Paik-Apau v. Deutsche Bank National Trust Co. et al

Filing 43

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND 32 ; 35 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/15/11. ("Paik-Apau is given leave to file an Amended Complaint no later than May 16, 2011. Failure to timely file an Amended C omplaint by that date will result in the automatic dismissal of this case without further order of this court.") (emt, )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). Bernadette M. Paik-Apau shall be served by First Class Mail at the address of record on April 18, 2011.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BERNADETTE M. PAIK-APAU,

)
)
Plaintiffs,
)
)
vs.
)
)
DEUTSCHE BANK NATIONAL TRUST )
CO., trustee of the
)
Ameriquest Mortgage
)
Securities Trust 2005-R11;
)
MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEM, INC.;
)
AMERICAN HOME MORTGAGE
)
SERVICING, INC.; ROUTH
)
CRABTREE OLSEN, dba RCO
)
Hawaii, LLLC; and AMERIQUEST )
MORTGAGE SECURITIES, INC.
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 10-00699 SOM-LEK
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
I.

INTRODUCTION.
This matter involves a homeowner’s attempt to stop a

nonjudicial foreclosure.

On November 26, 2010, Bernadette M.

Paik-Apau filed the 29-page Complaint in this matter.

Although

the Complaint contains 55 paragraphs of “facts,” it contains only
three “counts”: 1) injunctive relief; 2) declaratory relief; and
3) extension of an unidentified statute of limitation due to
alleged fraud.

On March 10, 2011, Ameriquest Mortgage Company

and Ameriquest Mortgage Securities, Inc., filed a motion to
dismiss.

Because none of the “counts” asserts a viable claim for

relief, the motion is granted and the Complaint is dismissed in
its entirety.
II.

MOTION TO DISMISS STANDARD.
Rule 12(b)(6) of the Federal Rules of Civil Procedure

states: “Every defense to a claim for relief in any pleading must
be asserted in the responsive pleading if one is required.

But a

party may assert the following defenses by motion: . . .
(6) failure to state a claim upon which relief can be granted.”
Under Rule 12(b)(6), review is generally limited to the contents
of the complaint.

Sprewell v. Golden State Warriors, 266 F.3d

979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476,
1479 (9th Cir. 1996).

If matters outside the pleadings are

considered, the Rule 12(b)(6) motion is treated as one for
summary judgment.

See Keams v. Tempe Tech. Inst., Inc., 110 F.3d

44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934
(9th Cir. 1996).

However, courts 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.”
903, 908 (9th Cir. 2003).

United States v. Ritchie, 342 F.3d

Documents whose contents are alleged

in a complaint and whose authenticity are not questioned by any
party may also be considered in ruling on a Rule 12(b)(6) motion

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to dismiss.

See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.

1994).
On a Rule 12(b)(6) motion to dismiss, all allegations
of material fact are taken as true and construed in the light
most favorable to the nonmoving party.

Fed’n of African Am.

Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.
1996).

However, conclusory allegations of law, unwarranted

deductions of fact, and unreasonable inferences are insufficient
to defeat a motion to dismiss.

Sprewell, 266 F.3d at 988; Syntex

Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
Additionally, the court need not accept as true allegations that
contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
Sprewell, 266 F.3d at 988.
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory, or (2) insufficient facts
under a cognizable legal theory.

Balistreri v. Pacifica Police

Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).

A motion to dismiss may also be granted if an

affirmative defense or other bar to relief is apparent from the
face of the complaint, such as a statute of limitations.
v. Pachtman, 424 U.S. 409 (1976).

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Imbler

III.

FACTUAL BACKGROUND.
The Complaint alleges that, in November 2005, Paik-Apau

executed mortgage documents for a loan from Ameriquest.
Complaint ¶¶ 113-14, Nov. 26, 2010, ECF No. 1.

See

The Complaint

alleges that Paik-Apau “does not recall” 1) the notary asking to
see her identification, 2) the notary signature matching the
notary stamp, 3) receiving disclosures three days before her loan
consummation, 4) receiving Truth in Lending Act disclosures, 5)
receiving two copies of the notice of right to rescind; 6)
receiving credit report disclosures; 7) receiving privacy
disclosures, 8) receiving a statement about how her personal
information would be used; and 9) receiving a notice informing
her that her loan would be transferred by the lender to another
entity.

Id. ¶ 15.

The Complaint alleges that the lender failed

to follow proper underwriting standards.

Id. ¶ 16.

The Complaint alleges that Paik-Apau’s loan was sold to
American Home Mortgage Servicing, Inc., and was thereafter
included in a “mortgage pool.”

Id. ¶ 17.

The Complaint alleges

that Deutsche Bank purports to be the trustee of this “mortgage
pool,” but that there is no record of this transaction.

Id.

¶¶ 20, 24.
Beginning in April 2009, Paik-Apau alleges that she
attempted to get a loan modification with her lender without
response from the lender.

Id. ¶¶ 28-32.

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In December 2009,

Paik-Apau says she received a letter from the law firm of Routh
Crabtree Olsen, informing her that foreclosure proceedings were
being initiated.

