Kerr et al v. Ocwen Loan Servicing LLC et al

Filing 31

MEMORANDUM DECISION AND ORDER. Defendants' Motions to Dismiss 19 and 23 are GRANTED and the Kerrs' Amended Complaint is DISMISSED WITH PREJUDICE. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TERRY KERR and DENNIS KERR,
Case No. 4:18-cv-000146-DCN
Plaintiffs,
MEMORANDUM DECISION AND
ORDER

v.
OCWEN LOAN SERVICING LLC,
PERKINS COIE LLP, AKERMAN LLP,
and DOES 1-10,
Defendants.

I. OVERVIEW
Pending before the Court are two Motions to Dismiss: one filed by Defendant
Akerman LLP (“Akerman”) (Dkt. 19), the other filed jointly by Defendants Ocwen Loan
Servicing LLC (“Ocwen”) and Perkins Coie LLP (“Perkins Coie”) (Dkt. 23). Having
reviewed the record and briefs, the Court finds that the parties have adequately presented
the facts and legal arguments. Accordingly, in the interest of avoiding further delay, and
because the Court finds that the decisional process would not be significantly aided by
oral argument, the Court will decide the motion without a hearing. Dist. Idaho Loc. Civ.
R. 7.1(d)(2)(ii). For the reasons outlined below, the Court GRANTS both Motions to
Dismiss, and DISMISSES Plaintiffs’ Amended Complaint WITH PREJUDICE.

MEMORANDUM DECISION AND ORDER - 1

II. BACKGROUND
Plaintiffs Terry Kerr and Dennis Kerr (“the Kerrs”) filed their original complaint
in this case on March 30, 2018. Dkt. 1. In their motion to dismiss the original complaint,
Ocwen and Perkins Coie provided the following background information:1
In June 2006, the Kerrs obtained a cash-out refinance loan for
$210,900. In August 2008, the Kerrs defaulted on their loan obligation.
American Home Mortgage Servicing, Inc., which later became known as
Homeward Residential, Inc. (“Homeward”), owned the loan and began nonjudicial foreclosure proceedings in October 2009. Before the foreclosure was
finalized, the Kerrs entered into a Loan Modification Agreement, effective
as of June 1, 2010. Under that agreement, the Kerrs’ first payment was due
July 1, 2010. The Kerrs failed to make the first payment and have made no
subsequent payments. Accordingly, foreclosure proceedings were initiated
once again.
In response to the foreclosure proceeding, Mr. Kerr filed a complaint
against Homeward in Idaho state court, which Homeward then removed to
the U.S. District Court for the District of Idaho. In his Complaint, Mr. Kerr
alleged that Homeward (then American Home Mortgage Servicing, Inc.)
(1)
altered the Loan Modification Agreement without the Kerrs’ consent;
(2)
criminally conspired with unidentified parties in a manner that
“amounted to civil racketeering” and violated the Service Members Civil
Relief Act; (3) acted in bad faith and violated the implied covenant of good
faith and fair dealing; (4) acted with racial animus; and (5) intentionally
inflicted emotional distress. On September 26, 2012, the Kerrs’ Complaint
was dismissed with prejudice.
During the course of that proceeding, Mr. Kerr filed a Notice of Bad
Faith and Misconduct and a Motion for Restraining Order against Perkins
Coie attorney Cynthia Yee-Wallace. The court granted defendants’ Motion
to Strike and Motion for Sanctions, concluding that “Plaintiff’s Notice and
Motion for Restraining Order are patently frivolous and are without a legal
or factual basis.”
In an opinion dated February 23, 2018, the Ninth Circuit affirmed the
district court’s order dismissing the First Action, with prejudice. Less than

