Baskin v. JPMorgan Chase Bank NA et al
Filing
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ORDER GRANTING defendants' motion to dismiss (doc. 6). IT IS FURTHER ORDERED DENYING defendants' motion for summary disposition (doc. 7) as moot. Signed by Judge Frederick J Martone on 9/13/2011.(KMG)
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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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Chase Home Finance LLC; Federal Home)
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Loan Corporation; and Does 1 thru 5,
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Defendants.
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No. CV 11-08083-PCT-FJM
John Baskin,
ORDER
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The court has before it defendants' motion to dismiss (doc. 6), plaintiff's response
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(doc. 10), defendants' reply (doc. 11), and defendants' motion for summary disposition (doc.
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7). For the reasons that follow, the court grants defendants' motion to dismiss and denies
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defendants' motion for summary disposition as moot.
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On September 29, 2003, plaintiff purchased a home in Camp Verde, Arizona. To
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finance his purchase, he executed a promissory note and a deed of trust. Plaintiff later
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defaulted on this note and a notice of trustee's sale was recorded on March 3, 2010. While
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the sale was first set for June 2, 2010, the sale was postponed several times and the trustee's
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sale did not occur until March 21, 2011. Plaintiff refuses to vacate the home and remains on
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the property.
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Plaintiff filed this action in the Superior Court of Arizona in Yavapai County on April
20, 2011. Defendants removed this case on May 25, 2011 and now move to dismiss.
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II
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When considering a motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., "a
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court must construe the complaint in the light most favorable to the plaintiff and must accept
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all well-pleaded factual allegations as true." Shwarz v. United States, 234 F.3d 428, 435 (9th
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Cir. 2000). The complaint must contain "enough facts to state a claim to relief that is
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plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Dismissal
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under Rule 12(b)(6) may be "based on the lack of a cognizable legal theory or the absence
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of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police
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Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
III
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Plaintiff filed his complaint more than a year after the notice of trustee's sale was
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recorded and almost a full month after the trustee's sale occurred. Under A.R.S. § 33-
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811(C),
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[t]he trustor . . . shall waive all defenses and objections to the sale not raised
in an action that results in the issuance of a court order granting relief pursuant
to rule 65, Arizona rules of civil procedure, entered before 5:00 p.m. mountain
standard time on the last business day before the scheduled date of the sale.
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Plaintiff did not file a motion in state or federal court before the sale, much less obtain
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a court order for injunctive relief. By failing to comply with this statute, plaintiff waived his
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claim for relief. He alleges that he "never received proper Notice of Trustee Sale from the
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beneficial party in interest" but he does not allege that he received no notice at all. Compl.
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¶ 27. Indeed, even if he intended to allege a total lack of notice, the statute does not require
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the trustor to have actual notice of the sale. Thus, he waived any defenses or objections to
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the sale since he did not obtain injunctive relief before the sale date.
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IV
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IT IS ORDERED GRANTING defendants' motion to dismiss (doc. 6).
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IT IS FURTHER ORDERED DENYING defendants' motion for summary
disposition (doc. 7) as moot.
DATED this 13th day of September, 2011.
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