Bateman v. Countrywide Home Loans et al

Filing 41

ORDER DISMISSING FIRST AMENDED COMPLAINT re 28 ; 30 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/14/12. " Bateman is given leave to file a Second Amended Complaint no later than December 7, 2012. Unless Bateman alleges facts supporting a claim that an assignment of his loan was void, he may not reassert claims based on the argument that Bank of New York does not have the right to enforce the loan documents. With respect to any other claim, including any potential claim under section 480-2, Bateman should specifically allege which Defendant he is seeking to hold liable and facts supporting the claim. For example, he should not refer to "Defendants" generally when he is arguing that Countrywide did not have an operable loan modification program." (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 on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHANCE K. S. BATEMAN,

)
)
Plaintiff,
)
)
vs.
)
)
COUNTRYWIDE HOME LOANS, aka
)
BAC Home Loan Servicing, LP; )
THE BANK OF NEW YORK MELLON, )
as Trustee for the
)
Certificateholders, CWABS,
)
Inc., Asset-Backed
)
Certificate Series 2005-3,
)
aka CWL 2005-3;
)
CWABS, Inc.;
)
MERSCORP, INC.;
)
MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEMS, INC., a )
wholly-owned subsidiary of
)
Merscorp, Inc.;
)
CHARTER FUNDING;
)
KEVIN A. DURHAM, individually )
and as assistant secretary
)
for Mortgage Electronic
)
Registration Systems, Inc.
)
and Max Default Services
)
Corp.;
)
CALEB G HARGIS, individual
)
and as notary;
)
CORPORATE DOES 1-50;
)
JOHN DOES 1-50; and
)
JANE DOES 1-50
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 12-00033 SOM/BMK
ORDER DISMISSING FIRST
AMENDED COMPLAINT

ORDER DISMISSING FIRST AMENDED COMPLAINT
I.

INTRODUCTION.
This removed action arises out of mortgage loan

transactions.

After his property was sold at public auction

through a nonjudicial foreclosure proceeding, Plaintiff Chance K.

S. Bateman filed this action in state court on November 4, 2011,
asserting various causes of action relating to his mortgage loans
and the nonjudicial foreclosure.

The Complaint was subsequently

removed.
On January 24, 2012, Defendants filed a motion to
dismiss.

See ECF No. 6.

On May 11, 2012, a telephone conference

was held in which Bateman’s Complaint was dismissed with leave to
amend.

See ECF No. 27.
On June 1, 2012, Bateman filed an Amended Complaint.

See ECF No. 28.

This document is unfocused and, in many

respects, like a puzzle.

Bateman asserts state-law claims for

wrongful foreclosure (Count I), slander of title (Count II),
unfair or deceptive acts or practices (Count III), and
intentional or negligent infliction of emotional distress
(Count IV).
clear.

But the bases for these claims are not entirely

Rather than allege that any particular defendant did

something, the counts refer to “Defendants” generally, and ask
the court and opposing parties to figure out which Defendant may
have done what based on factual allegations that have been
incorporated by reference.

In short, the court is asked to match

allegations to claims and parties as if attempting to fit jigsaw
puzzle pieces together to create a picture.
Defendants again seek dismissal of the First Amended
Complaint.

See ECF No. 30.

The court grants that motion.

2

Because the wrongful foreclosure and slander of title claims are
based on allegedly improper assignments of Bateman’s loan, and
because Bateman lacks standing to challenge those assignments,
Counts I and II are dismissed.

Because Bateman’s emotional

distress claims are also based on allegedly improper loan
transfers by Defendants, the emotional distress claims asserted
in Count IV are also dismissed.

The unfair and deceptive trade

practices claims asserted in Count III are dismissed as not
properly pled.
II.

BACKGROUND.
The following factual summary is based on the

allegations in the First Amended Complaint, ECF No. 28.

Bateman

lived in a home in Kamuela on the Big Island of Hawaii.

Id. ¶ 1.

Countrywide Home Loans, Inc., approved a $251,000 loan
to Bateman, secured by a mortgage on his home.

