Lynch v. Federal National Mortgage Association et al
ORDER (1) GRANTING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND; AND (2) DENYING PLAINTIFF'S MOTION TO EXTEND BRIEFING DEADLINES re 49 , 64 , 65 - Signed by JUDGE DERRICK K. WATSON on 9/6/2017. "Lynch is once more granted limited leave to file an amended complaint, consistent with the terms of this Order. Lynch is cautioned that failure to file an amended complaint by October 6, 2017 will result in the dismissal o f this action without prejudice. The Court further cautions Lynch that no extension of time in which to file an amended complaint will be granted absent good cause shown." (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). Donna Lynch served electronically, via CM/ECF.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
CIVIL NO. 16-00213 DKW-KSC
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, et al.,
ORDER (1) GRANTING
DEFENDANTS’ MOTION TO
DISMISS FIRST AMENDED
COMPLAINT WITH LEAVE TO
AMEND; AND (2) DENYING
PLAINTIFF’S MOTION TO
EXTEND BRIEFING DEADLINES
Plaintiff Donna Lynch, proceeding pro se, brings unspecified claims against
the lender, loan servicer, and assignee of a 2007 mortgage on her real property in
Maui that was sold at a 2010 non-judicial foreclosure sale. Although her First
Amended Complaint lacks specific claims, Lynch appears to seek rescission of the
mortgage and invalidation of the foreclosure sale, due to fraud in the origination of
the loan and during the foreclosure proceeding. The First Amended Complaint,
however, suffers from several of the same deficiencies as Lynch’s original
Complaint, as described in the Court’s November 15, 2016 Order Granting
Defendants’ Motion To Dismiss With Leave To Amend. See Dkt. No. 40 (11/15/16
Order). Because Lynch’s indeterminate claims did not cure the deficiencies
previously identified by the Court, are not alleged with the particularity required by
Federal Rule of Civil Procedure 9(b), are time-barred, or otherwise fail to state a
claim for relief, Defendants’ Motion to Dismiss is granted. For a second time,
Lynch is granted leave to file an amended complaint— no later than October 6,
2017—limited by and consistent with the instructions below. The Court denies
Lynch’s requests for a further extension of time in which to file additional briefing.
Lynch brings claims against Defendants Federal National Mortgage
Association (“Fannie Mae”), Countrywide Home Loans, Inc. (“Countrywide”), and
Bank of America, N.A. (“BANA”), in an effort to set aside the non-judicial
foreclosure sale of her real property located at 66 Haku Hale Place, Lahaina, Hawaii
96761 (“Property”), which took place on June 17, 2010 under a power of sale from a
2007 Mortgage. First Amended Complaint (“FAC”) ¶¶ 29–31, Dkt. No. 46; Defs.’
Ex. A (2007 Mortgage), Dkt. No. 50-1.1 Fannie Mae gained title to the Property
The Court GRANTS Defendants’ Request For Judicial Notice. Dkt. No. 50. The Court may
consider documents whose contents are incorporated by reference in the Complaint, including the
2007 Mortgage (i.e., Defs.’ Ex. A). Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th
Cir. 2012). The Court may also consider matters that are the proper subject of judicial notice
pursuant to Federal Rule of Evidence 201, including adjudicative facts capable of accurate and
ready determination. See Fed.R.Evid. 201(b). The Court may take judicial notice of facts that
are a matter of public record from publicly available and recorded documents, including state court
filings and documents filed with the State of Hawaii Bureau of Conveyances (i.e., Defs.’ Exs. A–
E). Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001); Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Barber v. Ohana Military Communities, LLC,
2014 WL 3529766, *4 (D. Haw. July 15, 2014).
through the foreclosure sale, and thereafter initiated a Complaint for Ejectment in
the Circuit Court of the Second Circuit in the State of Hawaii to obtain possession of
the Property. Defs.’ Ex. B (Quitclaim Deed) and Ex. C (Complaint for Ejectment);
Dkt. Nos. 50-2 and 50-3.
According to Lynch, the 2010 foreclosure sale was “illegal and fraudulent,”
due in part to a “forged Assignment made in 2009 from MERS to BAC and a notice
of Foreclosure naming solely BAC Home Loans and [which] never mentioned
Fannie Mae who was the original investor from the inception of the loan.” FAC
¶¶ 29, 35. Lynch alleges that—
The Lynch loan was sold by [Countrywide] to [Fannie
Mae] who had its own securitization pools not necessarily
listed in the Securities and Exchange Commission
Fannie was the investor and real party in interest from the
loan application process [in] 2007 forward.
However, Fannie was concealed during the foreclosure
process and did not appear in the Assignment of
Mortgage, Intent to Foreclose Notices, the Non-Judicial
Foreclosure or the Foreclosure Affidavit that were all filed
and remain in the Hawaii Bureau of Conveyances.
It appears that Fannie and BAC executed a scheme that
concealed the real party in interest owner/investor from
FAC ¶¶ 47–49, 51.
The FAC further alleges that the 2007 Mortgage was improperly procured by
employees of Countrywide and that she is a victim of a nationwide mortgage fraud
conspiracy known as the “Hustle.” See FAC ¶¶ 43–179. According to Lynch,
Countrywide employees contacted her in 2007 to inform her that she needed to
refinance her 2005 mortgage, also with Countrywide, because “an internal
[Countrywide] audit found that the 2005 loan was ‘invalid and/or illegal.’” FAC
¶ 68. Lynch alleges that the 2007 loan application was “crafted in Ventura,
California by Steven Gillespie at Countrywide,” who was “Lynch’s sole contact via
phone throughout the refinance process,” and that he “convinced Lynch that her
2005 loan was no longer valid and without a refinance she would no longer own her
home or have homeowner’s insurance.” FAC ¶¶ 76–78. According to Lynch,
“[i]n addition to escalating the appraisal market value again this time to $850,000,
the first mortgage amount terms and interest rates, [Countrywide] added a $77,000
2nd mortgage in an 80/20 deal that Lynch was not expecting.” FAC ¶ 74.
Moreover, “[o]n the day of signing, since Lynch had a medical disability and could
not drive, a representative from CHL came to her house.” FAC ¶ 82.
Lynch alleges that the following improper lending practices by Countrywide
were part of a larger scheme to defraud—
Gillespie informed Lynch that the property market value
had allegedly increased to $850,000 which became a
central part of Gillespie’s sale pitch.
Countrywide would later become well known for
requiring inflated appraisals to meet the parameters of the
Treating the inflated equity like stocks, Lynch was
encouraged to increase her mortgaged amount, roll in
some debt and take some cash out.
It was the standard [Countrywide] sales operating
No documentation needed, as the previous loan
information would suffice.
