Adame v. Federal Home Loan Mortgage Corporation et al

Filing 12

ORDER granting 7 Motion to Dismiss the Complaint as to Freddie Mac. (See document for full details). Signed by Judge Frederick J Martone on 6/15/11.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Federal Home Loan Mortgage)
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Corporation; JPMorgan Chase Bank,
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Defendants.
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Richard L. Adame,

No. CV-11-8054-PCT-FJM
ORDER

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The court has before it defendant Federal Home Loan Mortgage Corporation’s
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(“Freddie Mac”) motion to dismiss (doc. 7), plaintiff’s response (doc. 10), and Freddie Mac’s
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reply (doc. 11). Plaintiff owned real property in Mohave County, subject to a note and deed
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of trust in favor of JPMorgan Chase Bank (“Chase”). Plaintiff entered into a forbearance
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agreement with Chase pursuant to which Chase agreed to delay foreclosure so long as
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plaintiff made timely payments. Plaintiff claims that the property was sold, in violation of
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the forbearance agreement, by a trustee’s sale on July 28, 2010, and the property was
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transferred by trustee’s deed to Freddie Mac. Plaintiff now seeks to have the trustee’s deed
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issued to Freddie Mac canceled, or alternatively, seeks an award of damages and/or specific
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performance of his contract with Chase.
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Freddie Mac moves to dismiss the complaint for failing to state a claim upon which
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relief can be granted. Fed. R. Civ. P. 12(b)(6). To satisfy Rule 8, a plaintiff must plead “a

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short and plain statement of the claim showing that [he] is entitled to relief.” Fed. R. Civ.

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P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state

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a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

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(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

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plausible “when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. A dismissal

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for failure to state a claim can be based on either “the lack of a cognizable legal theory or the

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absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica

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Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).

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Plaintiff’s claims of fraud (Count 1) and misrepresentation (Count 3) against Freddie

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Mac must be pled with particularity. Fed. R. Civ. P. 9(b). A plaintiff must state the “time,

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place, and specific content of the false representations as well as the identities of the parties

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to the misrepresentation.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004).

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All of the allegations of fraud and misrepresentation are leveled against Chase, not Freddie

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Mac. Underlying plaintiff’s claims against Freddie Mac is the argument that “the actions of

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Chase and Freddie Mac are in effect one in the same.” Response at 3. This is a legal

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conclusion, however, and no facts are pled to support it. Therefore, plaintiff has failed to

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state any claim of fraud or misrepresentation against Freddie Mac. We grant Freddie Mac’s

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motion to dismiss Counts 1 and 3.

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Plaintiff’s claim of “reckless disregard” in Count 2 does not assert an independent

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cause of action and again implicates Chase, not Freddie Mac. Count 2 is dismissed as to

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Freddie Mac.

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Plaintiff asserts a breach of contract claim in Count 4. However, plaintiff does not

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allege that he had any contract with Freddie Mac. Freddie Mac’s motion to dismiss Count

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4 is granted.

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Plaintiff asserts a claim of estoppel in Count 5. In order to establish equitable

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estoppel, a plaintiff must show: (1) the party to be estopped committed acts inconsistent with
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its current position, (2) reliance by the other party, and (3) injury by repudiation of the prior

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conduct. Valencia Energy Co. v. Ariz. Dep’t of Rev., 191 Ariz. 565, 576-77, 959 P.2d 1256,

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1267-68 (1998). Estoppel is asserted against Freddie Mac solely because it is successor

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interest to Chase. Plaintiff fails to assert any allegations to support estoppel against Freddie

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Mac. Count 5 is dismissed as against Freddie Mac.

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Finally, plaintiff asserts a quiet title claim in Count 6. He argues that the trustee’s sale

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should be set aside and title quieted in his favor. First, no mention of Freddie Mac is made

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in Count 6. Even if plaintiff had intended to assert a quiet title claim against Freddie Mac,

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it would fail because the trustee’s sale has already occurred. “Because the property has

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already been sold, quiet title is no longer an appropriate action to seek to undo the

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foreclosure.” Salazar v. Lehman Bros. Bank, No. CV-10-0099, 2010 WL 3998047, *6 (D.

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Ariz. Oct. 12, 2010). Therefore, quiet title is not an available remedy. Count 6 is dismissed.

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IT IS ORDERED GRANTING Freddie Mac’s motion to dismiss the complaint as

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to Freddie Mac (doc. 7).
DATED this 15th day of June, 2011.

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