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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Patrick Liewer and Violet R. Liewer,)
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Husband and Wife,
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Plaintiffs,
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vs.
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Bank of America, N.A., et al.,
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Defendants.
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No. CV-11-8206-PHX-GMS
ORDER

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Pending before the Court are Defendants’ Motion to Dismiss and Plaintiffs’ Motion

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to Amend Complaint. (Docs. 12, 19). For the reasons stated below, Defendants’ motion is

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granted and Plaintiffs’ motion is denied.
BACKGROUND

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On November 15, 2011, Plaintiffs, proceeding pro se, filed a complaint in Mohave

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County Superior Court. (Doc. 1-1). Although the complaint was titled “Quiet Title” in its

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caption, it contained only one count, for Breach of Contract. (Id.). On December 19, 2011,

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Defendants removed the case to the District Court of Arizona pursuant to 28 U.S.C. § 1332

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(2006). (Doc. 1). Defendants filed a motion to dismiss on January 9, 2012, and Plaintiffs

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responded by moving to amend the complaint. (Docs. 12, 19). Defendants responded that the

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Court should deny the motion to amend and dismiss the complaint because amendment

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would be futile. (Doc. 21). Plaintiffs did not file a timely reply to Defendants’ response to

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the motion to amend.

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DISCUSSION
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Legal Standard

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To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil

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Procedure 12(b)(6), a complaint must contain more than “labels and conclusions” or a

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“formulaic recitation of the elements of a cause of action”; it must contain factual allegations

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sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007). While “a complaint need not contain detailed factual allegations

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. . . it must plead ‘enough facts to state a claim to relief that is plausible on its face.’”

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Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly,

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550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550

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U.S. at 556). The plausibility standard “asks for more than a sheer possibility that a defendant

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has acted unlawfully.” When a complaint does not “permit the court to infer more than the

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mere possibility of misconduct, the complaint has alleged—but it has not shown—that the

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pleader is entitled to relief.”Iqbal, 129 S. Ct. at 1950 (internal quotation omitted).

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A plaintiff may amend a complaint once as a matter of course within 21 days of

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serving it. FED. R. CIV. P. 15(a)(1)(A). After 21 days, a plaintiff may only amend a complaint

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with the court’s permission. Although the court “should freely give leave when justice so

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requires,” leave to amend may be denied if amendment is futile. FED. R. CIV. P. 15(a)(2); see

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Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“[W]e affirmed the district court’s

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denial of a motion for leave to amend because the proffered amendments would be nothing

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more than an exercise in futility.”).

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II.

Analysis

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As detailed in their proposed Amended Complaint, Plaintiffs borrowed $245,000 from

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Countrywide in exchange for a Promissory Note (the “Note”) secured by a Deed of Trust (the

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“DOT”), which named Recontrust as trustee and MERS as the beneficiary. (Doc. 19-1, ¶¶

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3–6). At some point, Defendants received communications first from Defendant Bank of
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America and later from Defendant Seterus, Inc. (“Seterus”) that each was entitled to payment

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on the loan; Seterus wrote that it was not in possession of any agreements between Bank of

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America and Fannie Mae, which Seterus described as the current beneficiary. (Doc. 19-1, ¶¶

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9–14). Plaintiffs state that “no named defendant has produced written or verbal proof

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clarifying who is the rightful beneficiary and recipient of payments of the September 2007

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deed of trust.” (Doc. 19-1 ¶ 15).

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Despite the prohibition set forth in LRCiv. 15.1, the Amended Complaint attempts to

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incorporate the Breach of Contract claim from the original complaint, which reads, in its

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entirety, “The parties entered into a contract for the services of a home modification, which

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the Defendant’s has [sic] materially breached.” (Doc. 1-1 ¶ 24). Plaintiffs do not state what

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terms of the Note—if the Note is indeed the contract to which this phrase refers—any

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Defendant breached, and do not state which Defendant breached them. It does not provide

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or reference any contract which requires any of the named Defendants to “produce[ ] written

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or verbal proof clarifying who is the rightful beneficiary and recipient of payments of the

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September 2007 deed of trust.” (Doc. 19-1 ¶ 15). “To bring an action for the breach of the

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contract, the plaintiff has the burden of proving the existence of the contract, its breach and

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the resulting damages.” Graham v. Asbury, 112 Ariz. 184, 185, 540 P.2d 656, 657 (1975).

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Even taking all of the allegations in the Amended Complaint as true, Plaintiffs have not pled

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any facts suggesting that a term of a contract was breached or that they were damaged

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thereby. Count One is dismissed.

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Plaintiffs ask the Court to quiet title “as to the correct, current beneficiary under the

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deed of trust as alleged.” (Doc. 19-1 at 3). They do not claim an interest in the property

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themselves, and in fact claim that Recontrust was “the undisputed trustee under the

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September 2007 deed of trust.” (Doc. 19-1 at 3). A quiet title claim may only be brought “by

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any one having or claiming an interest therein, whether in or out of possession, against any

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person or the state when such person or the state claims an estate or interest in the real

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property which is adverse to the party bringing the action.” Arizona Revised Statutes

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(“A.R.S.”) § 12-1101(A). Plaintiffs have not alleged that they have an interest in the
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property, have not alleged that any person is claiming an interest adverse to theirs, and have

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produced no theory by which they could bring suit to quiet title on behalf of a third party.

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The Quiet Title claim is dismissed.

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Even as amended, Plaintiffs’ complaint does not plead “enough facts to state a claim

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to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Since granting leave to

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amend “would be nothing more than an exercise in futility,” Plaintiffs’ motion to amend is

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denied and Defendants’ motion to dismiss is granted. Bonin, 59 F.3d at 845.

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IT IS THEREFORE ORDERED:

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1.

Defendants’ Motion to Dismiss (Doc. 12) is granted.

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2.

Plaintiffs’ Motion to Amend (Doc. 19) is denied.

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3.

The Clerk of Court shall terminate this lawsuit.

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DATED this 17th day of May, 2012.

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