Fujikawa v. One West Bank, FSB et al
Filing
24
ORDER GRANTING DEFENDANT ONEWEST BANK, FSB'S MOTION TO DISMISS, WITH LEAVE TO FILE A MOTION TO AMEND 9 . Signed by JUDGE HELEN GILLMOR on 7/21/2011. ~ The Complaint 1 is DISMISSED in its entirety, WITH LEAVE TO FILE A MOTION TO AMEND THE COMPLAINT. Plaintiff must attach a proposed amended complaint to any motion for leave to amend. Any such motion shall be filed no later than August 22, 2011. If Plaintiff fails to file a motion for leave to amend the complaint by that date , the Complaint against Defendant OneWest Bank, FSB will automatically be dismissed with prejudice. Defendant OneWest Bank, FSB shall file any response to the motion for leave to amend the complaint by September 5, 2011. (ecs, )< hr>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 7/22/2011
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
)
vs.
)
)
One West Bank, FSB dba Indymac )
Mortgage Services; Loan
)
Network, LLC; John DOES 1-10; )
Jane ROES 1-10; DOE
)
Corporations, Partnerships or )
Other Entities 1-10,
)
)
Defendants.
)
)
Civ. No. 11-00151 HG-KSC
Earl Kazuichi Fujikawa,
ORDER GRANTING DEFENDANT ONEWEST BANK, FSB’S MOTION TO DISMISS,
WITH LEAVE TO FILE A MOTION TO AMEND
On March 9, 2011, Plaintiff Earl Kazuichi Fujikawa filed an
eleven-count Complaint asserting various claims in connection with
a mortgage loan transaction.
On May 27, 2011, Defendant OneWest
Bank, FSB1 filed a Motion to Dismiss.
LEAVE TO FILE A MOTION TO AMEND.
The Motion is GRANTED, WITH
Plaintiff must attach a proposed
amended complaint to any motion for leave to amend.
PROCEDURAL HISTORY
On March 9, 2011, Plaintiff Fujikawa (“Plaintiff”) filed a
Complaint. (Doc. 1).
1
The caption of the Complaint names “One West Bank, FSB” as
a Defendant. Plaintiff has not disputed that this Defendant’s
name is “OneWest Bank, FSB.”
1
On May 27, 2011, Defendant OneWest Bank, FSB (“Defendant”)
filed a Motion to Dismiss. (Doc. 9).
On the same date, Defendant
filed a Request to take Judicial Notice of copies of a mortgage and
related documents. (Doc. 11).
On June 13, 2011, Plaintiff filed an Opposition. (Doc. 19).
On June 27, 2011, Defendant filed a Reply. (Doc. 20).
On June 27, 2011, Plaintiff filed a Supplemental Request to
take Judicial Notice of eight orders issued by United States
District Courts within the District of Hawaii. (Doc. 22).
On July 7, 2011, the Court held a hearing on the Motion to
Dismiss.
BACKGROUND
Plaintiff’s Complaint contains a series of vague factual
allegations that do not appear to be in chronological order.
Plaintiff alleges that he obtained a mortgage loan. (Doc. 1 at ¶
6).
He does not say who he obtained the loan from or the date that
the transaction took place.
Plaintiff alleges that OneWest Bank and the Loan Network LLC
acted
improperly
in
connection
with
the
loan
transaction.
Plaintiff alleges that OneWest (“and/or its employees and agents”)
overstated
his
income
on
his
loan
application,
without
his
knowledge, to increase his chances of qualifying. (Complaint at ¶¶
14-16).
Among various other wrongs, Plaintiff alleges that he was
2
not provided with initial loan disclosures, a dated good faith
estimate, or a signed and dated truth in lending statement. (Id. at
¶¶ 17-22).
allegedly
Plaintiff alleges a laundry-list of similar wrongs
committed
by
OneWest
and
the
Loan
Network
LLC
in
connection with the mortgage.
Defendant OneWest Bank, FSB (“OneWest”) filed a request that
the court take Judicial Notice of copies of the mortgage contract
that
is
the
subject
of
the
Complaint,
an
assignment
mortgage, and related documents. (Docs. 11-1 to 11-7).
of
the
Plaintiff
questions the authenticity of these documents on the ground that
OneWest has not produced the originals for comparison.
