White v. Indymac Bank, FSB et al

Filing 97

ORDER: (1) SUA SPONTE DISMISSING PLAINTIFF'S COMPLAINT; (2) DENYING AS MOOT ONEWEST'S 34 MOTION FOR SUMMARY JUDGMENT; (3) DENYING AS MOOT PLAINTIFF'S 38 MOTION FOR SUMMARY JUDGMENT; AND (4) DENYING AS MOOT ONEWEST'S SECOND [77 ] MOTION FOR SUMMARY JUDGMENT: "For the reasons stated above, the Court sua sponte DISMISSES Plaintiff's Complaint with Leave to Amend Plaintiff's claims other than TILA rescission, declaratory judgment, injunctive relief, and pu nitive damages, as outlined above. Additionally, the Court DENIES AS MOOT OneWest's Motion for Summary Judgment (Doc. # 34 ), Plaintiff's Motion for Summary Judgment (Doc. # 38 ), and OneWest's Second Motion for Summary Judgment (D oc. # 77). IT IS SO ORDERED.". Signed by District JUDGE DAVID ALAN EZRA on April 18, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRUCE WHITE,

)
)
Plaintiff,
)
)
vs.
)
)
INDYMAC BANK, FSB,
)
ONEWEST BANK FSB, and DOES )
1 through 20 inclusive,
)
)
Defendants.
)
_____________________________ )

CV. NO. 09-00571 DAE-KSC

ORDER: (1) SUA SPONTE DISMISSING PLAINTIFF’S COMPLAINT; (2)
DENYING AS MOOT ONEWEST’S MOTION FOR SUMMARY JUDGMENT;
(3) DENYING AS MOOT PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT; AND (4) DENYING AS MOOT ONEWEST’S SECOND
MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for
disposition without a hearing. After reviewing the supporting and opposing
memoranda, the Court sua sponte DISMISSES Plaintiff’s Complaint and DENIES
AS MOOT OneWest’s Motion for Summary Judgment (Doc. # 34), Plaintiff’s
Motion for Summary Judgment (Doc. # 38), and OneWest’s Second Motion for
Summary Judgment (Doc. # 77).

BACKGROUND
On December 4, 2009, Plaintiff Bruce White (“Plaintiff”) filed a
Complaint against Indymac Bank, FSB (“Indymac”), OneWest Bank, FSB
(“OneWest”), and Does 1 through 20, (collectively, “Defendants”) alleging that the
actions taken by Defendants “contain unfair trade practices and predatory lending
practices.” (“Compl.,” Doc # 1 ¶ 7.) Specifically, Plaintiff’s Complaint alleges
Counts: (Count 1) Unfair Trade Practices Involving Non Compliance, Under 15
USC Sections 1802 Et. Seq. (id. ¶¶ 27–31); (Count 2) Failure to Obtain Signed
Loan Documents in Violation of 15 U.S.C. Sec. 1601 Et. Seq. and Title 12,
Regulation Z Part 226 E. Seq. (id. ¶¶ 32–36); (Count 3) Failure to Give 3 Day
Cooling Period in Violation of 15 U.S.C. 1601, Et Seq., and Regulations [sic] Z
(id. ¶¶ 37–41); (Count 4) Failure to Give Conspicuous Writings in Violation of 15
U.S.C. 1601 Et. Seq. and Title 12 of Federal Regulations, Sec. 226.18 (id.
¶¶ 42–46); (Count 5) Unfair and Deceptive Acts and Practices in Violation of
Chapter 480, Hawaii Revised Statutes (id. ¶¶ 47–51); (Count 6) Declaratory
Judgement Re: Fraud and Rescission and Common Law Damages (id. ¶¶ 52–53);
(Count 7) Injunctive Relief (id. ¶¶ 54–55); and (Count 8) Punitive Damages (id.
¶¶ 56–57).