Id. ¶ 12.

On or

about February 23, 2005, Bateman executed the loan documents for
that loan, including a note and a mortgage.
refinancing.

Id.

The loan was a

A copy of the mortgage was filed in the State

of Hawaii Bureau of Conveyances on March 1, 2005, as Document No.
2005-040187, and is attached as Exhibit A to the First Amended
Complaint, ECF No. 28-1, PageID #612.

The mortgage identifies

Countrywide as the “Lender,” and Mortgage Electronic Registration
Systems, Inc. (“MERS”) as its “nominee.”

3

In 2010, the mortgage was purportedly assigned by MERS
in its capacity as Countrywide’s nominee to The Bank of New York
Mellon FKA The Bank of New York as Trustee for the
CertificateHolders CWABS, Inc., Asset-Backed Certificates, Series
2005-3.

A copy of the Assignment of Mortgage was recorded in the

State of Hawaii Bureau of Conveyances as Document No. 2010-077660
and is attached to the First Amended Complaint as Exhibit B, ECF
No. 28-1, PageID #630.

The Assignment of Mortgage was signed by

Kevin A. Durham on May 29, 2010, in his capacity as the assistant
secretary of MERS, and was notarized by Caleb G. Hargis on June
1, 2010.

Id.
It appears that the transfer of Bateman’s loan to Bank

of New York was done in anticipation of foreclosing on the
property, because Bank of New York, also on May 29, 2010, through
Durham, its “Authorized Signatory,” executed a Notice of
Mortgagee’s Intention to Foreclose Under Power of Sale.

Durham

appears to be the same person who executed the assignment of
mortgage by MERS on behalf of Countrywide to Bank of New York.
The notice of intent to foreclose was also notarized by Hargis on
June 1, 2010.

Hargis appears to be the same notary who notarized

the Assignment of Mortgage from MERS on behalf of Countrywide to
Bank of New York.

A copy of the notice of intent to foreclose

was filed in the State of Hawaii Bureau of Conveyances as

4

Document No. 2010-077661 and is attached as Exhibit C to the
First Amended Complaint, ECF No. 28-1, PageID #634.
On March 31, 2011, Durham executed a Mortgagee’s
Affidavit of Foreclosure Sale Under Power of Sale as “Authorized
Signatory” for Bank of New York.

See First Amended Complaint,

Exhibit D, ECF No. 28-1, PageID #639.

This affidavit was filed

in the State of Hawaii Bureau of Conveyances as Document No.
2011-056676.

Id.

It indicates that Bateman’s property was sold

to Bank of New York at public auction on March 11, 2011, for
$175,500.

Id.
On July 7, 2011, Bank of New York “quitclaimed” the

foreclosed property to itself.

The Quitclaim Deed was filed in

the State of Hawaii Bureau of Conveyances as Document No. 2011105744.

A copy of the Quitclaim Deed is attached to the First

Amended Complaint as Exhibit E, ECF No. 28-1, PageID # 666.
Bateman alleges that “there is no certain record or
unbroken chain of title to establish who [is] the legal owner and
holder” of his note and mortgage.
III.

First Amended Complaint ¶ 40.

RULE 12(b)(6) STANDARD.
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

5

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
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.

6

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.

Imbler

v. Pachtman, 424 U.S. 409 (1976).
IV.

ANALYSIS.
A.

Bateman Lacks Standing to Challenge Voidable
Agreements.

The bases of the claims asserted in the First Amended
Complaint are not easy to decipher.

Bateman makes 17 pages of

allegations and then, in paragraphs 46, 55, 64, and 67 of the
First Amended Complaint, alleges that Defendants did various
things that rendered the assignment of Bateman’s loan invalid.
According to Bateman, this meant that all Defendants wrongfully
foreclosed on his property (Count I), committed slander of title
(Count II), committed an unfair or deceptive trade practice in
violation of chapter 480 of Hawaii Revised Statutes (Count III),
and inflicted emotional distress on him (Count IV).

