Thomas v. Wells Fargo Bank NA et al

Filing 14

ORDER granting 5 Motion to Dismiss; granting 7 Motion to Dismiss. IT IS FURTHER ORDERED that Plaintiff may file a motion to amend the Complaint and separately lodge a proposed Amended Complaint by February 6, 2012. The Clerk is directed to terminate this case without further order if Plaintiff does not file a motion to amend and lodge a proposed Amended Complaint by February 6, 2012. Signed by Judge Neil V Wake on 1/17/12.(LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15
16
17
18

)
)
)
Plaintiff,
)
)
vs.
)
)
Wells Fargo Home Mortgage, Inc., a)
Division of Wells Fargo Bank, NA; Wells)
Fargo Bank, NA; Mortgage Electronic)
Registration Systems, Inc. (aka MERS);)
Does 1-1000 as Unknown and)
Unidentified Certificate Holders of)
Mortgage Asset Securities related to)
MERS #1000826-0000106578-4; Tiffany)
)
& Bosco, P.A. as Successor Trustee,
)
)
Defendants.
)
)
Georgianna J. Thomas,

No. CV 11-02066-PHX-NVW
ORDER

19
20

Before the Court is Defendant Tiffany & Bosco’s Motion to Dismiss (Doc. 5) and

21

Defendants Wells Fargo Bank, N.A. and Mortgage Electronic Registration Systems, Inc.’s

22

Motion to Dismiss Plaintiff’s Complaint (Doc. 7). For the reasons stated below, Defendants’

23

motions to dismiss will be granted.

24

I.

Background

25

On May 25, 2007, Plaintiff, along with non-party Spiro Paraskevoulakos, borrowed

26

$275,800.00 to purchase property located at 3935 E. Rough Rider Road, Unit 1198, Phoenix,

27

Arizona, 85050. Plaintiff executed a promissory note in exchange for the loan, and signed

28

a deed of trust secured by the property. The original lender was TBI Mortgage Company,

1

and MERS was listed as the beneficiary under the deed of trust. On March 9, 2011, MERS

2

assigned its interest in the deed of trust to Wells Fargo, which appointed Michael A. Bosco,

3

Jr. as successor trustee under the deed of trust on June 30, 2011. Foreclosure proceedings

4

were commenced with respect to Plaintiffs’ property shortly thereafter. Bosco, as trustee,

5

recorded a Notice of Trustee’s Sale of the property scheduling the trustee’s sale for

6

September 29, 2011, at which time the property was sold to non-party Wiser Investments,

7

LLC.

8

Plaintiff filed her complaint in Maricopa County Superior Court on September 21,

9

2011. Plaintiff’s complaint lists three causes of action: declaratory relief, injunctive relief,

10

and false recordations (Doc. 1-1). The case was removed to the district court on October 21,

11

2011.

12

II.

Legal Standard

13

A.

14

On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), all allegations of material fact

15

are assumed to be true and construed in the light most favorable to the nonmoving party.

16

Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Dismissal under Rule 12(b)(6) can

17

be based on “the lack of a cognizable legal theory” or “the absence of sufficient facts alleged

18

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

19

Cir. 1990). To avoid dismissal, a complaint must contain “only enough facts to state a claim

20

for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)

21

The principle that a court accepts as true all of the allegations in a complaint does not apply

22

to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 129 S. Ct. 1937,

23

1949 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere

24

conclusory statements, do not suffice.” Id. “A claim has facial plausibility when the plaintiff

25

pleads factual content that allows the court to draw the reasonable inference that the

26

defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to

27

a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has

28

-2-

Rule 12(b)(6), Federal Rules of Civil Procedure

1

acted unlawfully.” Id. To show that the plaintiff is entitled to relief, the complaint must

2

permit the court to infer more than the mere possibility of misconduct. Id.

3

III.

Analysis

4

Because Plaintiff has failed to state any plausible claim for which relief may be

5

granted, the Court will grant Defendants’ motions to dismiss (Docs. 5, 7). The only

6

substantive count in Plaintiff’s complaint is her cause of action for false recordations. A.R.S.

7

§ 33-420 prohibits a party from recording “an interest in, or a lien or encumbrance against,

8

real property” when that party “knows[s] or ha[s] reason to know that the document is forged,

9

groundless, contains a material misstatement or false claim or is otherwise invalid[.]”

10

Plaintiff has merely conclusorily alleged that Defendants violated A.R.S. § 33-420, but she

11

has not specifically identified any document which was in fact falsely recorded. To the

12

extent Plaintiff relies on the invalidity of the securitization process and any resulting transfers

13

of the deed of trust to support her claim that Defendants had no interest in Plaintiff’s property

14

and thus wrongly recorded loan documents in violation of A.R.S. § 33-420, these claims are

15

unavailing. See Schayes v. Orion Fin. Group, Inc., 2011 WL 3156303, at *6 (D. Ariz. 2011)

16

(noting assignments of mortgages and notices of trustee’s sales are not “document[s]

17

asserting” a “claim [of] interest in, or a lien or encumbrance against[ ] real property” and

18

therefore do not fall within the ambit of A.R.S. § 33-420). Plaintiff has offered no facts to

19

show Defendants knowingly recorded false documents in violation of A.R.S. § 33-420.