This was a high speed, fast and easy “Hustle” loan.
The Lynch first mortgage loan dated May 1, 2007 was
sold to Fannie upon origination.
It appears the 2007 2nd line of credit mortgage may not
have been fully disclosed to Fannie; specifically, loans
sold to Fannie must comply with its Single Family Selling
Guide and purchase contracts.
[Countrywide] was known for failing to follow the Fannie
Guidelines. . . .
By 2008 and the onset of the financial crisis it became
painfully obvious that these Adjustable Rate Mortgage
loans were intended to create defaults and not designed for
long term 30 year loans.
FAC ¶¶ 83–88, 91–94.
Lynch contends that the loan servicer, BAC, and Fannie Mae “committed
intrinsic fraud, such as filing materially false [nonjudicial foreclosure] documents
. . . in the Hawaii Bureau of Conveyances [and] in Court . . . wherein they
knowingly concealed the real party in interest, the actual mortgagee, owner and
investor [Fannie Mae], throughout the entire nonjudicial foreclosure process.”
FAC ¶ 173. Lynch asserts that “the documents [recorded] in the Bureau of
Conveyances [(“BOC”)] since 2007 have been fraudulent and have irreparably
harmed [her].” FAC ¶ 31.
Lynch filed her original Complaint in state court while the ejectment action
was pending.2 Defendants removed the case to this Court on May 3, 2016. The
Court dismissed Lynch’s original Complaint based on similar allegations of fraud by
unspecified agents of Countrywide and BANA and granted her leave to amend.
11/15/16 Order. The FAC, filed on February 2, 2017, eliminated several of the
specific causes of action alleged in the original Complaint, but otherwise repeats
many of the prior averments, while adding new theories based on Countrywide’s
broader scheme to defraud. Lynch seeks “an Order to set aside and vacate the June
17, 2010 non-judicial foreclosure and following judgments in this Court, not only to
On August 19, 2015, the state court granted Fannie Mae’s motion for summary judgment and writ
of possession and entered judgment in its favor. See Defs.’ Ex. D (Judgment) Lynch filed a
Notice of Appeal in the ejectment action on March 16, 2016, CAAP-16-0000196. See Defs.’ Ex.
E (Notice of Appeal); Dkt. No. 50-5.
prevent further irreparable harm to her, but as a matter of law to correct any possible
fraud, misrepresentation and circumvention used to obtain the judgments and
orders.” FAC ¶ 271.
Defendants move to dismiss the FAC with prejudice for failure to state a
claim upon which relief can be granted. Dkt. No. 49. Following several
extensions of time from the Court, Lynch filed her opposition to Defendants’ Motion
on July 25, 2017 (Dkt. Nos. 60 and 61), and Defendants timely filed a reply by the
August 14, 2017 deadline (Dkt. No. 63). After the close of briefing, on August 21
and 22, 2017, Lynch filed additional requests to extend the briefing deadlines to
allow her to supplement her opposition and for leave to file an amended complaint.
See Dkt. Nos. 64 and 65. The Court addresses each of the motions below.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for
failure to state a claim upon which relief can be granted. Pursuant to Ashcroft v.
Iqbal, “[t]o 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.’” 555
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570
(2007)). “[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id. Accordingly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
Rather, “[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). Factual
allegations that only permit the court to infer “the mere possibility of misconduct”
do not constitute a short and plain statement of the claim showing that the pleader is
entitled to relief as required by Rule 8(a)(2). Id. at 679.
Because Lynch is proceeding pro se, the Court liberally construes her filings.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132,
1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to
liberally construe the ‘inartful pleading’ of pro se litigants.”) (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes that
“[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se
litigant is entitled to notice of the complaint’s deficiencies and an opportunity to
amend prior to dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248
(9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).
A court may, however, deny leave to amend where further amendment would be
futile. See, e.g., Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir.
2008) (reiterating that a district court may deny leave to amend for, among other
reasons “repeated failure to cure deficiencies by amendments previously allowed . . .
[and] futility of amendment”).
Defendants’ Motion To Dismiss Is Granted
Even liberally construed, the allegations in the First Amended Complaint are
deficient for several reasons. First, the allegations of fraudulent conduct once again
fall short of the particularity required by Federal Rule of Civil Procedure 9(b).
Second, the Complaint fails to provide sufficient factual content to permit the Court
to draw the reasonable inference that any Defendant is liable for the misconduct
alleged. Moreover, many of the claims relating to the 2007 loan origination are
time-barred. Defendants’ Motion is therefore granted, but with limited leave to
amend consistent with the instructions below.
As a preliminary matter, the FAC does not comply with Rule 8, which
mandates that a complaint include a “short and plain statement of the claim,” Fed. R.
Civ. P. 8(a)(2), and that “each allegation must be simple, concise, and direct.” Fed.
R. Civ. P. 8(d)(1).3 Because specific claims are not identified in a coherent manner,
The FAC consists of 330 numbered paragraphs, several of which appear to be duplicative, and
runs fifty-two pages long—exclusive of the 183 pages of exhibits—but does not include
enumerated counts or causes of action, unlike the original Complaint, which included the
following causes of action: (1) quiet title and wrongful foreclosure (Count I); (2) fraud and
rescission (Count II); (3) violation of the Real Estate Settlement Procedures Act, 12 U.S.C.
§ 2605(e) (“RESPA”), and 12 C.F.R. § 226.36(c)(1)(iii) (“Regulation Z”) (Count III);
the Court is left to guess as to the causes of action that Lynch intended to assert in the
FAC. The sole evident remedy sought is an order “set[ting] aside and vacat[ing]
the June 17, 2010 non-judicial foreclosure and following judgments in this Court.”
FAC ¶ 271. To the extent the Court is able to discern specific claims or causes of
action, they are organized below in order to provide guidance on the filing of an
Claims Sounding In Fraud
The Court first addresses the allegations of fraud throughout the FAC.
Lynch primarily alleges that the 2007 Mortgage was fraudulently procured by
Countrywide and that its recordation on May 15, 2007 was likewise fraudulent. See
FAC ¶¶ 31, 173–84, 226, 290.
Certain Fraud Claims Are Time-Barred
Lynch’s claims sounding in fraud are subject to a limitations period of six
years under HRS § 657-1(4). Mroz v. Hoaloha Na Eha, Inc., 360 F. Supp. 2d 1122,
1135 (D. Haw. 2005) (citing Eastman v. McGowan, 86 Hawai‘i 21, 946 P.2d 1317,
(4) violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1961 (“ECOA”), and 12 C.F.R.