The essence

of Bateman’s claims is that Bank of New York lacked good title to
foreclose on Bateman’s property because there were problems with

7

the various assignments.

Bateman, however, lacks standing to

challenge the validity of those assignments.
Bateman essentially argues that, before foreclosing on
the property, Bank of New York must prove the validity of every
transfer in the chain of title.

However, this court has never

required a lender to go back and establish that every person or
entity who assigned a note and mortgage had the power to do so.
Such a requirement would prove unworkable, as it may be difficult
to locate the person who executed a document years ago or worked
for company that no longer exists.

Instead, the court looks to

whether a lender seeking to foreclose or defending a prior
foreclosure was, at the time it sought to foreclose, the holder
of the note and mortgage it seeks to foreclose.
Based on the documents attached to the First Amended
Complaint, which includes recorded assignments of the loan, Bank
of New York appears to have had standing to enforce the loan
documents through a nonjudicial foreclosure procedure.

See

Markham v. Markham, 80 Haw. 274, 281, 909 P.2d 602, 609 (Ct. App.
1996) (noting that the “central purpose of recording a conveyance
of real property is to give notice to the general public of the
conveyance and to preserve the recorded instrument as evidence”).
Hawaii’s courts long ago held that a plaintiff that shows a
“direct chain of paper title that he is the owner of land”
demonstrates “prima facie evidence of their contents” and that

8

title is vested in that plaintiff, subject to other claims such
as adverse possession.

See Apana v. Kapano, 1911 WL 1761, *3

(Haw. Feb. 20, 1911).
This court has held on numerous occasions that
borrowers like Bateman generally lack standing to challenge the
assignments of their loans.

See Deutsche Bank v. Beesley, 2012

WL 5383555, *4 (D. Haw. Oct. 20, 2012) (noting that borrowers
generally lack standing to challenge the assignments of their
loans); Benoist v. U.S. Bank Nat’l Ass’n, 2012 WL 3202180, *5 (D.
Haw. Aug. 3, 2012) (discussing numerous cases in which courts
have concluded that borrowers lack standing to challenge
assignments of their loan documents, and concluding that the
plaintiffs could not set aside the assignment of a mortgage even
when the terms of a pooling and service agreement were not
followed); Au v. Republic State Mortg. Co., 2012 WL 3113147, *4
n.6 (D. Haw. July 31, 2012) (noting that borrowers who are not
parties to or beneficiaries of a pooling and service agreement
lack standing to challenge alleged violations of such
agreements); Bank of New York Mellon v. Sakala, 2012 WL 1424655,
*5 (D. Haw. Apr. 24, 2012) (same); Abubo v. Bank of New York
Mellon, 2011 WL 6011787, *8 (D. Haw. Nov. 30, 2011) (same);
Velasco v. Security Nat’l Mortg. Co., 823 F. Supp. 2d 1061, 1067
(D. Haw. 2011) (ruling that a borrower could not dispute the
validity of an assignment of loan documents through a “slander of

9

title” claim because the borrower was not a party to or intended
beneficiary of the assignment).
The reason debtors generally lack standing to challenge
assignments of their loan documents is that they have no interest
in those assignments, and the arguments they usually make do not
go to whether the assignments are void ab initio, but instead to
whether the various assignments are voidable.

Debtors lack

standing to challenge voidable assignments; only the parties to
the assignments may seek to avoid such assignments.

See 29

Williston on Contracts § 74:50 (4th ed.), available at Westlaw
Willstn-CN § 74:50 (updated May 2012) (noting that a debtor may
not assert that an assignment is voidable because it cannot be
assumed that the assignor desires the voiding of the assignment).
“A contract that is void never attains legal effect as
a contract and cannot be enforced, whereas a contract that is
voidable is one where one or more of the parties have the power,
by the manifestation of an election to do so, to avoid the legal
relations created by the contract.”

17A Corpus Juris Secundum

§ 169, available at Westlaw CJS Contracts § 169 (updated Sept.
2012).

