like the several complaints filed by the Plaintiff in this adversary proceeding, the FourthComplaint cannot survive dismissal as a matter of law. The Fourth Complaint containsmeandering allegations and seeks nine (9) separate requests for relief (including injunctive relief)without asserting a single cause of action. The relief sought in the Fourth Complaint (includinginjunctive relief) relates specifically to issues that this Court has already decided, namely theDefendants’ entitlement to enforce Plaintiff’s loan obligations and default remedies, which

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