Ephraim, Jr v. Beneficial Washington Inc et al

Filing 7

ORDER Granting Defendant's 5 Motion to Dismiss for Failure to State a Claim by Judge John C Coughenour. Because the Court concludes that Plaintiff could cure the identified deficiencies by amending his complaint, the Court dismisses his claims without prejudice and grants him leave to amend; Amended Pleadings due by 8/18/2014. (LMK) CC:Plaintiff

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JC EPHRAIM, JR,

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CASE NO. C14-0748-JCC
Plaintiff,

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ORDER

v.
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BENEFICIAL WASHINGTON INC., et
al.,

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Defendants.
This matter comes before the Court on Defendants’ motion to dismiss or, alternatively,
for a more definite statement (Dkt. No. 5). Having thoroughly considered the parties’ briefing

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and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the
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motion for the reasons explained herein.
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I.

DISCUSSION

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On May 12, 2014, Plaintiff filed a complaint in state court asserting numerous causes of
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action related to a home loan issued by Defendants. (Dkt. No. 1, Ex. 2.) Defendants removed to
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federal court on the basis of federal-question jurisdiction because Plaintiff made claims under the
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Fair Debt Collection Practices Act (“FDCPA”). See 28 U.S.C. § 1331.

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Defendants filed a motion to dismiss on May 29, 2014. (Dkt. No. 5.) Plaintiff, who is
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proceeding pro se, did not respond. Having reviewed the complaint, the Court concludes that the
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ORDER
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1 motion to dismiss has merit. However, “[d]ismissal without leave to amend is appropriate only
2 when the Court is satisfied that an amendment could not cure the deficiency.” Harris v. County
3 of Orange, 682 F.3d 1126, 1135 (9th Cir. 2012). Plaintiff’s complaint generally describes an
4 unfair and perhaps predatory refinancing and loan-modification process. Plaintiff has failed to
5 describe any circumstances with particularity, and the lack of supporting factual allegations is
6 fatal on this motion to dismiss. Because the Court concludes that Plaintiff could amend his
7 complaint to cure the identified deficiencies, the Court grants Plaintiff leave to amend and briefly
8 reviews the claims below.
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1. Breach of Contract
Plaintiff’s complaint does not plead the existence of a contract or explain how

11 Defendants breached any contract. See Wells Fargo Bank v. Genung, No. C13-0703-JLR, 2013
12 WL 6061592 at *3 (W.D. Wash. 2013) (party alleging breach of contract under Washington law
13 must show the existence of a valid contract, a breach of that contract, and resulting damages).
14 Plaintiff must identify a relevant contract and explain how the defendant violated the terms of
15 that contract in order for his claims to survive a motion to dismiss.
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2. Violation of Wash. Rev. Code § 61.24.030

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Section 61.24.030 of the Washington Revised Code establishes the requirements for

18 proceeding with a trustee’s sale. However, Plaintiff does not describe which requirements
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3. Violation of Washington’s Consumer Protection Act

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The elements of a CPA claim are: (1) an unfair or deceptive act or practice; (2) occurring

22 in trade or commerce; (3) public interest impact; (4) injury to the plaintiff or the plaintiff’s
23 business or property; and (5) an injury that is causally linked to the unfair or deceptive act. See
24 Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 533 (Wash. 1986).
25 Plaintiff has not described which acts he believes violated the CPA or how those acts would
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ORDER
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4. Fraud and Predatory Lending Claims

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Washington law does not recognize a claim for predatory lending. See Lapinski v. Bank

3 of America, No. 2014 WL 347274 at *2 (W.D. Wash., Jan. 30, 2014) (citing cases). To the extent
4 that Plaintiff makes an independent claim for fraud, he must establish nine elements:
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“(1) Representation of an existing fact; (2) materiality; (3) falsity; (4) the
speaker’s knowledge of its falsity; (5) intent of the speaker that it should be acted
upon by the plaintiff; (6) plaintiff’s ignorance of its falsity; (7) plaintiff’s reliance
upon the truth of the representation; (8) plaintiff’s right to rely upon it; and (9)
damages suffered by the plaintiff.”
Lapinski, 2014 WL 347274 at *2. A party alleging fraud must “state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This heightened pleading
standard requires a plaintiff to include in his complaint the “who, what, when, where, and how”
of the fraud. Vess v. Ciba-Geigy Corp., USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal
quotation marks omitted). “The plaintiff must set forth what is false or misleading about a
statement, and why it is false.” Id. (quoting Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec.
Litig.), 42 F.3d 1541, 1548 (9th Cir. 1994).
Plaintiff generally alleges that Defendant has misled him, but has failed to identify
specific representations, explain how they are false, or describe misrepresentations with enough
supporting details to satisfy this standard.
5. Promissory Estoppel
The elements of a promissory-estoppel claim are “(1) a promise, (2) that promisor should
reasonably expect to cause the promisee to change his position, and (3) actually causes the
promisee to change position, (4) justifiably relying on the promise, (5) in such a manner that
injustice can be avoided only be enforcement of the promise.” McCormick v. Lake Washington
Sch. Dist., 992 P.2d 516 (1999). Plaintiff generally alleges that Defendant had a practice of
“stringing [him] along,” (Dkt. No. 1 at 9) but does not identify any promises upon which he
justifiably relied.

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ORDER
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6. Libel and Defamation

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To establish a defamation claim, the plaintiff must show that the defendant made a false,

3 unprivileged statement that proximately caused damages. See Alpine Indus. Computers, Inc. v.
4 Cowles Pub. Co., 57 P.3d 1178, 1183 (2002). The Complaint states that Defendants falsely
5 accused him of not paying his debts but it also suggests that he did indeed fall behind on his
6 payments. (Dkt. No. 1.) Plaintiff has thus failed to allege the existence of a false statement.
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7. Violation of the Fair Debt Collection Practices Act

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Section 1692f of the Fair Debt Collection Practices Act (“FDCPA”) provides that debt

9 collectors “may not use unfair or unconscionable means to collect or attempt to collect any debt”
10 and lists a number of actions that violate the statute. 15 U.S.C. § 1692f. Most likely relevant here
11 is that debt collectors may not take or threaten to take nonjudicial action to effect dispossession
12 or disablement of property absent a right to possession. 15 U.S.C. § 1692f(6)(A). Plaintiff does
13 not allege that Defendants lacked a possessory right in the relevant property.
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8. Violations of the Bankruptcy Protection Act, Civil Rights Act, and Americans
with Disabilities Act

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Plaintiff identifies no statutory provisions or factual support for claims under these

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statutes. Plaintiff may be suggesting that he lacked the ability to comprehend various loan
modifications, but the complaint is unclear on this subject. (Dkt. No. 1-2 ¶ j.)
II.

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The Court GRANTS Defendant’s motion to dismiss. (Dkt. No. 5.) Because the Court

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CONCLUSION

concludes that Plaintiff could cure the identified deficiencies by amending his complaint, the
Court dismisses his claims without prejudice and grants him leave to amend. Plaintiff must file
his amended complaint no later than thirty (30) days from the date of this order. Failure to do so
may result in dismissal of this action without further notice.
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ORDER
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DATED this 18th day of July 2014.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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