2

On January 30, 2006, Plaintiff entered into a loan transaction secured
by a note in the principal amount of $1,000,000.00, which was secured by a
mortgage recorded on the same day, in the Bureau of Conveyances, State of
Hawaii, as Document No. 2006-021984. (Id. ¶ 10.) The real property at issue in
this loan transaction is designated as TMK (2) 1-2-003-059, known as Lot 53B
Nahiku Homesteads, located at Hana, Maui, Hawaii, 96713 (“Subject Property”).
(Id. ¶ 7.)
Plaintiff contends that Defendants, amongst other things, failed to
provide Plaintiff with copies of important documents explaining his consumer
rights, failed to provide disclosures that would indicate that the contract entered
into was void, illegal, or otherwise in violation of Federal law, made misleading
representations regarding the costs of the mortgage loan, and implemented this
deceptive scheme through misleading marketing practices designed to sell risky
and costly loans to homeowners, the terms and dangers of which Plaintiff did not
understand. (Id. ¶¶ 11, 12, 15, 18.)
On January 10, 2011, Defendant OneWest filed a Motion for
Summary Judgment (“OneWest’s Motion for Summary Judgment”) (Doc. # 34)
and a Concise Statement of Facts in support of that Motion (Doc. # 35). On
January 10, 2011, Plaintiff also filed a Motion for Summary Judgment (“Plaintiff’s
3

Motion for Summary Judgment”). (Doc. # 38.) On March 11, 2011, Plaintiff filed
a Motion in Opposition of Summary Judgment and a Memorandum in Support
(Doc. # 71.) On March 14, 2011, OneWest filed a Memorandum in Opposition to
Plaintiff’s Motion for Summary Judgment (Doc. # 69) and a Concise Statement of
Facts in Support of their Opposition (Doc. # 68). On March 18, 2011, OneWest
filed a Reply in support of their Motion. (Doc. # 75.) On March 24, 2011,
OneWest filed a Second Motion for Summary Judgment (“OneWest’s Second
Motion for Summary Judgment”) (Doc. # 77) and a concise statement of facts in
support (Doc. # 78). On April 13, 2011, Plaintiff filed a Motion in Opposition of
Second Summary Judgment. (Doc. # 93.)
STANDARD OF REVIEW
I.

Federal Rules of Civil Procedure 8 and 12
The court may dismiss a complaint pursuant to Federal Rule of Civil

Procedure (“Rule”) 12(b)(6) on its own motion. See Omar v. Sea-Land Serv., Inc.,
813 F.2d 986, 991 (9th Cir. 1987) (“A trial court may dismiss a claim sua sponte
under [Rule] 12(b)(6). Such a dismissal may be made without notice where the
claimant cannot possibly win relief.”); Ricotta v. California, 4 F. Supp. 2d 961, 968
n.7 (S.D. Cal. 1998) (“The Court can dismiss a claim sua sponte for a Defendant
who has not filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6).”); see also
4

Baker v. Dir., U.S. Parole Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990) (holding
that district court may dismiss cases sua sponte pursuant to Rule 12(b)(6) without
notice where plaintiff could not prevail on complaint as alleged). Additionally, a
paid complaint that is “obviously frivolous” does not confer federal subject matter
jurisdiction and may be dismissed sua sponte before service of process. Franklin v.
Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984); see also Fed. R. Civ. P.
12(h)(3); Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 593 (2004)
(“[I]t is the obligation of both district court and counsel to be alert to jurisdictional
requirements.”); Branson v. Nott, 62 F.3d 287, 291 (9th Cir. 1995) (“[D]ismissal of
Branson’s complaint was required because the district court lacked subject matter
jurisdiction . . . .”).
The court may also sua sponte dismiss a complaint for failure to
comply with Federal Rule of Civil Procedure (“Rule”) 8. Rule 8 mandates that a
complaint include a “short and plain statement of the claim,” Fed. R. Civ. P.
8(a)(2), and that “each allegation must be simple, concise, and direct.” Fed. R.
Civ. P. 8(d)(1). A complaint that is so confusing that its “‘true substance, if any, is
well disguised’” may be dismissed sua sponte for failure to satisfy Rule 8. Hearns
v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting
Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969); Simmons v.
5

Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (stating that a district court has the power
to sua sponte dismiss a complaint for failure to comply with Rule 8 where the
complaint is so confused, ambiguous, or unintelligible that its true substance is
well disguised); see also McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996)
(“Something labeled a complaint but written . . . , prolix in evidentiary detail, yet
without simplicity, conciseness and clarity as to whom plaintiffs are suing for what
wrongs, fails to perform the essential functions of a complaint.”); Nevijel v. N.
Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981) (“A complaint which fails to
comply with [Rule 8] may be dismissed with prejudice[.]”).
Put slightly differently, a district court may dismiss a complaint for
failure to comply with Rule 8 where it fails to provide the defendants fair notice of
the wrongs they have allegedly committed. See McHenry, 84 F.3d at 1178–80
(affirming dismissal of complaint where “one cannot determine from the complaint
who is being sued, for what relief, and on what theory, with enough detail to guide
discovery”); cf. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1105 n.4
(9th Cir. 2008) (finding dismissal under Rule 8 was in error where “the complaint
provide[d] fair notice of the wrongs allegedly committed by defendants and [did]
not qualify as overly verbose, confusing, or rambling”). Rule 8 requires more than
“the-defendant-unlawfully-harmed-me accusation[s]” and “[a] pleading that offers
6

labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citations and
quotations omitted). “The propriety of dismissal for failure to comply with Rule 8
does not depend on whether the complaint is wholly without merit.” McHenry, 84
F.3d at 1179.
The court may “begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 129
S. Ct. at 1950. Legal conclusions must be supported by factual allegations. Id.
“When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id.
II.

Federal Rule of Civil Procedure 9(b)
Federal Rule of Civil Procedure 9(b) requires that “[i]n alleging fraud

or mistake, a party must state with particularity the circumstances constituting
fraud or mistake.” Fed. R. Civ. P. 9(b). Under Ninth Circuit law, “Rule 9(b)
requires particularized allegations of the circumstances constituting fraud.” In re
GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547–48 (9th Cir. 1994) (en banc),
superseded on other grounds by 15 U.S.C. § 78u-4.

7

In their pleadings, plaintiffs must include the time, place, and nature
of the alleged fraud; “mere conclusory allegations of fraud are insufficient” to
satisfy this requirement. Id. at 1548 (quoting Moore v. Kayport Package Express,
Inc., 885 F.2d 531, 540 (9th Cir. 1989)). “[T]he circumstances constituting the
alleged fraud [must] ‘be specific enough to give defendants notice of the particular
misconduct . . . so that they can defend against the charge and not just deny that
they have done anything wrong.’” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124
(9th Cir. 2009) (quoting Bly-Magee v. California, 236 F.3d 10104, 1019 (9th Cir.
2001)); see also Moore, 885 F.2d at 540 (finding that Rule 9(b) requires a plaintiff
to attribute particular fraudulent statements or acts to individual defendants).
However, “[m]alice, intent, knowledge, and other conditions of a person’s mind
may be alleged generally.” Fed. R. Civ. P. 9(b); see also In re GlenFed, Inc. Sec.
Litig., 42 F.3d at 1547 (“We conclude that plaintiffs may aver scienter . . . simply
by saying that scienter existed.”); Walling v. Beverly Enter., 476 F.2d 393, 397
(9th Cir. 1973) (finding that Rule 9(b) “only requires the identification of the
circumstances constituting fraud so that the defendant can prepare an adequate
answer from the allegations” (citations omitted)).

8

DISCUSSION
Because the Complaint does not satisfy federal pleading requirements,
the Court sua sponte dismisses Plaintiff’s Complaint with leave to amend.
Accordingly, the Court DENIES as moot OneWest’s Motion for Summary
Judgment, Plaintiff’s Motion for Summary Judgment, and OneWest’s Second
Motion for Summary Judgment.
I.

Sua Sponte Dismissal of Plaintiff’s Complaint
In determining whether a complaint states a claim, the Court must first

disregard “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements,” and then second, “identify ‘well-pleaded factual
allegations,’ which we assume to be true, ‘and then determine whether they
plausibly give rise to an entitlement to relief.’” Telesaurus VPC, LLC v. Power,
623 F.3d 998, 1003 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949–50). In the
instant case, Plaintiff’s Complaint fails to state a claim for a variety of reasons
including failure to provide specific allegations forming the basis of Plaintiff’s
claims, and failing to state claims within the appropriate statute of limitations
periods. As such, the Complaint is deficient in carrying Plaintiff’s pleading
obligations under Federal Rules of Civil Procedure 8 and 12(b)(6) for the
following reasons, and is dismissed sua sponte by the Court.
9

A.

