Dagupion v. Green Tree Servicing, LLC et al

Filing 35

ORDER DISMISSING COMPLAINT 12 ; 16 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/23/11. (Dagupion has until July 14, 2011 to file an Amended Complaint.) (emt, )CERTIFICATE OF SERVICEPartici pants 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
MARC DAGUPION,

)
)
Plaintiff,
)
)
vs.
)
)
GREEN TREE SERVICING, LLC,
)
NATIONAL CITY MORTGAGE CO., a )
subsidiary of NATIONAL CITY
)
BANK,
)
JOHN DOES 1-10,
)
JANE DOES 1-10,
)
DOE CORPORATIONS,
)
PARTNERSHIPS OR OTHER
)
ENTITIES 1-10.
)
)
Defendants.
)
)

CIVIL NO. 11-00120 SOM/KSC
ORDER DISMISSING COMPLAINT

ORDER DISMISSING COMPLAINT
I.

INTRODUCTION AND FACTUAL BACKGROUND.
On February 24, 2011, Marc Dagupion filed the Complaint

in this matter.

Dagupion alleges that Green Tree Servicing, LLC

(“Green Tree”), and National City Mortgage (“NCM”) violated state
and federal statutes in connection with a residential mortgage
loan.

PNC Bank, N.A. (“PNC”), is the successor by merger to NCM.
Because the Complaint lacks sufficient factual detail

to support its claims against Defendants, Green Tree and PNC’s
motions to dismiss are granted without a hearing pursuant to
Local Rule 7.2(d) and the Complaint is dismissed.
II.

STANDARD OF REVIEW.
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 is not questioned by any
party may also be considered in ruling on a Rule 12(b)(6) motion
to dismiss.

See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.

2006); Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
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.

Additionally, the court need not accept as true allegations that
contradict matters properly subject to judicial notice or

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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)).
“[T]o survive a Rule 12(b)(6) motion to dismiss,
factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true even if doubtful in fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks omitted); accord Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (“the pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation”).

“While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Twombly, 550 U.S. at 555.

The

complaint must “state a claim to relief that is plausible on its
face.”

Id. at 570.

“A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
III.

Iqbal, 129 S. Ct. at 1949.

BACKGROUND.
The Complaint contains very few factual details.

It

does not, for example, allege when the loan occurred or provide
any information about the loan.

In fact, the Complaint is

similar to a number of Complaints filed by Dagupion’s attorney
that have been found wanting by the court.

See, e.g. Levy v.

Wells Fargo Bank, N.A., Civ. No. 11-00159 SOM/KSC, ECF No. 1.
While unclear, Dagupion seems to allege that NCM was
his original lender.

See Compl. ¶¶ 9, 14-16, ECF No. 1

(detailing wrongdoing by NCM in connection with the closing of
the loan).

It appears from the Complaint that NCM sold the note

and mortgage to Green Tree at some point.

See id. ¶ 12.

Green Tree and PNC have separately moved to dismiss
Dagupion’s Complaint.

See ECF Nos. 12 & 16.

Both Defendants

attach to their motions various public record documents
establishing that NCM was Dagupion’s original lender and Green
Tree was the assignee.

For example, on April 17, 2007, a

mortgage was recorded in the State of Hawaii Bureau of
Conveyances.

See Doc. No. 2007-068261, ECF No. 18, Ex. A.

This

document, which the court takes judicial notice of, indicates
that, in April 2007, Dagupion gave a mortgage to NCM to secure a

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$360,000 note.

See Mir v. Little Co. of Mary Hosp., 844 F.2d

646, 649 (9th Cir. 1988) (providing that, when ruling on a motion
to dismiss, a court may take judicial notice of matters of public
record outside the pleadings and consider those matters when
adjudicating the motion to dismiss).

The court further takes

judicial notice that, on April 6, 2010, PNC, successor to NCM,
assigned the note and mortgage to Green Tree.

See Doc. No. 2010-

045351, Apr. 6, 2010, ECF No. 18, Ex. C; Mir, 814 F.2d at 649.
Although Dagupion disputes the authenticity of these
recorded documents, he admits in his opposition to the motion to
dismiss that his original lender was NCM and that “his loans may
have been sold, transferred, or assigned, improperly to
undisclosed 3rd parties, including Green Tree.”

See Opp’n at 2,

7, ECF No. 32.
The court notes that the opposition violates the
court’s local rules in several respects.

For example, the

Opposition violates Local Rule 7.5(f) by failing to have a table
of contents and table of authorities cited.

The Opposition also

makes new allegations, which this court does not consider in the
present order because Defendants were not on notice of them.

See

Balagso v. Aurora Loan Servs., LLC, Civ. No. 11-00029 SOM/BMK,
2011 WL 2133709, at *3 (D. Haw. May 26, 2011).

