Boersma v. M&I Marshall & Ilsley Bank

Filing 21

ORDER that Defendant's 5 Motion to Dismiss With Prejudice is GRANTED without prejudice. The Clerk shall please close this case. Signed by Judge James A Teilborg on 12/06/10. (ESL)

Boersma v. M&I Marshall & Ilsley Bank

Doc. 21

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) M&I Marshall & Ilsley Bank, a Wisconsin) ) corporation, ) ) Defendant. ) ) Jay Boersma,

No. CV10-2221-PHX-NVW ORDER

Before the Court is Defendant's "Motion to Dismiss With Prejudice." (Doc. 5.) The Court will grant Defendant's motion without prejudice. I. Background & Procedural History

Plaintiff Jay Boersma owns a home in Fountain Hills, Arizona, which he financed through Defendant M&I Marshall & Ilsley Bank. In September 2009, Boersma (acting pro se) filed suit against M&I in Maricopa County Superior Court, claiming that he "is in anticipation of the beginning of foreclosure action as he is now 2 months behind on payments." (Doc. 1-2 ¶ 3.) Boersma, however, did not state whether he has received any sort of notice of foreclosure. Boersma alleged three causes of action: (1) fraudulent misrepresentation based on a "show me the note" theory; (2) "predatory lending practices" under certain federal statutes;

Dockets.Justia.com

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and (3) quiet title. M&I removed to this Court, asserting both federal question and diversity jurisdiction. M&I has now moved to dismiss. II. Analysis

To sue in federal court, a plaintiff must have standing under Article III of the U.S. Constitution. This means: (1) the plaintiff must have suffered an "injury in fact" that is "concrete and particularized" and "actual or imminent"; (2) the alleged wrongful conduct must have reasonably caused the injury the plaintiff alleges; and (3) it must be likely, as opposed to merely speculative, that a favorable decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560­61 (1992). Related to standing is the concept of "ripeness." "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted). Standing and ripeness are "intertwined" because, "if the contingent events do not occur, the plaintiff likely will not have suffered an injury that is concrete and particularized enough to establish the first element of standing." Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009). Boersma's claims are not ripe. For all three causes of action, the injury he asserts is the potential loss of his home through foreclosure. (Doc. 1-2 ¶ ¶ 15, 18, 22.) He expects foreclosure because he is behind on payments. Boersma's complaint, and Boersma's subsequent assertions to this Court, contain no other reason to believe that foreclosure is imminent. Falling behind on house payments may lead to foreclosure, but it may also lead elsewhere, such as loan modification. Accordingly, Boersma has not alleged an "actual or imminent" injury. Lujan, 504 U.S. at 560. The Court will therefore dismiss his claims as unripe. /// /// /// /// -2-

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IT IS THEREFORE ORDERED that Defendant's "Motion to Dismiss With Prejudice" (Doc. 5) is GRANTED without prejudice. The Clerk shall please close this case. DATED this 6th day of December, 2010.

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