Albritton v. Tiffany & Bosco PA et al

Filing 43

ORDER denying 42 Motion for TRO or, in the alternative, a Permanent Injunction; granting 10 Motion to Dismiss and 11 Motion to Dismiss. It is further ordered that Plaintiff's Objection to Magistrate Judge's Pretrial Order of April 23, 2013 (Doc. 41 ) is construed as a Motion to Reconsider and DENIED. Signed by Magistrate Judge Hector C Estrada on 6/18/13. (KAH)

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1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 Sabra Albritton, 9 10 Plaintiff, vs. 11 Tiffany And Bosco; P.A., et al., 12 Defendants. 13 ) ) ) ) ) ) ) ) ) ) ) No. CV 12-924-TUC-HCE ORDER 14 15 The Magistrate Judge has jurisdiction over this matter pursuant to the parties’ 16 consent. See 28 U.S.C. § 636(c). (Doc. 30). 17 Pending before the Court are: (1) Plaintiff’s Objection to Magistrate Judge’s Pretrial 18 Order of April 23, 2013 (Doc. 41), which the Court construes as a motion for 19 reconsideration; (2) the Tiffany and Bosco Defendants’ Motion to Dismiss (Doc. 10); (3) 20 Defendant Bank of New York Mellon’s Motion to Dismiss (Doc. 11), in which the Tiffany 21 and Bosco Defendants join (see Doc. 10, p.1); and (4) Plaintiff’s Application for a 22 Temporary Restraining Order or in the Alternative a Permanent Injunction (Doc. 42). For 23 the following reasons, this matter is dismissed for failure to state a claim. 24 I. FACTUAL & PROCEDURAL BACKGROUND 25 Plaintiff has filed the instant pro se Complaint pursuant to the Fair Debt Collection 26 Practices Act (hereinafter “FDCPA”), 15 U.S.C. § 1692 et seq., arising from Defendants’ 27 attempt to non-judicially foreclose on a deed of trust. (Doc. 1). Plaintiff also seeks a 28 1 permanent injunction and declaratory relief. The named Defendants are: Bank of New York 2 Mellon (hereinafter “BNYM”); Tiffany and Bosco, P.A.; and several individuals from the 3 firm of Tiffany of and Bosco, collectively referred to as the T&B Defendants.1 4 In 2006, Plaintiff borrowed $229,045 (hereinafter “Loan”) from Soma Financial 5 (hereinafter “Lender”) to purchase property located at 2541 Sierra Bermeja Drive, Sierra 6 Vista, Arizona. (Complaint, Exh. 1). The accompanying Deed of Trust (hereinafter “DOT”) 7 named Pioneer Title Agency, Inc., as the Trustee. (Complaint, Exh. 2). Additionally, the 8 DOT specified that Mortgage Electronic Registration Systems, Inc. (“MERS”), which was 9 “acting solely as a nominee for Lender and Lender’s successors and assignees”, was named 10 as beneficiary.2 On August 5, 2011, MERS, through Jorge Valadez, Assistant Secretary of 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The individual T&B Defendants are: Michael A. Bosco; Michael E. Tiffany; Patricia A. Pike; Leonard J. McDonald, Jr.; and David W. Cowles. 2 The Ninth Circuit has recognized that: MERS is a private electronic database, operated by MERSCORP, Inc., that tracks the transfer of the “beneficial interest” in home loans, as well as any changes in loan servicers. After a borrower takes out a home loan, the original lender may sell all or a portion of its beneficial interest in the loan and change loan servicers. The owner of the beneficial interest is entitled to repayment of the loan. For simplicity, we will refer to the owner of the beneficial interest as the “lender.” The servicer of the loan collects payments from the borrower, sends payments to the lender, and handles administrative aspects of the loan. Many of the companies that participate in the mortgage industry—by originating loans, buying or investing in the beneficial interest in loans, or servicing loans—are members of MERS and pay a fee to use the tracking system. See Jackson v. Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487, 490 (Minn.2009). *** MERS was designed to avoid the need to record multiple transfers of the deed by serving as the nominal record holder of the deed on behalf of the original lender and any subsequent lender. Jackson, 770 N.W.2d at 490. At the origination of the loan, MERS is designated in the deed of trust as a nominee for the lender and the lender's “successors and assigns,” and as the deed's “beneficiary” which holds legal title to the security interest conveyed. If the lender sells or assigns the beneficial interest in the loan to another MERS member, the change is recorded only in the MERS database, -2- 1 MERS, assigned the DOT to “The Bank of New York Mellon FKA the Bank of New 2 Trustee for the Certificateholders [sic] CWALT, Inc., Alternative Loan Trust 2006- 3 OA3 Mortgage Pass-Through Certificates, Series 2006-OA3.” (BNYM’s Motion to Dismiss, 4 p. 2) see also Complaint, Exh. 3 (the assignment was recorded in Cochise County, Arizona, 5 on August 11, 2011).3 On August 9, 2012, Defendant BNYM executed a Substitution of 6 7 not in county records, because MERS continues to hold the deed on the new lender's behalf. If the beneficial interest in the loan is sold to a non-MERS member, the transfer of the deed from MERS to the new lender is recorded in county records and the loan is no longer tracked in the MERS system. 8 9 10 Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1038-39 (9th Cir. 2011). 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3 Plaintiff and Defendant BNYM refer to CWALT, Inc., Alternative Loan Trust 2006OA3 Mortgage Pass-Through Certificates as a real estate mortgage investment conduit trust (hereinafter “REMIC”). (See ¶. 