A contract is void when one of its essential elements is

missing or when it is made in violation of law.
consent to an agreement that violates the law.

A party cannot
See id.

Accordingly, Hawaii courts have held that an agreement arising
out of a foreclosure sale that contravenes a statute is void and

10

unenforceable.

See Lee v. HSBC Bank USA, 121 Haw. 287, 292, 218

P.3d 775, 780 (2009).

Hawaii courts have similarly held that a

contract that involves an “unfair or deceptive practice” in
violation of chapter 480 of Hawaii Revised Statutes is void and
unenforceable.

See 808 Dev. LLC v. Murakami, 111 Haw. 349, 356,

141 P.3d 996, 1003 (2006).

A judge of this court has held that a

company in bankruptcy liquidation may not validly assign its
interest in a note and mortgage to another company that would
thereafter seek to foreclose on property.

See Deutsche Bank

Nat’l Trust Company, as Trustee Morgan Stanley ABS Capital I Inc.
Trust 2007-NC-1 Mortgage Pass-Through Certs., Series 2007-NC1 v.
Williams, 2012 WL 1081174, *3 (D. Haw. Mar. 29, 2012) (Seabright,
J.).
On the other hand, only the parties to a voidable
contract can seek avoidance of that contract.

“Only the parties

to a contract may assert its nullity by virtue of a defect in
consent.”

17A Corpus Juris Secundum § 169, available at Westlaw

CJS Contracts § 169.

Accordingly, a contract entered into by a

minor or an insane person is generally voidable under Hawaii law,
and the minor, upon reaching the age of majority, or the insane
person, upon becoming sane, may choose to ratify or avoid the
contractual obligations.
(1923).

See Zen v. Koon Chan, 27 Haw. 369, 371

Similarly, contracts induced by fraud or material

misrepresentations are voidable.

11

See Exotics Haw.-Kona, Inc. v.

E.I. Du Pont De Nemours & Co., 116 Haw. 277, 288, 172 P.3d 1021,
1032 (2007).

Other courts have determined that a lack of

authority to enter into a contract makes the contract voidable,
not void.

See Emerson Elec. Co. v. Le Carbone Lorraine, S.A.,

2009 WL 313754, *1 n1 (D.N.J. Feb. 4, 2009); Perri v. United
States, 53 Fed. Cl. 381, 401 (2002).
In arguing that the terms of the pooling and servicing
agreement were not followed such that his loan did not become
part of the trust--the CertificateHolders CWABS, Inc., AssetBacked Certificates, Series 2005-3, Bateman is challenging a
voidable, not void, contract.

Not being a party to the voidable

agreement, Bateman lacks standing to argue that any transfer
purportedly occurring pursuant to the agreement is invalid.

See

Beesley 2012 WL 5383555; Benoist, 2012 WL 3202180, *5; Au, 2012
WL 3113147, *4 n.6; Sakala, 2012 WL 1424655, *5; Abubo, 2011 WL
6011787, *8; Velasco, 823 F. Supp. 2d at 1067.

Only the parties

to the pooling and service agreement may argue that a mortgage
was not made a part of it.

If those parties agree that the

mortgage is a part of the agreement even if the assignment of the
mortgage fell outside its express terms, the parties essentially
modify the agreement and ratify the inclusion of the mortgage.
Debtors such as Bateman may not assert that the parties to the
pooling and servicing agreement did not properly assign the
mortgage; the allegations suggest that the parties to the pooling

12

and servicing agreement believe that they transferred Bateman’s
loan.

Under these circumstances, Bateman, a debtor who has

failed to make payments under the terms of his loan documents,
may not undo foreclosure proceedings by arguing that the holder
of the note and mortgage lacked valid legal title to them because
there may have been a problem with one or more transfers before
the creditor obtained title.
The court notes that Bateman does challenge the various
transfers of his note and mortgage as being in violation of
chapter 480 of Hawaii Revised Statutes.

If one of the transfers

did violate that section, it would be void, as opposed to
voidable.