Plaintiff
does not identify any inaccuracies in the copies submitted by
OneWest.
The Court assumes that Plaintiff has access to these
public records, has reviewed them given that they are central to
his claims, and if the copies submitted by OneWest were inaccurate
would either point that out or produce genuine copies.
A district
court “ruling on a motion to dismiss may consider documents whose
authenticity no party questions, but which are not physically
attached to the pleading.” Parrin v. FHP, Inc., 146 F.3d 699, 706
(9th Cir. 1998) (internal citation and quotation marks omitted),
superseded by statute on other grounds. Plaintiff has presented no
grounds to question the authenticity of the documents submitted by
OneWest.
Counsel for OneWest signed a statement indicating that
the documents are all true and correct copies. (Doc. 11). Pursuant
3
to Federal Rule of Evidence 201, the Court takes judicial notice of
the copies of the mortgage, assignment of the mortgage, and related
documents,
because
they
are
public
documents.
See
Cootey
v.
Countrywide Home Loans, Inc., 2011 WL 2441707, at *1 n. 2 (D. Haw.
2011); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.
1986) (“On a motion to dismiss, we may take judicial notice of
matters of public record outside the pleadings.”).
The mortgage for the subject property identifies Mortgage
Electronic Registration Systems, Inc. (“MERS”) as the mortgagee, as
“nominee” for the Loan Network LLC (the lender). (Doc. 11-1).
It
was signed by the Plaintiff on December 28, 2007. (Doc. 11-1). The
Assignment of the Mortgage reflects that MERS assigned the mortgage
to OneWest Bank, FSB on August 4, 2010. (Doc. 11-2).
2011,
the
subject
property
was
sold
at
a
On January 5,
foreclosure
sale.
(Opposition at 19 (Doc. 19)).
STANDARD
The Court may dismiss a complaint as a matter of law pursuant
to Rule 12(b)(6) where it fails “to state a claim upon which relief
can be granted.” Rule 8(a)(2) of the Federal Rules of Civil
Procedure requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
When considering
a Rule 12(b)(6) motion to dismiss, the Court must presume all
allegations of material fact to be true and draw all reasonable
4
inferences in favor of the non-moving party. Pareto v. F.D.I.C.,
139 F.3d 696, 699 (9th Cir. 1998).
Conclusory allegations of law
and unwarranted inferences are insufficient to defeat a motion to
dismiss. Id. at 699. 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
v.
Golden
State
Warriors,
266
F.3d
979,
988
(9th
Cir. 2001).
In Bell Atl. Corp. v. Twombly, the United States Supreme Court
addressed the pleading standards under the Federal Rules of Civil
Procedure in the anti-trust context. 550 U.S. 544 (2007).
The
Supreme Court stated that Rule 8 of the Federal Rules of Civil
Procedure
“requires
more
than
labels
and
conclusions,
and
a
formulaic recitation of the elements of a cause of action,” and
that “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Id. at 555.
More
recently,
in
Ashcroft
v.
Iqbal,
the
Supreme
Court
clarified that the principles announced in Twombly are applicable
in all civil cases. 129 S.Ct. 1937 (2009).
The Court stated that
“the pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me-accusation.” Id. at 1949 (citing
Twombly, 550 U.S. at 555).
To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true,
5
to state a claim to relief that is plausible on its face. Id.
(quoting
Twombly,
550
U.S.
at
570).
A
claim
has
facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id. (citing Twombly, 550 U.S. at
556).
The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Id. (quoting Twombly, 550 U.S. at
556).
Where a complaint pleads facts that are “merely consistent
with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id.
(quoting Twombly, 550 U.S. at 557).