15, 25; BNYM’s Motion to Dismiss, p. 2). The District Court fo the Eastern District of California has noted that: “Real Estate Mortgage Investment Conduits or ‘REMICS’... are trusts established to facilitate under favorable tax consequences the issuance of asset-backed securities in the form of beneficial interests in large pools of real estate mortgages. Typically an institutional lender or ‘depositor’ assembles a pool of mortgages which it or an affiliated investment bank deposits into a trust administered by a trustee, which then issues certificates of beneficial ownership to investors. The trust holds the mortgages for the benefit of the certificate holders. When homeowners ... make their monthly mortgage payments, or pay off their mortgages[, or] when they sell or refinance, the payments go to the trust and are passed through to the certificate holders ....” Deutsche Bank National Trust Company v. DeFranco, 2011 WL 1759816, at *1 n. 1 (Conn.Super.3/14/11) (internal quotation & citation omitted; cited as provided by Connecticut Rules of Appellate Procedure, 2011 Connecticut Practice Book, Chapter 67, § 67–11). Pederson v. Greenpoint Mortg. Funding, Inc., 2011 WL 3818560, at *14 (E.D.Cal. Aug. 29, 25 2011). 26 27 28 -3- 1 Trustee appointing Defendant David W. Cowles as the successor trustee (hereinafter 2 “Trustee”).4 (Complaint, Exh. 10). The Substitution of Trustee was recorded in Cochise 3 County, Arizona, on October 5, 2012, at 4:28 p.m. (Id.). On October 4, 2012, the Trustee 4 executed a Notice of sale pursuant to the DOT to occur on January 4, 2013. (Complaint, 5 Exh. 11). The Notice was recorded in Cochise County, Arizona, on October 5, 2012, at 4:28 6 p.m. (Id.). Plaintiff filed the instant Complaint on December 26, 2012, and the sale has not 7 occurred. However, Plaintiff has notified the Court that the Trustee has noticed the sale for 8 June 21, 2013. (Doc. 43, p.2 & Exh. 1). 9 II. PLAINTIFF’S OBJECTION 10 Plaintiff has filed an objection to this Court’s order of April 23, 2013 (Doc. 41). 11 Because all parties have consented to the jurisdiction of the Magistrate Judge in this case, 12 upon entry of judgment, an aggrieved party may appeal directly to the United States court 13 of appeals from the judgment of the magistrate judge in the same manner as an appeal from 14 any other judgment of a district court. See 28 U.S.C. § 636(c). There is, however, no statutory 15 provision for the interim filing of objections to a magistrate judge’s pretrial rulings or orders. 16 See id. Accordingly, the Magistrate Judge construes Plaintiff's document as a motion for 17 reconsideration of the Court's order of April 23, 2013 (Doc. 41). "Motions to reconsider are 18 appropriate only in rare circumstances." Defenders of Wildlife v. Browner, 909 F. Supp. 19 1342, 1351 (D. Ariz. 1995). "The purpose of a motion for reconsideration is to correct 20 manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. 21 Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Such motions should not be used for the purpose 22 of asking a court "'to rethink what the court had already thought through–rightly or 23 wrongly.'" Defenders of Wildlife, 909 F. Supp. at 1351 (quoting Above the Belt, Inc. v. Mel 24 25 26 27 28 4 The Substitution of Trustee indicates that it was executed by Bank of America as attorney in fact and was signed by Barbara Sawyer, Assistant Vice President. (Complaint, Exh. 10; see also Complaint, Exh. 5 (indicating that the loan servicer is Bank of America/Fidelity)). -4- 1 Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). Plaintiff reasserts the same 2 legal and factual arguments raised in her previous motions, and argues that the Magistrate 3 Judge’s interpretation of the law is incorrect. Plaintiff's document provides no basis for 4 reconsideration of the Magistrate Judge’s order and is therefore denied. Further, to the extent 5 Plaintiff refers to the Court’s authority to vacate the referral to the Magistrate Judge under 6 “extraordinary circumstances,” Plaintiff neither states as cause any extraordinary 7 circumstances, nor requests as relief that the referral be vacated. Thus, Plaintiff’s objections 8 will not be construed as a motion to vacate the referral pursuant to 28 U.S.C. §636(c)(4). 9 III. DEFENDANTS’ MOTIONS TO DISMISS 10 Defendants seek dismissal of this action pursuant to Rule 12(b) of the Federal Rules 11 of Civil Procedure for failure to state a claim. Although Plaintiff was advised of the 12 requirements set out in LRCiv 7.2, Rules of Practice of the U.S. District Court for the District 13 of Arizona, for filing a response to the motions and that her failure to respond may result in 14 granting of the motions summarily (see Doc. 14), Plaintiff did not file any documents 15 captioned as responses. Instead, Plaintiff maintains that she “previously responded to 16 [D]efendants’ motion to dismiss in her Replies to [D]efendants’ responses to Plaintiff’s 17 Motion to Strike in March 2013, [Dkt 25] and [Dkt 28] beginning on pages 5 of the Replies; 18 EFFECT IF THE DEFENDANTS’ ‘MOTION TO DISMISS’ IS GRANTED.’ Plaintiff 19 does not wish to be repetitive or redundant.” (Doc. 41, p. 6). In light of Plaintiff’s pro se 20 status, the Court will consider the documents cited by Plaintiff as her responses. 21 Defendants argue that the FDCPA does not apply to this action, nor does Plaintiff’s 22 reliance on the Uniform Commercial Code (hereinafter “UCC”) or a fraud theory alter this 23 conclusion. Further, according to Defendants, Plaintiff’s Chapter 7 discharge has no effect 24 on the DOT. Therefore, Defendants assert that Plaintiff fails to state a claim for relief and this 25 action must be dismissed pursuant to Fed.R.Civ.P. 12(b). 