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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gregory C. Gooslin, 10 Plaintiff, 11 vs. 12 OneWest Bank, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-11-1618-PHX-FJM ORDER 15 16 17 18 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). 19 Plaintiff received a $2,478,000 loan from IndyMac Bank in 2006, and signed a 20 promissory note and deed of trust, which were recorded against real property located in 21 Phoenix, Arizona. Plaintiff subsequently defaulted on the loan. Plaintiff alleges that he had 22 several communications with IndyMac, regarding a potential loan modification or short sale. 23 At some point, OneWest became the successor in interest to IndyMac, and plaintiff continued 24 the negotiations for a loan modification or short sale with OneWest. In May 2011, OneWest 25 informed plaintiff that the short sale and loan modification were not approved. The property 26 was sold at a trustee’s sale on May 17, 2011. OneWest purchased the property through a 27 credit bid. Plaintiff made no effort to enjoin the trustee’s sale. Instead, he filed this 28 complaint against OneWest alleging claims for “Damages” in Count 1, and “Setting Aside 1 of Trustee’s Sale” in Count 2. 2 OneWest now moves to dismiss the complaint pursuant to Rule 12(b)(6), Fed. R. Civ. 3 P., alleging that plaintiff has failed to plead any facts or legal elements in support of an 4 identifiable claim for relief as required under Rule 8, Fed. R. Civ. P. OneWest also contends 5 that plaintiff has waived all defenses and objections to the trustee’s sale under A.R.S. § 33- 6 811(C) by failing to obtain injunctive relief to stop the sale. 7 In Count 1, plaintiff alleges that he will suffer significant damages as a result of 8 “OneWest’s last minute change of mind concerning the short sale.” Compl. ¶ 29. A claim 9 for “damages,” however, is not a cause of action, but is a legal remedy, dependent on the 10 success of a cognizable cause of action. Count 1 is dismissed for failure to state a claim. 11 Plaintiff asserts in Count 2 a claim for “Setting Aside of Trustee’s Sale.” He asks the 12 court to set aside the trustee’s sale and “enforce OneWest’s agreement concerning a short 13 sale.” Compl. ¶ 31. There is no identifiable cause of action called “setting aside of trustee’s 14 sale.” It appears that plaintiff may be alleging that he relied on OneWest’s representations 15 that it would accept a short sale, but in his response to the motion to dismiss he argues that 16 the trustee’s sale is void because OneWest had no legal interest in the deed of trust at the 17 time of the sale. These allegations, however, are not presented in the complaint. Plaintiff 18 cannot add new legal claims and factual allegations to his complaint by way of arguments 19 in a response to a motion to dismiss. In any event, plaintiff’s argument that OneWest did not 20 have authority to conduct the trustee’s sale is precluded by his affirmative representation in 21 his complaint that “OneWest became the successor in interest to IndyMac.” Compl. ¶ 10. 22 Finally, A.R.S. § 33-811(C) requires a property owner to assert any objections to and 23 obtain injunctive relief from the trustee’s sale prior to such sale or risk losing his right to 24 object. See also Spielman v. Katz, No. CV 10-0184, 2010 WL 4038838, at *3 (D. Ariz. Oct. 25 14, 2010). Plaintiff’s argument that he relied on OneWest’s alleged representations about 26 a short sale has been waived by his failure to obtain an injunction prior to the sale of the 27 property. A.R.S. § 33-811(C). Therefore, Count 2 is also dismissed for failure to state a 28 claim. -2- 1 2 3 IT IS ORDERED GRANTING OneWest’s motion to dismiss (doc. 5). The clerk shall enter final judgment. DATED this 29th day of September, 2011. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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