§ 202.9(c)(2) (“Regulation B”) (Count IV); (5) unfair and deceptive acts and practices (“UDAP”)
under Haw. Rev. Stat. (“HRS”) Chapter 480 (Count V); (6) breach of the implied covenant of good
faith and fair dealing (Count VI); (7) breach of agreement to negotiate loan modification contract
in good faith (Count VII); (8) negligent and/or intentional misrepresentation (Count VIII); and
(9) nullification and avoidance of note and mortgage due to mental incapacity (Count IX). The
FAC no longer asserts these claims for relief, nor does it specifically identify any claims for
violation of federal and/or state law.
1323 (1997)). As to when the statute of limitations period for a fraud-based claim
begins to run:
Under Hawai‘i law, constructive notice “arise[s] as a legal
inference, where circumstances are such that a reasonably
prudent person should make inquiries, [and, therefore,] the law
charges a person with notice of facts which inquiry would have
disclosed.” SGM Partnership v. Nelson, 5 Haw. App. 526, 529,
705 P.2d 49, 52 (1985) (citation omitted; brackets in original).
Although Hawai‘i courts have not addressed whether the
recording of a deed serves as constructive notice for purposes of
a fraud claim, courts in the state have recognized that the
recording of a document gives notice to the general public of the
conveyance. See Markham v. Markham, 80 Hawai‘i, 274, 281,
909 P.2d 602, 609 (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”). . . . [A] publicly record[ed] document
. . . provides constructive notice where the document itself
constitutes evidence of the fraud.
Fields v. Nationstar Mortg. LLC, 2015 WL 5162469, at *4 (D. Haw. Aug. 31, 2015)
Defendants move to dismiss as time-barred any fraud-based claims relating to
the origin of the 2007 Mortgage. Although the FAC does not allege the dates of
Lynch’s encounters with Defendants’ agents, including Mr. Gillespie at
Countrywide, the loan documents were executed by Lynch on May 3, 2007 and the
Mortgage was recorded May 15, 2007 at the BOC as Document Number
2007-086966. Defs.’ Ex. A at 1, 15. The 2007 Mortgage itself contains the loan
terms that Lynch claims were misrepresented and fraudulently recorded. Thus,
Lynch is charged with constructive knowledge of the contents of the Mortgage by
May 15, 2007. In fact, Lynch had actual notice of the contents of the Mortgage
when she signed the document before a notary on May 3, 2007. See Defs.’ Ex. A at
15. Lynch filed her original Complaint in this matter in state court on April 4, 2016.
In other words, whether the statute of limitations began to run on May 3, 2007 or
May 15, 2007, Lynch failed to file her Complaint within the six-year limitations
A claim may be dismissed under Rule 12 as “barred by the applicable statute
of limitations only when ‘the running of the statute is apparent on the face of the
complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d
954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992,
997 (9th Cir. 2006)). Such motion should be granted “only if the assertions of the
complaint, read with the required liberality, would not permit the plaintiff to prove
that the statute was tolled.” Morales v. City of Los Angeles, 214 F.3d 1151, 1153
(9th Cir. 2000) (citation omitted); see also Trost v. Embernate, 2011 WL 6101543,
at *2 (D. Haw. Dec. 7, 2011). Although Lynch alleges that she suffered a stroke in
2005 or 2006, she does not allege that she was under duress, incapable of decision
making, or that she was unable to understand her legal rights or manage her affairs
when she refinanced the loan in May of 2007. See FAC ¶ 301 (“I had a slight stroke
in 2005/06, several extensive surgeries to remove tumor and reconstruction of sinus,
jaw joint, bone grafts and temporal flap, much swelling in head, confusion,
disorientation.”); id. ¶ 82 (“On the day of signing, since Lynch had a medical
disability and could not drive, a representative from [Countrywide] came to her
house.”). Lynch does not allege that at the time she refinanced the loan in 2007 or
when she executed the Mortgage documents recorded with the BOC, that she was
unable to understand the nature or effect of her acts. That is, even liberally
construed, there are no allegations in the FAC to establish grounds for equitable or
statutory tolling with respect to the 2007 Mortgage refinancing.4 The fraud claims
dating to the 2007 loan origination and recordation are therefore time-barred.
The FAC Fails To State A Claim For Fraud And
To Allege Fraud With Particularity
Federal Rule of Civil Procedure 9(b) requires that, when fraud or mistake is
alleged, “a party must state with particularity the circumstances constituting fraud or
mistake.” Fed.R.Civ.P. 9(b). An allegation of fraud is sufficient if it “identifies
the circumstances constituting fraud so that the defendant can prepare an adequate
answer from the allegations.” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir.
1993) (internal citations and quotations omitted). “Averments of fraud must be
accompanied by the who, what, when, where, and how of the misconduct charged.”
Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Vess v.
Although Lynch raised specific issues regarding her mental capacity to contract in her original
Complaint, those allegations are absent from the FAC.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)). A plaintiff must also
explain why the alleged conduct or statements are fraudulent. In re GlenFed, Inc.
Sec. Litig., 42 F.3d 1541, 1548 n.7 (9th Cir. 1994) (en banc), superseded by statute
on other grounds by 15 U.S.C. § 78u-4.
Fraud claims must additionally be pled consistent with state law. In
Fraud and fraudulent misrepresentation share the same elements.
Compare Fisher v. Grove Farm Co., 123 Haw. 82, 103, 230 P.3d
382, 403 (Haw. Ct. App. 2009) (stating the elements of a fraud
claim) with Ass’n of Apartment Owners, 115 Haw. at 263, 167
P.3d at 256 (stating the elements of a fraudulent
misrepresentation claim). Like fraudulent misrepresentation,
the elements of fraud are “1) false representations made by the
defendant, 2) with knowledge of their falsity (or without
knowledge of their truth or falsity), 3) in contemplation of
plaintiff’s reliance upon them, and 4) plaintiff’s detrimental
reliance.” Fisher, 123 Haw. at 103, 230 P.3d at 403.
Prim Liab. Co. v. Pace-O-Matic, Inc., 2012 WL 263116, at *8 (D. Haw. Jan. 30,
Lynch does not properly allege the circumstances that constitute fraudulent
conduct by Countrywide with respect to the 2007 Mortgage. The FAC does not
sufficiently identify such facts as the times, dates, places, or other details of the
alleged fraudulent activity. Neubronner, 6 F.3d at 672. Nor does the FAC explain
how the alleged increase in the appraised value of her home and subsequent cash-out
refinancing amounted to fraud by Countrywide. See FAC ¶¶ 186–202. Lynch
224. No signed 1003 loan application has ever been
produced, the Lynch CLUES data differed significantly
from reality and while the neighborhood highest
comparable was $819,520 for a larger home and lot, the
market value assigned to Lynch was $850,000 in the 2007
closing paperwork – in order to cover the $693,000 LTV
of 1st and 2nd mortgages.