26 Plaintiff, contending that her allegations must be accepted as true, essentially restates 27 the allegations and legal contentions advanced in her Complaint. (See Doc. 25, pp. 5-9; Doc. 28 28, pp. 5-9). -5- 1 A. 2 “‘To survive a motion to dismiss [under Fed.R.Civ.P. 12(b)(6)], a complaint must 3 contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible 4 on its face;’ that is, plaintiff must ‘plead[ ] factual content that allows the court to draw the 5 reasonable inference that the defendant is liable for the misconduct alleged.’” Telesaurus 6 VPC, LLC. v. Power, 623 F.3d 998, 1003 (9th Cir. 2010), cert. denied, __ U.S. __, 132 S.Ct. 7 95 (2011), (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Moss v. United 8 States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (to defeat a motion to dismiss, the “non- 9 conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly 10 suggestive of a claim entitling the plaintiff to relief.”). Dismissal under Rule 12(b)(6) “can 11 be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 12 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th 13 Cir. 1988), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 530 U.S. 544 (2007). 14 “[T]he tenet that a court must accept as true all of the allegations contained in a 15 complaint...” does not apply to legal conclusions. Iqbal, 556 U.S. at 678; see also 16 Telesaurus, 623 F.3d. at 1003 (pleadings that are no more than legal conclusions “‘are not 17 entitled to the assumption of truth.’”) (quoting Iqbal, 556 U.S. at 679). Thus, “[t]hreadbare 18 recitals of the elements of a cause of action, supported by mere conclusory statements, do not 19 suffice.” Iqbal, 556 U.S. at 678. Moreover, the court “cannot assume any facts necessary 20 to the [plaintiffs’]... claim that they have not alleged.” Jack Russell Terrier Network of 21 Northern Calif. v. American Kennel Club, Inc., 407 F.3d 1027, 1035 (9th Cir. 2005). Standard 22 However, the court will assume “‘well-pleaded factual allegations,’ be true, ‘and 23 then determine whether they plausibly give rise to an entitlement to relief.’” Telesaurus, 623 24 F.3d. at 1003 (quoting Iqbal, 556 U.S. at 679); see also Iqbal, 556 U.S. at 678 (“A claim has 25 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 26 reasonable inference that the defendant is liable for the misconduct alleged.”). “The 27 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a 28 sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. -6- 1 Determining plausibility is a “context-specific task...” that requires the court to “draw on its 2 judicial experience and common sense.” Id. at 679. A complaint cannot survive dismissal 3 where the court can only infer that a claim is merely possible rather than plausible. Id. 4 As a general rule, the district court may not consider any material beyond the 5 pleadings when resolving a motion to dismiss for failure to state a claim. Lee v. City of Los 6 Angeles, 250 F.3d 668, 688 (9th Cir. 2001), impliedly overruled on other grounds as 7 discussed in Gallardo v. DiCarlo, 203 F.Supp.2d 1160, 1162 n.2 (C.D. Cal. 2002). 8 However, the court may consider material submitted as part of the complaint, such as the 9 exhibits which Plaintiff has attached to her Complaint. See Id. 10 When the plaintiff is pro se, the complaint must be liberally construed in the interests 11 of justice. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se pleadings are held to “less 12 stringent standards than formal pleadings drafted by lawyers...”); Hebbe v. Pliler, 627 F.3d 13 338, 342 (9th Cir. 2010) (courts must “continue to construe pro se filings liberally....”); 14 Johnson v. Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975)(“Pleadings should be liberally 15 construed in the interests of justice, particularly when a pleader is not learned in the law.”). 16 Nonetheless, "[p]ro se litigants must follow the same rules of procedure that govern other 17 litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by 18 Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012); see also Ghazali v. Moran, 46 F.3d 19 52 (9th Cir. 1995) ("pro se litigants are bound by the rules of procedure."). 20 If the Court determines that a pleading could be cured by the allegation of other facts, 21 a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the 22 action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court 23 should not, however, advise the litigant how to cure the defects. This type of advice “would 24 undermine district judges’ role as impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 25 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was 26 required to inform a litigant of deficiencies). 27 B. Introduction 28 Arizona’s Deed of Trust Act, A.R.S. §§ 33-801 to 33-821, “is a comprehensive set of -7- 1 statutes governing the execution and operation of deeds of trust.” In re Bisbee, 157 Ariz. 31, 2 33, 754 P.2d 1135, 1137 (1988); see also Patton v. First Fed. Sav. & Loan Ass’n. of Phoenix, 3 118 Ariz. 473, 476, 578 P.2d 152, 155 (1978) (Arizona’s Deed of Trust “statutes set forth the 4 only procedure for a valid trustee’s sale.”). The Arizona court has recognized that in contrast 5 to a mortgage, which “generally may be foreclosed only by filing a civil action..., under a 6 Deed of Trust, the trustee holds a power of sale permitting him to sell the property out of 7 court with no necessity of judicial action.” Patton, 473 Ariz. at 477, 578 P.2d at 156. See 8 also Hogan v. Washington Mut. Bank, 230 Ariz. 584, ¶5, 277 P.3d 781, 782-83 (2012) 9 (“When parties execute a deed of trust and the debtor thereafter defaults, A.R.S. §33-807 10 empowers the trustee to sell the real property securing the underlying note through a non- 11 judicial sale.”). 