Barker v. Saxon Mortgage Services Inc. et al
Filing
45
Opinion and Order: The Court GRANTS Defendant Fidelity National Title's Motion 21 to Dismiss Under FRCP 12(b)(1) and 12(b)(6). Although the Court dismisses without prejudice Plaintiff's claim against Fidelity for failure to pay under the title-insurance policy, the Court's dismissal of Plaintiff's claim against Fidelity as Trustee is subject to the following: Plaintiff has leave to file an amended complaint to cure the deficiencies as to the claim against Fide lity as Trustee as set out in this Opinion and Order no later than February 6, 2013. The Court advises Plaintiff that failure to timely file an amended complaint and to cure those deficiencies shall result in dismissal of that claim with prejudice. Signed on 01/18/2013 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHARLES BARKER III,
3:12-CV-01828-BR
Plaintiff,
OPINION AND ORDER
v.
JANTZEN BEACH VILLAGE
CONDOMINIUM ASSOCIATION;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS (MERS);
UNITED STATES NATIONAL BANK;
FIDELITY NATIONAL TITLE;
REGIONAL TRUSTEE SERVICES,
INC.; SAXON MORTGAGE
SERVICES, INC.; and MORGAN
STANLEY MORTGAGE LOAN TRUST
2007- 15AR,
Defendants.
CHARLES BARKER, III
10350 N. Vancouver Way, #274
Portland, OR 97217
(503) 847-6360
Plaintiff, Pro Se
STUART K. COHEN
1 - OPINION AND ORDER
Landye Bennett Blumstein LLP
1300 S.W. Fifth Avenue
Suite 3500
Portland, OR 97201
(503) 224-4100
Attorneys for Defendant Jantzen Beach Village
Condominium Association
DAVID J. ELKANICH
Hinshaw & Culbertson, LLP
1000 S.W. Broadway
Suite 1250
Portland, OR 97205-3078
(503) 243-3243
Attorneys for Defendants MERS; Saxon Mortgage Services,
Inc.; Morgan Stanley Mortgage Loan Trust 2007-15AR; and
United States National Bank
DANIEL A. WOMAC
The Law Division of Fidelity National Title Group
1200 Sixth Avenue
Suite 620
Seattle, WA 98101
(206) 224-6004
Attorneys for Defendant Fidelity National Title
CRAIG A. PETERSON
LISA M. MCMAHON-MYHRAN
Robinson Tait, P.S.
710 Second Avenue, Suite 710
Seattle, WA 98104
(206) 676-9640
Attorneys for Defendant Regional Trustee Services
Corporation
BROWN, Judge.
This matter comes before the Court on Defendant Fidelity
National Title's Motion (#21) to Dismiss Under FRCP 12(b)(1) and
12(b)(6).
For the reasons that follow, the Court GRANTS
2 - OPINION AND ORDER
Defendant's Motion.
BACKGROUND
The following facts are taken from Plaintiff's Complaint and
exhibits attached to Plaintiff's Complaint, exhibits attached to
the Notice of Removal, and materials filed by Fidelity in support
of its Motion to Dismiss.
On May 24, 2007, Brian Wassman, who is not a party to this
action, entered into a Trust Deed as to property located at 11930
North Jantzen Beach Avenue, Unit #5, Portland, Oregon, with
Wassman as grantor, Fidelity as Trustee, and Defendant MERS as
nominee and beneficiary.
On June 2, 2009, Defendant Regional Trustee Services
Corporation was appointed as successor Trustee and Fidelity
ceased to be Trustee.
Regional Trustee Services recorded the
Appointment of Successor Trustee in Multnomah County on June 2,
2009, and, as Trustee, filed a Notice of Default and Election to
Sell the property in Multnomah County.
On August 26, 2009, Defendant Jantzen Beach Village
Condominium Association "claim[ed]" a lien on the property.
The
record does not reflect when the lien was recorded.
At some point Wassman defaulted on his mortgage and the
property entered foreclosure.