ANALYSIS
The Complaint contains the following 11 counts:
Count 1:
“Violations of Statutory Duties” pursuant to the Real
Estate Settlement Procedures Act (12 USC 2601 et. seq.),
the Equal Credit Opportunity Act (Reg. B, 12 CFR 202) and
the Fair Credit Reporting Act (15 USC 1681), and the
Truth in Lending Act (12 CFR Sec. 226.23(h)
Count 2:
Fraud
Count 3:
Mistake
Count 4:
Unconscionability
Count 5:
Unfair and Deceptive Acts or Practices
6
Count 6:
Breach of Fiduciary Duties
Count 7:
Failure to Act in Good Faith
Count 8:
Injunctive Relief
Count 9:
Recoupment
Count 10: Unjust Enrichment
Count 11: Negligent and/or Intentional Infliction of Emotional
Distress
OneWest Moves to Dismiss all Counts on the ground that they
fail to state claims upon which relief can be granted. Plaintiff’s
counsel,
Robin
Horner,
has
filed
several
virtually
identical
complaints on behalf of other plaintiffs that assert the same
counts with the same wording, and with little variation other than
the names of the parties involved.
These boilerplate complaints
have been routinely dismissed in their entirety for woefully
failing to meet the minimum pleading requirements of Federal Rule
of Civil Procedure 8. See, e.g., Dagupion v. Green Tree Servicing,
LLC, 2011 WL 2532848 (D. Haw. 2011).
repeatedly
been
put
insufficiently pled.
on
notice
that
Plaintiff’s counsel has
these
complaints
are
In Dagupion, the court pointed out that it
had already dismissed a very similar complaint, and warned counsel
that he should consider filing amended versions in the future:
In [a previous case before the court], the court rejected
Horner’s boilerplate Complaint and cautioned him to
consider filing amended Complaints in the future . . . .
7
The Complaint in this case is virtually identical to the
one dismissed [previously].
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.
2011 WL 2532848, at *2; see also Cootey v. Countrywide Home Loans,
Inc., 2011 WL 2441707, at *3 (D. Haw. 2011) (listing cases that
have dismissed a similar complaint brought by Mr. Horner, and
warning that “these deficient complaints result in a waste of
parties’ and this court’s resources, and Plaintiffs’ counsel must
be mindful of his duty to bring claims that are ‘warranted by
existing
law
or
by
a
nonfrivolous
argument
for
extending,
modifying, or reversing existing law or for establishing new
law.’”) (quoting Federal Rule of Civil Procedure 11(b)(2)).
The Complaint in this case similarly fails to state a claim.
Count 1: “Statutory Violations”
In Count 1, Plaintiff claims that “Defendant or one or more of
them” are liable for violations of four federal statutes: “the Real
Estate Settlement Procedures Act (12 USC 2601 et. seq.), the Equal
Credit Opportunity Act (Reg. B, 12 CFR 202) and the Fair Credit
Reporting Act (15 USC 1681), and the Truth in Lending Act (12 CFR
Sec. 226.23(h).” (Complaint at ¶ 50 (Doc. 1)).
Plaintiff alleges
that he was not provided with various disclosures required by these
statutes.
omission
Plaintiff does not indicate what wrongful action or
violated
which
law,
or
8
which
particular
Defendant
committed which violation.
Count 1 fails to meet the minimum pleading standard of Federal
Rule of Civil Procedure Rule 8(a)(2), which requires “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”
As the district court stated in Kupahu v. BAC Home
Loans Servicing, LP, 2010 WL 2734774, at *4 (D. Haw. 2010),
discussing an identically worded count:
While the Background of the Amended Complaint outlines a
laundry list of Countrywide’s alleged failures to provide
various documents and information to Plaintiffs, Count I
fails to identify what particular conduct Plaintiffs
assert violates each of these laws, or even the
particular provisions of these laws that Defendants
allegedly violated. By failing to put forth any specific
factual or legal allegations—and link those allegations
to the particular statutory violations—Plaintiffs do not
provide Defendants with fair notice of the wrongs they
have allegedly committed.
Just as in Kupahu, the identically worded Count 1 at issue in this
case is insufficiently pled.
Count 1, for “statutory violations,” is DISMISSED WITH LEAVE
TO FILE A MOTION TO AMEND.
Counts 2 and 3: Fraud and Mistake
Plaintiff claims that “Defendant and or one or more of them”
committed fraud by misrepresenting his income, failing to disclose
the true terms of the loan, failing to inform Plaintiff that he had
a high likelihood of defaulting on the loan, and failing to follow
reasonable underwriting guidelines when qualifying Plaintiff for
9
the loan.
Alternatively, Plaintiff claims that he is entitled to
a rescission of the note and mortgage based on mutual mistake.