20

Accordingly, Count Three fails to state a plausible claim for relief.

21

The first two counts of Plaintiff’s complaint raise independent causes of action for

22

injunctive and declaratory relief. However, injunctive and declaratory relief are “remedies

23

for underlying causes of action . . . not separate causes of action[.]” Silvas v. GMAC

24

Mortgage, LLC, No. CV-09-0265-PHX-GMS, 2009 WL 4573234, at *6 (D. Ariz. Dec. 1,

25

2009) (citations omitted). Since Plaintiff has not sufficiently pled any underlying cause of

26

action, she is not entitled to these equitable remedies. To the extent Plaintiff relies on the

27

“show me the note” theory and related arguments in Counts One and Two, the District of

28

-3-

1

Arizona has widely rejected these theories.

2

Registration Sys., 618 F. Supp. 2d 1184 (D. Ariz. 2009); Mansour v. Cal-Western

3

Reconveyance Corp., 618 F. Supp. 2d 1178 (D. Ariz. 2009).

4

allegations challenging the legitimacy of MERS and the securitization process have also been

5

rejected as a basis for challenging foreclosure actions. See, e.g., Cervantes v. Countrywide

6

Home Loans, Inc., 656 F.3d 1034 (9th Cir. 2011). Further, to the extent Plaintiff seeks to

7

enjoin the trustee’s sale of the property, that claim is moot since the property was sold to a

8

non-party on September 29, 2011. See A.R.S. § 33-811(C).

See, e.g., Diessner v. Mortgage Elec.

Similarly, Plaintiff’s

9

Finally, Tiffany & Bosco is independently entitled to dismissal of this action because

10

they are not a party to any of the underlying proceedings and appear to have been improperly

11

named as substitute trustee. Rather, Michael A. Bosco, Jr. is the substitute trustee, not

12

Tiffany & Bosco. Even if Tiffany & Bosco were the substitute trustee here, actions against

13

the substitute trustee are governed by A.R.S. §33-807(E), which provides that “a trustee

14

should only be joined in legal actions pertaining to a breach of the trustee’s obligation under

15

this chapter or under the deed of trust.” Where a trustee is named in an action that does not

16

allege a breach of the trustee’s duties, “the trustee is entitled to be immediately dismissed and

17

to recover costs and reasonable attorney fees[.]” A.R.S. §33-807(E). Because Plaintiff has

18

not alleged any breach of the trustee’s duties, the substitute trustee would be entitled to

19

dismissal with prejudice and attorney fees. However, as Tiffany & Bosco note, they are not

20

the substitute trustee; accordingly, their request for attorney fees under A.R.S. §33-807(E)

21

will be denied.

22

IV.

Leave to Amend

23

Leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P.

24

15(a)(2). Plaintiff will be given an opportunity to amend her complaint to make clear her

25

allegations in short, plain statements. Any amended complaint must conform to the

26

requirements of the Federal Rules of Civil Procedure. Plaintiff is warned that if she elects

27

to file an amended complaint and fails to comply with the Court’s instructions explained in

28

-4-

1

this order, the action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil

2

Procedure. See McHenry, 84 F.3d at 1177 (affirming dismissal with prejudice of prolix,

3

argumentative, and redundant amended complaint that did not comply with Rule 8(a));

4

Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming

5

dismissal of amended complaint that was “equally as verbose, confusing, and conclusory as

6

the initial complaint”); Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir. 1965) (affirming

7

dismissal without leave to amend of second complaint that was “so verbose, confused and

8

redundant that its true substance, if any, [was] well disguised”). Specifically, the Court notes

9

that Spiro Paraskevoulakos may be a necessary party under Fed. R. Civ. P. 19.; failure to join

10

a necessary party will result in dismissal of this action. See Vera v. Wells Fargo Bank, N.A.,

11

2011 WL 334286, at *4 (D. Ariz. 2011) (noting co-signatory to a deed of trust is an

12

indispensable party).

13
14

IT IS THEREFORE ORDERED that Defendant Tiffany & Bosco’s Motion to Dismiss
(Doc. 5) is granted.

15

IT IS FURTHER ORDERED that Defendants Wells Fargo Bank, N.A. and Mortgage

16

Electronic Registration Systems, Inc.’s Motion to Dismiss Plaintiff’s Complaint (Doc. 7) is

17

granted.

18

IT IS FURTHER ORDERED that Plaintiff may file a motion to amend the Complaint

19

and separately lodge a proposed Amended Complaint by February 6, 2012. The Clerk is

20

directed to terminate this case without further order if Plaintiff does not file a motion to

21

amend and lodge a proposed Amended Complaint by February 6, 2012.

22

DATED this 17th day of January, 2012.

23
24
25
26
27
28

-5-