Mather v. Central Pacific Bank et al

Filing 43

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS SECOND AMENDED COMPLAINT FILED JULY 28, 2014 [DOC. 26 ] re 30 . Signed by JUDGE LESLIE E. KOBAYASHI on 10/31/2014. the Court DIRECTS the Clerk's Office to ent er judgment and close the case on November 21, 2014, unless Plaintiff files a timely motion for reconsideration of this Order (eps)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
DIANE E. MATHER, Individually )
and as Trustee of the
)
HANA2008 LIVING TRUST,
)
)
Plaintiff,
)
)
)
vs.
)
)
CENTRAL PACIFIC BANK;
MORTGAGE ELECTRONIC
)
)
REGISTRATION SYSTEMS, INC.
)
AKA “MERS”; AND DOES 1 - 50
)
INCLUSIVE,
)
)
Defendants.
_____________________________ )

CIVIL NO. 14-00139 LEK-BMK

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
SECOND AMENDED COMPLAINT FILED JULY 28, 2014 [DOC. 26]
On August 7, 2014, Defendants Central Pacific Bank
(“CPB”) and Mortgage Electronic Registration Systems, Inc., also
known as “MERS” (collectively, “Defendants”), filed their Motion
to Dismiss Second Amended Complaint Filed July 28, 2014 [Doc. 26]
(“Motion”).

[Dkt. no. 30.]

Pro se Plaintiff Diane E. Mather

(“Plaintiff”) filed her memorandum in opposition on September 15,
2014, and Defendants filed their reply on September 22, 2014.
[Dkt. nos. 40, 41.]

On September 24, 2014, this Court issued an

entering order (“EO”) finding this matter suitable for
disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).

[Dkt. no. 42.]

After

careful consideration of the Motion, supporting and opposing

memoranda, and the relevant legal authority, Defendants’ Motion
is HEREBY GRANTED for the reasons set forth below.
BACKGROUND
Plaintiff filed her original Complaint on April 10,
2014, in her individual capacity and as trustee of the Hana2008
Living Trust (“the Trust”).

Plaintiff filed the Complaint to

“dispute[] the title and ownership of the real property” located
at 98-854 Noelani Street #67, Pearl City, Hawai`i 96782 (“the
Property”).

[Complaint at ¶¶ 5, 11.]

According to the

Complaint, CPB asserts that it is the lender and owner of the
promissory note and mortgage securing the Property.

MERS, as

CPB’s nominee on the mortgage, assigned its interest in the
mortgage (“the Assignment”).

[Id. at ¶¶ 30-32.]

The original

Complaint challenged the Assignment based on various legal
theories.

[Id. at ¶¶ 54, 58.]

The Complaint alleged the

following claims: lack of standing to foreclose (“Count I”);
fraud in the concealment (“Count II”); fraud in the inducement
(“Count III”); intentional infliction of emotional distress
(“Count IV”); slander of title (“Count V”); quiet title (“Count
VI”); declaratory relief (“Count VII”); violation of the
Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. (“Count VIII”);
violation of the Real Estate Settlement Procedures Act, 12 U.S.C.
§ 2601, et seq. (“Count IX”); rescission (“Count X”); and failure
to provide an accounting (“Count XI”).

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On April 29, 2014, this Court issued its Order
Dismissing Plaintiff’s Complaint Without Prejudice (“4/29/14
Order”).

[Dkt. no. 5.]

The 4/29/14 Order: dismissed with

prejudice the portion of Count IV alleging an intentional
infliction of emotional distress (“IIED”) claim by Mather as
trustee; and dismissed without prejudice the portion of Count IV
alleging an IIED claim by Mather as an individual.

[Id. at 6-7.]

This Court also noted that, at the time of the origination of the
loan and at the time of the foreclosure action, the Trust held
title to the Property.

[Id. at 7.]

This Court concluded that

Plaintiff was attempting to bring Counts I, II, III, V, VI, VII,
VIII, IX, X, and XI on behalf of the Trust.

Because there is no

indication that Plaintiff is an attorney licensed to practice in
this district, she cannot represent the Trust in this action.
This Court therefore concluded that the Complaint did not plead a
plausible basis for Plaintiff’s standing to bring those claims,
and dismissed those claims without prejudice.