When pled in federal court, fraud and mistake claims must meet
the heightened pleading standard of Federal Rule of Civil Procedure
9(b). See, e.g., Kapahu v. BAC Home Loans Servicing, LP, 2010 WL
2734774, at *3 (D. Haw. 2010).2
Rule 9(b) requires a party
asserting a fraud or mistake claim to “state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).
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
omitted).
Cir.
2009)
(internal
citation
and
quotation
marks
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).
The
circumstances constituting 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.” Vess v. Ciba-Geigy Corp. USA (9th Cir. 2002)
(quoting Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993)).
Plaintiff’s fraud and mistake allegations fail to meet the
standard required by Rule 9(b).
Plaintiff fails to specify which
2
Hawaii Rule of Civil Procedure 9(b) similarly requires
averments of fraud to be plead with heightened particularity. See
Giles v. Giles, 37 P.3d 589, 593 (Haw. Ct. App. 2001).
10
Defendant allegedly made false representations, and when and how
the false representations occurred.
The Complaint also fails to
allege grounds on which OneWest, as an assignee, would be liable
for fraudulent misrepresentations made by the originating lender.
See, e.g., Stoudt v. Alta Fin. Mort., 2009 WL 661924, at *2
(E.D.Pa. 2009).
worded
fraud
As stated in Kupahu, discussing
and
mistake
claims,
“These
identically
allegations
are
insufficient to meet Plaintiffs’ burden under Rule 8, much less the
more rigorous requirements of Rule 9 that apply to these claims.”
2010 WL 2734774, at *5.
Counts 2 and 3, for fraud and mistake, are DISMISSED WITH
LEAVE TO FILE A MOTION TO AMEND.
COUNT 4: Unconscionability
Plaintiff claims that he is entitled to a rescission of the
note
and
mortgage
unconscionable.
because
the
terms
and
conditions
are
Unconscionability may be asserted to prevent the
enforcement of a contract where “the clauses are so one-sided as to
be unconscionable under the circumstances existing at the time of
the making of the contract . . . .” Lewis v. Lewis, 748 P.2d 1362,
1366
(Haw.
1988)
(citations
omitted).
Unconscionability
is
“generally a defense to the enforcement of a contract, and is not
a proper claim for affirmative relief.” Mier v. Lordsman, Inc.,
2011 WL 285862, at *11 (D. Haw. 2011).
11
Plaintiff has not plead his unconscionability claim with the
minimum degree of specificity necessary under Federal Rule of Civil
Procedure 8 to give the Defendants notice of the basis for the
claim.
Plaintiff does not identify a single term or condition of
the mortgage contract that is unconscionable. See Kupahu, 2010 WL
2734774, at *6 (discussing a similarly worded unconscionability
count
and
stating,
“it
remains
unclear
what
precise
loan
transaction is at issue, what terms and conditions of the mortgage
loan Plaintiffs assert are unconscionable, how Plaintiffs believe
those terms and conditions are unconscionable, and the factual
basis for why each Defendant is liable for this claim.”).
Count 4, for unconscionability, is DISMISSED WITH LEAVE TO
FILE A MOTION TO AMEND.
COUNT 5: UNFAIR AND DECEPTIVE ACTS OR PRACTICES
Plaintiff claims that acts by “defendant or one or more of
them”
constitute
unfair
and
deceptive
acts
or
practices
in
violation of 15 U.S.C. § 1802, et seq., and Hawaii Revised Statutes
(“HRS”) 480-2; 480-13.
HRS § 480-2(a) prohibits “[u]nfair methods
of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce . . . .”
HRS § 480-13 provides a
private cause of action to consumers who have been injured by an
unfair or deceptive act or practice prohibited by HRS § 480-2. The
federal statute Plaintiff cites is located within the United States
12
Code chapter on Newspaper Preservation, and appears to have been
cited in error.
Plaintiff has not pled facts that would explain
the statute’s relevance to this action.
As with the other counts in his Complaint, Plaintiff’s unfair
and deceptive acts or practices claim is pled in a conclusory
manner with no reference to any of the basic facts underlying it.
The claim plainly fails to meet the minimum requirements of Federal
Rule of Civil Procedure 8. See Kupahu, 2010 WL 2734774, at *6
(dismissing
an
identically
worded
claim
for
being
“wholly
conclusory”); see also Rymal v. Bank of America, 2010 WL 1361441,
at *7-8 (D. Haw. 2011).