On November 12, 2009, a Trustee Deed was filed in Multnomah
3 - OPINION AND ORDER
County reflecting Regional Trustee Services had conducted a
foreclosure sale of the property and Defendant United States
National Bank, "as Trustee for [Defendant] Morgan Stanley
Mortgage Loan Trust 2007-15AR," bought the property.
On February 2, 2010, U.S. National Bank "grant[ed],
bargain[ed], [sold], warrant[ed], and convey[ed]" the property by
Special Warranty Deed to Woodstock Financial Corporation, which
is not a party to this action.
On March 8, 2010, Woodstock
Financial Corporation recorded its Special Warranty Deed in
Multnomah County and also purchased an Owner's Policy of Title
Insurance from Defendant Fidelity related to the property.
At some point Woodstock Financial transferred the property
to Zuma Enterprises, LLC, which also is not a party to this
action.
The record does not reflect whether this transfer was
recorded.
On May 15, 2012, Plaintiff and Zuma Enterprises filed an
action in Multnomah County Circuit Court1 against Defendant
Jantzen Beach Village Association seeking declaratory relief, a
preliminary and permanent injunction, and damages for various
alleged violations of Oregon law related to the 2009 lien it
placed against the property.
The state-court complaint alleged
"all prospective lenders have declined to proceed with refinance
1
The complaint alleged "plaintiff is the owner" of the
property, but it did not identify which of the plaintiffs is the
owner and did not set out the plaintiffs' relationship, if any.
4 - OPINION AND ORDER
of the existing loan balance . . . until the lien which was
recorded by Defendant has been removed from cloud to the title of
the [property]."
Notice of Removal, Ex. 2 at 6.
On August 21, 2012, Multnomah County Circuit Court Judge
Stephen Bushong held a hearing on Jantzen Beach Village
Condominium Association's motion to strike the state-court
complaint.
Plaintiff appeared pro se, and Zuma Enterprises was
"unrepresented at the hearing."
On August 30, 2012, Zuma
Enterprises transferred the property to Plaintiff Charles Barker
III by Bargain and Sale Deed, and Plaintiff recorded the transfer
in Multnomah County.
On September 4, 2012, Judge Bushong granted Jantzen Beach
Village Condominium Association's motion to strike the statecourt complaint; granted Plaintiff until September 14, 2012, to
file an amended complaint; and noted Zuma Enterprises must retain
legal counsel to prosecute its claims if it "desires to
participate in the proceeding."
On September 22, 2012, Plaintiff filed an amended complaint
in state court2 against Jantzen Beach Village Condominium
Association; MERS; United States National Bank; Fidelity;
Regional Trustee Services; Saxon Mortgage Services, Inc.; and
Morgan Stanley Mortgage Loan Trust 2007-15AR alleging claims for
2
Zuma Enterprises was not named as a plaintiff in the
amended complaint.
5 - OPINION AND ORDER
(1) violation of Oregon Revised Statutes §§ 86.010-86.795;
(2) common-law fraud; (3) fraud; (4) violation of unspecified
provisions of the Fair Debt Collection Practices Act (FDCPA), 15
U.S.C. § 1692, et seq.; (5) violation of the Racketeer Influenced
and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961-1968;
(6) conversion; (7) "contravention of reasonable public policy";
(8) violation of Oregon Revised Statutes §§ 100.450, 100.480, and
94.670; and (9) tortious interference.
On October 12, 2012, Defendants timely removed the matter to
this Court on the basis of federal-question jurisdiction.
On October 29, 2012, Fidelity filed a Motion to Dismiss
Plaintiff's claims against it on the grounds that this Court
lacks jurisdiction and Plaintiff fails to state a claim.
After the Court took Fidelity's Motion to Dismiss under
advisement on November 29, 2012, the Court entered an Order on
January 18, 2013, noting Plaintiff had reached a settlement with
Jantzen Beach Village Condominium Association.
The Court
directed Jantzen Beach Village Condominium Association to file a
stipulation no later than January 31, 2013, confirming settlement
of Plaintiff's claims against the Association.
STANDARDS
I.
