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