12 C. 13 All seven of Plaintiff’s causes of action are brought specifically pursuant to the 14 FDCPA FDCPA. 15 “As a threshold matter, the FDCPA applies only to a debt collector who engages in 16 practices prohibited by the Act in an attempt to collect a consumer debt.” Mansour v. Cal- 17 Western Reconveyance Corp., 618 F.Supp.2d 1178, 1182 (D. Ariz. 2009). Courts within the 18 Ninth Circuit, as well as other circuit courts, have consistently held that “mortgagees and 19 their beneficiaries, including mortgage servicing companies, are not debt collectors subject 20 to the FDCPA.” Id. at 1182. See also Diessner v. MERS, 618 F.Supp. 2d 1184 (D. Ariz. 21 2009) (mortgagees and their assignees are not debt collectors under the FDCPA), aff’d 384 22 Fed.Appx. 609 (9th Cir. 2010); Zinni v. Jackson White, P.C., 2012 WL 869008, at *2 (D. 23 Ariz. Mar. 4, 2012) (“Because a foreclosure trustee is not a debt collector and a non-judicial 24 foreclosure is not the collection of a debt, plaintiffs’ FDCPA claim must be dismissed.”; 25 Pryzblyski v. Stumpf, 2011 WL 31194, at *5 (D. Ariz. Jan. 5, 2011) (“As Monsour makes 26 plain, Plaintiff can state no Fair Debt Collection Practices Claim... that arises from a non- 27 judicial foreclosure proceeding, because a ‘non-judicial foreclosure proceeding is not the 28 collection of a ‘debt’ for purposes of the FDCPA.”); Hulse v. Ocwen Fed. Bank, FSB, 195 -8- 1 F.Supp.2d 1188, 1204 (D. Or. 2002) (“[T]he activity of foreclosing on [real] property 2 pursuant to a deed of trust is not the collection of a debt within the meaning of the 3 FDCPA.”); Perry v. Stewart Title, 756 F.2d 1197, 1208 (5th Cir. 1985) (neither mortgage 4 servicing company nor pre-default assignee on promissory note were debt collectors). 5 Accordingly, Defendants are not considered debt collectors under the FDCPA, thus Plaintiff 6 fails to state a claim under the FDCPA. 7 1. Allegations challenging the validity of the assignment and substitution 8 of Trustee 9 Because all of Plaintiff’s claims are premised on the FDCPA, her entire Complaint 10 must be dismissed for failure to state a claim. Within her FDCPA claims, Plaintiff advances 11 allegations attacking the validity of Defendant BNYM’s authority, asserting violation of the 12 UCC, claiming that the obligation was discharged, and claiming fraud. Defendant BNYM 13 has addressed these claims. Construing Plaintiff’s Complaint liberally, to any extent that 14 Plaintiff’s allegations could be read to challenge the conclusion that Defendants lack 15 authority to take the actions they have which have led to initiation of non-judicial foreclosure 16 proceedings and which exclude them from the definition of debt collectors under the 17 FDCPA, such claims would also be subject to dismissal. For example, Plaintiff challenges 18 Defendant BNYM’s authority to act as beneficiary. According to Plaintiff, the assignment 19 to Defendant BNYM was not properly perfected because the “original note and deed of 20 trust...never left Countrywide’s possession, in 2006 when the trust was originally formed” 21 (Complaint, p. 9) and because Defendant BNYM “did not file the assignment of the notes 22 or deeds of trust prior to the expiration of the ninety (90) day period as required by...” the 23 Internal Revenue Code, section 860 governing REMICs. (Id. at p. 25). Plaintiff also alleges 24 that MERS “who is not named on the Note, attempted to transfer the deed of trust hoping that 25 this would operate to transfer the...” Note. (Id. at p. 19). According to Plaintiff, there is a 26 question whether the assignment to Defendant BNYM was accomplished. (Id. at pp. 9-10). 27 First, 26 U.S.C. § 860, relied upon by Plaintiff, addresses deductions for deficiency 28 dividends and has no bearing on the instant matter. Second, the DOT, which clearly -9- 1 references the underlying Note, (see Complaint, Exh. 2, p.1), specifically indicates MERS 2 “is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the 3 beneficiary under this Security Instrument.” (Id.). Third, in her Complaint, Plaintiff cites 4 Kemp v. Countrywide Home Loans, Inc., 440 B.R. 624 (D.N.J. 2010), to support her theories 5 that the Note was never transferred. (See Complaint, pp. 15-16). Kemp was decided under 6 New Jersey law and is inapposite. Under Arizona law, “the transfer of a contract secured by 7 a deed of trust ‘shall operate as a transfer of the security for such contract.’ A.R.S. §33-817.” 8 In re Vasquez, 228 Ariz. 357, 359, 266 P.3d 1053, 1055 (2011). Additionally, the Arizona 9 Supreme Court has held that beneficiaries are not required to show ownership of the note that 10 a deed of trust secures before a trustee can conduct a non-judicial foreclosure sale. Hogan 11 v. Washington Mutual Bank, N.A., 230 Ariz. 584 at ¶8, 277 P.3d 781, 783 (2012). Instead, 12 “[t]he only proof of authority the trustee’s sales statutes require is a statement indicating the 13 basis for the trustee’s authority.” Id. (citations omitted) (emphasis added). See also Cardin 14 v. Wilmington Finance, Inc., 2013 WL 1123815 at *2 (D. Ariz. Mar. 18, 2013) (relying on 15 Hogan and other cases from the District of Arizona to reject the plaintiffs’ claim based on 16 “the theory that in order to foreclose[,] a party must show possession of the original note....”); 17 Hensley v. Bank of New York Mellon, 2013 WL 791294 at *5 (D. Ariz. Mar. 4, 2013) 18 (relying on Hogan to reject the plaintiff’s claim that the defendant must show ownership or 19 otherwise document its right to enforce the underlying note prior to selling the real property 20 secured by the underlying note through a non-judicial sale.). 