Dismissal for lack of jurisdiction pursuant to Rule 12(b)(1)
Plaintiff has the burden to establish that the court has
6 - OPINION AND ORDER
subject-matter jurisdiction.
Ass'n of Am. Med. Coll. v. United
States, 217 F.3d 770 (9th Cir. 2000).
When deciding a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the court may consider
affidavits and other evidence supporting or attacking the
complaint's jurisdictional allegations.
944, 956 (9th Cir. 2005).
Autery v. U.S., 424 F.3d
The court may permit discovery to
determine whether it has jurisdiction.
Laub v. United States
Dept. of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003).
When the
court "receives only written submissions, the plaintiff need only
make a prima facie showing of jurisdiction."
Rio Props., Inc. v.
Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).
II.
Dismissal for failure to state a claim pursuant to Rule
12(b)(6)
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 Atlantic v.
Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. 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.
. . . 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, 129 S. Ct. 1937, 1949 (2009).
7 - OPINION AND ORDER
See also Bell
Atlantic, 550 U.S. at 555-56.
The court must accept as true the
allegations in the complaint and construe them in favor of the
plaintiff.
Intri-Plex Tech., Inc. v. Crest Group, Inc., 499 F.3d
1048, 1050 n.2 (9th Cir. 2007).
"In ruling on a 12(b)(6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice."
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th
Cir. 2007)(citing Jacobson v. Schwarzenegger, 357 F. Supp. 2d
1198, 1204 (C.D. Cal. 2004)).
A court, however, "may consider a
writing referenced in a complaint but not explicitly incorporated
therein if the complaint relies on the document and its
authenticity is unquestioned."
Id. (quoting Parrino v. FHP,
Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on
other grounds as stated in Abrego v. Dow Chem. Co., 443 F.3d 676
(9th Cir. 2006)).
A pro se plaintiff's complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
construe pro se filings liberally.
Thus, the court must
If a plaintiff fails to state
a claim, “[l]eave to amend should be granted unless the pleading
‘could not possibly be cured by the allegation of other facts,’
and should be granted more liberally to pro se plaintiffs.”
Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)(quoting
8 - OPINION AND ORDER
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)).
DISCUSSION
Plaintiff does not specify the particular Defendants against
whom he alleges each of his claims.
It appears, however, that
Plaintiff seeks relief against Fidelity on the ground that
Fidelity breached a duty under the 2010 title-insurance policy
issued to Woodstock Financial Corporation.
Plaintiff may also
intend to assert a claim against Fidelity on the ground that it
was, at one time, Trustee of the property.
I.
Plaintiff's claim related to title insurance
Fidelity moves to dismiss Plaintiff's claim against it
related to title insurance on the grounds that "no claim was
. . . tendered to Fidelity prior to" the filing of this action
and Fidelity has not yet denied nor made any decision as to
Plaintiff's claim.
Plaintiff concedes he did not file a claim
with Fidelity until October 18, 2012, and that Fidelity has not
denied his claim.
Thus, Fidelity contends Plaintiff's claim
against Fidelity for alleged breach of the title-insurance policy
is not yet ripe, and, therefore, this Court lacks jurisdiction to
decide Plaintiff's claim against Fidelity.
A.
The Court agrees.
Standards
"[F]ederal courts are limited to deciding 'cases' and
'controversies.'"
Bova v. City of Medford, 564 F.3d 1093, 1095
9 - OPINION AND ORDER
(9th Cir. 2009)(quoting United States Const. art. III, § 2).
"Two components of the Article III case or controversy
requirement are standing and ripeness."
Id. at 1096 (citing
Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1121
(9th Cir. 2009)).
To have standing to bring an action in federal
court, "a plaintiff must have suffered an injury in fact that is
'concrete and particularized;' that can be fairly traced to the
defendant's action; and that can be redressed by a favorable
decision of the court."
Id. (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)).
"'[S]tanding is
primarily concerned with who is a proper party to litigate a
particular matter, ripeness[, on the other hand,] addresses when
litigation may occur.'"
Id. (quoting Lee v. Oregon, 107 F.3d
1382, 1387 (9th Cir. 1997)).