Dagupion’s

counsel is warned that, if he violates these rules again, or if
he continues to flout the court’s local rules, he will be subject

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to sanctions.

This court has recently sanctioned Dagupion’s

counsel, Robin R. Horner, for failure to submit a timely
opposition motion.

See Enriquez v. Aurora Loan Servs., LLC, Civ.

No. 10-00281 SOM/KSC, 2011 WL 1103808 (D. Haw. Mar. 22, 2011).
Also in Enriquez, the court rejected Horner’s boilerplate
Complaint and cautioned him to consider filing amended Complaints
in the future.

See id. at *1.

The Complaint in this case is

virtually identical to the one dismissed in Enriquez.

Horner has

known for at least three months that this boilerplate Complaint
was rejected by this court and yet never filed an Amended
Complaint in this case.
IV.

ANALYSIS.
PNC and Green Tree seek dismissal of the Complaint,

arguing that it fails to sufficiently allege a claim against
them.

This court agrees that Dagupion’s Complaint fails to

satisfy the minimal pleading standards set forth in Twombly and
Iqbal, as it lacks facial plausibility.
A.

Failure to Plead Facts as to Each Defendant.

PNC and Green Tree argue that the Complaint fails to
make any particular allegations as to any Defendant and therefore
fails to state a claim that is plausible on its face as to both
Defendants.

See Memo. in Support of Def. PNC at 2–3, ECF No. 17;

Green Tree Mot. at 4-6, ECF No. 12.

This court agrees.

The Complaint alleges that Dagupion received a mortgage

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from NCM, and then refers vaguely to “Defendant or one or more of
them,” leaving completely unexplained how each Defendant
allegedly participated in the post-mortgage events.
Compl. ¶¶ 41–48.

See, e.g.,

For example, Dagupion alleges that he has

experienced financial hardship and attempted to negotiate with
“defendant” to modify the loan.

Id. ¶¶ 36-39.

“Defendant”

allegedly failed to provide Dagupion with a reasonable
opportunity to modify the terms of his loan.

Id. ¶ 40.

It is

unclear which Defendant Dagupion is referring to in these
allegations.
Throughout his Complaint, Dagupion makes blanket
statements and treats NCM and Green Tree interchangeably, even
though they were involved in the loan at different stages.
See Compl. ¶ 20 (“National and/or Green Tree failed to deal with
Plaintiff in good faith); ¶ 22 (“National and/or Green Tree
failed to provide Plaintiff Dagupion with signed and dated final
truth in lending statement.”); ¶ 31 (“National and/or Green Tree
did not properly and timely disclose the applicable interest rate
and/or annual percentage interest rate”).

Given that the

Complaint further lists as Defendants “John Does 1–10, Jane Does
1–10, and Doe Corporations, Partnerships and Other Entities
1–10,” there is any number of possibilities as to who was
involved in the mortgage events.
There are no allegations in the Complaint directed to

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PNC in particular.

As PNC’s involvement with the subject

property is a matter of public record, there is no reason
Dagupion could not include some specific facts in his Complaint.
Further, as many of the Complaint’s allegations involve
interactions Dagupion had with Defendants (e.g., Dagupion
allegedly notified Defendants about issues with the origination
of the loan and sought loan modification, Compl. ¶¶ 37-38), there
is also no reason Dagupion could not identify specific Defendants
more particularly in the Complaint.
Accordingly, the court finds that as a general matter,
the Complaint fails to state a claim as to any Defendant.

See

also Cootey v. Countrywide Home Loans, Inc., Civ. No. 11-00512
JMS/KSC, 2011 WL 2441707, at *3-4 (D. Haw. June 14, 2011); Letvin
v. Amera Mortg. Corp., Civ. No. 10-00539 JMS/KSC, 2011 WL
1603635, at *3-4 (D. Haw. Apr. 27, 2011).
B.

Failure to Distinguish Between Green Tree & NCM.

The Complaint seeks damages from Green Tree for actions
taken by NCM, the original lender.

Although Dagupion’s

opposition states that “the wrongful acts and omissions . . . by
National City are imputed to . . . Green Tree,” the Complaint is
devoid of any facts supporting such a claim.

See Opp’n at 13,

ECF No. 32.
Dagupion claims that Green Tree and other Defendants
failed to provide him with requisite loan disclosures and to

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properly “explain” the loan terms, even though he admits that he
was notified of the assignment to Green Tree in November 2009,
long after the loan origination in April 2007.
17, 19, 21-22.

See Compl. ¶ 11,

Dagupion moreover vaguely alleges, “The acts

and/or omissions of defendant or one or more of them were known
and/or should have been known to Green Tree and/or are imputed to
Green Tree.”

Compl. ¶ 35.

It appears that Dagupion, through his counsel, Robin R.
Horner, simply filed a “form complaint” and either did not
realize the difference or did not bother to distinguish between
NCM and Green Tree.