Id. ¶ 33.

Paik-Apau alleges that, in November

2010, she received a letter that told her that her loan
modification request had been denied.
IV.

Id. ¶ 42.

ANALYSIS.
The Ameriquest Defendants seek dismissal of the

Complaint because it fails to assert valid claims for relief.
Because this court agrees that the Complaint fails to assert
claims upon which relief can be granted, the court dismisses the
Complaint with respect to all Defendants.

Paik-Apau is given

leave to file an Amended Complaint no later than May 16, 2011.
See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)
(cautioning courts to allow amendment of a dismissed complaint if
it appears possible that the plaintiff can correct the defect in
the complaint).
Although Paik-Apau’s Complaint contains numerous facts
upon which various claims could possibly be based, it merely
seeks remedies without identifying the legal bases for the
remedies.

Count I, for example, seeks injunctive relief

“pursuant to applicable law,” but does not identify what law is
at issue.

See Complaint ¶ 57.

A claim for injunctive relief, by

itself, is not a cause of action.

See Phillips v. Bank of Am.,

2011 WL 240813, *4 (D. Haw. Jan. 21, 2011) (“Initially, the court

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follows the well-settled rule that a claim for ‘injunctive
relief’ standing alone is not a cause of action.”).

Instead,

injunctive relief may be an available remedy for an independent
cause of action.

Id.

Accordingly, Count I fails to state a

viable claim upon which relief can be granted.
Count II similarly fails.
relief “pursuant to applicable law.”

Count II seeks declaratory
See Complaint ¶ 67.

Paik-

Apau seeks a declaration that Deutsche Bank and Northwest Trust
Services have no legal right to foreclose on her property.

It

appears that Paik-Apau wants Deutsche Bank to prove to this court
that it owns her loan before continuing to proceed with the
nonjudicial foreclosure process, but the grounds for the
declaration Paik-Apau seeks are not clear.

Paik-Apau could be

seeking declaratory relief pursuant to the Declaratory Judgment
Act, 28 U.S.C. § 2201(a), or possibly under some other law.
Because Paik-Apau only seeks declaratory relief “pursuant to
applicable law,” as opposed to explaining the factual and legal
bases of the claim, Count II is not sufficiently detailed to give
fair notice to Defendants of the nature of the claim.

See Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (noting that the
requirement set forth in Rule 8(a)(2) of the Federal Rules of
Civil Procedure that complaints have a short and plain statement
of the claim showing that the pleader is entitled to relief is
intended to give a defendant fair notice of what the claim is and

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the grounds on which it rests);

Starr v. Baca, 633 F.3d 1191,

1204 (9th Cir. 2011) (“allegations in a complaint or counterclaim
must be sufficiently detailed to give fair notice to the opposing
party of the nature of the claim so that the party may
effectively defend against it”).
Count III also fails to allege a viable claim.
Count III asserts that, because of Defendants’ allegedly
fraudulent conduct in concealing certain information from PaikApau, an unidentified statute of limitation should be extended.
However, because the Complaint does not allege a cause of action
for which a statute of limitation might apply, no statute of
limitation issue currently exists.

Also, as with Count I, Count

III asserts no independent cause of action.
The Complaint is dismissed for failure to state a
viable claim.

Paik-Apau is given leave to file an Amended

Complaint no later than May 16, 2011.

If Paik-Apau fails to

timely amend her complaint, the Clerk of Court is directed to
automatically terminate this action without further order of this
court.
Because Paik-Apau is proceeding pro se, the court
provides the following guidance should she choose to file an
Amended Complaint.

See Lopez, 203 F.3d at 1131.

Any Amended

Complaint should include “a short and plain statement of the
claim showing that [Paik-Apau] is entitled to relief.”

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Fed. R.

Civ. P. 8(a)(2).

This means that the Amended Complaint should

clearly allege the facts supporting the causes of action asserted
in the Complaint.

For each cause or action or count she asserts,

Paik-Apau should identify the legal and factual bases for the
claim so that Defendants will be put on fair notice of the nature
of the claim and of the relief she is seeking.
U.S. at 555; Starr, 633 F.3d at 1204.

See Twombly, 550

Any Amended Complaint must

be a complete document itself; that is, it must not incorporate
the original Complaint by reference.
All documents filed by Paik-Apau in the future must
comply with this court’s Local Rules, especially the font-size
rules.

See Local Rule 10.2(a) (setting forth acceptable font

sizes as including 14-point Times New Roman and 12-point Courier
or Courier New).
V.

CONCLUSION.
For the foregoing reasons, the court grants the motion

to dismiss without a hearing pursuant to Local Rule 7.2(d) and
dismisses the Complaint.

This means that there will be no

hearing on this matter on April 25, 2011.

Paik-Apau is given

leave to file an Amended Complaint no later than May 16, 2011.

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Failure to timely file an Amended Complaint by that date will
result in the automatic dismissal of this case without further
order of this court.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 15, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Paik-Apau v., Deutsche Bank National Trust Co., et al.; Civil No. 10-00699 SOM/LEK;
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

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