Maxhimer et al v. Wells Fargo Bank NA

Filing 16

ORDER, granting Defendant's 13 Motion to Dismiss; the Clerk shall dismiss this case and enter judgment for Defendant Wells Fargo. Signed by Judge James A Teilborg on 8/3/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mark Maxhimer and Traci Austin,)
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husband and wife,
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Plaintiffs,
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vs.
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Wells Fargo Bank, N.A.,
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Defendant.
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No. CV11-128-PHX-JAT
ORDER

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Pending before the Court is Defendant Wells Fargo’s Motion to Dismiss (Doc. 13).
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The Court now rules on the Motion.
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BACKGROUND
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Plaintiff Mark Maxhimer and Traci Austin took out a loan to purchase residential
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property in Glendale, Arizona in February of 1997. They executed a promissory note and
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a deed of trust at that time. Plaintiffs then refinanced their loan in July of 1999 and executed
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a new promissory note and deed of trust. Plaintiffs thereafter made mortgage payments to
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Wells Fargo, which had been assigned the promissory note.
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Plaintiffs received a letter from Wells Fargo in March of 2010 that threatened to
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accelerate their promissory note. Plaintiffs responded by sending Defendant a letter
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demanding that Defendant produce certain documents, including the “Genuine Original
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Promissory Note.” (Ex. A to Compl.)
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At some point, Plaintiffs defaulted on their loan. On May 18, 2010, Defendant

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appointed Michael Bosco as Successor Trustee and noticed the Trustee Sale of Plaintiffs’

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property for August 17, 2010. The Trustee Sale commenced on August 24, 2010. Plaintiffs

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do not allege that they did not receive proper notice of the Trustee Sale.

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Plaintiffs filed a Quiet Title action in state court on January 3, 2011. Defendant

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removed to this Court on January 19, 2011. (Doc. 1.) Plaintiffs moved for a Temporary

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Restraining Order on February 3, 2011 (Doc. 11) to avoid enforcement of a Forcible Detainer

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Judgment and Writ of Possession Defendant obtained in the state court. The Court held a

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hearing that same day and denied Plaintiffs’ Motion for a TRO. (Doc. 12.)

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Defendant filed the pending Motion to Dismiss on February 4, 2011. (Doc. 13.)

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Plaintiffs never responded to the Motion. Defendant then filed a Motion for Summary

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Disposition (Doc. 15) of its Motion to Dismiss because of Plaintiffs’ failure to respond.

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LEGAL STANDARD

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The Court may dismiss a complaint for failure to state a claim under 12(b)(6) for two

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reasons: 1) lack of a cognizable legal theory and 2) insufficient facts alleged under a

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cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990).

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To survive a 12(b)(6) motion for failure to state a claim, a complaint must meet the

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requirements of Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires a “short and

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plain statement of the claim showing that the pleader is entitled to relief,” so that the

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defendant has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)).

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Although a complaint attacked for failure to state a claim does not need detailed

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factual allegations, the pleader’s obligation to provide the grounds for relief requires “more

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action

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will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). The factual allegations

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of the complaint must be sufficient to raise a right to relief above a speculative level. Id.
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Rule 8(a)(2) “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.

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Without some factual allegation in the complaint, it is hard to see how a claimant could

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satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also

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‘grounds’ on which the claim rests.” Id. (citing 5 C. Wright & A. Miller, Federal Practice

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and Procedure §1202, pp. 94, 95(3d ed. 2004)).

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Rule 8’s pleading standard demands more than “an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing

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Twombly, 550 U.S. at 555). A complaint that offers nothing more than naked assertions will

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not suffice. To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” Iqbal,

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129 S.Ct. at 1949. Facial plausibility exists if the pleader pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged. Id. Plausibility does not equal “probability,” but plausibility requires more than a

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sheer possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads facts

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that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between

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possibility and plausibility of entitlement to relief.’” Id. (citing Twombly, 550 U.S. at 557).

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In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the facts

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alleged in the complaint in the light most favorable to the drafter of the complaint and the

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Court must accept all well-pleaded factual allegations as true. See Shwarz v. United States,

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234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept as true

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a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286

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(1986).

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ANALYSIS AND CONCLUSION

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Plaintiffs make several arguments in their Complaint that the Court has rejected in

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prior cases. The Court need not address those arguments again here, however, because

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Plaintiffs waived all their arguments by failing to seek and obtain an injunction at least one

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day before the Trustee Sale of their property.

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Section 33-811(C) of the Arizona Revised Statutes reads in pertinent part:
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The trustor . . . and all persons to whom the trustee mails a

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notice of a sale under a trust deed pursuant to § 33-809 shall

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waive all defenses and objections to the sale not raised in an

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action that results in the issuance of a court order granting relief

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pursuant to rule 65, Arizona rules of civil procedure, entered

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before 5:00 p.m. mountain standard time on the last business day

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before the scheduled date of sale.

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Plaintiffs have presented no evidence that they filed a Rule 65 motion in state court

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before the Trustee Sale. Whether they filed a motion does not matter because the statute

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requires the granting of injunctive relief to avoid waiver, and Plaintiffs indisputably did not

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obtain injunctive relief.

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A trustor who receives notice of a trustee sale pursuant to A.R.S. §33-809 waives all

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defenses and objections to the trustee sale not raised in an action resulting in injunctive relief

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awarded at least one business day before the trustee sale. Plaintiffs do not dispute that they

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received notice of the Trustee Sale. The Complaint references the notice of the Trustee Sale,

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demonstrating Plaintiffs’ knowledge of the sale.

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Because Plaintiffs did not receive an order enjoining the sale of the property, they

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waived all claims that would have provided defenses or objections to the sale. Coleman v.

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Am. Home Mortg. Servicing, Inc., No. CV09-2692, 2010 U.S. Dist. LEXIS 30922, at *9-11.

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The Court finds Plaintiffs could have raised all the arguments they make in the Complaint

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in a motion in state court to enjoin the Trustee Sale. Because all their arguments here could

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have provided defenses or objections to the Trustee Sale, Plaintiffs have waived all those

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arguments. The Court therefore grants the Motion to Dismiss. The Court need not give

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Plaintiffs leave to amend because amendment could not cure their failure to file and obtain

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injunctive relief from state court before the Trustee Sale.

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Accordingly,

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IT IS ORDERED GRANTING Defendant’s Motion to Dismiss (Doc. 13). The Clerk

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shall dismiss this case and enter judgment for Defendant Wells Fargo.
DATED this 3rd day of August, 2011.

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