1

The Court quotes the background provided in Ocwen and Perkins Coie’s previous Motion to
Dismiss because the Kerrs have provided only sparse background information about this case,
and this summary still stands as the most detailed factual background in the record.
MEMORANDUM DECISION AND ORDER - 2

two months later, the Kerrs filed the instant action in which they raise the
same allegations against Ocwen, which acquired Homeward and which is the
current servicer of the subject note, as well as Perkins Coie LLP, the
attorneys of record for Homeward in the First Action.
Dkt. 3, at 2-4.
The Court ultimately granted the Motion to Dismiss, and simultaneously granted
the Kerrs leave to amend their complaint. Dkt. 17. On July 27, 2018, the Kerrs filed their
Amended Complaint. Dkt. 18. Akerman filed a Motion to Dismiss the Amended
Complaint on August 8, 2018 (Dkt. 19) and Ocwen and Perkins Coie jointly filed a
Motion to Dismiss on August 16, 2018 (Dkt. 23).
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a claim if the
plaintiff has “fail[ed] to state a claim upon which relief can be granted.” “A Rule 12(b)(6)
dismissal may be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of
sufficient facts alleged under a cognizable legal theory.’” Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (citation omitted). Federal Rule
of Civil Procedure 8(a)(2) requires a complaint to contain “a short and plain statement of
the claim showing that the pleader is entitled to relief,” in order to “give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.” See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 554 (2007). “This is not an onerous burden.” Johnson,
534 F.3d at 1121. A complaint “does not need detailed factual allegations,” but it must set
forth “more than labels and conclusions, and a formulaic recitation of the elements.”
Twombly, 550 U.S. at 555. The complaint must also contain sufficient factual matter to
MEMORANDUM DECISION AND ORDER - 3

“state a claim to relief that is plausible on its face.” Id. at 570. In considering a Rule
12(b)(6) motion, the Court must view the “complaint in the light most favorable to” the
claimant and “accept[] all well-pleaded factual allegations as true, as well as any
reasonable inference drawn from them.” Johnson, 534 F.3d at 1122.
The Court must construe this complaint “liberally,” as the Kerrs are proceeding
pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). “[A] pro se
complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers and can only be dismissed for failure to state a claim
if it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.” Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(internal quotation marks and citation omitted). “Dismissal of a pro se complaint without
leave to amend is proper only if it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205
(9th Cir. 2007) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 1988)).
IV. ANALYSIS
While not entirely clear, the Kerrs’ Amended Complaint appears to include the
following claims: (1) violations of the Racketeer Influenced and Corrupt Organization
Act (2) breach of the implied covenant of good faith and fair dealing; (3) racial animus
(4) defamation through libel and slander (5) intentional infliction of emotional distress,
and (6) violations of the Fair Debt Collection Practices Act. Defendants move to dismiss
Plaintiffs’ Amended Complaint for failure to state a claim upon which relief can be
granted, pursuant to Fed. R. Civ. P. 12(b)(6).
MEMORANDUM DECISION AND ORDER - 4

In dismissing the Kerrs’ original complaint, the Court explained that the “factual
allegations [set forth in the complaint] are severely deficient. . . . the Kerrs are proceeding
pro se, but they have provided no concrete details as to what actions Defendants have
taken that justify this suit.” Dkt. 17, at 5-6. After reviewing the Kerrs’ Amended
Complaint, it is clear that these deficiencies remain.
Once again, the Kerrs’ factual allegations are conclusory and lack the necessary
specifics that might give Defendants notice of the factual basis of the claims asserted
against them. As the Court explained above, the complaint need not include “detailed
factual allegations,” but there must be enough factual matter to “state a claim to relief that
is plausible on its face.” Twombly, 550 U.S. at 555, 570. The Kerrs’ complaint falls
woefully short in this regard. Even construing the Amended Complaint liberally, the
Kerrs have failed to state any claim upon which the Court can grant relief and dismissal
pursuant to Federal Rule of Procedure 12(b)(6) is proper. Defendants’ Motions to
Dismiss (Dkt. 19; Dkt. 23) are GRANTED.
As the Court has already granted the Kerrs leave to file an Amended Complaint
once before—and in light of the implausible nature of the Kerrs’ allegations—the Court
deems it futile to allow the Kerrs yet another opportunity to amend their complaint.
Accordingly, their Amended Complaint is DISMISSED WITH PREJDUCE.
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V. ORDER
1.

Defendants’ Motions to Dismiss (Dkt. 19; Dkt. 23) are GRANTED and the
Kerrs’ Amended Complaint is DISMISSED WITH PREJUDICE.

2.

The Court will enter a separate Judgment in accordance with Fed. R. Civ.
P. 58.

DATED: November 9, 2018
_________________________
David C. Nye
U.S. District Court Judge

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