For example, in 808 Development, LLC v. Murakami, 111

Haw. 349, 356, 141 P.3d 996, 1003 (2006), the Hawaii Supreme
Court declared that a contractor who failed to provide homeowners
with written and verbal notice and disclosure of lien rights and
bonding options before entering into a construction contract, a
requirement of section 444-25.5 of the Hawaii Revised Statutes,
may not enforce that agreement against the homeowners because the
contract is void under sections 480-2 and 480-12 of the Hawaii
Revised Statutes.

However, as described in more detail below,

Bateman does not allege facts from which a violation of chapter
480 can be established such that a transfer would be void.

To

the extent Bateman challenges voidable agreements, those
challenges do not convert Bank of New York’s conduct into “unfair

13

or deceptive acts or practices in the conduct of any trade or
commerce” such that the voidable agreements become void under
chapter 480.

In other words, a voidable agreement--one with a

potential defect that a party to the agreement may assert–-does
not violate section 480-2 such that it automatically becomes void
under section 480-12.
Because Bateman lacks standing to challenge the various
assignments, and because Bateman’s claims are based on those
allegedly improper assignments, the wrongful foreclosure, slander
of title, and emotional distress claims asserted in Counts I, II,
and IV are dismissed.1

1

In the court’s usual prehearing inclinations, the court
asked Defendants whether the original note had been returned to
Bateman. Citing caselaw from the Intermediate Court of Appeals
for the State of Hawaii, Defendants indicated that they are not
required to return the original note to a borrower. That
caselaw, however, may be distinguishable given the nonjudicial
foreclosure proceeding used in this case. See, e.g., Indus.
Mort. Co. v. Smith, 90 Haw 502, 511, 17 P.3d 851, 861 (App. 2001)
(concluding that a court did not abuse its discretion in refusing
to order a lender to return the original note after a judicial
mortgage foreclosure action was completed because the final order
of the court would have res judicata effect and preclude the
lender and its assigns from attempting to collect again on the
note); see also Spinney v. Greenwich Capital Fin. Prods. Inc.,
2006 WL 1207400. *6 n.14 (D. Haw. May 3, 2006) (citing Smith for
same proposition). This court is not here deciding that the
original note must be returned to Bateman, as that issue has not
been briefed by the parties. However, given Bateman’s contention
that he does not want to be put in a position of being asked to
pay the note twice, and given Defendants’ indication at the
hearing that returning that note may not be problematic,
Defendants may wish to consider returning that note to Bateman or
depositing it with this court pending the outcome of this case.
Alternatively, Defendants may wish to consider filing some sort
of satisfaction or release of mortgage.
14

B.

Bateman Fails to Allege Facts Supporting His Claim
that Chapter 480 of Hawaii Revised Statutes was
Violated When Defendants Failed to Implement and
Maintain a Loan Modification Program.

Count III asserts a violation of sections 480-2 and
490-13 of Hawaii Revised Statutes.

Section 480-2(a) states:

“Unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce are unlawful.”
Section 480-13 allows “Any consumer who is injured by any unfair
or deceptive act or practice forbidden or declared unlawful by
section 480-2” to sue for damages and to enjoin the unlawful
practices.
Bateman says that Defendants committed an unfair or
deceptive trade practice when they failed to implement and
maintain a loan modification program.
Complaint ¶ 63.

See First Amended

Bateman’s allegations are insufficient to

survive a Rule 12(b)(6) motion to dismiss.

Bateman was required

to allege facts sufficient to raise a right to relief above the
speculative level, on the assumption that all the allegations in
the First Amended Complaint are true even if doubtful in fact.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Accord

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (Rule 8 “does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation”).
Because it is not clear what the bases of Bateman’s section 480-2
claim are, Bateman’s allegations are insufficient to establish a
15

viable section 480-2 claim.

See, e.g., Haw. Med. Ass’n v. Haw.