COUNT 6: BREACH OF FIDUCIARY DUTIES
Plaintiff claims that “Defendant or one or more of them”
breached fiduciary duties by misrepresenting the terms of the loan,
improperly
qualifying
him
for
the
loan,
and
not
disclosing
information that would allow Plaintiff to know that he had a
substantial likelihood of defaulting.
It is well-settled that a borrower-lender relationship is not
fiduciary in nature unless a special relationship exists between
the borrower and lender. See McCarty v. GCP Mgmt., LLC, 2010 WL
4812763, at *5 (D. Haw. 2010) (collecting cases).
A special
relationship giving rise to fiduciary duties “might exist if a bank
offers any provision of trust or fiduciary services, or otherwise
13
agrees to serve as a financial advisor.” River Colony Estates Gen.
P’ship. v. Bayview Fin. Trading Grp., 287 F. Supp. 2d 1213, 1224
(S.D. Cal. 2003).
Fiduciary duties may also arise if a lender
“excessively controls or dominates the borrower.” Periguerra v.
Meridas Capital, Inc., C 09-4748 SBA, 2010 U.S. Dist. LEXIS 8082,
at *7 (N.D. Cal. Feb. 1, 2010).
Plaintiff has not plead any facts to show that his borrowlender relationship involved special circumstances giving rise to
fiduciary
duties.
Bald
assertions
in
the
Complaint
that
a
fiduciary duty exists fail to satisfy the requirements of Federal
Rules of Civil Procedure 8 and 12(b)(6).
See Iqbal, 129 S. Ct. at
1951; Shepherd v. Am. Home Mortg. Servs., Inc., 2009 U.S. Dist.
LEXIS 108523, at *2 (E.D. Cal. Nov. 20, 2009) (“Plaintiff cites no
authority for the proposition that [Defendants] owed a duty to not
cause plaintiff harm . . . .
In fact, loan servicers do not owe a
duty to the borrowers of the loans they service.”).
Count 6, for breach of fiduciary duties, is DISMISSED WITH
LEAVE TO FILE A MOTION TO AMEND.
COUNT 7: FAILURE TO ACT IN GOOD FAITH
Plaintiff claims that “Defendant or one or more of them”
failed to deal with him in good faith by, among other things,
misrepresenting
material
information,
not
providing
necessary
disclosures, failing to disclose that he was not qualified for the
14
loan, and failing to disclose that he was likely to default.
Some courts have suggested that a claim based on a breach of
the implied covenant of good faith and fair dealing (or the tort of
bad faith) may only be brought in the insurance context. See, e.g.,
Kelly v. Bank of America, 2011 WL 2493048, at *4 (D. Haw. 2011)
(“[A]lthough bad faith is an accepted tort where the plaintiff is
a party to an insurance contract, the tort has not been recognized
in Hawaii based upon a mortgage loan contract.”); Stoebner Motors,
Inc. v. Automobili Lamborghini S.P.A., 459 F.Supp.2d 1028, 1037-38
(D. Haw. 2006).
claim
involved
These courts did not rely on the fact that the
a
mortgage
contract
rather
than
an
insurance
contract as the only basis for dismissing the claim. See, e.g.,
Kelly, 2011 WL 2493048, at *4 (“[E]ven assuming a bad faith tort
exists outside the insurance context, [there are other grounds in
this case to dismiss the claim] . . . .”).
The Hawaii Supreme Court has not established a cause of action
for breach of the implied covenant of good faith and fair dealing
(the tort of bad faith) outside the insurance context. Even if the
cause
of
action
may
be
asserted
in
relation
to
a
mortgage,
Plaintiff has failed to allege sufficient factual detail to support
it. Plaintiff vaguely refers to a series of misrepresentations and
other wrongs, but fails to identify the particular Defendant that
committed them and when.
No allegations have been presented that
would support liability for OneWest as assignee, for acts committed
15
by the originating lender. See Kupahu, 2010 WL 2734774, at *7;
Rymal, 2010 WL 1361441, at *8.
Count 7, for failure to act in good faith, is DISMISSED WITH
LEAVE TO FILE A MOTION TO AMEND.