21 Moreover, as Defendant BNYM points out, under Arizona law the fact that the 22 assignment of the mortgage was recorded five years after it was made does not defeat 23 Defendant BNYM’s status as beneficiary of the DOT. (Defendant BNYM’s Motion to 24 Dismiss, p. 4). The Arizona Supreme Court has made clear that “Arizona law expressly 25 provides that ‘[u]nrecorded instruments, as between the parties and their heirs...shall be valid 26 and binding.’” In re Vasquez, 228 Ariz. at 359, 266 P.3d at 1055 (quoting A.R.S. §33- 27 412(B)) (holding that Arizona law “does not require that an assignment of a deed of trust be 28 recorded before recording the notice of trustee’s sale.”). Consequently, “while the failure to - 10 - 1 record an assignment of a deed of trust might leave an assignees unprotected against claims 2 by some purchasers or creditors, it does not affect a deed’s validity as to the obligor.” Id. 3 Thus, any delay in recording the assignment does not defeat Defendant BNYM’s interest vis 4 a vis Plaintiff. See id. 5 Plaintiff also attempts to invalidate the assignment from MERS to Defendant BNYM 6 and designation of Defendant Cowles as successor trustee by alleging that Mr. Valadez, on 7 behalf of MERS, and Ms. Sawyer, on behalf of Defendant BNYM, acted without actual 8 authority. (See Complaint, pp. 8, 10). Defendants assert that “[r]egardless whether or not 9 Mr. Valadez had authority when he executed the Assignment, [Defendant] BNYM does not 10 contest his actions, and therefore, ratifies them.” (Defendant BNYM’s Motion to Dismiss, 11 p. 6 (citing Brown v. Bank of America N.A., 2011 WL 2633150, at *1 (D. Nev. July 5, 2011) 12 (“Plaintiff argues that the employees who signed various documents might not have had 13 authority to do so...but the fact that Defendants desire to proceed with foreclosure is proof 14 of ratification of these employees’ actions.”)). 15 Defendants’ argument on this issue. Instead, Plaintiff merely restated her allegations as 16 raised in the Complaint. (See Doc. 25, p.8; Doc. 28, p.8). “Parties must come forward with 17 their points and authorities in support of or in opposition to a motion.” E.E.O.C. v. Eagle 18 Produce, L.L.C., 2008 WL 2796407, at *2 (D. Ariz. July 18, 2008). Plaintiff’s failure to 19 respond to Defendants’ argument “serves as an independent basis upon which to grant...” 20 Defendants’ Motion to Dismiss on this issue. Currie v. Maricopa County Cnty. Coll. Dist., 21 2008 WL 2512841, at *2 n.1 (D. Ariz. June 20, 2008). Plaintiff did not specifically respond to 22 Moreover, to survive dismissal, the facts alleged by the plaintiff must be sufficient to 23 nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 547. 24 Plaintiff claims that Mr. Valadez acted without authority because a 2012 case mentions that 25 Jorge Valadez is Vice President of Recontrust. (See Complaint, p. 10 (citing Riehm v. 26 Countrywide Home Loans, Inc., 2012 WL 3686798, at * 4 (D. Nev. Aug. 27, 2012)). 27 Regardless, this does not support the conclusion that Mr. Valadez was without authority to 28 act on behalf of MERS. On the instant record, Plaintiff’s conclusory allegations fail to state - 11 - 1 a claim. See Bergdale v. Countrywide Bank FSB, 2012 WL 4120482, at *5 (D. Ariz. Sept. 2 18, 2012) (rejecting claim that individual did not have authority to sign as Assistant Secretary 3 of MERS where such claim had no legal support and the plaintiff “pleads no fact that 4 suggests that [the individual named] was not an Assistant Secretary of MERS.”); Phillips 5 v. Wells Fargo Bank, N.A., 2009 WL 3756698 at *4 (S.D. Cal. Nov. 6, 2009) (dismissing 6 claim where the plaintiff failed to support allegation that assignment was made by an 7 individual who was not Vice President of MERS). 8 Plaintiff’s claim that Ms. Sawyer lacked authority may be based on Plaintiff’s 9 allegation that Defendant BNYM was without authority and, thus it follows that Ms. 10 Sawyer’s actions in reliance on Defendant BNYM’s interest were invalid. Such a claim 11 cannot stand given the August 5, 2011 assignment of the DOT to Defendant BNYM. 12 Plaintiff also argues that upon any alleged transfer to the REMIC, “the status of 13 ‘lender’ as described in the Deed of Trust, was relinquished at that time as [t]he REMIC is 14 a trust and has no ‘lenders’, only fiduciaries of the ‘certificate holders.’ The ‘lender’ as 15 described in the Deed of Trust no longer exits and no longer has any nominee who can 16 transfer foreclosure rights....” (Complaint, pp. 12-13) (footnote omitted). Instead, according 17 to Plaintiff, Defendant BNYM “is nothing more than a fiduciary of the Certificate 18 Holders....” (Id. at p. 13). However, the District Court for the Northern District of California 19 has persuasively pointed out that: 20 21 22 23 24 25 26 27 28 The argument that parties lose their interest in a loan when it is assigned to a trust pool or REMIC has been rejected by numerous courts. See, e.g., Wadhwa v. Aurora Loan Servs., LLC, No. 11–1784, 2011 WL 2681483, at *4 (E.D.Cal. July 8, 2011) (suggestion that “assignment of the note to a [REMIC] renders any interest in the property other than plaintiffs' somehow invalid” has been “rejected by numerous courts”); Hafiz v. Greenpoint Mortgage Funding, Inc., 652 F.Supp.2d 1039, 1043 (N.D.Cal.2009) (argument that “all defendants lost their power of sale pursuant to the deed of trust when the original promissory note was assigned to a trust pool” is “both unsupported and incorrect”). The alleged “securitization of the loan does not in fact alter or affect the legal beneficiary's standing to enforce the deed of trust.” Reyes v. GMAC Mortgage LLC, No. 11–0100, 2011 WL 1322775, at *2 (D.Nev. Apr.5, 2011); see also Nguyen v. Bank of Am. Nat'l Ass'n, No. 11–3318, 2011 WL 5574917, at *9 (N.D.Cal. Nov.15, 2011) (securitization of mortgage loan does not provide mortgagor with cause of action). “[S]ecuritization merely creates ‘a separate contract, distinct from [p]laintiffs[’] debt obligations” under the note, and does not change the relationship of the parties in any way. Reyes, 2011 WL - 12 - 1 2 1322775, at *3 (quoting Commonwealth Prop. Advocates, LLC v. First Horizon Home Loan Corp., No. 10–CV–375, 2010 WL 4788209, at *2 (D.Utah Nov. 16, 2010)). 