225. Thus, the alleged market value drove the appraised value
of the Lynch property up over 80% in four short years,
nearly doubling the original purchase price.
FAC ¶¶ 284–85. Lynch fails to address how any of this alleged conduct is
fraudulent and fails to explain the meaning or import of the “CLUES data [that]
differed significantly from reality.” See In re GlenFed, Inc. Sec. Litig., 42 F.3d at
1548 n.7. These allegations fall short of the particularity required by Rule 9(b).
Nor does Lynch satisfy the Rule 9(b) pleading requirements with respect to
the 2010 nonjudicial foreclosure proceeding. She alleges generally that Defendants
concealed the identity of Fannie Mae and filed “false” documents with the BOC and
state courts, as follows—
An unsigned loan application is attached to the FAC, which indicates that it was prepared by
Steven Gillespie for Countrywide, dated March 16, 2007, along with credit reports and required
disclosures. See Dkt. No. 46-1; see also FAC ¶ 300 (“On the loan app/docs it shows Steven
Gillespie this application was taken by, marked phone-03/15/2007 and his phone number of
173. In the present case with Lynch, BAC and Fannie
committed intrinsic fraud, such as filing materially false
NJF documents, affidavit, assignment of mortgage and
Mortgagee’s Quitclaim Deed Pursuant to Power of Sale in
the Hawaii Bureau of Conveyances, their motions,
declarations, exhibits and affidavits in Court including,
but not limited to its Plaintiff’s Motion for Summary
Judgment and Writ of Possession wherein they knowingly
concealed the real party in interest, the actual mortgagee,
owner and investor Federal National Mortgage
Association aka Fannie Mae, throughout the entire
non-judicial foreclosure process.
174. Compounding the intrinsic fraud, BAC deceptively
represented it sold the Lynch property after foreclosure
auction to Fannie, who already owned and/or controlled
the Lynch Note and security interest or held it in a trust for
279. Fannie didn’t join the action until after it fictitiously
bought the property after the auction. Fannie was
concealed and this extrinsic fraud, deception and blatant
misrepresentation damaged Lynch because there were
various federally sponsored programs available to Lynch
in 2008 – 2012 and even now, that could have helped her
save her home.
280. Fannie’s unknown use of securitization vehicles would
warrant a delay in the ability to initially appear as Plaintiff
if Fannie would first have to buy-back the loan out of a
securitized trust. It would also expose the federally
sponsored [government sponsored enterprise (“GSE”)] to
excess debt issues that were already clouding Fannie and
Freddie’s not so rosy picture, not to mention the exposure
of direct loan sales to Fannie would increase foreclosure
lawsuits and legal costs plaguing the near defunct GSE.
281. It is also plausible that while Fannie may have been a
Trustee, the ownership of the collateral actually belonged
to investors of the securitized trust. The conspiracy of a
nonjudicial foreclosure and rigged sale by the servicer to
Fannie would eliminate the need to produce the Lynch
Note or have the rightful ownership questioned.
FAC ¶¶ 173–74, 279–281. These legal conclusions devoid of factual enhancement
fall far short of the particularity required by Rule 9(b) for averments of fraud, and,
moreover, fail to state a plausible claim for relief.
Fraud claims, “in addition to pleading with particularity, also must plead
plausible allegations. That is, the pleadings must state ‘enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of [the misconduct
alleged].’” Cafasso ex rel. United States v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
1047, 1055 (9th Cir. 2011) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
566 (2007)). Lynch summarizes her theory that the 2010 foreclosure sale was
fraudulent in the following manner—
(1) Fannie’s actual ownership was intentionally concealed;
(2) the documents used to fast track the Lynch nonjudicial
foreclosure were manufactured to maintain the concealment and
created an intrinsic fraud; (3) there are no legitimate documents
to support a claim that Fannie legally assigned its rights to BAC;
(4) BAC had no [Countrywide] liabilities to have created actual
concrete injury. Bank of America acquired Countrywide, but it
did not assume its liabilities. Instead, the assets and liabilities of
Countrywide were held separately in the formerly public
company Countrywide Financial Corporation.
FAC ¶ 289.6 Even assuming the truth of these allegations, Lynch fails to state a
claim for fraud. For instance, she does not explain how Fannie’s supposed
concealment harmed her, nor does she identify harm caused by an assignment that
she claims did not occur. Further, Lynch does not identify what documents were
“manufactured” or how. Because the FAC fails to allege the elements of fraud with
respect to any Defendant relative to the 2010 non-judicial foreclosure, these claims
are DISMISSED, with leave to amend.
To the extent Lynch’s claims are premised on a promised loan modification
from sometime in 2009 throughout the pendency of this litigation, the FAC fails to
offer sufficient details as to the time, place, or content of the allegedly fraudulent
statements. Further, the fraud claims with regard to a potential loan modification
appear to be based on future events or inferences of mere broken promises.7 See,
To the extent these allegations challenge the assignment of the 2007 Mortgage underlying the
2010 nonjudicial foreclosure, the FAC fails to state a claim. See Lizza v. Deutsche Bank Nat. Tr.
Co., 1 F. Supp. 3d 1106, 1119–20 (D. Haw. 2014) (The court rejected Plaintiffs’ challenge to
Defendant’s filings in the non-judicial foreclosure that “reference the assignments recorded in the
Hawaii Bureau of Conveyances, and omit any information about the actual conveyance through
securitization, [where] Plaintiffs claim that Defendant took such actions to conceal ‘any defects or
unresolved complexities that might exist in the chain of title,’ in order to expedite the foreclosures
of Plaintiffs’ Properties.” The district court held that “Defendant was not required to establish its
chain of custody in its filings related to the non-judicial foreclosure, and Defendant’s omission of
information regarding the securitization of Plaintiffs’ mortgages does not violate Hawaii’s Non–
Judicial Foreclosure Statute, in effect at the time of the foreclosures.”) (citing Haw. Rev. Stat.
§ 667–5 (repealed by Session Laws 2012, ch. 182, eff. June 28, 2012)).
Under Hawai‘i law, the false representation forming the basis of a fraud claim “must relate to a
past or existing material fact and not the occurrence of a future event.” Joy A. McElroy, M.D.,
Inc. v. Maryl Group, Inc., 107 Hawai‘i 423, 433, 114 P.3d 929, 939 (Ct. App. 2005) (citations and
block quote format omitted). Moreover, “[f]raud cannot be predicated on statements which are
e.g., FAC ¶ 310 (“BANA made numerous promises over the phone that they were
modifying my loan, that because of their merger the packet was just behind, that
because [I] had faxed documents, and gave info verbally over the phone, that just
waiting for the paperwork WAS NOT A PROBLEM as they had started my file.”).