COUNT 8: INJUNCTIVE RELIEF
In Count 8, Plaintiff requests injunctive relief and a stay of
any foreclosure proceedings. Injunctive relief is a remedy, not an
independent cause of action.
See, e.g., Rosal v. First Fed. Bank
of Cal., 671 F. Supp. 2d 1111, 1136 (N.D. Cal. 2009) (“A request
for
injunctive
relief
by
itself
does
not
state
a
cause
of
action.”); Mangindin, 637 F. Supp 2d at 709 (“[I]njunctive relief
[is] not [an] independent cause[] of action.”).
Plaintiff appears to base his request for injunctive relief on
the other claims in his Complaint.
claims
are
all
dismissed,
Because Plaintiff’s other
Plaintiff’s
derivative
claim
for
injunctive relief must also be dismissed. See Kupahu, 2010 WL
2734774, at *7.
OneWest argues that an injunction preventing foreclosure is
moot because the foreclosure has already taken place, and that this
claim
should
be
dismissed
with
prejudice.
As
the
relief
Plaintiff’s claim for injunctive relief requests is unclear, the
injunction request is not dismissed as moot.
Count 8, for injunctive relief, is DISMISSED WITH LEAVE TO
16
FILE A MOTION TO AMEND.
COUNT 9: RECOUPMENT
In Count 9, Plaintiff requests an “equitable recoupment” of
all monies paid with regard to the loan transaction. (Complaint at
¶ 86 (Doc. 1)).
Plaintiff fails to allege a factual basis for this
claim, and appears to base the claim on the others claims for
relief in his Complaint.
As the other claims in the Complaint are
dismissed, Plaintiff’s derivative claim for recoupment also fails.
Plaintiff also fails to state the legal basis for this claim.
While section 1640(e) of TILA allows borrowers to seek a recoupment
or set-off of damages sustained from TILA violations against money
owed to the lender, a TILA recoupment may be asserted “only as a
‘defense’ in an ‘action to collect a debt.’” Ortiz v. Accredited
Home Lenders, Inc., 639 F. Supp.2d 1159, 1164 (S.D. Cal. 2009).
Plaintiff has not asserted his recoupment claims as a “defense” to
an action to collect a debt.
Plaintiff has failed to state the
statutory or other legal basis for his request for recoupment.
It
is conceivable, however, that Plaintiff could add factual content
and legal support that would state a claim for recoupment.
Count 9, for recoupment, is DISMISSED WITH LEAVE TO FILE A
MOTION TO AMEND. Plaintiff must state the statutory or other legal
basis for a recoupment claim if he asserts it in a proposed amended
complaint.
17
COUNT 10: UNJUST ENRICHMENT
In Count 10, Plaintiff alleges that, as a result of the
various wrongful acts alleged throughout the Complaint, “defendant
and or one of them” are liable for unjust enrichment.
To state a
claim for unjust enrichment, a plaintiff must allege that “he or
she conferred a benefit upon the opposing party and that the
retention of that benefit would be unjust.” Durette v. Aloha
Plastic Recycling, Inc., 100 P.3d 60, 74 (Haw. 2004).
As Plaintiff has failed to specify the factual allegations
underlying his claim for unjust enrichment, Plaintiff has failed
state an unjust enrichment claim. See Rymal, 2010 WL 1361441, at
*10
(dismissing
identically
worded
unjust
enrichment
claim,
stating, “Plaintiff fails to plead any factual allegations to
suggest that this claim is plausible, and it remains entirely
unclear who Plaintiff alleges these claims against.”).
Count 10, for unjust enrichment, is DISMISS WITH LEAVE TO FILE
A MOTION TO AMEND.
COUNT 11: NEGLIGENT AND/OR INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS
Plaintiffs claims that he was subjected to negligent or
intentional infliction of emotional distress by being misled into
taking out a loan that he was not qualified for and would likely be
unable to afford.
18
A negligent infliction of emotional distress claim is “nothing
more than a negligence claim in which the alleged actual injury is
wholly
psychic
and
is
analyzed
utilizing
ordinary
negligence
principles.” Doe Parents No. 1 v. State, 58 P.3d 545, 580 (Haw.