3 Logvinov v. Wells Fargo Bank, 2011 WL 6140995, at * 3 (N.D. Cal. Dec. 9, 2009). See also 4 Frazier v. Aegis Wholesale Corp., 2011 WL 6303391 (N.D.Cal. Dec.16, 2011) (“Plaintiffs 5 seem to argue that the only persons who would have authority to foreclose are the certificate 6 holders of the securitized trust.... Courts, however, have typically rejected such arguments.”). 7 Consequently, Plaintiff’s challenge based on this line of reasoning is foreclosed. 8 2. The UCC 9 Plaintiff alleges that the transfer of the Note is invalid because it did not comply with 10 the Arizona Uniform Commercial Code and, thus, neither the Note nor DOT are negotiable 11 instruments. (Complaint, pp. 17, 19). Defendant BNYM points out that “no one seeks to 12 negotiate the note here, so the UCC just does not apply.” (Defendant BNYM’s Motion to 13 Dismiss, p. 7 (citing Hogan, 230 Ariz. at ¶9, 277 P.3d at 783)). Defendant is correct that 14 Plaintiff’s reliance on the UCC is misplaced. The Arizona Supreme Court has been clear 15 that, where the trustees do not seek to collect on the underlying note but instead notice sale 16 pursuant to the trust deeds, the UCC does not apply: The trust deed statutes do not require compliance with the UCC before a trustee commences a non-judicial foreclosure. See In re Krohn, 203 Ariz. 205, 208 ¶ 8, 52 P.3d 774, 777 (2002) (“[D]eed of trust sales are conducted on a contract theory under the power of sale authority of the trustee.”). 17 18 19 Hogan, 230 Ariz. at ¶9, 277 P.3d at 783. Plaintiff’s reliance on the UCC is without merit. 20 3. Chapter 7 discharge 21 Plaintiff alleges that the Note debt was discharged in her Chapter 7 bankruptcy 22 proceeding, therefore, Defendant BNYM had no standing to enforce the loan. (Complaint, 23 p. 26). 24 25 26 27 28 It is well settled that valid, perfected liens and other secured interests pass through bankruptcy unaffected. Dewsnup v. Timm, 502 U.S. 410, 418, 112 S.Ct. 773, 778–79, 116 L.Ed.2d 903 (1992). The majority of courts hold, and the legislative history of § 506(d) establishes, that valid liens that have not been disallowed or avoided survive the bankruptcy discharge of the underlying debt. In re Simmons, 765 F.2d 547, 556–57 (5th Cir.1985); Estate of Lellock v. Prudential Ins. Co. of America, 811 F.2d 186, 188–89 (3d Cir.1987); see also In re Hagemann, 86 B.R. 125, 126 (Bankr.N.D.Ohio 1988) (listing cases); - 13 - 1 2 3 Chandler Bank of Lyons v. Ray, 804 F.2d 577, 579 (10th Cir.1986) (“for sections in the Code which relate to automatic stays and to lien avoidance to have any substance at all necessarily leads to the conclusion that unavoided liens pass through § 506(d) without action by the lien holder”). In re Cortez, 191 B.R. 174, 177 (9th Cir. BAP 1995) (footnote omitted). Defendants assert 4 that “Albritton’s Bankruptcy discharge has no[] effect on BNYM’s ability to instruct the 5 Trustee to proceed with a foreclosure. She did not take any action in the bankruptcy court 6 to strip the lien off the Property.” (Defendant BNYM’s Motion to Dismiss, p. 8). Plaintiff 7 has not refuted Defendants’ contention. There is simply nothing in the record that would 8 reasonably support the inference that the lien was avoided or disallowed during Plaintiff’s 9 bankruptcy proceeding. See Moss, 572 F.3d at 969 (to defeat a motion to dismiss, the “non10 conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly 11 suggestive of a claim entitling the plaintiff to relief.”). On the instant record, Plaintiff’s 12 reliance on the Chapter 7 bankruptcy proceedings does not provide a basis for relief. 13 4. Fraud 14 Plaintiff also alleges that the Note and DOT were procured by fraud. (Complaint, 15 p.4). She asserts that it was fraudulent for the Note to list Soma Financial as the original 16 lender when the intent was to securitize the Loan. (Id. at p. 12). She also claims that she was 17 not informed that the Loan would be securitized or that there would be a Master Servicer of 18 Loan. (Id.). 19 To state a claim for fraud, Plaintiff must plead facts demonstrating “that the defendant 20 made a false, material representation that he knew was false or was ignorant of its truth, with 21 the intention that the hearer of the representation act on it in a manner reasonably 22 contemplated, that the hearer was ignorant of the representation’s falsity, rightfully relied on 23 the truth of the representation, and sustained consequent and proximate damage.” Haisch 24 v. Allstate Insur. Co., 197 Ariz. 606, 610, 5 P.3d 940, 944 (Ct. App. 2000). The DOT states 25 there may be successors and assigns of the Lender and Beneficiary, the Loan can be sold one 26 or more times without prior notice to the Borrower, and there will be a Loan Servicer. 27 (Complaint, Exh. 2, pp. 2, 10). On the instant record, Plaintiff’s allegations of fraud are 28 - 14 - 1 meritless. 