Breinholt et al v. Aegis Wholesale Corporation et al
Filing
52
MEMORANDUM ORDER granting 41 Motion to Dismiss Tait and Robinson; All claims against these dfts are dismissed in their entirety. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
RICHARD W. BREINHOLT, and SUSAN L.
BREINHOLT,
Plaintiffs,
vs.
AEGIS WHOLESALE CORPORATION, a
Corporation, ONEWEST BANK, formerly
INDYMAC FEDERAL BANK, FSB, a Bank,
TRI-COUNTY PROCESS ERVING, LLC, a
Limited Liability Corporation, a Corporation,
PIONEER LENDER TRUSTEE SERVICES,
LLC, a Limited Liability Corporation,
MORTGAGE ELECTRONIC REGISTRATION
SERVICES (MERS); TITLE ONE
CORPORATION, JENNIFER TAIT,
ROBINSON TAIT, P.S. (Law Firm) JOHN and
JANE DOES IV, CORPORATIONS VI-X, and
ABC PARTNERSHIPS XI-XV,
Defendants.
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CASE NO.: 10-CV-466-EJL
MEMORANDUM ORDER
Pending before the Court in the above-entitled matter is Defendants Jennifer Tait
(“Tait”) and Robinson Tait, P. S.’s (“Robinson Tait”) motion to dismiss pursuant to Fed.
R. Civ. P. 12(b0(6). Dkt. No. 41. Having fully reviewed the record, the Court finds that
the facts and legal arguments are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding further delay, and because the Court conclusively
finds that the decisional process would not be significantly aided by oral argument, this
matter shall be decided on the record before this Court without oral argument.
Background
Plaintiffs Richard Breinholt and Susan Breinholt (collectively referred to as “the
Breinholts”) filed their complaint on September 10, 2010 against the following
defendants: Aegis Wholesale Corporation, OneWest Bank FSB, Tri-County Process
Serving, LLC, Regional Trustee Services Corporation, Pioneer Lender Trustee Services,
LLC, Mortgage Electronic Registration Systems (“MERS”),Title One Corporation,
Jennifer Tait, Robinson Tait, P.S. and John Does. To date, not all the Defendants have
appeared.
The Breinholts filed this action as pro se litigants. The Complaint alleges subject
matter jurisdiction over the Truth in Lending Act (“TILA”), Real Estate Settlement
Procedures Act (“RESPA”), 12 U.S.C. § 38A and federal foreclosure law. Plaintiff
demands Defendant (but does not identify which defendant) to surrender the instrument
related to the foreclosure action. It appears the Plaintiffs want the Defendants to produce
the original promissory note, mortgage and other loan documents related to the real
property located at 1976 E. Star Lane, Meridian, Idaho. Plaintiffs appear to object to
Defendants proceeding with non-judicial foreclosure without proving they are the true
creditor and real party in interest. Plaintiffs allege Defendants (not certain which
defendants) have committed fraud in their dealings with Plaintiff. Plaintiff seeks a
temporary restraining order to stop foreclosure proceedings and request clear title to their
home and $25,000 in legal fees, and over $10,000,000 in Truth in Lending violations.
The Court has previously dismissed Defendants Tri County Process Serving, LLC,
OneWest Bank FSB, Regional Trustee Services Corporation, Pioneer Lender Trustee
MEMORANDUM ORDER - 2
Services, LLC, Aegis Wholesale Corporation, and Title One Corporation. Dkt. No. 36.
Now Defendants Tait and Robinson Tait have filed a motion to dismiss claiming
Plaintiffs have failed to state a claim against them as these defendants were only involved
to the extent they provided legal representation to OneWest Bank and Regional Trustee
Services Corporation in the related state court action. Tait and Robinson Tait argue
Plaintiffs have failed to allege facts indicating what actions or omissions they committed
(other than representing their clients who were dismissed in state court) that rise to the
level of a legal claim. Alternatively, Tait and Robinson Tait argue there can be no claim
against them as res judicata prevents claims against them since their clients (who
Plaintiffs allege improperly foreclosed on their house) were dismissed from a related state
court action. Plaintiff Mr. Breinholt acknowledges he named Tait and Robinson Tait due
to their involvement with other named defendants in assisting the interference of
plaintiffs receiving access to the original loan documents.
Standard of Review for Motions to Dismiss
A motion to dismiss should not be granted “unless it appears beyond doubt that
Plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”
Clegg v. Cult Awareness Network, 18 F. 3d 752, 754 (9th Cir. 1994). All allegations of
material fact in the complaint are taken as true and construed in the light most favorable
to the non-moving party. See Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th
Cir. 1992). The Ninth Circuit has held that “in dismissals for failure to state a claim, a
district court should grant leave to amend even if no request to amend the pleading was
made, unless it determines that the pleading could not possibly be cured by the allegation
MEMORANDUM ORDER - 3
of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service,
Inc., 911 F.2d 242, 247 (9th Cir. 1990). While amendments are liberally permitted under
Rule 15(a), the district court may deny leave to amend when there has been an undue
delay in bringing the motion, and the opposing party would be unfairly prejudiced by the
amendments. See United States v. Pend Oreille Public Utility Dist. No. 1, 28 F.3d 1544,
1552-53 (9th Cir. 1994).