For example, "'[a] claim is not
ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at
all.'" Id. (quoting Texas v. United States, 523 U.S. 296, 300
(1998)).
"That is so because, if the contingent events do not
occur, the plaintiff likely will not have suffered an injury that
is concrete and particularized enough to establish the first
element of standing."
Id. (citing Lujan, 504 U.S. at 560).
The Ninth Circuit has "consistently held that a dispute
between an insurer and its insureds over the duties imposed by an
insurance contract satisfies Article III's case and controversy
10 - OPINION AND ORDER
requirement.”
See, e.g., Gov't Employees Ins. Co. v. Dizol, 133
F.3d 1220, 1222 n.2 (9th Cir. 1998)(citing Am. Nat. Fire Ins. v.
Hungerford, 53 F.3d 1012, 1015–16 (9th Cir. 1995)).
An insurance
dispute, however, may be insufficiently ripe to qualify as an
actual case or controversy.
B.
Analysis
It is undisputed that Plaintiff did not give Fidelity
notice of any claim under the title policy until after this
action commenced.
It is also undisputed that Fidelity has not
denied Plaintiff's claim.
Plaintiff, in fact, states in his
Response that he is currently supplying documents to Fidelity in
support of his claim.
In any event, the Ninth Circuit has held
claims for failure to pay insurance are not ripe until the
insurance company has denied the claim.
See, e.g., Bova, 564
F.3d at 1096 (court held the plaintiff's claim was not ripe
because the "[p]laintiffs' alleged injury - denial of health
insurance coverage - has not yet occurred.").
Under the
circumstances in this case, the Court concludes any claim
Plaintiff may have against Fidelity for breach of title insurance
is not yet ripe.
The Court, therefore, lacks jurisdiction to
decide Plaintiff's claim.
Accordingly, the Court grants Fidelity's Motion to
Dismiss and dismisses without prejudice Plaintiff's claim for
11 - OPINION AND ORDER
failure to pay Plaintiff under the title-insurance policy.3
II.
Plaintiff's claim against Fidelity as Trustee
Although it is unclear from the Amended Complaint and
Plaintiff's Response to Fidelity's Motion to Dismiss, Plaintiff
may also be asserting a claim against Fidelity for its role as
Trustee.
Specifically, Plaintiff makes several allegations in
his Complaint related to issues with the propriety of MERS as a
nominee and the transfers of property made involving MERS.
As
Fidelity points out, however, it ceased to be the Trustee on the
property in June 2009, which was before the property was
foreclosed, before it was sold at auction to U.S. National Bank,
and months before it was sold by U.S. National Bank to Plaintiff.
The Court concludes on this record that Plaintiff fails to
state a claim or to allege any plausible injury to Plaintiff
caused by Fidelity's position as Trustee of the property before
the foreclosure sale.
Iqbal, 129 S. Ct. at 1949.
Accordingly,
the Court grants Fidelity's Motion to Dismiss Plaintiff's claim
against Fidelity related to its tenure as trustee of the
property.
3
The Court also questions whether Plaintiff has standing to
assert a claim under the title-insurance policy because the
record reflects the policy was issued to Woodstock Financial.
Because the parties did not raise that issue, however, the Court
declines to address the question of standing on the sparse
current record in this case.
12 - OPINION AND ORDER
CONCLUSION
For these reasons, the Court GRANTS Defendant Fidelity
National Title's Motion (#21) to Dismiss Under FRCP 12(b)(1) and
12(b)(6).
Although the Court dismisses without prejudice Plaintiff's
claim against Fidelity for failure to pay under the titleinsurance policy, the Court's dismissal of Plaintiff's claim
against Fidelity as Trustee is subject to the following:
Plaintiff has leave to file an amended complaint to cure the
deficiencies as to the claim against Fidelity as Trustee as set
out in this Opinion and Order no later than February 6, 2013.
The Court advises Plaintiff that failure to timely file an
amended complaint and to cure those deficiencies shall result in
dismissal of that claim with prejudice.
IT IS SO ORDERED.
DATED this 18th day of January, 2013.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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