Liewer et al v. Bank of America NA et al

Filing 25

ORDER granting 12 Motion to Dismiss for Failure to State a Claim; denying 19 Motion to Amend. The Clerk of Court shall terminate this lawsuit. Signed by Judge G Murray Snow on 5/17/12.(LAD)

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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 10 11 12 13 14 Patrick Liewer and Violet R. Liewer,) ) Husband and Wife, ) ) Plaintiffs, ) ) vs. ) ) ) Bank of America, N.A., et al., ) ) Defendants. ) ) No. CV-11-8206-PHX-GMS ORDER 15 16 Pending before the Court are Defendants’ Motion to Dismiss and Plaintiffs’ Motion 17 to Amend Complaint. (Docs. 12, 19). For the reasons stated below, Defendants’ motion is 18 granted and Plaintiffs’ motion is denied. BACKGROUND 19 20 On November 15, 2011, Plaintiffs, proceeding pro se, filed a complaint in Mohave 21 County Superior Court. (Doc. 1-1). Although the complaint was titled “Quiet Title” in its 22 caption, it contained only one count, for Breach of Contract. (Id.). On December 19, 2011, 23 Defendants removed the case to the District Court of Arizona pursuant to 28 U.S.C. § 1332 24 (2006). (Doc. 1). Defendants filed a motion to dismiss on January 9, 2012, and Plaintiffs 25 responded by moving to amend the complaint. (Docs. 12, 19). Defendants responded that the 26 Court should deny the motion to amend and dismiss the complaint because amendment 27 would be futile. (Doc. 21). Plaintiffs did not file a timely reply to Defendants’ response to 28 the motion to amend. 1 2 DISCUSSION I. Legal Standard 3 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 4 Procedure 12(b)(6), a complaint must contain more than “labels and conclusions” or a 5 “formulaic recitation of the elements of a cause of action”; it must contain factual allegations 6 sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 7 550 U.S. 544, 555 (2007). While “a complaint need not contain detailed factual allegations 8 . . . it must plead ‘enough facts to state a claim to relief that is plausible on its face.’” 9 Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 10 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 11 that allows the court to draw the reasonable inference that the defendant is liable for the 12 misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 13 U.S. at 556). The plausibility standard “asks for more than a sheer possibility that a defendant 14 has acted unlawfully.” When a complaint does not “permit the court to infer more than the 15 mere possibility of misconduct, the complaint has alleged—but it has not shown—that the 16 pleader is entitled to relief.”Iqbal, 129 S. Ct. at 1950 (internal quotation omitted). 17 A plaintiff may amend a complaint once as a matter of course within 21 days of 18 serving it. FED. R. CIV. P. 15(a)(1)(A). After 21 days, a plaintiff may only amend a complaint 19 with the court’s permission. Although the court “should freely give leave when justice so 20 requires,” leave to amend may be denied if amendment is futile. FED. R. CIV. P. 15(a)(2); see 21 Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“[W]e affirmed the district court’s 22 denial of a motion for leave to amend because the proffered amendments would be nothing 23 more than an exercise in futility.”). 24 II. Analysis 25 As detailed in their proposed Amended Complaint, Plaintiffs borrowed $245,000 from 26 Countrywide in exchange for a Promissory Note (the “Note”) secured by a Deed of Trust (the 27 “DOT”), which named Recontrust as trustee and MERS as the beneficiary. (Doc. 19-1, ¶¶ 28 3–6). At some point, Defendants received communications first from Defendant Bank of -2- 1 America and later from Defendant Seterus, Inc. (“Seterus”) that each was entitled to payment 2 on the loan; Seterus wrote that it was not in possession of any agreements between Bank of 3 America and Fannie Mae, which Seterus described as the current beneficiary. (Doc. 19-1, ¶¶ 4 9–14). Plaintiffs state that “no named defendant has produced written or verbal proof 5 clarifying who is the rightful beneficiary and recipient of payments of the September 2007 6 deed of trust.” (Doc. 19-1 ¶ 15). 7 Despite the prohibition set forth in LRCiv. 15.1, the Amended Complaint attempts to 8 incorporate the Breach of Contract claim from the original complaint, which reads, in its 9 entirety, “The parties entered into a contract for the services of a home modification, which 10 the Defendant’s has [sic] materially breached.” (Doc. 1-1 ¶ 24). Plaintiffs do not state what 11 terms of the Note—if the Note is indeed the contract to which this phrase refers—any 12 Defendant breached, and do not state which Defendant breached them. It does not provide 13 or reference any contract which requires any of the named Defendants to “produce[ ] written 14 or verbal proof clarifying who is the rightful beneficiary and recipient of payments of the 15 September 2007 deed of trust.” (Doc. 19-1 ¶ 15). “To bring an action for the breach of the 16 contract, the plaintiff has the burden of proving the existence of the contract, its breach and 17 the resulting damages.” Graham v. Asbury, 112 Ariz. 184, 185, 540 P.2d 656, 657 (1975). 18 Even taking all of the allegations in the Amended Complaint as true, Plaintiffs have not pled 19 any facts suggesting that a term of a contract was breached or that they were damaged 20 thereby. Count One is dismissed. 21 Plaintiffs ask the Court to quiet title “as to the correct, current beneficiary under the 22 deed of trust as alleged.” (Doc. 19-1 at 3). They do not claim an interest in the property 23 themselves, and in fact claim that Recontrust was “the undisputed trustee under the 24 September 2007 deed of trust.” (Doc. 19-1 at 3). A quiet title claim may only be brought “by 25 any one having or claiming an interest therein, whether in or out of possession, against any 26 person or the state when such person or the state claims an estate or interest in the real 27 property which is adverse to the party bringing the action.” Arizona Revised Statutes 28 (“A.R.S.”) § 12-1101(A). Plaintiffs have not alleged that they have an interest in the -3- 1 property, have not alleged that any person is claiming an interest adverse to theirs, and have 2 produced no theory by which they could bring suit to quiet title on behalf of a third party. 3 The Quiet Title claim is dismissed. 4 Even as amended, Plaintiffs’ complaint does not plead “enough facts to state a claim 5 to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Since granting leave to 6 amend “would be nothing more than an exercise in futility,” Plaintiffs’ motion to amend is 7 denied and Defendants’ motion to dismiss is granted. Bonin, 59 F.3d at 845. 8 IT IS THEREFORE ORDERED: 9 1. Defendants’ Motion to Dismiss (Doc. 12) is granted. 10 2. Plaintiffs’ Motion to Amend (Doc. 19) is denied. 11 3. The Clerk of Court shall terminate this lawsuit. 12 DATED this 17th day of May, 2012. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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