Lynch’s allegation that Defendants somehow promised her that she would qualify
for loan modification, or even that BANA promised her that it would consider her
application if she defaulted, cannot support a plausible fraud claim unless Lynch can
also allege that, when Defendants made those promises, they never intended to
fulfill them. See Doran v. Wells Fargo Bank, 2011 WL 2160643, at *12 (D. Haw.
May 31, 2011). Because the Court finds that Lynch may be able to cure the
deficiencies set forth above, limited leave to amend this aspect of her fraud claim is
In sum, the FAC both fails to state a plausible claim for fraud and also to
satisfy the particularity requirements of Rule 9(b). Defendants’ Motion is
GRANTED with respect to claims sounding in fraud. Because amendment may be
possible, however, Lynch is granted one final attempt to cure the deficiencies in her
promissory in their nature, or constitute expressions of intention, and an actionable representation
cannot consist of mere broken promises, unfulfilled predictions or expectations, or erroneous
conjectures as to future events[.]” Id. (citations and block quote format omitted). The exception
to this general rule is that “[a] promise relating to future action or conduct will be actionable…if
the promise was made without the present intent to fulfill the promise.” Id. (citations and block
quote format omitted). See also Doran v. Wells Fargo Bank, 2011 WL 2160643, at *12 (D. Haw.
May 31, 2011) (citing Maryl Group, Inc.).
fraud-based claims. She may not, however, re-allege any claims that are
The FAC Fails To State A Quiet Title Claim
The Court previously dismissed with leave to amend Lynch’s statutory quiet
title claim. See 11/15/16 Order at 6–7 (dismissing claim under HRS § 669-1(a),
which provides that a quiet title “[a]ction may be brought by any person against
another person who claims, or who may claim adversely to the plaintiff, an estate or
interest in real property, for the purpose of determining the adverse claim”).
Although the FAC does not expressly re-allege a statutory quiet title claim, Lynch
makes reference to the clouded state of the Property’s title—
290. Plaintiffs’ concealment, intrinsic and extrinsic frauds are
continuing violations. While the fictitious, deceptive and
fraudulent documents filed to effectuate the NJF and the
fabricated Mortgagee’s Quitclaim Deed Pursuant to
Power of Sale were created in 2009, the documents remain
clouding the title and injurious to Lynch on a continuing
daily basis in the public records.
291. Whether in the Hawaii Bureau of Conveyances or the
Hawaii Courts, the Plaintiffs’ allow the documents to
remain and continue to perpetuate the scheme to conceal
the real party in interest ultimately damaging Lynch.
FAC ¶¶ 290–91.
To the extent Lynch seeks to quiet title to the property, the FAC once again
fails to allege that she is able to tender the amount of indebtedness. See Nat’l
Mortg. Ass’n v. Kamakau, 2012 WL 622169, at *9 (D. Haw. Feb. 23, 2012) (“A
basic requirement of an action to quiet title is an allegation that plaintiffs are the
rightful owners of the property, i.e., that they have satisfied their obligations under
the [note and mortgage].”) (internal quotation marks and citation omitted); Benoist
v. U.S. Bank Nat’l Ass’n, 2012 WL 3202180, at *10 (D. Haw. Aug. 3, 2012)
(“[T]ender is required, regardless of whether the claim is based on common law or
statute.”); Caraang v. PNC Mortg., 795 F. Supp. 2d 1098, 1126 (D. Haw. 2011) (“In
order for mortgagors to quiet title against the mortgagee, the mortgagors must
establish that they are the rightful owners of the property and they have paid, or are
able to pay, the amount of their indebtedness.”).
Despite the Court’s prior directions, Lynch does not allege that she has paid
the outstanding loan balance or that she is able to do so. For these reasons, Lynch
again fails to state a claim for quiet title, and any such claim must be dismissed.
Because the Court previously granted leave to amend, and Lynch failed to correct
the deficiencies in the FAC, to the extent such a claim is asserted, dismissal is
without further leave to amend.
The FAC Fails To State A RESPA Claim
The Court previously dismissed with leave to amend Lynch’s claims that
BANA violated RESPA, 12 U.S.C. § 2605, based upon a series of communications
regarding the terms of the 2007 Mortgage and her attempted loan modification. See
11/15/16 Order at 15–17. The FAC does not expressly re-allege the dismissed
RESPA claim, but refers to BANA’s purported failure to respond to a 2009
Qualified Written Request (“QWR”) sent by her attorney. See FAC ¶ 303 (“Orig in
2009 my atty at the time Mr. Gary Dubin sent a QWR/rescission of the loan in July
2009. To my knowledge to this day it was never responded to.”).
To the extent Lynch attempts to assert a claim for violation of 12 U.S.C.
§ 2605(e) based on BANA’s failure to respond to a QWR, her allegations are
deficient. Lynch asserts in only the most vague terms the existence of a
QWR—Lynch does not attach a copy of the request, does not describe the content of
any communications, including whether they concerned the servicing of her loan, as
defined by RESPA, and generally does not describe the communications in
sufficient detail to determine whether they triggered a duty to respond.8
Accordingly, she fails to state a cognizable RESPA claim. See Rey v. Countrywide
Home Loans, Inc., 2012 WL 253137, at *6 (D. Haw. Jan. 26, 2012) (citing
Lettenmaier v. Fed. Home Loan Mortg. Corp., 2011 WL 3476648, at *12 (D. Or.
Aug. 8, 2011) (dismissing RESPA claim where “plaintiffs fail to attach a copy of
RESPA provides that “[i]f any servicer of a federally related mortgage loan receives a [QWR]
from the borrower (or an agent of the borrower) for information relating to the servicing of such
loan, the servicer shall provide a written response acknowledging receipt of the correspondence
within 20 days[.]” 12 U.S.C. § 2605(e)(1)(A). After receiving the QWR, within sixty days, the
loan servicer must either correct the borrower’s account or, after conducting an investigation,
provide the borrower with a written explanation of: (1) why the servicer believes the account is
correct; or (2) why the requested information is unavailable. See 12 U.S.C. § 2605(e)(2).
their correspondence to the Complaint or to allege facts showing that the
communication concerned servicing of the loan as defined by the statute”));
Manzano v. Metlife Bank N.A., 2011 WL 2080249, at *7 (E.D. Cal. May 25, 2011)
(Plaintiff “cannot simply allege in conclusory fashion that the written
correspondence constituted QWRs.”).