Counts 1–4
Count 1 of Plaintiff’s Complaint alleges unfair trade practices

involving noncompliance under 15 U.S.C. § 1802, et. seq., on the basis that “[f]ull
disclosure of the Mortgage and Note documents were not given to [Plaintiff] by
Defendants [] at or after closing and/or completion of the Mortgage and Note
transaction had taken place . . . .” (Compl. ¶ 28.) Count 2 of Plaintiff’s Complaint
alleges that Defendants failed to give required notices in various loan documents
and failed to have said documents signed by Plaintiff, as required by 15 U.S.C. §
1601 et. seq., and Title 12, Regulation Z, part 226 et. seq. (Id. ¶ 33.) Count 3 of
Plaintiff’s Complaint alleges that Defendants failed to give Plaintiff the required 3
day cooling off period as required by Regulation Z and 15 U.S.C. § 1601 et. seq.
(Id. ¶ 38.) Finally, Count 4 of Plaintiff’s Complaint alleges that Defendants failed
to make the disclosures in writing required by 15 U.S.C. § 1601 et. seq., and Title
12 of Federal Regulations, Sec. 226.18. (Id. ¶ 43.)
As a preliminary matter, Count 1 fails to state a claim because the
federal statute cited by Plaintiff, 15 U.S.C. § 1802 et. seq., is found in the chapter
of the United States Code governing newspaper preservation, thus it appears that
Plaintiff cited this statute in error. Additionally, Plaintiff has not pled sufficient

10

facts to explain its relevance to this action. Thus, Count 1 can be dismissed by the
Court on this basis alone.
Additionally, Counts 1–4 fail because despite Plaintiff’s laundry list
of allegations allegedly committed by Defendants provided in the “Background”
section of Plaintiff’s Complaint, Counts 1–4 fail to identify which of these
allegations relate to which specific statutory violation stated in Counts 1–4.
Plaintiff’s failure to cite any specific provision of the aforementioned statutes that
was violated by Defendants is grounds for dismissal of the claim, alone. See Rosal
v. First Federal Bank of California, 671 F. Supp. 2d 1111, 1125 (N.D. Cal. 2009);
Mansour v. Cal-Western Reconveyance Corp., 618 F. Supp. 2d 1178, 1183 (D.
Ariz. 2009).1 Although Rule 8 requires only that a complaint include a “short and
plain statement of the claim showing that the pleader is entitled to relief,” the
complaint must sufficiently put Defendants on fair notice of the claim asserted and
the ground upon which it rests. Defendants, nor the Court, are required to
speculate as to which provisions Plaintiff is suing under or how Defendants
violated such provisions. Vague allegations containing mere labels and

1

Although the Court does not cite to other district courts as precedent, it
notes that the cases cited here have also visited a similar issue.
11

conclusions are insufficient to survive a motion to dismiss. See Twombly, 550 U.S.
at 555.
Furthermore, to the extent Plaintiff alleges violations of 15 U.S.C.
§ 1601, et. seq., and Title 12 Regulation Z part 226 et. seq. (“Regulation Z”) in
Counts 1–4, all such claims must be dismissed pursuant to the statute of
limitations.2 Specifically, 15 U.S.C. Sec. 1601, et. seq. constitutes the Truth in
Lending Act (“TILA”), and Regulation Z consists of the sections implementing
TILA, both of which provide for either a one or three-year statute of limitations
depending on the remedy sought. TILA provides borrowers two remedies for
disclosure violations: (1) rescission, pursuant to 15 U.S.C. § 1635; and (2)
damages, pursuant to 15 U.S.C. § 1640. Plaintiff appears to allege both, thus the
Court will address each remedy in turn.
i.

