Kuc v. Christiana Trust ARLP 3 et al

Filing 11

ORDER granting 6 Defendants' Motion to Dismiss. Plaintiff's claims are DISMISSED WITH PREJUDICE. The Clerk shall terminate this action. Signed by Judge Douglas L Rayes on 1/6/16.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony Joseph Kuc,
Plaintiff,

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ORDER

v.

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No. CV-15-08136-PCT-DLR

Christiana Trust ARLP 3, et al.,

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Defendants.

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Before the Court is Defendants’ Christiana Trust ARLP 3; Ocwen Loan Servicing,

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LLC; Western Progressive Arizona Inc.; and Fay Servicing, LLC’s Motion to Dismiss.

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(Doc. 6.) Defendants also request that the Court take judicial notice of several documents

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in connection with the mortgage at issue in this case. (Doc. 6-1.) No party requested oral

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argument. For the reasons stated below, Defendants’ motion to dismiss and request for

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judicial notice are granted.
BACKGROUND

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In 2007, Plaintiff Anthony Kuc obtained a Loan from Countrywide Bank, FSB

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(the “Loan”) to purchase property located at 5804 Kingman Reef Lane, Kingman,

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Arizona 86409. (Doc. 1 at 2-3).1 The Loan was secured by a Deed of Trust (“DOT”)

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Citations to pages in the Court’s docket are to the page numbers stamped at the
top of the page by the Court’s CM/ECF system, not the page numbers at the bottom of
each page.

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recorded against the same property. (Doc. 6-2 at 2.)2

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On June 16, 2011, Countrywide assigned the DOT to BAC Home Loans

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Servicing, LP (“BAC”). (Id. at 19.). On November 11, 2014, BAC assigned the DOT to

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Defendant Christiana Trust. (Id. at 20.) On February 18, 2015, Defendant Western

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Progressive was appointed as substitute trustee for the DOT. (Doc. 1 at 70.) After Kuc

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defaulted on the Loan, Western Progressive recorded a Notice of Trustee’s Sale and

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scheduled an auction of the property for August 3, 2015. (Doc. 6-2 at 27.) Before the

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auction, on July 30, 2015, Kuc filed this action seeking damages and injunctive relief

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against all Defendants. (Doc. 1.) Defendants now move to dismiss the complaint in its

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entirety.

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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 Alabels and conclusions@ or a

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Aformulaic recitation of the elements of a cause of action@; it must contain factual

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allegations sufficient to Araise a right to relief above the speculative level.@ Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Aa complaint need not contain

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detailed factual allegations . . . it must plead >enough facts to state a claim to relief that is

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plausible on its face.=@ Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir.

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2008) (quoting Twombly, 550 U.S. at 570). AA claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.@ Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Twombly, 550 U.S. at 556). The plausibility standard Aasks for more than a

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sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts

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Defendants’ request that the Court take judicial notice of five documents
pertaining to the Loan and foreclosure: (1) the Deed of Trust, (2) Assignment of the
Deed of Trust, (3) Substitution of Trustee, (4) Notice of Trustee’s Sale, and (5) Notice of
Lis Pendens. (Doc. 6-1.) The request is granted. Courts routinely take judicial notice of
loan documents in foreclosure cases. See e.g., Sparlin v. Select Portfolio Serv., Inc., 2012
WL 527486, at *8 (D. Ariz. Feb. 17, 2012) (“Generally, courts take judicial notice of
recorded loan/mortgage documents when their authenticity is not in dispute.”). Here, the
documents have been recorded, are a matter of public record, and Kuc does not contest
the authenticity of the documents.
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that are >merely consistent with= a defendant=s liability, it >stops short of the line between

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possibility and plausibility of entitlement to relief.=@

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(quoting Twombly, 550 U.S. at 557).

Id. (internal citations omitted)

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When analyzing a complaint for failure to state a claim under Rule 12(b)(6), A[a]ll

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allegations of material fact are taken as true and construed in the light most favorable to

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the nonmoving party.@ Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However,

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legal conclusions couched as factual allegations are not given a presumption of

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truthfulness, and Aconclusory allegations of law and unwarranted inferences are not

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sufficient to defeat a motion to dismiss.@ Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.

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1998).

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ANALYSIS

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Kuc brings three causes of action: (1) violation of the Real Estate Settlement

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Procedures Act (“RESPA”), (2) violation of the Fair Debt Collection Practices Act

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(“FDCPA”), and (3) violation of the Truth in Lending Act (“TILA”). (Doc. 1 at 1-9.)

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The complaint does not differentiate between the conduct of each Defendant. Instead, the

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allegations pertain collectively to all Defendants.

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I. RESPA Claim

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Kuc alleges that “Defendant(s) deliberately failed to respond completely, in a

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proper and timely way to Plaintiff’s ‘qualified written requests’ for information about,

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and corrections to, his mortgage account, in violation of 15 U.S.C. § 2605.” (Id. at 3-4.)

