Grecian v. Nationstar Mortgage LLC et al
Filing
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ORDER granting 25 Defendant's Motion to Dismiss. Plaintiff shall file an amended complaint on or before December 23, 2013. Signed by Judge David G Campbell on 12/10/13.(LSP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Todd P Grecian,
No. CV-13-08089-PCT-DGC
Plaintiff,
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v.
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Nationstar Mortgage LLC, et al.,
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ORDER
Defendants.
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Defendant Nationstar Mortgage, LLC has filed a motion to dismiss pursuant to
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Rules 8, 9(b), 12(b), and 41(b) of the Federal Rules of Civil Procedure. Doc. 25. For the
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reasons that follow, the Court will grant the motion.1
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I.
Relevant Facts.
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On June 13, 2004, Plaintiff obtained a loan secured by a deed of trust (“DOT”) on
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property at 3033 Palo Verde Boulevard South, Lake Havasu City, Arizona, in the amount
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of approximately $188,000. Doc. 22, ¶ 10. Defendant was the beneficiary of the DOT.
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Id., ¶ 9. Plaintiff fell behind on his loan payments in June 2011 and desired to cure the
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arrears with a loan modification. Id. ¶ 13. In late 2011, Plaintiff submitted a complete
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application for a loan modification to Aurora Loans, Defendant’s predecessor in interest.
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Id., ¶ 14. Nothing came of Plaintiff’s application for a loan modification. Defendant
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The Court denies the request for oral argument because the issues have been
fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P.
78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
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recorded a Notice of Trustee’s Sale under Deed of Trust on June 13, 2012, and scheduled
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a trustee’s sale of the property for September 18, 2012. Id., ¶ 10. Plaintiff alleges,
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however, that the sale did not occur and that he entered into negotiations with Defendant
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for a loan modification. Id., ¶ 12. These efforts bore fruit, and Plaintiff was granted a
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loan modification agreement that reduced his monthly payments to $1,155.09 for a year.
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Id., ¶ 15; Doc. 22-1 at 28. Plaintiff alleges that he was assured the property would not be
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sold at a trustee’s sale so long as he complied with the modified loan agreement. Id.,
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¶ 11. Nevertheless, on March 7, 2013, Defendant held a trustee’s sale of the property.
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Id. ¶¶ 17, 22.
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Plaintiff’s complaint asserts a claim for fraud, misrepresentation, and concealment.
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Id., ¶¶ 18-33. Plaintiff claims that Defendant, by and through its agents, including “M.
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Kanzler,” engaged in conduct aimed at defrauding Plaintiff by concealing “material facts
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known to them but not to PLAINTIFF regarding payments, notices, assignments,
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transfers, late fees and charges, loan modification, and the trustee’s sale or foreclosure
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with the intent to defraud PLAINTIFF.” Id., ¶¶ 19, 24. He asserts that Defendant “made
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the above-referenced false representations, concealment and nondisclosures with
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knowledge of the misrepresentations, intending to induce PLAINTIFF’ [sic] reliance,
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which the unsuspecting PLAINTIFF justifiably relied upon, resulting in damage to his
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credit standing, costs and loss of his property.” Id. ¶ 25.
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II.
Legal Standard.
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When analyzing a complaint for failure to state a claim to relief under
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Rule 12(b)(6), the well-pled factual allegations are taken as true and construed in the light
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most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th
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Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the
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assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and therefore are
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insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec.
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Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the
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complaint must plead enough facts to state a claim to relief that is plausible on its face.
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard “is not
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akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
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defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
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556). “A claim has facial plausibility when the plaintiff pleads factual content that allows
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the court to draw the reasonable inference that the defendant is liable for the misconduct
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alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court
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to infer more than the mere possibility of misconduct, the complaint has alleged – but it
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has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P.
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8(a)(2)).
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“Federal Rule of Civil Procedure 9(b) requires a pleader of fraud to detail with
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particularity the time, place, and manner of each act of fraud, plus the role of each
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defendant in the scheme.” Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940
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F.2d 397, 405 (9th Cir. 1991); see also Ebeid v. Lungwitz, 616 F.3d 993, 998 (9th Cir.
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2010) (explaining that a complaint alleging fraud must identify “the who, what, where,
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and how the misconduct charged,” as well as “what is false or misleading about [the
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purportedly fraudulent] statement, and why it is false.”) (internal quotation and citation
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omitted).
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III.
Analysis.
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On August 21, 2013, the Court granted Defendant’s motion to dismiss. Doc. 20.
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The Court granted Plaintiff leave to amend with respect to the claim for fraud. Id. at 7.
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The Court found that the original complaint failed adequately to plead who made
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misleading statements, what precisely was said, when they were made, where they were
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made, how Plaintiff relied on them, or what injury they caused. Id. at 4. The Court
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explained that these deficiencies needed to be remedied in the amended complaint. Id.
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They have not been remedied.
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The amended complaint provides more detail on Plaintiff’s fraud claim, but omits
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key facts needed to make the claim plausible. Plaintiff alleges that Defendant informed
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him that his loan modification had been approved and that his new monthly payment
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under the modification would be $1,155.09. Doc. 22, ¶ 16. In support of this allegation,
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Plaintiff cites a December 19, 2012 letter and related documents, attached to the amended
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complaint as Exhibit D. Id. Each time Plaintiff alleges that Defendant told him the loan
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had been modified, he refers directly or indirectly to Exhibit D. Id., ¶¶ 15, 16, 22, 23, 26,
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28. Exhibit D makes clear, however, that additional steps were required to complete the
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loan modification, including signing and returning certain documents and making an
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initial qualifying payment of $3,400. Doc. 22-1 at 22-23. Plaintiff does not allege that he
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signed and returned the documents or made the qualifying payment, and copies of the
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documents attached to the amended complaint are not signed.
Id.
Moreover, the
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amended complaint appears to state that Plaintiff made no payments under the loan
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modification. Doc. 22, ¶ 26.
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The allegations of the amended complaint and its attachments thus provide no
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detail about when and how Defendant allegedly represented that the loan had in fact been
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modified and that a trustee’s sale would not be held. Those key representations do not
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appear to be contained in the Exhibit D documents, and Plaintiff provides no other detail.
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The amended complaint does allege generally that such representations were made (see,
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e.g., ¶ 23), but it fails to provide the “who, what, when, and where” of these key
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representations. The Court therefore concludes that the amended complaint continues to
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fail the pleading standards of Rule 9(b) as set forth in its previous order. See Doc. 20.
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IV.
Leave to Amend.
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Because Plaintiff is proceeding pro se, the Court will grant him one final
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opportunity to amend. The second amended complaint must be filed by December 23,
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2013, and must address the deficiencies identified in this order and the Court’s previous
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order (Doc. 20). The second amended complaint should also specify the precise nature of
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Plaintiff’s fraud claim – whether it is common law fraud, fraudulent concealment, or
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some other kind of fraud claim. Plaintiff is warned that his claims will be dismissed
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without leave to amend if he fails again to satisfy required pleadings standards.
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IT IS ORDERED that Defendant’s motion to dismiss (Doc. 25) is granted.
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Plaintiff shall file an amended complaint on or before December 23, 2013.
Dated this 10th day of December, 2013.
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