TILA Damages Claim

Counts 1–4 seek damages for various violations of TILA and
Regulation Z, all of which occurred at or around the time the loan agreement was
entered into. TILA authorizes civil liability in the form of actual damages,

2

Although Count 1 states a claim under 15 U.S.C. § 1802, the Court
assumes here, arguendo, that Plaintiff meant to allege a violation of 15 U.S.C.
§ 1602. Similarly, Count 4 alleges a claim under Title 2 of Federal Regulations,
Sec. 226.18, but as such a statute does not exist, the Court assumes Plaintiff meant
to allege a violation of Regulation Z.
12

statutory damages, costs, and attorneys fees. 15 U.S.C. § 1640. Pursuant to
Section 1640(e), there is a one-year statute of limitations for civil liability claims
under TILA. Id. § 1640(e). The limitations period generally runs from the date of
consummation of the transaction. King, 784 F.2d at 915. Here, Plaintiff entered
into the loan transaction on January 30, 2006 and initiated the instant lawsuit on
December 4, 2009. As such, more than one year elapsed between the
consummation of the loan, when the alleged violations in Counts 1–4 occurred, and
the filing of the instant action. Therefore, Plaintiff’s claim is barred by the statute
of limitations unless equitable tolling applies.
As a general matter, “[e]quitable tolling may be applied if, despite all
due diligence, a plaintiff is unable to obtain vital information bearing on the
existence of his claim.” Santa Maria v. Pac. Bell, 202 F.3d 1170, 1178 (9th Cir.
2000); see also O’Donnell v. Vencor, Inc., 465 F.3d 1063, 1068 (9th Cir. 2006)
(“Equitable tolling is generally applied in situations ‘where the claimant has
actively pursued his judicial remedies by filing a defective pleading during the
statutory period, or where the complainant has been induced or tricked by his
adversary’s misconduct into allowing the filing deadline to pass.’” (quoting Irwin
v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990))). In a TILA damages action
specifically, equitable tolling may suspend the limitations period “until the
13

borrower discovers or had reasonable opportunity to discover the fraud or
nondisclosures that form the basis of the TILA action.” King, 784 F.2d at 915.
However, when a plaintiff fails to allege facts demonstrating that the plaintiff could
not have discovered the purported TILA violation with reasonable diligence,
dismissal is appropriate and equitable tolling will not apply. See Meyer v.
Ameriquest Mortg. Co., 342 F.3d 899, 902 (9th Cir. 2003) (refusing to apply
equitable tolling for failure to make required disclosures under TILA when the
plaintiff was in full possession of all loan documents and did not allege fraudulent
concealment or any other action that would have prevented discovery of the
violation); Hubbard v. Fidelity Fed. Bank, 91 F.3d 75, 79 (9th Cir. 1996) (holding
that the plaintiff was not entitled to equitable tolling of her TILA claim because
“nothing prevented [the plaintiff] from comparing the loan contract, Fidelity’s
initial disclosures, and TILA’s statutory and regulatory requirements”).
In this case, as in Meyer and Hubbard, Plaintiff fails to allege any
facts to demonstrate that equitable tolling applies. Plaintiff’s assertion that
Defendants “negligently and/or intentionally failed and/or refused to provide
disclosures . . .” (Compl. ¶ 12) is conclusory and does not justify application of
equitable tolling. Specifically, Plaintiff offers no explanation for why he was
unable to discover the TILA violations within the one-year statutory period. These
14

facts without more are insufficient for Plaintiff to invoke the doctrine of equitable
tolling. As such, Plaintiff’s TILA damages claim is barred by the statute of
limitations.
ii.

TILA Rescission Claim

Counts 1–4 do not explicitly seek rescission under TILA; however,
Count 6 of the Complaint appears to seek general rescission of the loan (Compl. at
9), as does Plaintiff’s prayer for relief (id. at 10, Sec. d). To the extent those claims
are alleged pursuant to TILA, the Court discusses them here.
Section 1635(a), TILA’s so-called buyer’s remorse provision, gives
borrowers three business days to rescind the loan agreement without penalty. 15
U.S.C. § 1635(a); Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699,
701 (9th Cir. 1986) (citing 15 U.S.C. § 1635(a)). To invoke this provision, the
loan must be a consumer loan using the borrower’s principal dwelling as security.
15 U.S.C. § 1635(a). If the lender fails to deliver certain forms or disclose
important terms accurately, Section 1635(f) gives the borrower the right to rescind
until “three years after the consummation of the transaction or . . . the sale of the
property, whichever occurs first.” 15 U.S.C. § 1635(f); see also King v. California,
784 F.2d 910, 913 (9th Cir. 1986).