Any RESPA claim further fails because the FAC does not allege any actual
damages. Under 12 U.S.C. § 2605(f)(1), Lynch has the burden to plead and
demonstrate that she has suffered damages. Because damages are a necessary
element of a RESPA claim, failure to plead damages is fatal. See, e.g., Rey, 2012
WL 253137, at *5 (citing Esoimeme v. Wells Fargo Bank, 2011 WL 3875881, at *14
(E.D. Cal. Sept. 1, 2011) (dismissing claim where the plaintiff failed to “allege any
pecuniary loss from defendant’s alleged failure to respond to the QWR”)); Shepherd
v. Am. Home Mortg. Servs., 2009 WL 4505925, at *3 (E.D. Cal. Nov. 20, 2009)
(“[A]lleging a breach of RESPA duties alone does not state a claim under RESPA.
Plaintiff must, at a minimum, also allege that the breach resulted in actual
damages.”) (quoting Hutchinson v. Del. Sav. Bank FSB, 410 F. Supp. 2d 374, 383
(D.N.J. 2006)). Indeed, although the requirement that a borrower plead damages is
interpreted liberally, “the [borrower] must at least allege what or how the [borrower]
suffered the pecuniary loss.” Ash v. OneWest Bank, FSB, 2010 WL 375744, at *6
(E.D. Cal. Jan. 26, 2010).
Lynch fails to allege a RESPA claim against any party, and Defendants’
Motion is GRANTED as to this claim. Because the Court previously granted leave
to amend, and Lynch failed to correct the deficiencies in the FAC, to the extent a
RESPA claim is asserted, dismissal is without further leave to amend.
The FAC Fails To State A Claim Under ECOA
Defendants seek dismissal of any ECOA violation alleged in the FAC. See
15 U.S.C. § 1691. In its 11/15/16 Order, the Court dismissed with leave to amend
Lynch’s claims that BANA violated ECOA and Regulation B by failing to notify her
within 60 days of “the action taken on [her] loan modification application.”
11/15/16 Order at 17–18 (quoting Complaint ¶ 39). It is unclear whether Lynch
seeks to re-allege an ECOA claim in the FAC. However, to the extent she does,9
the claim is deficient and once again fails to set forth the required elements.10
First, Lynch does not allege that she is a member of a protected class. Under
Section 1691(a)(1), it is unlawful to discriminate against any applicant on the basis
of race, color, religion, national origin, sex or marital status, or age. The FAC, like
Lynch alleges that, “under [federal] guidelines that cover the mortgage banking and loan system,
I am federally legally disabled. [BANA] said in my CPA’s office to her and I on a conference
call, as she had power of atty for me, ‘they would not modify my loan if any of my income came
from disability) that is breaking a federal law and a major part of my case.’” FAC ¶¶ 308–09.
In general, a plaintiff alleges an ECOA violation by asserting that “(1) she is a member of a
protected class; (2) she applied for credit with defendants; (3) she qualified for credit; and (4) she
was denied credit despite being qualified.” Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F.
Supp. 2d 1039, 1045 (N.D. Cal. 2009); Blair v. Bank of Am., N.A., 2012 WL 860411, at *12 (D. Or.
Mar. 13, 2012).
the original Complaint, is silent in this regard. Second, any ECOA claim related to
BANA’s non-response or denial of her modification application once more fails to
allege that Lynch was even qualified to receive a modification or to allege any facts
from which the Court could infer she was qualified to receive any modification.
Accordingly, Lynch fails to state a claim for violation of ECOA.
The Court therefore GRANTS Defendants’ Motion and dismisses any ECOA
claim alleged in the FAC. Because the Court previously granted leave to amend,
and Lynch failed to correct the deficiencies in the FAC, to the extent an ECOA claim
is asserted, dismissal is without further leave to amend.
The FAC Fails To State A UDAP Claim
Although unclear, to the extent Lynch seeks to re-allege a claim under HRS
Chapter 480, the FAC again fails. See FAC ¶ 294 (“In this case the underlying
deceit and falsified real party of interest continues throughout the entire
proceedings.”); id. at ¶ 296 (“The repeated pattern of deceptive behavior is tied
directly to the initial [nonjudicial foreclosure] process and procedure, Court actions
and continue today.”).
Pursuant to Section 480-13, a successful UDAP claim must establish three
elements: (1) a violation of HRS chapter 480; (2) which causes an injury to the
plaintiff’s business or property; and (3) proof of the amount of damages. Davis v.
Four Seasons Hotel Ltd., 122 Hawai‘i 423, 435, 228 P.3d 303, 315 (2010). 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.” The Hawaii
Supreme Court “has described a deceptive act or practice as having the capacity or
tendency to mislead or deceive.” Courbat v. Dahana Ranch, Inc., 111 Hawai‘i 254,
261, 141 P.3d 427, 434 (2006) (citation and quotation marks omitted).11 A UDAP
claim alleging fraudulent business practices must be pled with particularity pursuant
to Rule 9(b). Smallwood v. Ncsoft Corp., 730 F. Supp. 2d 1213, 1232 (D. Haw.
2010). As discussed above, Lynch fails to allege the fraudulent conduct or content
of the unfair and deceptive practice. See Neubronner, 6 F.3d at 672.
Moreover, a UDAP claim cannot be based on any alleged failure to offer a
loan modification because Lynch has not established a right to such modification.
And to the extent her UDAP claims are based on BANA’s refusal to modify the loan
or negotiate in good faith, she does not present a sufficient factual basis for the
alleged promise to modify the loan, or subsequent “bait and switch.” See Dias v.
Fed. Nat. Mortg. Ass’n, 990 F. Supp. 2d 1042, 1055 (D. Haw. 2013).
Under Hawaii law, “a deceptive act or practice is (1) a representation, omission, or practice that
(2) is likely to mislead consumers acting reasonably under circumstances where (3) the
representation, omission, or practice is material.” Courbat, 111 Hawai‘i at 262, 141 P.3d at 435
(quotation and alteration signals omitted). “A representation, omission, or practice is considered
‘material’ if it involves ‘information that is important to consumers and, hence, likely to affect
their choice of, or conduct regarding, a product.’” Id. (citing Novartis Corp. v. FTC, 223 F.3d
783, 786 (D.C. Cir. 2000)).
Consequently, any UDAP fails to satisfy the particularity requirement of Rule
9(b) and fails to state a claim under Rule 12(b)(6). Because amendment may be
possible with respect to her claims sounding in fraud as discussed above, dismissal is
with limited leave to amend.
The FAC Fails To State A Claim For Rescission
Generally “[r]escission is only a remedy, not a cause of action.” Bischoff v.
Cook, 118 Hawai‘i 154, 163, 185 P.3d 902, 911 (App. Ct. 2008). The remedy thus
“rises or falls with the other claims.” Phillips v. Bank of Am., 2011 WL 240813, at
*9 (D. Haw. Jan. 21, 2011) (citation and brackets omitted). To the extent Lynch
seeks rescission of the 2007 Mortgage, she fails to state an affirmative claim for
relief or that she is entitled to the remedy she seeks.
