Gooslin v. OneWest Bank FSB

Filing 14

ORDER granting 5 OneWest's Motion to Dismiss. The clerk shall enter final judgment. Signed by Judge Frederick J Martone on 9/29/11.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gregory C. Gooslin,

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Plaintiff,

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vs.

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OneWest Bank,
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Defendant.
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No. CV-11-1618-PHX-FJM
ORDER

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The court has before it defendant OneWest Bank’s motion to dismiss (doc. 5),
plaintiff’s response (doc. 12), and the Bank’s reply (doc. 13).

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Plaintiff received a $2,478,000 loan from IndyMac Bank in 2006, and signed a

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promissory note and deed of trust, which were recorded against real property located in

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Phoenix, Arizona. Plaintiff subsequently defaulted on the loan. Plaintiff alleges that he had

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several communications with IndyMac, regarding a potential loan modification or short sale.

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At some point, OneWest became the successor in interest to IndyMac, and plaintiff continued

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the negotiations for a loan modification or short sale with OneWest. In May 2011, OneWest

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informed plaintiff that the short sale and loan modification were not approved. The property

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was sold at a trustee’s sale on May 17, 2011. OneWest purchased the property through a

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credit bid. Plaintiff made no effort to enjoin the trustee’s sale. Instead, he filed this

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complaint against OneWest alleging claims for “Damages” in Count 1, and “Setting Aside

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of Trustee’s Sale” in Count 2.

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OneWest now moves to dismiss the complaint pursuant to Rule 12(b)(6), Fed. R. Civ.

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P., alleging that plaintiff has failed to plead any facts or legal elements in support of an

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identifiable claim for relief as required under Rule 8, Fed. R. Civ. P. OneWest also contends

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that plaintiff has waived all defenses and objections to the trustee’s sale under A.R.S. § 33-

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811(C) by failing to obtain injunctive relief to stop the sale.

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In Count 1, plaintiff alleges that he will suffer significant damages as a result of

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“OneWest’s last minute change of mind concerning the short sale.” Compl. ¶ 29. A claim

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for “damages,” however, is not a cause of action, but is a legal remedy, dependent on the

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success of a cognizable cause of action. Count 1 is dismissed for failure to state a claim.

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Plaintiff asserts in Count 2 a claim for “Setting Aside of Trustee’s Sale.” He asks the

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court to set aside the trustee’s sale and “enforce OneWest’s agreement concerning a short

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sale.” Compl. ¶ 31. There is no identifiable cause of action called “setting aside of trustee’s

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sale.” It appears that plaintiff may be alleging that he relied on OneWest’s representations

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that it would accept a short sale, but in his response to the motion to dismiss he argues that

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the trustee’s sale is void because OneWest had no legal interest in the deed of trust at the

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time of the sale. These allegations, however, are not presented in the complaint. Plaintiff

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cannot add new legal claims and factual allegations to his complaint by way of arguments

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in a response to a motion to dismiss. In any event, plaintiff’s argument that OneWest did not

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have authority to conduct the trustee’s sale is precluded by his affirmative representation in

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his complaint that “OneWest became the successor in interest to IndyMac.” Compl. ¶ 10.

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Finally, A.R.S. § 33-811(C) requires a property owner to assert any objections to and

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obtain injunctive relief from the trustee’s sale prior to such sale or risk losing his right to

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object. See also Spielman v. Katz, No. CV 10-0184, 2010 WL 4038838, at *3 (D. Ariz. Oct.

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14, 2010). Plaintiff’s argument that he relied on OneWest’s alleged representations about

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a short sale has been waived by his failure to obtain an injunction prior to the sale of the

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property. A.R.S. § 33-811(C). Therefore, Count 2 is also dismissed for failure to state a

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claim.
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IT IS ORDERED GRANTING OneWest’s motion to dismiss (doc. 5). The clerk
shall enter final judgment.
DATED this 29th day of September, 2011.

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