2 D. 3 The T&B Defendants argue that “[t]o the extent that the Complaint claims that the 4 [they]... were under an obligation to ensure that the appointment of Defendant Cowles as 5 Trustee was legitimate or that nonjudicial foreclosure was appropriate, that is incorrect[]” 6 given that Arizona law permits“absolute reliance on the direction or information provided 7 to them by the beneficiary.” (T&B Defendants’ Motion to Dismiss, p. 5 (citing A.R.S. §33- 8 820(A)). Plaintiff alleges that the T&B Defendants “have no authorization to conduct any 9 type of enforcement” due to the allegedly “invalid and non-authentic substitution of trustee 10 and the fact that the firm does not represent a bona fide ‘creditor[]’” under the FDCPA. 11 (Complaint, pp. 16-17). According to Plaintiff, the Substitution of Trustee document 12 appointing Defendant Cowles “is incomplete and facially void...” because “one is left to 13 guess who Ms. Sawyer is the Assistant Vice President for....” (Id. at p. 8). Plaintiff also 14 alleges that “[i]t is entirely plausible that the Notice of Trustee’s Sale was recorded before 15 the invalid Substitution of Trustee document was recorded.” (Id. at p. 17). She alleges that 16 on October 15 and 30, 2012, she received recorded copies of the Notice of Trustee’s Sale and 17 Notice of Substitution which did not indicate the time the documents were recorded in 18 Cochise County. (Id.). She also alleges that documents received on October 30, 2012, bore 19 only an “in[-]house stamp[] by Defendant Tiffany & Bosco in order to cover up the 20 simultaneous order of recording in Cochise County, a deceptive practice.” (Id.). Appointment of Defendant Cowles as Trustee 21 The record reflects that the Notice of Substitution of Trustee and the Notice of Trustee 22 Sale set to occur on January 4, 2013, were both recorded in Cochise County on October 5, 23 2012 at 4:28 p.m. (See Complaint, Exhs. 10, 11). The record also contains a Notice of 24 Trustee Sale set for January 4, 2013, which is stamped “RECORDED OCT 5, 2012", and 25 does not reflect the time the document was recorded. (Id. at Exh. 11). The date stamped is 26 the correct date that the document was recorded. On the instant record, Plaintiff’s allegations 27 that the T&B Defendants engaged in deceptive practices are merely conclusory and are 28 implausible given that the date stamped reflects the correct date the document was recorded. - 15 - 1 Further, as to Plaintiff’s allegation that the T&B Defendants are liable because the 2 appointment of Defendant Cowles was invalid due to Ms. Sawyer’s alleged lack of authority 3 to act, the Ninth Circuit has made clear that: 4 5 6 7 8 9 10 [A.R.S. §] 33–807(E) provides that a “trustee is entitled to be immediately dismissed” from any action other than one “pertaining to a breach of the trustee's obligations,” because the trustee is otherwise bound by an order entered against a beneficiary for actions that the trustee took on its behalf. The only breach that the plaintiffs allege against Tiffany & Bosco is that it failed to recognize that its appointment was invalid. According to the plaintiffs, the appointment was invalid because MERS is a sham beneficiary and lacks power to “appoint” a trustee. However, a trustee such as Tiffany & Bosco has the “absolute right” under Arizona law “to rely upon any written direction or information furnished to him by the beneficiary.” Ariz.Rev.Stat. § 33–820(A). Thus, Tiffany & Bosco did not have an obligation to consider whether its presumptively legal appointment as trustee, which was recorded in the county records, was invalid based on the original designation of MERS as a beneficiary. Accordingly, Tiffany & Bosco was properly dismissed. 11 Cervantes, 656 F.3d at 1045. Likewise, in the instant case, the T&B Defendants are properly 12 dismissed. See id. 13 The T&B Defendants also point out that “Plaintiff does not allege facts that support 14 the notion that the T&B Defendants failed to comply with any of the obligations set forth in 15 Arizona’s deed of trust statutes or in the Deed of Trust itself, or that, derivatively, Defendant 16 T&B failed to do so. “ (T&B Defendants’ Motion to Dismiss, p. 6). The T&B Defendants 17 request attorney fees and court costs for having to defend against Plaintiff’s action. (Id.). 18 Section 33-807(E) provides that: “If the trustee is joined as a party in any other action, the 19 trustee is entitled to be immediately dismissed and to recover costs and reasonable attorney 20 fees from the person joining the trustee.” A.R.S. § 33-807(E). The T&B Defendants may file 21 a motion for attorney fees and costs in accordance with LRCiv 54.2. See Cervantes v. 22 Countrywide Home Loans, Inc., 2009 WL 3157160, at * (D. Ariz. Sept. 24, 2009) (allowing 23 same), aff’d by Cervants,656 F.3d 1034. 24 E. Plaintiff’s Request for Declaratory and Injunctive Relief 25 Plaintiff requests that the Court “make a finding and issue appropriate orders stating 26 that none of the named Defendants...have any right or interest in Plaintiff’s Note, Deed of 27 Trust, or the Property which authorizes...them to collect mortgage payments or enforce the 28 - 16 - 1 terms of the Note or Deed of Trust in any matter whatsoever.[] Plaintiff simplifies this as a 2 request for ‘a determination of ownership of the Note and Deed of Trust,’ if they are valid.” 3 (Complaint, p. 27). The Court may not issue declaratory judgment absent a showing of an 4 “actual controversy” between the parties. 