No Entitlement To Rescission Under Chapter 480
Rescission may be possible under HRS § 480-12. However, a plaintiff
seeking affirmatively to void a mortgage transaction under Section 480-12 must be
able to “place the parties in as close a position as they held prior to the transaction.”
See, e.g., Skaggs v. HSBC Bank USA, N.A., 2010 WL 5390127, at *11 (D. Haw. Dec.
22, 2010); see also Beazie v. Amerifund Fin., Inc., 2011 WL 2457725, at *12 (D.
Haw. June 16, 2011) (“Indeed, avoidance of a contract and restitution and/or
rescission, i.e., treating the agreements as void ab initio and placing the parties in the
positions they held prior to the transaction, go hand-in-hand to carry out this result
and prevent a windfall to one party.”); Lee v. HSBC Bank USA, 121 Hawai‘i 287,
292, 218 P.3d 775, 780 (2009) (holding that where an agreement created at a
foreclosure sale is void and unenforceable for failure to comply with HRS § 667-5,
then “[t]he high bidder at such a sale is entitled only to return of his or her down
payment plus accrued interest”).
Lynch does not allege she has the ability to tender loan proceeds back to the
lender, as necessary to obtain rescission. See, e.g., Young v. Bank of N.Y. Mellon,
848 F. Supp. 2d 1182, 1193-94 (D. Haw. 2012) (“[A] plaintiff seeking affirmatively
to void a mortgage transaction under § 480-12 must be able to ‘place the parties in as
close a position as they held prior to the transaction.’”) (quoting Skaggs, 2011 WL
3861373, at *11); Au v. Republic State Mortg. Co., 2013 WL 1339738, at *13 (D.
Haw. Mar. 29, 2013).
No Right To Set Aside Prior Orders
To the extent Lynch requests an order rescinding or setting aside a state court
order in the ejectment action or with respect to the nonjudicial foreclosure sale, she
has not established any entitlement to the relief she seeks. Aside from the
deficiencies with the individual causes of action noted above, any claims relating to
final state court judgments are likely barred by the Rooker–Feldman doctrine.
Under Rooker–Feldman, federal district courts are precluded from reviewing state
court judgments in “cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings and
inviting district court review and rejection of those judgments.” Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
In sum, the Court grants Defendants’ Motion to Dismiss and grants Lynch
limited leave to amend. Claims alleged in the FAC relating to (1) the origination of
the 2007 Mortgage loan refinancing; (2) statutory quiet title; (3) RESPA violations;
and (4) ECOA violations, are dismissed with prejudice and may not be re-alleged.
Because Lynch was previously granted leave to amend her allegations to attempt to
cure the specific deficiencies identified in the Court’s 11/15/16 Order, and having
either been unable to do so or having abandoned these claims, any further attempt to
amend these particular claims would be futile. In recognition of her pro se status,
Lynch is once more permitted limited leave to amend, with specific instructions
detailed more fully below.
Limited Leave To Amend Is Granted
The Court GRANTS limited leave to file an amended complaint, consistent
with the terms of this Order, by October 6, 2017. Lynch is granted leave to attempt
to amend the claims that have not been dismissed with prejudice and those that are
not time-barred. To be clear, Lynch’s statutory quiet title, RESPA, and ECOA
claims, as well as the time-barred claims relating to the 2007 loan origination are
DISMISSED WITH PREJUDICE. Lynch is permitted one final attempt to file an
amended complaint in order to cure the specific deficiencies identified in this Order.
If Lynch chooses to file an amended complaint, she must write short, plain
statements, which clearly allege the following: (1) the constitutional, statutory, or
common law right she believes was violated; (2) the name of the defendant who
violated that right or law; (3) exactly what that defendant did or failed to do; (4) how
the action or inaction of that defendant is connected to the violation of law; and
(5) what specific injury Plaintiff suffered because of that defendant’s conduct. See
Rizzo v. Goode, 423 U.S. 362, 371-72 (1976). Plaintiff must repeat this process for
each person or entity named as a defendant. If Plaintiff fails to affirmatively link
the conduct of each named defendant with the specific injury suffered, the allegation
against that defendant will be dismissed for failure to state a claim. Plaintiff should
include separate counts or causes of action for each claim. See E.E.O.C. v. Glob.
Horizons, Inc., 2011 WL 5325747, at *15 (D. Haw. Nov. 2, 2011) (Noting that “it
would certainly ‘promote clarity’ if Plaintiff separated its multiple causes of action
into distinct counts rather than stringing together sixty-one paragraphs without
meaningful delineation between them and direct[ing] Plaintiff to do so if it chooses
to file an amended complaint pursuant to this Order.”); cf. Bautista v. Los Angeles
Cty., 216 F.3d 837, 840–41 (9th Cir. 2000) (“Courts have required separate counts
where multiple claims are asserted, where they arise out of separate transactions or
occurrences, and where separate statements will facilitate a clear presentation.”)
An amended complaint generally supersedes a prior complaint, and must be
complete in itself without reference to the prior superseded pleading. King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled in part by Lacey v. Maricopa
Cty., 693 F.3d 896 (9th Cir. 2012) (en banc). Claims dismissed without prejudice
that are not re-alleged in an amended complaint may be deemed voluntarily
dismissed. See Lacey, 693 F.3d at 928 (stating that claims dismissed with prejudice
need not be re-alleged in an amended complaint to preserve them for appeal, but
claims that are voluntarily dismissed are considered waived if they are not re-pled).
Lynch may not re-allege any claims dismissed with prejudice.
The amended complaint must designate that it is the “Second Amended
Complaint” and may not incorporate any part of the original Complaint or First
Amended Complaint. Rather, any specific allegations must be retyped or rewritten
in their entirety. Failure to file an amended complaint by October 6, 2017 will
result in automatic dismissal of this action without prejudice.
Lynch’s Requests For Additional Time Are Denied
Following the conclusion of briefing on Defendants’ Motion, Lynch filed two
requests for additional extensions of time to oppose the Motion and to file an
amended complaint. See 8/21/17 Mot. to Extend, Dkt. No. 64; 8/22/17 Mot. to
Extend, Dkt. No. 65. On August 24, 2017, Defendants filed an Objection, asking
the Court to deny Lynch’s requests, or, in the alternative, to appoint a Guardian ad
litem on behalf of Lynch pursuant to Federal Rule of Civil Procedure 17(c). Dkt.
No. 67. The Court DENIES Lynch’s requests and DENIES as moot Defendants’
request to appoint a Guardian ad litem.