In failing to recognize that PNC is the

proper Defendant and that NCM and Green Tree held separate roles
in the mortgage loan, Dagupion’s counsel may have violated Rule
11(b)(2) and (3) of the Federal Rules of Civil Procedure.

Horner

was recently cautioned about complying with his Rule 11
obligations in connection with filing “form complaints” that
presented deficient arguments previously rejected on multiple
occasions by the court.

See Rey v. Countrywide Home Loans, Inc.,

Civ. No. 11-00142 JMS/KSC, 2011 WL 2160679, at *3 (D. Haw. June
1, 2011).

This judge once again cautions Horner to comply with

his Rule 11 obligations in all future filings with this court.
Any future filing that fails to comply with those obligations may
result in serious repercussions, including but not limited to
substantial financial sanctions.

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To the extent the Complaint seeks to hold Green Tree
liable for any federal or state violation based on the original
lender’s conduct, the Complaint is dismissed, as it is clear that
Green Tree is not the original lender and there are no factual
allegations in the Complaint supporting a claim that Green Tree
should be held liable for the original lender’s conduct.
To the extent the Complaint seeks to hold PNC liable
for any federal or state violation, the Complaint is also
dismissed, as general allegations of the Complaint for the most
part lump NCM and Green Tree together.

Such conclusory pleading

fails to state a claim that is plausible on its face as to any
specific Defendant.
The dismissal of these claims leaves for adjudication
only state-law claims based on Defendants’ alleged refusal to
negotiate a loan modification in good faith.

Because the court

has dismissed the claims giving rise to federal question
jurisdiction under 28 U.S.C. § 1331, and because the Complaint
does not assert diversity jurisdiction under 28 U.S.C. § 1332,
the court declines to exercise supplemental jurisdiction over the
state law claims at this time.
dismissed.

Accordingly, those claims are

See United Mine Workers of Amer. v. Gibbs, 383 U.S.

715, 726 (1966).
Dagupion is granted leave to file an Amended Complaint
no later than July 14, 2011.

See Lopez v. Smith, 203 F.3d 1122,

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1131 (9th Cir. 2000).

In filing any such Amended Complaint,

Dagupion may, through his counsel, reassert the claims asserted
in the original Complaint, but must ensure that any such Amended
Complaint meets the required minimal pleading standards.

This

means that, before simply reasserting claims, counsel should
examine the relevant facts and tailor claims based on those
facts.

Having been cautioned against filing unwarranted claims,

see Rey, 2011 WL 2160679, at *3, Dagupion’s counsel should ensure
that no unwarranted claims are asserted in any Amended Complaint.
If, for example, a claim is barred by the relevant statute of
limitation, it should not be asserted.

If there is a legal

theory under which Green Tree is liable for NCM’s alleged
actions, the facts supporting that theory should be alleged.

If

there is no legal justification for holding Green Tree liable for
another company’s conduct, a claim against Green Tree should not
be asserted.

Counsel is reminded that he must have a good faith

basis for bringing specific claims to avoid possible sanctions.
See, e.g., Holgate v. Baldwin, 425 F.3d 671, 676–77 (9th Cir.
2005); Buster v. Greisen, 104 F.3d 1186, 1190 (9th Cir. 1997).
Moreover, if Dagupion chooses to file an Amended
Complaint, he must clearly state how each named Defendant has
injured him.

In other words, Dagupion should explain, in clear

and concise allegations, what each Defendant did and how those
specific facts create a plausible claim for relief.

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Dagupion

should not include facts that are not directly relevant to his
claims.

A complaint that fails to explain which allegations are

relevant to which defendant is confusing.

This, in turn,

“impose[s] unfair burdens on litigants and judges” because it
requires both to waste time formulating their own best guesses of
what the plaintiff may or may not have meant to assert, risking
substantial confusion if their understanding is not equivalent to
plaintiff’s.

See McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th

Cir. 1996).
Finally, because the claims asserted in various “form
complaints” filed by Horner on behalf of his clients have been
rejected numerous times, Dagupion should consider whether it is
appropriate to assert them in this action at all.

In reminding

counsel about his Rule 11 obligations, this court expresses no
inclination as to the validity of any claim Dagupion may assert.
The court is not here prejudging Dagupion’s possible claims, but
merely requiring any Amended Complaint to assert only potentially
valid claims that have some factual basis supporting them.
V.

CONCLUSION.
For the foregoing reasons, Defendants’ motion to

dismiss are GRANTED.
Amended Complaint.

Dagupion has until July 14, 2011 to file an
Should Dagupion decide to prepare an Amended

Complaint, Dagupion’s counsel is strongly urged to meet the
deficiencies identified in this order to avoid sanctions.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 23, 2011.

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

Dagupion v. Green Tree Servicing, LLC, et al.; Civil No. 11-00120 SOM/KSC;
ORDER DISMISSING COMPLAINT.

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