MEMORANDUM OPINION & ORDER

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B.

<Paragraph One>
The First and Twentieth Causes of Action seek a declaratory judgment adjudicating the status of the defendants’ property interest in the promissory note and deed of trust and allege a defective foreclosure under Nevada law. FAC ¶¶ 116-26, 291-320. Springer seeks a declaratory judgment that U.S. Bank does not have an interest in the plaintiff’s loan because the assignments from Novelle Financial Services to U.S. Bank are void. FAC ¶¶ 119, 123.

<Paragraph Six>
It is undisputed that Springer was a party to the promissory note and the deed of trust.  ….There is a concrete injury that can be redressed by a declaratory judgment on the validity of the underlying assignments. The validity of the assignments does not hinge on whether U.S. Bank and the other defendants complied with the PSA or Prospectus, but only on whether the assignments were permitted by the terms of the promissory note, the deed of trust, and Nevada law.
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<Paragraph Eight>
Springer’s First Cause of Action—that sought a declaratory judgment that the defendant did not have a secured or unsecured interest in the loan was arguing that the assignment never occurred or that the assignment occurred but was invalid. Le Bouteiller, 2015 WL 5334269, at *10 n.5. The district court dismissed the claim concluding that the complaint and the exhibits to the complaint showed that the assignment had in fact occurred and the plaintiff did not plead facts demonstrating otherwise. Id. Springer does not contend that the assignments never occurred; he argues that the assignments violated the terms of the promissory note, the deed of trust, and Nevada law. Springer’s claims are therefore different from the claims apparently asserted in Le Bouteiller. While the deed of trust explicitly permitted the sale of the deed of trust together with the note, Compl., Ex. 1, Springer alleges that the actual assignments were void under Nevada law because the note and the deed of trust were not actually assigned together. FAC ¶¶ 292-96. U.S. Bank has not responded to these allegations.
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<Last Paragraph>
But Springer can pursue his claim that the assignments were invalid under Nevada law and that the foreclosure is defective because only the owner of the note can seek foreclosure and the means by which U.S. Bank obtained the note violated the terms of the note and the deed of trust. FAC ¶¶ 299-301, 293-95. Given U.S. Bank’s failure to respond to this argument …..Thus, U.S. Bank’s motion to dismiss the First and Twentieth Causes of Action is denied to the extent Springer pleads that the assignments violate express provisions of the deed of trust and the promissory note and Nevada law.
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[1] The FAC names the MASTR Asset Backed Securities Trust 2005-HE1 as a defendant, but under New York law, a trust cannot sue or be sued, and suits must be brought by or against the trustee. McCarty v. The Bank of N.Y. Mellon, No. 14-cv-6756 (AT), 2015 WL 5821405, at *1 n.1 (S.D.N.Y. Sept. 8, 2015); Anh Nguyet Tran v. Bank of N.Y., No. 13-cv-580 (RPP), 2014 WL 1225575, at *1 n.4 (S.D.N.Y. Mar. 24, 2014) aff’d, 592 F. App’x 24 (2d Cir. 2015) order amended and superseded, 610 F. App’x 82 (2d Cir. 2015). Accordingly, all the claims against the Trust are dismissed. Moreover, the complaint also names the certificate holders in the Trust and various Roes and Does. The claims against these defendants suffer from the same deficiencies as the claims against U.S. Bank, and the motion to dismiss is treated as having been brought on behalf of all the defendants. See McCarty, 2015 WL 5821405, at *1 n.1. The present motion does not resolve the claims against Mortgage Asset Securitization Transaction, Inc., against whom Springer is seeking a default judgment

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