15

Here, as stated above, Plaintiff entered into the loan transaction on
January 30, 2006, and initiated the present lawsuit on December 4, 2009. As this is
more than three years since the consummation of the loan, Plaintiff’s claim is
barred by the statute of limitations.
Additionally, equitable tolling does not apply to rescission under
TILA. Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998) (holding that Ҥ
1635(f) completely extinguishes the right of rescission at the end of the 3-year
period”); see also Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir.
2002) (citing Beach and holding that Ҥ 1635(f) is a statute of repose, depriving the
courts of subject matter jurisdiction when a § 1635 claim is brought outside the
three-year limitation period”); King, 784 F.2d at 913 (characterizing Section
1635(f) as a “three-year absolute limitation” on Section 1635 rescission actions).
As such, Plaintiffs’ TILA rescission claims are barred as a matter of law by the
statute of limitations.
For all of the aforementioned reasons, Plaintiff’s claims in Counts 1–4
fail to state a valid cause of action. The Court DISMISSES WITHOUT
PREJUDICE Plaintiff’s TILA claims to the extent he seeks damages, and
DISMISSES WITH PREJUDICE Plaintiff’s TILA claims to the extent he seeks
rescission of the loan.
16

B.

Count 5
Count 5 of Plaintiff’s Complaint seeks relief for Unfair and Deceptive

Acts or Practices (“UDAP”) in violation of Hawaii Revised Statutes (“HRS”)
Chapter 480. (Compl. at 8.) Specifically, Plaintiff claims that he is a consumer
within the meaning of HRS Chapter 480, in the class of persons that this law is
designed to protect, and that the actions of Defendants are deceptive acts and
practices and unfair methods of competition actionable under HRS § 480-2 and
§ 480-13. (Id. ¶48–50.)
Plaintiff’s claim under Count 5 is wholly conclusory and entirely fails
to provide any of the general elements for a claim under HRS §§ 480–2 and
480–13. See Tokuhisa v. Cutter Mgmt. Co., 223 P.3d 246, 261 (Haw. App. 2009)
(“Thus, § 480-13 establishes four essential elements: (1) a violation of chapter 480;
(2) injury to plaintiff’s business or property resulting from such violation; (3) proof
of the amount of damages; and (4) a showing that the action is in the public interest
or that the defendant is a merchant.” (citations omitted)).
Because Plaintiff’s Complaint fails to provide any facts as to
Defendants’ purported unfair or deceptive acts or practices and unfair methods of
competition, it fails to state a claim for a UDAP violation. See Iqbal, 129 S. Ct. at

17

1949 (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”).
Accordingly, the Court DISMISSES WITHOUT PREJUDICE Count
5 of the Complaint.
C.

Counts 6, 7, and 8
In Count 6 of the Complaint, Plaintiff appears to seek a declaratory

judgment pursuant to fraud, rescission, and common law damages. (Compl. at 9.)
Specifically, Plaintiff claims that the Note and Mortgage are void and
unenforceable, “as procured by deceit and misrepresentation and duress . . . .” (Id.
¶ 53.) First, it is entirely unclear to the Court what exactly Plaintiff is attempting
to allege in the instant cause of action. Plaintiff entirely fails to point to any
conduct on the part of Defendants constituting the alleged violation, which itself is
a basis for dismissal of the claim.
Moreover, the Court finds that Plaintiff’s allegations in Count 6 are
insufficient to meet his burden under the more rigorous pleading requirements of
Rule 9 that apply to allegations of fraud or mistake. See Fed. R. Civ. P. 9(b)
(requiring a party to state with particularity the circumstances constituting fraud or
mistake). The claim must “be accompanied by the ‘who, what, when, where, and
how’ of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120 (9th
18

Cir. 2009) (internal citation and quotations omitted). A plaintiff “must state the
time, place and specific content of the false representations as well as the identities
of the parties to the misrepresentation.” Alan Neuman Productions, Inc. v.
Albright, 862 F.2d 1388, 1393 (9th Cir. 1988).
Here, Plaintiff fails to plead the time and place of any alleged fraud
and he also does not specify what role each defendant played in the alleged
misconduct. Instead, Plaintiff broadly attributes the allegedly false statements to
both Defendants generally, without specifying when, where, and by who the false
statements were made. Furthermore, Plaintiff’s statement that “the Note and
Mortgage . . . are void and unenforceable as procured by deceit and
misrepresentation . . .” is a legal conclusions entitled to no weight. (Compl. ¶ 53);
see Iqbal, 129 S. Ct. at 1949. Additionally, all averments of fraud, even those
found within other claims, must be pleaded with the particularity governed by Rule
9.
Finally, declaratory relief is not a cognizable independent cause of
action. See Seattle Audubon Soc. v. Moseley, 80 F. 3d 1401, 1405 (9th Cir. 1996)
(“A declaratory judgment offers a means by which rights and obligations may be
adjudicated in cases brought by any interested party involving an actual
controversy that has not reached a stage at which either party may seek a coercive
19

