Medeiros v. Citibank, N.A. et al
Filing
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ORDER GRANTING DEFENDANT BANK OF AMERICA, N.A.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT 10 ; 21 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 2/15/12. ("Medeiros is given leave to file an Amended Complaint no later tha n March 15, 2012.") (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). Participants not registered to receive electronic notifications were served by first class mail at the address of record on the date of this docket entry.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiff,
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vs.
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CITIBANK, N.A.; BANK OF
AMERICA, N.A.; JOHN DOES
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1-10; JANE DOES 1-10L DOE
PARTNERSHIPS 1-10; DOE
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CORPORATIONS 1-10; and DOE
ENTITIES,
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Defendants.
_____________________________ )
JODY G. MEDEIROS,
CIVIL NO. 11-00615 SOM-KSC
ORDER GRANTING DEFENDANT BANK
OF AMERICA, N.A.’S MOTION TO
DISMISS PLAINTIFF’S COMPLAINT
ORDER GRANTING DEFENDANT BANK OF
AMERICA, N.A.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
I.
INTRODUCTION.
On April 25, 2006, Plaintiff Jody G. Medeiros
(“Medeiros”) entered into a mortgage agreement securing a
$700,000 loan to purchase property on the island of Maui.
See
Compl. ¶ 8, Oct, 13, 2011, ECF No. 1; Compl. Ex. 1 (“Mortgage”),
at 1, Oct. 13, 2011, ECF No. 1-2.
The mortgage document names
Countrywide Home Loans, Inc., as the lender, and Mortgage
Electronic Registration Systems, Inc., as the mortgagee.
Mortgage at 2.
On October 31, 2011, Medeiros brought this lawsuit
against Defendants Citibank, N.A., and Bank of America, N.A.,
(“BOA”), claiming that Citibank has violated the Truth and
Lending Act (“TILA”), 15 U.S.C. § 1641(g), and that BOA has
charged her too much for property insurance.
Medeiros alleges
that BOA is the servicer of the mortgage and that Citibank is the
mortgagee.
Compl. ¶¶ 9-10.
BOA now seeks dismissal of the Complaint for failure to
state a claim upon which relief can be granted, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.1
The court
grants the motion.
II.
STANDARD.
Rule 12(b)(6) of the Federal Rules of Civil Procedure
provides:
“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 defense[] by motion: . . .
(6) failure to state a claim upon which relief can be granted[.]”
Dismissal under Rule 12(b)(6) may be based on either
(1) the lack of a cognizable legal theory, or (2) insufficient
facts to support 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)).
To state a claim, a pleading must contain a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
While Rule 8
does not demand detailed factual allegations, “it demands more
1
At the hearing on this motion, Medeiros stated that she
had no further arguments and rested on her written submissions.
2
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
On a Rule 12(b)(6) motion to dismiss, the court takes
all allegations of material fact as true and construes them in
the light most favorable to the nonmoving party.
Holder, 574 F.3d 1182, 1184 (9th Cir. 2009).
Marcus v.
To survive a motion
to dismiss, a complaint must contain sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Bell
“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.”
S. Ct. at 1949.
Iqbal, 129
“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”
Id. (citing Twombly, 550 U.S. at 554).
Whether a
complaint states a plausible claim for relief is
“context-specific,” and such a determination “requires the
reviewing court to draw on its judicial experience and common
sense.”
Id. at 1950.
When reviewing motions to dismiss brought under Rule
12(b)(6) of the Federal Rules of Civil Procedure, the court 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).
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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.”
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
United States v.
Documents with
contents that are alleged in a complaint may also be considered
in ruling on a Rule 12(b)(6) motion to dismiss, if no party
questions its authenticity.
See Branch v. Tunnell, 14 F.3d 449,
453-54 (9th Cir. 1994), overruled on other grounds by Galbraith
v. Cnty of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002).
III.
ANALYSIS.
A.
Count I.
Count I does not assert a cognizable claim against BOA.
Count I asserts a violation of TILA and alleges that Citibank has
violated 15 U.S.C. § 1641(g) by failing to provide Medeiros with
information that she claims she is entitled to receive from
Citibank based on the alleged assignment of her mortgage to
Citibank.
Compl. ¶¶ 15-16.
Nowhere in Count I does Medeiros mention BOA, much less
allege that BOA engaged in any conduct that violates TILA.
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Moreover, Medeiros’s opposition states that she has “made no
attempt to bring any TILA claims against [BOA].”