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Kuc attached his qualified written requests to the complaint. (Id. at 16-61.)3

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Section 2605 provides that “[i]f any servicer of a federally related mortgage loan

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receives a qualified written request from the borrower (or an agent of the borrower) for

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information relating to the servicing of such loan, the servicer shall provide a written

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response” and “provide the borrower with a written explanation or clarification that

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A court “may consider certain materials – documents attached to the complaint,
documents incorporated by reference in the complaint, or matters of judicial notice –
without converting the motion to dismiss into a motion for summary judgment.” United
States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).
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includes . . . information requested by the borrower [and] the name and telephone number

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of an individual employed by, or the officer or department of, the servicer who can

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provide assistance to the borrower.” 12 U.S.C. § 2605(e). A qualified written request

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must include the borrower’s information and include a statement of the reasons the

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borrower believes the account is in error. Id. § 2605(e)(1)(B). A qualified written

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request “is one that relates to the servicing of the loan.” Brabant v. JP Morgan Chase

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Bank, No. CV 11-00848-TUC-JGZ, 2012 WL 2572281, at *9 (D. Ariz. July 2, 2012)

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(citing Consumer Solutions REO, LLC v. Hillery, 658 F. Supp. 2d 1002, 1014 (N.D. Cal.

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2009)).

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Kuc’s qualified written requests are entitled: “Dispute of Debt and Validation of

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Debt” and “Dispute of Alleged Debt.” (Doc. 1 at 17, 47.) The documents contain several

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pages of summarized case law and largely dispute the validity of the Loan. Although the

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first request contains over twenty-five “servicing-related questions,” they do not relate to

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servicing of the Loan.

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assignments related to the mortgage. (Id. at 26-29.) In sum, neither of the alleged

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documents constitute qualified written requests within the meaning of RESPA, and thus

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the claim fails. See Brabant, 2012 WL 2572281, at *9.

Rather, they relate to the chain of title and the history of

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In addition, Kuc fails to allege facts demonstrating that he suffered actual damages

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as a result of Defendants’ alleged failure to respond. This is also grounds for dismissal of

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Kuc’s RESPA claim. See Amaral v. Wachovia Mortg. Corp., 692 F. Supp. 2d 1226, 1232

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(E.D. Cal. 2010) (“Absent factual allegations suggesting that Plaintiffs suffered actual

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damages, Plaintiffs’ RESPA claim is insufficiently pled and subject to dismissal.”). The

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complaint contains no factual allegations relating to actual damages. Kuc’s RESPA

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claim is dismissed.

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II. FDCPA Claim

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Kuc alleges Defendants violated the FDCPA. (Doc. 1 at 4-5.) However, Kuc

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merely recites several provisions of the Act without providing any specific factual

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allegations. There are no allegations regarding which Defendants, if any, attempted to

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collect a debt from Kuc or engaged in conduct that violates the FDCPA. Even construing

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Kuc’s allegations liberally, as the Court must at this stage, the allegations are mere legal

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conclusions and fail to state a valid FDCPA claim.

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III. TILA Claim

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Kuc’s TILA claim fares no better. Kuc alleges “Defendant(s) violated TILA by

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recording and sending Plaintiff falsified documents.” (Doc. 1 at 6.) But Kuc does not

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specify which documents were falsified, which party falsified the documents, when the

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alleged falsification took place, and what false information was contained in the

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documents. Kuc offers only a single conclusory allegation in support of this claim, and

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therefore the TILA claim fails.

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IV. Leave to Amend

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“Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S.

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519, 520-21 (1972), a pro se plaintiff must still satisfy the pleading requirements of

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Federal Rule of Civil Procedure 8(a).” Calugay v. GMAC Mortg., No. CV-09-1947-

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PHX-LOA, 2009 WL 3872356, at *2 (D. Ariz. Nov. 18, 2009). The Court has liberally

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construed Kuc’s complaint to find any way in which it could possibly state a claim to no

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avail. Kuc has not requested leave to amend, and this is Kuc’s fourth lawsuit regarding

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this matter in this Court.4 As such, the Court finds that the filing of an amended

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complaint would be futile against these Defendants, and Kuc’s claims are dismissed with

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prejudice.

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Kuc has filed three similar actions in this District against other parties regarding
the property at 5804 Kingman Reef Lane, all of which have been dismissed. See Case
Nos. 11-cv-8091-PCT-DGC (dismissed for lack of subject matter jurisdiction); 12-cv8024-PCT-FJM (state court case to quiet titled removed to federal court and ultimately
dismissed); 12-cv-8126-PCT-GMS (action to quiet title dismissed).
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IT IS ORDERED that Defendants’ motion to dismiss is GRANTED. Plaintiff’s
claims are DISMISSED WITH PREJUDICE. The Clerk shall terminate this action.
Dated this 6th day of January, 2016.

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Douglas L. Rayes
United States District Judge

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