Generally, the Court may not consider any material beyond the pleadings in ruling
on a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Branch v. Tunnell, 14 F.3d
449, 453 (9th Cir. 1994). If materials outside the pleadings are considered, the motion is
converted to a motion for summary judgment governed by Fed. R. Civ. P. 56. See
Jacobsen v. AEG Capital Corp., 50 F.3d 1493, 1496 (9th Cir. 1995).
But as Branch makes clear, there are times when documents other than the
pleadings can be considered without converting a motion to dismiss into a motion for
summary judgment. “[D]ocuments whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically attached to the pleading,
may be considered in ruling on a Rule 12(b)(6) motion to dismiss.” Branch, 14 F.3d at
453.
The Court’s review of the motion to dismiss is undertaken with an eye on Ninth
Circuit standards regarding pro se litigants. Tucker v. Carlson, 925 F.2d 330 (9th Cir.
1991). However, the Court reminds the Plaintiffs that pro se litigants are held to same
procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987).
MEMORANDUM ORDER - 4
The Court begins by noting only Plaintiff Richard Breinholt filed a response to the
motion to dismiss. Plaintiff Susan Breinholt did not file a response and Mr. Breinholt
may not file on her behalf as he is not a lawyer. Accordingly, the Court finds Ms.
Breinholt’s failure to respond may be deemed her consent to the motion pursuant to Dist.
Idaho Loc. Civ. R. 7.1. Moreover, a motion to dismiss can be granted for failure to
comply with local rules. Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995). The Ninth
Circuit has set forth the factors to be weighed in dismissing a case:
Before dismissing the action, the district court is required to weigh several factors:
“(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need
to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and (5) the availability of less
drastic sanctions.”
Id. at 53 citing Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
A federal court may take judicial notice of state court proceedings that are of
public record and consider such proceedings without converting a motion to dismiss into
a motion for summary judgment. United States v. 14.02 Acres of Land More or Less in
Fresno county, 547 F.3d 943, 955 (9th Cir. 2008). The court may also consider recorded
real estate documents without converting the motion to a motion for summary judgment.
United States v. Richie, 342, F.3d 903, 907-08 (9th Cir. 2003).
Analysis
In applying the Ghazali dismissal factors to the present case, the Court finds the
claims raised against the defendants moving to dismiss the complaint are not cognizable
MEMORANDUM ORDER - 5
claims. Plaintiffs have no legal claim against the lawyer or the law firm representing
OneWest Bank or Regional Trustee Service Corporation. Plaintiffs have not alleged any
specific acts of fraud or improper conduct by the lawyers or the law firm. Further, any
claims against OneWest Bank or Regional Trustee Service Corporation actions are barred
by res judicata as these clients were dismissed in the related state court action. The Court
incorporates by referenced it analysis dismissing these defendants in its Memorandum
Order, Dkt. No. 36. Therefore, Plaintiffs attempt to hold the attorney or law firm liable is
merely an attempt to circumvent the state court rulings against Plaintiffs.
The Court finds naming Tait and Robinson Tait as defendants is frivolous and
without merit. It appears the Plaintiffs are attempting to harass parties they know they do
not have a legal claim against, but who successfully represented certain clients in the
related state court. Plaintiffs have not cited any federal statute that would make the
lawyer or law firm liable to Plaintiffs for the alleged improper foreclosure or for not
providing access to loan documents. The Court finds there is no reason to allow
Plaintiffs the opportunity to amend their Complaint as it would be futile against these
defendants.
The Court finds all the factors weigh in favor of dismissing the action. The public
interest in an expeditious resolution of the litigation is important in this case so the title is
clear as to the Star Lane property and litigants who have had their day in court in state
court do not get to re-litigate the same issues in federal court. The Court needs to
manage its docket and Plaintiffs have not provided any reason for this Court not to grant
the motion to dismiss field by Tait and Robinson Tait. There is risk of prejudice to Tait
MEMORANDUM ORDER - 6
and Robinson Tait if the doctrine of res judicata is not fairly applied by the courts.
Plaintiffs have failed to state a cognizable claim against a lawyer or a law firm related to
the claims involving the Star Lane property. Finally, the Court is not aware of less
drastic sanctions that Plaintiffs are entitled to as a matter of law. Accordingly, the
motion to dismiss Tait and Robinson Tait should be granted.
Order
Being fully advised in the premises, the Court hereby orders Tait and Robinson
Tait’s motion to dismiss (Dkt. No. 41) is GRANTED and all claims against these
defendants are DISMISSED IN THEIR ENTIRETY.
DATED: August 12, 2011
Honorable Edward J. Lodge
U. S. District Judge
MEMORANDUM ORDER - 7
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