McGeough et al v. Nationstar Mortgage LLC et al

Filing 25

ORDER granting defendants' motions to dismiss 6 11 14 ; and dismissing plaintiffs' complaint with prejudice by Judge Richard A Jones.(RS)cc plaintiffs

THE HONORABLE RICHARD A. JONES

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

DENNIS P. MCGEOUGH, et al.,
NO. 2:16-cv-01606-RAJ
Plaintiffs,

11

v.

12
13

ORDER

NATIONSTAR MORTGAGE LLC, et al.,

14

Defendant.

15

This matter comes before the Court on three motions to dismiss brought by

16
17

Nationstar Mortgage, LLC, Bank of America, and Thomas P. Cialino (collectively,

18

“Defendants”). Dkts. #6, 11, 14. Plaintiffs Dennis and Katherine McGeough

19

(collectively, “Plaintiffs”) have not filed any opposition to Defendants’ motions. For
20
21
22
23

the reasons that follow, the Court GRANTS Defendants’ motions and DISMISSES
this action with prejudice.
I.

BACKGROUND

24

Plaintiffs’ Complaint contains no factual background or explanation of
25
26

Plaintiffs’ relationship to the Defendants. The Court ascertains the following from a
series of exhibits attached to the Complaint: Plaintiffs obtained a mortgage loan from
ORDER - 1

1

Bank of America; Thomas Cialino, an attorney representing Bank of America, sent a

2

letter to Plaintiffs in October 2013 notifying them that servicing of their loan was

3

transferred to Nationstar Mortgage; and Nationstar notified Plaintiffs that the loan was
4
5

in default.
Plaintiffs bring claims for conversion against Bank of America, Cialino, and

6
7

Nationstar, alleging that each “has converted the plaintiffs’ property for its own gains

8

and profit.” Dkt. # 1-1 at 3, 6, 8. Plaintiffs allege that each Defendant “has denied the
9
10

plaintiff[s] free use of his [sic] property by engaging in a foreclosure action which is

11

not authorized by law, in which the defendant has no legal rights or interests and

12

which may involve the laundering of forged and counterfeited negotiable instruments

13

using state laws and the county court system.” Id. at 6. While the alleged foreclosure

14
15

appears to be the crux of Plaintiffs’ claim, Plaintiffs also appear to allege an unlawful

16

acquisition of their personal information, including their “legal names, dates of birth,

17

signatures, credit information, banking information, tax and financial information and

18

other private information.” Id. at 3. Plaintiffs allege that this information was

19
20

“acquired and used for commercial purposes without the[ir] express consent” and “to

21

make it appear as if by having this information, the defendant[s] had some legal right

22

to undertake the actions involving foreclosure against plaintiffs’ property.” Dkt. # 1-1

23

at 3.

24
25
26

ORDER - 2

All three Defendants now move to dismiss Plaintiffs’ claims under Federal Rule

1
2

of Civil Procedure 12(b)(6). 1

3

II.

LEGAL STANDARD

4

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint

5
6

for failure to state a claim upon which relief can be granted. The rule requires the

7

Court to assume the truth of the Complaint’s factual allegations and credit all

8

reasonable inferences arising from those allegations. Sanders v. Brown, 504 F.3d 903,
9
10

910 (9th Cir. 2007). However, a court “need not accept as true conclusory allegations

11

that are contradicted by documents referred to in the complaint.” Manzarek v. St. Paul

12

Fire & Marine Ins. Co., 519 F.3d 1025, 2031 (9th Cir. 2008). The plaintiff must point

13

to factual allegations that “state a claim to relief that is plausible on its face.” Bell Atl.

14
15

Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint

16

avoids dismissal if there is “any set of facts consistent with the allegations in the

17

complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556

18

U.S. 662, 679 (2009).

19

Where, as here, a plaintiff proceeds pro se, the court must construe the

20
21

“complaint[] liberally even when evaluating it under the Iqbal standard.” Johnson v.

22

Lucent Techs. Inc., 653 F.3d 1000, 1011 (9th Cir. 2011) (citing Hebbe v. Piller, 627

23

F.3d 338, 342 (9th Cir. 2010). “Furthermore, ‘[l]eave to amend should be granted

24
25
26

1

Defendant Cialino argues alternatively that Plaintiffs’ claim against him should be dismissed for lack
of personal jurisdiction. The Court does not reach this argument in light of Defendants’ collective
agreement that Plaintiffs’ suit should be dismissed under Rule 12(b)(6).

ORDER - 3

1

unless the pleading could not possibly be cured by the allegation of other facts, and

2

should be granted more liberally to pro se plaintiffs.” Id. (quoting McQuillion v.

3

Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004)).
4
5

III.

DISCUSSION

6

Before proceeding to the substance of the motions, the Court notes that

7

Plaintiffs have failed to file any opposition to Defendants’ motions. Pursuant to this

8

Court’s Local Rules, Plaintiffs’ failure “to file papers in opposition to a motion . . .
9
10

may be considered by the court as an admission that the motion has merit.” See Local

11

Rules W.D. Wash. LCR 7(b)(2). While parties proceeding pro se are afforded

12

substantial lenience, they must still comply with the Local Rules (cf. Draper v.

13

Coombs, 792 F.2d 915, 924 (9th Cir. 1986)), which require opposition papers to “be

14
15

filed and served not later than the Monday before the noting date.” LCR 7(d)(3). The

16

December 2016 noting dates for Defendants’ motions passed without opposition from

17

Plaintiffs. Therefore, the Court concludes that Plaintiffs have admitted that the

18

motions have substantial merit and should be granted.

19
20

Further, Defendants’ arguments that Plaintiffs have failed to properly state a

21

claim for conversion are compelling. “Conversion is the unjustified, willful

22

interference with a chattel which deprives a person entitled to property of possession.”

23

Lang v. Hougan, 150 P.3d 622, 626 (Wash. App. 2007). “A chattel is ‘[a]n article of

24
25
26

personal property, as distinguished from real property[,] [a] thing personal and
moveable.” In re Marriage of Langham, 106 P.3d 212, 218 (Wash. 2005) (citing
BLACK’S LAW DICTIONARY 251 (8th Ed. 2004)). While Plaintiffs initially assert their
ORDER - 4

1

property interest in their personal information—names, dates of birth, signatures,

2

credit information, banking information, tax information, and financial information—it

3

appears that their cause of action is focused on a piece of real property they claim has
4
5
6
7

been wrongfully foreclosed on. Because it is axiomatic that real property is not chattel
and, therefore, cannot be converted, there is no legal basis for Plaintiffs’ claim.
IV.

CONCLUSION

8

For all the foregoing reasons, the Court GRANTS Defendants motions to
9
10

dismiss. Dkts. # 6, 11, 14. Plaintiffs have failed to oppose the motions and to state a

11

valid claim for conversion. Plaintiffs’ Complaint is therefore DISMISSED with

12

prejudice. The Clerk is directed to close this case.

13
14
15

Dated this 22nd day of May, 2017.

16
17

A

18
19

The Honorable Richard A. Jones
United States District Judge

20
21
22
23
24
25
26

ORDER - 5