remedy and in cases where a party who could sue for coercive relief has not yet
done so.” (citation and quotations omitted)). Because Plaintiff’s claims for
declaratory relief are based on allegations of Defendant’s past actions, a claim for
declaratory relief is improper and duplicative of Plaintiff’s other claims. See
Ballard v. Chase Bank USA, NA, 2010 WL 5114952, at *8 (S.D. Cal. Dec. 9,
2010) (“A claim for declaratory relief “rises or falls with [the] other claims.”)
(citation omitted); Mangindin v. Washington Mut. Bank, 637 F. Supp. 2d 700, 707
(N.D. Cal. 2009). For all of the aforementioned reasons, Count 6 as well as all
other allegations of fraud found within Plaintiff’s Complaint fail to state a claim.
In Count 7 of the Complaint, Plaintiff seeks injunctive relief
preventing Defendants from further invoking and/or bringing or carrying through
with any foreclosure and sale of the subject property. (Compl. ¶ 55.) Here, the
Court follows the well-settled rule that a claim for “injunctive relief” standing
alone is not a cause of action. See Jensen v. Quality Loan Serv. Corp, 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. Arcon Midcon, L.L.C., - - - F. Supp. 2d - - -,
2010 WL 4513301, at * 6 (E.D. Mo. Nov. 2, 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
20

injunction exists”); Motely v. Homecomings Fin., LLC, 557 F. Supp. 2d 1005,
1014 (D. Minn. 2008) (same). Plaintiff may receive injunctive relief if he is
entitled to such a remedy pursuant to an independent cause of action, but injunctive
relief may not stand alone.
In Count 8 of the Complaint, Plaintiff seeks punitive damages as a
result of Defendants’ alleged “fraud and unfair and deceptive acts and practices,
[which] were done in a wanton, willful, intentional, and/or reckless manner, in
complete criminal disregard of the finances of Plaintiff.” (Compl. ¶ 57.) A claim
for punitive damages is not an independent tort, but a remedy that is incidental to
another cause of action. See Ross v. Stouffer Hotel Co. (Hawai‘i) Ltd., 879 P.2d
1037, 1049 (Haw. 1994) (citing Kang v. Harrington, 587 P.2d 285, 291
(Haw. 1978) (holding that a claim for punitive damages “is not an independent tort,
but is purely incidental to a separate cause of action”). Because the Court finds
that Plaintiff does not have any viable causes of action at this juncture, his claim
for punitive damages must also fail.
Accordingly, the Court DISMISSES WITH PREJUDICE Counts 6, 7,
and 8 without leave to amend. If Plaintiff eventually prevails on an independent
claim, the court will necessarily render a judgment setting forth as such and
providing appropriate remedies. Similarly, if injunctive relief is proper, it will be
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because Plaintiff prevails, or has met the necessary test for such relief under Rule
65 of the Federal Rules of Civil Procedure, on an independent cause of action.
D.

Other Claims Stated in the Complaint
In paragraph eleven of his Complaint, Plaintiff states that Defendants

failed to provide the documents and disclosures required by the “Federal Truth in
Lending ‘TILA,’ the Real Estate Procedures Act ‘RESPA,’ the Equal Credit
Opportunity Act ‘ECOA,’ the Gramm, Leach, Bliley Act ‘GLB’ and the Home
Ownership and Equity Protection Act ‘HOEPA.’” (Compl. ¶ 11.) To the extent
Plaintiff alleges a claim under TILA, such claims have already been addressed by
the Court above. To the extent Plaintiff brings claims under RESPA, ECOA, GLB,
and HOEPA, such claims are not mentioned anywhere else in the Complaint and
no factual allegations have been made regarding any of these claims. Simply
stating that violations of these statutes occurred falls well below the minimum
standards necessary to state a claim under Rule 8. Moreover, paragraph eleven of
the Complaint states no facts or details, and such conclusory allegations, without
more, are insufficient to state a claim upon which relief may be granted.
See Iqbal, 129 S. Ct. at 1949. As such, Plaintiff’s RESPA, ECOA, GLB, and
HOEPA claims all fail to state claims upon which relief may be granted and are
thus DISMISSED.
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II.