2002)
(internal
plaintiff
may
citations
recover
and
for
quotation
negligent
marks
infliction
omitted).
of
A
emotional
distress “where a reasonable [person], normally constituted, would
be unable to adequately cope with the mental stress engendered by
the circumstances of the case.” Id.
To state a claim for negligent
infliction of emotional distress, a plaintiff must allege that,
incident to the plaintiff’s injuries, “someone was physically
injured by the defendant’s conduct, be it the plaintiff himself or
herself or someone else.” Id. at 580-81. (citations omitted).
To state a claim for intentional infliction of emotional
distress, a plaintiff must allege: “(1) that the act allegedly
causing the harm was intentional or reckless, (2) that the act was
outrageous, and (3) that the act caused (4) extreme emotional
distress to another.” Enoka v. AIG Haw. Ins. Co., 128 P.3d 850, 872
(Haw. 2006) (internal citation and quotation marks omitted).
Plaintiff fails to allege facts sufficient to state a claim
for
either
negligent
or
intentional
infliction
of
emotional
distress. As the court stated in Kupahu, discussing the same claim
(within the same boilerplate complaint): “the allegations are
simply too generalized and lacking in clarity to satisfy the
19
requirements of Rule 8, and as pled, it does not appear that [the
defendant] engaged in any conduct that would support an NIED or
IIED claim.” 2010 WL 2734774, at *7; see also Rymal v. Bank of
America, 2011 WL 1361441, at *10-11.
Count 11, for negligent and/or intentional infliction of
emotional distress, is DISMISSED WITH LEAVE TO FILE A MOTION TO
AMEND.
MOTION TO AMEND
Plaintiff must attach a proposed amended complaint to any
motion for leave to file an amended complaint.
Any proposed
amended complaint must contain sufficient factual detail, including
the dates of the relevant transactions for statute of limitations
purposes, to state a claim for relief that is plausible. Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Parrino, 146 F.3d
at 706 (plaintiffs should not be able to survive a “Rule 12(b)(6)
motion by deliberately omitting references to documents upon which
their claims are based . . . .”).
Plaintiff’s
counsel
is
strongly
advised
to
review
the
requirements of Federal Rule of Civil Procedure 11 before filing a
motion to amend and proposed amended complaint. Any claim asserted
by the Plaintiff must contain a factual basis, which Plaintiff must
specifically allege for each claim asserted.
Plaintiff must
distinguish between the Defendants, and specifically identify which
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Defendant is alleged to have committed which wrongful acts.
Any
proposed amended complaint must expressly state whether any claims
are based on acts committed by the original lender or an assignee.
Plaintiff’s counsel is advised to consult 12 U.S.C. § 1821 to
determine whether the Court would have subject-matter jurisdiction
over any claims against OneWest as an assignee that are based on
wrongful conduct committed by the original lender.
If it becomes clear that Plaintiff’s counsel is seeking to
assert claims that lack any identifiable basis in fact, and is
merely attempting to improperly prolong the litigation or advance
a purpose that is improper under Rule 11, the Court may impose
sanctions.
CONCLUSION
Defendant OneWest Bank, FSB’s Motion to Dismiss (Doc. 9) is
GRANTED.
The Complaint (Doc. 1) is DISMISSED in its entirety, WITH
LEAVE TO FILE A MOTION TO AMEND THE COMPLAINT.
Plaintiff must
attach a proposed amended complaint to any motion for leave to
amend.
2011.
Any such motion shall be filed no later than August 22,
If Plaintiff fails to file a motion for leave to amend the
complaint by that date, the Complaint against Defendant OneWest
Bank, FSB will automatically be dismissed with prejudice.
Defendant OneWest Bank, FSB shall file any response to the
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motion for leave to amend the complaint by September 5, 2011.
IT IS SO ORDERED.
DATED: July 21, 2011, Honolulu, Hawaii.
/S/ Helen Gillmor
Helen Gillmor
United States District Judge
Earl Kazuichi Fujikawa v. OneWest Bank, FSB, et al.; Civil No. 1100151 HG-KSC; ORDER GRANTING DEFENDANT ONEWEST BANK, FSB’S MOTION
TO DISMISS, WITH LEAVE TO FILE A MOTION TO AMEND.
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