Dove v. Ocwen Loan Servicing LLC et al

Filing 9

ORDER granting 7 defendants' Motion to Dismiss. All claims against defendants are dismissed with prejudice because any amendment to the complaint would be futile. Signed by Judge Frederick J Martone on 8/24/12.(TLJ)

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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 June V. Dove, Plaintiff, 10 11 vs. 12 Ocwen Loan Servicing, LLC, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-01535-PHX-FJM ORDER 15 16 The court has before it defendants' motion to dismiss (doc. 7) and request for judicial 17 notice (doc. 8), to which plaintiff failed to respond. Defendants seek dismissal under Rules 18 8, 9(b), and 12(b)(6), Fed. R. Civ. P. 19 Defendants attach seven documents to their request for judicial notice in support of 20 their motion to dismiss. Exhibits one, two, three, four, and seven are properly subjects of 21 judicial notice because they are matters of public record. Lee v. City of Los Angeles, 250 22 F.3d 668, 689 (9th Cir. 2001). Exhibits five and six are records from plaintiff's case in the 23 United States Bankruptcy Court for the District of Arizona. Proceedings in other courts are 24 proper subjects of judicial notice. United States ex rel. Robinson Rancheria Citizens Council 25 v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). "Moreover, documents not attached to 26 a complaint may be considered if no party questions their authenticity and the complaint 27 relies on those documents." Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). 28 The court will take judicial notice of all seven exhibits. 1 Plaintiff borrowed $405,000 in 2006 to purchase a house in Scottsdale, Arizona (doc. 2 8, ex. 1). The loan was secured by a deed of trust to the property. Plaintiff later defaulted 3 on her mortgage payments and a notice of trustee's sale was recorded November 14, 2008 4 (doc. 8, ex. 4). Plaintiff filed for bankruptcy and the bankruptcy court granted Ocwen Loan 5 Servicing, LLC's ("Ocwen") predecessor's motion for relief from the automatic stay with 6 respect to plaintiff's house (doc. 8, ex. 6). The house was sold at a trustee's sale on April 13, 7 2012 for $401,000. Plaintiff filed this action on June 4, 2012 and defendants Ocwen and 8 U.S. Bank removed on July 16, 2012. 9 Plaintiff's complaint names several defendants, but no claims are alleged against any 10 defendant besides Ocwen. It also appears that no defendant other than Ocwen has been 11 served. The complaint is nearly unintelligible. Rather than list causes of action, it lists 12 "reasons for wrongful foreclosure" (doc. 1, ex. A at 8). It asks us to rescind the foreclosure, 13 order a loan modification with an affordable payment, discharge all fees over the original 14 mortgage amount, and award punitive damages for wrongful foreclosure and wrongful 15 eviction. 16 Plaintiff's complaint fails to satisfy the standards of Rule 8, Fed. R. Civ. P. Far from 17 containing "a short and plain statement of the claim showing that the pleader is entitled to 18 relief," the complaint leaves a reader wondering what causes of action plaintiff intends to 19 assert. Rule 8(a)(2), Fed. R. Civ. P. The complaint lists causes of action without any 20 supporting facts. In other places it describes theories but it is not clear if they are intended 21 to support a wrongful foreclosure claim or intended to be claims themselves. 22 Dismissal under Rule 12(b)(6), Fed. R. Civ. P., may be "based on the lack of a 23 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 24 theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Plaintiff's 25 complaint lacks cognizable legal theories and sufficient facts and thus fails to state a claim 26 upon which relief can be granted. 27 The "show me the note" theory has been rejected by the Arizona Supreme Court. 28 Hogan v. Washington Mut. Bank, N.A., 277 P.3d 781, 783 (Ariz. 2012). Nothing in the deed -2- 1 of trust promises that plaintiff would receive a loan modification if she defaulted on her 2 payments. Plaintiff fails to plead facts that show that she ever entered into a binding loan 3 modification agreement. Plaintiff waived her objections to the trustee's sale by failing to 4 raise them before the sale took place, and cannot now rescind the sale. See A.R.S. ยง 33- 5 811(C). 6 There is no cause of action for predatory lending. See Skinner v. Deutsche Bank. 7 National Trust Co., No. 11-CV-710-PHX-GMS, 2011 WL 6153631, at *3 (D. Ariz. Dec. 12, 8 2011). To the extent plaintiff's claim for predatory lending is based on fraud, she fails to 9 plead fraud with the particularity required by Rule 9(b), Fed. R. Civ. P. Wrongful 10 foreclosure is not a recognized cause of action in Arizona. Cervantes v. Countrywide Home 11 Loans, Inc., 656 F.3d 1034, 1043 (9th Cir. 2011). Negligent infliction of emotional distress 12 is an available claim only where one witnesses the injury or death of a closely related person, 13 or suffers mental anguish manifested as physical injury. Pierce v. Casas Adobes Baptist 14 Church, 162 Ariz. 269, 272, 782 P.2d 1162, 1165 (1989). There are no factual allegations 15 to support these elements. Plaintiff failed to plead facts supporting a claim for intentional 16 infliction of emotional distress, which requires a showing of extreme and outrageous 17 conduct. See Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987). 18 Accordingly, IT IS HEREBY ORDERED GRANTING defendants' motion to 19 dismiss (doc. 7). All claims against defendants are dismissed with prejudice because any 20 amendment to the complaint would be futile. 21 We urge plaintiff to seek the advice of a lawyer. If she does not have one, she may 22 wish to call the Lawyer Referral Service of the Maricopa County Bar Association at 602- 23 257-4434. 24 DATED this 24th day of August, 2012. 25 26 27 28 -3-

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