Motions for Summary Judgment Dismissed as Moot
Because the Court has dismissed Plaintiff’s Complaint, the Court also

DENIES AS MOOT OneWest’s Motion for Summary Judgment (Doc. # 34),
Plaintiff’s Motion for Summary Judgment (Doc. # 38), and OneWest’s Second
Motion for Summary Judgment (Doc. # 77).
III.

Leave to Amend
“Before a district court may dismiss a pro se complaint for failure to

state a claim upon which relief can be granted, the court must provide the pro se
litigant with notice of the deficiencies of the complaint and an opportunity to
amend it if the deficiencies can be cured, prior to dismissal.”3 Sevcik v. Unlimited
Const. Services, Inc., 462 F. Supp. 2d 1140, 1146 (D. Haw. 2006) (citing Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); Eldridge v. Block, 832 F.2d 1132,
1137 (9th Cir. 1987)). The Court may, however, deny leave to amend where
amendment would be futile. Flowers v. First Hawaiian Bank, 295 F.3d 966, 976
(9th Cir. 2002) (citing Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc.,
911 F.2d 242, 247 (9th Cir. 1990) (per curiam)); Eldridge, 832 F.2d at 1135-36.

3

The Court recognizes that at the time Plaintiff’s Complaint was filed, he
was represented by counsel. However, Plaintiff has been proceeding pro se since
October 19, 2010, and thus the Court, in an abundance of caution, considers
Plaintiff a pro se litigant for purposes of the instant Order.
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Here, the Court recognizes that it may be possible for Plaintiff to state
a claim if provided the opportunity to amend his Complaint. However, leave to
amend does not apply to Plaintiff’s claims for TILA rescission, declaratory
judgment, injunctive relief, and punitive damages. Thus, Plaintiff is given 30 days
from the filing of this order to amend the remaining portions of his Complaint.
Any amended complaint must comply with the dictates of this Order and cure all
factual deficiencies for any counts Plaintiff elects to pursue. If Plaintiff fails to file
an amended complaint within 30 days of the filing of this Order, the Clerk of Court
is directed to enter judgment in favor of Defendants.
Additionally, the Court notes that Plaintiff previously attempted to
amend his Complaint (Docs. ## 23–24), but was denied that opportunity for failure
to comply with Court deadlines. Specifically, Plaintiff was given a two-week
extension of time to file a motion for leave to file an amended complaint and still
did not timely submit his motion. For this reason, the Court finds that this Order in
no way grants Plaintiff leave to add claims, allegations, or Defendants to those
articulated in the Complaint. Rather, any amended complaint shall only constitute
a formal representation of the allegations and claims that remain. Failure to
comply with this Order may result in dismissal of this action.

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CONCLUSION
For the reasons stated above, the Court sua sponte DISMISSES
Plaintiff’s Complaint with Leave to Amend Plaintiff’s claims other than TILA
rescission, declaratory judgment, injunctive relief, and punitive damages, as
outlined above. Additionally, the Court DENIES AS MOOT OneWest’s Motion
for Summary Judgment (Doc. # 34 ), Plaintiff’s Motion for Summary Judgment
(Doc. # 38 ), and OneWest’s Second Motion for Summary Judgment (Doc. # 77).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 18, 2011.

_____________________________
David Alan Ezra
United States District Judge

White v. IndyMac Bank FSB, et al., CV No. 09-00571 DAE-KSC; ORDER: (1)
SUA SPONTE DISMISSING PLAINTIFF’S COMPLAINT; (2) DENYING AS
MOOT ONEWEST’S MOTION FOR SUMMARY JUDGMENT; (3) DENYING
AS MOOT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND (4)
DENYING AS MOOT ONEWEST’S SECOND MOTION FOR SUMMARY
JUDGMENT

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