Pl.’s Memo. in
Opp. to Def.s’ Mot. to Dismiss Pl.’s Compl. Filed Oct. 13, 2011
at 6, Jan. 17, 2012, ECF No. 13.
Count I is therefore dismissed
as to BOA.
B.
Count II.
Count II also fails to state a cognizable claim.
unclear what claim Count II is attempting to assert.
It is
Medeiros
alleges that BOA purchased five hazard insurance policies for her
property and charged her three times more than what the insurance
should have cost.
Compl. ¶¶ 22-29.
In her opposition, she
argues that BOA, as the servicer of her loan, should be held
liable for acquiring “exorbitant insurance,” and that the
purchase of exorbitant insurance is a separate cause of action.
While Medeiros complains about cost, she does not
indicate what law the purchase of the hazard insurance violated.
Medeiros must indicate the legal basis of her claim.
She may,
for example, point to a statute that BOA’s purchase of the
insurance violated, or a common law ground for relief (such as
breach of contract).
BOA construes Count II as asserting a claim for
unconscionability.
It then argues that the court should dismiss
the unconscionability claim on a number of grounds, one of which
is that unconscionability is not an independent cause of action.
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This court has previously held that “unconscionability” is not a
proper claim for affirmative relief, but is generally a defense
to the enforcement of a contract.
See, e.g., Pugal v. ASC
(America’s Servicing Company), Civ. No. 11-0054 SOM/KSC, 2011 WL
4435089, at *10 (D. Haw. Sept. 21, 2011) (citing Gaitan v. Mortg.
Elec. Registration Sys., 2009 WL 3244729, at *13 (C.D. Cal. Oct.
5, 2009) (“Unconscionability may be raised as a defense in a
contract claim, or as a legal argument in support of some other
claim, but it does not constitute a claim on its own.”), and
Barnard v. Home Depot U.S.A., Inc., 2006 WL 3063430, at *3 n.3
(W.D. Tex. Oct. 27, 2006) (citing numerous cases for the
proposition that neither the common law nor the Uniform
Commercial Code allows affirmative relief for
unconscionability)).
“To the extent unconscionability can be addressed
affirmatively as part of a different or independent cause of
action, such a claim ‘is asserted to prevent the enforcement of a
contract whose terms are unconscionable.’”
Id. (quoting Skaggs
v. HSBC Bank USA, N.A., Civil No. 10-00247 JMS/KSC, 2010 WL
5390127, at *3 (D. Haw. Dec. 22, 2010) (emphasis in original)).
In that event, some indication of the allegedly unconscionable
term is required.
Thus, the Skaggs court dismissed an
unconscionability claim because it complained about conduct such
as “obtaining mortgages under false pretenses,” “charging
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Plaintiff inflated and unnecessary charges,” and “failing to give
Plaintiff required documents in a timely manner,” without
alleging the breach of any specific contractual term.
2010 WL 5390127, at *3.
Skaggs,
To the extent Medeiros attempts to
assert unconscionability, Count II similarly fails to identify or
challenge any particular contract term as unconscionable.
BOA also argues that, even if unconscionability is a
cognizable claim, Count II still fails because BOA was not a
party to the mortgage, Count II does not provide sufficient
factual allegations, and the terms of the mortgage permitted BOA
to obtain the insurance in issue.
Because BOA’s alternative
arguments pertain to a claim that, as pled, is not cognizable,
the court does not address them here.
IV.
CONCLUSION.
The court dismisses Medeiros’s claims against BOA
without prejudice.
At the hearing on this motion, BOA argued
that the dismissal should be with prejudice because the terms of
the mortgage preclude Medeiros from recovering on a claim against
BOA regarding BOA’s purchase of hazard insurance.
The court
disagrees that dismissal with prejudice is appropriate.
Although
Medeiros does not properly assert a claim against BOA here, the
court cannot say that Medeiros has no possible claim against BOA.
Medeiros is given leave to file an Amended Complaint no
later than March 15, 2012.
Medeiros is reminded that any Amended
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Complaint must clearly state how each named Defendant injured
her.
In other words, the Amended Complaint should explain, in
clear and concise allegations, what each Defendant did and how
those specific facts create a plausible claim for relief.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 15, 2012
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Medeiros v. Citibank, N.A.; Civil No. 11-00615 SOM/KSC; ORDER GRANTING DEFENDANT BANK
OF AMERICA, N.A.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
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