This Court also

emphasized that, if the Trust pursues the claims, it must be
represented by an attorney authorized to practice in this
district.

[Id. at 8-10.]

The 4/29/14 Order directed Plaintiff

to file an amended complaint by May 16, 2014, and cautioned
Plaintiff that, “if her amended complaint does not cure the
deficiencies identified in [the 4/29/14 Order], this Court may
dismiss some or all of Plaintiff’s claims WITH PREJUDICE.”

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[Id.

at 11.]
On May 15, 2014, Plaintiff moved for an extension of
time to file her amended complaint, and this Court granted the
motion on May 16, 2014.

[Dkt. nos. 7, 8.]

Plaintiff timely

filed her First Amended Verified Complaint (“First Amended
Complaint”) on May 30, 2014.1

[Dkt. no. 13.]

As in the original

Complaint, Plaintiff filed the First Amended Complaint in her
individual capacity and as trustee of the Trust.

It alleged the

same eleven claims alleged in the original Complaint.

[Id. at

pg. 1.]
On June 6, 2014, Plaintiff filed her Motion for Leave
to File Second Amended Verified Complaint.

[Dkt. no. 14.]

The

magistrate judge orally granted the motion at a hearing on
July 25, 2014.

[Dkt. no. 25 (Minutes).]

Plaintiff timely filed

her Second Amended Verified Complaint (“Second Amended
Complaint”) on July 28, 2014.

[Dkt. no. 26.]

Plaintiff asserts

the claims in the Second Amended Complaint in her individual
capacity only.

[Id. at pg. 1.]

The Second Amended Complaint

alleges eleven claims, which the Court will refer to as “Amended
Count I” through “Amended Count XI.”

Amended Counts I through

III, and V through XI allege the same claims as the corresponding

1

Defendants filed a motion to dismiss the First Amended
Complaint on June 16, 2014. [Dkt. no. 18.] This Court deemed
the motion moot after Plaintiff filed the Second Amended
Complaint. [EO, filed 7/31/14 (dkt. no. 27).]
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claims in the original Complaint.
IIED claim.

Plaintiff no longer alleges an

Amended Count IV asserts a violation of the Fair

Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et
seq.

[Id. at pgs. 54-83.]

The Second Amended Complaint requests

the following forms of relief: compensatory, special, general,
and punitive damages; restitution; fees and costs; and
declaratory relief.

[Id. at pgs. 83-88.]

In the instant Motion, Defendants argue that the Second
Amended Complaint is merely Plaintiff’s “attempt to evade her
creditors and/or collaterally attack legitimate state judicial
foreclosure actions which have already been adjudicated by the
Circuit Court of the First Circuit of the State of
Hawaii . . . .”

[Motion at 2.]

Defendants also argue that the

Second Amended Complaint fails to state a claim upon which relief
can be granted, and it fails to comply with the 4/29/14 Order.
[Id.]

They argue that this Court should dismiss all of

Plaintiff’s claims with prejudice.

[Mem. in Supp. of Motion at

30.]
DISCUSSION
I.

Failure to Cure Defects Identified in the 4/29/14 Order
Defendants first argue that Plaintiff’s Second Amended

Complaint fails to cure the standing defects identified in the
4/29/14 Order.

The 4/29/14 Order instructed Plaintiff that, in

order to cure the standing defects in Counts I to III and V to
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XI, she had to amend the claims so that the Trust is pursuing
them, and the Trust had to be represented by counsel.

Amended

Counts I to III and V to XI allege the same claims as the
corresponding claims in the original Complaint, and Plaintiff
still brings them in her individual capacity.

For the reasons

set forth in the 4/29/14 Order, this Court concludes that
Plaintiff lacks standing to pursue Amended Counts I to III and V
to XI and DISMISSES those claims.
The 4/29/14 Order warned Plaintiff that, if she failed
to cure the defects in the Complaint, this Court may dismiss her
claims with prejudice.

In response to the 4/29/14 Order,

Plaintiff filed the First Amended Complaint, and the magistrate
judge subsequently granted her leave to file the Second Amended
Complaint.

Thus, Plaintiff had two opportunities to cure the

standing defect in her claims, but failed to do so.

In light of

the notice that this Court provided in the 4/29/14 Order and
Plaintiff’s repeated failure to cure the defects identified in
that order, this Court finds that leave to amend is not
warranted.

See Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma

Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) (stating that, after
dismissing a complaint, a court “may decline to grant leave to
amend only if there is strong evidence of ‘undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue

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prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of amendment, etc.’” (alteration in
Sonoma Cnty.) (emphasis added) (quoting Foman v. Davis, 371 U.S.
178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962))).
The Court therefore GRANTS Defendants’ Motion as to
Amended Counts I, II, III, V, VI, VII, VIII, IX, X, and XI, which
are DISMISSED WITH PREJUDICE.
II.

Count IV
This Court next turns to the issue of whether Amended

Count IV, which was not alleged in the original Complaint, states
a plausible claim for relief.

The United States Supreme Court

has stated:
To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted
as true, to “state a claim to relief that is
plausible on its face.” [Bell Atl. Corp. v.
Twombly, 550 U.S. 544,] 570, 127 S. Ct. 1955
[(2007)]. 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., at 556, 127 S. Ct. 1955. 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. Ibid. 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., at 557, 127 S. Ct.
1955 (brackets omitted).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Amended Count IV alleges that CPB violated 15 U.S.C.
§ 1692e in the foreclosure action.2

As previously noted, the

Trust held title to the Property at the time of the foreclosure
action.

[4/29/14 Order at 7.]

Thus, for the reasons set forth

in the 4/29/14 Order, Plaintiff does not have standing to pursue
Amended Count IV, and this Court DISMISSES Amended Count IV.
Even if Plaintiff further amended the FDCPA claim so
that the Trust alleges it, the claim still would not state a
plausible claim.

This district court has rejected similar

claims:
To the extent the FDCPA claim is based on the
foreclosure proceedings, the claim fails as a
matter of law. See, e.g., Caraang v. PNC
Mortgage, 795 F. Supp. 2d 1098, 1107 (D. Hawai`i
2011) (“This district court has ruled that a
lender pursuing a nonjudicial foreclosure is not
attempting to collect a debt for purposes of the
FDCPA.”); Hanaway v. JPMorgan Chase Bank, No. SACV
10–1809 DOC(PLAx), 2011 WL 672559, at *4 (C.D.
Cal. Feb. 15, 2011) (“Since a transfer in interest
is the aim of a foreclosure, and not a collection
of debt, the foreclosure proceeding is not a debt
collection action under the FDCPA.”); Aniel v.
T.D. Serv. Co., No. C 10–03185 JSW, 2010 WL
3154087, at *1 (N.D. Cal. Aug. 9, 2010)
(“[A]llegations relating to the FDCPA claim relate
to foreclosure proceedings and courts throughout
this circuit have concluded that foreclosure does
not constitute ‘debt collection’ under the
FDCPA.”).
Kitamura v. AOAO of Lihue Townhouse, Civil No. 12–00353 LEK–BMK,

2

Section 1692e states, in pertinent part: “A debt collector
may not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt.”
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2013 WL 1398058, at *4 (D. Hawai`i Mar. 29, 2013) (alteration in
Kitamura).

This Court therefore finds that Amended Count IV

cannot be saved by any amendment.

Defendants’ Motion is GRANTED

as to Amended Count IV, which is DISMISSED WITH PREJUDICE.

See

Sonoma Cnty., 708 F.3d at 1118 (“As a general rule, dismissal
without leave to amend is improper unless it is clear, upon de
novo review, that the complaint could not be saved by any
amendment.” (brackets, citation and internal quotation marks
omitted)).
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
Dismiss Second Amended Complaint Filed July 28, 2014 [Doc. 26],
filed August 7, 2014, is HEREBY GRANTED.

The claims in

Plaintiff’s Second Amended Verified Complaint, filed July 28,
2014, are DISMISSED WITH PREJUDICE.

There being no remaining

claims in this case, the Court DIRECTS the Clerk’s Office to
enter judgment and close the case on November 21, 2014, unless
Plaintiff files a timely motion for reconsideration of this
Order.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, October 31, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

DIANE E. MATHER VS. CENTRAL PACIFIC BANK, ET AL.; CIVIL 14-00139
LEK-BMK; ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND
AMENDED COMPLAINT FILED JULY 28, 2014 [DOC. 26]

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