Lynch asserts that her original Opposition, filed July 25, 2017 (Dkt. Nos. 60
and 61), was “incomplete” and she therefore seeks “to respond and Oppose the
Motion to Dismiss and Request[s] to Amend [her] Complaint,” and asks for an
extension of six weeks to accomplish this filing. Dkt. No. 65 ¶ 11. Her professed
“intention is to file [her] response and request to amend with the second amended
complaint at the same time.” Id. at 7, ¶ 17. No proposed amended complaint was
included with her request. Lynch did, however, include a note from a medical
provider, Tim Kaneda, PA-C, MHS, suggesting that she is “unable to type.”12
Lynch initiated this civil action considerably over one year ago—on April 4,
2016. Despite that period of time, the pleadings have yet to close, largely because
As Defendants’ note, in his prior letter to the Court in support of her request for a briefing
extension (Dkt. No. 58), Kaneda, the Physician’s Assistant, referred to a July 13, 2017 “fall down
the stairs,” and recommended that Lynch “refrain from any over activity of her motor/mobility
skills.” Defs.’ Obj. at 8 (quoting 7/18/17 Request). Kaneda’s most recent letter, dated August
17, 2017, refers to Lynch’s prior injuries, and states that she “did not receive appropriate treatment
for her injuries from the fall,” is “unable to type,” and asserts that she “should not be writing,
signing or filing any legal documents at this time due to her medical condition.” 8/17/17 Kaneda
Letter. Kaneda “recommend[s] that Ms. Lynch be given a continuance to finish and amend her
documents as she has not been medically stable enough to complete these tasks. [He] request[s]
that the court give her at least a six week continuance.” Id.
of the extensions of time and continuances requested by Lynch. See Dkt. Nos. 13,
16, 21, 42, 52, 54, 56, and 58. In light of her pro se status and, on repeated
occasions, her professed confusion and inability to meet litigation demands, the
Court accommodated Lynch and granted her requests for extension. If, however,
she no longer intends to diligently prosecute the civil action that she initiated, Lynch
retains the ability to voluntarily dismiss it within the limits afforded by Federal Rule
of Civil Procedure 41.
Lynch’s current requests for additional time pertain to Defendants’
Motion—filed March 1, 2017—which has been awaiting adjudication for several
months. The opposition to the Motion was originally due in late April 2017 based
upon the Court’s May 19, 2017 hearing date. After repeated requests for extensions
of time (see Dkt. Nos. 52, 54, 56), each one approved by the Court (see Dkt. Nos. 53,
55, 57), Lynch eventually filed her Opposition on July 25, 2017. Defendants filed
their Reply on August 14, 2017, and having done so, Lynch now claims to need
additional time to respond. See Dkt. Nos. 64 and 65. No response, however, is
warranted at this time. See Stewart v. Bezy, 473 Fed. Appx. 752, 753 (9th Cir.
2012) (Although a pro se litigant is afforded some degree of leniency “a district
court need not extend deadlines indefinitely.”).
Lynch is not entitled to file any additional briefing with respect to
Defendants’ Motion, nor is an extension of six weeks justified in order to
accomplish such a filing. Lynch’s July 25, 2017 filings were her response to
Defendants’ Motion. To the extent she now asks for an extension of time in which
to submit a sur-reply, leave of court is denied.13 See LR7.4.14
To the extent Lynch requests a further extension of time in which to file an
amended complaint, any such motion is DENIED. Lynch failed to include the
proposed amended complaint for consideration. See LR10.3. Lynch will suffer no
prejudice, in any event, given that limited leave to amend has been afforded in
conjunction with the Court’s ruling on Defendants’ Motion.
To the extent Lynch asserts that her prior opposition briefs were “incomplete,” or that she did not
intend for them to stand as her briefs, her explanation is disingenuous. The Court’s August 4,
2017 order was clear: “Plaintiff Patricia Lynch, proceeding pro se, filed two documents:
(1) Plaintiff’s Opposition to Defendant’s Request of Judicial Notice In Support of Motion to
Dismiss Plaintiff’s First Amended Complaint (Dkt. No. 60); and (2) Plaintiff’s Exhibits A-E for
Opposition to Defendant’s Request of Judicial Notice In Support of Motion to Dismiss Plaintiff’s
First Amended Complaint (Dkt. No. 61). The Court construes Lynch’s July 25 filings as her
Opposition to Defendant’s Motion to Dismiss (Dkt. No. 49) and Request for Judicial Notice (Dkt.
No. 50). Lynch’s Fourth Motion for Extension of Time (Dkt. No. 58) is therefore DENIED as
moot. Defendant’s Reply remains due by August 14, 2017.” Dkt. No. 62. This order, entered
ten days before the deadline for Defendants’ Reply, unambiguously construed Lynch’s July 25
filings as her Opposition to Defendants’ filings. At no time before Defendants filed their Reply,
nor simultaneous to the filing of her July 25 briefing, did she raise the issue of completeness or
indicate that it was a partial filing. Only one week after Defendants’ Reply was on file did Lynch
seek an extension of time to file additional briefing, which constitutes “supplemental briefing” and
therefore requires leave of court pursuant to Local Rule 7.4. See LR7.4 (“No further or
supplemental briefing shall be submitted without leave of court.”).
Moreover, despite the professed obstacles to meeting her filing deadlines, and contrary to the
prior cognitive contentions of her Physician’s Assistant (see, e.g., Dkt. No. 56), Lynch has shown
the ability to type and file organized, complete submissions that belie the sort of problems she and
her medical provider assert. For example, neither her July 21, 2017 request—filed when she
claims her typing assistant was unavailable—nor her August 21, 2017 request for extension of
time can be fairly characterized as plagued by disorganization, “brain fog,” “memory loss,” or
cognitive deficits of the type described by her Physician’s Assistant, and, in fact, are highly
organized, accurately recount the procedural history of this case, and present her requests for
additional time with declarations and evidentiary support and in a logical manner.
For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED.
Dkt. No. 49. Lynch’s requests to extend the briefing deadlines to allow her to
supplement her opposition and amend her complaint are DENIED. Dkt. Nos. 64
Lynch is once more granted limited leave to file an amended complaint,
consistent with the terms of this Order. Lynch is cautioned that failure to file an
amended complaint by October 6, 2017 will result in the dismissal of this action
without prejudice. The Court further cautions Lynch that no extension of time in
which to file an amended complaint will be granted absent good cause shown.
IT IS SO ORDERED.
DATED: September 6, 2017 at Honolulu, Hawai‘i.
Lynch v. Fed. Nat’l Mortg. Ass’n et al.; CV 16-00213 DKW-KSC; ORDER (1) GRANTING
DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH
LEAVE TO AMEND; AND (2) DENYING PLAINTIFF’S MOTION TO EXTEND
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