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)

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. § 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-