Med. Serv. Ass’n, Inc., 113 Haw. 77, 113–14, 148 P.3d 1179,
1215–16 (2006) (reiterating the following requirements for a
claim for a violation of HRS § 480–2: (1) an unfair or deceptive
trade practice, (2) injury to the plaintiff’s business or
property resulting from that practice, and (3) actual damages).
Bateman may be arguing that Bank of New York did not
receive legal title to his loan, as paragraph 63 of the First
Amended Complaint refers to “false statements and fraudulent
documents.”

However, because the count incorporates by reference

the facts set forth earlier, First Amended Complaint ¶ 60, the
court and the parties are left to figure out what the count is
referring to by matching allegations to claims.

See generally

Prim Ltd. Liability Co. v. Pace–O–Matic, Inc., Civil No. 10–00617
SOM–KSC, 2012 WL 263116, at *5–6 (D. Haw. Jan. 30, 2012)
(referring in the context of fraud claims to “shotgun” and
“puzzle” pleadings that require opposing counsel and the court to
incorporate numerous allegations into subsequent claims for
relief or to complete a puzzle by matching up numerous
allegations throughout a pleading) (citing Wagner v. First
Horizon Pharm., Corp., 464 F.3d 1273, 1279 (11th Cir. 2006)).
It is not at all clear that Bateman’s fraud-based
section 480-2 claim satisfies the pleading requirements,
assuming, of course, that the claim is grounded in fraud.

16

See

Smallwood v. NCsoft Corp., 730 F. Supp. 2d 1213, 1232-33 (D. Haw.
2010) (applying Rule 9(b)’s heightened pleading standard to
section 480-2 claim arising out of a fraud-based claim).

If, for

example, the chapter 480 claims are based on some kind of alleged
fraudulent misrepresentation, the claim must be pled with
particularity.

See Soriano v. Wells Fargo Bank, N.A., 2012 WL

1536065, *11 (D. Haw. Apr. 30, 2012).

If, on the other hand, the

chapter 480 claims are grounded in something short of fraud, the
chapter 480 claim is not subject to Rule 9(b)’s heightened
pleading standard.

See Smallwood, 730 F. Supp. 2d at 1232; Peace

Software, Inc. v. Hawaiian Elec. Co., 2009 WL 3923350, *8 (D.
Haw. 2009).

Even if the heightened pleading standard does not

apply, Bateman’s section 480-2 claim based on “false statements
and fraudulent documents” fails because it does not meet the
minimal notice pleading standard.

That is, it does not

sufficiently identify the unfair and deceptive trade practice or
allege how Bateman was damaged as a result.
To the extent Bateman is attempting to assert a section
480-2 claim based on Countrywide’s “failure to implement and
maintain a loan modification program,” the claim does not meet
the minimal notice pleading standard.

At most, the First Amended

Complaint alleges in Paragraph 14 that Countrywide did not have
an operable loan modification program.

But it is unclear how any

such failure amounts to an unfair or deceptive trade practice.

17

Finally, to the extent Bateman alleges that
“Defendants’” conduct caused his property to diminish in value
and become less marketable, id. ¶ 64, he again fails to meet the
minimal pleading standard for a section 480-2 claim, as he does
not allege what Defendants allegedly did, let alone which
specific Defendant was responsible for what.
V.

CONCLUSION.
The First Amended Complaint is dismissed.

Bateman is

given leave to file a Second Amended Complaint no later than
December 7, 2012.

Unless Bateman alleges facts supporting a

claim that an assignment of his loan was void, he may not
reassert claims based on the argument that Bank of New York does
not have the right to enforce the loan documents.

With respect

to any other claim, including any potential claim under section
480-2, Bateman should specifically allege which Defendant he is
seeking to hold liable and facts supporting the claim.

18

For

example, he should not refer to “Defendants” generally when he is
arguing that Countrywide did not have an operable loan
modification program.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 14, 2012.

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

Bateman v. Countrywide Home Loans Inc., et al.; Civ. No. 12-00033 SOM/BMK; ORDER
DISMISSING FIRST AMENDED COMPLAINT

19