28 U.S.C. § 2201(a); Theme Promotions, Inc. v. 5 News Am. Marketing FSI, 546 F.3d 991, 101 (9th Cir. 2008) (affirming denial of leave to 6 amend to add claim for declaratory relief where there was no actual controversy). ““[T]he 7 requirements of pleading and practice in actions for declaratory relief are exactly the same 8 as in other civil actions.’” Kam-Ko Bio-Pharm Trading Co. Ltd-Australasia v. Mayne Pharm 9 (USA) Inc., 560 F.3d 935, 943 (9th Cir. 2009) (quoting 10B Wright, Miller & Kane, Federal 10 Practice and Procedure: Civil § 2768 (3d ed.1998)). Therefore, Plaintiff must demonstrate 11 plausibility of entitlement to relief. See Iqbal, 556 U.S. at 678. Because, as discussed within 12 this Order, Plaintiff’s claims that Defendants fall within the FDCPA, and challenges to 13 Defendants’ authority to enforce the Note and DOT, are without merit, it follows that 14 Plaintiff has failed to sufficiently allege a claim for declaratory relief. 15 Likewise, as to Plaintiff’s request for injunctive relief, it is a 16 well-settled rule that a claim for “injunctive relief” standing alone is not a cause of action. See, e.g., Jensen v. Quality Loan Serv. Corp., 702 F.Supp.2d 1183, 1201 (E.D.Cal.2010) (“A request for injunctive relief by itself does not state a cause of action”); Henke v. ARCO Midcon, L.L.C., 750 F.Supp.2d 1052, 1059–60 (E.D.Mo.2010) (“Injunctive relief, however, is a remedy, not an independent cause of action.”); Plan Pros, Inc. v. Zych, 2009 WL 928867, at *2 (D.Neb. Mar. 31, 2009) (“no independent cause of action for injunction exists”); Motley v. Homecomings Fin., LLC, 557 F.Supp.2d 1005, 1014 (D.Minn.2008) (same). Injunctive relief may be available if Plaintiffs are entitled to such a remedy on an independent cause of action. 17 18 19 20 21 Marzan v. Bank of America, 779 F.Supp.2d 1140, 1146 (D. Haw. 2011); see also Kwai Ling 22 Chan v. Chase Home Loans, Inc., 2012 WL 1252649, at *4 (W.D.Wash. Apr. 13, 2012) 23 (dismissing claims for declaratory and injunctive relief “because they are remedies and not 24 causes of action.”). Accord City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 25 188, 181 P.3d 219, 234 (Ct. App. 2008) (stating that an injunction is an equitable remedy); 26 Jones v. Santa Cruz County, 72 Ariz. 374, 378, 236 P.2d 361, 364 (1951) (“an injunction will 27 not issue to restrain a lawful act.”). Because Plaintiff’s claims fail on the merits, Plaintiff is 28 - 17 - 1 not entitled to injunctive relief. 2 F. 3 When dismissing for failure to state a claim, the court should grant leave to amend 4 unless amendment would be futile. Given that the law is settled against Plaintiff’s theories, 5 amendment would be futile. See Mortgage Electronic Registration Systems Litigation MDL, 6 2012 WL 1931365, at *4 (D. Ariz. May 25, 2012) (denying leave to amend “[b]ecause 7 Plaintiff’s claims depend on legal theories that have repeatedly been rejected by this Court, 8 and in light of the foregoing analysis, the Court finds that Plaintiff’s Complaint could not be 9 cured of allegations of other facts and, thus, allowing Plaintiff to amend her Complaint would Amendment 10 be futile.”). 11 IV. Application for Temporary Restraining Order or in the Alternative a Permanent 12 Injunction 13 Finally, Plaintiff has filed an Application for a Temporary Restraining Order or in the 14 Alternative a Permanent Injunction (Doc. 42) seeking to prevent the sale of Plaintiff’s 15 property at a trustee’s sale which Plaintiff alleges is currently scheduled for on June 21, 16 2013, at 11:00 a.m. An injunction "is an extraordinary and drastic remedy," Mazurek v. 17 Armstrong, 520 U.S. 968, 972 (1997), that is "never awarded as of right." Winter v. Natural 18 Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Because of the remedy's extraordinary nature, 19 plaintiff bears the burden of proof. See Mazurek, 520 U.S. at 972. An injunction should not 20 be granted if any doubt exists or is created in the record regarding the merits of a plaintiff's 21 claim. See Sid Berk, Inc. v. Uniroyal, Inc., 425 F. Supp. 22, 29 (C.D. Cal. 1977) ("The 22 existence of any debate or doubts on the record as to the merits of the claim or the power of 23 the court to act will ordinarily bar the granting of a preliminary injunction.") (citation 24 omitted). The Court has reviewed Plaintiff’s Complaint. Even considering Plaintiff’s pro se 25 status and, in so doing, construing Plaintiff’s Complaint liberally, the Court finds that 26 Plaintiff has failed to state a claim upon which relief may be based. In order to obtain 27 preliminary injunctive relief, the moving party must show a likelihood of success on the 28 merits. Winter, 555 U.S. at 20. Because the Court finds that Plaintiff’s Complaint fails to - 18 - 1 state a claim, Plaintiff has necessarily failed to demonstrate a likelihood of success on the 2 merits. As such, the Court denies Plaintiff’s request for a temporary restraining order, or, in 3 the alternative, a permanent injunction, to enjoin the sale of Plaintiff’s property. 4 V. 5 6 CONCLUSION For the foregoing reasons, Plaintiff has failed to allege claims upon which relief may be granted. Therefore, 7 IT IS HEREBY ORDERED that Defendants Tiffany & Bosco, P.A., Michael A. 8 Bosco, Jr., Michael E. Tiffany, Patricia Pike, Leonard J. McDonald, Jr., and David W. 9 Cowles’ Motion to Dismiss (Doc. 10) and Defendant Bank of New York Mellon’s Motion 10 11 12 13 14 15 to Dismiss (Doc. 11) are GRANTED. IT IS FURTHER ORDERED that Plaintiff’s Objection to Magistrate Judge’s Pretrial Order of April 23, 2013 (Doc. 41) is construed as a Motion to Reconsider and DENIED. IT FURTHER ORDERED that Plaintiff’s Application for a Temporary Restraining Order or in the Alternative a Permanent Injunction (Doc. 42) is DENIED. DATED this 18th day of June, 2013. 16 17 18 19 20 21 22 23 24 25 26 27 28 - 19 -

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